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73 F.Supp.2d 1148 (1999)
Myron S. GRITCHEN, et al., Plaintiff,
v.
Gordon W. COLLIER, et al., Defendants.
No. SA CV 98-864-GLT[JW].
United States District Court, C.D. California, Southern Division.
October 18, 1999.
*1149 Peter J. Eliasberg, ACLU Foundation of Southern California, Los Angeles, CA, for plaintiff.
Larry J. Roberts, Law Offices of James E. Trott, Fountain Valley, CA, for defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
TAYLOR, District Judge.
Plaintiff's Motion for Summary Judgment is GRANTED.
The Court finds California Civil Code § 47.5, specially authorizing a defamation action by a police officer targeted by a citizen's false complaint, is unconstitutional.
*1150 I. BACKGROUND
In 1998 Plaintiff motorist was stopped by Defendant, a Long Beach Police Department officer. Plaintiff later filed a citizen complaint about the officer's conduct during the traffic stop. The police department found there was no misconduct.
Defendant (through his attorney) sent a letter to Plaintiff threatening a defamation suit under Cal.Civ.Code § 47.5, which states in relevant part:
Notwithstanding Section 47, a peace officer may bring an action for defamation against an individual who has filed a complaint with that officer's employing agency alleging misconduct, criminal conduct, or incompetence, if that complaint is false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will.
Cal.Civ.Code § 47 is a general provision establishing that most publications and broadcasts arising out of official government duties or proceedings are privileged, and therefore cannot be the subject of a defamation action. Section 47.5 creates an exception to the normal privileged status of citizen complaints about public officials by allowing police officer defamation suits against individuals who falsely charge them with misconduct.
Attached is an Appendix prepared by Plaintiff's attorneys summarizing all states' laws governing citizen complaints against police officers and other public officials. Some states have an absolute or qualified privilege for citizen complaints against public officials. Others decline to adopt any statutory privilege. California's statutory scheme is unlike any other state's, applying one defamation rule to complaints against peace officers, and another rule to complaints against all other public officials.[1]
Plaintiff responded to the Defendant's threat of a defamation suit with this challenge to the constitutionality of § 47.5.[2] The relevant facts are undisputed and the parties agree the case presents only questions of law. Plaintiff has moved for summary judgment, and Defendant has requested in his Opposition that the Court enter judgment in his favor.
II. DISCUSSION
Plaintiff sues under 42 U.S.C. § 1983, creating a cause of action for any party "depriv[ed] of any rights, privileges, or immunities secured by the Constitution" by someone acting "under color of any statute ... of any State." Plaintiff alleges his First Amendment right to free speech has been impaired by § 47.5 and Defendant's actions.
1. Standing
Article III of the Constitution and 28 U.S.C. § 2201 both require that a plaintiff in federal court present an "actual controversy." See Steffel v. Thompson, 415 U.S. 452, 458, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974).
*1151 Defendant argues Plaintiff has not presented a justiciable controversy because no action has actually been brought against him under § 47.5, and § 47.5 does not directly restrict Plaintiff's freedom of expression. Plaintiff argues Defendant's threats to sue for defamation are sufficient to create a justiciable claim.
In determining whether a claim of this sort is justiciable, the issue is "whether any perceived threat to [plaintiff] is sufficiently real and immediate to show an existing controversy" and is not just "imaginary or speculative." Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S.Ct. 2777, 2784, 73 L.Ed.2d 534 (1982) (citation omitted).
The threat of a defamation suit by Defendant is more than "imaginary or speculative." Defendant has indicated his intent to file such a suit several times to Plaintiff, and has preserved his ability to do so by placing a temporary hold on his action pending the result of this case. It appears that the threat is immediate enough to create a justiciable controversy. Bland v. Fessler, 88 F.3d 729, 736-37 (9th Cir.1996).
Plaintiff need not wait until Defendant actually files suit. The threat of a lawsuit is not just speculative. There is a justiciable controversy.[3]
2. Color of state law
A § 1983 defendant acts under color of state law if he "exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (citation omitted).
Defendant fits this description. All the relevant events in this case arose out of Defendant's performance of his job as a police officer. This case involves a provision of state law that was created for, and applies solely to, peace officers.
Defendant has presented no authority to suggest otherwise. Though he rightly argues not all actions taken by state government employees are necessarily under color of state law, all of the examples he provides are cases in which the defendants' actions were well outside the performance of their official duties.[4]
The events in this case, starting with the traffic stop, followed by the citizen complaint, and ending in the threats of a defamation suit under § 47.5, are all unavoidably tied to Collier's position as a police officer. For purposes of this action, Defendant's conduct was under color of state law.
3. Constitutionality
In general, states are free to regulate defamatory speech, so long as that regulation meets the constitutional standards in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
California law generally protects citizen complaints about the conduct of public officials against lawsuits for defamation or libel. See Cal.Civ.Code § 47 (establishing privilege encompassing such complaints). Cal.Civ.Code § 47.5 creates a *1152 specific exception to this general protection for citizen complaints made against peace officers.[5]
Section 47.5 restricts defamatory speech against one group of public officials (peace officers), while leaving intact the protections for defamatory speech against other public officials. Within a broad category of proscribable speech (defamation), California has generally chosen not to proscribe that speech when targeted at public officials. Cal.Civ.Code § 47. It has, however, carved out an exception for peace officers. Cal.Civ.Code § 47.5.
This is a form of content-based discrimination, since speech about one group of public officials is treated differently than speech about other public officials. State government content-based discriminations against speech must be examined carefully to determine whether they violate the First Amendment, which is incorporated concerning the states by the Fourteenth Amendment.
The Supreme Court set the test for determining the constitutionality of content-based discriminations against speech in R.A.V. v. City of St. Paul, 505 U.S. 377, 387-90, 112 S.Ct. 2538, 2545-47, 120 L.Ed.2d 305 (1992). Most content-based discrimination is prohibited, but the prohibition "is not absolute" and "applies differently in the context of proscribable speech than in the area of fully protected speech." Id., 505 U.S. at 387, 112 S.Ct. at 2545.
Content discrimination against a particular type of proscribed speech is permissible when the basis for it "consists entirely of the very reason the entire class of speech at issue is proscribable." Id., 505 U.S. at 388, 112 S.Ct. at 2545. Content-based discrimination is also permissible if the discrimination is based on "secondary effects" and is "justified without reference to the content of the ... speech." Id., 505 U.S. at 389, 112 S.Ct. at 2546 (citations omitted). Finally, content-based discrimination might be permissible in other situations, "so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot." Id., 505 U.S. at 390, 112 S.Ct. at 2547.
The basis for the content discrimination in this case does not "consist entirely of the very reason" that defamatory speech is proscribable. Defamatory statements are proscribable because they are false and injurious to their targets. Nothing about the position of a peace officer is inherently tied to the policies underlying the law of defamation, as compared to the position of other government officers.
Nor does the basis for the content discrimination in this case arise out of the policies underlying § 47 and the prevention of defamation suits against citizen complainants by other public officials. That provision and the privilege it creates are designed to "assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing." Imig v. Ferrar, 70 Cal.App.3d 48, 55, 138 Cal.Rptr. 540 (1977). See also Silberg v. Anderson, 50 Cal.3d 205, 213, 266 Cal.Rptr. 638, 786 P.2d 365 (1990) (stating the § 47 privilege for statements in judicial proceedings is designed to "afford ... freedom of access to the courts without fear of being harassed subsequently by derivative tort actions"). The peace officer exception in § 47.5 does not serve this policy.
The content discrimination in this case is not based on "secondary effects." Because it is a provision authorizing defamation suits, § 47.5 is inherently about speech it is a direct restriction on the speech of citizen complainants. It is similarly not "justified without reference to the content of the speech," since it is triggered by the *1153 content of a citizen's complaint only when a complaint involves a peace officer does the provision apply.
Finally, it cannot be said that the content discrimination in § 47.5 is of a sort where there is "no realistic possibility that official suppression of ideas is afoot." Though § 47.5 may serve the goal of protecting peace officers from unfounded complaints, it is realistic to conclude it might also be used to discourage legitimate complaints.
Section 47.5 can survive constitutional challenge only if it is "narrowly tailored to serve compelling state interests." R.A.V., supra, 505 U.S. at 395, 112 S.Ct. at 2549. The Court finds that it is not. Section 47.5 may in fact hinder the policies underlying § 47 by partially blocking the "open channel" of communication between citizens and their government, at least as to one group of public officials. No showing has been made that there is a serious problem of false complaints against police.
Even if the state interest behind the content discrimination in § 47.5 were compelling, the provision is not narrowly tailored to fit that interest. Significant protections from false complaints are already afforded to police officers by their internal oversight agencies, in addition to the possibility of perjury charges for false complainants. See Plaintiff's Reply, pp. 24-25. If these protections are insufficient, California may strengthen existing safeguards or provide procedures to ensure police officers' careers are not put in jeopardy until after a complaint's truth is verified.
By treating citizen complaints against police officers differently from complaints against all other government officers, § 47.5 makes an impermissible content-based discrimination against a type of speech. As presently written, it is facially unconstitutional, violating the First and Fourteenth Amendments.
Plaintiff's Motion for Summary Judgment is GRANTED.
*1154 APPENDIX
STATE-BY-STATE PRIVILEGES FOR CITIZENS COMPLAINTS
Statutory Privileges Common Law Privileges
-----------------------------------------------------------------------------------------------------------------
| Alabama | no applicable provision located | Actual malice/qualified privilege |
| | | standard of New York Times v. |
| No special provision for | | Sullivan applies to comments and |
| police officers | | complaints directed toward public |
| | | officials. Camp v. Yeager, 601 So. |
| | | 2d 924 (Ala. 1992) |
| | | Qualified privilege. |
|-------------------------------|-----------------------------------------|---------------------------------------|
| Alaska | no applicable provision located | Actual malice standard of New |
| | | York Times v. Sullivan applies to |
| No special provision for | | comments and complaints directed |
| police officers | | toward public officials. Beard v. |
| | | Baum, 796 P.2d 1344 (Alaska |
| | | 1990). |
| | | Qualified privilege. |
|-------------------------------|-----------------------------------------|---------------------------------------|
| Arizona | no applicable provision located | Statements about public officials |
| | | are conditionally privileged under |
| No special provision for | | Arizona law and police officers |
| police officers | | are recognized as public officials. |
| | | Olive v. City of Scottsdale, 969 |
| | | F.Supp. 564 (D. Ariz. 1996). See |
| | | also Melton v. Slonsky, 504 P.2d |
| | | 1288 (Ariz. Ct. App. 1973); Selby |
| | | v. Savard, 134 Ariz. 222 (1982). |
| | | Conditional Privilege. |
|-------------------------------|-----------------------------------------|---------------------------------------|
| Arkansas | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New |
| police officers | | York Times and police officers are |
| | | public officials. Karr v. |
| | | Townsend, 606 F.Supp 1121 |
| | | (W.D.Ark. 1985). |
|-------------------------------|-----------------------------------------|---------------------------------------|
| California | California Civil Code § 47 | Absolute privilege applies to |
| | provides an absolute privilege for | "communications between citizens |
| Statutory exception to | statements made in the course of | and public authorities whose |
| statutory absolute privilege | official proceedings. | responsibility is to investigate and |
| for police officers | | remedy wrongdoing." Imig v. |
| | | Ferrar, 70 Cal. App. 3d 48, 56 |
| | California Civil Code § 47.5, | (1977) |
| | enacted in 1982, makes an | |
| | exception to the § 47/Imig rule for | |
| | complaints of misconduct by a | |
| | "peace officer" | |
-----------------------------------------------------------------------------------------------------------------
*1155
----------------------------------------------------------------------------------------------------------------
| Colorado | no applicable provision located | Actual malice standard of New |
| | | York Times v. Sullivan applies to |
| No special provision for | | comments and complaints directed |
| police officers | | toward public officials. Manuel v. |
| | | Fort Collins Newspapers Inc., 661 |
| | | P.2d 289 (Colo. App. 1982). |
| | | Police officers are public officials. |
| | | Willis v. Perry, 677 P.2d |
| | | 961(Colo. App. 1983). |
| | | Qualified privilege |
|--------------------------------|---------------------------------------|---------------------------------------|
| Connecticut | no applicable provision located | Absolute privilege is an |
| | | affirmative defense, which applies |
| No special provision for | | to statements made in connection |
| police officers | | with administrative proceedings |
| | | that are quasi-judicial in nature, |
| | | including statements made in |
| | | connection with an agency's quasi-judicial |
| | | investigatory powers. |
| | | Petyan v. Ellis, 200 Conn. 243, |
| | | 246 (1986); Magnan v. Anaconda |
| | | Industries, Inc., 37 Conn. Supp. |
| | | 38, 45-46 (1980); see also Bieluch |
| | | v. Smith, 1993 Conn. Super. Lexis |
| | | 1319 (written complaint to the |
| | | state police, concerning alleged |
| | | misconduct of a state police officer |
| | | was entitled to an absolute |
| | | privilege because a quasi-judicial |
| | | proceeding was involved). The |
| | | privilege may be lost by |
| | | unnecessary or unreasonable |
| | | publication to one for whom the |
| | | occasion is not privileged. Kelley |
| | | v. Bonney, 221 Conn. 549 (1992). |
|--------------------------------|---------------------------------------|---------------------------------------|
| Delaware | no applicable provision located | New York Times v. Sullivan, actual |
| | | malice standard applies to |
| No special provision for | | comments and complaints about |
| police officers | | public officials. Jackson v. |
| | | Filliben, 281 A.2d 604 (Del. |
| | | Super. Ct. 1971). |
| | | Qualified privilege. |
----------------------------------------------------------------------------------------------------------------
*1156
----------------------------------------------------------------------------------------------------------------
| D.C. | no applicable provision located | New York Times v. Sullivan, actual |
| | | malice standard applies to |
| No special provision for | | comments and complaints about |
| police officers | | public officials. See White v. |
| | | Fraternal Order of Police, 707 |
| | | F.Supp. 579 (D.D.C. 1989). |
| | | |
| | | One who writes communications |
| | | to police officials concerning |
| | | alleged misconduct of a police |
| | | officer is entitled to a qualified |
| | | privilege against liability for libel |
| | | and slander. Sowder v. Nolan, |
| | | 125 A.2d 52 (App. D.C. 1956). |
|--------------------------------|---------------------------------------|---------------------------------------|
| Florida | "Policeman's Bill of Rights," F.S. | Police officers are public officials |
| | 112.532(3)(1983) provides that | "subject to fair comment and |
| No special rights for | "Every law enforcement officer or | criticism from any member of the |
| police officers, as statute is | correctional officer shall have the | public..." White v. Fletcher, 90 |
| interpreted by State | right to bring civil suit against any | So. 2d 129, 131 (Fla. 1956); See |
| Supreme Court | person, group of persons, or | also Harrison v. Williams, 430 So. |
| | organization or corporation, or the | 2d 585 (Fla. Dist. Ct. App. 1983). |
| | head of such organization or | |
| | corporation, for damages, either | A citizen complaint filed through |
| | pecuniary or otherwise, suffered | the system set up by a Dade |
| | during the performance of the | County ordinance (Internal |
| | officer's official duties or for | Review Panel), was subject to |
| | abridgement of the officer's civil | absolute privilege because the |
| | rights arising out of the officer's | IRP proceedings constituted |
| | performance of official duties. | proceedings authorized by law. |
| | Held: facially constitutional by | Gray v. Rodriguez, 481 So. 2d |
| | Florida Supreme Court because the | 1298 (Fla. Dist. Ct. App. 1986). |
| | Court found the provision to be | Russell v. Smith, 434 So. 2d 342 |
| | merely a codification of the | (Fla. Dist. Ct. App. 1983), held |
| | common law: "the statute confers | that three letters of complaint |
| | on Mesa no right to sue for | written to Chief of Police, Plaintiff |
| | defamation greater than any right | Police Officer, and two judges |
| | he possesses under Florida law | (only one of whom had an, |
| | without it." Mesa v. Rodriguez, | arguably, legitimate legal interest |
| | 357 So. 2d 711, 713 (Fla. 1978), | in the subject matter) were subject |
| | as applied challenge not decided. | to a qualified privilege under |
| | | New York Times v. Sullivan. |
----------------------------------------------------------------------------------------------------------------
*1157
----------------------------------------------------------------------------------------------------------------
| Georgia | O. C. G. A. § 51-5-7(9) provides | Privileged communications |
| | that "Comments upon the acts of | enumerated in this section are |
| No special provision for | public men or public women in | conditional privileges. Lamb v. |
| police officers | their public capacity and with | Fedderwitz, 68 Ga. App. 233 |
| | reference thereto" are deemed | (1942), aff'd, 195 Ga. 691 (1943); |
| | privileged. | Atlanta Journal Co. v. Doyal, 82 |
| | | Ga. App 321, 60 S.E2d 802 (Ga. |
| | | Ct. App. 1950). |
| | | |
| | O. C. G. A. § 51-5-5 provides "In | Public official can recover only |
| | all actions for printed or spoken | upon clear and convincing proof |
| | defamation, malice is inferred | that the defamatory falsehood was |
| | from the character of the charge. | made with knowledge of its falsity |
| | However, the existence of malice | or in reckless disregard for the |
| | may be rebutted by proof. In all | truth. Rogers v. Adams, 98 Ga. |
| | cases, such proof shall be | App. 155, (1958); Williams v. |
| | considered in mitigation of | Trust Co., 140 Ga. App. 49 |
| | damages. In cases of privileged | (1976). |
| | communications, such proof shall | |
| | bar recovery." | |
|--------------------------------|---------------------------------------|---------------------------------------|
| Hawaii | H.R.S. 663-1 codifies the general | New York Times v. Sullivan, actual |
| | right of all persons to redress their | malice standard applies to |
| No special provision for | grievances through the courts | comments and complaints about |
| police officers | | public officials. Mehau v. |
| | | Gannettt Pac. Corp., 658 P.2d 312 |
| | | (Haw. 1983). |
| | | Qualified privilege. |
|--------------------------------|---------------------------------------|---------------------------------------|
| Idaho | no applicable provision located | No specific comment found |
| | | regarding privileged status of |
| No special provision for | | citizen complaints. |
| police officers | | |
----------------------------------------------------------------------------------------------------------------
*1158
----------------------------------------------------------------------------------------------------------------
| Illinois | no applicable provision located | Citizen complaints about police |
| | | and public officials are subject to a |
| No special provision for | | qualified privilege so long as the |
| police officers | | "occasion" in question creates |
| | | some recognized duty or interest |
| | | so as to make the communication |
| | | privileged, i.e. interest of the |
| | | communicator is involved; interest |
| | | of the person to whom |
| | | communication was made is |
| | | involved; or, public interest is |
| | | involved. Doe v. Kutella, 1995 |
| | | U.S. Dist. Lexis 18950 (N.D.Ill.). |
| | | See also Coursey v. Greater Niles |
| | | Township Publishing Corp., 40 Ill. |
| | | 257 (1968); Flannery v. Allyn, 47 |
| | | Ill. App. 2d 308 (1964). |
|--------------------------------|---------------------------------------|---------------------------------------|
| Indiana | no applicable provision located | New York Times v. Sullivan actual |
| | | malice standard applies to |
| No special provision for | | comments and complaints about |
| police officers | | public officials. WTHR-TV v. |
| | | Cline, 693 N.E.2d 1 (Ind. 1998); |
| | | Conwell v. Beatty, 667 N.E.2d |
| | | 768 (Ind. Ct. App. 1996) |
| | | Qualified privilege. |
|--------------------------------|---------------------------------------|---------------------------------------|
| Iowa | no applicable provision located | Comments and complaints |
| | | regarding public officials or the |
| No special provision for | | "common public interest" are |
| police officers | | subject to a qualified privilege. |
| | | Brown v. First Nat'l. Bank of |
| | | Mason City, 193 N.W.2d 547 |
| | | (Iowa 1972); Kelly v. Iowa State |
| | | Educ. Assn., 372 N.W.3d 288 (Ia. |
| | | App. 1988). |
----------------------------------------------------------------------------------------------------------------
*1159
----------------------------------------------------------------------------------------------------------------
| Kansas | no applicable provision located | New York Times v. Sullivan actual |
| | | malice standard applies to |
| No special provision for | | comments and complaints about |
| police officers | | public officials. Ruebke v. Globe |
| | | Communications Corp., 738 P.2d |
| | | 1246 (Kan. 1987). |
| | | Police officers are public officials. |
| | | Rawlins v. Hutchinson Publishing |
| | | Co., 218 Kan. 295; Redmond v. |
| | | Sun Publishing Co., 716 P.2d 168 |
| | | (Kan. jn 1986). |
| | | Qualified privilege |
|--------------------------------|---------------------------------------|---------------------------------------|
| Kentucky | no applicable provision located | Actual malice standard of New |
| | | York Times v. Sullivan applies to |
| No specific provision for | | comments and complaints directed |
| police officers | | toward public officials. Bichler v. |
| | | Union Bank and Trust Co. of |
| | | Grand Rapids, 745 F.2d 1006 (6th |
| | | Cir. 1984). |
| | | Qualified privilege. |
|--------------------------------|---------------------------------------|---------------------------------------|
| Louisiana | La.R.S. 14:49 provides that "A | New York Times rule applies to |
| | qualified privilege exists and | comment upon the actions of |
| No special provision for | actual malice must be proved, | public officials and police officers |
| police officers | regardless of whether the | are public officials. Landrum v. |
| | publication is true or false, in the | Board of Com'rs. of the Orleans |
| | following situations: (2) Where the | Levee Dist., 685 So.2d 382 (La. |
| | publication or expression is a | Ct. App. 1996); Thompson v. St. |
| | comment made in the reasonable | Amant, 250 La: 405 (1967). |
| | belief of its truth, upon (a) The | |
| | conduct of a person in respect to | |
| | public affairs; ... (3) Where the | |
| | publication or expression is made | |
| | to a person interested in the | |
| | communication, by one who is also | |
| | interested or who stands in such a | |
| | relation to the former as to afford a | |
| | reasonable ground for supporting | |
| | that his motive is innocent. | |
|--------------------------------|---------------------------------------|---------------------------------------|
| Maine | no applicable provision located | Comments and complaints about |
| No special provision for | | public officials are subject to a |
| police officers | | qualified privilege under New |
| | | York Times and police officers are |
| | | public officials. Roche v. Egan, |
| | | 433 A.2d 757 (Me. 1981). |
----------------------------------------------------------------------------------------------------------------
*1160
----------------------------------------------------------------------------------------------------------------
| Maryland | no applicable provision located | Absolute privilege applies to |
| | | citizen complaints about police |
| No special provision for | | brutality, where the complaint is |
| police officers | | made under oath and initiates an |
| | | administrative disciplinary |
| | | proceeding. Miner v. Novotny, |
| | | 498 A.2d 269 (Md. 1985) |
|--------------------------------|---------------------------------------|---------------------------------------|
| Massachusetts | no applicable provision located | Conditional privilege where the |
| | | publisher and recipient have a |
| No special provision for | | common interest in the subject |
| police officers | | matter of the publication and the |
| | | publication is in furtherance of |
| | | that interest. Foley v. Polaroid, |
| | | 400 Mass. 82 (1987). |
|--------------------------------|---------------------------------------|---------------------------------------|
| Michigan | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege. Lawrence v. |
| police officers | | Fox, 357 Mich. 134 (1959). |
| | | Police officers are "public |
| | | officials." Id. at 143-144. |
|--------------------------------|---------------------------------------|---------------------------------------|
| Minnesota | no applicable provision located | No specific comment found |
| | | regarding privileged status of |
| No special provision for | | citizen complaints. |
| police officers | | |
|--------------------------------|---------------------------------------|---------------------------------------|
| Mississippi | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New |
| police officers | | York Times and police officers are |
| | | public officials. Ethridge v. North |
| | | Miss. Comms., 460 F.Supp 347 |
| | | (N.D.Miss. 1978). |
|--------------------------------|---------------------------------------|---------------------------------------|
| Missouri | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New |
| police officers | | York Times and police officers are |
| | | public officials. Shafer v. Lamart |
| | | Pub. Co., 621 S.W.2d 709 (Mo. |
| | | Ct. App. 1981), Racciotti v. Zinn, |
| | | 550 S.W.2d 217 (Mo. Ct. App. |
| | | 1977); Rowden v. Amick, 446 |
| | | S.W.2d 849 (Mo. Ct. App. 1969). |
----------------------------------------------------------------------------------------------------------------
*1161
----------------------------------------------------------------------------------------------------------------
| Montana | M.C.A. 27-1-804 provides that a | No case law located specifically |
| | privileged communication is one | addressing whether citizen |
| No special provision for | made: (3) in a communication | complaints would be covered by |
| police officers | without malice to a person | section |
| | interested therein by one who is | |
| | also interested or by one who | |
| | stands in such relation to the | |
| | person interested to afford a | |
| | reasonable ground for supposing | |
| | the motive for the communication | |
| | innocent or who is requested by | |
| | the person interested to give the | |
| | information; | |
|--------------------------------|---------------------------------------|---------------------------------------|
| Nebraska | no applicable provision located | No specific comment found |
| | | regarding privileged status of |
| No special provision for | | citizen complaints. |
| police officers | | |
|--------------------------------|---------------------------------------|---------------------------------------|
| Nevada | no applicable provision located | Complaints about police officers |
| | | made to internal affairs, as well as |
| No special provision for | | complaints about public officials |
| police officers | | generally when aired in the proper |
| | | forum, are subject to absolute |
| | | privilege. Lewis v. Benson, 101 |
| | | Nev. 300 (1985). |
|--------------------------------|---------------------------------------|---------------------------------------|
| New Hampshire | no applicable provision located | New Hampshire rule is that |
| | | determination of public official |
| No special provision for | | status is a jury question to be |
| police officers | | decided in light of the |
| | | circumstances of each case, thus |
| | | police officers do not as a matter |
| | | of law qualify as public official for |
| | | purposes of New York Times rule. |
| | | Nash v. Keene Pub. Corp., 127 |
| | | N.H. 214 (1985). |
| | | Qualified privilege applies where |
| | | jury finds public official status. Id.|
| | | at 222. |
|--------------------------------|---------------------------------------|---------------------------------------|
| New Jersey | no applicable provision located | New York Times v. Sullivan rule |
| | | applies to comment upon the |
| No special provision for | | actions of public officials and |
| police officers | | police officers qualify as public |
| | | officials. Costello v. Ocean |
| | | County Observer, 136 N.J. 594 |
| | | (1994). |
| | | Qualified privilege. |
----------------------------------------------------------------------------------------------------------------
*1162
----------------------------------------------------------------------------------------------------------------
| New Mexico | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New |
| police officers | | York Times v. Sullivan and police |
| | | officers are public officials. |
| | | Ammerman v. Hubbard |
| | | Broadcasting, 91 N.M 250 (1977). |
|--------------------------------|---------------------------------------|---------------------------------------|
| New York | no applicable provision located | Citizen complaints about public |
| | | officials, including police officers, |
| No special provision for | | aired in the proper forum, are |
| police officers | | protected by an absolute |
| | | privilege. Campo v. Rega, 79 |
| | | A.D.2d 626 (N.Y. App. Div. |
| | | 1980). |
|--------------------------------|---------------------------------------|---------------------------------------|
| North Carolina | no applicable provision located | Comments and complaints |
| | | regarding public officials are |
| No special provision for | | subject to a qualified privilege |
| police officers | | under New York Times and law |
| | | enforcement personnel are public |
| | | officials for purposes of the |
| | | privilege. Penland v. Long, 922 |
| | | F.Supp. 1085 (W.D.N.C. 1996) |
|--------------------------------|---------------------------------------|---------------------------------------|
| North Dakota | no applicable provision located | No specific comment found |
| | | regarding privileged status of |
| No special provision for | | citizen complaints. |
| police officers | | |
|--------------------------------|---------------------------------------|---------------------------------------|
| Ohio | no applicable provision located | Comments and complaints |
| | | directed toward public officials are |
| No special provision for | | subject to a qualified privilege |
| police officers | | and law enforcement personnel |
| | | qualify as public officials. |
| | | Waterson v. Cleveland State |
| | | University, 93 Ohio App. 3d 792 |
| | | (1994). |
|--------------------------------|---------------------------------------|---------------------------------------|
| Oklahoma | 12 O.S. 1981 § 1443.1 provides | Where the filing of a complaint |
| | that | against a police officer is a |
| No special provision for | | "proceeding authorized by law," |
| police officers | A. A privileged publication or | such a complaint is subject to an |
| | communication is one made: | absolute privilege. White v. |
| | First. In any legislative or judicial | Basnett, 700 P.2d 666 (1985). |
| | proceeding or any other | |
| | proceeding authorized by law; | |
| | | |
| | B. No publication which under | |
| | this section would be privileged | |
| | shall be punishable as libel | |
----------------------------------------------------------------------------------------------------------------
*1163
----------------------------------------------------------------------------------------------------------------
| Oregon | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New |
| police officers | | York Times v. Sullivan and police |
| | | officers are public officials. |
| | | McNabb v. Oregonian Pub., 685 |
| | | P.2d 458 (1984). |
|--------------------------------|---------------------------------------|---------------------------------------|
| Pennsylvania | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New |
| police officers | | York Times v. Sullivan and police |
| | | officers are public officials. |
| | | Coughlin v. Westinghouse |
| | | Broadcasting and Cable, Inc., 780 |
| | | F.2d 340 (3rd Cir. 1985). |
|--------------------------------|---------------------------------------|---------------------------------------|
| Rhode Island | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New |
| police officers | | York Times v. Sullivan and police |
| | | officers are public officials. Hall |
| | | v. Rogers, 490 A.2d 502 (R.I. |
| | | 1985). |
|--------------------------------|---------------------------------------|---------------------------------------|
| South Carolina | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New |
| police officers | | York Times v. Sullivan and police |
| | | officers are public officials. |
| | | McClain v. Arnold, 275 S.C. 282 |
| | | (1980). |
|--------------------------------|---------------------------------------|---------------------------------------|
| South Dakota | no applicable provision located | No specific comment found |
| | | regarding privileged status of |
| No special provision for | | citizen complaints. |
| police officers | | |
|--------------------------------|---------------------------------------|---------------------------------------|
| Tennessee | no applicable provision located | New York Times v. Sullivan rule |
| | | applies to complaints about public |
| No special provision for | | officials and a highway patrolman |
| police officers | | is a public official. Roberts v. |
| | | Dover, 525 F.Supp 987 (MD |
| | | Tenn, 1981). |
| | | Qualified privilege |
----------------------------------------------------------------------------------------------------------------
*1164
----------------------------------------------------------------------------------------------------------------
| Texas | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New |
| police officers | | York Times v. Sullivan and police |
| | | officers are public officials. Times |
| | | Herald Printing Co. v. Bessent, |
| | | 601 S.W.2d 487 (Tex. Civ. App. |
| | | 1980). |
|--------------------------------|---------------------------------------|---------------------------------------|
| Utah | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New |
| police officers | | York Times v. Sullivan and police |
| | | officers are public officials. |
| | | Madsen v. United Television, 797 |
| | | P.2d 1083 (Utah 1990). |
|--------------------------------|---------------------------------------|---------------------------------------|
| Vermont | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New York |
| police officers | | Times and police officers are |
| | | public officials. Columbo v. |
| | | Times-Argus Ass'n., 135 Vt. 454 |
| | | (1977). |
|--------------------------------|---------------------------------------|---------------------------------------|
| Virginia | no applicable provision located | No specific comment found |
| | | regarding privileged status of |
| No special provision for | | citizen complaints. |
| police officers | | |
|--------------------------------|---------------------------------------|---------------------------------------|
| Washington | no applicable provision located | No specific comment found |
| | | regarding privileged status of |
| No special provision for | | citizen complaints. |
| police officers | | |
|--------------------------------|---------------------------------------|---------------------------------------|
| West Virginia | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New |
| police officers | | York Times and police officers are |
| | | public officials. Starr v. Beckley |
| | | Newspaper Corp., 157 W.Va. 447 |
| | | (1974). |
|--------------------------------|---------------------------------------|---------------------------------------|
| Wisconsin | no applicable provision located | Comments and complaints about |
| | | public officials are subject to a |
| No special provision for | | qualified privilege under New |
| police officers | | York Times and police officers are |
| | | public officials. Pronger v. ODell, |
| | | 1127 Wis. 2d 292 (1985). |
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
| Wyoming | no applicable provision located | Comments regarding public |
| | | officials are subject to a qualified |
| No special provision for | | privilege and street level police |
| police officers | | officers are public officials. Gray |
| | | v. Udevitz, 656 F.2d 588 (10th |
| | | Cir. 1981). |
----------------------------------------------------------------------------------------------------------------
NOTES
[1] The only other state that has a law pertaining to police officer lawsuits is Florida. In contrast to California, Florida does not treat complaints against police officers differently from complaints against other public officials, and does not specifically target citizen complaints or any other from of speech. Florida's law, instead, states that: "Every law enforcement officer or correctional officer shall have the right to bring civil suit against any person ... for damages, either pecuniary or otherwise, suffered during the performance of the officer's official duties or for abridgment of the officer's civil rights arising out of the officer's performance of official duties." Fla. Stat. § 112.532(3). As the Florida Supreme Court has construed it, this section "confers on [the police officer] no right to sue for defamation greater than any right he possesses under Florida law without it." Mesa v. Rodriguez, 357 So.2d 711, 713 (Fla.1978). Because Florida's law does not give police officers any special right to sue, it was upheld by the Florida Supreme Court. Id.
[2] In January 1999 the Court certified to the California Attorney General that the constitutionality of § 47.5 was "drawn into question" by this action. The Attorney General has elected to take no part in these proceedings.
[3] Where a statute's existence has a "chilling effect on free expression," it may be challenged even by someone not immediately threatened by it. Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22, 29 (1965). Section 47.5 has such an effect, since it imposes greater risk upon citizens who report claimed police misconduct and thereby discourages the filing of complaints.
[4] Defendant relies primarily on Johnson v. Knowles, 113 F.3d 1114 (9th Cir.1997) (finding that ousters of homosexual members by a Republican party committee were not under color of state law because political parties are private, not public entities); and Laxalt v. McClatchy, 622 F.Supp. 737 (finding a U.S. Senator's demand letter, before filing a defamation action for stories linking him to organized crime, was not under color of state law). This case is distinguishable from both of those, since Collier's actions are inextricably linked to his official position and duties.
[5] Section 47.5 is not the only exception, but it is the only one which applies to a group of people. Section 47 itself contains several exceptions to the privilege, including certain unsworn or malicious allegations in divorce proceedings, communications in furtherance of destruction of evidence, and knowing concealment of an insurance policy in a judicial proceeding.
|
Third District Court of Appeal
State of Florida
Opinion filed December 19, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-1404
Lower Tribunal No. 16-15562
________________
G.M.R., the mother,
Appellant,
vs.
Department of Children and Families, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Rosa C.
Figarola, Judge.
Law Office of Richard F. Joyce, P.A., and Richard F. Joyce, for appellant.
Law Office of Rocco J. Carbone, III, PLLC, and Rocco J. Carbone, III (St.
Augustine); Thomasina Moore, and Laura J. Lee (Tallahassee), for appellee
Guardian ad Litem Program.
Before SALTER, FERNANDEZ, and LINDSEY, JJ.
PER CURIAM.
The trial court entered a final judgment terminating G.M.R’s parental rights
as to her two children, K.M. and L.D.1 However, G.M.R. challenges only the
termination of her parental rights as to K.M. in the instant appeal. For the reasons
set forth below, we affirm in part and reverse in part and remand to the trial court
to enter a corrected final judgment.
The Department of Children and Families (“DCF”) filed a petition for
termination of parental rights as to L.D. on October 12, 2017. K.M.’s father
(“K.M. Father”), similarly filed a petition for termination of G.M.R.’s parental
rights as to K.M. in December 2017. K.M. Father asserted the following grounds
in support of his petition: (i) continued abuse/neglect/abandonment for failure to
comply substantially with a case plan pursuant to section 39.806(1)(e)(1), Florida
Statutes (2017); (ii) irrespective of services pursuant to section 39.806(1)(c); (iii)
egregious conduct pursuant to section 39.806(1)(f); and (iv) involuntary
termination of parental rights to another child pursuant to section 39.806(1)(i).
The trial court considered the termination petitions filed by DCF and K.M. Father
during a three-day adjudicative hearing in April 2018.
In the final judgment, the trial court indicated that it was terminating
G.M.R.’s parental rights as to K.M. under section 39.806(1)(c) and section
39.806(1)(e)(1). On appeal, G.M.R. contends—and DCF concedes—that the trial
court erred by terminating G.M.R.’s parental rights based on section
1 The final judgment also terminated the parental rights of L.D.’s father as to L.D.
The tumultuous relationship between L.D.’s father and G.M.R. was an important
factor throughout the termination proceedings.
2
39.806(1)(e)(1) because K.M. was never adjudicated dependent.2 Indeed, in order
to establish any basis for termination of parental rights under section
39.806(1)(e)(1) or (2), it must first be shown that the child has been adjudicated
dependent and a case plan has been filed with the court. See § 39.806(1)(e).
Here, the record establishes that L.D. was adjudicated dependent, but it does
not demonstrate that K.M. was also adjudicated dependent. Thus, the trial court
erred in basing the termination of G.M.R.’s parental rights on section
39.806(1)(e)(1). See T.H. v. State, Dep’t of Children & Families, 226 So. 3d 915,
918 (Fla. 4th DCA 2017) (reversing portion of trial court’s final judgment
terminating parental rights under section 39.806(1)(e)(1) because “there was no
adjudication of dependency and no case plan had been filed with the court.”).
There is, however, competent, substantial evidence to sustain the trial
court’s termination of G.M.R’s parental rights to K.M. under section 39.806(1)(c).
See In re W.B., 915 So. 2d 761, 762 (Fla. 2d DCA 2005) (reversing portion of trial
court’s order terminating parental rights under section 39.806(1)(e)(1) where the
child had never been declared dependent, but affirming the termination of the
parents’ parental rights because there was competent, substantial evidence under
2K.M. was not part of the underlying dependency action because K.M. Father was
granted sole custody of K.M. prior to the commencement of the underlying
dependency action pursuant to Family Case Number 13-29341 FC 04.
3
section 39.806(1)(c) to sustain the trial court’s decision); see also K.W. v. State,
Dep’t of Children & Family Servs., 36 So. 3d 810, 811 (Fla. 1st DCA 2010).
Accordingly, we reverse only the portion of the order terminating G.M.R.’s
parental rights under section 39.806(1)(e)(1) and remand for entry of an amended
termination final judgment removing all references to section 39.806(1)(e)(1).
Affirmed in part, reversed in part, and remanded with instructions.
4
|
702 A.2d 124 (1997)
Peter L. BRAUN, D.D.S.
v.
BOARD OF DENTAL EXAMINERS.
No. 96-105.
Supreme Court of Vermont.
September 5, 1997.
*125 David A. Otterman of Otterman and Allen, P.C., Barre, for appellant.
Wendy A. Burroughs, Assistant Attorney General, Waterbury, for appellee.
Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.
GIBSON, Justice.
Peter Braun, a licensed dentist, appeals the Washington Superior Court's order affirming disciplinary action imposed by the Vermont Board of Dental Examiners. On appeal, Dr. Braun contends (1) that the evidence before the Board was insufficient to support its finding that his actions constituted a gross failure to uphold the standard of care, (2) that the actions for which he was disciplined were authorized by statute and regulation, (3) that he was given inadequate notice of the violations for which he was disciplined, and (4) that the statute is unconstitutionally vague. We affirm.
The basic facts are not in dispute. Dr. Braun has a dental practice where he provides general dental care and runs a lab in which dentures are manufactured. In July 1992, patient H.D. met with Dr. Braun to talk about having her remaining twenty-three teeth removed and replaced with dentures. After examining the patient, Dr. Braun directed his dental assistant (a person authorized by statute to assist a licensed dentist) to take impressions of the patient's teeth to make temporary, or "immediate," dentures. Approximately one month later, all of H.D.'s teeth were removed by an oral and maxillofacial surgeon. The surgeon inserted the immediate dentures from Dr. Braun on the day H.D.'s teeth were removed.
On August 14, three days after the extraction of her teeth, H.D. returned to Dr. Braun's office, complaining of sore spots. She was seen by the dental assistant, who removed her dentures and observed that her stitches had not yet been removed. The assistant then discussed the situation with Dr. Braun separately, who examined the dentures and directed his assistant to make an *126 alteration. The assistant did so and returned the dentures to H.D. H.D. left the office without being examined by Dr. Braun. On August 26, one week after the oral surgeon removed her stitches, H.D. returned to Dr. Braun for another appointment. Again the patient was seen only by the dental assistant. The assistant conferred with Dr. Braun, who directed him to perform a soft-tissue relining.
On September 15, more than one month after H.D.'s teeth were removed, she returned for another appointment, complaining of discomfort. She was seen by Dr. Braun on this visit, who examined her and scheduled an additional relining. H.D. returned on October 29, still complaining of discomfort. She was seen by the dental assistant, and her dentures were again altered after the assistant consulted with Dr. Braun. H.D. left without being examined by Dr. Braun.
H.D. subsequently filed a complaint. The State brought charges of unprofessional conduct, and following a hearing, the Board of Dental Examiners found that Dr. Braun had violated the statutory standard of care and ordered him to enroll in a continuing-education program. See 26 V.S.A. §§ 767, 809(a) (authorizing Board to investigate complaints and discipline licensees). Pursuant to 3 V.S.A. § 130a(a), (b), Dr. Braun appealed the Board's decision to the Director of the Office of Professional Regulation, which affirmed the order. Dr. Braun then appealed to the Washington Superior Court, see 3 V.S.A. § 130a(c), which reviewed the case on the basis of the record created by the Board and affirmed the decision. This appeal followed.
I.
Dr. Braun first argues that the evidence before the Board was insufficient to support its finding and conclusion that his treatment of H.D. constituted a gross failure to uphold the statutory standard of care. That standard allows the Board to discipline a dentist for the:
gross failure to use and exercise on a particular occasion or the failure to use and exercise on repeated occasions, that degree of care, skill and proficiency which is commonly exercised by the ordinary skillful, careful and prudent dentist ... engaged in similar practice under the same or similar conditions, whether or not actual injury to a patient has occurred.
26 V.S.A. § 809(a)(21). We have stressed that grossly negligent conduct is more than a mere error of judgment, momentary inattention, or loss of presence of mind. Hardingham v. United Counseling Serv. of Bennington County, Inc., 164 Vt. 478, 481, 672 A.2d 480, 482 (1995). Rather, it is the failure to exercise even a slight degree of care and an indifference to the duty owed. Id.; see also Rivard v. Roy, 124 Vt. 32, 35, 196 A.2d 497, 500 (1963) (defining standard in similar terms under guest-passenger statute, since repealed). We have acknowledged, however, that there is no clear dividing line between ordinary and gross negligence; whether certain behavior was grossly negligent hinges on the particular circumstances of the case. Hardingham, 164 Vt. at 481, 672 A.2d at 483. Because such a finding requires applying the facts to a reasonableness standard, we defer to the fact finder's ability to determine whether particular behavior rose to the level of gross negligence. See id. at 487, 672 A.2d at 486 (Dooley, J., dissenting).
Additional deference is owed here because the action arose out of an administrative proceeding in which a professional's conduct was evaluated by a group of his peers. We will affirm the Board's findings as long as they are supported by substantial evidence, and its conclusions if rationally derived from the findings and based on a correct interpretation of the law. See In re Southview Assocs., 153 Vt. 171, 177-78, 569 A.2d 501, 504 (1989). Evidence is substantial if, in looking at the whole record, see Clark v. Weinberger, 389 F.Supp. 1168, 1169 (D.Vt. 1974), aff'd, 511 F.2d 1390 (2d Cir.1975), it is relevant and a reasonable person could accept it as adequate to support the particular conclusion. In re McShinsky, 153 Vt. 586, 589, 572 A.2d 916, 918-19 (1990); see Livingston v. Arkansas State Medical Bd., 288 Ark. 1, 701 S.W.2d 361, 363 (1986); Homoly v. North Carolina State Bd. of Dental Examiners, 125 N.C.App. 127, 479 S.E.2d 215, 217 *127 (1997). This Court may not substitute its own judgment for that of the Board. See Schneider v. Vermont Employment Sec. Bd., 133 Vt. 187, 190, 333 A.2d 104, 106 (1975). Thus, we are concerned with the reasonableness of the Board's decision, not how we would have decided the case. See Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 117 (Tex.1988), cert. denied, 490 U.S. 1080, 109 S.Ct. 2100, 104 L.Ed.2d 662 (1989); cf. Homoly, 479 S.E.2d at 218 (board composed of licensed dental professionals best qualified to judge whether petitioner violated standard of care).
Upon review of the record, we conclude that the Board could reasonably find that Dr. Braun's behavior rose to the level of gross negligence. In arguing that the evidence was inadequate to support the finding, Dr. Braun focuses primarily on a statement by the State's expert that an adjustment to a patient's denture constitutes a "minor version" of diagnosis. It is undisputed, however, that in the first month following removal of her teeth, H.D. returned twice for appointments, at least once complaining of pain, and both times Dr. Braun failed to meet with or examine his patient. Instead, he delegated this task to his dental assistant. On the first visit, H.D. complained of pain and the assistant, after removing the dentures, conferred with Dr. Braun in another area of the facility, passing along his observation that H.D.'s stitches had not yet been removed. At Dr. Braun's direction, the assistant modified the dentures on a lathe to remove an undercut. The same procedure occurred on the second visit, with patient contact solely between H.D. and the dental assistant, followed by consultation between the dental assistant and Dr. Braun in another part of the building. Not until more than a month following the extraction, when H.D. returned for an appointment again complaining of pain, was she examined by Dr. Braun. On the fourth visit, H.D. still complaining of pain was again seen only by the dental assistant. Although the patient came to Dr. Braun's office several times complaining of pain following the removal of twenty-three teeth, on only one occasion was she examined by him to determine the cause of her pain and discomfort.
In addition to the undisputed facts underlying the case, the Board heard expert testimony on the standard of care. The State's expert testified that H.D.'s sore spots could have been caused by a number of problems other than the denture, including osteonecrosis of the bone, a root tip, an abscess ulcer, or oral cancer, and that a technician is not trained to recognize such conditions. In effect, the expert stated, Dr. Braun allowed the assistant to determine the cause of the problem, and there was no way for Dr. Braun to ascertain whether that determination was correct. The expert testified that allowing an assistant to determine the cause of pain and the need to modify a denture, along with adjusting the denture itself, violates the statutory standard of care.
As a body composed primarily of dental professionals, the Board has the power to apply its own expertise in evaluating the evidence. See Briggs v. State Employees Retirement Comm'n, 210 Conn. 214, 554 A.2d 292, 294-95 (1989) (agency composed of physicians entitled to rely on its own expertise within area of professional competence). We conclude that there was sufficient evidence for the Board to find that Dr. Braun's failure to examine his patient after surgery, despite repeated complaints of discomfort, and instead, allowing his assistant to examine the patient, determine the nature of the problem, and modify her dentures, amounted to a gross violation of the standard of care.
II.
Dr. Braun argues, however, that his actions cannot be cause for discipline because the statute and regulations allowed him to delegate the tasks for which he was disciplined. We disagree. In interpreting a statute, we rely on the plain meaning of the words because we presume they reflect the Legislature's intent. Dover Town Sch. Dist. v. Simon, 162 Vt. 630, 631, 650 A.2d 514, 516 (1994) (mem.). The statute that regulates dentists and dental assistants provides that certain tasks may not be assigned to any person other than a licensed dentist, including "[d]iagnosis, treatment planning and prescription." 26 V.S.A. § 864(b)(1); see also Rules of the Board of Dental Examiners, *128 Rule 3.5, 9 Code of Vt. Rules XXXXXXXX-XX (1996) (same). "Diagnosis" is not defined in the statute or regulations, but has been described as the "identification of a disease or other underlying disorder through investigation of its manifestations"; as such, it is a problem-solving activity based, in part, on physical examination and observation over the course of the illness or disorder. 1 The Oxford Companion to Medicine 309 (John Walton et al. eds., 1986); see also Black's Law Dictionary 408 (5th ed.1979) (medical term meaning determination of nature of patient's disease from study of symptoms); Black's Medical Dictionary 250 (34th ed.1984) (diagnosis involves weighing symptoms complained of and signs of disease found upon examination).
In arguing that his assistant's actions were allowed under the law, Dr. Braun limits his characterization of the assistant's actions to altering H.D.'s dentures on a lathe. It is clear, however, that more than that was involved. On three of the four follow-up visits after receiving her immediate dentures, H.D. met only with the assistant to discuss how the dentures fit, and to complain of pain and discomfort. On at least one occasion, the assistant conducted an intraoral evaluation, removing the dentures and observing that H.D.'s stitches were still in place. Any subsequent modification of the dentures at Dr. Braun's direction was based either on the assistant's observations or on patient information relayed by the assistant. We agree with the Board's finding that an adjustment to an immediate denture must be based on evaluation of the patient's healing progress, and conclude that this process conducted here by the dental assistant qualifies as a diagnosis. As such, it may not be performed by a dental assistant.
Nonetheless, Dr. Braun points to two provisions that he asserts allow him to delegate to dental assistants the tasks for which he was disciplined. The Board's rules allow a traditional dental assistant to "perform all extraoral duties in the dental office," while during "intraoral procedures, the ... [a]ssistant may assist the [d]entist or clinical staff as assigned by the [d]entist." Rules of the Board of Dental Examiners, Rule 2.3(C)(2), 9 Code of Vermont Rules XXXXXXXX-X. We see nothing in this rule that would authorize a dental assistant to perform an intraoral examination and then consult with a dentist as a procedure for remedying the patient's complaint. Dr. Braun's attempt to characterize the assistant's actions as solely "extraoral duties" fails in the face of clear evidence of the need to examine the inside of the patient's mouth in order to diagnose and treat her discomfort.
Likewise, we are unconvinced by Dr. Braun's interpretation of other statutory language. We presume that the Legislature does not intend an interpretation that would lead to absurd or irrational consequences. In re Judy Ann's Inc., 143 Vt. 228, 232, 464 A.2d 752, 755 (1983). Section 864(a) states that "[t]he performance of any intraoral tasks shall be under the direct supervision of the employer dentist." 26 V.S.A. § 864(a). Dr. Braun contends that this language allows a dental assistant to perform "any intraoral task" as long as the assistant acts under a dentist's direct supervision. This passage must be read, however, in conjunction with the passage immediately following, which lists tasks that "may not be assigned to a dental assistant" but must be performed by a licensed dentist only. Id. § 864(b). One of these tasks is "diagnosis," id., which, as already explained, would preclude the assistant's actions here.
III.
Dr. Braun next argues that he was given insufficient notice to prepare for and respond to the issues raised in the proceeding. He asserts that the Board's finding of misconduct was based on his failure to examine H.D. personally, although no such violation was charged. Notice of an investigation by a licensing board is adequate if it fairly apprises the person of the nature of the charges so he may prepare for the hearing and defend his position. See Gaither v. Pennsylvania State Civil Serv. Comm'n, 15 Pa.Cmwlth. 93, 324 A.2d 872, 874 (1974); cf. In re Twenty-Four Vt. Utils., 159 Vt. 363, 369, 618 A.2d 1309, 1312-13 (1992) (Court must examine whether parties were given *129 adequate opportunity to prepare and respond to issues raised in proceeding).
In the amended charges, Dr. Braun was charged with violating the statutory standard of care set forth in 26 V.S.A. § 809(a)(21). The statement that he violated the standard of care "when he allowed his dental assistant" to perform certain duties specifically raised the issue of Dr. Braun's actions during H.D.'s time as a patient. Further, the charges alleging professional misconduct were filed directly against Dr. Braun; separate charges were brought against the dental assistant. This was sufficient to inform Dr. Braun that his role in H.D.'s care, including adequacy of care, and not merely the actions of his assistant, would be scrutinized by the Board. Cf. Kollmorgen v. State Bd. of Medical Examiners, 416 N.W.2d 485, 489 (Minn.Ct.App.1987) (doctor improperly mischaracterized notice issue where prescribing medication by telephone was not independent ground for discipline; question of misprescription embraced many subissues to be evaluated before primary question of misconduct could be addressed).
IV.
Finally, Dr. Braun asserts that the statute is unconstitutionally vague because, when read together with the rules, it appears to allow a dentist to delegate to a dental assistant those duties for which Dr. Braun was disciplined. We agree that "[a] statute must be sufficiently clear to give a person of ordinary intelligence a reasonable opportunity to know what is proscribed." Brody v. Barasch, 155 Vt. 103, 110, 582 A.2d 132, 137 (1990). The statute here declares that a dentist licensed in Vermont will be held to the degree of care and skill of the ordinarily skillful, careful, and prudent dentist engaged in similar practice under the same or similar conditions. 26 V.S.A. § 809(a)(21). More specifically, it clearly states that diagnosis, treatment planning, and prescription may not be delegated to a dental assistant. Id. § 864(b).
As we noted in Brody, it is not necessary, or possible, for a statute that regulates a professional field to detail each and every act that is prohibited. See Brody, 155 Vt. at 111, 582 A.2d at 137.
[A]ny board or body whose duty it is to pass upon the qualifications of licensees of the various professions ... must do so by applying some broad and necessarily general standards. Statutory language that conveys a definite warning as to proscribed conduct when measured by common understanding and practices will satisfy due process.
Id. The Board found that Dr. Braun violated the standard of care when he failed to examine his patient and instead delegated H.D.'s examination to his dental assistant. Personal attention to a patient's needs is a critical component of competent medical care. All tasks that qualify as diagnosis, treatment planning, and prescription are explicitly limited to licensed dentists. The statute is sufficiently clear to inform the ordinary person that a dentist must personally examine a patient complaining of pain to determine the cause of the disorder, and not delegate such a task to a dental assistant with only a subsequent consultation between the assistant and the dentist in another area of the building. The statute is not unconstitutionally vague.
Affirmed.
|
NO. 12-17-00056-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JEFFREY DEE CLICK, § APPEAL FROM THE
APPELLANT
V. § COUNTY COURT AT LAW
BARBARA CLICK,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
This appeal is being dismissed for failure to comply with the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 42.3(c).
On February 17, 2017, the clerk of this Court notified Appellant that the filing fee in this
appeal is due. See TEX. R. APP. P. 5. Appellant was informed that failure to remit the filing fee
on or before February 27, 2017, would result in the Court’s taking appropriate action, including
dismissal of the case without further notice. See TEX. R. APP. P. 42.3(c). The date for remitting
the filing fee has passed, and Appellant has not complied with the Court’s request.
Because Appellant has failed, after notice, to comply with Rule 5, the appeal is
dismissed. See TEX. R. APP. P. 42.3(c).
Opinion delivered March 1, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 1, 2017
NO. 12-17-00056-CV
JEFFREY DEE CLICK,
Appellant
V.
BARBARA CLICK,
Appellee
Appeal from the County Court at Law
of Smith County, Texas (Tr.Ct.No. 15-1779-E)
THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this Court that this appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed; and that this decision be certified to the court
below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
|
744 F.Supp. 735 (1990)
UNITED STATES of America
v.
William N. LOGAN, Jr., et al.
Crim. No. CRE 89-95-D.
United States District Court, N.D. Mississippi.
May 3, 1990.
*736 *737 Charles W. Spillers, Thomas W. Dawson, Asst. U.S. Attys., Oxford, Miss., for the U.S.
J. Dudley Williams, Aberdeen, Miss., Charles D. Easley, Jr., Columbus, Miss., for defendants.
MEMORANDUM OPINION
DAVIDSON, District Judge.
The matter comes before the court on the amended motions of defendants Frankie Northington and William N. Logan, Jr. to suppress certain evidence seized by law enforcement officers. Northington's motion alleges that evidence was unlawfully seized pursuant to a search warrant without probable cause. Logan's motion alleges that evidence was unlawfully seized pursuant to a search warrant without probable cause and that other evidence was seized pursuant to an arrest warrant without probable cause. The court will address each motion individually.
Findings of Fact
On February 10, 1989, Mississippi Bureau of Narcotics agents Craig Taylor and Bobby Grimes obtained a search warrant for an apartment believed to be occupied and controlled by Northington. The affidavit for the search warrant contained underlying facts and circumstances which detailed information from three different confidential informants (CIs). The first CI reported that cocaine and marijuana were being kept and sold at the apartment. The CI stated that he had personally observed marijuana and cocaine in the apartment. The second CI said he had observed Northington take a package out of the trunk of his vehicle, a 1988 red T-Bird, conceal it under his coat, and take it into the apartment. The second CI also stated that approximately one hour later people known to the CI as drug dealers and users began arriving at the apartment; they stayed a few minutes each. The third CI told the agents that Northington had moved to Lowndes County from Monroe County two months before and that he had personally observed cocaine in the apartment within the past 36 hours. The underlying facts stated that the third CI had proven credible and reliable in the past by giving information that led to the confiscation of controlled substances. At the suppression hearing, agents testified that the third CI had given information leading to the confiscation of controlled substances in Lowndes County two times in December 1988.
Furthermore, the underlying facts revealed that the agents had received information in the past that Northington was selling marijuana and cocaine from his Monroe County residence. Also revealed was the officers' corroboration of some of the information. Specifically, the underlying facts stated that agents confirmed that a red 1988 Ford Thunderbird which the agents saw parked directly in front of the apartment several times during the day and night was registered to Northington and that the electricity to the apartment *738 was connected on January 6, 1989, in the name of Corbell.[1]
A search warrant was authorized by Judge Phillip Robertson based on this information for "cocaine, marijuana, paraphernalia, U.S. currency and all other contrabands." Judge Robertson and the agents testified that the agents did not swear to any essential facts outside those listed in the underlying facts and circumstances. The search warrant was executed on the apartment on February 11, 1989. Present during the execution of the warrant were Northington, Ray Corbell, and Lisa McKnight who was a juvenile and Northington's girlfriend. The agents seized various drug paraphernalia as well as $2,300.00 in cash, 17 grams of cocaine, a .357 magnum revolver, and a ledger. One page within the ledger contained the following writing:
Logan 467.25
-100.00
_______
367.25
-100.00
_______
a scratched out amount
267.00
Another page of writing within the same book contained Logan's name along with three columns of numbers similar to the one above, with lines drawn through two of the columns. Logan's telephone number was also discovered in an address book in Northington's apartment. The cocaine and the cash were in a locked briefcase which had a combination lock. Agent Grimes instructed Northington to unlock the briefcase or he would tear it open. Northington opened the briefcase using the combination that reflected Ray Corbell's birthdate. Corbell testified and the court so finds that he had sold the briefcase to Northington prior to the date it was seized. A return was made on the search warrant and Judge Robertson testified that he kept it in his office until September 1989, when agent Grimes picked it up for use in a federal investigation. The government presented a sworn affidavit to the court as being the true and original affidavit for the search warrant which the court finds to be valid.
After the raid on the Northington apartment, Corbell gave a written statement to police in which he stated that he had sold drugs for Northington in the past. He stated that Northington was being supplied by Logan who would deliver one ounce of cocaine usually twice per week. Corbell also stated that Northington had just given Logan some money to buy drugs in Texas and that Logan had gone to Texas and would be returning soon with the drugs. He also gave a description of and directions to the trailer and outbuildings in Monroe County that Logan was renting from Northington. The information concerning the trailer and outbuildings was confirmed by Agent Taylor and Sgt. Charlie McVey. Corbell further stated that he had leased the apartment and connected the electricity in his name, but that he had paid those expenses with Northington's money. Thereafter, Northington paid the rent himself. The purpose of renting the apartment in Corbell's name was to prevent law enforcement officials from discovering Northington's whereabouts. Agent Taylor testified that he found only one set of clothes which belonged to Corbell in the apartment.
While driving around the area on February 12, 1989, the agents saw Eddie Stanley and his wife drive up to the trailer. When the agents drove by the trailer the second time, they saw Stanley's car pulling out of the driveway to the trailer at an excessive speed. The agents stopped him and arrested him for speeding, operating a vehicle with a suspended drivers license, and possessing beer in open view in the car in violation of state law. Stanley's wife was also arrested for possession of beer. Police officers later discovered less than an ounce of marijuana on Mrs. Stanley's person.
On the same day, Agent Taylor and Sgt. McVey met Judge Ruble Maxey at the Amory Police Department where they *739 presented him with an affidavit for a search warrant for Logan's trailer. The affidavit for the search warrant stated the following: (1) An investigation initiated in December 1988, of drug trafficking in Monroe and Lowndes County had resulted in the arrest of several people including Northington; (2) On February 11, 1989, a search of Northington's residence resulted in the seizure of 17 grams of cocaine, ten ounces of marijuana, $2,300.00 in cash, drug paraphernalia, and records of drug transactions which linked Northington and Logan as co-conspirators in the distribution of marijuana and cocaine; (3) On February 11, 1989, Agent Taylor received information from a CI in written form outlining how Northington and Logan were conspiring to sell cocaine and stating that Logan had no visible means of support other than the sale of cocaine and marijuana. The CI also described Logan's residence and vehicles, which was corroborated by the agents, and stated that Logan and Northington had gone to Texas to pick up drugs earlier in the week and that they had brought two pounds of marijuana and two ounces of cocaine into "a residence." The CI further stated that on February 10, 1989, Logan received $2,200.00 from Northington with which to buy drugs, that Logan and a white female named Angel were gone to Texas, and that they were scheduled to deliver drugs to Northington on February 12, 1989.
The agents presented additional sworn oral testimony in support of their affidavit for the search warrant. There was a substantial conflict in the testimony at the suppression hearing regarding what the agents told Judge Maxey. Judge Maxey testified that the agents told him that the CI had given them information in the past that led to arrests. He also testified that he understood the agents to be looking for any records or documents to link Logan to the on-going drug conspiracy investigation and that the residence mentioned in the underlying facts where the drugs were brought into was the Monroe County trailer where Logan was staying. The CI's written statement was not shown to Judge Maxey. Some mention was made of Stanley's arrest and the fact that he was arrested coming from Logan's trailer, but Judge Maxey testified that the information about Stanley had no effect on his decision to authorize the search warrant. Judge Maxey further testified that he has handled numerous search warrants and cannot recall the details and facts of each search warrant.
Both Agent Taylor and Sgt. McVey testified that they did not tell Judge Maxey that the CI had given credible information in the past. Agent Taylor stated that if that had been the case, he would have included it in his statement of underlying facts and circumstances. Sgt. McVey testified that he did tell Judge Maxey that the CI was reliable, but he based his assessment of reliability on the CI (Corbell) incriminating himself, rather than any credible information given in the past. Both agents also testified that they told Judge Maxey that the residence mentioned in the underlying facts where drugs were brought into was a Lowndes County residence and that they told the judge of the raid on the Northington apartment and the documents discovered there that allegedly linked Logan and Northington in a conspiracy to distribute drugs.
Judge Maxey authorized a search warrant on Logan's residence to search for "[a]ny and all Documentary Evidence, Ledgers, Books, records or drug transactions, to Include Marijuana and Cocaine, Phone Bills, and any and all other Items of Value Linking William Logan to an ongoing Conspiracy to distribute Cocaine and Marijuana, Investigation in Lowndes And Monroe County, MS." The agents executed the warrant on that same day, February 12, 1989, and seized triple-beam weighing scales, items containing cocaine residue, and sacks containing marijuana residue. Immediately after the search was conducted, the agents returned the executed search warrant to Judge Maxey and informed him that they had found drug residue. Judge Maxey issued arrest warrants charging Logan with possession of cocaine and marijuana.
*740 The court finds that the agents affianced to the CI's reliability on the basis that they felt he had incriminated himself by relating the information regarding the alleged conspiracy between Logan and Northington to sell drugs. Furthermore, although the residence mentioned in the affidavit that the drugs were brought into may not have been clearly identified to Judge Maxey, the court does not find that the agents intentionally misled the Judge. The agents did inform Judge Maxey of the Northington search. However, it is easy for the court to understand how a misunderstanding could have occurred since the affidavit only stated the drugs were brought into "a residence."
On February 13, 1989, Fred McKnight gave the agents a written statement which implicated himself in drug distribution and provided details of Logan and Northington's involvement in drug distribution. After reviewing, with Agent Taylor and Sgt. McVey, the results of the investigation including the statements of McKnight and Corbell, agent Bobby Grimes informed Judge Robertson, under oath, that the agents had seized drugs at Logan's residence and Northington's residence, and that other co-conspirators had given written statements which incriminated Logan in the conspiracy to distribute cocaine. On February 13, 1989, Judge Robertson issued the arrest warrant for Logan charging him with conspiracy to distribute controlled substances.
On February 17, 1989, Angel Brooks gave an oral statement to Sgt. McVey and other agents which incriminated herself, Logan, and Northington in a conspiracy to distribute cocaine. She stated that she had gone with Logan to Texas in the past to buy cocaine to sell in the Columbus area and that Logan had recently received money from Northington with which to buy drugs for Northington in Texas. She also stated that Logan was in Florida at that time delivering some drugs to Stanley. While the agents were listening with her consent, Brooks placed a telephone call to Stanley's residence and learned that Logan had already left and was on his way back to Mississippi.
As he entered Mississippi from Alabama, Logan was arrested by Sgt. McVey. He was advised of his rights and transported to jail. Logan's vehicle was seized for forfeiture because it had been used to transport drugs from Texas and Florida to Mississippi. The vehicle was inventoried at the Lowndes County Sheriff's Office. During the inventory, agents discovered a jacket in the back seat of the vehicle that in one pocket had 11 bags in it which contained total of 40 grams of cocaine. In the other pocket, the agents found a .25 caliber Titan semi-automatic pistol with the serial numbers etched out. A bag with various car titles was also seized because the agents believed the titles were evidence that Logan was putting money illegally obtained from the sale of drugs into new businesses.
Conclusions of Law
I. Northington's Motion
A. Specificity of the Search Warrant
Northington alleges that the search warrant is not specific enough to satisfy the fourth amendment which requires that a warrant must "particularly describ[e] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The argument is premised on the fact that the warrant stated that the place to be searched was controlled by "Frankie Northington, Lisa McKnight and persons unknown". The warrant further stated that the place to be searched was a "multi-unit apartment complex having a address of 102 Newbell Road Apartment 20, Columbus, Lowndes County, Mississippi and this complex bears the name of Chateaus Holly Hills." Northington claims that he did not control the apartment and presents as evidence the fact that the lease and the electricity were not in his name.
When a defendant moves to suppress evidence intended to be used against him in a criminal trial, "the defendant bears the burden of demonstrating the illegality of police conduct supported by a warrant; the opposite is true for warrantless police activity...." United States v. Webster, 750 F.2d 307, 314 (5th Cir.1984), *741 cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 2341, 85 L.Ed.2d 855, 856 (1985) (citations omitted). The test for determining the sufficiency of a search warrant is one of reasonableness. United States v. Judd, 687 F.Supp. 1052, 1057 (N.D.Miss.1988), aff'd, 889 F.2d 1410 (5th Cir.1989). "It is enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended." Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757, 760 (1925). Furthermore, the fourth amendment does not require the search warrant to name the person who is in possession of the premises to be searched. Townsend v. United States, 253 F.2d 461, 464-65 (5th Cir.1958).
The lease and electricity were in Ray Corbell's name. However, Ray Corbell testified that he rented the apartment and connected the electricity in his name, but that he paid those items with Northington's money. Furthermore, Corbell testified that although he spent some nights there, he did not live there. That fact is supported by Agent Taylor's testimony which indicated that Corbell had only one change of clothes at the apartment. The court finds that the apartment was indeed controlled by Northington. His money rented the apartment and paid the electricity, and he maintained his residence there.
The apartment complex was identified by name as well as by street address in the search warrant. Also specified was the number of the apartment to be searched and the identity of those who controlled and occupied it. The accuracy of the name of the apartment complex, the street address, and the apartment number was not challenged by Northington. The court finds that the warrant contains sufficient evidence to enable an officer to locate the premises to be searched with reasonable effort, even though the warrant does not specify whose name is on the lease. Therefore, the warrant satisfies the dictates of the fourth amendment regarding specificity.
B. Did the search warrant establish probable cause?
Northington also claims that the underlying facts and circumstances of the affidavit for the search warrant fails to establish probable cause because the facts are speculative and based upon hearsay of an unreliable informant. In analyzing this issue, the court is guided by the statement that "only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527, 546 (1983). When determining whether or not probable cause existed to issue a search warrant, the court should consider the totality of the circumstances.[2]Id. at 230, 103 S.Ct. at 2328, 76 L.Ed.2d at 543. Under Gates, "the task of the magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of the persons supplying hearsay information, there is a fair probability that the contraband or evidence of a crime will be found in a particular place." Id. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. The duty of a reviewing court is to determine whether there was a substantial basis for the magistrate's conclusion that probable cause existed. Id. The magistrate's decision is to be accorded great deference. United States v. Marbury, 732 F.2d 390, 395 (5th Cir.1984).
In assessing the existence of probable cause, a judicial officer can consider the extent to which an informant's information is corroborated by police officers and other informants. United States v. Drew, 436 F.2d 529, 533 (5th Cir.), cert. denied, 402 U.S. 977, 91 S.Ct. 1682, 29 L.Ed.2d 143 (1970). The corroboration can concern non-criminal activity. See United *742 States v. Phillips, 727 F.2d 392, 396 (5th Cir.1984) (details about innocent facts will strengthen the CI's veracity). A police officer's knowledge of a suspect's reputation for engaging in criminal activity may also be considered. United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723, 733 (1971). An explicit claim of past reliability can supply the factual basis for the credibility of an informant. Christian v. McKaskle, 731 F.2d 1196, 1200 (5th Cir.1984). Reliability can be shown by an affiant's statement that "the informant had proven to be a reliable source of accurate information about illegal activity." Id.
The affidavit for the search warrant on Northington's apartment contained information from three different CIs. The officers affianced to the reliability of the third CI by stating that the CI had proven credible and reliable in the past and had given information that led to the confiscation of controlled substances in the past. The agents verified the information that Northington lived in the apartment by verifying that a car registered to Northington was parked directly in front of the apartment at various times during the day and night for two weeks. Agents Taylor and Grimes also affianced that the agents had received information in the past that Northington and McKnight were selling large amounts of marijuana and cocaine in Monroe County, Mississippi. Two of the CIs reported that they had personally observed cocaine in the apartment, one of them within the past 36 hours. One of the CIs reported that he had personally observed marijuana in the apartment and that cocaine and marijuana were being sold there. Another CI reported that he saw Northington take a package out of the trunk of his automobile, conceal it in his coat, and take it into the apartment. Shortly thereafter, people whom the CI knew to be drug dealers and users visited the apartment for very brief intervals. The CI believed this to be typical of routine drug transactions.
The court finds that Judge Robertson had a substantial basis for concluding that probable cause existed that Northington possessed such drugs in violation of Miss. Code Ann. § 41-29-105 et seq. The informants' bases of knowledge and veracity were sufficient for the judge to conclude that a fair probability existed that cocaine and marijuana would be found in the apartment. In short, there was probable cause upon which to issue a search warrant.
C. Search of the Locked Briefcase
Northington opened a briefcase after the police told him to open it or they would tear it open. Northington claims that the search of the briefcase was not justified by the search warrant. The court disagrees with Northington since a container may be searched without a separate search warrant as long as the container is located within an area that the police are validly searching and the objects which are being sought could fit within the container. United States v. Morris, 647 F.2d 568, 573 (5th Cir.1981). See also United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572, 593 (1982). The agents were searching the apartment pursuant to a valid search warrant. Furthermore, any one of the items the agents were searching for, cocaine, marijuana, paraphernalia, or United States currency, could fit within a briefcase. Therefore, the items within the briefcase were legally seized.
II. Logan's Motion
Logan challenges the constitutionality of two different searches: (1) the search of a trailer located in Monroe County where he was living and (2) the search of his automobile after he was arrested. The court will address each motion individually.
A. Search of the Trailer
Logan claims that the affidavit for the search warrant was insufficient to establish probable cause. The court can also consider the oral testimony presented to Judge Maxey by Agent Taylor and Sgt. McVey which supplemented the written affidavit. Since the search warrant was obtained by state officers and issued by a state judicial officer, it is not federal in character. United States v. Maggitt, 778 *743 F.2d 1029, 1032-33 n. 2 (5th Cir.1985), cert. denied, 476 U.S. 1184, 106 S.Ct. 2920, 91 L.Ed.2d 548 (1986). No federal agents were involved. Therefore, Rule 41(c)(1) of the Federal Rules of Criminal Procedure is not applicable. Id. Sworn oral testimony given in support of a search warrant can be considered in determining the existence of probable cause under Mississippi law. Hester v. State, 463 So.2d 1087, 1089 (Miss. 1985); Wilborn v. State, 394 So.2d 1355, 1357 (Miss.), cert. denied, 454 U.S. 839, 102 S.Ct. 146, 70 L.Ed.2d 121 (1981).
The issue then becomes whether the written affidavit combined with the sworn oral testimony of the agents established a substantial basis for Judge Maxey's determination that probable cause existed that drugs and documentary evidence could be found at Logan's trailer that would link Logan and Northington in a drug conspiracy. The court is guided by the same principles as discussed above in regard to the Northington motion.
Judge Maxey was informed of the search of Northington's apartment in Lowndes County which uncovered drugs, paraphernalia, and a ledger with some pages bearing Logan's name along with some monetary figures. The underlying facts also stated that the agents seized records of transactions, money owed, and telephone numbers linking Northington and Logan as co-conspirators in the distribution of drugs. Agent Taylor based this statement on two pages within the ledger which contained Logan's name beside columns of monetary amounts and the presence of Logan's name and telephone number in an address book. The other evidence that Judge Maxey relied on came from statements made by a CI who had never given any information to law enforcement officials in the past, but who did implicate himself in the conspiracy to distribute drugs.[3] The CI's statements indicated that Logan was supplying Northington with cocaine, that Northington and Logan had recently traveled to Texas and brought back drugs to sell, that Logan had gone to Texas to buy drugs for Northington with Northington's money and was due back on February 12, 1989, and that Logan had no visible means of support other than selling drugs.
The court is hesitant to declare as a matter of law that the evidence presented to Judge Maxey established probable cause for the search. Instead, the court concludes that the evidence is admissible by the government in its case-in-chief because it satisfies the good-faith exception of United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677, 698-99 (1984). The court is not required to make a determination regarding the existence of probable cause before reaching the good faith exception of Leon where the case does not reach a question of broad import. Maggitt, 778 F.2d at 1033. Since this case only involves the application of settled concepts of fourth amendment law, the court will only address the Leon issue.
Under Leon, evidence seized is admissible if it is obtained by officers in good faith reliance upon a search warrant issued by a neutral magistrate, even if the affidavit upon which the warrant was based is insufficient to establish probable cause. Leon, 468 U.S. at 922-23, 104 S.Ct. at 3420, 82 L.Ed.2d at 698-99. The good faith reliance must, however, be objectively reasonable. Id. "The burden is on the prosecution to `establish' objective good faith." Maggitt, 778 F.2d at 1034. The Leon court noted that a deep inquiry into the reasonableness of the officer's reliance will rarely be required because "`a warrant issued by a magistrate normally suffices to establish' that a law enforcement officer has `acted in good faith in conducting the search.'" Leon, 468 U.S. at 922, 104 S.Ct. at 3420, 82 L.Ed.2d at 698 (quoting Ross, 456 U.S. at 823 n. 32, 102 S.Ct. at 2172 n. 32, 72 L.Ed.2d at 593 n. 32). However, evidence may still be suppressed if one of the following factors is present:
*744 1) the magistrate issued the warrant in reliance on a deliberately or recklessly false affidavit (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978);
2) the magistrate abandoned his judicial role and failed to perform his neutral and detached function (citing LoJi Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979);
3) the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265-66, 45 L.Ed.2d 416 (1975) (Powell, J., concurring)); or
4) the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized (citing Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984)).
United States v. Gant, 759 F.2d 484, 487 (5th Cir.), cert. denied, 481 U.S. 1030, 107 S.Ct. 1957, 95 L.Ed.2d 529 (1985) (citing Leon, 104 S.Ct. at 3421-22).
Logan does not allege that the magistrate was not neutral and detached or that the warrant failed to particularize the place to be searched or the things to be searched for. Logan does, however, allege that some of the statements in the affidavit that was presented to Judge Maxey were false and that, therefore, the agents could not have relied on the magistrate's issuance of the warrant in good faith. Specifically, Logan contests the truth of the statement by Agent Taylor that "records of transactions, money owed, and telephone number, linking Frankie Northington and William `Jr.' Logan, as co-conspirators in the distribution of cocaine and marijuana" was found in Northington's apartment.
The Supreme Court has stated that the fourth amendment demands that the facts given to a magistrate be truthful. Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667, 678 (1978). The court went on the discuss the truthfulness requirement as follows:
This does not mean "truthful" in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily. But surely it is to be "truthful" in the sense that the information put forth is believed or appropriately accepted by the affiant as true.
Id. at 166, 98 S.Ct. at 2681, 57 L.Ed.2d at 678. The court is of the opinion that Agent Taylor believed that the columns of figures with Logan's name beside them which he found within a book represented money owed by Logan to Northington. The fact is established to the court's satisfaction by Agent Taylor's testimony that the book and writings were typical of drug transactions. Furthermore, Agent Taylor knew that Corbell had said in a written statement that Northington kept a record of the drugs he fronted out in a little yellow pad in Northington's apartment. The court, therefore, does not find that Agent Taylor made a deliberately or recklessly false statement in the affidavit.
Furthermore, the court finds that the sworn oral testimony presented to Judge Maxey along with the affidavit presented sufficient indicia of probable cause that the agents' good faith reliance upon the warrant was reasonable. The court concludes that the affidavit was not a "bare bones" affidavit. The affidavit contained information regarding the details of Logan and Northington's alleged drug trafficking from a source that had personal knowledge of the recited facts and someone that the agents felt was reliable since he incriminated himself.[4] The agents also corroborated the location of Logan's trailer and outbuildings. The affidavit also disclosed the documents that the agents seized in Northington's apartment which the agents believed linked Northington and Logan in a conspiracy to distribute drugs. *745 The evidence presented warranted the officers in believing that drug records and drugs might be found in Logan's trailer. The affidavit cannot be said to be a "bare bones" list of "wholly conclusory statements", nor can it be said to be "devoid of factual support." See Maggitt, 778 F.2d at 1036. Therefore, the evidence seized is admissible under the good-faith exception of Leon.
B. Search of Logan's automobile
The government claims that the search of Logan's automobile was valid because it was a search incident to a valid arrest. Logan was arrested for a conspiracy to distribute cocaine pursuant to an arrest warrant issued on February 13, 1989, by Judge Robertson.[5] The affidavit for the arrest warrant only contains a conclusory allegation that Logan was involved in a conspiracy. Without more, the affidavit is not sufficient to establish probable cause. Agent Grimes testified that he gave additional sworn testimony to Judge Robertson. Judge Robertson, however, did not remember such sworn testimony.
The court is not required to reach that factual issue because evidence may be admitted which is seized pursuant to an arrest where probable cause exists, notwithstanding the fact that the arrest warrant is invalid. United States v. Morris, 477 F.2d 657, 663 (5th Cir.), cert. denied, 414 U.S. 852, 94 S.Ct. 146, 38 L.Ed.2d 101 (1973). A warrantless arrest, based upon probable cause, can be made in a public place without a showing of exigent circumstances. United States v. Watson, 423 U.S. 411, 423-24, 96 S.Ct. 820, 827-28, 46 L.Ed.2d 598, 609 (1976). "Probable cause for arrest exists `when the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant in a person of reasonable caution the belief that an offense has been or is being committed.'" United States v. Fortna, 796 F.2d 724, 739 (5th Cir.), cert. denied, 479 U.S. 950, 107 S.Ct. 437, 93 L.Ed.2d 386 (1986) (citations omitted). Probable cause has also been said to mean "nothing more than a reasonable basis for belief of guilt." Morris, 477 F.2d at 663.
Assuming, without deciding, that the arrest warrant for Logan was invalid, the question is whether Sgt. McVey had probable cause to arrest Logan at the time he made the arrest. Id. The court concludes that probable cause existed to arrest Logan for conspiracy to distribute cocaine. Sgt. McVey knew the following: (1) that Logan's name was found beside some figures within a book that Corbell said was a drug ledger; (2) that Logan's phone number was found in Northington's apartment; (3) that Corbell stated that Northington and Logan were selling cocaine and marijuana and that Logan made trips to Texas to buy drugs for Northington to sell; (4) that cocaine and marijuana was found in Northington's apartment; (5) that marijuana and cocaine residue were found in Logan's trailer; (6) that McKnight gave a statement claiming that Logan and Northington were involved in a conspiracy to distribute drugs; (7) that Brooks gave a statement claiming that she had accompanied Logan on trips to Texas to buy cocaine for later resale; (8) that on February 17, 1989, Brooks stated that Logan was in Century, Florida, delivering an ounce of marijuana to Stanley, which was confirmed by a consensually monitored telephone call to Stanley's home in which Brooks was told that Logan had been there but was already on his way back to Mississippi; and (9) that Logan was spotted on the afternoon of February 17, 1989, entering Mississippi from Alabama. The statements of McKnight, Corbell, and Brooks, all co-conspirators with Logan, were all made from personal knowledge and essentially corroborate each other. Those statements combined with the physical evidence seized from Northington's apartment and Logan's trailer were sufficient to establish probable *746 cause. Brooks' statement that Logan had gone to Stanley's house in Florida was confirmed by the telephone call. The court is convinced that Sgt. McVey had a reasonable basis to believe that Logan was guilty of being involved in a conspiracy to distribute cocaine. Therefore, there was probable cause for the arrest.
The next question is whether the agents were authorized to search Logan's automobile pursuant to the valid arrest. Reasonable inventory procedures administered in good faith do not violate the fourth amendment. Colorado v. Bertine, 479 U.S. 367, 374, 107 S.Ct. 738, 744, 93 L.Ed.2d 739, 747 (1987). Governmental interests such as averting danger to the police and others that the property might pose and police departments' need to guard against claims of theft, vandalism, or negligence justify inventory searches. Id. at 372-73, 107 S.Ct. at 742, 93 L.Ed.2d at 746. In Bertine, police officers searched a backpack that was found in the automobile as well as containers within the backpack. The court ruled that the inventory search conducted did not violate the fourth amendment stating that:
When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.
Id. at 375, 107 S.Ct. at 743, 93 L.Ed.2d at 747 (quoting United States v. Ross, 456 U.S. 798, 821, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982)).
Logan's automobile was inventoried pursuant to the Bureau of Narcotics' standard operating procedure. Sgt. McVey testified that an inventory search is always conducted when a person is arrested on a felony charge and he is the only occupant of the automobile. The record does not indicate any bad faith on the part of the agents involved. Under Bertine, the search of the automobile, including the jacket and the bag, does not violate the fourth amendment. Therefore, the evidence seized during the inventory search is admissible.[6]
CONCLUSION
The court concludes that the search warrant for Northington's apartment was supported by probable cause. Without deciding whether the search warrant for Logan's trailer was supported by probable cause, the court concludes that the evidence seized is admissible under the good-faith exception of Leon. The court further concludes that the evidence seized from Logan's automobile is admissible because it was seized during the inventory search of the automobile after a valid arrest. Therefore, defendants Logan and Northington's motions to suppress evidence are denied.
An order in accordance with this memorandum opinion will issue.
NOTES
[1] Agent Taylor testified that the name "Coldewe" was a typographical error, that the correct name was "Corbell". In the affidavit presented to Judge Robertson, the name "Coldewe" was crossed out in one place and the name "Corbell" was written in.
[2] The totality of the circumstances approach in Gates replaced the two-pronged approach commonly called the Aguilar-Spinelli test which had two separate requirements: (1) that the informant be reliable and (2) a sufficient basis of knowledge. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
[3] Although it can be considered in assessing reliability, the fact that an informant incriminates himself in criminal activity is not always sufficient to show his reliability. See United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723, 734 (1971); United States v. Jackson, 818 F.2d 345, 349 (5th Cir.1987).
[4] See supra note 3.
[5] Arrest warrants for possession of cocaine and possession of marijuana were also issued by Judge Maxey on February 14, 1989. However, the court cannot tell from the evidence presented whether Logan was actually arrested on those charges.
[6] In Logan's amended motion to suppress, he also sought to suppress items seized from his person after he was arrested. However, Logan did not pursue the matter at the suppression hearing. For the record, the court notes that the fourth amendment permits police officers to remove and inventory the personal effects of an arrestee pursuant to routine administrative police procedure. Illinois v. Lafayette, 462 U.S. 640, 645-46, 103 S.Ct. 2605, 2609, 77 L.Ed.2d 65, 70-71 (1983).
|
377 F.2d 398
Herbert M. KRIEGER and Betty L. Krieger, Appellants,v.Emery E. BAUSCH, Appellee.
No. 9014.
United States Court of Appeals Tenth Circuit.
May 18, 1967.
Roger F. Johnson, Denver, Colo., (Francis X. Wallace, Jon F. Kidneigh and McNichols, Wallace, Nigro & Johnson, Denver, Colo., with him on brief), for appellants.
Mike Hilgers, Denver, Colo., (Burnett, Watson & Horan, Denver, Colo., with him on brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges.
HICKEY, Circuit Judge.
1
Appellants, husband and wife, were in their automobile traveling south at night on Highway 120 in Wyoming. They came upon a disabled vehicel parked in their lane of travel and extending over the center line of the hgihway. Appellee's automobile, headed north, was parked south of the disabled vehicle on the shoulder of the road with its headlights lit. Two persons from the disabled vehicle were attempting to flag down traffic.
2
The appellant husband, who was driving, did not see the flagment nor the disabled automobile until he had collided with it. Appellant wife was seriously and permanently injured and appellant husband also sustained injuries.
3
Appellants, residents or Nebraska, instituted this action for damages in the Federal District Court of Colorado where the appellee resides. They claimed that appellant husband was blinded by the lights of appellee's vehicle and, therefore, was unable to avoid the danger ahead. The case was tried to a jury who returned a verdict in favor of the defendant.
4
Appellants' statement of issues alleges error in the instructions.
5
'In reviewing the propriety and correctness of instructions, an appellate court should consider the charge as a whole; in other words, in determining on appeal the propriety of an instruction, it must be read along with other instructions that have been given.' 5 Am.Jur.2d, Appeal & Error, 894. This court recently affirmed that statement. 'Instructions must be considered as a whole and not piecemeal.' Connecticut Fire Insurance Company v. Fox, 361 F.2d 1, 6 (10 Cir. 1966).
6
The Supreme Court of Wyoming has adopted the same view. 'All the instructions were, as the jury were in fact told, required to be considered together.' Barber v. Sheridan Trust & Savings Bank, 53 Wyo. 65, 78 P.2d 1101, 1109 (1938).
7
Appellants contend that in view of the law and the evidence, an instruction should have been given which specifically pointed out that in the event both appellant husband and appellee were negligent, then recovery could have been had by appellant wife because the negligence of appellant husband could not be imputed to her. A written instruction was not offered containing this language, however, a verbal objection that such an instruction was not given was made to the court before the jury retired.
8
We note that the court instructed the jury immediately following its contributory negligence charge: 'You are instructed, ladies and gentlemen, that the court rules as a matter of law that the plaintiff, Betty Krieger, cannot be charged by you with any contributory negligence on her part.' This instruction clearly advised the jury that appellant wife could not be charged with negligence, including any attributable to her husband.
9
In addition, four separate verdicts were given to the jury. These verdicts identified appellants separately indicating a separate award for each of them and a separate denial for each of them. The verdicts returned were the separate denials.
10
Considering the instruction as a whole, it is clear the jurors were told that they could find for either or both appellants if appellee was negligent, and that any negligence they found against appellant husband could not be charged against appellant wife.
11
Enumerated issue number two contains the threshold issue of the case. It is contended that under Wyoming law a violation of the Wyoming Motor Vehicle Code 31-185 and 31-190, 7 Wyo.Stat., constitutes negligence per se, and appellant was entitled to an instruction to that effect. By a well established line of decisions, the Wyoming Supreme Court has consistently held that the violation of a statute is negligence to be considered with all the other facts and circumstances in evidence and is a question to be submitted to the jury in determining whether or not the party was negligent at the time the act occurred. Checker Yellow Cab Co. v. Shiflett, Wyo., 351 P.2d 660 (1960); Wilcox v. Herbst, 75 Wyo. 289, 295 P.2d 775 (1956); Wallis v. Nauman, 61 Wyo. 231, 157 P.2d 285 (1945); Hester v. Coliseum Motor Co., 41 Wyo. 345, 285 P. 781 (1930).
12
In Edwards v. Harris, 397 P.2d 87, 94 (1964) the Supreme Court of Wyoming said, 'Failure to dim would have been in violation of 31-190 and sufficient to constitute negligence on the part of Seilaff.' The entire paragraph, of which this sentence is a part, is in line with the established rule above set out. The paragraph illustrates that evidence of a violation of the statute, in the absence of other supporting evidence of negligence, is sufficient to justify submitting the question of negligence to the jury. The case does not deal with the question of negligence per se. '* * * An intention to overrule a number of longstanding precedents should be expressed in plain and explicit terms * * *' 20 Am.Jur.2d, Courts, 232.
13
Furthermore, "It is a rule of universal application that general expressions used in a court's opinion are to be taken in connection with the case under consideration.' None of these cases turned upon the decision of the precise point now urged.' United States v. Gotwals, 156 F.2d 692, 695, 169 A.L.R. 619 (10 Cir. 1946).
14
'It is essential that courts follow previous authorities so long as they lay down principles but when a previous case merely decides that a particular set of facts illustrates an existing rule it may be useful for edification but can rarely yield authoritative guidance.' Kansas City Life Insurance Co. v. Cox, 106 F.2d 321, 326 (6 Cir. 1939). The trial court's interpretation of the Wyoming law is correct.
15
The third issue raised by appellant is that the instruction on an unavoidable accident should not have been given.
16
Wyoming has adopted an unavoidable accident rule which is not as rigid as the one recognized in other jurisdictions. The Wyoming court has said, 'As relates to motor vehicle accidents, we would say that the words mean an accident in which there is no negligence by either party.' The court goes on to say, '* * * we think the law is clear that unavoidable, or inevitable, accident may be proved under a general denial.' Friesen v. Schmelzel, 78 Wyo. 1, 318 P.2d 368, 371, 372 (1957).
17
It is not error to give an unavoidable accident instruction if the jury can find that the accident resulted without the negligence of either party. The undisputed facts clearly indicate that the jury might have concluded that the disabled vehicle extending across the center line of the highway was the sole proximate cause of the accident and that neither of the litigants herein were negligent. Under the pleadings, evidence and circumstances, it was proper to give the unavoidable accident instruction.
18
The fourth issue listed by appellant is that the jury was confused when the court erroneously identified the parties by switching their names and capacities. This occurred only once without immediate correction by the court. 'We think the inadvertent transposition of 'plaintiff' and 'defendant' in one instance by the court in his instructions to the jury did not confuse the jury and was harmless.' Owens v. Goss, 235 Or. 102, 383 P.2d 1013, 1015 (1963). The parties and their capacities were correctly identified throughout the instructions as a whole.
19
Appellant contends in enumerated issue number five that it was error, when instructing about the Motor Vehicle Code of Wyoming, to include the sections establishing the maximum speed on Wyoming highways. The instruction covering these sections was given because Wyoming's maximum speed of 65 m.p.h. is modified by other sections of the Code which require a driver to control his vehicle at all times and under all circumstances. The Supreme Court of Wyoming in Henman v. Klinger, 409 P.2d 631, 636 (1966) recently reaffirmed the rule quoted in Gamet v. Beazley, 62 Wyo. 1, 159 P.2d 916, 920 (1945): 'The standard of care to be exercised in driving an automobile at night is one for the trier of the facts, in the absence of any standard derived from express legal enactment or the universal practice and custom of the community.'
20
The theory of the appellant was that the negligence of the appellee in failing to dim his lights was the proximate cause of the accident. The defense of the appellee, as shown by the evidence, was that appellant driver did not have his vehicle under the control required by the circumstances. These conflicting theories and the legislative enactments applicable to each were correctly stated by the court.
21
Enumerated issue number six raises an objection to the preliminary language used in the instructions which specified the particular elements of damages which were recoverable. The court said, 'It is they duty of the court to give instructions as to the measure of such damages. Now you, the jury, are not to infer from the fact that an instruction on the measure of damages is given, that the court is instructing you to award damages.'
22
'The giving of cautionary instructions stands on a different footing from the giving of instructions on the law of the case and is a matter very much within the discretion of the court.' 5A C.J.S. Appeal and Error 1775. We cannot say that the trial court abused this discretion in this instance because it is evident that before the jury could consider damages, the question of liability had to be determined.
23
In addition, the use of the words 'the fact that' in this instruction does not make it an objectionable 'fact instruction.' It has been said that a similar instruction1 did not isolate an item of evidence and therefore, was not a 'mere fact instruction.' The instruction merely '* * * caution(ed) the jury not to draw a wrong inference from what the court has said or done.' Perez v. Baltimore and Ohio Railroad Company, 24 Ill.App.2d 204, 164 N.E.2d 209, 213 (1960).
24
Having read the entire instructions, we are satisfied that the jury was properly instructed.
25
Affirmed.
1
'The fact that the court has given instructions on damages is not to be taken as an indication by the court that the defendants are liable.' Perez v. Baltimore & Ohio R.R. Co., 24 Ill.App.2d 204, 164 N.E.2d 209, 213 (1960)
|
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 17-2162
____________
IN RE: JAMES HARTMAN,
Debtor
JAMES HARTMAN,
Appellant
v.
WELLS FARGO BANK NA, d/b/a America’s Servicing Company;
US BANK NA, as Trutee for Residential Asset Securities Corporation;
HOME EQUITY MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES,
Series 2005-EMX5; ABC CORPS 1-10; LLCS 1-10
____________
On Appeal from United States District Court
for the District of New Jersey
(D.N.J. No. 2-15-cv-07093)
District Judge: Honorable Esther Salas
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 13, 2018
Before: SMITH, Chief Judge, McKEE and FISHER, Circuit Judges.
(Filed: February 6, 2019)
____________
OPINION*
____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.
James Hartman appeals the District Court’s order affirming the Bankruptcy
Court’s dismissal of his complaint against Wells Fargo Bank, N.A. d/b/a America’s
Servicing Company and U.S. Bank, N.A. (together, “Wells Fargo”) for (i) declaratory
relief barring Wells Fargo’s foreclosure on his real property; and (ii) negligent
misrepresentation. We will affirm.
I.
In September of 2005, Hartman and his wife (the “Homeowners”) took out a
$697,000 loan (the “Loan”) secured by their real property in Chatham, New Jersey. They
executed the Loan through a promissory note and mortgage (collectively, the “Mortgage
Documents”). Years later, they entered into a loan modification agreement with Wells
Fargo, the Loan’s servicer, that capitalized the Loan’s interest, but did not alter its
October 1, 2035 maturity date.
Shortly after, the Homeowners failed to make their monthly payments. As a
result, Wells Fargo issued a Notice of Intention to Foreclose on the property, thereby
declaring default and accelerating the debt’s date of maturity. When the Homeowners
did not remedy the default, Wells Fargo filed suit to foreclose on the property. The
Homeowners did not file a response to the complaint, but instead jointly filed for Chapter
13 bankruptcy.
2
Between 2009 and 2011, the Homeowners submitted two additional loan
modification applications to Wells Fargo. Wells Fargo denied the first after the parties
mediated and the Homeowners rejected Wells Fargo’s forbearance agreement. It denied
the second without negotiation, citing to then-active investor guidelines that limited
debtors to only one capitalization during the loan’s lifetime.
In October of 2013, the New Jersey Superior Court entered a Foreclosure
Dismissal Order due to Wells Fargo’s failure to prosecute. The Chancery Division later
reinstated the foreclosure action on a six-month conditional basis, ordering that if Wells
Fargo did not take action by December 12, 2014, its foreclosure case would be closed and
Wells Fargo would have to commence a new action against the Homeowners. The six-
month deadline passed without action by Wells Fargo.1 Hartman then filed an individual
petition for Chapter 13 bankruptcy and filed an adversary complaint (i) seeking a
declaratory judgment that Wells Fargo is time-barred from commencing a foreclosure
action against the property; and (ii) claiming negligent misrepresentation.
The Bankruptcy Court dismissed Hartman’s complaint, and the District Court, in
its appellate role, affirmed.
II.
The Bankruptcy Court had jurisdiction over the adversary proceeding,2 and the
1
After the deadline passed, Wells Fargo moved for an extension of time, but Hartman
filed his bankruptcy petition before a ruling was issued.
2
See 28 U.S.C. §§ 157(b), 1334(b).
3
District Court had jurisdiction over the appeal of the Bankruptcy Court’s final order.3
We have appellate jurisdiction to review the final order of the District Court,4 which we
review de novo.5
III.
The District Court correctly concluded that Wells Fargo had twenty years from the
date of the Homeowners’ default to bring a foreclosure action and that Hartman failed to
plead a claim for negligent misrepresentation.
A.
The applicable New Jersey statute imposes one of three deadlines for commencing
a foreclosure action: the earliest of (a) six years from the maturity date set forth in the
mortgage documents; (b) thirty-six years from the date the mortgage was recorded or
executed; or (c) twenty years from the date of default.6
Hartman argues that subsection (a) controls and that the statute of limitations
began to run on October 5, 2008, when Wells Fargo accelerated the Loan’s maturity date
by demanding immediate repayment of the entire Loan. However, the District Court
found otherwise, imposing subsection (c)’s twenty-year statute of limitations, which
3
See id. § 158(a).
4
See id. §§ 158(d), 1291.
5
See Schlumberger Res. Mgmt. Servs. v. CellNet Data Sys. (In re CellNet Data Sys.), 327
F.3d 242, 244 (3d Cir. 2003) (“We exercise plenary review of an order issued by a
district court sitting as an appellate court in review of the bankruptcy court.”).
6
N.J.S.A. § 2A:50-56.1.
4
began to run on the date of the Homeowners’ default. We agree with the District Court’s
conclusion.
Statutory interpretation begins with the text.7 Courts are required to “give effect to
every clause and word of a statute and be reluctant to treat statutory terms as mere
surplusage.”8
As the District Court highlighted,9 subsection (a) includes a clause that provides
that the maturity date set forth in the mortgage documents will apply unless “the date
fixed for the making of the last payment or the maturity date has been extended by a
written instrument, [then] the action to foreclose shall not be commenced after six years
from the extended date under the terms of the written instrument . . . .”10 However, it
does not reference an exception for accelerated maturity dates, though acceleration
clauses are standard in mortgage documents11 and addressed elsewhere in New Jersey
law.12
7
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002).
8
Free Speech Coalition, Inc. v. Att’y Gen. of U.S., 677 F.3d 519, 539 (3d Cir. 2012)
(citation omitted).
9
The District Court relied heavily on the reasoning of a panel of this Court in In re
Washington, 669 Fed. App’x 87 (3d Cir. 2016), a non-precedential opinion addressing
this exact question.
10
N.J.S.A. § 2A:50-56.l(a).
11
See Cent. Fed. Sav. and Loan Ass’n of Bridgeton v. Van Glahn, 364 A.2d 558,
560 (N.J. Super. Ct. Ch. Div. 1976).
12
See, e.g., N.J.S.A. § 12A:3-118(a) (“[A]n action to enforce the obligation of a party to
pay a note payable at a definite time must be commenced within six years after the due
date or dates stated in the note or, if a due date is accelerated, within six years after the
accelerated due date.”).
5
Nonetheless, Hartman maintains that subsection (a) applies to accelerated maturity
dates just as it does extended maturity dates. He is incorrect; as the Mortgage Documents
establish, October 1, 2035 is the date of maturity applicable to subsection (a). Our
principles of statutory interpretation assume that when the legislature “includes particular
language in one section of a statute but omits it in another section of the same Act, it . . .
acts intentionally and purposely in the disparate inclusion or exclusion.”13 The
legislature expressly provided for an adjustment of the statute of limitations where the
maturity date had been extended, but did not include similar language to address
accelerated maturity dates, though it could have. Therefore, it would be improper to now
read such a provision into the text.
Because the foreclosure was triggered by the Homeowners’ default, the District
Court correctly concluded that subsection (c) controls.
B.
Hartman additionally argues that representatives of Wells Fargo committed
negligent misrepresentation by allowing the Homeowners to pursue applications for loan
modification between 2009 and 2011, even though Wells Fargo knew that a loan could
only be capitalized once during its lifetime, which the Loan was in 2008. However, to
state such a claim, Hartman must show that Wells Fargo owed the Homeowners a duty of
13
Barnhart, 534 U.S. at 452 (citation omitted).
6
care that arose independently of their contractual relationship.14 Hartman fails to make
any such showing;15 therefore, this claim was properly dismissed.
IV.
The District Court properly affirmed the Bankruptcy Court’s order dismissing
Hartman’s complaint. We will therefore affirm.
14
See Saltiel v. GSI Consultants, Inc., 788 A.2d 268, 280 (N.J. 2002).
15
On appeal, Hartman argues that this Court should impose a balancing test to determine
whether a lender owes a borrower a duty of care; however, he does not explain how or
why any of the factors he suggests apply to his relationship with Wells Fargo.
7
|
28 P.3d 269 (2001)
Richard BRANDON, Appellant,
v.
CORRECTIONS CORPORATION OF AMERICA, dba Central Arizona Detention Center, Michael Samberg, Chief Operating Officer; and the State of Alaska, Department of Corrections, Margaret Pugh, Commissioner, Appellee.
No. S-9228.
Supreme Court of Alaska.
July 27, 2001.
*271 Richard Brandon, pro se, Seward.
Timothy W. Terrell, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellees.
Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINION
CARPENETI, Justice.
I. INTRODUCTION
When Richard Brandon, a prisoner in the Alaska corrections system, commenced litigation against the State of Alaska in a civil action, he also filed a Prisoner Request for Filing Fee Exemption under AS 09.19.010 and a motion to waive the filing fee based on a constitutional challenge to the statute. The first superior court judge assigned to the case ordered Brandon to pay reduced filing fees and granted his motion for an extension of time, but did not mention his request for an outright exemption from paying the filing fees. Another judge later dismissed the case for failure to pay the reduced filing fees within the extension allowed by the first judge and denied Brandon's motion for an outright exemption as impliedly denied by the first judge's decision to reduce the fees.
Brandon argues three issues on appeal: (1) the superior court erred in dismissing the case before the time he had been allowed to pay the fee had expired; (2) the superior court improperly denied his motion to waive the filing fee in its entirety; and (3) the prisoner filing fee statute, AS 09.19.010, is unconstitutional. The state concedes error as to the first issue but disputes Brandon's positions with regard to the other two. We agree with the state as to all three issues. Accordingly, we reverse the dismissal of this case and remand with instructions that Brandon be given an opportunity to pay the filing fee ordered by the superior court.
II. FACTS AND PROCEEDINGS
Richard Brandon is a State of Alaska prisoner who was housed at the Central Arizona Detention Center (CADC) from January 1995 until February 1998 pursuant to a contract CADC had with the State of Alaska Department of Corrections. Brandon filed suit against CADC, its parent corporation, Corrections Corporation of America, and the State of Alaska Department of Corrections for surcharges applied to his commissary purchases, allegedly in violation of the Cleary v. Smith[1] Final Settlement Agreement. Section V.J.2 of the Settlement Agreement provides that surcharges on commissary purchases are prohibited. However, Brandon's underlying claims as to prohibited surcharges are not at issue here. This appeal concerns the dismissal of his complaint for failure to pay filing fees.
Brandon submitted his complaint on July 15, 1998. At the same time, he submitted a Prisoner Request for Filing Fee Exemption, and a motion to waive the filing fee. The motion to waive the filing fee raised a constitutional challenge to the prisoner filing fee exemption set forth in AS 09.19.010.[2]
*272 On July 28, 1998 Superior Court Judge Brian C. Shortell granted Brandon's request for filing fee exemption. Based on the financial information submitted by Brandon, the superior court ordered him to pay a reduced filing fee in the amount of $66.29. Judge Shortell allowed Brandon until August 28, 1998 to pay the fee. No ruling was made on the motion to waive the filing fee.
On August 19 Brandon wrote a letter to the judge, asking the court to consider the letter as a motion for extension of time to pay the reduced filing fee. Brandon asked for a sixty to ninety day extension. He submitted a proposed order with this motion, which would have extended the filing fee deadline sixty days. The proposed order was not used. Instead, Judge Shortell turned Brandon's letter/motion into an order, writing on the letter:
Order
So Ordered.
9/8/98
/s/ B. Shortell
Thus, the previously extended deadline for payment of the filing fees was extended by sixty to ninety additional days, or until between November 9[3] and December 7, 1998.
On November 9, 1998 Superior Court Judge Michael L. Wolverton[4] dismissed Brandon's case, without prejudice, for lack of payment of the filing fee. Brandon moved to reinstate the action on December 1. He argued that he should have been given notice and an opportunity to pay the filing fee. He also pointed out that his motion to waive the filing fee was still pending. On December 28 Judge Wolverton vacated the November 9 order, concluding that it had been entered prematurely based on Judge Shortell's order allowing Brandon sixty to ninety days to pay the fee. Judge Wolverton concluded that Brandon had actually had until December 8 to pay. However, Judge Wolverton went on to conclude that because no filing fee had been paid as of December 28, the case still had to be dismissed, without prejudice, for lack of payment of the filing fee.
On January 2, 1999 Brandon filed another letter/motion in which he asked Judge Wolverton to clarify his rulings. Brandon pointed out that the effect of the December 28 order "was less than fair" because, while it noted that the November order had been prematurely entered, the December order did not give Brandon a chance to pay the fee. Brandon also noted that his motion to waive the filing fee had never been ruled on.
In response to Brandon's questions regarding the status of his motion to waive the filing fee, Judge Wolverton issued an order on January 13 in which he concluded that Judge Shortell's ruling on the reduced filing *273 fee was effectively a denial of Brandon's motion to waive the filing fee.
Brandon appeals the dismissal of his case for failure to pay the filing fee on three grounds: (1) that the superior court erred by dismissing his case for failure to pay the filing fee; (2) that the superior court improperly denied his motion to waive the filing fee in its entirety; and (3) that the prisoner filing fee statute is unconstitutional.
III. STANDARD OF REVIEW
"When interpreting the Civil Rules we exercise our independent judgment, adopting the rule of law that is most persuasive in light of reason, precedent, and policy. Similarly, we review constitutional questions de novo."[5]
IV. DISCUSSION
A. Prisoners Are Required To Pay a Filing Fee When Commencing Litigation Against the State of Alaska.
Commencing a civil action requires the filing of a complaint with the court.[6] A fee schedule for filing has been established for the Alaska Court System.[7] Payment of the filing fee is required before any civil action or proceeding is accepted for filing.[8] However, a filing fee is not required of "any person determined to be indigent under Administrative Rule 10."[9] In order to avoid payment of a filing fee based on a determination of indigency, the person requesting an exemption must file an indigency statement on a court form.[10] But the indigency exemption is not applicable where the person is a prisoner commencing litigation against the State of Alaska.[11]
A prisoner may not commence litigation against the state[12] unless he or she "has paid full filing fees to the court ... except that the court may exempt a prisoner from paying part of those fees if the court finds exceptional circumstances."[13] A prisoner seeking the filing fee exemption must submit documents to the court regarding his or her financial situation.[14] Based on that information, the court determines whether the requisite exceptional circumstances exist that prevent the prisoner from paying full filing fees.[15]
If a prisoner has income or other resources available that can be applied to the filing fee, then "imprisonment and indigency do not constitute exceptional circumstances."[16] The court sets the amount of the exemption based on the average balance of the prisoner's correctional facility account.[17] Indeed, even though the prefatory language to the statute speaks of the court's power only to "exempt a prisoner from paying part of [the] fees,"[18] the statute actually allows exemption from paying any fee if the prisoner's account is small enough.[19] The court order setting out the filing fee must provide *274 notice that the action will not be accepted for filing if the filing fee is not paid within thirty days, or the time set by the court.[20] The prisoner's filing and supporting documents may not be accepted by the court until the fee is paid.[21]
As a prisoner commencing civil litigation against the State of Alaska, Brandon was required to follow the statutory provisions for filing fees for prisoner litigation against the state.
B. The Superior Court Erred When It Dismissed Brandon's Case for Failure to Pay the Filing Fee.
As previously noted, Brandon's motion for an extension of time to pay the filing fee was turned into an order by Judge Shortell. That order was ambiguous because it did not set a specific date by which the filing fee was to be paid. Instead, the order incorporated Brandon's request that he be given an additional sixty to ninety days to pay. This order effectively allowed Brandon a ninety-day extension of time, resulting in a due date for the filing fee of December 7, 1998.
The state concedes that it was error for the superior court to dismiss Brandon's case on November 9 because dismissal was premature. We agree.
On December 28, 1998 Judge Wolverton properly vacated the November 9 order as premature. However, he concluded that Brandon's case should still be dismissed because he had not paid the filing fee by the end of December. This was error. After the entry of the dismissal order on November 9, there was no reason to expect Brandon to pay the filing fee for a dismissed case, even though he filed a motion to reinstate the action. After the court vacated the November 9 order, it should have given Brandon a new due date for the filing fee.
C. Judge Shortell Implicitly Ruled on Brandon's Motion to Waive the Filing Fee.
In response to the December 28 order, Brandon inquired about the status of his motion to waive the filing fee. Judge Wolverton then issued an order in which he concluded that Judge Shortell's order requiring Brandon to pay a reduced filing fee was "a denial of plaintiff's motion for a waiver of the filing fee in its entirety."
This court has concluded in other cases that a ruling on one motion is an implicit denial of another contradictory pending motion.[22] In this case, both of Brandon's motions addressed the filing fee requirement. Judge Shortell's ruling to reduce the filing fee was therefore effectively a denial of Brandon's motion to waive the filing fee. Accordingly, Judge Wolverton was correct in ruling that Judge Shortell had effectively denied Brandon's motion for a waiver of the entire filing fee.
D. Brandon Has Not Shown that the Prisoner Filing Fee Statute Is Unconstitutional.
Brandon argues that the provisions for prisoner exemption from filing fees in AS 09.19.010 are unconstitutional because the statute violates Alaska's Equal Protection clause,[23] article I, section 11 of the Alaska Constitution,[24] and "the analogous provisions *275 of the Constitution of the United States." He does not contend that he lacks the resources to pay the reduced filing fee.
The state contends that AS 09.19.010 was enacted as part of a nationwide trend regarding partial filing fees for prisoners. The state argues that the legislative goal of deterring frivolous prisoner litigation is legitimate, that this court's holding in Mathis v. Sauser[25] does not serve to invalidate the prisoner filing fee statute, and that there is no equal protection violation.
When a constitutional challenge to a statute is raised, the party bringing the challenge must demonstrate the constitutional violation; constitutionality is presumed, and doubts are resolved in favor of constitutionality.[26] The party attacking a statute must show there is no constitutional basis to support it.[27] This court presumes that the legislature sought to act within constitutional limits.[28]
For the reasons discussed below, we conclude that Brandon has not met his burden to show that the statute is unconstitutional.
1. AS 09.19.010 does not violate equal protection.
Brandon argues that: (1) the prisoner filing fee exemption statute singles out prisoners for different treatment for filing fees, (2) the holding of Mathis requires the conclusion that AS 09.19.010 is unconstitutional, (3) the statute was enacted with an unconstitutional motivation, and (4) the statute creates state immunity because prisoners are entitled only to as much justice as they can afford. We disagree on all points.
a. Indigent prisoners and indigent non-prisoners are not similarly situated.
"Amendment XIV, section 1 of the United States Constitution and Article I, section 1 of the Alaska Constitution guarantee... equal protection under the law. These clauses, however, require equal treatment only for those who are similarly situated."[29] The state argues that Brandon's claim that the prisoner filing fee statute singles out prisoners for different treatment is without merit because indigent prisoners and indigent non-prisoners are not similarly situated.
As the court of appeals noted in George v. State, "the circumstances of an indigent prisoner are different from the circumstances of an indigent non-prisoner."[30] Indigent prisoners do not have to pay rent, buy groceries, or hold down a job; and their basic needs are met by the state.[31] A prisoner filing a civil action against the state need not worry that payment of the filing fee means that the rent will not be paid or that groceries cannot be purchased. In Tucker v. Branker, the District of Columbia Circuit Court noted that the prison system is "constitutionally bound to provide ... its prisoner ... with the necessities of life" and then held that because the prisoner is "not forced to choose between the necessities of life and his lawsuit ... the [prisoner] filing-fee provision ... does not *276 unconstitutionally impinge upon his right of access to the courts."[32] We agree with this rationale. The choices of an indigent non-prisoner are between filing suit against the state and being able to meet basic necessities of life. The choice an indigent prisoner faces is between filing suit against the state or engaging in other activities; basic life necessities are not jeopardized by that choice. Thus, because indigent prisoners are not similarly situated to indigent non-prisoners, Brandon's equal protection challenge fails.
b. Mathis does not mandate the conclusion that AS 09.19.010 is unconstitutional.
In Mathis v. Sauser, we considered the claim of an inmate that in denying a prisoner the right to possess a computer printer, the Department of Corrections violated due process, violated equal protection, and denied access to the courts.[33] We reversed a grant of summary judgment against the inmate, stating that if "a challenged regulation curtails an inmate's right of access [to the courts], a reviewing court must determine that the given policy rationale is legitimate and that there is a sufficiently close relationship between this articulated rationale and the selected means of achieving it."[34] We ruled that summary judgment was inappropriate because an impermissible motive on the part of those enacting a regulation would render the regulation improper, and the prison administration's decision, that a restriction on printer access was needed to curtail frivolous prisoner litigation, raised a genuine issue of material fact.[35]
Less than two months after the Mathis decision, the Alaska Court of Appeals decided George v. State, in which it specifically addressed the constitutionality of the statute at issue in this case, AS 09.19.010.[36] In George, an inmate challenged the constitutionality of the filing fee provisions, arguing that he should be able to proceed under the filing fee provisions for indigent persons.[37] The court of appeals concluded that the statute was not unconstitutionally vague because it provided a flexible approach similar to that found in the statutes concerning eligibility for appointed counsel.[38] The George court also concluded that the statute did not violate equal protection because indigent prisoners pursuing litigation against the state are not similarly situated with indigent non-prisoners pursuing litigation against the state.[39]
In this case, Brandon argues that our decision in Mathis v. Sauser compels us to overrule the court of appeals's conclusion in George v. State that AS 09.19.010 is constitutional. Brandon contends that the statute is unconstitutional because its enactment involved an impermissible motivation. The state contends that Brandon misconstrues Mathis as concluding that only the courts can "concern themselves with the problem of frivolous or unmeritorious litigation." The state points out that it is constitutionally permissible for the legislature to amend court rules, provided it is done by a two-thirds vote.[40] The state argues that this court's holding in Mathis should not be applicable to legislative branch actions.
We agree with the state that Mathis does not require the conclusion that AS 09.19.010 is unconstitutional and that George must be overruled. In Mathis, prison officials implemented a challenged policy; here, a legislative enactment is in question. Our jurisprudence *277 makes clear that we give substantial deference to legislative enactments in determining constitutionality.[41] In Mathis, the lower court granted summary judgment to the state even though a genuine issue of material fact was in dispute; here, the issue is one of pure law. Mathis by no means governs the outcome in this case.
c. AS 09.19.010 was not enacted for an unconstitutional purpose.
Brandon claims that the publicly stated purpose of AS 09.19.010 (to reduce frivolous litigation by prisoners against the state) both singles out prisoners for different treatment and is based on improper motivation that renders the statute unconstitutional under Mathis because it impermissibly restricts access to the courts. We disagree. As the Ninth Circuit Court of Appeals stated in Rodriguez v. Cook, equal protection under the Fifth and Fourteenth Amendments of the federal constitution "is not a source of substantive rights or liberties, but rather a right to be free from invidious discrimination in statutory classifications and other governmental activity."[42] The purpose behind the prisoner filing fee statute does not constitute invidious discrimination, nor does the statute unconstitutionally restrict access to the courts.
Where a claimant challenges the constitutionality of a provision that allegedly impairs a prisoner's access to the court, the analysis is "conceptually similar ... to constitutional challenges in the equal protection and due process contexts."[43] The level of scrutiny applied under the federal test depends on whether the legislation in question "discriminates against a suspect class or infringes upon a fundamental right."[44] Federal courts reviewing prisoner filing fee requirements have applied rational basis review.[45]
Unlike the federal equal protection analysis, we apply "a sliding scale, invoking closer scrutiny for more important interests."[46] Under the sliding scale approach, "[t]he applicable standard of review for a given case is to be determined by the importance of the individual rights asserted and by the degree of suspicion with which we view the resulting classification scheme."[47] Where access to the courts is at issue, we apply a more heightened review than rational basis: the more onerous the burden on access, the higher the scrutiny.[48] Here, because the burden on access is not overly onerous, we apply an intermediate level of review.
"An inmate's right to be free of state interference with his right of access to the court system is not absolute."[49] As long as a statute does not impermissibly interfere with, or burden, an inmate's right of access to the court and is sufficiently related to a legitimate government interest, it is constitutional.[50]
Brandon supports his claim of impermissible motivedenying access to the courtswith the court of appeals's discussion of the legislative history and intent in George v. State. He contends that the following statement in the governor's transmittal letter *278 (regarding the bill that ultimately became AS 09.19), as quoted in George, is a "publicly stated purpose" that indicates an intent to "curtail access to the courts."
This bill is intended to ensure that offenders [desist from] endless "recreational" litigation....
... Frivolous litigation filed by prisoners misallocates resources of the judiciary, the Department of Law, the Public Defender's Office, the Office of Public Advocacy, the Department of Corrections, and the public.[51]
Brandon then interprets Mathis as requiring close scrutiny of the rationale behind the legislation to ensure that the rationale and stated purpose are not subterfuge for an impermissible motive. But he does not claim that subterfuge exists in this case; rather, he concludes that the governor's transmittal letter quoted in George is itself a publicly stated unconstitutional purpose.
However, Brandon does not quote all of the relevant language from the governor's transmittal letter:
I am transmitting a bill that addresses many of the problems arising from prisoner litigation, sentence appeals, and frivolous or extremely tardy post-conviction relief motions. This bill is intended to ensure that offenders focus their attention on their rehabilitation and reformation, rather than on endless "recreational" litigation.
The bill is also intended to promote the finality of convictions, preserve the sanctity of jury verdicts, minimize the litigation of stale claims, and prevent the unjustified dismissal of a criminal case when reprosecution is not possible. Frivolous litigation filed by prisoners misallocates resources of the judiciary, the Department of Law, the Public Defender's Office, the Office of Public Advocacy, the Department of Corrections, and the public. [Section 1] ... relate[s] to prisoner litigation. [The section is] designed to reduce the number of frivolous suits filed by prisoners that involve the state, its employees, and former employees. This prisoner litigation is preventing the state and the court from giving adequate attention to legitimate lawsuits. Sections 1, 15, and 17 of the bill require prisoners to pay filing fees for civil proceedings according to their ability to pay.[52]
The governor's letter does not indicate an impermissible intent to curtail prisoner access to the court. The stated purpose is legitimate: reducing frivolous prisoner litigation, and requiring prisoners who file civil actions against the state to pay filing fees according to their ability to pay.
We have stated that "even when state officials deem a prisoner's pro se legal activities frivolous, the Constitution of Alaska precludes any action aimed at impeding an inmate's access to the courts."[53] However, the legislation in question here does not impede access to the courtsit requires that the inmate pay some part of the administrative cost incurred in some civil suits against the state, based on the prisoner's ability to pay, in order to reduce unnecessary burdens on the courts and public resources. Extensions of time may be granted in order to give a prisoner the opportunity to pay. And if the prisoner's account balance is low enough, he or she may be required to pay very little, or nothing. This approach accounts for the cost to the judicial system, and to the public, for prisoner civil litigation against the state without imposing an undue burden on prisoners.
Furthermore, the justifications for the fee survive close scrutiny for legitimacy. The discussion in George regarding the background of prisoner filing fees is useful here. Congress enacted the Prisoner Litigation Reform Act (PLRA) because it concluded that "the effectiveness of the federal judiciary was being compromised by a flood of prisoner litigation" because it was "easy and essentially costless for prisoners to pursue meritless *279 claims."[54] Congress wanted to "require prisoners to pay a very small share of the large burden they place on the Federal judicial system."[55] The provisions of AS 09.19.010 require the prisoner contemplating certain forms of litigation against the state to consider whether it is worth the cost, just as other litigants must. But as the George court noted, the statute "does not require prisoners to pay money they do not have; instead it asks prisoners to set spending priorities."[56] More importantly, as the state has pointed out, the filing fee statute in question is not applicable to criminal cases or direct appeals from criminal cases, nor does it apply to litigation that is not against the state.[57] And Alaska's prisoner filing fee provisions are far more advantageous to Alaska prisoners than the comparable federal requirement that the full filing fee be paid, in installments if necessary.[58] We conclude that the sliding scale fee payment system implemented by AS 09.19.010 does not impede prisoner access to the courts.
"The Supreme Court has never recognized an `unlimited rule that an indigent at all times and in all cases has the right to relief without the payment of fees.'"[59] In this case, Brandon does not argue that his access to the court has in fact been impeded because he is indigent or can not pay the filing fee. He merely argues that prisoners should not be treated differently. But the reasoning of the Fourth Circuit is persuasive:
Requiring prisoners to make economic decisions about filing lawsuits does not deny access to the courts; it merely places the indigent prisoner in a position similar to that faced by those whose basic costs of living are not paid by the state. Those living outside of prisons cannot file a lawsuit every time they suffer a real or imagined slight. Instead, they must weigh the importance of redress before resorting to the legal system. If a prisoner determines that his funds are better spent on other items rather than filing a civil rights suit, "he has demonstrated an implied evaluation of that suit" that the courts should be entitled to honor.[60]
It is true that there is more contact between the state and its prisoners and thus more likelihood of colorable claims against the state, than between other citizens and the state, but prisoners are assured that basic necessities will be provided, which are not provided to non-prisoners filing suit against the state. We conclude that Brandon has not shown that the filing fee provisions of AS 09.19.010 are onerous or overly burdensome.[61] They are sufficiently related to a legitimate government objective and do not impinge on a fundamental right, discriminate against a suspect class, or restrict access to the courts.
d. The prisoner filing fee statute does not create state immunity.
Brandon claims that the statute creates state immunity against prisoner litigation. This claim is without merit. The prisoner filing fee provisions do not prevent prisoners from filing civil actions against the state. Prisoners are only required to pay a portion of the costs imposed on the court by *280 the filing of a lawsuit, based on the average balance of their prisoner account.[62] As noted above, it could be that the fee is zero. The court of appeals stated in George, "federal courts have unanimously concluded that the filing fee requirements placed on prisoners... do not violate equal protection.... `There is nothing unreasonable in requiring a prisoner ... to make some contribution, however minimal.'"[63] That conclusion makes sense. Requiring a filing fee payment based on ability to pay for specific kinds of civil litigation against the state does not unconstitutionally restrict access to the courts or create a state immunity; it requires that prisoners assess the claims they seek to litigate and pay fees according to their ability.
2. Brandon has waived his argument that AS 09.19.010 violates Alaska Constitution article I, section 11.
Brandon briefly claims in a footnote that the prisoner filing fee statute violates article I, sections 1 and 11 of the Alaska Constitution. He did not raise this claim to the court below. A party may not raise an issue for the first time on appeal.[64] And cursory treatment of an issue is considered by this court to be waiver of that issue.[65] This claim is thus waived. And as the state contends, the argument is meritless because this section of the Alaska Constitution deals with the rights of the accused in a criminal prosecution and is thus not applicable to this case.
V. CONCLUSION
Brandon has not shown that the prisoner filing fee provisions of AS 09.19.010 for civil actions against the state are unconstitutional. However, because the superior court erred by dismissing Brandon's claim without giving him an opportunity to pay the reduced filing fee set by Judge Shortell, this matter is REMANDED with instructions to reinstate the claim and allow Brandon the opportunity to pay the filing fee.
NOTES
[1] No. 3AN-81-5274 Ci. (Alaska Super., September 21, 1990).
[2] AS 09.19.010 provides that
(a) A prisoner may not commence litigation against the state unless the prisoner has paid full filing fees to the court or is a claimant under AS 23.20, except that the court may exempt a prisoner from paying part of those fees if the court finds exceptional circumstances as described in this section.
(b) To apply for a filing fee exemption, a prisoner shall submit to the court
(1) an affidavit that clearly discloses that the person is a prisoner and that sets out
(A) the prisoner's complete financial situation, including the prisoner's income, money in financial accounts, assets, and court-ordered payments;
(B) the circumstances that prevent the prisoner from paying full filing fees; and
(C) the nature of the action or appeal and specific facts that would, if proven, state a claim on which relief can be granted or entitle the prisoner to reversal on appeal;
(2) a certified copy of the prisoner's account statement from the correctional facility in which the prisoner is being or has been held for the six-month period preceding the submission of the application; and
(3) other documentation or financial information as the court may require.
(c) Based on the submission under (b) of this section, the court may grant an exemption from part of the applicable filing fees if the court finds that exceptional circumstances prevent the prisoner from paying full filing fees. Imprisonment and indigency do not constitute exceptional circumstances if the prisoner has available income or resources that can be applied to the filing fee.
(d) If the court orders an exemption under (c) of this section, the court shall determine the amount of the exemption and set a filing fee to be paid by the prisoner. In setting the fee, the court, at a minimum, shall require the prisoner to pay filing fees equal to 20 percent of the larger of the average monthly deposits made to the prisoner's account described in (b)(2) of this section, or the average balance in that account, not to exceed the amount of the full filing fee required under applicable court rules.
(e) The court shall mail or otherwise serve its order under (d) of this section on the prisoner. Along with its order, the court shall give written notice that the case or appeal will not be accepted for filing if payment of a filing fee is not made within 30 days after the date of distribution of the order, unless the time for payment is extended by the court. If timely payment is not made, the court may not accept any filing in the case or appeal. If payment is made, the prisoner's filing and supporting documents shall be accepted for filing with the court.
[3] Sixty days after September 8 is November 7. Because November 7, 1998 was a Saturday, a sixty-day extension would have created a due date of November 9.
[4] The case was reassigned to Judge Wolverton in October.
[5] Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska 1999) (footnotes omitted).
[6] See Alaska R. Civ. P. 3(a).
[7] See Alaska R. Admin. P. 9.
[8] See Alaska R. Admin. P. 9(f)(3).
[9] Alaska R. Admin. P. 9(f)(1).
[10] See Alaska R. Admin. P. 10(b).
[11] See Alaska R. Admin. P. 10(e).
[12] AS 09.19.100 defines "Litigation against the state" as:
(1) ... a civil action or an appeal from a civil action or from the final decision of an administrative agency, a petition for review, a petition for hearing, an original application for relief, or another action filed under the Alaska Rules of Appellate Procedure that
....
(B) is related to a person's status or treatment as a prisoner ..., or to an alleged violation of the person's constitutional rights.
[13] AS 09.19.010(a).
[14] See AS 09.19.010(b).
[15] See AS 09.19.010(c).
[16] Id.
[17] See AS 09.19.010(d).
[18] See AS 09.19.010(a) (emphasis added).
[19] See AS 09.19.010(d) (prisoner must pay twenty percent of the greater of average monthly deposits or average balance in prisoner's account for the previous six months). Accordingly, a prisoner with zero balances (or balances less than five cents) is not required to pay any fee.
[20] AS 09.19.010(e).
[21] Id.
[22] See, e.g., Parson v. Marathon Oil Co., 960 P.2d 615, 618 (Alaska 1998) (concluding that grant of summary judgment implicitly denied motion to compel depositions and to reschedule briefing); LeDoux v. Kodiak Island Borough, 827 P.2d 1121, 1123 (Alaska 1992) (concluding that trial court implicitly denied LeDouxs' motion to stay by granting Borough's summary judgment motion).
[23] Alaska Constitution article I, section 1 provides:
This constitution is dedicated to the principle that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State.
[24] Alaska Constitution article I, section 11 provides in part:
In all criminal prosecutions, the accused shall have the right to a speedy and public trial.... The accused is entitled to be informed of the nature and cause of the accusation ... and to have the assistance of counsel for his defense.
[25] 942 P.2d 1117 (Alaska 1997).
[26] See Baxley v. State, 958 P.2d 422, 428 (Alaska 1998).
[27] See Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d 397, 401 (Alaska 1995) (quoting Regan v. Taxation with Representation of Washington, 461 U.S. 540, 547-48, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983)).
[28] See Kimoktoak v. State, 584 P.2d 25, 31 (Alaska 1978); see also State v. Rice, 626 P.2d 104, 108 (Alaska 1981).
[29] Rutter v. State, 963 P.2d 1007, 1013 (Alaska 1998) (internal quotation marks and citations omitted); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
[30] George v. State, 944 P.2d 1181, 1188 (Alaska App.1997).
[31] See id. (quoting Roller v. Gunn, 107 F.3d 227, 234 (4th Cir.1997) ("Prisoners ... have their basic material needs provided at state expense.... They often have free time on their hands that other litigants do not possess. As a result, the federal courts have observed that prisoner litigation has assumed something of the nature of a `recreational activity.' Whether recreational or not, there has been a far greater opportunity for abuse of the federal judicial system in the prison setting.") (internal citations omitted)).
[32] 142 F.3d 1294, 1298 (D.C.Cir.1998).
[33] Mathis, 942 P.2d at 1119-20.
[34] Id. at 1121-22.
[35] See id. at 1122-23.
[36] George, 944 P.2d at 1182.
[37] Id.
[38] See id. at 1184.
[39] Id. at 1189.
[40] Brandon does not contest the validity of AS 09.19.010 as a court rule. We note that AS 09.19.010 was properly enacted by more than the constitutionally required two-thirds vote of the members elected to each house. See Alaska Const. art. IV, § 15; see also Ch. 79, § 1, SLA 1995; 1995 House Journal 1703 (passed: Yeas 39, Nays 0, Absent 1); 1995 Senate Journal 1815 (passed: Yeas 19, Nays 1); Ch. 95, § 1 SLA 1998; 1998 House Journal 3523 (amendment passed unanimously); 1998 Senate Journal 3939 (amendment passed unanimously).
[41] See supra notes 27-28.
[42] 169 F.3d 1176, 1179 (9th Cir.1999) (quoting Harris v. McRae, 448 U.S. 297, 322, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980)) (holding that state prison rule limiting amount of free postage available to prisoners did not violate equal protection rights because it was rationally related to a legitimate government purpose).
[43] Mathis, 942 P.2d at 1121 n. 8.
[44] Rodriguez, 169 F.3d at 1179 (citing Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)).
[45] See, e.g., Tucker v. Branker, 142 F.3d 1294, 1300 (D.C.Cir.1998); Rodriguez, 169 F.3d at 1180; Roller v. Gunn, 107 F.3d 227, 233 (4th Cir.1997).
[46] Schikora v. State, Dep't. of Revenue, 7 P.3d 938, 944 (Alaska 2000).
[47] State, Dep't of Revenue, Permanent Fund Dividend Div. v. Cosio, 858 P.2d 621, 629 (Alaska 1993) (quoting State v. Ostrosky, 667 P.2d 1184, 1192-93 (Alaska 1983)).
[48] See Mathis, 942 P.2d at 1121.
[49] Id.
[50] See id. at 1121-22.
[51] George, 944 P.2d at 1186 (quoting 1995 House Journal 488-89).
[52] 1995 House Journal 488-89 (emphasis added).
[53] Mathis, 942 P.2d at 1122.
[54] George, 944 P.2d at 1187 (citing Roller, 107 F.3d at 230-31).
[55] Id. (quoting 141 Cong. Rec. at S7526 (May 25, 1995) (statement of Senator Kyl), quoted in Roller, 107 F.3d at 231).
[56] Id. at 1190.
[57] See AS 09.19.010.100.
[58] See 28 U.S.C. § 1915(b)(1), (2) (2000). We note that no federal court addressing the constitutionality of the prisoner filing fee provisions has found this statute to be unconstitutional. See Rodriguez v. Cook, 169 F.3d 1176, 1179-81 (9th Cir.1999) (discussing opinions of various circuit courts).
[59] Roller, 107 F.3d at 231 (quoting United States v. Kras, 409 U.S. 434, 450, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973)).
[60] Id. at 233 (citation omitted).
[61] Brandon's claim regarding the onerous nature of the paperwork that must be filled out is without merit. Anyone seeking relief from the filing fee requirement is required to submit information to support the reasons they seek to avoid paying full filing fees. See Alaska R. Admin. P. 9(b), 10. And in the case of prisoner litigation, the prison officials complete some of the paperwork. See AS 09.19.010(b)(2).
[62] See AS 09.19.010.
[63] George, 944 P.2d at 1189 (quoting Evans v. Croom, 650 F.2d 521, 524 (4th Cir.1981) (footnotes and citations omitted)); see also Roller, 107 F.3d at 233-34.
[64] See Preblich v. Zorea, 996 P.2d 730, 736 n. 17 (Alaska 2000) (quoting Padgett v. Theus, 484 P.2d 697, 700 (Alaska 1971) ("Ordinarily an issue which was not raised in the trial court will not be treated on appeal.")).
[65] See Wall v. Stinson, 983 P.2d 736, 739-40 n. 8 (Alaska 1999).
|
154 Cal.App.2d Supp. 877 (1957)
THE PEOPLE, Appellant,
v.
MANUEL ALVES, Respondent.
California Court of Appeals.
Sept. 19, 1957.
Roger Arnebergh, City Attorney (Los Angeles), Donald M. Redwine, Assistant City Attorney, and Philip E. Grey, Deputy City Attorney, for Appellant.
Day & Atkinson for Respondent.
SHAW, J. [fn. *]
The plaintiff has filed a notice of appeal "from the judgment for the defendant upon the sustaining of his demurrer to the complaint." On examining the record we find no such judgment.
The clerk's transcript shows that defendant pleaded not guilty and the case came on for trial, and then the defendant was allowed to withdraw his plea and to file a demurrer. The demurrer was later "sustained without leave to amend." The trial court at the same time filed an opinion which stated the same ruling just quoted. Nowhere in the minutes or in this opinion is any further action stated which would dispose of the case.
In 1951 a number of amendments of the procedural provisions of the Penal Code were made, all of which, by the terms of section 690 as then amended, "apply to all criminal actions and proceedings in all courts" with some exceptions not here important. (See Stats. 1951, ch. 1674.)
Section 1004 of the Penal Code, as amended in 1951, provides for the filing of a demurrer to the complaint. Section 1007 Penal Code, as amended in 1951, provides that "the court must make an order either overruling or sustaining" the demurrer. Before this amendment, section 1007 provided for "judgment, either allowing or disallowing" the demurrer, but the word "judgment" was eliminated by this amendment. Section 1008, Penal Code, as amended in 1951, provides that if the demurrer is sustained and no amendment is permitted or none is filed if permitted "the action shall be dismissed" and certain specified orders made regarding bail. No such action here appears.
Section 1466, Penal Code, as amended in 1951, provides that the People may appeal "From a judgment for the defendant upon the sustaining of a demurrer." Here there is no such judgment. [1] As the Supreme Court said in People v. Adamson (1949), 33 Cal.2d 286, 288 [201 P.2d 537], "Speaking generally, 'It is well established that no appeal will lie from order sustaining a demurrer to ... a pleading.' " Accordingly an appeal from an order sustaining a demurrer [154 Cal.App.2d Supp. 879] to a petition for a writ of error coram nobis, without leave to amend, was dismissed. The same principle should be applied here.
[2] The appellant cited in support of its appeal, People v. Dobbs (1945), 70 Cal.App.2d 261 [161 P.2d 46]. There the court held that an appeal would lie from an order sustaining a demurrer with leave to amend. The decision was based on the fact that the Penal Code then contained no provision for a judgment to be entered when a demurrer was sustained, other than that in section 1007 (which since has been eliminated), (70 Cal.App.2d 264), and hence the order sustaining it must be regarded as "a judgment for defendant on a demurrer" (as it was then labelled by section 1007) from which an appeal might be taken under Penal Code, section 1238. The court said this was a question for the Legislature. Now the Legislature has spoken in the 1951 amendments and has stated exactly what is the form of judgment on demurrer. Until there is such a judgment no appeal now lies.
The appellant also cited People v. Draper (1933), 134 Cal.App. Supp. 787, 793 [22 P.2d 604], where this court approved an appeal from an order of a justice's court sustaining a demurrer in a criminal case. But that decision was made long before the 1951 amendments of the Penal Code which we have discussed and at a time when there was no authority at all for a demurrer in a justice's court. The decision is not controlling here, in view of the great difference in the applicable statutory provisions.
Section 1466, Penal Code, as amended in 1951, also provides that the People may appeal from "an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy." There is here no dismissal, but the conditions as to jeopardy are met. However, we see no order terminating the action. [3] Section 1009, Penal Code, as amended in 1951, provides that "The court in which an action is pending may order or permit ... the filing of an amended complaint, ... at any stage of the proceedings." This language is broad enough to cover the "stage of the proceedings" where a demurrer has been sustained without leave to amend but the judgment of dismissal has not yet been entered, if the court should in the meantime be convinced that it had erred. In People v. Kynette (1940), 15 Cal.2d 731, 759 [104 P.2d 794], this phrase "stage of the proceedings" was held to authorize amendment of an indictment "to conform to proof" [154 Cal.App.2d Supp. 880] after the evidence to which it conformed had been admitted. In civil cases we find it held that an amendment of the complaint may be permitted after the court has announced its decision but before judgment is entered (Campbell v. Genshlea (1919), 180 Cal. 213, 219 [180 P. 336]), where the court held that there was no "time before judgment entered when the power of the court ceases." See also Sandvold v. Perrot (1946), 74 Cal.App.2d 344, 349 [168 P.2d 995].
We see no reason for not applying the same rule in criminal cases, and it follows that an order sustaining a demurrer does not terminate the action.
The plaintiff cites in further support of its appeal, People v. Pallares (1952), 112 Cal.App.2d Supp. 895, 897 [246 P.2d 173]. That case does uphold the People's appeal from an order of a municipal court sustaining a demurrer to a criminal complaint. The only authorities cited for the conclusion are People v. Draper, 134 Cal.App.Supp. 787, 793 [22 P.2d 604], and People v. Dobbs, 70 Cal.App.2d 261 [161 P.2d 46]. We have already discussed these cases and shown why they are not controlling here. People v. Pallares was decided after the 1951 amendments of the Penal Code and on facts which arose after those amendments, but those amendments were not mentioned in the opinion and were evidently not called to the attention of the court. We find ourselves unable to follow this decision.
The appeal is dismissed.
Bishop, P. J., concurred.
NOTES
[fn. *] *. Assigned by Chairman of Judicial Council.
|
7 Cal.App.4th 722 (1992)
9 Cal. Rptr.2d 244
THE PEOPLE, Plaintiff and Respondent,
v.
DOMICIANO RAMIREZ BUSTAMANTE, Defendant and Appellant.
Docket No. A054666.
Court of Appeals of California, First District, Division Three.
June 22, 1992.
*723 COUNSEL
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Mark S. Howell and Matthew P. Boyle, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WHITE, P.J.
Domiciano Ramirez Bustamante appeals after he pled guilty to one count of lewd and lascivious conduct with a child (Pen. Code, § 288, subd. (a))[1] and the court sentenced him to the midterm of six years in prison. Appellant contends the trial court improperly considered two other alleged incidents of child molestation when it imposed sentence. We affirm.
FACTS
The Mendocino County District Attorney charged appellant by criminal complaint in count one with penetrating the anus of a child with a foreign *724 object (to wit, a finger) with respect to Victor T. on or about March 1991, and in count two with lewd and lascivious conduct with a child with respect to Maria T. (Victor T.'s sister) on or about May 12, 1991. The complaint also alleged a special allegation of substantial sexual conduct (§ 1203.066, subd. (a)(8)) and a special allegation that appellant took advantage of a position of special trust with the victims (§ 1203.066, subd. (a)(9)).
Pursuant to a plea bargain, appellant pled guilty to count two (the § 288, subd. (a) charge as to Maria T.) and the prosecutor agreed to dismiss count one and the special allegations. Defense counsel specifically stated there would be no Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754 [159 Cal. Rptr. 696, 602 P.2d 396]) with respect to count one.
According to the eight-year-old victim, appellant's niece Maria T., appellant locked the bedroom door and pushed "his thing" into her vaginal area. Appellant did not achieve penetration. Appellant claimed the victim enticed him by grabbing his penis and taking off her clothes.
The initial probation report recommended that imposition of sentence be suspended and that the defendant be committed for a diagnostic evaluation pursuant to section 1203.03. However, at the time the probation officer wrote this report he had not received a psychological evaluation which was being prepared pursuant to section 288.1 by Dr. Richard L. Drury. Dr. Drury's report stated that although appellant did not have any specific psychiatric disorder which would preclude probation, appellant was "extremely lacking in remorse and ... seemed to have a rather immature attitude toward his offense. [Appellant] implied that it was the girl who initiated the sex contact and that it was largely her fault. The [appellant's] attitude toward his offense is one of massive denial and a tendency to project blame on the victim. Furthermore, he implied ... that there was only one victim, when the police reports seem to indicate that there may have been three victims. [¶] Due to [appellant's] apparent lack [of] remorse and his inability to meaningfully accept responsibility for his actions," Dr. Drury recommended that the court deny probation. (Italics supplied.)
After the probation officer received Dr. Drury's evaluation, he prepared a supplemental report which recommended that appellant be sentenced to state prison for the mitigated term of three years. The probation officer noted that Dr. Drury concluded appellant had a tendency to deny the offense and to project blame on the victim. Moreover, "[appellant] stated to Dr. Drury that there was only [one] victim, when the police reports seem to indicate there may have been three victims, as well as the report from Adelaida Ramos, M.S.W., L.C.S.W. (letter attached)."
*725 At the sentencing hearing, the trial court also considered two letters, one from the victim's mother, and one from a psychotherapist (Adelaida Ramos) who was treating the victim. Both letters indicated that appellant had molested not only the victim, but her two young siblings as well.
At the end of defense counsel's sentencing argument, counsel specifically reminded the court that count 1 had been dismissed without a Harvey waiver. The court responded: "I understand that." Thereafter, the court listed the aggravating and mitigating factors. The court noted that the victim of the crime was particularly vulnerable (Cal. Rules of Court, rule 421(a)(3)),[2] and that appellant laid blame on the victim, thus showing a lack of remorse and understanding of the crime. On the other hand, the court noted appellant had no prior criminal record (rule 423(b)(1)), that he may have been under the influence of alcohol at the time of the crime (rule 423(b)(2)), that he had a favorable employment history, and that he admitted wrongdoing at an early stage (rule 423(b)(3)). The court did not mention the fact that appellant may have molested Maria T.'s siblings. The court then stated: "Considering all of these things, and in particular the matters that I have alluded to that I've read, the professional reports as well, I conclude that there's not a likelihood that the defendant will succeed upon a grant of probation, and the application for probation is denied." The court then sentenced appellant to the midterm of six years in prison.
DISCUSSION
Appellant contends he was denied due process because the medical report and supplemental probation report contained unsubstantiated allegations that he had molested Maria T.'s two siblings. (1) He also contends that the court improperly considered allegations that he had molested Victor T. (Maria's brother) as charged in count 1, thus violating the rule of People v. Harvey, supra.
First, the rule enunciated in People v. Harvey does not apply to a case where the defendant's mental condition is evaluated under section 288.1. Harvey held that in imposing sentence a court may not consider the facts underlying counts dismissed pursuant to a plea bargain, unless the defendant expressly agrees to the contrary. (People v. Harvey, supra, 25 Cal.3d at pp. 758-759.) The Harvey rule is based on the reasonable expectations of the parties that the facts underlying the dismissed counts will not be considered against the defendant. (People v. Franco (1986) 181 Cal. App.3d 342, 349-350 [226 Cal. Rptr. 280], review den.) However, "a defendant who pleads guilty to violating section 288 can have no such reasonable expectation *726 about dismissed counts when his plea is viewed in the context of a statute (§ 288.1) requiring a report on his current mental condition as it bears on his suitability for probation." (Franco, at p. 350, fn. omitted.) Harvey does not apply in this case because "in denying or granting probation in a section 288 case, one of the primary concerns is the defendant's mental condition. To limit the expert preparing the psychiatric report to the specific facts of the particular offense(s) would hamper both the expert and the sentencing court." (Franco, supra, at p. 350.) Instead, the psychiatrist and sentencing court "must consider the totality of a defendant's behavior and course of conduct of which the particular offense[] logically is a part." (Ibid.) Thus, there was no (and could be no) violation of Harvey in this case.
(2) Nevertheless, appellant contends the court could not consider the allegations that he had molested Maria's two siblings because those allegations were unsubstantiated. Although an applicant for probation is not entitled to the same procedural safeguards and evidentiary rules which apply in a trial on the issue of guilt, "[t]here must be some substantial basis for believing the information contained in the probation report is accurate and reliable...." (People v. Calloway (1974) 37 Cal. App.3d 905, 908 [112 Cal. Rptr. 745], citing People v. Peterson (1973) 9 Cal.3d 717, 726-727 [108 Cal. Rptr. 835, 511 P.2d 1187].)[3] We believe there was such a "substantial basis" in this case. In his supplemental probation report, the probation officer specifically cited an attached letter from the children's therapist to support an allegation that "there may have been three victims." The letter from the therapist states that, according to Maria T. and her two siblings, they were "repeatedly sexually abused by [appellant] in their home where they reside with their mother." The letter then goes on to describe the "post-abuse" symptoms that each child suffers. In our view, this letter which repeated firsthand allegations from the victims provided a "substantial basis" for the allegations in the supplemental probation report. (See People v. Tobia (1979) 98 Cal. App.3d 157, 165 [159 Cal. Rptr. 376].)
Moreover, even assuming there was no "substantial basis" for the allegations that appellant had abused the two other children, we would still affirm the sentence. There is no indication the trial court relied on this information in imposing sentence. To the contrary, the court acknowledged that it was bound by Harvey not to consider count one (the molestation of Victor T.) and, in passing sentence, the court did not mention the fact that appellant *727 may have molested Maria's siblings. (See People v. Tobia, supra, 98 Cal. App.3d at p. 165; People v. Calloway, supra, 37 Cal. App.3d at p. 909.) There is no reason to believe that the trial court, in referring to "the matters ... I've read [including] the professional reports," was referring to the allegations to which appellant objects. (Tobia, supra, at p. 165.)
The judgment is affirmed.
Merrill, J., and Werdegar, J., concurred.
NOTES
[1] Unless otherwise indicated, all further statutory references are to the Penal Code.
[2] All further rule references are to the California Rules of Court.
[3] Although appellant is not challenging the scope of the evidence offered, but rather its reliability, we note that "[t]he scope of information a sentencing court may consider is very broad, and includes the circumstances surrounding the crime and facts relating to the defendant which are not directly connected to commission of the crime for which he is being sentenced." (People v. Stanley (1984) 161 Cal. App.3d 144, 150 [207 Cal. Rptr. 258].)
|
620 F.Supp. 657 (1985)
STOUTCO, INC., Plaintiff,
v.
AMMA, INC.; Monarch Distributing; Consumers Buying Service; Monarch American Marketing; American Marketing, Inc.; and John Pinciaro, Defendants.
No. S 83-284.
United States District Court, N.D. Indiana, South Bend Division.
October 30, 1985.
*658 Paul E. Becher, Richard M. Treckelo, Elkhart, Ind., for plaintiff.
James M. Miller, South Bend, Ind., for defendants.
MEMORANDUM AND ORDER
ALLEN SHARP, Chief Judge.
This case was tried by the court, without the intervention of a jury, on September 11, 1985. The parties were given until September 23, 1985 to file post-trial briefs, which they did. On October 7, 1985, the court entered a Memorandum and Order requiring the plaintiff to elect which theory of recovery it wished to pursue, whether on the account or on the dishonored check, or provide the court with authority as to why it should not be required to make such election. On or about October 16, 1985, the plaintiff, by counsel elected to proceed on the Counts relevant to the dishonored *659 check being Counts II and III of plaintiff's complaint. The defendants, John Pinciaro and AMMA, Inc. maintain that plaintiff has failed to prove that it is entitled to relief under Counts II and III of its complaint. Further, defendant John Pinciaro maintains that this court cannot exercise personal jurisdiction over him because he lacks sufficient minimum contacts with the State of Indiana. This memorandum and order is intended to comply with Rule 52 of the Federal Rules of Civil Procedure.
The first issue to be determined by the court is whether the defendant, John Pinciaro, has waived the defense of lack of personal jurisdiction in this case. Rule 12(h)(1) of the Federal Rules of Civil Procedure provides in pertinent part as follows:
A defense of lack of jurisdiction over the person, ... is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under the rule nor included in a responsive pleading ...
Fed.R.Civ.Proc. 12(h)(1). Subdivision (g) of Rule 12 provides in pertinent part as follows:
A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, ...
Fed.R.Civ.Proc. 12(g). The record in this case reveals that all of the defendants in this case, including John Pinciaro, filed a motion to dismiss in this case on the ground of lack of personal jurisdiction on July 11, 1983. The memorandum submitted contemporaneously with said motion was entitled "Memorandum in Support of Defendant AMMA, Inc.'s Motion for Dismissal" and the arguments contained therein were specifically addressed to the issue of whether the court could exercise personal jurisdiction over defendant AMMA, Inc. On September 6, 1983, the defendants filed a supplemental memorandum in support of the motion to dismiss, which again only addressed the propriety of this court exercising personal jurisdiction over defendant AMMA, Inc. Further, on March 28, 1984, defendant John Pinciaro filed a Motion to Dismiss on the ground that plaintiff's complaint failed to state a claim against him. There is no mention in said motion of lack of personal jurisdiction. Accordingly, based on the record as described above, this court finds that the defendant, John Pinciaro, has waived his defense of lack of personal jurisdiction in this case.
A. FINDINGS OF FACT
American Marketing, Inc. and AMMA, Inc. are one and the same entity. In March 1983, American Marketing, Inc. placed an order with the plaintiff for product in the total amount of $38,072.88. Said product was delivered to and retained by defendants and plaintiff's Invoice No. 34283, dated March 8, 1983 was issued to defendants. Defendants paid the sum of $333.34 on said invoice and the principal sum of $37,739.46 remains unpaid.
On March 2, 1983, check number 2691, drawn on AMMA, Inc.'s account in Connecticut and signed by defendant John Pinciaro as President of AMMA, Inc. was issued, payable to plaintiff in the sum of $37,000.00. Said check was sent to plaintiff and arrived at Stoutco on March 4, 1983. From March 11 through March 13, 1983, a trade show was held in Baltimore, Maryland. Defendant John Pinciaro, together with another representative of AMMA, Inc., Andrew Tournas, attended said trade show. Representatives of Stoutco, Inc., namely, Richard Ouding and David Rabias also attended the trade show in Baltimore. During the trade show, Richard Ouding informed Mr. Pinciaro and Mr. Tournas that Stoutco, Inc. had decided that it was not going to renew the letter of agreement with AMMA, Inc. and told Mr. Tournas that a letter advising AMMA, Inc. of the decision not to renew the agreement would be forthcoming. Accordingly, Mr. Pinciaro and Mr. Tournas began contacting *660 manufacturers at the trade show who could offer a substitute of the line of products being purchased from Stoutco, Inc.
During the trip back to Connecticut following the Baltimore trade show, Mr. Pinciaro and Mr. Tournas discussed the ramifications of Stoutco, Inc.'s decision not to renew the distributorship. The ramifications discussed included the loss of a significant percentage of AMMA, Inc.'s gross sales without a substitute line of product; the difficulty to be encountered in finding a substitute in time for the approaching sales season; the truckload of merchandise recently received which would suffer the loss of the manufacturer's support and credibility; and the apparent unwarranted termination of the distributorship agreement.
On March 14, Mr. Pinciaro inquired of AMMA, Inc.'s bank whether the March 2, 1983 check to Stoutco, Inc. had cleared. Upon learning that it had not, he caused a stop payment order to be placed on the check. The check in question was presented for payment on March 23, 1983 and was not honored in the usual course of business. Defendants were notified of the dishonor and demand for payment was made on May 5, 1983. None of the defendants have paid said check.
By letter dated March 25, 1983, Stoutco, Inc. informed AMMA, Inc. that it was not going to renew the letter of agreement of April 27, 1982. The letter of March 25, 1983 also contained the following paragraph: "Though we do expect you to see through the unexpired warranty periods of Foxfire products and to handle reasonable warranty claims if any, you may be assured that we will handle them in the same manner with you as has been done in the past." At all relevant times, there were sufficient funds in AMMA, Inc.'s account to cover check No. 2691.
B. CONCLUSIONS OF LAW
Count II of plaintiff's complaint seeks recovery of the face amount of check number 2691, issued by AMMA, Inc. to Stoutco, Inc. dated March 2, 1983, plus interest, court costs and reasonable attorney's fees pursuant to I.C. § 28-2-8-1. That statute has been amended twice since this case was filed but those amendments are not retroactive and thus not applicable to this case. Accordingly, the pertinent part of I.C. § 28-2-8-1 as applicable to this case provided as follows:
A person who, having executed and delivered to another person a check ... without valid legal cause shown stops payment on the check ... is, if found liable under applicable law to the holder on the check or draft in a court action, liable also for: (1) interest ...; (2) court costs ...; and (3) all other costs of collection, including reasonable attorney's fees....
The only disputed issues with respect to this Count are (1) whether the defendants stopped payment on the check "without valid legal cause shown"; and (2) whether defendant John Pinciaro may be held individually liable under the statute.
The term "valid legal cause" is not defined in the statute nor has that term been defined by the courts in Indiana in the context of that statute nor in a similar context. Accordingly, the court must construe or interpret the statute giving the words and phrases their ordinary or usual meaning. See I.C. § 1-1-4-1. Both parties have quoted definitions of the three terms contained in the phrase "valid legal cause" from two different dictionaries. Although the definitions vary a little, the end result is basically the same. The parties differ only as to whether the term should be given an objective or subjective meaning. The defendants maintain that the term should be given a subjective meaning thus requiring a defendant to prove something less than an unbeatable cause of action in favor of the party stopping payment of the check in order to defeat a plaintiff's recovery under I.C. § 28-2-8-1. In support of their argument, the defendants emphasize that the underlying transaction in this case was a commercial one and that it is difficult for one to know at the time the stop-payment decision is being contemplated whether a cause of action exists and that it will prevail on that cause of action. *661 Accordingly, the defendants argue that a court should focus on the knowledge and circumstances apparent to the person considering stop-payment at the time of such consideration. The plaintiff, on the other hand, maintains that a defendant must show that it had a legal right to stop payment on a check in order to avoid liability under I.C. § 28-2-8-1. Giving the words their ordinary and usual meaning and considering the term "valid legal cause" in light of the underlying purposes of the statute, this court finds that a determination of "valid legal cause" in the context of this statute must be done on an objective basis. Thus, in order to avoid liability under I.C. § 28-2-8-1, the defendants must show that they had a legal right to stop payment on the check. The defendants have failed to do so in this case. Their "valid legal cause" was an alleged cause of action against plaintiff for wrongful termination of the distributorship agreement between the parties. The defendants filed a counterclaim on that ground. However, the court found that the nonrenewal did not breach the distributorship agreement and dismissed the counterclaim on July 13, 1985. Accordingly, the defendants stopped payment without valid legal cause.
The other issue to be decided with respect to Count II is whether John Pinciaro can be held individually liable under I.C. § 28-2-8-1 since he was the individual that actually placed the stop-payment order. The plaintiff argues that the rule and analysis used in cases involving criminal liability for check deception should be applied in this case. That rule basically provides that a corporate officer who issues a worthless check in a corporate name may be held personally liable under a criminal check deception statute. See, e.g., Walker v. State, 467 N.E.2d 1248, 1250 (Ind.App. 1984); Cooper v. State, 181 Ind.App. 275, 391 N.E.2d 841 (1979). The rationale underlying that rule is that there is no doctrine of agency in criminal law so that the individual who makes or draws a check in a representative capacity, knowing it will not be honored, i.e. with fraudulent intent, cannot be shielded from criminal responsibility for that act. Walker v. State, 467 N.E.2d at 1250-51. Although those cases involve a check that is dishonored and so does this case, there are differences between cases of criminal check deception and cases under I.C. § 28-2-8-1 that indicate that a different approach to personal liability should be applied.
One major difference is that the statutes involved in Cooper v. State and Walker v. State were criminal statutes and I.C. § 28-2-8-1 provides for civil remedies. An important element in the check deception cases is the fraudulent intent of the maker or drawer of the check. Under I.C. § 28-2-8-1 the intent or knowledge of the maker or drawer of the check is not a critical factor. In this case, the stop-payment order was issued because John Pinciaro believed that the plaintiff had breached an agreement with AMMA, Inc. and that the stop-payment order was therefore warranted. There is no evidence that the stop-payment order was placed on check 2691 to obtain money or property with fraudulent intent.
In Indiana, the law is also clear that a corporate officer or shareholder is not shielded from liability on the basis of his representative capacity when he participates in a tort because an agent is liable for his own torts. See, American Independent Management Systems v. McDaniel, 443 N.E.2d 98, 103 (Ind.App.1982). However, an officer or director of a corporation will not be held independently personally liable for inducing the corporation's breach of a contract if the officer or director is acting within the scope of his official duties on behalf of the corporation. See, e.g., Martin v. Platt, 179 Ind.App. 688, 386 N.E.2d 1026, 1027 (1979). The difficulty in applying the law in this case is with characterizing the actions of John Pinciaro. It would appear that his actions in placing a stop payment on AMMA, Inc.'s check was more analogous to inducing a breach of contract than a tort. However, the court need not decide that issue as the language of I.C. § 28-2-8-1 provides guidance on determining this issue.
*662 The specific language of I.C. § 28-2-8-1 provides that a person "if found liable under applicable law to the holder on the check or draft in a court action" is then also liable for the remedies provided in the section. The court must therefore determine whether John Pinciaro is liable to the plaintiff on the check in question. AMMA, Inc.'s check number 2691 issued to Stoutco, Inc. was signed by John Pinciaro as president of AMMA, Inc. The name of the corporation and its address appeared in the upper left-hand corner of the check. The signature line in the lower right-hand corner of the check contains the signature of John Pinciaro, Pres. Thus, his representative capacity is clearly designated as is the name of the corporation. The Uniform Commercial Code as adopted in Indiana contains a specific provision with respect to the individual liability of an authorized representative signing an instrument in a representative capacity. See I.C. § 26-1-3-403. Under that statute, it is clear that John Pinciaro cannot be held individually liable on the check in question. Accordingly, John Pinciaro cannot be held individually liable on Count II of plaintiff's complaint.
Count III of plaintiff's complaint seeks damages under I.C. § 34-4-30-1 which provides as follows:
If a person suffers a pecuniary loss as a result of a violation of IC 35-43, he may bring a civil action against the person who caused the loss for:
(1) an amount equal to three (3) times his actual damages;
(2) the costs of the action; and
(3) a reasonable attorney's fee.
In this case, the violation forming the basis for the claim under this section is found at I.C. § 35-43-5-5 which provides in pertinent part as follows:
A person who knowingly or intentionally issues or delivers a check .... knowing that it will not be paid or honored by the credit institution upon presentment in the usual course of business, commits check deception, a Class A misdemeanor.
This language clearly indicates that the focus must be on the knowledge or intent of the person issuing or delivering the check at the time of issuance or delivery. Subsection (c) of I.C. § 35-43-5-5 provides certain presumptions constituting prima facie evidence with respect to knowledge on the part of the party issuing the check. Those presumptions, however, can be overcome by evidence that the defendant had no such knowledge or intent at the time of issuance or delivery. The facts in this case indicate that AMMA, Inc. had sufficient funds in its account at the time the check was issued and delivered to plaintiff, the day the stop-payment order was issued and the day the check was actually presented for payment. Furthermore, the decision by AMMA, Inc.'s representatives to issue the stop-payment order was not made until 12 days after the check had been written and mailed, and then only after receiving oral notice from plaintiff that the distributorship agreement would not be renewed. Accordingly, the plaintiff has failed to establish that it is entitled to any relief under Count III of its complaint.
For the foregoing reasons, judgment is hereby entered in favor of plaintiff, Stoutco, Inc., and against defendant, AMMA, Inc., on Count II of plaintiff's complaint in the principal sum of Thirty-seven Thousand Dollars ($37,000.00), plus interest at the rate of eighteen percent (18%) per annum from March 2, 1983 until payment is made in full together with court costs and other costs of collection including reasonable attorney's fees. SO ORDERED.
|
17‐3917
Astoria Gen. Contracting Corp. and Dimitrios Koutsoukos v. City of New York Office of the Comptroller, et. al.
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 Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 29th day of October, two thousand
eighteen.
PRESENT: JOHN M. WALKER, JR.,
DENNIS JACOBS,
GUIDO CALABRESI,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
ASTORIA GENERAL CONTRACTING CORP. AND
DIMITRIOS KOUTSOUKOS,
Plaintiffs‐Appellants,
‐v.‐ 17‐3917
CITY OF NEW YORK OFFICE OF THE
COMPTROLLER, SCOTT M. STRINGER, AS
COMPTROLLER OF THE CITY OF NEW YORK,
1
JOHN C. LIU, AS FORMER COMPTROLLER,
SAMUEL PEPPER, AS WAGE INVESTIGATOR,
NEW YORK CITY DEPARTMENT OF EDUCATION,
DAVID N. ROSS, AS EXECUTIVE DIRECTOR OF
THE NEW YORK CITY DEPARTMENT OF
EDUCATION, JAY MILLER, JOHN SHEA, JOSE
QUIROZ, JOHNNY CISNEROS, THOMAS FENNELL
AND VOLKERT BRAREN,
Defendants‐Appellees,
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR PLAINTIFFS‐APPELLANTS: JOSEPH O. GIAIMO, Giaimo
Associates, LLP; Manhasset, NY.
FOR DEFENDANTS‐APPELLEES ELINA DRUKER, Assistant
Corporation Counsel (Richard
Dearing, of Counsel, on the brief), for
Zachary W. Carter, Corporation
Counsel of the City of New York;
New York, NY.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Buchwald, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court is
AFFIRMED.
Astoria General Contracting Corp. (“Astoria General”) and Dimitrios
Koutsoukos appeal from a judgment of the United States District Court for the
Southern District of New York (Buchwald, J.) dismissing for failure to state a
claim their complaint alleging substantive and procedural due process violations
by municipal authorities. The claim for money damages was dismissed on the
grounds of issue and claim preclusion; the claims for injunctive and declaratory
relief were dismissed pursuant to Younger abstention. We assume the parties’
2
familiarity with the underlying facts, the procedural history, and the issues
presented for review.
Astoria General, a general contractor wholly‐owned by Koutsoukos,
entered into three contracts in 2007 with the Department of Education (“DOE”)
to repair and install rolling doors in public schools throughout New York City.
In 2012, Johnny Cisneros, a wage investigator for the DOE, began investigating
the company. The DOE concluded that Astoria General had breached various
contractual provisions (including those that required Astoria General to pay
prevailing wages) and terminated the contracts. During the investigation, the
Comptroller directed DOE to withhold over $1 million in payments due to
Astoria General. Plaintiffs allege that Cisneros induced three employees to sign
false wage complaints by threatening their jobs and promising payments to them
out of funds withheld from Astoria General.
The DOE referred the prevailing wage law violation to the Comptroller,
which commenced administrative proceedings under Labor Law § 220. After a
hearing before the New York City Office of Administrative Trials and Hearings,
the administrative law judge (“ALJ”) found that Plaintiffs had violated the
prevailing wage law and falsified payroll records. Astoria Gen. Contr. Corp.,
OATH Index No. 1257/14 at *31–32 (July 20, 2015). The Appellate Division, First
Department affirmed the decision in relevant part. Matter of Astoria Gen. Contr.
Corp. v. Stringer, 144 A.D.3d 603 (1st Dep’t 2016).
With payments from DOE withheld, Astoria General defaulted on its
payments to a subcontractor, Gym Door Repairs, Inc., which sued Astoria
General. Astoria General and Koutsoukos in turn filed a third‐party complaint
against DOE and its executive director, David Ross, alleging (inter alia) that the
DOE violated their due process rights under the Fourteenth Amendment and
Article I, Section 6 of the New York State Constitution. The state trial court
dismissed the due process claim, Gym Door Repairs, Inc. v. Astoria Gen. Contr.
Corp., 2014 N.Y. Misc. LEXIS 33758, at *3 (Sup. Ct. Queens Co. June 30, 2014),
and the Appellate Division, Second Department affirmed in relevant part, Gym
Door Repairs, Inc. v. Astoria Gen. Contr. Corp., 144 A.D.3d 1093 (2d Dep’t 2016).
3
While the administrative and state court actions were pending, Plaintiffs
brought this action pursuant to 42 U.S.C. §§ 1983 and 1988 asserting procedural
and substantive due process claims under the Fourteenth Amendment. The
procedural due process claim alleged that Defendants “unlawfully and
fraudulently conspired to terminate plaintiff’s contracts with DOE and
confiscated its funds” and “denied pre‐deprivation safeguards” and adequate
“post‐deprivation process.” Br. of Appellants 16. The substantive due process
claim alleged that “defendants’ actions were arbitrary and conscience‐shocking.”
Id. Plaintiffs seek declaratory and injunctive relief, and money damages.
We review de novo the dismissal of a complaint under Federal Rule of
Civil Procedure 12(b)(6), accepting all factual allegations as true and drawing all
reasonable inferences in favor of the plaintiff. Ahlers v. Rabinowitz, 684 F.3d 53,
60 (2d Cir. 2012). To survive a Rule 12(b)(6) motion to dismiss, the complaint
must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The doctrine of collateral estoppel bars re‐litigation of a legal or factual
issue that was previously decided if: “(1) the issue ‘has necessarily been decided
in the prior action and is decisive of the present action,’ and (2) there has been ‘a
full and fair opportunity to contest the decision now said to be controlling.’”
Giakoumelos v. Coughlin, 88 F.3d 56, 59 (2d Cir. 1996) (quoting Schwartz v.
Public Administrator, 24 N.Y.2d 65, 71 (1969)).
The administrative court decision satisfies the elements of collateral
estoppel and has preclusive effect. “New York courts will give administrative
determinations preclusive effect if made in a quasi‐judicial capacity and with a
full and fair opportunity to litigate the issue.” Burkybile v. Bd. of Educ. of
Hastings‐On‐Hudson Union Free Sch. Dist., 411 F.3d 306, 312 (2d Cir. 2005).
Plaintiffs’ procedural and substantive due process claims hinge on the allegation
that Defendants engaged in a conspiracy to target them in a prevailing wage
investigation. But Plaintiffs raised the identical issue in the administrative
proceeding, arguing that “the investigation was a result of a conspiracy between
the DOE and the Comptroller” and that the three employees “were lying because
they expected to get $300,000 each based on what Cisneros told them.” Astoria
Gen. Contr. Corp., OATH Index No. 1257/14 at *24–25 (July 20, 2015). Finding
4
that that the investigators were “professional and articulate” and did not
“appear[] to have any personal animus or bias toward respondents,” and that the
employees’ testimony was “generally reliable” as well as corroborated, the ALJ
ruled that the “assertion that there was a conspiracy personally motivated by the
investigators” was “without merit.” Id. at *25–26. Plaintiffs’ arguments
contesting the decision’s preclusive effect as to the existence of a conspiracy are
without merit.
Likewise, the state court action afforded a full and fair opportunity to
litigate the issue of whether Plaintiffs were deprived of adequate legal process
when the DOE withheld payments and terminated the contracts. Plaintiffs raised
the identical arguments that the DOE violated their due process rights “by failing
to respond to a notice of protest, failing to afford [Astoria General] a hearing, and
failing to produce evidence of wrongful conduct.” Gym Door Repairs, Inc., 2014
N.Y. Misc. LEXIS 33758 at *3. The court ruled that there was no violation of
Astoria General’s due process rights because “[t]he funds allegedly owed to
[Astoria General] have been withheld by the Comptroller,” who was “statutorily
authorized to withhold moneys due to a contractor pending an investigation
regarding insufficient wages.” Id. at *3–4 (internal quotation marks omitted). In
affirming the dismissal, the Second Department held that “the availability of an
ordinary breach of contract action is sufficient to satisfy the necessary
requirements of due process.” Gym Door Repairs, Inc., 144 A.D.3d at 1097.
Plaintiffs’ arguments disputing the preclusive effect of the state court’s
determination again fail.
We have considered Plaintiffs’ remaining arguments and conclude that
they are without any merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
5
|
383 F.3d 164
UNITED STATES of Americav.Lavern MOORER, Appellant.
No. 03-2476.
United States Court of Appeals, Third Circuit.
Argued May 5, 2004.
Filed September 20, 2004.
Appeal from the United States District Court for the District of Delaware, Sue L. Robinson, J.
1
Gavin P. Lentz, (Argued), David P. Heim, Bochetto & Lentz, P.C., Philadelphia, PA, for Appellant.
2
Edmond Falgowski, Assistant United States Attorney, District of Delaware, Elizabeth A. Olson (Argued), Appellate Section, Criminal Division, United States Department of Justice, Washington, DC, for Appellee.
3
Before SLOVITER and FUENTES, Circuit Judges, and POLLAK, District Judge.*
OPINION OF THE COURT
4
FUENTES, Circuit Judge.
5
In October 2001, Appellant Lavern Moorer was charged with possession with the intent to distribute cocaine and possession of a firearm. A year later, Moorer pled guilty and was sentenced to a term of 120 months in prison. Factored into this sentence was the District Court's decision to designate Moorer a "career offender," a designation arrived at by including Moorer's 1990 conviction for aggravated assault. The principal issue on appeal is whether Moorer's 1990 conviction counts toward establishing his career offender status, even though Moorer was only 17 years old at the time. Because we find that Moorer's 1990 conviction is a "prior felony conviction" for purposes of career offender status, we affirm the judgment of the District Court.
I. Background
6
The account of Moorer's relevant criminal history begins in 1989, at which time he was serving a term of juvenile confinement for possession with intent to deliver cocaine. In an attempt to escape from his juvenile detention, Moorer assaulted a corrections officer, and was convicted of this offense in New Jersey Superior Court in May 1990. The court sentenced Moorer to an indeterminate term of incarceration (not to exceed five years) at Yardville Youth Reception Center, a facility housing older juveniles and younger adults under the control of the New Jersey Department of Corrections. In 1994, while still on parole for his 1990 conviction, Moorer was convicted of possession with intent to deliver marijuana and cocaine, both controlled substances, within a school zone. Moorer was sentenced to five years in prison for that offense. Finally, in August 2001, Moorer was arrested and charged with procuring, with the intent to distribute, almost 6 kilograms of cocaine, and possession of a .380-caliber semi-automatic pistol.
7
Moorer pled guilty to the 2001 offenses of possession with intent to distribute more than 500 grams of cocaine and unlawful possession of a firearm in August 2002. Moorer's Presentence Investigation Report ("PSR") initially assigned him a criminal history category of V. However, pursuant to U.S. Sentencing Guidelines Manual (hereinafter "U.S.S.G.") § 4B1.1(a), the PSR dubbed Moorer a "career offender:"
8
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
9
Specifically, the PSR counted as Moorer's "two prior felony convictions" 1) his 1990 conviction for aggravated assault committed while escaping from a juvenile detention facility; and 2) his 1994 conviction for possession with intent to deliver marijuana and cocaine within a school zone. As such, Moorer's criminal history category was increased to VI. Id. at § 4B1.1(b). Using an offense level of 31 for a Category VI offender, the District Court calculated a sentence range of 188-235 months. The Court then granted a downward departure for substantial assistance to the government, resulting in a final sentence of 120 months. Moorer timely appealed. The primary issue on appeal is whether Moorer's 1990 conviction should have counted toward career offender status.
II. Jurisdiction
10
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction over the District Court's sentencing decision pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
III. Standard of Review
11
We apply a plenary standard of review over the District Court's interpretation of the Sentencing Guidelines. E.g., United States v. Lennon, 372 F.3d 535, 538 (3d Cir.2004).
IV. Discussion
12
Moorer's main argument on appeal is that his 1990 conviction should not count toward career offender status because he was sentenced as a juvenile rather than an adult.1 However, Moorer does not contest that he was convicted as an adult. Rather, Moorer contends that a conviction is a "prior felony conviction" under § 4B1.1(a) only if both 1) the conviction occurs in an adult proceeding (instead of in juvenile court), and 2) the conviction results in an adult sentence. Moorer asserts that his sentence for the 1990 conviction for aggravated assault was served concurrently with a prior sentence that he was already serving pursuant to a juvenile adjudication, and was therefore a juvenile sentence.
13
In our view, the Guidelines belie Moorer's premise that an adult conviction must be accompanied by an adult sentence to count toward career offender status. The Guidelines offer the following definition of "prior felony conviction" for purposes of § 4B1.1(a):
14
"Prior felony conviction" means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed.... A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted.
15
U.S.S.G. § 4B1.2, cmt. n.1 (emphasis added) (hereinafter "Note 1"). Note 1 clearly defines a "prior felony conviction" purely in terms of the kind of conviction the defendant had, not the kind of sentence. Note 1 specifically explains that a prior felony conviction includes any state conviction that was counted as an adult conviction by the laws of that state "regardless of the actual sentence imposed." Id. While it is true, as Moorer asserts, that the phrase "sentence of imprisonment" implies incarceration in an adult facility,2 where or for how long the defendant is actually sentenced is of no import. Instead, Note 1 focuses on what punishment could follow the conviction for such an offense, and includes in the career offender calculation federal and state adult convictions for all offenses, felonies or otherwise, which could be punished by death or a term of imprisonment of a year or more. Note 1 does not impose a separate sentence requirement but places the entire focus on the conviction itself, defining includable convictions by the extent to which they can be punished in the relevant jurisdiction. Accordingly, the clear language of Note 1 refutes Moorer's attempt to make his sentence classification the fulcrum of his career offender determination.
16
Ignoring Note 1, Moorer attempts to import purportedly helpful language from U.S.S.G. § 4A1.2. First, Moorer points to U.S.S.G. § 4B1.2, cmt. n.3 (hereinafter "Note 3"), which instructs: "The provisions of § 4A1.2 ... are applicable to the counting of convictions under § 4B1.1." § 4A1.2(d)(1), in turn, states that an offense committed prior to age eighteen counts toward one's criminal history when "the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month." Moorer, however, relies on § 4A1.2, cmt. n.7 (hereinafter "Note 7"), which states that "for offenses committed prior to age eighteen, only those that resulted in adult sentences of imprisonment exceeding one year and one month, or resulted in imposition of an adult or juvenile sentence or release from confinement on that sentence within five years of the defendant's commencement of the instant offense are counted." Moorer seizes upon the phrase "adult sentences" and asks us to follow the Fourth Circuit's rule from United States v. Mason, 284 F.3d 555, 559 (4th Cir.2002), that a conviction before age eighteen "counts only if [the defendant] was both convicted and sentenced as an adult" (emphasis in original).
17
We respectfully decline to follow the Fourth Circuit's view on this issue, as we agree with the Ninth Circuit that the phrase "adult sentences of imprisonment" in Note 7 can naturally be read "to be a shorthand reference to those defendants who were `convicted as an adult and received a sentence of imprisonment.'" United States v. Carrillo, 991 F.2d 590, 593-94 (9th Cir.1993) (quoting U.S.S.G. § 4A1.2(d)(1)); accord United States v. Pinion, 4 F.3d 941, 945 (11th Cir.1993). We believe that Carrillo' s interpretation of Note 7 is preferable to Mason' s interpretation for two reasons. First, and most importantly, a "sentenced as an adult" requirement in Note 7 would directly conflict with Note 1. As discussed above, Note 1 dictates that the career offender inquiry examine only whether the convictions in question are adult convictions, and not what kind of sentences resulted from those convictions. In light of this dictate, it would make little sense for Note 3 to then import a contradictory instruction from § 4A1.2, which is the result under the rule in Mason. In contrast, taking Carrillo' s approach to Note 7 would harmonize it with Note 1 by placing the focus of the career offender inquiry on the nature of the convictions.
18
Second, requiring adult sentencing in addition to an adult conviction would add a significant new element to criminal history calculations that is unstated in the actual text of the Guidelines. Carrillo, 991 F.2d at 594. The text of § 4A1.2(d)(1) encompasses all situations where "the defendant was convicted as an adult" and received a sentence of requisite length. If the Sentencing Guidelines Commission had wished to require both an adult conviction and an adult sentence for criminal history purposes, it could have easily written § 4A1.2(d)(1) to reflect that wish: i.e., "If the defendant were convicted and sentenced as an adult to a term of imprisonment ..." Based on these reasons, we hold that an adult conviction qualifies as a "prior felony conviction" for purposes of career offender status whether that conviction results in an "adult" or "juvenile" sentence. Because Moorer does not contest that his 1990 conviction was an adult conviction, we find that it properly counted toward his career offender status.
19
In closing, we note our disagreement with Moorer's contention that his 1990 conviction resulted in a "juvenile sentence" because that sentence was served at Yardville Youth Reception Center, and because it was made to run concurrently with his remaining juvenile disposition. As the government points out, New Jersey law makes it clear that once a juvenile is referred to an adult court, his entire case falls under the Code of Criminal Justice rather than the Code of Juvenile Justice. N.J. Stat. Ann. § 2A:4A-26; see also, e.g., State in Interest of A.B., 214 N.J.Super. 558, 520 A.2d 783, 787 n. 3 (N.J.Super.Ct.App.Div.1987). When such a referral occurs, the juvenile's case is treated in the adult court "in the same manner as if the case had been instituted in that court in the first instance." N.J. Stat. Ann. § 2A:4A-28. In this case, we have no reason to believe that Moorer's sentence was anything other than an adult sentence. Indeed, we have found no authority under New Jersey law that would permit a judge to impose a juvenile "sentence" based on an adult conviction for a crime.3 This stands in marked contrast to the West Virginia law discussed in Mason, which explicitly allows for a defendant under eighteen to be sentenced under juvenile delinquency law even after being convicted under adult jurisdiction. 284 F.3d at 561 (citing State v. Highland, 174 W.Va. 525, 327 S.E.2d 703, 706 (1985)). The fact that Moorer was remanded to Yardville to serve out the sentence for his 1990 conviction actually undermines his argument, because Yardville is a facility that houses adults and is under the control of the Department of Corrections rather than the Department of Human Services. In short, Moorer's "juvenile sentence" argument is unavailing both on legal principles and on the facts of this particular case.
V. Conclusion
20
After carefully considering the arguments discussed above, we affirm the District Court's sentencing judgment.4
Notes:
*
Honorable Louis H. Pollak, Senior District Judge for the United States District Court for the Eastern District of Pennsylvania, sitting by designation
1
Moorer nominally presents a second argument based on Due Process, but this argument is merely a reiteration of his claim that he should not be considered a career offender because his 1990 conviction resulted in a juvenile sentence
2
In New Jersey, the term "imprisonment" is not customarily used when referring to a juvenile disposition. Juvenile custodial adjudications are described instead in terms of "incarceration."See N.J. Stat. Ann. § 2A:4A-43, 44.
3
Under the New Jersey Code of Juvenile Justice, juveniles who are adjudicated delinquent are not sentenced but rather are subject to a "dispositional hearing." N.J. Stat. Ann. § 2A:4A-41
4
Moorer submitted a pro se brief arguing that underBlakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), a jury should have determined whether he was a career offender. We reject this argument, as Blakely governed only factual determinations, and Moorer's status as a career offender was purely a matter of law under the Sentencing Guidelines.
|
535 U.S. 1074
NWANZEv.PHILIP MORRIS INC. ET AL.
No. 01-5719.
Supreme Court of the United States.
May 13, 2002.
1
534 U. S. 962. Petitions for rehearing denied.
|
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID MERRITT; SALMA MERRITT, No. 16-16311
Plaintiffs-Appellants, D.C. No. 5:09-cv-01179-BLF
v.
MEMORANDUM*
COUNTRYWIDE FINANCIAL
CORPORATION, a Delaware corporation;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Submitted August 22, 2019**
Before: LEAVY, TROTT, and SILVERMAN, Circuit Judges.
Salma Merritt and David Merritt appeal pro se from the district court’s
judgment dismissing their action alleging violations of federal and state law arising
from the purchase and financing of their residence. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th
Cir. 2010) (dismissal under Fed. R. Civ. P. 12(b)(6)); Jones v. Blanas, 393 F.3d
918, 926 (9th Cir. 2004) (dismissal based on applicable statute of limitations);
Maldonado v. Harris, 370 F.3d 945, 949 (9th Cir. 2004) (dismissal based on res
judicata). We may affirm on any basis supported by the record. Thomson v. Paul,
547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
The district court properly dismissed the Merritts’ claims against defendant
John Benson as barred by the doctrine of res judicata because the claims were
based on the same primary right the Merritts asserted in a prior state court action.
See Manufactured Home Cmtys., Inc. v. City of San Jose, 420 F.3d 1022, 1031 (9th
Cir. 2005) (“To determine the preclusive effect of a state court judgment federal
courts look to state law. . . . California’s res judicata doctrine is based on a primary
rights theory.” (citation omitted)); In re Estate of Dito, 130 Cal. Rptr. 3d 279, 286
(Ct. App. 2011) (“Under the doctrine of res judicata, all claims based on the same
cause of action must be decided in a single suit; if not brought initially, they may
not be raised at a later date.” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion by taking judicial notice of
certain state court documents without converting Benson’s motion to dismiss into a
motion for summary judgment. See Lee v. City of Los Angeles, 250 F.3d 668, 688-
2 16-16311
89 (9th Cir. 2001) (setting forth standard of review and describing documents that
a district court may take judicial notice of when ruling on a Rule 12(b)(6) motion).
The Merritts’ challenges to the state court proceedings fail because the
district court lacked authority to review state court decisions or issues “inextricably
intertwined” with those decisions. See Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir.
2003) (“A federal district court dealing with a suit that is, in part, a forbidden de
facto appeal from a judicial decision of a state court must refuse to hear the
forbidden appeal. As part of that refusal, it must also refuse to decide any issue
raised in the suit that is ‘inextricably intertwined’ with an issue resolved by the
state court in its judicial decision.”); see also Henrichs v. Valley View Dev., 474
F.3d 609, 616 (9th Cir. 2007) (Rooker-Feldman doctrine barred plaintiff’s claim
because alleged legal injuries arose from the “state court’s purportedly erroneous
judgment” and the relief he sought “would require the district court to determine
that the state court’s decision was wrong and thus void”).
We reject as without merit the Merritts’ contentions that the district court
erred by failing to explain the primary rights doctrine to the Merritts’ prior to
dismissal and by failing to address issues related to claims precluded by the state
court ruling.
The district court properly dismissed the Merritts’ claims for alleged
violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”)
3 16-16311
because the claims are time-barred and the Merritts failed to allege facts sufficient
to state plausible claims for relief. See Pincay v. Andrews, 238 F.3d 1106, 1108-09
(9th Cir. 2001) (civil RICO claims have a four-year statute of limitations, which
begins to run when a plaintiff knows or should have known of the injury
underlying the action); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.
2010) (although pro se pleadings are liberally construed, a plaintiff must still
present factual allegations sufficient to state a plausible claim for relief); Kearns v.
Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (Fed. R. Civ. P. 9(b)’s
particularity requirement applies to RICO claims and state law claims that allege
fraudulent conduct).
The district court properly deemed certain claims abandoned because the
Merritts failed to reallege those claims in their third amended complaint. See First
Resort, Inc. v. Herrera, 860 F3d 1263, 1274 (9th Cir. 2017) (failure to replead
claims in an amended complaint amounts to abandonment of those claims).
We reject, as unsupported by the record, the Merritts’ contention that the
district court improperly applied a summary judgment standard when dismissing
under Rule 12(b)(6) plaintiff’s claims arising under RICO, the Fair Housing Act
and the Equal Credit Opportunity Act.
We also reject, as unsupported by the record, the Merritts’ contention that
the district court failed to consider whether the Merritts’ home equity line of credit
4 16-16311
is subject to rescission under the Truth in Lending Act.
The district court did not abuse its discretion by denying the Merritts leave
to file a fifth amended complaint because the Merritts already had multiple
opportunities to amend, their proposed amended complaint would not cure the
deficiencies in the previous complaints, and the addition of defendants would
cause prejudice and delay. Yakama Indian Nation v. State of Wash. Dep’t of
Revenue, 176 F.3d 1241, 1246 (9th Cir.1999) (leave not granted if amendment
“would cause prejudice to the opposing party ... is futile, or creates undue delay.”);
see also Chodos v. West Publ’g Co., Inc., 292 F.3d 992, 1003 (9th Cir. 2002)
(“[W]hen a district court has already granted a plaintiff leave to amend, its
discretion in deciding subsequent motions to amend is particularly broad” (citation
and internal quotation marks omitted)); Chappel v. Lab. Corp. of Am., 232 F.3d
719, 725-26 (9th Cir. 2000) (standard of review).
We do not consider arguments raised for the first time on appeal or matters
not specifically and distinctly raised and argued in the opening brief. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
The Merritts’ motion to take judicial notice (Docket Entry No. 59) is denied
as unnecessary.
AFFIRMED.
5 16-16311
|
66 F.3d 341
U.S.v.MacElvain
NO. 94-6424
United States Court of Appeals,Eleventh Circuit.
Aug 23, 1995
Appeal From: M.D.Ala., No. 93-00317-CR-N
1
AFFIRMED.
|
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIETEX INTERNATIONAL LTD.,
Appellant
v.
PRECISION FABRICS GROUP, INC.,
Appellee
______________________
2016-1748
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2014-
01248.
______________________
JUDGMENT
______________________
JAMAICA P. SZELIGA, Seyfarth Shaw LLP, Washington,
DC, argued for appellant. Also represented by NEIL C.
JONES, Nelson Mullins Riley & Scarborough, LLP, Green-
ville, SC; JAMES ROBERTSON, J.M. Robertson, LLC, Bir-
mingham, AL.
LYNNE A. BORCHERS, Sage Patent Group, PLLC, Ra-
leigh, NC, argued for appellee. Also represented by PETER
DANIEL SIDDOWAY.
______________________
THIS CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
PER CURIAM (DYK, O’MALLEY, and WALLACH, Circuit
Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
March 10, 2017 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
|
268 Md. 26 (1973)
299 A.2d 811
COOK
v.
SHERRY ET AL.
[No. 169, September Term, 1972.]
Court of Appeals of Maryland.
Decided February 6, 1973.
The cause was argued before MURPHY, C.J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.
Paul W. Barnett for appellant.
J. Frederick Sharer, City Solicitor, for appellees.
*27 McWILLIAMS, J., delivered the opinion of the Court.
As the late William Schwenck Gilbert once observed, the policeman's lot is not a happy one.[1] The appellant (Cook) is a policeman and he is here because he is far from happy. The architect of his disgruntlement is the appellee Sherry, a retired policeman now Commissioner of Police and Fire of the City of Cumberland; the reason is his demotion from lieutenant to sergeant. Since we think he has indeed been put upon we shall reverse the order of the chancellor, Getty, J., sustaining the demotion.
Cook entered the service of his city in 1956. He was made a corporal in 1962, a sergeant in 1966. In November 1969 he was promoted to the rank of lieutenant. The chancellor said it was conceded that he "is an excellent police officer" and that he had done "an outstanding job in setting up and operating the training division." The chancellor went on to say that "his merit and efficiency ratings attest to his ability." Cook was not one of Sherry's heroes, however. Sherry was a lieutenant when Cook joined the department. Later on he rose to assistant chief. After he retired he became a candidate for election to the office of Commissioner of Police and Fire. The testimony of Officer Gerald Lewis suggests there was little love lost between Sherry and Cook. Lewis said that in a chance encounter he congratulated Sherry on the fine showing he had made in the primary election of 1970, whereupon Sherry confided to him that if he was successful in the general election (he was) "Mr. Giles and Mr. Cook are going to get theirs they're riding high on the hog right now but when I get finished with them, they're really going to come down to my level." Sherry denied making any such statements.
On 10 August 1970 Cook suffered a heart attack. When his accumulated vacation and sick leave were exhausted he asked for and was granted a leave of absence of one year from 7 October 1970. In January 1971 he requested *28 light duty status, pursuant to Rule X, Section 2, of the city's Civil Service Regulations. His request was denied. Sherry said, "We ... [had] no light duty as lieutenant." Oddly enough he admitted that he did not consider the job of training officer to be arduous duty and that Cook could again have performed that duty. But he said, "He is a lieutenant [and] he has to work wherever the Chief of Police or I put him." Asked if Cook had been given any preference as a lieutenant, as provided in Rule X, Section 2, Sherry said, "No. I done had a lieutenant fill his place."
Cook, apparently fully recovered, returned to duty on 4 October 1971. Three days later Sherry demoted him to sergeant and assigned him to duty as Desk Sergeant on the 4:00 p.m. to midnight shift. Cook's request to the Civil Service Commission for a hearing was denied. The reason given was "that the matter is a result of administrative action under specific ordinances[2] of the Mayor and City Council, and the Civil Service Commission has no jurisdiction." On 22 November Cook filed his appeal in the Circuit Court for Allegany County. The chancellor decided that his petition "must regrettably be denied."
The appellees[3] argue here, as they did below, that it was within Sherry's discretion, under the Civil Service Regulations, to demote Cook at any time before the expiration of an alleged "one year period of probation" following his promotion. It will be recalled that he was promoted in November 1969, that his heart attack occurred in August 1970, and that on 7 October his accumulated vacation and sick leave expired. The Commission took "the position that an employee is in a period of probation for a period of one year from date of promotion, unless the probationary period is interrupted by an absence, in which case the probationary period is extended accordingly." So reckoned, Cook's "probationary period," which *29 was "extended" during his incapacity, would not have expired until early November 1971, thereby making him subject to demotion on 7 October 1971. Since we see it quite differently, we shall take a look at the applicable rules, regulations and ordinances.
Rule IX of the Regulations has as its subtitle, "Discharges Suspensions Demotions." Section 2 deals with "Demotions"; subsections (a) and (b) thereof are as follows:
"(a) The provisions of Section 36 (g), (h) and (i) [of the City Charter] shall also be applicable in all cases of demotion.
"(b) A `demotion' is a reduction in wages and/or a reduction in rank or rating."
Section 36 (g) of the Charter provides that:
"All cases of Suspensions or Discharges of a Civil Service employee shall be reported to the Commission within three (3) days after said Suspension or Discharge has taken place; the report shall contain full details of the conditions. It shall be within the power of the Commission to call a hearing in the case, and if the details brought out justify, the Suspension or Discharge may be voided or the punishment may be changed."
It is agreed that no report of Cook's demotion was ever submitted to the Commission, that no hearing was held, and that his own request for a hearing was denied.
Subsections (a) and (b) of Section 5 of Rule VI provide as follows:
"Section 5. PROBATIONARY PERIOD
"(a) When a vacancy occurs or a new position is created in the Police and Fire Departments, the appointing authority shall fill such position provisionally by the appointment of one of the persons certified to him by the Commission, *30 which appointment shall be on probation for a period of one (1) year.
"(b) At or before the expiration of the one (1) year period of probation the head of the Department in which such candidate is employed, or the Mayor and City Council by a majority vote, may, in the exercise of their discretion, remove the said probationer."
Cook argues, correctly we think, that the probationary period of one year required by Rule VI applies to initial appointments only. The discretion lodged in the department head is limited to the "remov[al] of the said probationer." Nothing is said about demotion. Rule VII deals with "Promotions" but, significantly, there is no mention of a probationary period. Even more significant is the fact that the Commission, in April 1972, added a new section to Rule VII providing a 90 day probationary status for promoted employees.[4] It will be observed that for unsatisfactory performance the promoted employee can be "returned to his former status" but not "remove[d]" as permitted by Rule VI, Section 5, subsection (b).
To counter the argument that the probationary period required by Rule VI applies to initial appointments only the appellees insist, and the chancellor seems to have agreed, that for many years the Department has followed a policy of having all promotions made on a probationary basis for one year following the date of appointment. As we have pointed out the Commission seems to have recognized and accommodated itself to this "unwritten rule." The chancellor thought the "unwritten rule" was clearly established and that there is "ample *31 authority in the cases to support the proposition that courts will take judicial notice of custom and usage when that usage is general and of such long standing as to have become a part of the law itself." We do not agree, in the circumstances of the case at bar, that the notion that the "probationary period" is applicable to all promotions is a matter of which the court can take judicial notice, nor do we agree that it has been "shown by clear and convincing evidence to be definite, uniform, well-established, and so general that knowledge of it may be presumed." Wathen v. Pearce, 175 Md. 651, 653, 3 A.2d 486 (1939). Furthermore we will not be persuaded to countenance an "unwritten rule" under which it would have been possible to "remove" an employee with a record of long, loyal and efficient service without giving him a hearing or without filing any charges against him. In short, Sherry could have cashiered any man he disliked simply by promoting him. He would then be a probationer and subject to "removal." The new "written rule," as we have said, limits the department head to returning the employee "to his former status" during his 90 day probationary period.
We think Sherry's order demoting Cook should be set aside and that Cook should be confirmed in the rank of lieutenant. And, of course, the pay and allowances appurtenant thereto should be restored, accounting from 4 October, 1971.
Order of 18 April 1972 reversed.
Case remanded for the passage of an order conformable to the views expressed in this opinion.
Costs in this Court and the trial court to be paid by the appellees.
NOTES
[1] The Pirates of Penzance, Act II (1879).
[2] The chancellor's comment, in this regard, is of interest. He said, "While the action may be administrative no one has presented any ordinances of the Mayor and City Council that control the situation."
[3] The Civil Service Commission is an appellee also.
[4] "An employee promoted ... shall be considered to be in a probationary status for a period of ninety (90) days; provided, however, that such promoted employee shall work at least fifty (50) days at the job or position to which he has been promoted during said ninety (90) day promotion probationary period in order for said promotion to become final.... If it is determined that the employee is not performing satisfactorily in the promoted position, he shall be returned to his former status."
|
591 P.2d 1036 (1979)
The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
HOME INSURANCE COMPANY and Home Indemnity Company, Defendants-Appellees.
No. 27984.
Supreme Court of Colorado, En Banc.
March 19, 1979.
Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief App. Deputy Dist. Atty., Denver, for plaintiff-appellant.
Holm & Dill, Professional Corp., Jon L. Holm, Denver, for defendants-appellees.
LEE, Justice.
The People appeal from the dismissal of theft and theft-related charges by the trial court at the close of the prosecution's case. The charges arose from the surreptitious procurement by agents of the insurance company defendants of confidential medical information concerning two patients of a Denver hospital. The trial court granted the dismissal because the medical information obtained was not a "thing of value" as defined in the pertinent statute and therefore was not subject to theft. We affirm.
The defendants hired an injury claims investigative service to obtain medical information reports on two claimants. Through the use of the telephone, an investigator for the service obtained a verbatim reading of the medical reports which he later transcribed and sent to the defendants. The actual medical records themselves never left the hospital file room; rather, only the medical information contained in the records was thus acquired.
The theft statute, section 18-4-401(1)(a), C.R.S.1973 (1978 Repl. Vol. 8), reads in pertinent part:
"A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and:
*1037 "(a) Intends to deprive the other person permanently of the use or benefit of the thing of value * * *."
Crucial to our determination of this case is the definition of "thing of value" contained in section 18-1-901(3)(r), C.R.S.1973 (1978 Repl. Vol. 8):
"`Thing of value' includes real property, tangible and intangible personal property, contract rights, choses in action, services, and any rights or use or enjoyment connected therewith."
The People argue that the confidentiality inherent in one's personal medical information is a "thing of value" within the meaning of the theft statute inasmuch as the confidentiality is intangible personal property. We do not agree with this expansive interpretation of the theft statute.
In determining the meaning of criminal statutes, we are guided by the principle that such statutes must be strictly construed in favor of the accused and they cannot be extended either by implication or construction. People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977); Cokley v. People, 168 Colo. 280, 450 P.2d 1013 (1969); Calkins v. Albi, 163 Colo. 370, 431 P.2d 17 (1967).
As far as we have been able to determine, and no cases have been cited by the People to the contrary, confidentiality has never been considered as intangible personal property. Rather, the term intangible personal property has been held to be property which is merely representative of value, such as certificates of stock, bonds, promissory notes, patents, copyrights, tradebrands and franchises. Black's Law Dictionary, (rev. 4th ed. 1968). We, therefore, would have to expand unduly the traditional concept of intangible property if we were to accept the People's contention.
Furthermore, the General Assembly has specifically addressed the violation of analogous privacy interests in the criminal code. Thus, it has authorized criminal sanctions for the theft of trade secrets, section 18-4-408, C.R.S.1973 (1978 Repl. Vol. 8),[1] unauthorized wiretapping of telephone or telegraph communication, section 18-9-303, C.R.S.1973 (1978 Repl. Vol. 8); eavesdropping, section 18-9-304, C.R.S.1973 (1978 Repl. Vol. 8); and unauthorized reading, learning or disclosure of telephone, telegraph or mail messages, section 18-9-306, C.R.S.1973 (1978 Repl. Vol. 8). The foregoing amply demonstrates that the General Assembly has the legislative competence, if inclined to do so, to make illegal the invasion of privacy or confidentiality. The legislature, however, has not chosen to apply criminal sanctions to the invasion of the confidentiality of medical information. We will not now do so by an unwarranted interpretation of the meaning of intangible personal property as it is used in the statutory definition of "thing of value."
In the civil context the legislature has considered the importance of confidentiality of medical information. Section 25-1-802, C.R.S.1973 (1978 Supp.) concerns confidentiality of patient records in the custody of health care facilities. Section 27-10-120, C.R.S.1973, provides that all information obtained in the course of providing services to the mentally ill in state institutions shall be confidential and privileged. Section 25-1-312, C.R.S.1973, makes records of alcoholics compiled at treatment facilities confidential and privileged. Section 24-72-204(3), C.R.S.1973, provides that public records containing medical and psychological data shall not be available for public inspection except in certain prescribed circumstances. The legislature, therefore, has taken specific steps to protect the confidentiality of medical information by creating statutory duties, the breach of which could serve as the basis for a civil remedy. However, the legislature has not imposed criminal penalties for violations of the confidentiality or privilege.
*1038 Finally, the acceptance of the People's contention that invasion of the confidentiality of one's medical records constitutes theft would have far-reaching ramifications. Conceivably, a person who committed one of the four recognized torts for the invasion of privacy[2] could be tried for theft. Also, the breach of one of the recognized privileges (e. g., husband-wife, attorney-client, clergyman-penitent, doctor-patient, accountant-client and psychologist-client, see section 13-90-107, C.R.S.1973) might possibly be construed as theft. In our view, such an expansion of criminal liability could not have been intended by the legislature when it adopted the theft statute. Although we agree with the trial court that the defendants' conduct was "reprehensible and outrageous," that conduct simply was not made criminal under the theft statute. Proof of moral turpitude is not alone sufficient to authorize a criminal conviction. Shimmel v. People, 108 Colo. 592, 121 P.2d 491 (1942).
Because of our disposition, it is unnecessary to address the issue of how to calculate the monetary worth of the medical information or the issue of whether the evidence established the element of permanent deprivation.
The judgment is affirmed.
CARRIGAN, J., does not participate.
NOTES
[1] Although traditionally there has been a civil remedy for appropriation of trade secrets, see Trade Secret Litigation: Injunctions and Other Equitable Remedies, 48 U.Colo.L.Rev. 189 (1977), the legislature considered the increasing encroachment on this type of confidentiality as warranting criminal penalties.
[2] According to W. Prosser, Torts § 117 (4th ed. 1971), the common law tort of invasion of privacy contains four distinct kinds of invasion of four different interests: (1) intrusion upon physical solitude; (2) public disclosure of private facts; (3) false light in the public eye; and (4) appropriation of name or likeness.
|
631 So.2d 983 (1994)
Julien E. MARX, et al.
v.
Earle W. LONG III.
Earle W. LONG III
v.
Julien E. MARX, et al.
1920712, 1920935.
Supreme Court of Alabama.
January 28, 1994.
*984 Samuel L. Stockman of Stockman & Bedsole, Mobile, for Julien E. Marx, William T. Youngblood and America's Best, Inc.
Willis C. Darby, Jr., Mobile, for Earle W. Long III.
ALMON, Justice.
Earle W. Long III appeals from a judgment entered after a nonjury trial to distribute the proceeds of a condemnation award. Julien E. Marx, William T. Youngblood, and America's Best, Inc., ("Investors"), also appeal from this judgment. The trial court awarded Long $70,000 of the condemnation proceeds. Long contends that he should have received more; the Investors contend that he should have received less. The principal issue is whether the evidence supports reformation of an agreement between Long and the Investors for distribution of the proceeds from a sale of the property.
The condemnation proceeds pertain to a tract of land in Mobile County known as the Orange Grove Tank Farms. In 1980, Marx, Youngblood, A.P. Ogburn, Jr., and two other investors[1] purchased the land from Aluminum Company of America ("Alcoa") for $300,000, paying $30,000 cash and executing a $270,000 promissory note. Alcoa retained a vendor's lien on the property. Long's claim derives from Ogburn's 20% interest. There were seven petroleum storage tanks on the premises, and Youngblood testified that he had plans to convert the premises to a gasohol facility. He also testified that he knew as early as 1980 that the State had plans to condemn the land to build an interstate highway spur connecting Mobile to Interstate Highway 10.
*985 Between June 1986 and January 1987, Youngblood and Marx executed a total of five notes in favor of SouthTrust Bank of Mobile to obtain short-term financing of the payments on the Alcoa note. Ogburn joined in making two of the earlier notes, but he did not join the last two, which were renewals of the earlier ones. America's Best joined in the execution of one of the two SouthTrust notes executed in January 1987. None of these notes to SouthTrust Bank was secured.
In February 1986, Ogburn executed a promissory note for $70,000 in favor of Alabama Credit Corporation. Ogburn executed a mortgage on his 20% undivided interest in the Orange Grove Tank Farms to secure this note. Until late in these proceedings, the parties consistently treated this mortgage as creating a second mortgage behind the vendor's lien held by Alcoa. In the summer of 1986, Ogburn fell behind in his contributions to the payments on the Alcoa note. Ogburn informed the Investors and Long, who was president of Alabama Credit, that he was no longer able to make payments.
After a series of negotiations, Ogburn, Youngblood, Marx, America's Best, and Long entered into the following agreement on March 12, 1987:
"Whereas, A.P. Ogburn, Jr. (`Ogburn'), William T. Youngblood (`Youngblood'), Julien E. Marx (`Marx') and America's Best, Inc., own undivided interests in that certain real property described in a Statutory Warranty Deed, of even date herewith, in which Ogburn is the Grantor and Youngblood, Marx and America's Best are the Grantees, which said real property is hereinafter referred to by the name by which it is generally known, `Orange Grove Tank Farms,' and
"WHEREAS, in order to facilitate meeting certain obligations to the Aluminum Company of America and in order to provide certain short term funding for that purpose, and
"WHEREAS, in the judgment of Earle W. Long, III (`Long'), it is in his best interest to insure that short term funding is provided to meet the obligation to Aluminum Company of America in order to protect Long's mortgage or lien against the possibility of default under the vendor's lien retained by the Aluminum Company of America,
"NOW, THEREFORE, in consideration of the premises, the mutual covenants herein contained, TEN AND NO/100 ($10.00) DOLLARS, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
"1. Ogburn will deed, by Statutory Warranty Deed, his interest in the real property referred to herein as Orange Grove Tank Farms to Youngblood, Marx and America's Best, Inc. The deed shall be executed and delivered simultaneously with the execution and delivery of this Agreement for Division of Proceeds of Sale of Real Property.
"2. Youngblood, Marx and America's Best, Inc. shall hold harmless, indemnify and provide a defense to Ogburn and Long for any and all liability, debt, note, mortgage, financial obligation, action, cause of action, or claim of any kind or nature, arising, directly or indirectly, from the ownership, operation or maintenance of Orange Grove Tank Farms, including without limitation, with respect to that certain vendor's hen retained by The Aluminum Company of America on the real property and the note therein described which is secured by the vendor's lien and those certain notes and/or mortgages in favor of SouthTrust Bank bearing commercial loan numbers 19565 and 19276.
"3. Long does hereby agree to subordinate his mortgage on the undivided interests of Ogburn, in Orange Grove Tank Farms to this contract, provided that the proceeds of the sale of Orange Grove Tank Farms shall be divided as follows:
"A. First, the note due to The Aluminum Company of America which is secured by the vendor's lien on Orange Grove Tank Farms shall be paid in full and the vendor's lien discharged.
"B. Second, the notes due SouthTrust Bank bearing commercial loan number 19565 and 19276 whose present principal balances are approximately $56,862.49, shall be discharged in full. It is agreed *986 that said note may be, from time to time, renewed as necessary.
"C. Third, reimbursement of Youngblood, Marx and America's Best, Inc. of amounts equal to a) 20% of all funds paid by them to Aluminum Company of America towards the obligation referred to in sub-paragraph A without contribution by Ogburn; and b) 22% of all funds paid by them to SouthTrust Bank towards the obligation referred to in sub-paragraph B without contribution by Ogburn; together with interest on the sums so paid from the date of payment to the date of said sale at the prime rate in effect at the time each payment was made, plus 5%. The prime rate shall be as posted at relevant times by the Chemical Bank of New York.
"D. Fourth, to pay the costs and fees attendant to said sale.
"E. Fifth, to discharge the note and mortgage held by Long on Ogburn's undivided interest in Orange Grove Tank Farms.
"F. Sixth, the balance, if any, to Youngblood, Marx and America's Best, Inc."
The agreement also included an option for Long to purchase Ogburn's 20% interest within 30 days, but he elected not to do so. Two months after this agreement was executed, Alabama Credit assigned its interest in Ogburn's note and mortgage to Long.
In April 1991, the State of Alabama brought an action in the Probate Court of Mobile County to condemn the Orange Grove Tank Farms. In June 1991, the probate court entered an "Order of Condemnation," awarding $873,500, based on a report of commissioners. Both the State of Alabama and the Investors appealed from this judgment to the Circuit Court of Mobile County. The principal dispute over the valuation related to an oil spill on the property. The State's experts gave evidence that the value of the property after deducting the cost of cleaning up the oil was $0-$40,000. The Investors contended that Alcoa had agreed in 1980 to clean up the oil and that, therefore, the cost of the cleanup should be deducted from the amount due on Alcoa's note. After a trial by jury, the jury awarded $600,000 for the property. The circuit court added prejudgment interest to this amount.
Marx, Youngblood, and America's Best filed a claim for the proceeds of this condemnation award. In June 1992, as assignee of all rights held by Alabama Credit, Long also filed a claim, alleging that he was entitled to $120,469.54: the $70,000 face amount of the loan to Ogburn, plus accrued interest of $50,469.54.
The Investors filed an answer and a counterclaim for reformation, alleging that because of "inadvertent oversight and mutual mistake," paragraph 3 of the March 12, 1987, agreement failed to express the parties' intention that the reimbursement of the Investors under subparagraph 3(C) would be made only from the 20% of the proceeds attributable to Ogburn's 20% undivided interest. The Investors requested that the circuit court reform the agreement to provide that the reimbursement of the Investors under subparagraph 3(C) would be made only from Long's alleged 20% share of the proceeds and not from the proceeds as a whole. The Investors sought to have paragraph 3 of the agreement reformed to state:
"3. Long does hereby agree to subordinate his second mortgage on the 20% undivided interest of Ogburn, in certain property in Orange Grove Tank Farms to this contract, provided that 20% of the proceeds of the sale of certain property in the Orange Grove Tank Farms (representing the 20% undivided interest of Ogburn in certain property in the Orange Grove Tank Farms) which is subject to his second mortgage and the subject of this contract shall be divided as follows:
". . . .
"C. Third, reimbursement of Youngblood, Marx and America's Best, Inc., from said 20% of the proceeds of the sale, which is subject to the second mortgage of Long and the subject of this contract, of amounts equal to a) 20% of all funds paid by them to Aluminum Company of America towards the obligation referred to in subparagraph A without contribution by Ogburn; and b) 22% of all funds paid by them to South-Trust Bank towards the obligation referred *987 to in sub-paragraph B without contribution by Ogburn; together with interest on the sums so paid from the date of payment to the date of said sale at the prime rate in effect at the time each payment was made, plus 5%. The prime rate shall be as posted at relevant times by the Chemical Bank of New York."
The Investors presented expert testimony from Grady Wayne Boggan, a certified public accountant. Based on his opinion that the parties had intended the reimbursement under subparagraph 3(C) to be made from Long's 20% share of the proceeds, Boggan calculated that Long was entitled to only $6,132, while the Investors would be entitled to $264,673.
In support of his claim, Long presented expert testimony from Louis G. Russell, a certified public accountant, who stated that based on what he considered to be the plain, unambiguous language of the agreement, Long was entitled to $123,597. Russell based his opinion on a literal reading of the agreement, deducting the reimbursement provided under subparagraph 3(C) from the total proceeds of the condemnation, not merely from Long's 20% share. Under Russell's calculations, the Investors would receive $92,729.
Except for an $11,000 figure regarding payment of taxes, Boggan and Russell used the same figures in reaching their respective opinions regarding the division of the award. The difference in their opinions lay in their interpretation of the agreement itself. Boggan testified that he applied an interpretation of the agreement emphasizing its general purpose as declared in the opening three paragraphs. Russell testified that he adhered to the literal language of the contract, especially paragraph 3.
After hearing testimony and receiving documentary evidence, the circuit court entered a judgment dividing the condemnation award among the various parties who had filed claims. The State had paid the $873,500 award into court as a condition of its appeal to the circuit court, and this amount had accrued interest during the probate and circuit court proceedings. Alcoa had settled with the Investors for $200,000 and had received that amount from the condemnation proceeds. The circuit court judgment refunded to the State $263,296.57, apparently the excess of its deposit above the amount of the circuit court award, with adjustment for interest. The attorney representing the Investors was awarded $133,272.11 pursuant to his contract to represent them in the condemnation proceedings; Long was awarded $70,000; and the Investors were awarded the balance on deposit, $254,019.94.
The circuit court judgment included findings of fact; however, the judgment does not make clear the basis of the decision. At one point the judgment refers to the March 12, 1987, agreement as being ambiguous, and at another point it speaks of conforming the agreement to the intention of the parties.
In his appeal, Long argues that the circuit court erred either in construing the agreement on the basis of extrinsic evidence or in reforming the agreement on the basis of a finding of a mutual mistake. Long contends that the written agreement was unambiguous and that the circuit court erred in not enforcing it according to its terms. From the amounts awarded in the circuit court's judgment, it is apparent that the circuit court did not enforce the agreement according to its written terms. For example, although paragraph 3(D) provided for the discharge of the note and mortgage held by Long, under the judgment Long received only the $70,000 face amount of the loan to Ogburn, without any payment of the $50,469 or more in accrued interest.
In their appeal, the Investors argue that although, they say, the circuit court properly found the contract ambiguous or reformed it based on a mutual mistake, it miscalculated the judgment. In accordance with the evidence of the alleged true intention of the parties presented at trial, they contend that Long is entitled to only $6,132 and that they are entitled to $264,673.[2]
*988 The first issue, therefore, is whether the agreement is ambiguous. We hold that it is not. Paragraph 3 of the agreement is enforceable without the need for any interpretation. Both accountants testified that Russell's calculations followed the literal terms of paragraph 3. Whether an instrument is ambiguous is a question of law for the court. McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (Ala.1991); Dill v. Blakeney, 568 So.2d 774, 778 (Ala.1990). "In order to ascertain the intentions of the parties, the plain and clear meaning of the instrument's terms is to be given effect, and the parties are presumed to have intended what the terms clearly state." Federal Land Bank of New Orleans v. Terra Resources, Inc., 373 So.2d 314, 319-20 (Ala.1979). The trial court's judgment cannot be sustained as an interpretation of an ambiguity in the agreement.
The major thrust of the Investors' argument is that the agreement should be reformed to state the true intent of the parties. They say that a mutual mistake was made, because, they say, the parties' true agreement was that Long would reimburse the Investors for 20% of their payments to Alcoa and SouthTrust out of the proceeds he would otherwise receive.
"When, through fraud, a mutual mistake of the parties or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention, so far as it can be done without prejudice to the rights acquired by third parties in good faith and for value."
Ala.Code 1975, § 8-1-2.
The Investors argue for reformation only on the basis of mutual mistake; they do not argue fraud or that they made a unilateral mistake of which Long was aware.
A mutual mistake must be proved by clear, convincing, and satisfactory evidence. Beasley v. Mellon Financial Services Corp., 569 So.2d 389 (Ala.1990); Clemons v. Mallett, 445 So.2d 276 (Ala.1984); Pinson v. Veach, 388 So.2d 964 (Ala.1980). "[T]here is a presumption arising from the instrument itself supporting it as the true agreement." Jim Walter Homes, Inc. v. Phifer, 432 So.2d 1241, 1243 (Ala.1983).
"Where the reformation is based on mistake, the existence of a valid agreement to which the instrument can be made to conform is essential. The trial court cannot make the instrument express a new contract for the parties.... Where the sole ground for reformation is mistake, the mistake must be mutual as to all of the parties, but only in the sense that they must all have agreed to the same terms and have mistakenly assumed that those terms were properly expressed in the instrument."
Beasley v. Mellon Financial Services, 569 So.2d at 393-94.
The Investors did not prove by clear, convincing, and satisfactory evidence that the true agreement between the parties was different from the agreement expressed in the instrument. Their attempt to insert language into the first sentence of paragraph 3 and into paragraph 3(C) does not express the agreement for which they argue, because paragraphs 3(A), 3(B), 3(D), and 3(E) would have to be similarly amended. Paragraph 3 is coherent and capable of application as drafted but, reworded as the Investors say it should be reworded, it would be convoluted and difficult to apply.
Furthermore, the record provides no indication as to why Long would have agreed to the provisions for which the Investors argue. As the parties understood matters at the time of the agreement, Long's note was secured by a second mortgage on a 20% interest in the property, subordinate only to the Alcoa vendor's lien. After the agreement, Long's mortgage was also subordinated to the SouthTrust loans, to 20% of the amounts paid by the Investors to Alcoa and 22% of the amounts paid to SouthTrust, and to the fees and expenses of sale. The Investors *989 would also require that Long actually pay them out of the Ogburn loan proceeds for the amounts paid to Alcoa and SouthTrust for servicing the Investors' loans. Essentially, according to the Investors, Long agreed to take the risk of a low sales price but did not achieve any corresponding reward. They would treat him as an owner, not as a lienholder. If Long had exercised the option to buy Ogburn's 20% interest, he would have placed himself in such a position, but he did not exercise the option.
Thus, there was not clear and convincing evidence that the parties intended the agreement argued for by the Investors. On the contrary, the agreement as expressed in the document fits the apparent intentions of the parties. At the time, the Investors were reluctant to make periodic interest payments to Alcoa and SouthTrust without contributions from Ogburn. Paragraph 3(C), as written, allows them to recover 20% or 22% of any such interest payments before Long's note is paid. Thus, they receive a contribution for Ogburn's share of the payments before Long receives payment on Ogburn's note. This accomplishes an objective that the parties can reasonably be deemed to have intended.
Because there was not clear, convincing, and satisfactory evidence of an alternative agreement that the parties actually intended but mistakenly failed to incorporate in the written agreement, the judgment cannot be affirmed on the theory that the trial court reformed it to reflect the true agreement of the parties.
The Investors also argue that Long is not entitled to payment from the condemnation proceeds because, they say, Ogburn's mortgage failed to create a lien on the property. In 1983, the property was sold for payment of delinquent taxes. The State purchased the property at the tax sale. On September 23, 1988, the State conveyed the property to M & R Properties, Inc., for $3,042. On March 17, 1989, M & R Properties, Inc., gave a quitclaim deed conveying the property to the Investors for "$10 and other good and valuable consideration." The Investors argue that title was in the State in 1986 when Ogburn purported to give a mortgage to Alabama Credit Corporation. However, they took the position in March 1987 that Long had a valid second mortgage on an undivided 20% interest in the property. In fact, they accepted from Ogburn a deed conveying his 20% interest as part of the consideration for the agreement. Long, on behalf of Alabama Credit, promised to subordinate his claimed interest as set out in paragraph 3 in consideration for the Investors' promise to pay the Ogburn note from the proceeds of a sale of the property. In paragraph 3(E) of the March 1987 agreement, the Investors contracted "to discharge the note and mortgage held by Long on Ogburn's undivided interest." Moreover, in their first two answers to Long's claim in this action, filed on July 17 and August 3, 1992, the Investors admitted that "a second mortgage on a 20% undivided interest in certain property in the Orange Grove Tank Farms, made by A.P. Ogburn, Jr. to Alabama Credit Corporation, was recorded on June 10, 1986." They first denied the validity of the purported mortgage in their amended answer filed on September 15, 1992. Having contracted with Long in March 1987 under a mutual understanding that the Investors and Ogburn owned title to the property, the Investors are estopped to deny the validity of the mortgage that formed the basis for their contract.
We have considered the other arguments made by the Investors and find no merit in them. The judgment is reversed and the cause is remanded for the entry of a judgment dividing the proceeds of the condemnation sale according to the formula set out in paragraph 3 of the parties' written agreement. The principal difference in the award should be that Long will be awarded interest in accordance with the terms of the note, and the Investors' share of the proceeds will be reduced accordingly. Long also argues that his attorney fees incurred in the collection of the note should be paid, but we note that his claim for distribution of proceeds makes no claim for such fees, but makes only a claim for principal and interest.
REVERSED AND REMANDED.
HORNSBY, C.J., and HOUSTON, KENNEDY and COOK, JJ., concur.
NOTES
[1] The other two investors later conveyed their interests to Youngblood, Marx, and America's Best.
[2] We recognize that the differing calculations do not correspond and are difficult to compare. This is due in part to the effect of interest accrued on the condemnation proceeds. It also appears that the $264,673 claimed by the Investors is only the balance of the proceeds awardable under paragraph 3(F), whereas the $254,019.94 awarded by the trial court would include other amounts, such as the amount due the investors under paragraph 3(C) and an amount intended to reimburse them for fees and expenses paid and reimbursable under paragraph 3(D).
|
J. S57004/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WESLEY A. WILSON, : No. 661 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, March 25, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0008824-2008
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 23, 2016
Wesley A. Wilson appeals from the judgment of sentence of March 25,
2015, following revocation of his probation. We affirm.
The trial court has aptly summarized the history of this matter as
follows:
In this case, [appellant] pled guilty to one
count of criminal trespass, one count of simple
assault and one count of criminal mischief on
December 10, 2008. The factual basis for the guilty
plea was that [appellant] assaulted his girlfriend by
punching her in the back of her head and then
dragging her and slamming her head onto the hood
of a car. The victim ran into her house and
[appellant] continued the assault inside the
residence. Two females rushed to the victim’s aid
and they were both assaulted by [appellant].
Relative to the criminal trespass conviction, this
Court imposed a sentence of imprisonment of not
less than 11½ months nor more than 23 months
followed by a term of probation of three years. This
* Retired Senior Judge assigned to the Superior Court.
J. S57004/16
Court imposed concurrent terms of two years’
probation on the remaining counts. The probation
terms were consecutive to parole but concurrent with
each other. [Appellant] was ordered to pay
$4,280.79 in restitution.
After he was paroled, [appellant] began
serving the probationary portion of his sentence. On
January 10, 2010, [appellant] tested positive for
marijuana and cocaine. He was warned that
continued drug use would result in a probation
violation hearing. [Appellant] failed to report to
probation. His supervising probation officer
contacted [appellant] and [appellant] then reported
to his probation officer. During the month of April,
2010, [appellant] failed to report to probation. He
was cited as a technical violator for failing to report,
failure to pay restitution and failure to abstain from
drug use.
On March 9, 2011, [appellant] was arrested
and charged with simple assault and terroristic
threats. [Appellant] pled guilty to the summary
offense of disorderly conduct.
On November 11, 2011, [appellant] was
charged with criminal mischief, stalking and
terroristic threats for threatening his girlfriend and
throwing a brick through the window of her
residence. He was ultimately convicted of the
charges and placed on two years’ probation by
another member of this Court. This Court convened
a probation violation hearing relative to this
conviction. This Court revoked [appellant]’s term of
probation and issued a new sentence. [Appellant]
was sentenced to a term of imprisonment of not less
than 6 months and not more than 12 months
followed by three concurrent terms of two-years’
probation. [Appellant] continued his poor
performance of reporting to his probation officer
after he was paroled from this sentence.
-2-
J. S57004/16
On October 15, 2013, [appellant] was arrested
again for a domestic incident. These charges were
ultimately withdrawn.
[Appellant] was again arrested for a domestic
incident. On August 4, 2014 [appellant] pled guilty
to simple assault and recklessly endangering another
person and was sentenced to a term of probation of
two years. As a result of this conviction, this Court
convened a probation violation hearing and revoked
[appellant]’s probation and sentenced him [to not
less than 18 months nor more than 48 months’
incarceration, followed by 2 years of probation]. It
was this most recent conviction that gave rise to the
revocation of probation at issue in this appeal.
Trial court opinion, 7/29/15 at 1-3.
Appellant’s motion for reconsideration of sentence was denied, and
this timely appeal followed. Appellant has complied with Pa.R.A.P. 1925(b),
and the trial court has filed a Rule 1925(a) opinion.
Appellant has raised the following issue for this court’s review,
challenging the discretionary aspects of his sentence following revocation of
probation:
I. Whether the trial court abused its discretion by
revoking and re-sentencing [appellant] to
18-48 months [of] incarceration when it failed
to consider relevant and mandatory sentencing
criteria, including the rehabilitative needs of
[appellant], as required by 42 Pa.C.S.A.
§ 9721(b)?
Appellant’s brief at 5.
Our standard of review is well-settled:
The imposition of sentence following the
revocation of probation is vested within
-3-
J. S57004/16
the sound discretion of the trial court,
which, absent an abuse of that
discretion, will not be disturbed on
appeal. An abuse of discretion is more
than an error in judgment—a sentencing
court has not abused its discretion unless
the record discloses that the judgment
exercised was manifestly unreasonable,
or the result of partiality, prejudice, bias
or ill-will.
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super. 2015), quoting
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014), appeal
denied, 109 A.3d 678 (Pa. 2015). See also Commonwealth v.
Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc) (this court’s scope of
review in an appeal from a revocation sentencing includes discretionary
sentencing challenges).
Upon revoking probation, “the sentencing
alternatives available to the court shall be the same
as were available at the time of initial sentencing,
due consideration being given to the time spent
serving the order of probation.” 42 Pa.C.S.
§ 9771(b). Thus, upon revoking probation, the trial
court is limited only by the maximum sentence that
it could have imposed originally at the time of the
probationary sentence, although once probation has
been revoked, the court shall not impose a sentence
of total confinement unless it finds that:
(1) the defendant has been convicted of
another crime; or
(2) the conduct of the defendant indicates
that it is likely that he will commit
another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate
the authority of the court.
-4-
J. S57004/16
42 Pa.C.S. § 9771(c).
Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). We also note
that the sentencing guidelines do not apply to sentences imposed as the
result of probation revocations. Id. at 27 (citations omitted).
An appellant wishing to appeal the discretionary
aspects of a probation-revocation sentence has no
absolute right to do so but, rather, must petition this
Court for permission to do so. [Commonwealth v.
Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
42 Pa.C.S.A. § 9781(b). Specifically, the appellant
must present, as part of the appellate brief, a
concise statement of the reasons relied upon for
allowance of appeal. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f). In that statement, the appellant
must persuade us there exists a substantial question
that the sentence is inappropriate under the
sentencing code. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f).
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).
In general, an appellant may demonstrate the
existence of a substantial question by advancing a
colorable argument that the sentencing court’s
actions were inconsistent with a specific provision of
the sentencing code or violated a fundamental norm
of the sentencing process. Malovich, 903 A.2d at
1252. While this general guideline holds true, we
conduct a case-specific analysis of each appeal to
decide whether the particular issues presented
actually form a substantial question. Id. Thus, we
do not include or exclude any entire class of issues
as being or not being substantial. Id. Instead, we
evaluate each claim based on the particulars of its
own case. Id.
Id. at 289-290.
-5-
J. S57004/16
In his Rule 2119(f) statement, appellant claims that the trial court
failed to consider all relevant and mandatory sentencing criteria, including
his rehabilitative needs as required by 42 Pa.C.S.A. § 9721(b). (Appellant’s
brief at 17.) Appellant’s assertion that the trial court failed to consider his
rehabilitative needs raises a substantial question. See Commonwealth v.
Baker, 72 A.3d 652, 662 (Pa.Super. 2013), appeal denied, 86 A.3d 231
(Pa. 2014) (finding, inter alia, assertion that trial court failed to account for
appellant’s rehabilitative needs was substantial question suitable for review);
see also Commonwealth v. Macias, 968 A.2d 773, 776 (Pa.Super. 2009)
(“an averment that the court sentenced based solely on the seriousness of
the offense and failed to consider all relevant factors raises a substantial
question” (citations omitted)). “Additionally, a substantial question that the
sentence was not appropriate under the Sentencing Code may occur even
where a sentence is within the statutory limits.” Commonwealth v.
Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010), appeal denied, 13 A.3d
475 (Pa. 2010), citing Commonwealth v. Titus, 816 A.2d 251 (Pa.Super.
2003). Hence, we will consider the merits of appellant’s sentencing
challenge.
The record reflects that while the trial court did consider appellant’s
rehabilitative needs, it was clear that prior attempts at rehabilitation had
proved ineffective and appellant remained a danger to the public,
particularly women:
-6-
J. S57004/16
I do not believe that allowing [appellant] to reenter
the community at this time is a good idea. I do think
that a county sentence and county supervision have
not worked or else we wouldn’t be here. And I think
[appellant]’s conduct demonstrates that the longer
period of incarceration is required to protect the
community and hopefully get his attention while he’s
still young enough to rethink what he’s doing and
change his ways.
Notes of testimony, 3/25/15 at 10.
And you pick on women. Apparently you can’t hold
your temper or something. I’m not sure what it is.
But you physically harm people. And apparently
those are women who are close to you in your life
from what I’m reading. So you represent a very
specific danger to the community that I think the
community has tolerated long enough.
Id. at 9-10.
Appellant committed further crimes while on probation, including
crimes of domestic violence. He tested positive for drugs and refused to
report to his probation officer. He has not paid any restitution. (Trial court
opinion, 7/29/15 at 6.) He was given several county sentences, but failed to
conform his conduct to the law. The trial court did consider appellant’s need
for treatment and rehabilitation, but ultimately decided that a sentence of
total confinement was necessary to protect the public and to vindicate the
authority of the court. (Id. at 6-7.) See also notes of testimony, 3/25/15
at 9 (“But we tried a lengthy county sentence with you, and it made no
impression on you from my point of view. You got 11½ to 23 months in this
case and you’re back harming other women when you get your freedom
-7-
J. S57004/16
back.”). The trial court did not abuse its discretion in revoking appellant’s
probation and re-sentencing him to a state sentence of 18-48 months’
imprisonment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
-8-
|
J-A19006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRAHEEM A. OWENS,
Appellant No. 289 EDA 2016
Appeal from the Judgment of Sentence Entered August 14, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008144-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 03, 2017
Appellant, Braheem A. Owens, appeals from the judgment of sentence
of an aggregate term of 28½ - 57 years’ incarceration, imposed following his
conviction for third-degree murder and related offenses. Appellant contends
that the evidence was insufficient to disprove his claim of self-defense, and
that the trial court erred by permitting the prosecutor to cross-examine him
in violation of his right to remain silent. After careful review, we affirm.
Appellant was arrested following the shooting death of Aaron Johnson
in West Philadelphia on May 24, 2014. The circumstances of the shooting,
Appellant’s subsequent flight from the scene, his apprehension by authorities
soon thereafter, as well as other evidence presented at trial, are described in
detail in the trial court’s Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion
(TCO), 4/14/16, at 3-12. Following his arrest, the Commonwealth charged
J-A19006-17
Appellant with third-degree murder, 18 Pa.C.S. § 2502(c); carrying a firearm
without a license, 18 Pa.C.S. § 6106; carrying a firearm in public in
Philadelphia, 18 Pa.C.S. § 6108; possession of an instrument of crime, 18
Pa.C.S. § 907; and fleeing or attempting to elude a police officer, 75 Pa.C.S.
§ 3733. Appellant and a co-defendant were tried before a jury from May
19-27, 2015. The jury convicted Appellant on all counts.
Appellant filed a timely appeal, as well as a timely, court-ordered Rule
1925(b) statement. The trial court issued its Rule 1925(a) opinion on April
14, 2016. Appellant now presents the follow questions for our review:
I. Did the trial court err by permitting the prosecutor, over
defense counsel’s objection, to question [Appellant] …
regarding his post-arrest silence in violation of [his] rights
under the Fifth Amendment to the United States
Constitution and Article 1, Section 9 of the Pennsylvania
Constitution?
II. Was the evidence insufficient as a matter of law to support
[Appellant]’s conviction for third[-]degree murder because
the Commonwealth failed to present sufficient evidence to
disprove that [he] acted in self-defense beyond a
reasonable doubt or that he otherwise acted with malice?
Appellant’s Brief at 4.
After careful consideration of the record, the parties’ briefs, and the
thorough and well-reasoned decision of the Honorable Genece E. Brinkley,
we affirm on the basis of the trial court’s decision, and adopt that opinion as
-2-
J-A19006-17
our own.1 See TCO at 12-17 (Issue I); 18-23 (Issue II). We specifically
note that we agree with the trial court that Appellant’s framing of his first
____________________________________________
1
In Appellant’s 1925(b) statement, he also challenged the sufficiency of the
evidence supporting his conviction for fleeing or attempting to elude a police
officer, 75 Pa.C.S. § 3733. In its opinion, the trial court indicates that it
agrees that the Commonwealth’s evidence was insufficient to support that
conviction, and suggests it is willing to vacate Appellant’s conviction for that
offense if or when it has jurisdiction to do so. See TCO at 2 n.1.
Shockingly, Appellant has effectively abandoned the issue in his brief, as he
did not list this issue in his “Statement of the Questions Presented,” nor did
he address the matter in the “Argument” portion of his brief. He only
mentions the matter twice in his brief, but without any significant
development of the claim.
First, in his “Statement of the Case,” he states:
In its opinion, the trial court conceded that the evidence
was insufficient to support [Appellant]'s conviction for fleeing or
attempting to elude police. The trial court, however, claimed
that it was without authority to vacate this particular conviction
because the case is now on appeal.
Based on the trial court's position, [Appellant] will not brief
the issue regarding the insufficiency of the evidence to support
his fleeing or attempting to elude police conviction. However, he
will ask this Court on appeal to reverse his conviction for this
offense based on the reasons set forth in the trial court's
opinion.
Appellant’s Brief at 14. Second, under the “Conclusion” section of his brief,
Appellant requests that his Section 3733 conviction be reversed by this
Court on sufficiency grounds. Id. at 35. Nowhere in Appellant’s brief does
he provide any development of this claim, nor citation to pertinent
authorities.
“Arguments that are not appropriately developed are waived.” Nimick
v. Shuty, 655 A.2d 132, 138 (Pa. Super. 1995). Moreover, “[t]he argument
portion of an appellate brief must include a pertinent discussion of the
particular point raised along with citation to pertinent authorities.”
(Footnote Continued Next Page)
-3-
J-A19006-17
issue is misleading, as the record supports the court’s determination that
Appellant was cross-examined about his pre-arrest, not post-arrest silence,
because he was only subjected to an investigative detention at the relevant
time.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2017
_______________________
(Footnote Continued)
Commonwealth v. Rodgers, 605 A.2d 1228, 1239 (Pa. Super. 1992)
(citing Pa.R.A.P. 2119(a)).
Unfortunately, we are compelled to conclude that Appellant’s Section
3733 sufficiency claim has been waived on this basis. Appellant’s only
remedy for counsel’s error is now through the Post Conviction Relief Act, 42
Pa.C.S. §§ 9541-9546.
-4-
Circulated 09/11/2017 08:32 AM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH CP-51-CR-0008144-2014
:Fi LED
vs. APR 1 4 2016
.
Cr1mirm1 r.\µPSWf, Unit
Firs~Judicial District of PA
SUPERIOR COURT
BRAHEEM OWENS 2895 EDA 2016
OPINION
BRINKLEY, J. APRIL 14, 2016
A jury found Defendant Braheem Owens guilty of Third-degree Murder; two violations
of the Uniform Firearms Act (VUFA): Carrying a Firearm Without a License, §6106, and
Carrying a Firearm on the Street or Public Place in Philadelphia, § 6108; Possession of an
Instrument of Crime (PIC); and Fleeing or Attempting to Elude Police Officer. This Court
sentenced him to an aggregate sentence of 28 Y2 to 57 years state incarceration. Defendant
appealed this judgment of sentence and raised the following issues for appellate review: (1)
whether the trial court erred when it permitted the Commonwealth to question Defendant
regarding his "post-arrest silence in violation of the defendant's rights under the Fifth
Amendment to the United State Constitution and Article 1, Section 9 of the Pennsylvania
Constitution"; (2) was the evidencesufficient to support Defendant's conviction for Third
Degree Murder; and (3) whether the evidence was sufficient to support Defendant's conviction
for fleeing or attempting to elude police officer. This Court's judgment of sentence should be
affirmed.'
PROCEDURAL HISTORY
On May 24, 2014, decedent Aaron Johnson was shot multiple times near his home on the
1300 block of North Frazier Street in Philadelphia. Defendant and his co-defendant Lanier James
("James,,) were arrested and charged in connection with this murder. From May 19 to 27, 2015,
Defendant and James appeared before this Court for a jury trial." The jury found Defendant guilty
of Third Degree Murder, VUF A § 6106, VUFA § 6108, PIC, and fleeing or attempting to elude
police.
On August 14, 2015, this Court sentenced Defendant as follows:
Third Degree Murder: 20 to 40 years state incarceration
VUFA § 6106: 3 Yi to 7 years state incarceration
VUFA § 6108: 2 Yi to 4 years state incarceration
PIC: 2 Yi to 4 years state incarceration
Fleeing/Attempting to Elude Police: No further penalty
I
After careful review of the record, this Court has determined that defense counsel failed to move for a judgment of
acquittal with respect to the charge Fleeing or Attempting to Elude Police Officer, 7 5 Pa.C.S.A. § 3733. Nor did he
challenge this conviction in the Motion for Reconsideration tiled August 24, 2015. Thus, this Court did not have an
opportunity to correct this issue while it was still within this Court's jurisdiction. Notwithstanding, this Court
conducted research into the matter and it would appear that the jury's verdict with respect lo this charge was not
supported by sufficient evidence. According to 75 Pa.C.S.A. § 3733, as well as supporting case law, the accused
must be the "driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise
flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a
stop." The record shows that Defendant was never the driver of the vehicle; he rode in the front passenger seat.
Thus, even though no further penalty was imposed on this charge, this Court would vacate the jury's verdict on this
charge ifit had jurisdiction to do so. However, the Superior Court may consider vacating the jury's decision, even
though defense counsel did nothing to correct this mistake sooner.
2
These sentences were to run consecutively with one another, for an aggregate sentence of 28 Yi
to 57 years state incarceration. Defendant was not Recidivism Risk Reduction Incentive (RRRI)
eligible. This Court ordered Defendant to receive drug and mental health treatment while
incarcerated, and upon release, complete job training, seek and maintain employment, stay out of
trouble with the law, and pay mandatory court costs.
On August 24, 2015, Defendant filed a post sentence motion for reconsideration. This
motion was denied by operation of law on January 4, 2016. Prior to this, on September 20, 2015,
Defendant had filed a Notice of Appeal to Superior Court; this was quashed as interlocutory by
the Superior Court on October 20, 2015. On January 11, 2016, Defendant filed a timely Notice of
Appeal. On January 14, 2016, this Court ordered that defense counsel file a Concise Statement of
Errors Complained of on Appeal Pursuant to Pa.R.A.P. l 92S(b) and defense counsel did so on
February 1, 2016.
FACTS
On May 28, 2014, at approximately 11 :45 a.m., decedent Aaron Johnson C'Johnson")
was shot multiple times after merely sitting on a bicycle and talking with friends gathered on a
nearby front porch on the 1300 block of Frazier Street in West Philadelphia.
A jury trial in this matter commenced on May 19, 2015. The Commonwealth first called
Police Officer George Williams to testify. Officer Williams stated that he was in uniform, in his
marked patrol car, when he heard several gunshots. As he approached the corner of Frazier and .
Thompson Streets, he saw a black male running and firing at a group of males. Officer Williams
identified Defendant as the shooter. Defendant ran behind a parked Nissan Maxima and
continued to fire his weapon. Defendant then entered the vehicle's passenger side. Officer
Williams exited his vehicle and approached the driver's side of the Nissan with his gun drawn.
3
He described. the driver as a lighter skinned black male. Officer Williams testified that his plan
was to hold the car at gunpoint until back up officers arrived on the scene. However, there was
just enough space for the car to get past him and speed down the block. He chased the car for a
half a block, shouting into his radio to update fellow officers on the situation and provide a
description of the car and suspects. After his radio fell off his belt, Officer Williams decided to
turn around and attend to the victim. (N.T. 5119/15, p. 71-104).
Brandon Woods ('~Woods))) testified next. He stated that he was a neighborhood friend to
the decedent Aaron Johnson, and that on the day of the shooting, he was at home on the 1300
block of Frazier Street. He testified that Johnson was riding Woods' bicycle outside on the street.
Woods stated that he saw Anthony Evans (a/k/a Anthony Johnson) and Shuron Briggs outside on
the porch, and then Woods went inside his house. Approximately 5-10 minutes later, he heard
several gunshots. Evans ran into Woods' house and everyone hid on the floor. After waiting a
fewminutes, Woods went outside to see what had happened and saw his bicycle in the street and
Johnson lying on the ground. Id. at 154-171.
Anthony Evans (a/k/a/ Anthony Johnson) (((Evans") testified next. He stated that on the
day of the shooting, he was outside alone on his front porch on the 1300 block of North Frazier
Street. A group of 8 to 10 men, including Shuron Briggs and a man named "Eric," was outside
on the adjacent porch. Evans saw Johnson sitting on Woods' bicycle, speaking to one of the men
on the porch. Evans testified that he then went inside to eat lunch. After a few minutes, he heard
gunfire. When the shooting subsided, Evans ran outside and saw Johnson lying in the street.
Evans denied seeing men running down the street with firearms, even though that was what he
originally said in his statement to homicide detectives. Id. at 189-220. In his original statement to
police, Evans had described the event as follows:
4
I was on my porch with my friends Eric and Drew on the porch at
[address redacted] and there was a bunch of young guys sitting out
smoking weed. I went in the house to cook some food that I had
from last night. When I came outside a couple minutes later with
my food-and then a couple minutes later I see three guys coming
down the block from Master Street. I see that two of the guys are
carrying guns, and all the guys on the porch next door start running
in the house, and some of them run down the block. I see the guys
with the gun in front of 1227 standing in the middle of the street
and they are shooting. I run in the house and waited for the
shooting to stop, and when I came out, I see the guys running back
up towards Master Street. I see the police car at Frazier and
Thompson Street. I run down the block, and I see Aaron laying in
the street, and he was breathing a little bit and he was bleeding
bad. Then the police put Aaron in the police wagon and went down
Thompson Street.
Id. at 221-222. In his police statement, Evans further described the gunmen as "black males with
black hoodies. I think the one had a black shirt on ... They both had black guns, and they were ·
holding them in their right hand ... After this shooting stopped, I came out of my house. The three
guys were standing outside of 1327 in the middle of the street. Then they started running towards
Master Street. That's where Aaron got shot. He ran in that direction." Id. at 223-224.
Homicide Detective Brian Peters testified next. He stated that he interviewed Evans on
the day of the murder. Detective Peters testified that at the time of the interview, Evans was not·
impaired or under the influence of any substance. He further testified that he did not suggest any
answers to Evans, and that he did not know at that time what evidence had been seized by police
in connection with this crime. Last, Detective Peters testified that Evans carefully reviewed each
question and answer provided during the interview, and signed the statement at the bottom. (N.T.
5/20/15, p. 5-27).
Shuron Briggs ("Briggs") testified next for the Commonwealth. He stated that on the
morning of the shooting, he was standing on a front porch with some friends, including Anthony
Evans, talking about sports. He heard gunshots, so he jumped over the railing with two friends
5
and hid on the ground. Briggs testified that Brandon Woods was inside the house the entire time,
not outside on the porch. Briggs further testified that his back was turned towards the street and
that he never saw the decedent Johnson in the area. After the gunshots ended, Briggs and his
friends ran through the alleyway and into a house. They returned outside and saw Johnson lying
in the street. Briggs testified that he spoke with homicide detectives the following week and gave
a formal statement to police. He told detectives that based upon the gunfire, he believed there
were two shooters but he did not see their faces. Id. at 62~94.
Next, Detective Edward Tolliver testified. He stated that he and Detective Moles
interviewed Briggs in connection with the murder of Aaron Johnson. He reviewed the written
statement and confirmed that Briggs told him he believed there were two shooters, although he
did not see them. Id1 at 116-143.
Police Officer Ryan Mundrick testified that on May 28, 2014, he was on duty in an
unmarked police car at the intersection of 601h and Thompson Streets when he received a radio
call regarding a shooting on the 1300 block of North Frazier Street. The radio call included a
flash description of the shooting suspects: two black males traveling west on Thompson Street in
a red or burgundy Nissan bearing out-of-state license plates. Officer Mundrick stated that he
pulled up closer to the intersection so he could observe oncoming traffic better. Almost
immediately, he saw a burgundy Nissan Maxima speeding down Thompson Street, flying
through stop signs and swerving as though the driver was not in complete control of the vehicle.
Officer Mundrick stated that he followed the car when it turned north onto Hobart Street, and
pulled up behind it when parked near the corner of Hobart and Thompson Streets. He testified
that he saw James exit the driver's side of the vehicle and saw Defendant exit the passenger side.
James was wearing light gray sweat pants and a hooded sweatshirt with a black t-shirt
6
underneath. Officer Mundrick stated that Jamesand Defendant looked directly at him after they·
exited their vehicle and then began to run north on Hobart Street. He followed them and saw
them tum into an abandoned lot near the middle of the block. Officer Mundrick then turned
south onto Wanamaker Street and saw James, now wearing just light gray sweatpants and a black
t-shirt, run down Wanamaker and then sit down on the front steps of a house. Officer Mundrick
drove towards James, who was visibly out of breath, but James saw him and began to run again ..
As James changed directions and attempted to cross the street, he was struck by Officer
Mundrick's police vehicle. Officer Mundrick, with the assistance of Officer Butler, placed James
in handcuffs. He recovered a Glock handgun from the front waist area of James' pants. He
further recovered a set of keys from James' pocket. Officer Butler inspected the handgun in
Officer Mundrick's presence and discovered there was one round in the chamber and nothing
else in the cartridge. Officer Mundrick then drove to the Nissan Maxima and made sure it was
secure. He then went to 5gth and Master Streets to identify a possible suspect; however, the
person in question was not Defendant. Police then summoned Officer Mundrick to an abandoned
house in the alleyway between Hobart and Wanamaker Streets. Officer Mundrick went into a
second floor bedroom and identified Defendant as the vehicle passenger. Id. at 163-219.
Dr. Albert Chu, Assistant Medical Examiner in the Philadelphia Medical Examiner's
Office, testified next for the Commonwealth. He stated that he reviewed the autopsy report and
photos prepared by Dr. Marlon Osbourne, a medical examiner no longer employed by the city.
Based upon his expertise, Dr. Chu testified that Aaron Johnson died from two gunshot wounds-
one to the back and the other to the hip. The bullet that entered his back struck his left lung and
aorta. The bullet that entered his hip exited to the right of his groin. Dr. Chu testified that the shot
7
to the back was fatal and that Johnson's manner of death was in fact homicide. (N.T. 5/21/15, p.
14-26.
Next, Police Officer Roland Butler testified. He stated that on May 28, 2014, he received
a radio call from Officer Williams regarding a shooting in progress. He then heard Officer
Mund rick come over the radio and inform fellow officers that he was in pursuit of two suspects.
Officer Butler drove over to Officer Mundrick's location on Wanamaker Street. When he
arrived, he saw Officer Mundrick struggling to place James under arrest. Officer Butler assisted
with the arrest and then patted down James for weapons. He recovered a Glock .45 caliber
handgun from James' front waistband. He removed the clip and there was one round loaded
inside the chamber. Officer Butler testified that James' eyes were rolling back in his head and
that there was a large "gash" on the back of his skull, so he called for an ambulance and James
was taken to the hospital. Id. at 32-50.
Police Officer Maurice Sutherland testified next. He stated that he responded in a police
wagon to the-shooting on the 1300 block of North Frazier Street. When he arrived on the scene,
he saw Johnson lying on the ground covered in blood, showing no signs of life. He and the other
officers put on gloves, put Johnson into the wagon, and drove him to the Hospital of the
University of Pennsylvania, where he was pronounced dead. Officer Sutherland testified that he
was interviewed by homicide detectives regarding .the transport of Johnson to the hospital. Id. at
76-87.
Police Officer Christine Hilbert took the stand and testified that she worked as part of the
Crime Scene Unit. She reviewed and analyzed the Nissan Maxima used by Defendant and James
to escape the crime scene. She stated that she photographed the vehicle, took DNA samples and
8
processed it for fingerprints. Officer Hilbert testified that she was able to lift 14 fingerprints from
the vehicle. Id. at 90- 114.
Police Officer Edward Fidler, a member of the Crime Scene Unit, testified next. He
stated that he went to the 1300 block of North Frazier Street and took photographs of the crime
scene, documenting the locations of the ballistic evidence markers and bloodstains in the street.
Using the crime scene photographs to illustrate, Officer Fidler testified as to the area where the
fired cartridge casings were located, which indicated the approximate location of the shooter(s).
He later went to the Nissan Maxima on Hobart Street and took photographs of the vehicle. He
also took photographs on Wanamaker Street. Id. at 158-218.
Next, the Commonwealth entered two self-authenticating documents into evidence. First,
the Commonwealth entered a certificate from the Pennsylvania State Police, indicating that they
· had reviewed state records and determined that on May 28, 2014, Defendant did not have a valid
license to carry a firearm nor did he have a valid sportsmen's permit to carry a firearm in the
Commonwealth of Pennsylvania. Second, the Commonwealth entered a similar certificate from
the Pennsylvania State Police indicating that on May 28, 2014, James did not have a valid license
to carry a firearm nor did he have a valid sportsmen's permit to carry a firearm. (N.T. 5/22/15, p.
15-17).
Scott Copeland ("Copeland»), Forensic Scientist III in the Latent Print Unit of the
Philadelphia Police Department of Criminalistics, testified next as an expert in fingerprint
identification and comparison. He stated that he received the fingerprint cards collected by
Officer Hilbert and compared the prints to those.of the suspects in the case. After the initial
comparison, Copeland determined that none of the fingerprints matched James or Defendant. His
work was peer reviewed by a coworker, who agreed with his assessment. However, immediately
9
before Copeland was scheduled to come to court to testify in this matter> he reexamined the
fingerprints and discovered that he had made a mistake. One of the fingerprints in the Nissan
matched Defendant. Two additional forensic scientists trained in fingerprint analysis examined
the fingerprints and agreed that they matched Defendant. Id. at 17 ~ 72.
Next, Police Officer Gregory Welsh testified as an expert in firearms examination. He
examined the firearm recovered from James and determined that it was a Glock Model 30 .45
caliber weapon. This weapon was a fully operable, semi-automatic firearm, with gunshot residue
already in the barrel. Officer Welsh also examined the cartridge that was submitted with the gun,
and determined that it was a caliber .45 auto. He test-fired it and it was operable. He also
examined 28 fired cartridge casings recovered from the crime scene and determined that they
were of four different calibers, including: .45 caliber, 9 mm, .380 automatic, and .40 Smith and
Wesson. All six of the .45 caliber fired cartridge casings matched the Glock .45 caliber firearm
recovered from Defendant. Id. at 80-134.
Detective Charles Grebloski testified next. He testified that he and his partner were
assigned to investigate the murder of Aaron Johnson. When he arrived at the crime scene, he
canvassed the neighborhood to locate possible witnesses and security footage in the area. He and
other Crime Scene Unit officers then searched the abandoned house on Wanamaker Street and
were unable to recover a firearm. They also searched the surrounding area without success. After
running the vehicle information through the computer system, Detective Grebloski determined
that Nissan Maxima was a rental car belonging to Hertz Rent-AsCar. He further testified that he
obtained search warrants for four cell phones, including those belonging to Defendant and
Briggs. Id. at 158-185; (N.T. 5/26/15, p. 10-29).
10
At the conclusion of Detective Grebloski's testimony, the Commonwealth rested.
Defense counsel made a motion for judgment of acquittal on behalf of James. He argued that the
evidence was insufficient as a matter of law to sustain a verdict as to any of the charges against
James. This Court denied that motion, finding that there was sufficient evidence for the case to
go to the jury for deliberation. Id. at 3 9-40.
James' defense counsel calledCecil Landon, James' step-father, and Dolores Richardson,
James' step-grandmother, to testify as character witnesses. They both testified that they had
known James all his life and that he was regarded in the community as being a peaceful, non-
violent person. Id. at 46-48.
Next, Defendant took the stand. He stated that on May 28, 2014, he drove in a rented
Nissan Maxima from his mother's house at 57c1i and Spruce Streets to his friend's grandmother's
house at 51 st and Arch Streets. When he arrived, several friends, including James, were playing
video games. At approximately 11 :30 a.m., James asked Defendant to drive him to his
grandmother's house in Overbrook Park. Defendant testified that James asked if he could drive ·
since he was more familiar with the area. As they drove near the intersection of Frazier and
Thompson Streets, Defendant asked James to pull over so he could purchase something from a
bodega on the comer. Defendant walked to the bodega and discovered that it was closed. As he
was returning to the vehicle, he heard gunshots and saw people running towards him. Defendant
stated that he then pulled out his own gun, which he was carrying illegally since he had a robbery
conviction that rendered him ineligible to possess a firearm. Defendant testified that he began
firing the gun at the people running towards him as he ran back to the car. He saw Officer
Williams nearby in his police car so Defendant jumped in the Nissan and told James to "go, go,
go." Defendant stated that he threw the gun at James and when James pulled the car over, he
11
jumped out and ran because he didn't want to get into trouble for having a firearm. He denied
seeing Officer Mundrick parked behind them in an unmarked vehicle. Defendant testified that he
. .
ran into an alleyway and then into an abandoned house and hid in a second floor bedroom, where
the police later found him. Defendant stated that he did not know at the time whether someone
had been shot during the shoot out. He denied knowing anybody who lived on Frazier Street,
including Johnson, Briggs, and Evans. Id. at 52-68, 137, 149-151.
At the conclusion of Defendant's testimony, counsel entered evidence by way of
stipulation by and between counsel. Counsel stipulated that if the Clerk of Quarter Sessions were
called to testify, she would statethat Defendant was arrested on October 13, 2008 and charged
with robbery, graded as a felony of the first degree-threatening immediate serious bodily
injury, and that Defendant pled guilty. to this charge on October 3, 2009. Id. at 156.
The jury found Defendant guilty of Third Degree Murder, VUFA § 6106, VUFA § 6108,·
PIC and fleeing or attempting to elude police.
ISSUES
I. WHETHER THIS COURT PROPERLY PERMITTED THE
COMMONWEALTH TO QUESTION DEFENDANT REGARDING HIS PRE-
ARREST SILENCE.
II. WHETHER THE EVIDENCE WAS SUFFICIENT FOR THE JURY TO FIND·
DEFENDANT GUILTY OF THIRD DEGREE MURDER.
DISCUSSION
I. THIS COURT PROPERLY PERMITTED THE COMMONWEALTH TO
QUESTION DEFENDANT REGARDING HIS PRE-ARREST SILENCE.
This Court properly permitted the Commonwealth to question Defendant regarding his
pre-arrest silence since Defendant chose to testify at trial and waived his right to remain silent. In
12
his Statement of Errors, Defendant mischaracterizes the line of questioning as regarding "post-
arrest silence." This claim is without merit.
The Fifth Amendment of the United States Constitution and Article 9 of the Pennsylvania
Constitution protect a person from being compelled to be a witness against him or herself. U.S.
Const. Amend. V; Pa. Const. Art. I, § 9. However, once a defendant decides to takes the stand
and testify at trial, he waives his right against self-incrimination. Commonwealth v. Molina, 104
A.3d 430.(Pa. 2014). "His waiver is not partial; having once cast aside the cloak of immunity, he
may not resume it at will, whenever cross-examination may be inconvenient or embarrassing."
Molina, 104 A.3d at 447 (quoting Raffel v. U.S., 271 U.S. 494, 497, 46 S.Ct. 566, 70 L.Ed. 1054
( 1926)). As the Pennsylvania Supreme Court underscored in Molina, Hit would undermine the
fundamental truth-seeking purpose of our adversary system to prevent the prosecution from
questioning the validity of the defendant's testimony in an attempt to uncover fabricated
defenses." 104 A.3d at 448. Thus, "the prosecution may impeach the testifying defendant with
his prior statements, actions, or silence, regardless of whether the statements, actions, or silence
occurred prior to or after the reading of Miranda rights or the defendant's arrest, if the defendant·
waives his right against self-incrimination by testifying." Id. The. prosecution may not only use
the defendant's silence for impeachment purposes, but also as fair response to a defendant's
argument at trial. Id. It should be noted, however, that any reference to post-Miranda silence or
statements may infringe upon the defendant's due process rights. Id. at 104 A.3d 447, n.16.
In Je~ns v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), a defendant.
on trial for first degree murder testified that he acted in self-defense. On cross-examination, the
prosecutor sought to impeach the defendant's credibility by asking why the defendant did not
report the incident to police and tell them he had acted in self-defense. The United States
13
Supreme Court held that the Fifth Amendment guarantees a defendant's right to remain silent
and prevents the prosecutor from commenting on that silence; however, when a criminal
defendant chooses to testify at trial, he waives that right and the prosecutor may cross-examine
him and impeach his credibility just like any other witness.
Adopting the holding of Jenkins, in Commonwealth v. Bolus the Pennsylvania Supreme
Court held that "when a criminal defendant waives his right to remain silent and testifies at his
own trial, neither the United States nor the Pennsylvania Constitution prohibit a prosecutor from
impeaching a defendant's credibility by referring to his pre-arrest silence." 545 Pa. 103, 113
(1996).
In Commonwealth v. Kuder, the defendant testified at trial that he believed the
complainant had a weapon at the time of an intercepted conversation, wherein defendant did not
deny allegations of sexual abuse, but rather expressed remorse and begged for forgiveness. He
testified that he only made those statements because he feared for his safety. The Commonwealth
questioned the defendant regarding his silence at the time the police arrived to arrest him, asking
why didn't he tell the police that the complainant had a gun. The Pennsylvania Superior Court
held that "[w [hen a defendant elects to testify, neither the right to remain silent nor due process
principles are offended by a prosecutor's reference to that defendant's pre-arrest silence, when
,
that reference is used to impeach the testifying defendant's credibility." 62 A.3d 1038, 1053 (Pa.
Super 2013). The court continued, stating that "[tjhe Commonwealth attempted to impeach the
credibility of [the defendant's] assertion by inquiring about [defendant's] silence at the time the
police arrived. Per Bolus and Jenkins, this was fair impeachment."
In the case at bar, the Commonwealth properly attempted to impeach Defendant by
asking him about his silence at the time the police discovered him hiding in the abandoned
14
house. 1 efendant had testified that he was a victim, not the instigator, and that people had begun
shootin at him for no reason. He further testified that he shot in self-defense and then gave his
gun to J mes after he jumped into the car. Like in Kuder, the Commonwealth asked Defendant
why he idn't call 911 immediately or why he failed to approach the uniformed police officer he
encount red if he was the victim of a crime. The Commonwealth further inquired about his
s.ilencc 11 the time the police arrived at the ab~ndoned house, asking w~y he did~'t tell the p~lice.
right away that people had been shooting at him or that James was not involved m the shooting:
THE COMMONWEALTH: Sir, my question is this: Even knowing that
there was another man with you, Lanier
James-and this is the last opportunity that
you saw him. He had your gun - when the
police first reached you on the second floor
of the abandoned home on Wanamaker
Street, you didn't say to them, "The other
guy's got nothing to do with this," did you,
sir?
(N.T. 5/26/15, p. 133-34). Defense counsel objected to this question, which this Court overruled.
The Commonwealth then continued with this line of questioning:
THE COMMONWEALTH: You didn't say that other man has nothing to
do with this, did you, sir?
DEFENDANT: No. At that point when the abandoned house
that I was at, I was immediately placed in
handcuffs, and the only person that Ifelt
comfortable talking about my whole ordeal
with is my lawyer.
THE COMMONWEALTH: Your answer is, no, you didn't tell them that
there was another person with you who had
nothing to do with this, did you, sir?
DEFENDANT: No.
15
Id. at 134-135. Per Bolus, Jen.kins, and Kuder, this was fair impeachment as the Commonwealth
was attempting to impeach Defendant's version of events by asking him about his pre-arrest
silence whenhe encountered police officers.
Defendant argued that.he was under arrest when the police found him in the abandoned
house and therefore the Commonwealth improperly questioned him regarding his post-arrest
silence. This claim is without merit. Pennsylvania Courts have recognized three levels of
interaction between police and the public: mere encounters, investigative detentions, and arrests.
Commonwealth v. Lyles, 54 A.3d 76, 79 (Pa. Super. 2012). ·
The first of these is a "mere encounter" (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or respond.
The second, an "investigative detention" must be supported by
reasonable suspicion; it subjects a suspect to a stop and period of
detention, but does not involve such coercive conditions as to
constitute the functional equivalent of arrest. Finally, an arrest or
"custodial detention" must be supported by probable cause.
Id. ( citing Commonwealth v. Ph inn, 761 A.2d 176, 181 (Pa.Super. 2000)( quoting
Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043, 1047 (1995)(citations and footnotes
omitted)). In order to determine whether an encounter with police has risen to the level of an
investigative detention, "the court must examine all of the circumstances and determine whether
police action would have made a reasonable person believe he was not free to go and was subject
to the officer's orders." Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005) (quoting
Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa.Super. 2003)). "To institute an
investigative detention, an officer must have at least a reasonable suspicion that criminal activity
is afoot. Reasonable suspicion requires a finding that based on the available facts, a person of
reasonable caution would believe the intrusion was appropriate." Id. Pennsylvania courts have
held that police officers may place handcuffs on individuals during investigative detentions for
16
the safety of police officers, and that this does not elevate the investigative detention to an arrest.
Commonwealth v. Rosas, 875 A.2d 341, 348 (Pa.Super.2005)(citing Commonwealth v.
Guillespie, A.2d 654, 660-661 (Pa.Super.2000)(holding "act of handcuffing suspects during
investigatory detention "was merely part and parcel of ensuring the safe detaining of the
individuals during the lawful Terry stop" and did not constitute an arrest)).
In the case at bar, Defendant was not immediately arrested when police found him hiding
in the abandoned house. Rather, he was subjected to an investigative detention. The police had
reasonable suspicion to detain Defendant as he matched the description of the shooter and was
found hiding in an abandoned house in same area that Officer Mundrick had observed the
suspected shooter jump out of a Nissan Maxima and run. At this point, Defendant was not under
arrest, even though he was placed in handcuffs for the officers' safety. He was detained in the
abandoned house for a short period of time until his identification as the passenger of the Nissan
Maxima could be confirmed or dispelled. Indeed, Defendant was the second person who had
been detained for Officer Mundrick to make an identification. As Officer Mundrick testified at
trial, the first male detained by police was not the man he saw emerge from the Nissan Maxima;
as a result, that man was released. (N.T. 5/20/15, p. 183). That man, like Defendant, was not
placed under arrest immediately. Rather, the police held him for a short period so they could
conduct their investigation, and then released him once it was confirmed that he was not
involved in any criminal activity. Since Defendant was not under arrest during the time he waited
at the abandoned house with police, questions regarding his pre-arrest silence were fair
impeachment under Jenkins, Bolus, and Kuder. Accordingly, this Court committed no error and
properly permitted the Commonwealth to inquire about Defendant's pre-arrest silence.
II. THE EVIDENCE WAS SUFFICIENT FOR THE JURY TO FIND
DEFENDANT GUILTY OF THIRD DEGREE MURDER.
17
The evidence adduced at trial was sufficient to support the jury's finding of guilt on the
charge of third degree murder.
A. Sufficiency of the evidence.
A review of the sufficiency of the evidence to support a conviction requires that the
evidence be reviewed in the light most favorable to the Commonwealth as verdict winner.
Commonwealth v. Levy, 2013 PA Super 331, 83 A.3d 457, 461 (2013) (quoting Commonwealth
v. Williams, 871 A.2d 254, 259 (Pa.Super. 2005)). The Commonwealth is also entitled to all
favorable inferences which may be drawn from the evidence. Commonwealth v. Kelly, 2013 PA
Super 276, 78 A.3d 1136, 1139 (2013)(citing Commonwealth v. Hopkins, 67 A.3d 817, 820
(Pa.Supe~. 2013)). The evidence put forth by the Commonwealth will be considered sufficient if ·
.it establishes each material element of the crime beyond a reasonable doubt, even if by wholly
circumstantial evidence. Commonwealth v. Franklin, 2013 PA Super 153, 69 A.3d 719, 722
(2013) (citing Commonwealth v. Brewer, 876 A.2d 1029, 1032 (2001)).
When determining whether the evidence is sufficient to support a guilty verdict, the
appellate court must examine the entire trial record and consider all of the evidence actually
received. Commonwealth v. Graham, 2013 PA Super 306, 81 AJd 137, 142 (2013) (quoting
Commonwealth v. Brown, 23 A.3d 544, 559~60 (Pa.Super 2011)). However, the trier of fact is
entitled to believe alt part or none of the evidence received at trial and the appellate court cannot
substitute its judgment for that of the fact-finder. Commonwealth v. Fabian, 2013 PA Super 6,
60 A.3d 146, 151 (2013) (quoting Commonwealth v. Jones, 886 A.2d 689, 704 (Pa.Super.
2005)). The facts and circumstances established by the Commonwealth need not eliminate any
possibility of the defendant's innocence; rather, any doubt is to be resolved by the fact-finder
unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact
18
could be concluded. Comm·onwealth v. Stays) 2013 PA Super 170, 70 A.3d 1256, 1266 (2013)
(citing Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa.Super. 2000)).
R Murder of the Third Degree.
Third degree murder is defined as all other types of murder that are not first degree or
second degree murder. Commonwealth v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013)(citing 18
Pa.C.S.A. §2502(c)). More specifically:
Third degree murder occurs when a person commits a killing which
is neither intentional nor committed during the perpetration of a
felony, but contains the requisite malice. Malice is not merely ill-
will but, rather, wickedness of disposition, hardness of heart,
recklessness of consequences, and a mind regardless of social duty.
Malice may be inferred from the use of a deadly weapon on a vital
part of the victim's body. Further, malice may be inferred after
considering the totality of the circumstances.
Garland, supra (quoting Commonwealth v. Truong, 36 A.3d 592, 597-98 (Pa.Super, 2012)
(quotations, quotation marks, citations omitted).
In Garland, the jury properly found the defendant guilty of third degree murder where he
and an accomplice approached a group of men talking on a front stoop, brandished firearms, and
then fired multiple times at the men as they ran away. The Garland court held that the defendant
showed malicious intent when he shot-at the decedent as well as anyone else who was in the
area, and that even if he didn't intend to kill anyone, he showed '<recklessness for society and
human life." 36 A.3d at 345.
In Commonwealth v. Devine, the jury properly found the defendant guilty of third degree
murder where he and his friends, when confronted by an angry mob gathered outside of their
19
house, chose to arm themselves with firearms and confront the mob rather than call the police for · ..
assistance. The defendant and his friends began shooting into the crowd, killing one of the
people gathered there. The court held that the defendant's actions showed "recklessness of
consequences." 26 A.3d 1139, 1149 (Pa. Super. 2013).
In the case at bar, the evidence adduced at trial was sufficient to support Defendant's
conviction of third degree murder. Officer Williams testified that heard gunshots and arrived on
the scene while the shooting was in progress. He observed Defendant running and shooting at a
black male running away from him. Aaron Johnson was shot once in the back and once in the
hip, and died from those injuries. Officer Williams saw Defendant get into the front passenger
seat of a maroon Nissan Maxima bearing out-of-state license plates and speed away. A few
streets away, Officer Mundrick spotted Defendant and James exiting a maroon Nissan Maxima
with Louisiana plates and chased James on foot. After placing James under arrest and retrieving
a firearm from his waistband, Officer Mundrick was called to a nearby abandoned house, where
police had found Defendanthiding in a second floor bedroom. Officer Mundrick positively
identified Defendant as the front seat passenger from the Nissan Maxima. Forensic Scientist
Scott Copeland testified that during his second review of the fingerprints recovered from inside
the Nissan Maxima, he determined that one of the fingerprints matched Defendant's, Officer
Gregory Walsh testified that all six of the fired .45 caliber cartridge casings recovered from the
scene of the shooting matched the gun recovered from James. Defendant himself testified that he
gave the gun to James when he got into the Nissan Maxima after shooting at the crowd of men.
Moreover, the jury properly found requisite malicious intent as Defendant fired multiple shots at
a crowd of people. As in Garland and Devine, shooting at a group of people on the street
demonstrates a "recklessness of consequences" and a "recklessness for society and human life."
20
Defendant himself admitted to shooting randomly at a group of people. This evidence was
sufficient to convict Defendant of third degree murder.
Defendant claims that the Commonwealth "failed to disprove the defendant's claim of
self-defense beyond a reasonable doubt." Defendant did not fully flush out this claim in his
Statement of Errors; however, it appears that he is claiming "imperfect self-defense," and
believes that he should have been convicted of a lesser offense, such as unreasonable belief
involuntary manslaughter. This claim is without merit.
Voluntary manslaughter-unreasonable belief killing justifiable-is defined as follows:
"A personwho intentionally or knowingly kills an individual commits voluntary manslaughter if .
at the time of the killing he believes the circumstances to be such that, if they existed, would
justify the killing under Chapter 5 of this title, but his belief is unreasonable." 18 Pa.C.S.A. §
2503(b). "[T[he elements necessary to establish unreasonable belief voluntary manslaughter,
which is sometimes loosely referred to as [')imperfect self-defense]']" require proof of "an
unreasonable belief rather than a reasonable belief that deadly force was required to save the
actor's life." Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa.Super. 2009) (quoting
Commonwealth v. Tilley, 528 Pa. 125, 141, 595 A.2d 575, 582 (1991)). "All otherprinciples of
justification under 18 Pa.C.S. § 505 must [still be met in order to establish) unreasonable belief
voluntary manslaughter." Id. Section 505 (a) sets forth the elements of self-defense: "The use of
force upon or toward another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use of unlawful force by
such other person on the present occasion. 18 Pa.C.S.A. § 505(a).20 "When a defendant raises
the issue of self-defense, the Commonwealth bears the burden to disprove such a defense beyond
a reasonable doubt." Ventura, 975 A.2d at 1143 (quoting Commonwealth v. Bullock> 948 A.2d
21
818, 824 (Pa.Super.2008)). The Commonwealth meets its burden of proof if it establishes at least
one of the following: (1) the accused did not reasonably believe that he was in danger of death or
serious bodily injury; (2) the accused provoked or continued the use of force; or (3) the accused
had a duty to retreat and the retreat was possible with complete safety. Ventura, 975 A.2d at
1143 (citing Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa.Super.2005)). The
Commonwealth must prove only one of these elements beyond a reasonable doubt to sufficiently
disprove a self-defense claim. Id. (citing Commonwealth v. Burns, 765 A.2d 1144, 1149
(Pa.Super.2000)).
Here, the Commonwealth sufficiently disproved Defendant's self-defense claim. Other
than Defendant's own self-serving version of events, there was no evidence presented that
showed Defendant was attacked, provoked or threatened, Defendant testified at trial that he shot
at the group of men "in self-defense," arguing that shots were fired at him first and that he did
not intend to kill anyone. He testified that he was attempting to enter a corner store, when he
heard gunfire. In response, he pulled out his own weapon and began to fire at a group of people
running towards him. Defendant testified that he did not know whether he shot anyone and that
he ran away and hid because he knew he was not supposed to be carrying a firearm as a
convicted felon. Clearly, the jury did not find Defendant's version of events to be credible.
Several witnesses who were outside with decedent Aaron Johnson the morning of the shooting
testified that Johnson, who was sitting on a bicycle, and the other men gathered on the porch
were smoking marijuana and talking about sports when they heard gunfire. Anthony Evans
described the gunmen as "black males with black boodles." Officer Williams, who heard the
gunshots himself and arrived on the scene while the shooting was still in progress, testified that
he saw Defendant running and shooting at a black male who was running away from him,
22
The medical examiner testified that Johnson was shot once in the back and once in the hip,
clearly refuting Defendant' s story that he was shooting at armed gurunen running towards him.
Based upon this evidence, the Commonwealth met its burden and proved that Defendant did not
reasonably believe himself to be in danger of death or serious bodily injury. Accordingly, this
Court's judgment of sentence should be affirmed.
23
CONCLUSION
After reviewing the applicable statutes, testimony and case law, this Court committed no
error. This Court properly permitted the Commonwealth to question Defendant regarding his
pre-arrest silence inside the abandoned house. In addition, the evidence was sufficient for the
jury to find Defendant guilty of third degree murder. Last, this Court agrees that the jury's
finding of guilt on the charge of Fleeing or Eluding Police Officer should be vacated as
Defendant was not the driver of the vehicle and the evidence adduced at trial was insufficient to
convict him of this crime.
BY THE COURT:
J.
24
|
6 Cal.3d 562 (1972)
493 P.2d 97
99 Cal. Rptr. 865
In re RICHARD ALDEN HIGBIE on Suspension of License.
Docket No. L.A. 29892.
Supreme Court of California. In Bank.
February 4, 1972.
*564 COUNSEL
Blair Barnette, Higbie & Higbie and Suzanne Robinson for Petitioner.
F. LaMar Forshee, Herbert M. Rosenthal, Ronald W. Stovitz and Christopher M. Reuss for Respondent.
*565 OPINION
THE COURT.
In this disciplinary proceeding we must consider whether the course of conduct of an attorney culminating in his conviction for failure to pay a federal marijuana transfer tax involves moral turpitude, and if so, the nature and extent of the appropriate discipline. We conclude that failure to pay the tax does not constitute moral turpitude per se, but that respondent attorney's conduct does reflect moral turpitude. Because the dominant legitimate motivation for respondent's wrongful behavior was apparently not personal profit and because respondent's professional record serves as a mitigating factor, we conclude that he should not be disbarred but that he should be suspended from the practice of law for two years, with an actual suspension of one year.
We draw the facts from the State Bar's brief, from respondent's testimony before the special administrative committee assigned to hear his case, and from 14 letters submitted to the State Bar by persons known to respondent in professional or community relationships. Both the Bar and respondent have stipulated to the "essential truth" of the facts presented in these sources.
Respondent has practiced law in Orange County since his certification by this court in 1958. During this time, even during the period following his conviction for the offense now under consideration, he has enjoyed an excellent reputation among members of his community. In particular, his clients and fellow attorneys have expressed a high regard for his competence, trustworthiness, and unselfishness, as well as for his willingness to provide professional services to those in need. As the facts to follow will disclose, respondent's excessive exercise of the last of these characteristics may well account for the conduct that led to this proceeding.
Among the persons whom respondent has helped over the years is John Bagley, a free lance pilot whom respondent has assisted since 1956 by providing loans, jobs, referrals for jobs, and occasional legal representation. In July 1968 Bagley, whose wife and mother faced serious illnesses, approached respondent with a request for a $200 loan. At this time respondent's investments were in unfortunate condition; moreover, Bagley stood in considerable debt to respondent. For these reasons respondent refused to lend the requested sum but suggested that he might be able to locate work for Bagley.
In the months prior to Bagley's request for a loan, respondent became socially acquainted with a group of young adults who evidently desired to obtain sources of marijuana for themselves and for distribution to others. Although respondent did not smoke marijuana himself, these friends and *566 acquaintances, knowing of respondent's interest in private aviation, occasionally suggested to respondent that he put them in touch with any pilot who would be willing to fly marijuana from Mexico.
In response to Bagley's requirement for financial assistance, respondent told him of these friends and their request. Respondent apparently entertained immediate second thoughts about this reference, but Bagley during the following week constantly urged respondent to complete the reference, citing his urgent need for funds. Respondent finally agreed to sponsor a meeting in his office between Bagley and these persons. At that meeting Bagley and the friends conceived of a tentative plan to smuggle marijuana into the United States. Respondent himself, however, after introducing the parties, left the meeting and did not assist in formulating the plan.
Immediately after this meeting Bagley called the United States Customs Service. He represented to the federal officers that an old friend had just contacted him and requested that he assist in smuggling marijuana. Evidently the bounty offered by the Customs Service for assistance in apprehending smugglers motivated Bagley; indeed, Bagley had similarly betrayed another "friend" four or five years previously, collecting a substantial sum for his performance as informer. As a result of Bagley's call in the instant case, the Customs Service provided him with a recorder with which to record all future conversations with respondent.
Over the next three months Bagley and respondent's friends worked toward fruition of the smuggling plan. Although respondent himself expressed his desire not to participate, Bagley succeeded in preserving respondent's involvement in the scheme up to the moment of its attempted completion. In order to maintain respondent's role in the conspiracy Bagley asserted his urgent requirements for money, his distrust of respondent's friends, and his need for the protection that could only come from respondent's participation in the conspiracy's transactions.
Respondent succumbed in part to Bagley's pleadings, and on one occasion lent Bagley $75 so that Bagley could reestablish his pilot qualifications, and in another instance delivered $1,000 of his friends' money to Bagley. The $75 represented a personal loan from respondent and not part of Bagley's fee from the conspirators; the $1,000 did form part of Bagley's fee.
In November Bagley and respondent's friends attempted to execute the smuggling plan. Bagley flew to Guadalajara, where one of the confederates waited with the marijuana. Although, when Bagley arrived, the Mexican Federales arrested him and his confederate, the American customs officials persuaded the Mexican authorities to release him. The authorities *567 substituted alfalfa for the marijuana; Bagley returned to California with that substituted product, and upon his arrival in Palm Springs the American customs officials arrested the waiting confederate to whom Bagley was to deliver the marijuana.
The next day federal agents arrested respondent in his office. Respondent freely described his role in the plan, admitted the wrongfulness of his actions, and offered to cooperate in whatever way possible. He refused, however, to concede that his motivation was for any personal gain, consistently contending that his sole purpose was to assist Bagley in overcoming his financial difficulties.
In late November of 1968 a federal grand jury indicted respondent for conspiracy to smuggle marijuana with intent to defraud the United States, a violation of section 176a of title 21, United States Code.[1]
By May of 1969 respondent and the United States Attorney agreed that the government would dismiss the section 176a indictment if respondent would plead guilty to a charge of violating section 4744(a) of title 26, United States Code:[2] failure to pay the federal marijuana transfer tax. Respondent agreed to this plea bargain for two reasons: to *568 avoid the possibility of the mandatory five-year sentence that would result from a conviction on the section 176a charge, and to avoid the publicity and delay that would attend a trial on that charge. The United States Attorney's motivation to reduce the charge apparently derived from the difficulty in proving respondent's fraudulent intent and from the possible success of respondent's establishing a defense of entrapment.[3]
On June 16, 1969, the federal district court found respondent guilty of violation of the above-mentioned section 4744,[4] and sentenced him to a three-year probation, the first 90 days of which were to be served in jail. At the sentencing the federal judge found that respondent's "motives were good, though they may have been misconceived or misplaced." The judge also condemned Bagley's role in encouraging respondent's participation in the smuggling scheme.
Respondent served his term and became an exemplary probationer. His probation officer reported that respondent cooperated fully in all aspects of his rehabilitation and demonstrated his ability to represent his clients creditably. The probation officer also expressed his view that respondent had suffered enough for his errors, and did not require further discipline.
On April 21, 1970, the State Bar transmitted respondent's record of conviction to this court, as authorized by Business and Professions Code section 6101. In response to our request for briefs on the question of whether conviction of a violation of section 4744 involved moral turpitude, the State Bar asserted that failure to pay the marijuana transfer tax did not involve moral turpitude per se. Nonetheless, the bar requested an evidentiary hearing to determine if the nature of respondent's conduct did *569 introduce an element of moral turpitude into the offense of which he was convicted. On June 17, 1970, pursuant to Business and Professions Code section 6102, subdivision (c), we complied with this request and referred respondent's case to the bar for hearing and recommendation.
The local bar administrative committee heard this matter on November 2, 1970, finding that respondent conspired to smuggle marijuana "for distribution and gain," and concluding that his acts constituted moral turpitude. The committee recommended disbarment. The examiner who had presented the bar's case to this committee did not agree with these findings, specifically challenging the conclusion that respondent conspired to smuggle "for gain," and asserting that disbarment constituted an unnecessarily severe discipline. The bar disciplinary board agreed, revising the findings to conclude that respondent conspired to smuggle only "for distribution" and recommending two years actual suspension of respondent's license to practice law.
In order to support a disbarment or suspension from the practice of law, the attorney must have committed a crime involving moral turpitude (Bus. & Prof. Code, § 6101) or an act involving "moral turpitude, dishonesty, or corruption." (Bus. & Prof. Code, § 6106.) (1) Although the burden falls on each respondent to show that the disciplinary board's findings of moral turpitude are not supported by the evidence (Lee v. State Bar (1970) 2 Cal.3d 927, 939 [88 Cal. Rptr. 361, 472 P.2d 449]), such findings do not bind this court. (2) The question of moral turpitude is one of law; the determination of the issue becomes this court's responsibility. (In re Alkow (1966) 64 Cal.2d 838 [51 Cal. Rptr. 912, 415 P.2d 800, 21 A.L.R. 3d 882]; Grove v. State Bar (1965) 63 Cal.2d 312, 315 [46 Cal. Rptr. 513, 405 P.2d 553].) (3) In reaching our conclusion as to whether a specific crime or act constitutes moral turpitude, we are bound to resolve all doubts in favor of the accused respondent. (Himmel v. State Bar (1971) 4 Cal.3d 786 [94 Cal. Rptr. 825, 484 P.2d 993]; Lee v. State Bar, supra, at p. 939.)
"Moral turpitude" is an elusive concept incapable of precise general definition. One dramatic exposition of the term was rendered by this court in 1938, and has since been consistently followed: "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (In re Craig (1938) 12 Cal.2d 93, 97 [82 P.2d 442]; see also Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 73 [64 Cal. Rptr. 785, 435 P.2d 553]; In re Boyd (1957) 48 Cal.2d 69, 70 [307 P.2d 625].) Moral turpitude has also been described as any crime or misconduct committed without excuse (In re Hallinan (1954) 43 Cal.2d 243, 251 [272 P.2d 768]; In re *570 Rothrock (1940) 16 Cal.2d 449, 453 [106 P.2d 907, 131 A.L.R. 226]), or as any "dishonest or immoral" act, not necessarily a crime. (1 Witkin, Cal. Procedure (2d ed. 1970) Attorneys, § 195, at p. 202.) "`The concept of moral turpitude depends upon the state of public morals, and may vary according to the community or the times,'" (see In re Hatch (1937) 10 Cal.2d 147, 151 [73 P.2d 885]), as well as on the degree of public harm produced by the act in question.
(4) In evaluating conduct that may or may not involve moral turpitude, we must recognize the purpose for which we have established the "moral turpitude" standard: to ensure that the public, the courts, and the profession are protected against unsuitable legal practitioners. (See Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 471-472 [55 Cal. Rptr. 228, 421 P.2d 76]; In re Rothrock, supra, 16 Cal.2d at p. 454; cf. Yakov v. Board of Medical Examiners, supra, 68 Cal.2d at p. 73 and fn. 6 (medical doctor).) The objective is not to impose punishment upon members of the profession. (5) To hold that an act of a practitioner constitutes moral turpitude is to characterize him as unsuitable to practice law.
We turn first to the question of whether moral turpitude, as above described, can be imputed per se from the respondent's conviction of failure to pay the marijuana transfer tax. (6) In bar discipline proceedings under section 6101 of the Business and Professions Code, the respondent's conviction of an offense stands as conclusive proof that the accused committed all acts necessary to constitute the offense. (In re Hallinan, supra, 43 Cal.2d at p. 247.) Because in the instant case the offense violates federal law, we look to the federal courts to determine the nature of the elements of a conviction under section 4744(a), title 26, United States Code. (In re Hallinan, supra, at p. 250.)
Section 4744(a)(1) declared, in part, prior to its repeal in 1970,[5] "It shall be unlawful for any person who is a transferee required to pay the [marijuana] transfer tax ... to acquire or otherwise obtain any marijuana without having paid such tax." That the principal element of the offense is failure to pay the tax becomes clear in view of the Supreme Court's recent discussion of section 4744(a) in the case of Leary v. United States (1969) 395 U.S. 6 [23 L.Ed.2d 57, 89 S.Ct. 1532]. In Leary the court evaluated the legislative history of section 4744 and concluded that its purpose was "merely to impose a very high tax on transfers to [non-medical marijuana users and carriers] and not to prohibit such transfers entirely." (395 U.S. at p. 21 [23 L.Ed.2d at p. 73].) Thus, because the statute contains no requirement of wrongful intent or intent *571 to defraud the government, an individual may be convicted under section 4744(a) by virtue of his possession of marijuana and his failure, however inadvertent, to pay the tax.
(7) We cannot hold that a violation of section 4744(a) constitutes moral turpitude in every case. In the first place, as we have explained, the statute does not require an intent to defraud, and without such intent the failure to pay a tax does not involve moral turpitude. (See In re Hallinan, supra, 43 Cal.2d at pp. 252-254.) Furthermore, although the act condemns the illegal acquisition of marijuana, the possession and use of marijuana at the present time raises controversial questions, to which automatic answers cannot be given. Lawmakers, legal scholars, physicians, and sociologists are divided in opinion as to the wisdom of prohibiting or punishing these acts.[6] In response to demands from sources of the highest integrity that marijuana be treated differently from other drugs, and that punishments for its use be eliminated or significantly ameliorated,[7] the Congress in 1970 reduced the crime of unlawful possession or unremunerated distribution of marijuana from felony to misdemeanor status, providing for the probation and eventual expunging of records of those who are first offenders. (See 21 U.S.C. §§ 841(b)(4), 844.) The California Legislature had in 1968 similarly responded, reducing the crime of first offense marijuana possession from a felony to a felony-misdemeanor, and providing for incarceration in county jails rather than the state prisons. (Health & Saf. Code, § 11530.)
The State Bar states in its brief: "If Section 4744(a) is viewed from the nature of the activities it seeks to discourage (i.e., smoking marihuana, addiction to it, or its use for illicit traffic), with the differing social views extant today it would appear that only the latter activity (use for illicit traffic) could be defined as an act `done contrary to practice, honesty, modesty, or good morals' and `an act of baseness, vileness or depravity' necessarily involving moral turpitude. [Citations.] From the information it cannot be determined whether Mr. Higbie acquired and obtained the marihuana as a smoker, addict or for illicit traffic in marihuana. ¶ It does *572 not appear that Mr. Higbie's conviction is one involving moral turpitude as a matter of law." (Memorandum of State Bar, pp. 10-11.)
We agree. (8) Possession or use of marijuana is, of course, unlawful (see Health & Saf. Code, § 11530 et seq.), but measured by the morals of the day (In re Hatch, supra, 10 Cal.2d at p. 151) its possession or use does not constitute "an act of baseness, vileness, or depravity ... contrary to the accepted and customary rule of right and duty between man and man" (In re Craig, supra, 12 Cal.2d at p. 97), or indicate that an attorney is unable to meet the professional and fiduciary duties of his practice.
Even though the crime for which respondent has been convicted does not constitute moral turpitude per se, we must examine the facts and circumstances that gave rise to the offense to determine whether respondent's behavior does involve moral turpitude. (9) In this investigation we are not restricted to examining the elements of the section 4744 conviction, but may look to the whole course of respondent's conduct which reflects upon his fitness to practice law. (See Bus. & Prof. Code, § 6106; In re Hallinan, supra, 43 Cal.2d at p. 253; Suspension of Hickman (1941) 18 Cal.2d 71, 74 [113 P.2d 1]; 1 Witkin, Cal. Procedure, supra, § 199, at p. 206.)
The Disciplinary Board of the State Bar found that respondent "engaged in a conspiracy to smuggle a large quantity of marijuana into the United States of America for the purpose of distribution." If we read this finding to mean that respondent's motivation for engaging in the conspiracy was to effect unlawful distribution of marijuana, then we must surely conclude that this behavior involved moral turpitude. The purposeful evasion of federal laws that require the reporting and taxation of imported marijuana constitutes a fraud upon the government, an act of dishonesty no more tolerable than fraud upon an individual. "Although the problem of defining moral turpitude is not without difficulty [citations], it is settled that whatever else it may mean, it includes fraud...." (In re Hallinan, supra, 43 Cal.2d at p. 247.)
The facts surrounding respondent's case do not compel the conclusion that respondent's intent was to defraud the government, and we do not interpret the board's finding so to hold. (10a) Rather, the circumstances indicate that although "distribution," and hence fraud, constituted the purpose of the conspiracy, respondent was not necessarily so motivated. The facts show that respondent neither sought any gain nor expected to enjoy any benefit from his role in the scheme; that he neither used marijuana himself nor advocated its greater use in this country. These facts lend credence to his contention that his initial action in the conspiracy, *573 the referral of Bagley to his friends, grew entirely out of his desire to assist Bagley with his financial problems. Although respondent became more enmeshed in the conspiracy in the weeks following his initial move, the facts indicate that this involvement either grew out of a continuing compassion for Bagley's condition in life, or resulted from Bagley's amoral efforts to win a bounty by building the government's case against respondent.
The federal district judge who sentenced respondent under his section 4744 conviction adopted this conclusion, finding that respondent's "motives were good, though they may have been misconceived or misplaced." We therefore interpret the board's finding to mean that respondent assisted a conspiracy, the aim of which was to defraud the government, but did not share the conspiracy's fraudulent purpose.
The inquiry into respondent's behavior does not end with a conclusion that his actions did not constitute fraud. (11) Fraud is but one, even if a principal, facet of moral turpitude. Respondent purposefully disregarded legal standards of conduct in his advice to Bagley, and invited his friend to place himself in jeopardy of the law and to engage in an unlawful conspiracy. (10b) Respondent failed to sever himself from that scheme when, on reflection, both conscience and the law so demanded. Moreover, respondent disregarded the legitimate interest and concern of the public that attorneys not use their legal knowledge to counsel and assist clients to violate the law.
Because respondent's actions indicate his failure in the "private and social duties" that, as an attorney, he owed to Bagley and to the public at large (In re Craig, supra, 12 Cal.2d at p. 97), as well as his unsuitability to be entrusted with the privileges and duties of the legal profession, these actions involve moral turpitude.
Although the respondent's conduct calls for discipline to protect both the profession and the public, we note the following factors that mitigate against respondent's disbarment or suspension. He had no disciplinary record prior to the instant case. (Cf. In re Jones (1971) 5 Cal.3d 390, 401 [96 Cal. Rptr. 448, 487 P.2d 1016]; Simmons v. State Bar (1969) 70 Cal.2d 361, 366 [74 Cal. Rptr. 915, 450 P.2d 291].) He enjoyed a good reputation among his clientele and the members of his community, even after the events of his participation in the smuggling scheme came to light. (Cf. In re Jones, supra.) He has continued to practice law following his incarceration, and has successfully represented his clients' interests and obtained their trust. (Cf. id.) His wrongful actions did not grow out of a motive of personal enrichment, but were prompted almost entirely by the malevolent invitations of an informer. (Cf. Yakov v. Board of Medical *574 Examiners, supra, 68 Cal.2d at p. 71; In re Clark (1959) 52 Cal.2d 322, 324 [340 P.2d 613].) Nor did his actions cause any particular individual to suffer physical or financial harm. (Cf. Himmel v. State Bar, supra, 4 Cal.3d at p. 798; Sullivan v. State Bar (1955) 45 Cal.2d 112, 119-120 [287 P.2d 778]; cf. In re Jones, supra, 5 Cal.3d at p. 400.)
Furthermore, respondent displayed honesty and cooperation when confronted with arrest, and in foregoing possibly meritorious defenses to both the conspiracy and tax evasion charges, indicated recognition of his wrongful conduct and willingness to rehabilitate himself. (Cf. In re Plotner (1971) 5 Cal.3d 714, 716-717 [97 Cal. Rptr. 193, 488 P.2d 385]; Simmons v. State Bar, supra, 70 Cal.2d at p. 368; In re Alkow, supra, 64 Cal.2d at p. 841.)
(12) Viewing respondent's wrongful conduct in light of these mitigating factors, we conclude that the protection of the public, the courts, and the legal profession do not require that he be disbarred but that he should be suspended for a two-year term as specified below.
We order that Richard Alden Higbie be suspended from the practice of law for two years, the first year of which shall be actual suspension. Following actual suspension, he shall be placed on probation for the last year of the two-year term, during which period he may engage in the practice of law. If during the term of his actual suspension and probation no misconduct of his is called to the attention of this court, then, without further order his probation and suspension shall terminate and he shall be reinstated as an attorney with full status in the bar.
This order shall become effective 30 days after the filing of this opinion.
NOTES
[1] Section 176a provided, in relevant part: "Notwithstanding any other provision of law, whoever, knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law, or smuggles or clandestinely introduces into the United States marihuana which should have been invoiced, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or whoever conspires to do any of the foregoing acts, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000...."
Congress repealed this section on October 27, 1970. (See Pub. Law 91-513, § 1101 (a) (2), 84 Stat. 1291.) The importation of marijuana is now proscribed by 21 United States Code section 952, with a penalty under 21 United States Code section 960(b)(2) of five years' imprisonment and a $15,000 fine.
[2] Section 4744(a) provided, in relevant part, "It shall be unlawful for any person who is a transferee required to pay the [marijuana] transfer tax ...
"(1) to acquire or otherwise obtain any marihuana without having paid such tax, or
"(2) to transport or conceal, or in any manner facilitate the transportation or concealment of any marihuana so acquired or obtained."
Under 26 United States Code section 7237(a), punishment for violation of section 4744 consisted of imprisonment for a term from two to ten years, and a fine of not more than $20,000. First offenders could receive suspended sentences.
Congress repealed both these sections on October 27, 1970. (See Pub. Law 91-513, §§ 1101(b)(3)(A), 1101(b)(4)(A), 84 Stat. 1292.) The possession of marijuana for distribution is now proscribed by 21 United States Code section 841(a)(1), and the penalty for first offenders under 21 United States Code section 841(b)(2) is a maximum of five years' imprisonment and a $15,000 fine, with no minimum punishment.
[3] Respondent could demonstrate on the stipulated facts that without Bagley's persistent demands the conspiracy would not have reached fruition, or an least that respondent would not have formed part of the conspiracy that eventually matured. These showings may have constituted a valid entrapment defense to the section 4744 charge. (See Sendejas v. United States (9th Cir.1970) 428 F.2d 1040; United States v. Dehar (2d Cir.1968) 388 F.2d 430; Guerra v. United States (10th Cir.1966) 371 F.2d 584.)
[4] On May 19, 1969, between the time of respondent's plea and conviction, the United States Supreme Court decided Leary v. United States (1969) 395 U.S. 6 [23 L.Ed.2d 57, 89 S.Ct. 1532], holding that invocation of the self-incrimination clause would constitute a complete defense to 26 United States Code section 4744(a). Since respondent could have withdrawn his guilty plea any time before sentencing (Fed. R. Crim. P., rule 34(d)) he had available on the date of his conviction a complete defense to the charge to which he pleaded guilty. Respondent also had available another defense, namely, that he never acted as a transferee of marijuana, and hence was not obligated to pay the tax. (See Symons v. United States (9th Cir.1949) 178 F.2d 615.) Despite the "conclusive evidence" of respondent's guilt that follows from his guilty plea (Bus. & Prof. Code, § 6101), the presence of valid defenses is relevant in mitigation of the discipline to be imposed on respondent, as will be shown infra.
[5] See footnote 2, supra.
[6] See Marihuana: First Report by the Select Committee on Crime, House Report No. 91-978, 91st Congress, 2d Session (1970) at pages 95-106; Clark, Crime in America (1970) at pages 95-96; Kaplan, Marijuana The New Prohibition (1970); The New Social Drug: Cultural, Medical, and Legal Prospectives on Marijuana (Smith ed. 1970) at pages 106-156; Kaplan, Foreword: Marijuana Laws: An Empirical Study of Enforcement and Administration in Los Angeles County (1968) 15 U.C.L.A.L. Rev. 1499, 1501-1506.
[7] See e.g., House Report 91-978, supra; Kaplan, Marijuana The New Prohibition, supra; Arthur D. Little, Inc., Drug Abuse and Law Enforcement (1967) at pages 14-17, 100; President's Advisory Committee on Narcotic and Drug Abuse, Final Report (1963) at pages 39-43.
|
600 S.E.2d 182 (2004)
215 W.Va. 470
Barry M. DUKE, Plaintiff Below, Appellant,
v.
Patricia Dawn RICHARDS Defendant Below, Appellee.
No. 31670.
Supreme Court of Appeals of West Virginia.
Submitted: June 8, 2004.
Filed: July 2, 2004.
*184 Paul G. Taylor, Esq., Martinsburg, for the Appellant.
James P. Martin, Esq., Charleston, for the Appellee.
STARCHER, Justice.
In this appeal from the Circuit Court of Berkeley County, which affirmed an order of the Family Court of Berkeley County, we are asked to review an order refusing to give an obligor parent credit, against a current child support obligation or against past child support arrearages, for amounts received by a minor child from the United States Department of Veterans Affairs as a result of the obligor parent's disability.
As set forth below, we reverse the circuit court's order and remand the case to the Family Court of Berkeley County for further proceedings.
I.
Facts & Background
The appellant, Barry M. Duke, and the appellee, Patricia Dawn Richards, lived together in Colorado while Mr. Duke served in the United States Army. On December 10, 1993, a child, Tyler W. Duke, was born of this relationship. After the relationship ended, Ms. Richards moved to Berkeley County, West Virginia with Tyler, and Mr. Duke initiated proceedings seeking custody of Tyler. However, Ms. Richards was granted custody of Tyler in 1997, and Mr. Duke was ordered to pay child support of $273.00 per month to Ms. Richards.
During this time period, Mr. Duke was honorably discharged from the United States Army. Mr. Duke's employment was intermittent after his discharge because of physical and mental health issues connected with his military service in the Gulf War. Because of his sporadic employment, Mr. Duke failed to pay his child support obligation with regularity and fell into arrears.[1] On May 3, 2000, the Department of Veterans Affairs found Mr. Duke to be unemployable because of his service-connected health issues and awarded him 100% disability benefits.[2] At approximately the same time, the record suggests that the Social Security Administration also found Mr. Duke to be totally disabled, and began paying him disability benefits. Mr. Duke asserts that, currently, his sole income is in the form of disability benefits from these two agencies.
Both the Social Security Administration and the Department of Veterans Affairs pay a portion of Mr. Duke's disability benefits directly to Tyler. Tyler currently receives approximately $80.00 per month from the Social Security Administration. In addition, the Department of Veterans Affairs appears to have paid to Tyler $63.00 per month from December 1998 through September 1999, and since October 1999 has paid $100.00 per month.
*185 In May 2002, Mr. Duke filed a petition to modify his child support obligation. In his petition, Mr. Duke asked the family court for credit against his current child support obligation, as well as his past child support arrearages,[3] for the amounts paid to Tyler by the Department of Veterans Affairs.
The parties agree that Mr. Duke has received a dollar-for-dollar credit against his child support obligation for the amounts paid to Tyler by the Social Security Administration. This is in accord with W.Va.Code, XX-XX-XXX(a) [2001], which states that any "amount of the social security benefits sent directly to the child's household will be subtracted from the child support order."[4]
However, the statutes regarding the calculation of child support make no mention of benefits paid by the Department of Veterans Affairs on account of an obligor's disability. Accordingly, on March 11, 2003, the family court entered an order that denied Mr. Duke's request for a credit against his child support obligations for the amounts paid to Tyler by the Department of Veterans Affairs.
Mr. Duke then submitted a petition for appeal to the circuit court. On April 30, 2003, the circuit court issued a one-sentence ruling announcing that Mr. Duke's petition was denied.[5]
Mr. Duke now appeals the March 11, 2003 order of the family court denying Mr. Duke a credit against his current child support obligation and his past child support arrearages for sums paid on his behalf directly to Tyler from the United States Department of Veterans Affairs.
II.
Standard of Review
We recently established our standard review for cases appealed from a family court, setting forth a three-pronged test used to evaluate such cases:
In reviewing challenges to findings made by a family court judge that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.
Syllabus Point 2, Lucas v. Lucas, 215 W.Va. 1, 592 S.E.2d 646 (2003). With this standard in mind, we review the parties' arguments.
III.
Discussion
The legal issue presented by the parties in this case is simple: should a parent who is subject to a child support obligation be given credit against that obligation for payments made by the Department of Veterans Affairs to the child or the child's custodian because of the parent's disability? We think so.
The general rule applied by most courts in domestic relations cases is that if a child, or the child's custodian, receives a governmental benefit that is in some sense generated by the efforts or qualifications of the *186 child's non-custodial parent, the non-custodial parent is entitled to a credit for the benefit against any child support obligation owed by that non-custodial parent. Courts generally hold that "the payments should properly be regarded as a substitute for support payments from the obligor's own earnings ... [but] qualify their holdings by saying that a credit will not be available if the result is clearly inequitable." Annotation, "Right to Credit on Child Support Payments for Social Security or Other Government Dependency Payments Made for Benefit of Child," 34 A.L.R.5th 447, 464 § 2[a] (1995). See also, "Generally; Sums Paid by Government Benefit or Assistance Programs," 24A Am. Jur.2d, Divorce and Separation § 1066, at 472 (2004) ("There is also a rebuttable presumption that an obligor spouse is entitled to a credit against child support obligations for amounts paid as Social Security or other Federal Government benefits for support of his or her child.").
We recognized this principle in Farley v. Farley, 186 W.Va. 263, 412 S.E.2d 261 (1991) in the context of benefits paid by the Social Security Administration as a result of a father's disability. In Farley, a father was ordered to pay $150.00 per month to the mother of his two children, as support for the children. After the father became disabled in 1986, he paid support sporadically and accrued arrearages, but "continued to make payments when he could." 186 W.Va. at 264, 412 S.E.2d at 262. In 1989, the Social Security Administration ruled that the father was totally disabled as of May 1986, and issued two lump sum checks for past benefits: one to the father, and another to the mother for the two dependent children.
In Farley, we found that "it is easy to conclude that social security disability benefits should be viewed as credits toward a parent's child support payments," but found that the more difficult question was whether the father was entitled to credit the lump-sum check received by the mother against his child-support arrearages. 186 W.Va. at 266, 412 S.E.2d at 264. We recognized the general rule that "support payments can be modified only prospectively and not retrospectively," but also recognized that the average litigant "is not the type of person who consults his lawyer on a daily basis to make sure that his life is lived in conformity with the headnotes in our latest advance sheets." Id.
We therefore adopted an equitable rule in Farley, holding that
... when the Social Security Administration awards a lump sum payment to the caretaker of dependent children, a court may credit the amount received to any accrued arrearages, but is not required to do so.... [W]e allow direct social security payments to be credited to the debtor spouse against arrearages, but it is the obligation of the debtor spouse to seek court approval for such credit and to seek a new court order concerning child support that takes into consideration, if warranted, social security's monthly payments....
The great weight of authority is that social security back pay awards are credits against child support arrearages when the disabled debtor has operated in good faith and there are no other extraordinary circumstances that would militate in favor of a different result.
Id.
We therefore established in Farley the rule that a disabled obligor was presumptively entitled to a credit against a child support obligation for social security disability benefits received by the child, but the disabled obligor bore the burden of acting in good faith and promptly obtaining court recognition of those disability benefits. In the absence of prompt court approval, we left to the court the discretion to determine whether or not equity required that disability benefits paid in the past or lump-sum benefits should be credited against past arrearages. We stated, at Syllabus Points 1 and 2 of Farley:
1. Social security is similar to a private insurance contract and benefits paid to dependents directly are presumptively credits against the insured's support obligation; however, to receive credit a debtor spouse must immediately make a motion before the circuit court to have such benefits credited against arrears and to have a new court order governing future payments *187 that take social security benefits into account.
2. In the single instance of benefits paid to dependents directly by the Social Security Administration, a court may give retroactive credit when: (1) the debtor spouse has acted in good faith and has promptly sought court approval of the credit of social security against child support; (2) in the discretion of the trial court, there were no other assets reasonably available from which child support payments could have been paid; and (3) there were no other changes in circumstances that, in their totality, militate against awarding credit.
As was cited previously, the Legislature has partly codified our holding in Farley at W.Va.Code, XX-XX-XXX(a) [2001],[6] and now when a family court judge calculates a parent's child support obligation under the Guidelines for Child Support Awards, the judge must "subtract[] from the child support order" any amount of the parent's "social security benefits sent directly to the child's household[.]" The statute, however, makes no provision for any other benefits received by child's household from sources such as the Department of Veterans Affairs as a result of some legal status of the obligor parent (like a finding the obligor parent is disabled), nor does the statute make any provision for whether such benefits may be credited against arrearages on a past child support obligation.
Appellant Duke contends that the family court erred in not allowing him any credit for the disability benefits received by Tyler from the Department of Veterans Affairs on the appellant's behalf. The appellant argues that he should receive credit against both his current child support obligation and his past child support arrearages for all sums paid to Tyler.
Appellee Richards partly agrees with the appellant's position, and agrees that an obligor parent should receive credit against a current child support obligation for disability benefits paid to the child's household by Department of Veterans Affairs on the obligor's behalf. However, the appellee argues that the Court should extend the principles contained in Farley regarding social security disability benefits to also cover disability benefits paid by the Department of Veterans Affairs, and the methods family courts should employ in assessing whether to credit past or lump-sum payments of disability benefits against child support arrearages. We agree.
We therefore extend our holding in Farley to apply to disability benefits paid by the Department of Veterans Affairs. Any payments of disability benefits made to a child's household by the Department of Veterans Affairs as a result of an obligor's disability should properly be regarded as a substitute for current support payments from the obligor's own earnings. In other words, the obligor is entitled to a credit against the obligor's current support obligation for those payments in a manner similar to that specified in W.Va.Code, XX-XX-XXX [2001].
Furthermore, payments may be credited "against child support arrearages when the disabled debtor has operated in good faith." Farley, 186 W.Va. at 266, 412 S.E.2d at 264. Accordingly, a court may give an obligor retroactive credit for payments of disability benefits made to a child's household by the Department of Veterans Affairs as a result of the obligor's disability when: (1) the obligor has acted in good faith and has promptly sought court approval of the credit of disability benefits against child support;[7] (2) in the discretion of the court, *188 there were no other assets reasonably available from which child support payments could have been paid; and (3) there were no other changes in circumstances that, in their totality, militate against awarding credit.
Assessing the record in the instant case, we conclude that appellant Duke is entitled to credit against his current child support obligation for payments made by the Department of Veterans Affairs to Tyler as a result of Mr. Duke's disability, and the family court erred in holding otherwise. However, we are unable to determine from the record whether Mr. Duke is entitled to a credit for payments made before the filing of his petition to modify against his substantial arrearages. The appellee cites to instances in the record below where it appears that the appellant may have failed to act in good faith to address his support obligations,[8] and failed to reveal to the family court his sources of income or increases in that income.[9] We are disinclined on such a record to apply the factors outlined above. Such an assessment is best left to the family court on remand.
IV.
Conclusion
The family court order dated March 11, 2003, and the April 30, 2003 circuit court order affirming that order, are reversed, and the case is remanded to the family court for proceedings not inconsistent with this opinion.
Reversed and Remanded.
NOTES
[1] The appellant estimates his child support arrearages to be approximately $10,466.80, inclusive of principal and interest, as of February 2004. How this figure was calculated is not apparent from the record.
[2] Both the record and the parties suggest that Mr. Duke received benefits from the Department of Veterans Affairs prior to this date. However, neither the legal reason for nor the amount of these benefits is clear.
[3] Mr. Duke asserts that Tyler has directly received approximately $6,056.00 from the Department of Veterans Affairs, and he seeks to retroactively credit this amount against his child support arrearages.
[4] W.Va.Code, XX-XX-XXX(a) [2001] states:
(a) If a proportion of the obligor's social security benefit is paid directly to the custodian of his or her dependents who are the subject of the child support order, the following adjustment shall be made. The total amount of the social security benefit which includes the amounts paid to the obligor and the obligee shall be counted as gross income to the obligor. In turn, the child support order will be calculated as described in sections 13-401 through 13-404. To arrive at the final child support amount, however, the amount of the social security benefits sent directly to the child's household will be subtracted from the child support order. If the child support order amount results in a negative amount it shall be set at zero.
[5] On August 15, 2003, the family court entered an order increasing Mr. Duke's child support obligation from $273.00 per month to $457.00 per month because of an increase in Mr. Duke's income. The calculation of Mr. Duke's income took into account amounts paid to Mr. Duke by the Social Security Administration and the Department of Veterans Affairs.
[6] See supra, footnote 4.
[7] We have emphasized that the "good faith" and "prompt approval" requirements are to be read together. For instance, in Settle v. Settle, 208 W.Va. 310, 540 S.E.2d 178 (2000) (per curiam), the obligor stopped paying child support altogether when his children began receiving a portion of the obligor's social security benefits, and did not seek court approval for his actions for nine years. We acknowledged in Settle that the obligor's actions were not "prompt," but also found that the obligor had acted in good faith because the amount of social security benefits received by the children exceeded the obligor's monthly child support obligation. We stated that
... there is no evidence in the record that would indicate to the Appellant that there was otherwise a problem with his child support obligation. To the contrary, the Appellant believed that his child support obligation to his children was covered by the dependent's benefits they received from Social Security because of his disability.
208 W.Va. at 314, 540 S.E.2d at 182. We therefore allowed the obligor to receive a full credit against his child support arrearages for the monies his dependent children had received from the Social Security Administration.
[8] For example, the appellee cites to references in the record where the appellant advised the circuit court in a 1999 contempt proceeding that he was receiving regular payments from the Department of Veterans Affairs, and that he expected to receive a substantial back award of benefits. However, his unverified September 2002 financial disclosure statement which was given subsequent to his petition to modify his support obligation in light of his veteran's disability benefits makes no mention of any back payment awards. Remarkably, the income section of the financial disclosure statement does not include the appellant's monthly veteran's disability benefit payments at all.
[9] An example of the gaps in the appellant's reported income can be found within the various calculations of child support contained in the record. The record indicates that the appellant's income in 1997, when the case was finally presented to the court, was $956.29, and on the basis of that income the appellant was ordered to pay the appellee $273.00 per month in child support. As of December 2002, the appellant's income-apparently consisting only of social security and veteran's disability benefits was $3,281.00 per month, and the family court found that under the Guidelines for Child Support the appellant should be paying the appellee $457.00 per month in child support. When the appellant's income increased to that level is not contained in the record.
|
Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
3-19-2002
Albright v. Virtue
Precedential or Non-Precedential:
Docket 0-4279
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
Recommended Citation
"Albright v. Virtue" (2002). 2002 Decisions. Paper 187.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/187
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 00-4279
___________
JEFFREY D. ALBRIGHT;
NORMAN T. BOIRE; GARY M. DIETZ; WILLIAM H. ERDMAN;
MICHAEL W. FRITZ; A. RONALD FROMBAUGH; RALPH A. HARRIS;
ALLEN W. LANDIS; LOWELL McGUIRE; WALTER R. MINICH;
RAYMOND C. NEVINS; STANLEY L. NYE; VINCENT RAMIREZ, JR.;
KEITH E. SGRIGNOLI; RAY G. SNYDER, JR.; LAWRENCE D. WELKER,
Appellants
v.
DANIEL A. VIRTUE, Business Agent of the International Brotherhood of
Teamsters;
INTERNATIONAL BROTHERHOOD OF TEAMSTERS;
LOCAL 776, INTERNATIONAL BROTHERHOOD OF TEAMSTERS;
ABF FREIGHT SYSTEM, INC.
D.C. Civil Action No. 00-cv-00878
___________________
Argued July 30, 2001
Before: BECKER, Chief Judge, McKEE and WEIS, Circuit Judges
(Opinion filed December 6, 2001)
_____________________________
ORDER AMENDING OPINION
____________________________
The slip opinion filed on December 6, 2001 in the above case is
hereby amended
as follows:
1. On page 8, lines 1 and 2, delete the reference to the appendix
cites [A337],
[A198], and [A304].
2. On page 10, last line of the first paragraph, delete the word
"would", which is
duplicative.
BY THE COURT:
/s Edward R. Becker
Chief Judge
DATED: March 19, 2002
|
911 F.2d 731
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.David Lee CARTER, Plaintiff-Appellant,v.C.W. MITCHELL, Otie R. Jones, Defendants-Appellees.
No. 90-5439.
United States Court of Appeals, Sixth Circuit.
Aug. 20, 1990.
Before RYAN and ALAN E. NORRIS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
ORDER
1
This matter is before the court upon consideration of the appellees' motion to dismiss the appeal on the basis that it was taken from a nonappealable order. Appellant in response thereto has filed a motion to strike the motion to dismiss.
2
A review of the record indicates that appellant, Carter, filed a 42 U.S.C. Sec. 1983 civil rights complaint to which was attached motions for a temporary restraining order and for a declaratory judgment. The district court allowed amendment of the complaint by adding Jones as a defendant. On February 27, 1990, the district court filed an order staying the action for a ninety-day period to allow Carter to exhaust his administrative remedies. Carter filed a Fed.R.Civ.P. 60 motion on March 5, 1990, to vacate the stay order. He filed a notice of appeal on March 19, 1990, from the "motion for injunction that was timely filed with the complaint in this action and the denial of plaintiff's motion to vacate it's (sic) order of stay." The order denying the motion to vacate the order of stay was filed April 11, 1990.
3
This court lacks jurisdiction in this matter. The notice of appeal is appealing the denial of the motion to vacate the stay order. At the time the notice of appeal was filed, no ruling had been made on the motion to vacate. In addition, the notice of appeal is also seeking to have this court review the motion for injunction which was filed in the district court. The district court has not ruled on the motion for a temporary restraining order. Therefore, at the time the notice of appeal was filed, neither of the matters upon which appellant sought review by this court had been ruled upon. No final and appealable order has been entered by the district court.
4
It is ORDERED that the motion to dismiss be granted and the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 8, Rules of the Sixth Circuit.
|
699 S.E.2d 233 (2010)
Harry E. WARRINGTON
v.
COMMONWEALTH of Virginia.
Record No. 092273.
Supreme Court of Virginia.
September 16, 2010.
Jacqueline M. Ford (Bowen, Champlin, Foreman & Rockecharlie, on brief), Richmond, for appellant.
Sean J. Murphy, Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General; Wesley G. Russell, Jr., Deputy Attorney General; Pamela A. Sargent, Senior Assistant Attorney General, on brief), for appellee.
Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and LACY, S.J.
Opinion by Justice DONALD W. LEMONS.
In this appeal, we consider whether the trial court erred by holding that the Commonwealth had substantially complied with certain requirements of Code §§ 37.2-900 et seq., the Sexually Violent Predator Act ("SVPA"), in its filing of a petition to civilly commit Harry E. Warrington ("Warrington").
*234 I. Facts and Proceedings Below
Pursuant to Code § 37.2-903, Gene M. Johnson, director of the Virginia Department of Corrections, referred Warrington to the Commitment Review Committee ("CRC") on September 3, 2008. Dr. Lisa Berman ("Dr. Berman") conducted an interview and evaluation of Warrington on October 28, 2008. Dr. Berman submitted her report to the CRC on November 13, 2008. The CRC then referred the matter to the Office of the Attorney General on November 21, 2008. On February 13, 2009, the Attorney General filed a petition to commit Warrington as a sexually violent predator pursuant to Code § 37.2-905.
Warrington was incarcerated for a conviction of a qualifying sexually violent offense under Code § 37.2-900, namely rape. His scheduled release date from incarceration for the criminal offense was March 16, 2009. After receiving the Attorney General's petition to have Warrington civilly committed as a sexually violent predator, the trial court entered an order requiring Warrington to remain in the custody of the Department of Corrections pending a probable cause hearing and a "final order" on the Attorney General's February 13, 2009 petition. The probable cause hearing required by Code § 37.2-906 was initially scheduled for April 3, 2009.
On March 17, 2009, the Attorney General wrote a letter to the trial court and Warrington acknowledging that Dr. Berman's experience did not satisfy the "treatment" criterion required under Code § 37.2-904. The Attorney General requested a continuance of the probable cause hearing so that a qualified expert could be appointed to evaluate Warrington. Warrington filed a motion to dismiss the petition on March 23, 2009, arguing that (i) the 90-day period required by Code § 37.2-905 had expired prior to the Attorney General filing his petition to civilly commit Warrington as a sexually violent predator and (ii) Dr. Berman's lack of qualification pursuant to the statute rendered the petition invalid and that the Attorney General would not be able to conduct a probable cause hearing within the required period pursuant to Code § 37.2-906.
On March 31, 2009, the Attorney General filed his first motion to amend the petition based on an evaluation of Warrington by Dr. Evan Nelson ("Dr. Nelson"), a licensed psychologist who was designated to re-evaluate Warrington. Warrington responded to the Attorney General's first amended petition by filing a memorandum in support of his motion to dismiss on April 1, 2009, in which he renewed his argument that the Attorney General exceeded the 90-day time limit to file a petition pursuant to Code § 37.2-905, that Dr. Nelson's report should not be considered, and that Warrington had been held past his release date based on an invalid report. Additionally, on April 3, 2009, Warrington filed an objection to the Attorney General's first amended petition, in which he argued that the Attorney General committed gross negligence by filing a petition based on the opinion of an unqualified licensed psychologist. Finally, on April 6, 2009, Warrington filed a motion for release from the custody of the Department of Corrections.
Based on Dr. Nelson's report, the Attorney General filed a second amended petition on April 8, 2009. On April 13, 2009, the trial court entered an order holding there was probable cause to believe Warrington "is a sexually violent predator pursuant to [Code § ] 37.2-900, et seq." The probable cause hearing was conducted in a manner consistent with the requirements of Code § 37.2-906. In a different order entered the same day, the trial court granted the Attorney General's second motion to amend the petition.
On June 2, 2009, the trial court by order denied all of Warrington's motions and again granted the Attorney General's second motion to file an amended petition. The hearing to determine the merits of the petition was conducted without a jury. Upon consideration of the evidence presented, the trial court held that Warrington is a sexually violent predator and committed him to "the custody of the Department of Behavioral Health and Developmental Services ("DBHDS") for appropriate treatment and confinement in a secure facility."
*235 Warrington noted his appeal, and this Court granted an appeal on the following assignments of error:
1. The trial court erred in permitting the Commonwealth to substitute Dr. Nelson's report and opinions for those of Dr. Berman, amend its originally filed Petition, and to proceed with an evaluation taken outside the requisite timeframe set forth in Virginia Code Sections 37.2-903 and 904 and by Dr. Nelson without the benefit of a CRC appointment.
2. The trial court erred in continuing to hold [Warrington] past his release date in order to permit the Commonwealth to conduct a second review over [Warrington]'s objection.
3. The trial court erred in denying [Warrington]'s Motion to Dismiss based on [Warrington]'s failure to comply with the SVPA.
II. Analysis
A. Standard of Review
It is well-established that "[s]tatutory interpretation presents a pure question of law and is accordingly subject to de novo review by this Court." Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008) (internal quotation marks omitted). Furthermore,
a person subjected to an involuntary civil commitment proceeding has a substantial liberty interest in avoiding confinement in a mental hospital. Civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. Accordingly, we are of opinion that, although civil in nature, a statutory scheme such as the SVPA that permits an involuntary commitment process to be initiated by the Commonwealth is subject to the rule of lenity normally applicable to criminal statutes and must therefore be strictly construed.
Townes v. Commonwealth, 269 Va. 234, 240, 609 S.E.2d 1, 4 (2005) (internal quotation marks and citations omitted); see also Baker v. Commonwealth, 278 Va. 656, 660, 685 S.E.2d 661, 663 (2009).
B. Substantial Compliance
Warrington argues that the trial court erred by not dismissing the Attorney General's petition because the Commonwealth did not substantially comply with the SVPA in filing a civil commitment petition against him. The four statutes from the SVPA at issue in this appeal are: Code §§ 37.2-903, 37.2-904, 37.2-905, and 37.2-905.1. Code § 37.2-903 states in relevant part:
A. The Director shall establish and maintain a database of each prisoner in his custody who is (i) incarcerated for a sexually violent offense. ...
B. Each month, the Director shall review the database and identify all such prisoners who are scheduled for release from prison within 10 months from the date of such review who receive a score of five or more on the Static-99 or a similar score on a comparable, scientifically validated instrument designated by the Commissioner[.]
. . . . .
D. Upon the identification of such prisoners, the Director shall forward their names, their scheduled dates of release, and copies of their files to the CRC for assessment.
Code § 37.2-904 states in relevant part:
A. Within 120 days of receiving notice from the Director pursuant to § 37.2-903 regarding a prisoner who is in the database, or from a court referring a defendant pursuant to § 19.2-169.3, the CRC shall (i) complete its assessment of the prisoner or defendant for possible commitment pursuant to subsection B and (ii) forward its written recommendation regarding the prisoner or defendant to the Attorney General pursuant to subsection C.
B. CRC assessments of eligible prisoners or defendants shall include a mental health examination, including a personal interview, of the prisoner or defendant by a licensed psychiatrist or a licensed clinical psychologist who is designated by the Commissioner, skilled in the diagnosis, treatment, and risk assessment of sex offenders, and not a member of the *236 CRC. ... The licensed psychiatrist or licensed clinical psychologist shall determine whether the prisoner or defendant is a sexually violent predator, as defined in § 37.2-900, and forward the results of this evaluation and any supporting documents to the CRC for its review.
The CRC assessment may be based on:
An actuarial evaluation, clinical evaluation, or any other information or evaluation determined by the CRC to be relevant, including but not limited to, a review of (i) the prisoner's or defendant's institutional history and treatment record, if any; (ii) his criminal background; and (iii) any other factor that is relevant to the determination of whether he is a sexually violent predator.
Code § 37.2-905 states in relevant part:
A. Upon receipt of a recommendation by the CRC regarding an eligible prisoner or an unrestorably incompetent defendant for review pursuant to § 19.2-169.3, the Attorney General shall have 90 days to conduct a review of the prisoner or defendant and (i) file a petition for the civil commitment of the prisoner or defendant as a sexually violent predator and stating sufficient facts to support such allegation or (ii) notify the Director and Commissioner, in the case of a prisoner, or the referring court and the Commissioner, in the case of an unrestorably incompetent defendant, that he will not file a petition for commitment.
Finally, Code § 37.2-905.1 states:
The provisions of §§ 37.2-903, 37.2-904, and 37.2-905 are procedural and not substantive or jurisdictional. Absent a showing of failure to follow these provisions as a result of gross negligence or willful misconduct, it shall be presumed that there has been substantial compliance with these provisions.
Warrington did not argue, either to the trial court or on brief to this Court, that the Commonwealth engaged in willful misconduct. Warrington maintains that the Commonwealth's reliance in its petition on the report of a licensed psychologist, who was not qualified in "treatment" as required by Code § 37.2-904(B), constituted gross negligence and therefore the Commonwealth did not substantially comply with the SVPA and the trial court erred in not granting his motion to dismiss the Attorney General's petition. Upon review of the record, it is clear that the Commonwealth complied with all aspects of Code §§ 37.2-903, 37.2-904, and 37.2-905, except that Dr. Berman did not have the "treatment" qualification required by Code § 37.2-904. Immediately upon discovering this discrepancy, the Attorney General informed both the trial court and Warrington, and sought to replace Dr. Berman with a qualified expert who satisfied the statutory criteria.
We have previously held that "gross negligence is that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of another. It must be such a degree of negligence as would shock fair minded people although something less than willful recklessness." Green v. Ingram, 269 Va. 281, 290-91, 608 S.E.2d 917, 922 (2005) (internal quotation marks and brackets omitted). The Commonwealth's actions clearly did not rise to such a standard. As soon as the mistake was discovered, the Attorney General informed both the trial court and Warrington and worked diligently and quickly to resolve the problem.
Because Warrington did not meet his burden of proof in showing that the Commonwealth's actions were grossly negligent, the Commonwealth pursuant to Code § 37.2-905.1 is presumed to have substantially complied with Code §§ 37.2-903, 37.2-904, 37.2-905. See Code § 37.2-905.1. The trial court did not err in denying Warrington's motions to dismiss and motion for release.
As to the Attorney General's second amended petition, we hold that the trial court did not abuse its discretion by granting the Attorney General's motion to file a second amended petition and substituting Dr. Nelson's report for Dr. Berman's report. Rule 1:8, See Harris v. Commonwealth, 279 Va. 123, 129, 688 S.E.2d 279, 282 (2010) (the trial court did not abuse its discretion "by granting the Commonwealth's motion to amend its petition to identify the predicate *237 sexually violent offense as abduction with the intent to defile"). Furthermore, because the Attorney General timely filed the petition to civilly commit Warrington as a sexually violent predator when Warrington was still incarcerated for a sexually violent offense, and because the Commonwealth substantially complied with the SVPA, the trial court did not err by ordering Warrington to be held beyond his release date until a final order was entered on the Attorney General's petition.
III. Conclusion
For the reasons stated, we hold that the trial court did not err by denying Warrington's motions to dismiss, by granting the Attorney General's motion to amend the petition, by continuing to hold Warrington past his release date, or by accepting Dr. Nelson's report. Accordingly, we will affirm the judgment of the Circuit Court of the City of Richmond.
Affirmed.
|
244 F.3d 572 (7th Cir. 2001)
American Amusement Machine Association, et al., Plaintiffs-Appellants,v.Teri Kendrick, et al., Defendants-Appellees.
No. 00-3643
In the United States Court of Appeals For the Seventh Circuit
Argued December 1, 2000Decided March 23, 2001
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP00-1321-C H/G--David F. Hamilton, Judge.
Before Posner, Diane P. Wood, and Williams, Circuit Judges.
Posner, Circuit Judge.
1
The manufacturers of video games and their trade association seek to enjoin, as a violation of freedom of expression, the enforcement of an Indianapolis ordinance that seeks to limit the access of minors to video games that depict violence. Denial of a preliminary injunction has precipitated this appeal.
2
The ordinance defines the term "harmful to minors" to mean "an amusement machine that predominantly appeals to minors' morbid interest in violence or minors' prurient interest in sex, is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for persons under the age of eighteen (18) years, lacks serious literary, artistic, political or scientific value as a whole for persons under" that age, and contains either "graphic violence" or "strong sexual content." "Graphic violence," which is all that is involved in this case (so far as appears, the plaintiffs do not manufacture, at least for exhibition in game arcades and other public places, video games that have "strong sexual content"), is defined to mean "an amusement machine's visual depiction or representation of realistic serious injury to a human or human-like being where such serious injury includes amputation, decapitation, dismemberment, bloodshed, mutilation, maiming or disfiguration [disfigurement]."
3
The ordinance forbids any operator of five or more video-game machines in one place to allow a minor unaccompanied by a parent, guardian, or other custodian to use "an amusement machine that is harmful to minors," requires appropriate warning signs, and requires that such machines be separated by a partition from the other machines in the location and that their viewing areas be concealed from persons who are on the other side of the partition. Operators of fewer than five games in one location are subject to all but the partitioning restriction. Monetary penalties, as well as suspension and revocation of the right to operate the machines, are specified as remedies for violations of the ordinance.
4
The ordinance was enacted in 2000, but has not yet gone into effect, in part because we stayed it pending the decision of the appeal. The legislative history indicates that the City believes that participation in violent video games engenders violence on the part of the players, at least when they are minors. The City placed in evidence videotapes of several of the games that it believes violate the ordinance.
5
Although the district judge agreed with the plaintiffs that video games, possibly including some that would violate the ordinance, are "speech" within the meaning of the First Amendment and that children have rights under the free-speech clause, he held that the ordinance would violate the amendment only if the City lacked "a reasonable basis for believing the Ordinance would protect children from harm." He found a reasonable basis in a pair of empirical studies by psychologists which found that playing a violent video game tends to make young persons more aggressive in their attitudes and behavior, and also in a larger literature finding that violence in the media engenders aggressive feelings. The judge also ruled that the ordinance's tracking of the conventional standard for obscenity eliminated any concern that the ordinance might be excessively vague.
6
Having decided that the ordinance did not violate the plaintiffs' constitutional rights, the district judge did not consider the other criteria that might bear on the decision to grant or deny a preliminary injunction. In this appeal too, the parties argue only over whether the ordinance is legal, tempting us to treat this as if it were an appeal from a final judgment in favor of the defendants. We shall consider at the end of the opinion whether there is any occasion for further proceedings in the district court.
7
The ordinance brackets violence with sex, and the City asks us to squeeze the provision on violence into a familiar legal pigeonhole, that of obscenity, which is normally concerned with sex and is not protected by the First Amendment, while the plaintiffs insist that since their games are not obscene in the conventional sense they must receive the full protection of the First Amendment. Neither position is compelling. Violence and obscenity are distinct categories of objectionable depiction, Winters v. New York, 333 U.S. 507, 518-20 (1948); United States v. Thoma, 726 F.2d 1191, 1200 (7th Cir. 1984) ("depictions of torture and deformation are not inherently sexual and, absent some expert guidance as to how such violence appeals to the prurient interest of a deviant group, there is no basis upon which a trier of fact could deem such material obscene"); State v. Johnson, 343 So. 2d 705, 709-10 (La. 1977), and so the fact that obscenity is excluded from the protection of the principle that government may not regulate the content of expressive activity (as distinct from the time, place, or manner of the activity) neither compels nor forecloses a like exclusion of violent imagery. This would be obvious if a pornographer were to argue that because violence is "like" obscenity yet has not yet been placed on the list of expressive forms that can be regulated on the basis of their content, see, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382-84 (1992); DiMa Corp. v. Town of Hallie, 185 F.3d 823, 827 (7th Cir. 1999), obscenity should be struck from the list.
8
We shall discover some possible intersections between the concerns that animate obscenity laws and the concerns that animate the Indianapolis ordinance as we proceed, but in general the concerns are different. The main worry about obscenity, the main reason for its proscription, is not that it is harmful, which is the worry behind the Indianapolis ordinance, but that it is offensive. A work is classified as obscene not upon proof that it is likely to affect anyone's conduct, but upon proof that it violates community norms regarding the permissible scope of depictions of sexual or sex-related activity. Miller v. California, 413 U.S. 15, 24 (1973); United States v. Moore, 215 F.3d 681, 686 (7th Cir. 2000); United States v. Langford, 688 F.2d 1088, 1091 (7th Cir. 1982); United States v. Loy, 237 F.3d 251, 262 (3d Cir. 2001). Obscenity is to many people disgusting, embarrassing, degrading, disturbing, outrageous, and insulting, but it generally is not believed to inflict temporal (as distinct from spiritual) harm; or at least the evidence that it does is not generally considered as persuasive as the evidence that other speech that can be regulated on the basis of its content, such as threats of physical harm, conspiratorial communications, incitements, frauds, and libels and slanders, inflicts such harm. There are people who believe that some forms of graphically sexual expression, not necessarily obscene in the conventional legal sense, may incite men to commit rape, or to disvalue women in the workplace or elsewhere, see, e.g., Catharine A. MacKinnon, Only Words (1993); but that is not the basis on which obscenity has traditionally been punished. No proof that obscenity is harmful is required either to defend an obscenity statute against being invalidated on constitutional grounds or to uphold a prosecution for obscenity. Offensiveness is the offense.
9
One can imagine an ordinance directed at depictions of violence because they, too, were offensive. Maybe violent photographs of a person being drawn and quartered could be suppressed as disgusting, embarrassing, degrading, or disturbing without proof that they are likely to cause any of the viewers to commit a violent act. They might even be described as "obscene," in the same way that photographs of people defecating might be, and in many obscenity statutes are, included within the legal category of the obscene, Miller v. California, supra, 413 U.S. at 25; Pope v. Illinois, 481 U.S. 497, 501 n. 4 (1987); United States v. Langford, supra, 688 F.2d at 1091 n. 3, even if they have nothing to do with sex. In common speech, indeed, "obscene" is often just a synonym for repulsive, with no sexual overtones at all.
10
But offensiveness is not the basis on which Indianapolis seeks to regulate violent video games. Nor could the ordinance be defended on that basis. The most violent game in the record, "The House of the Dead," depicts zombies being killed flamboyantly, with much severing of limbs and effusion of blood; but so stylized and patently fictitious is the cartoon-like depiction that no one would suppose it "obscene" in the sense in which a photograph of a person being decapitated might be described as "obscene." It will not turn anyone's stomach. The basis of the ordinance, rather, is a belief that violent video games cause temporal harm by engendering aggressive attitudes and behavior, which might lead to violence.
11
This is a different concern from that which animates the obscenity laws, though it does not follow from this that government is helpless to respond to the concern by regulating such games. Protecting people from violence is at least as hallowed a role for government as protecting people from graphic sexual imagery. Chaplinsky v. New Hampshire, 315 U.S. 568, 572-73 (1942), permits punishment of "fighting words," that is, words likely to cause a breach of the peace-- violence. See also R.A.V. v. City of St. Paul, supra, 505 U.S. at 386, 391-92. Such punishment is permissible "content based" regulation, and in effect Indianapolis is arguing that violent video games incite youthful players to breaches of the peace. But this is to use the word "incitement" metaphorically. As we'll see, no showing has been made that games of the sort found in the record of this case have such an effect. Nor can such a showing be dispensed with on the ground that preventing violence is as canonical a role of government as shielding people from graphic sexual imagery. The issue in this case is not violence as such, or directly; it is violent images; and here the symmetry with obscenity breaks down. Classic literature and art, and not merely today's popular culture, are saturated with graphic scenes of violence, whether narrated or pictorial. The notion of forbidding not violence itself, but pictures of violence, is a novelty, whereas concern with pictures of graphic sexual conduct is of the essence of the traditional concern with obscenity.
12
There is a hint, though, that the City is also concerned with the welfare of the game-playing children themselves, and not just the welfare of their potential victims. This concern is implicit in the City's citation of Ginsberg v. New York, 390 U.S. 629, 639-43 (1968), which holds that potential harm to children's ethical and psychological development is a permissible ground for trying to shield them from forms of sexual expression that fall short of obscenity. See also FCC v. Pacifica Foundation, 438 U.S. 726, 749-50 (1978). Ginsberg upheld a statute that forbade any representation of nudity that "(i) predominantly appeals to the prurient, shameful or morbid interest of minors, and (ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (iii) is utterly without redeeming social importance for minors." 390 U.S. at 633. In the present setting, concern with the welfare of the child might take two forms. One is a concern with the potential psychological harm to children of being exposed to violent images, and would be unrelated to the broader societal concern with violence that was the primary motivation for the ordinance. Another, subtler concern would be with the consequences for the child incited or predisposed to commit violent acts by exposure to violent images. In Hoctor v. U.S. Dept. of Agriculture, 82 F.3d 165, 168 (7th Cir. 1996), we noted that the Animal Welfare Act requires secure containment of dangerous animals in part because if they escape and injure a human being they are likely to be killed. A child who is caught and punished for committing a violent act suffers, much as his victim does--indeed, one purpose of punishment is to inflict on the criminal suffering commensurate with that of his victims, either to deter him or others from committing such crimes or (in retributive theory) because it is considered just that he should suffer as his victims do. Obscenity statutes, too, might be thought concerned not just with offensiveness, or with third-party effects (the thrust of the Indianapolis pornography ordinance, a precursor of the present ordinance, invalidated in American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd without opinion, 475 U.S. 1001 (1986)), but also with the potential harm to the consumer of obscenity, especially a child who might be disturbed by graphic sexual images or suffer psychological harm--and thus Ginsberg. See also Osborne v. Ohio, 495 U.S.103, 111 (1990).
13
If the community ceased to find obscenity offensive, yet sought to retain the prohibition of it on the ground that it incited its consumers to commit crimes or to engage in sexual discrimination, or that it interfered with the normal sexual development of its underage consumers, a state would have to present a compelling basis for believing that these were harms actually caused by obscenity and not pretexts for regulation on grounds not authorized by the First Amendment. The Court in Ginsberg was satisfied that New York had sufficient grounds for thinking that representations of nudity that would not constitute obscenity if the consumers were adults were harmful to children. We must consider whether the City of Indianapolis has equivalent grounds for thinking that violent video games cause harm either to the game players or (the point the City stresses) the public at large.
14
The grounds must be compelling and not merely plausible. Children have First Amendment rights. Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14 (1975); Tinker v. Des Moines Independent School District, 393 U.S. 503, 511-14 (1969). This is not merely a matter of pressing the First Amendment to a dryly logical extreme. The murderous fanaticism displayed by young German soldiers in World War II, alumni of the Hitler Jugend, illustrates the danger of allowing government to control the access of children to information and opinion. Now that eighteen-year- olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise. And since an eighteen-year-old's right to vote is a right personal to him rather than a right to be exercised on his behalf by his parents, the right of parents to enlist the aid of the state to shield their children from ideas of which the parents disapprove cannot be plenary either. People are unlikely to become well- functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.
15
No doubt the City would concede this point if the question were whether to forbid children to read without the presence of an adult the Odyssey, with its graphic descriptions of Odysseus's grinding out the eye of Polyphemus with a heated, sharpened stake, killing the suitors, and hanging the treacherous maidservants; or The Divine Comedy with its graphic descriptions of the tortures of the damned; or War and Peace with its graphic descriptions of execution by firing squad, death in childbirth, and death from war wounds. Or if the question were whether to ban the stories of Edgar Allen Poe, or the famous horror movies made from the classic novels of Mary Wollstonecraft Shelley (Frankenstein) and Bram Stoker (Dracula). Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low. It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault are aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.
16
Maybe video games are different. They are, after all, interactive. But this point is superficial, in fact erroneous. All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader's own. Protests from readers caused Dickens to revise Great Expectations to give it a happy ending, and tourists visit sites in Dublin and its environs in which the fictitious events of Ulysses are imagined to have occurred. The cult of Sherlock Holmes is well known.
17
Most of the video games in the record of this case, games that the City believes violate its ordinances, are stories. Take once again "The House of the Dead." The player is armed with a gun--most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo. The zombies have already knocked down and wounded several people, who are pleading pitiably for help; and one of the player's duties is to protect those unfortunates from renewed assaults by the zombies. His main task, however, is self-defense. Zombies are supernatural beings, therefore difficult to kill. Repeated shots are necessary to stop them as they rush headlong toward the player. He must not only be alert to the appearance of zombies from any quarter; he must be assiduous about reloading his gun periodically, lest he be overwhelmed by the rush of the zombies when his gun is empty.
18
Self-defense, protection of others, dread of the "undead," fighting against overwhelming odds-- these are all age-old themes of literature, and ones particularly appealing to the young. "The House of the Dead" is not distinguished literature. Neither, perhaps, is "The Night of the Living Dead," George A. Romero's famous zombie movie that was doubtless the inspiration for "The House of the Dead." Some games, such as "Dungeons and Dragons," have achieved cult status; although it seems unlikely, some of these games, perhaps including some that are as violent as those in the record, will become cultural icons. We are in the world of kids' popular culture. But it is not lightly to be suppressed.
19
Although violent video games appeal primarily to boys, the record contains, surprisingly, a feminist violent video game, "Ultimate Mortal Kombat 3." A man and a woman are dressed in vaguely medieval costumes, and wield huge swords. The woman is very tall, very fierce, and wields her sword effortlessly. The man and the woman duel, and the man is killed. Another man appears- -he is killed too. The woman wins all the duels. She is as strong as the men, she is more skillful, more determined, and she does not flinch at the sight of blood. Of course, her success depends on the player's skill, and the fact that the player, whether male or female, has chosen to be the female fighter. (The player chooses which fighter to be.) But the game is feminist in depicting a woman as fully capable of holding her own in violent combat with heavily armed men. It thus has a message, even an "ideology," just as books and movies do.
20
We are not persuaded by the City's argument that whatever contribution to the marketplace of ideas and expression the games in the record may have the potential to make is secured by the right of the parent (or guardian, or custodian--and does that include a babysitter?) to permit his or her child or ward to play these games. The right is to a considerable extent illusory. The parent is not permitted to give blanket consent, but must accompany the child to the game room. Many parents are too busy to accompany their child to a game room; most teenagers would be deterred from playing these games if they had to be accompanied by mom; even parents who think violent video games harmful or even edifying (some parents want their kids to develop a shooter's reflexes) may rather prevent their children from playing these games than incur the time and other costs of accompanying the children to the game room; and conditioning a minor's First Amendment rights on parental consent of this nature is a curtailment of those rights.
21
The City rightly does not rest on "what everyone knows" about the harm inflicted by violent video games. These games with their cartoon characters and stylized mayhem are continuous with an age- old children's literature on violent themes. The exposure of children to the "girlie" magazines involved in the Ginsberg case was not. It seemed obvious to the Supreme Court that these magazines were an adult invasion of children's culture and parental prerogatives. No such argument is available here. The City instead appeals to social science to establish that games such as "The House of the Dead" and "Ultimate Mortal Kombat 3," games culturally isomorphic with (and often derivative from) movies aimed at the same under-18 crowd, are dangerous to public safety. The social science evidence on which the City relies consists primarily of the pair of psychological studies that we mentioned earlier, which are reported in Craig A. Anderson & Karen E. Dill, "Personality Processes and Individual Differences--Video Games and Aggressive Thoughts, Feelings, and Behavior in the Laboratory and in Life," 78 J. Personality & Soc. Psych. 772 (2000). Those studies do not support the ordinance. There is no indication that the games used in the studies are similar to those in the record of this case or to other games likely to be marketed in game arcades in Indianapolis. The studies do not find that video games have ever caused anyone to commit a violent act, as opposed to feeling aggressive, or have caused the average level of violence to increase anywhere. And they do not suggest that it is the interactive character of the games, as opposed to the violence of the images in them, that is the cause of the aggressive feelings. The studies thus are not evidence that violent video games are any more harmful to the consumer or to the public safety than violent movies or other violent, but passive, entertainments. It is highly unlikely that they are more harmful, because "passive" entertainment aspires to be interactive too and often succeeds. When Dirty Harry or some other avenging hero kills off a string of villains, the audience is expected to identify with him, to revel in his success, to feel their own finger on the trigger. It is conceivable that pushing a button or manipulating a toggle stick engenders an even deeper surge of aggressive joy, but of that there is no evidence at all.
22
We can imagine the City's arguing that it would like to ban violent movies too, but that either this is infeasible or the City has to start somewhere and should not be discouraged from experimenting. Experimentation should indeed not be discouraged. But the City makes neither argument. Its only expressed concern is with video games, in fact only video games in game arcades, movie-theater lobbies, and hotel game rooms. It doesn't even argue that the addition of violent video games to violent movies and television in the cultural menu of Indianapolis youth significantly increases whatever dangers media depictions of violence pose to healthy character formation or peaceable, law-abiding behavior. Violent video games played in public places are a tiny fraction of the media violence to which modern American children are exposed. Tiny--and judging from the record of this case not very violent compared to what is available to children on television and in movie theaters today. The characters in the video games in the record are cartoon characters, that is, animated drawings. No one would mistake them for photographs of real people--another difference between this case and Ginsberg. The idea that a child's interest in such fantasy mayhem is "morbid"--that any kid who enjoys playing "The House of the Dead" or "Ultimate Mortal Kombat 3" should be dragged off to a psychiatrist--gains no support from anything that has been cited to us in defense of the ordinance.
23
Ginsberg did not insist on social scientific evidence that quasi-obscene images are harmful to children. The Court, as we have noted, thought this a matter of common sense. It was in 1968; it may not be today; but that is not our case. We are not concerned with the part of the Indianapolis ordinance that concerns sexually graphic expression. The video games at issue in this case do not involve sex, but instead a children's world of violent adventures. Common sense says that the City's claim of harm to its citizens from these games is implausible, at best wildly speculative. Common sense is sometimes another word for prejudice, and the common sense reaction to the Indianapolis ordinance could be overcome by social scientific evidence, but has not been. The ordinance curtails freedom of expression significantly and, on this record, without any offsetting justification, "compelling" or otherwise.
24
It is conceivable though unlikely that in a plenary trial the City can establish the legality of the ordinance. We need not speculate on what evidence might be offered, or, if none is offered (in which event a permanent injunction should promptly be entered), what amendments might bring the ordinance into conformity with First Amendment principles. We have emphasized the "literary" character of the games in the record and the unrealistic appearance of their "graphic" violence. If the games used actors and simulated real death and mutilation convincingly, or if the games lacked any story line and were merely animated shooting galleries (as several of the games in the record appear to be), a more narrowly drawn ordinance might survive a constitutional challenge.
25
That we need not decide today. The plaintiffs are entitled to a preliminary injunction. Not only have they shown a strong likelihood of ultimate victory should the City persist with the case; they will suffer irreparable harm if the ordinance is permitted to go into effect, because compliance with it will impose costs on them of altering their facilities and will also cause them to lose revenue. And given the entirely conjectural nature of the benefits of the ordinance to the people of Indianapolis, the harm of a preliminary injunction to the City must be reckoned slight, and outweighed by the harm that denying the injunction would impose on the plaintiffs. The judgment is therefore reversed, and the case remanded with instructions to enter a preliminary injunction.
26
Reversed and Remanded, with Instructions.
|
995 F.2d 1064
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.William V. SMITH, Claimant-Appellant,andTRACK OF REAL PROPERTY, with buildings, appurtenances, andimprovements thereto, located in Pitt County, NorthCarolina, and being more particularly described as follows:Route 2, Box 210, Robersonville, North Carolina, and beinglocated on SR 1512, Hollowell Road, and being moreparticularly described in book 288, page 4 of the PittCounty Registry, being titled in the name of William VernonSmith (Tract # 1), and any and all proceeds from the sale ofsaid property; Land Located at Route 8, Box 520,Greenville, North Carolina, located in Arthur Township, PittCounty, North Carolina, Located on the South Side of U. S.Highway 264, and being more particularly described in a deedrecorded in book 189, page 267, of the Pitt County Registry,being titled in the name of William Vernon Smith (Tract #2), and any and all proceeds from sale of said property, Defendants,PITT COUNTY TAX COLLECTOR, Claimant.
No. 92-2317.
United States Court of Appeals,Fourth Circuit.
Submitted: June 7, 1993.Decided: June 18, 1993.
Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Terrence W. Boyle, District Judge. (CA-91-118-4-BO)
William V. Smith, Appellant Pro Se.
Thomas Philip Swaim, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
E.D.N.C.
DISMISSED.
Before HALL, WILKINSON, and WILLIAMS, Circuit Judges.
PER CURIAM:
OPINION
1
William V. Smith appeals from the district court's order granting the Government's motion to strike his claim and answer in a civil forfeiture proceeding brought by the Government pursuant to 21 U.S.C.A. §§ 881(a)(6), (a)(7) (West 1981 & Supp. 1993). We dismiss the appeal for lack of jurisdiction because the order is not appealable. This Court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (1988), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (1988); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). The order here appealed is neither a final order nor an appealable interlocutory or collateral order.
2
We dismiss the appeal as interlocutory. 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
|
Case: 15-11242 Date Filed: 04/11/2016 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11242
Non-Argument Calendar
________________________
D.C. Docket No. 5:14-cr-00011-RS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTIN TRUJILLO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(April 11, 2016)
Before MARTIN, JULIE CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 15-11242 Date Filed: 04/11/2016 Page: 2 of 2
Rachel R. Seaton, appointed counsel for Justin Trujillo in this direct criminal
appeal, has moved to withdraw from further representation of the appellant and
filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.
Ed. 2d 493 (1967). Our independent review of the entire record reveals that
counsel’s assessment of the relative merit of the appeal is correct. Because
independent examination of the entire record reveals no arguable issues of merit,
counsel’s motion to withdraw is GRANTED, and Trujillo’s conviction and
sentence are AFFIRMED.
2
|
221 Md. 604 (1959)
156 A.2d 632
RICE
v.
WARDEN OF MARYLAND PENITENTIARY
[P.C. No. 48, September Term, 1959.]
Court of Appeals of Maryland.
Decided December 21, 1959.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
*605 PER CURIAM:
The Post Conviction Procedure Act is a procedural act and not an enlargement of substantive rights of review. State v. D'Onofrio, 221 Md. 20, 155 A.2d 643. The question of the legality of search and seizure cannot be raised under the Act. Banks v. Warden, 220 Md. 652, 151 A.2d 897; Mears v. Warden, 220 Md. 682, 155 A.2d 72. After conviction a question of bail may not be raised on habeas corpus, Brooks v. Warden, 218 Md. 650, 145 A.2d 569; nor may alleged irregularities in preliminary proceedings or procedures which may not be raised on habeas corpus be reviewed under the Post Conviction Procedure Act. For the above reasons, and for the reasons stated in the opinion and order of Judge Manley filed in this case in the Criminal Court of Baltimore on July 16, 1959, the application of Philip Raymond Rice for leave to appeal is denied.
Application for leave to appeal denied.
|
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-0815
_____________________________
BEVERLY INMON, Surviving
Spouse of Matthew Inmon
(Deceased),
Appellant,
v.
CONVERGENCE EMPLOYEE
LEASING III, INC., TECHNOLOGY
INSURANCE COMPANY, and
AMTRUST NORTH AMERICA OF
FLORIDA,
Appellees.
_____________________________
On appeal from an order of the Judge of Compensation Claims.
William R. Holley, Judge.
Date of Accident: April 15, 2015.
April 18, 2018
B.L. THOMAS, C.J.
In this worker’s compensation case, Claimant (the deceased
Employee’s spouse) appeals the judge of compensation claims’
(JCC’s) final order denying her claim for death benefits and funeral
expenses under section 440.16, Florida Statutes (2014). In the
order, the JCC found that no benefits were payable in accordance
with subsection 440.09(3), Florida Statutes (2014), because the
Employee’s death was primarily occasioned by his intoxication. We
reject Claimant’s argument that the JCC was precluded from
considering an intoxication defense under the circumstances of
this case. Nevertheless, we reverse the denial of benefits because
competent, substantial evidence (CSE) does not support the JCC’s
ultimate conclusion that the Employee’s death was primarily
occasioned by his intoxication.
Under subsection 440.09(3), compensation is not payable if
the injury was occasioned primarily by the intoxication of the
employee. Although section 440.09(7)(b) also provides that
evidence of a certain blood alcohol level creates a presumption that
injury or death was occasioned primarily by the intoxication of the
employee, the Employer/Carrier (E/C) here were not entitled to the
presumption due to their non-compliance with the collection and
chain of custody procedures set forth in the administrative rules.
See, e.g., European Marble Co. v. Robinson, 885 So. 2d 502, 506-
507 (Fla. 1st DCA 2004) (holding that lack of compliance with
administrative rules on blood-alcohol testing precludes
presumption that injury primarily occasioned by alcohol).
Although the JCC found the blood alcohol testing did not
sufficiently comply with the Florida Administrative Code to
establish the intoxication presumption under section 440.09(7)(b),
the results were admissible on other grounds as chain of custody
and authentication were properly established.
“When the presumption in section 440.09(7)(b) does not apply,
employer/carriers must ‘establish, by the greater weight of the
evidence, that the work-related injury was occasioned primarily by
the intoxication of the employee.’” See Thomas v. Bircheat, 16
So. 3d 198, 200 (Fla. 1st DCA 2009) (quoting Wright v. DSK Group,
821 So. 2d 455, 456 (Fla. 1st DCA 2002); see also Sterling v. Mike
Brown, Inc., 580 So. 2d 832, 835 (Fla. 1st DCA 1991) (affirming
JCC’s order finding employee’s injury was primarily caused by his
intoxication even without presumption). Thus, our standard of
review here is whether CSE supports the JCC’s finding that the
preponderance of the evidence proved the Employee’s death was
occasioned primarily by his intoxication, despite the
inapplicability of the presumption.
2
The undisputed evidence establishes that the Employee, a
construction helper, had been assigned to an out-of-town job with
Employer-provided per diem and hotel accommodations. After
work on April 15, 2015, the Employee’s supervisor dropped the
Employee off at a bar a few miles from his hotel. Later that
evening, the Employee was struck and killed by a truck on US
Highway 1. Surveillance video showed that the Employee was
weaving in and out of the road shortly before the accident, but the
incident itself was not video recorded. Claimant, who was talking
with the Employee on his cell phone at the time he was struck,
testified that that he was trying to flag down a ride, dropped his
phone twice during their conversation, and appeared to her to be
intoxicated, but functional. The E/C stipulated that the Employee
was on travel status and within the course and scope of his
employment when the accident occurred. Test results from the
Employee’s autopsy indicated a blood alcohol level in excess of the
legal limit. ∗
In support of their intoxication defense, the E/C presented the
surveillance video along with the testimony of Corporal Gaugh, the
traffic homicide investigator who was called to the scene to
investigate the Employee’s death. The JCC, however, excluded a
good deal of the investigator’s testimony based on hearsay,
speculation, and the witness’s lack of expertise as an accident
reconstruction specialist. The JCC also sustained numerous
objections to testimony from a private investigator hired by the
E/C. Notably, the E/C did not present evidence from any of the
potential eyewitnesses to the accident including the truck driver
and another motorist who was behind the truck driver.
In this appeal, Claimant challenges both the sufficiency and
admissibility of the evidence relied upon by the JCC when he
determined that the Employee was intoxicated when he was killed
and that his death was primarily occasioned by his intoxication.
The JCC’s determination involved findings of fact that must be
∗
Although the JCC found the blood alcohol evidence was
insufficient, standing on its own, to establish the statutory
presumption on causation, he accepted expert evidence that the
Employee’s blood alcohol level constituted intoxication.
3
upheld if any view of the evidence and its permissible inferences
supports them. See Ullman v. City of Tampa Parks Dep’t, 625
So. 2d 868, 873 (Fla. 1st DCA 1993) (holding factual findings are
reviewed for CSE). Based on our review of the record, CSE
supports the JCC’s factual finding that the Employee was
intoxicated at the time of his death, even if we were to find, as
Claimant argues, that the blood alcohol test results should not
have been admitted for any purpose. But just the fact that the
Employee was intoxicated will not constitute CSE to support the
JCC’s ultimate conclusion that his death was primarily occasioned
by his intoxication.
In the order on appeal, the JCC concluded that the accident
was occasioned primarily by the Employee’s intoxication based on
his finding that the Employee was in the middle of the road at the
time he was struck. In support, the JCC listed the following
evidence: (1) the video showing the Employee “stumbling in and
out of the road where cars were driving by him just minutes prior
to the actual collision”; (2) damage on the driver’s side of the truck
“which allows a reasonable inference that [the Employee] was in
the middle of the road when the [truck] hit its brakes”; and (3) the
placement of the Employee’s body in relationship to the final
resting place of the truck that struck him. Assuming, for the sake
of argument, that the Employee’s presence in the middle of the
road is both the cause of the accident and primarily a result of his
intoxication, CSE does not otherwise support the JCC’s finding
that the Employee was in the road at the time of the collision.
Under the circumstances here, all three of the factual findings
are of questionable probative value in establishing the Employee’s
location at the time of the accident. First, because the surveillance
video does not show the collision itself, it is unclear why this
footage alone makes it more likely than not that the Employee was
in the road when he was struck. Second, the inference that the JCC
drew from the damage on the truck might be reasonable if an
accident reconstruction expert had provided an opinion
establishing the middle of the road as likely the point of impact
based on, for example, the tire skid marks. Without this evidence,
and in the absence of eyewitness testimony, the possibility cannot
be ruled out that the truck veered off the road for some reason
unrelated to the Employee’s presence and struck the Employee
4
while he was standing somewhere off of the road. Third, the
placement of the Employee’s body in relation to the truck was
established by Corporal Gaugh’s testimony of what he observed on
the scene after the Employee’s body had been moved by emergency
medical service personnel.
In short, the JCC’s deduction that the Employee was in the
road at the time of the collision is based on inferences with no
direct evidence. Stacked upon this inference is the inference that
the Employee could only have been in the road because he was
intoxicated. This is an impermissible stacking of inferences to
establish an essential finding of fact. See, e.g., Espada Enters., Inc.,
v. Spiro, 481 So. 2d 1265, 1268 (Fla. 1st DCA 1986) (reversing
deputy commissioner’s award of death benefits where finding of
compensability was based on certain assumptions and inferences
rather than CSE) (citing Girdley Constr. Co. v. Ohmstede, 465
So. 2d 594, 596 (Fla. 1st DCA 1985) (reversing deputy
commissioner’s finding that employee’s death was result of
compensable accident based on impermissible stacking of
inferences)).
Accordingly, we REVERSE the order below and REMAND for
entry of an order awarding Claimant death benefits and funeral
expenses under section 440.16.
JAY and M.K. THOMAS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
John J. Rahaim II and Amie DeGuzman, Jacksonville, for
Appellant.
Rayford H. Taylor of Hall Booth Smith, P.C., Atlanta, and Heather
Bryer-Carbone of Marshall Dennehey Warner Coleman & Coggin,
Jacksonville, for Appellees.
5
|
354 U.S. 416 (1957)
VANDERBILT
v.
VANDERBILT ET AL.
No. 302.
Supreme Court of United States.
Argued April 22-23, 1957.
Decided June 24, 1957.
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK AND SUPREME COURT OF NEW YORK, COUNTY OF NEW YORK.
Sol A. Rosenblatt argued the cause for petitioner. With him on the brief was Charles Roden.
Monroe J. Winsten argued the cause for respondents. With him on the brief was Charles L. Raskin for Vanderbilt, respondent.
MR. JUSTICE BLACK delivered the opinion of the Court.
Cornelius Vanderbilt, Jr., petitioner, and Patricia Vanderbilt, respondent, were married in 1948. They separated in 1952 while living in California. The wife moved to New York where she has resided since February 1953. In March of that year the husband filed suit for *417 divorce in Nevada. This proceeding culminated, in June 1953, with a decree of final divorce which provided that both husband and wife were "freed and released from the bonds of matrimony and all the duties and obligations thereof . . . ."[1] The wife was not served with process in Nevada and did not appear before the divorce court.
In April 1954, Mrs. Vanderbilt instituted an action in a New York court praying for separation from petitioner and for alimony. The New York court did not have personal jurisdiction over him, but in order to satisfy his obligations, if any, to Mrs. Vanderbilt, it sequestered his property within the State.[2] He appeared specially and, among other defenses to the action, contended that the Full Faith and Credit Clause of the United States Constitution[3] compelled the New York court to treat the Nevada divorce as having ended the marriage and as having destroyed any duty of support which he owed the respondent. While the New York court found the Nevada decree valid and held that it had effectively dissolved the marriage, it nevertheless entered an order, under § 1170-b *418 of the New York Civil Practice Act,[4] directing petitioner to make designated support payments to respondent. 207 Misc. 294, 138 N. Y. S. 2d 222. The New York Court of Appeals upheld the support order. 1 N. Y. 2d 342, 135 N. E. 2d 553. Petitioner then applied to this Court for certiorari contending that § 1170-b, as applied, is unconstitutional because it contravenes the Full Faith and Credit Clause.[5] We granted certiorari, 352 U. S. 820.
In Estin v. Estin, 334 U. S. 541, this Court decided that a Nevada divorce court, which had no personal jurisdiction over the wife, had no power to terminate a husband's obligation to provide her support as required in a preexisting New York separation decree. The factor which distinguishes the present case from Estin is that here the wife's right to support had not been reduced to judgment prior to the husband's ex parte divorce. In our opinion this difference is not material on the question before us. Since the wife was not subject to its jurisdiction, the Nevada divorce court had no power to extinguish any right which she had under the law of New York to financial support from her husband. It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.[6] Here, the Nevada divorce court *419 was as powerless to cut off the wife's support right as it would have been to order the husband to pay alimony if the wife had brought the divorce action and he had not been subject to the divorce court's jurisdiction. Therefore, the Nevada decree, to the extent it purported to affect the wife's right to support, was void and the Full Faith and Credit Clause did not obligate New York to give it recognition.[7]
Petitioner claims that this case is governed by Thompson v. Thompson, 226 U. S. 551. For the reasons given in a concurring opinion in Armstrong v. Armstrong, 350 U. S. 568, 575, at 580-581, the Thompson case, insofar as it held that an ex parte divorce destroyed alimony rights, can no longer be considered controlling.
Affirmed.
THE CHIEF JUSTICE took no part in the consideration or decision of this case.
MR. JUSTICE FRANKFURTER, dissenting.
The question in this case is whether Nevada, which was empowered to grant petitioner a divorce without personal jurisdiction over respondent that must be respected, by command of the Constitution, by every other State, Williams v. North Carolina, 317 U. S. 287, *420 was at the same time empowered by virtue of its domiciliary connection with petitioner to make, incidental to its dissolution of the marriage, an adjudication denying alimony to which sister States must also give full faith and credit. Whatever the answer to the question may be, Estin v. Estin, 334 U. S. 541, does not supply it. What the Court now states to be "not material" was crucial to the decision in that case, namely, the prior New York support order, which the Court held Nevada was required to respect by virtue of the Full Faith and Credit Clause, Art. IV, § 1, of the Constitution. That this fact was crucial to the Court's decision in that case is made clear by the Court's reference to the prior New York judgment in its two statements of the question presented and more than a half dozen times throughout the course of its opinion. The Court rightly regarded the fact as crucial because of the requirement of Art. IV, § 1, that Nevada give full faith and credit to the prior New York "judicial Proceedings."
The Court now chooses to regard the existence of a prior New York support order as "not material," holding for the first time that "the Nevada divorce court had no power to extinguish any right which [respondent] had under the law of New York to financial support from her husband. It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant [citing for this proposition, Pennoyer v. Neff, 95 U. S. 714, 726-727]." We have thus reached another stageone cannot say it is the lastin the Court's tortuous course of constitutional adjudication relating to dissolution of the marriage status. Whereas previously only the State of "matrimonial domicile" could grant an ex parte divorce and alimony, now any domiciliary State can grant an ex parte divorce, but no State, even if domiciliary, can grant alimony ex parte when it grants a divorce ex parte.
*421 It will make for clarity to give a brief review of the singular history of matrimonial law in this Court since the decision in Atherton v. Atherton, 181 U. S. 155. In that case, the Court held that a sister State had to give full faith and credit to a divorce granted, on the basis of constructive service, by the matrimonial domicile to a deserted husband. In Haddock v. Haddock, 201 U. S. 562, the Court refused to extend Atherton, holding that a State need not give full faith and credit to a divorce granted ex parte to a deserted husband by a domiciliary State other than the matrimonial domicile. These precedents were applied to the incidental claim to alimony in Thompson v. Thompson, 226 U. S. 551, where the Court held that full faith and credit was to be given to the refusal of the matrimonial domicile to grant alimony when it granted a divorce on the basis of substituted service. Under the pre-Williams law, then, the same jurisdictional rules applied to the dissolution of the marriage tie and to an incidental adjudication denying alimony. Not only the adjudication of divorce but also the adjudication denying alimony by the matrimonial domicile was required to be given full faith and credit despite the lack of personal jurisdiction over the other spouse.
In Williams v. North Carolina, I, 317 U. S. 287, the scope of Art. IV, § 1, was found to require full faith and credit to be given to a divorce granted ex parte by any State where one spouse was domiciled. The limitation of ex parte divorces to the matrimonial domicile imposed by Haddock v. Haddock was rejected as being based on "fiction." Williams v. North Carolina, II, 325 U. S. 226, made it clear that full faith and credit was required to be given only if the granting State was actually a domiciliary State, that the finding on this issue could not be foreclosed by the decreeing State, and that it could be readjudicated later by another State. But this restriction of Williams II was considerably weakened *422 when the Court held that a sister State, no matter how great its interest because of its own social policy, was precluded from relitigating the existence of the jurisdictional facts underlying a divorce when both parties had merely made an appearance in the original divorce proceeding. Sherrer v. Sherrer, 334 U. S. 343, and Coe, v. Coe, 334 U. S. 378. This was so even if the collateral attack were made by a third party who had not appeared in the original proceeding and who had independent interests. Johnson v. Muelberger, 340 U. S. 581.
The decisions from Williams I through Johnson resulted in a broad extension of the scope of the Full Faith and Credit Clause. Haddock v. Haddock was rejected, not because it gave too little respect to the rights of the absent spouse, but rather because it gave too much respect to those rights, and not enough to the rights of the other spouse and his or her domiciliary State. The interests of the absent spouses were subordinated to the interests of the other spouses and their domicile of divorce in Williams I, and the interests of a State that was allegedly both pre-divorce and post-divorce domicile were subordinated to the interest of the temporary "domicile" of divorce in Sherrer and Coe.
One might have expected that since Thompson v. Thompson, supra, was based on Haddock v. Haddock, it would have suffered the same fate. But no. The law is not so logical. The Court shrinks from applying Williams I to Thompson. In fact, we are now told that the vice of Thompson v. Thompson is just the opposite of that of Haddock v. Haddock: Thompson paid too little respect to the rights of the absent spouse and too much to the rights of the other spouse and his domicile. And so, as compensation, the interests of the absent spouse, which the Court subordinated so far as the breaking up of the marital relation was concerned in Williams I, are now to be enlarged, so far as alimony is concerned. The requirement *423 of Pennoyer v. Neff, 95 U. S. 714, that there must be personal jurisdiction in an action to recover a judgment for personal services rendered, was before the Court in Haddock, in Thompson, and in Williams I. Although it was found in all three cases not to be applicable to the unique interests and factors pertaining to the severance of the marriage status and the incidental determination denying alimony, it is now treated as a controlling precedent.
A normal action for divorce comprehends dissolution of the marital relation and, incident thereto, a property arrangement between the parties. I stand on the Williams decisions; and so I start from the proposition that full faith and credit must be given to an ex parte divorce granted by a State that is the domicile of one of the parties. The only legal question for our concern in this case is whether the other aspect of, and indeed an incident to, a proceeding for divorce, the property arrangement, is similar enough to the dissolution of the marital relation, with respect to both the interests of the parties and the nature of what is adjudicated, that constitutionally it may be treated alike.
Haddock v. Haddock and Thompson v. Thompson proceeded on the basis that they should be treated alike. The Court, however, solves all with the statement, "It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant." This is an artful disguise for labeling the action with the question-begging phrase, "in personam." A dogmatic, unanalyzed disregard of the difficulties of a problem does not make the problem disappear. Strictly speaking, all rights eventually are "personal." For example, a successful suit in admiralty against a ship results of course not in loss to the ship but to its owner. The crucial question is: what is the fair way to proceed against these *424 interests? May a State deal with the dissolution of a marriage comprehensively, or must it chop up the normal incidents of the cause of action for divorce?
No explanation is vouchsafed why the dissolution of the marital relation is not so "personal" as to require personal jurisdiction over an absent spouse, while the denial of alimony incident thereto is. Calling alimony a "personal claim or obligation" solves nothing. I note this concern for "property rights," but I fail to see why the marital relation would not be worthy of equal protection, also as a "personal claim or obligation." It may not be translatable into dollars and cents, but that does not make it less valuable to the parties. It cannot be assumed, by judicial notice as it were, that absent spouses value their alimony rights more highly than their marital rights. Factually, therefore, both situations involve the adjudication of valuable rights of an absent spouse,[1] and I see no reason to split the cause of action and hold that a domiciliary State can ex parte terminate the marital relation, but cannot ex parte deny alimony. "Divisible divorce" is just name-calling.[2] I would therefore hold that *425 Nevada had jurisdiction to make the determination it made with respect to alimony and that New York must give full faith and credit to the whole Nevada judgment, not just to part of it.
It should also be noted that the Court's decision, besides turning the constitutional law of marital relations topsy-turvy, has created numerous problems whose solution is far from obvious. The absent spouse need no longer appear in the divorcing State in order to be present when an adjudication is made. She (or he) may sue wherever she can serve the other spouse or attach his property. What will happen in States that grant alimony only as incident to a divorce? Most States do not have statutes like the New York statute involved in the present case. Would this Court require any State in which one spouse catches another to entertain a cause of action for alimony? This is a far cry from what was involved in Hughes v. Fetter, 341 U. S. 609. Also, it is not even settled what the relation of a State to an ex-wife and an ex-husband must be for the State, as a matter of due process, to be able to grant support on the basis that the parties were once man and wife.
Another view, agreeing that Nevada can adjudicate alimony ex parte incident to its granting a divorce ex parte, at least for purposes of its own law, would then hold that New York is not compelled to give full faith and credit to the valid Nevada judgment. "New York's law and policy is," so the argument runs, "that the right of a married woman domiciled in New York to support *426 survives an ex parte divorce, whether obtained in New York or elsewhere. . . . The interest of New York in her domiciliaries seems . . . to be of sufficient weight to justify allowing her to apply her own policy on the question of what effect ex parte divorces will be given as against the surviving support rights of her own domiciliaries."
To begin with, it cannot be pretended that New York is not discriminating against alimony adjudications in all out-of-state ex parte divorces, for a divorce granted to a husband in New York against a wife who is not served personally in New York is not ex parte if the wife is a New York domiciliary. Her domicile provides a basis of jurisdiction that would be sufficient in an ordinary non-matrimonial action. See Williams v. North Carolina, I, 317 U. S. 287, 298-299; Milliken v. Meyer, 311 U. S. 457, 463.
To go to the heart of the matter, the Full Faith and Credit Clause is itself a constitutional adjustment of the conflicting interests of States, and we are not free, by weighing contending claims in particular cases, to make readjustments of the conflicting interests as if the Full Faith and Credit Clause did not exist. The clause requires that "Full Faith and Credit shall be given in each State to the . . . judicial Proceedings of every other State." See also 28 U. S. C. § 1738. It is true that the commands of the Full Faith and Credit Clause are not inexorable in the sense that exceptional circumstances may relieve a State from giving full faith and credit to the judgment of a sister State because "obnoxious" to an overriding policy of its own. But such instances "have been few and far between, apart from Haddock v. Haddock." See Williams v. North Carolina, I, 317 U. S. 287, 294-295.
Of course New York has substantial connection with a domiciliary who has been divorced ex parte in Nevada, but that provides no justification for allowing it to refuse *427 to give full faith and credit to that part of the Nevada judgment denying alimony. A State desiring to deny full faith and credit to the judgment of another State almost always has such a connection. Whatever the unusual circumstances that may justify making an exception to the requirements of the Full Faith and Credit Clause, this case does not present them because, for the reasons I have already stated, no stronger state policy can be urged in this case than was overridden in Williams I. Blanket discrimination against ex parte alimony decrees of sister States therefore subordinates the requirements of the Full Faith and Credit Clause to the policy of New York.
To justify the New York law as a "mere survival of a pre-existing right" is only another proof that "the word `right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion." American Bank & Trust Co. v. Federal Reserve Bank, 256 U. S. 350, 358. There can be no "right" until the termination of the marriage, and the whole question in the case is which State shall be able to determine the incidents of the dissolution of the marriage status. Nor is analysis furthered by analogizing the "right" to alimony to the dower "right," thence sliding to the conclusion that since New York would not have to recognize the Nevada decree cutting off dower, it does not have to recognize the Nevada decree cutting off alimony. The differences between a "right" to alimony and a dower "right" are so decisive that I need not spell out why an assumed decision with respect to dower does not reach our problem.
We are also told that "the interest of the wife in not becoming single and penniless is greater than her interest in not becoming single." This is doubtless a correct statement of fact and might furnish a basis for legislation *428 of a kind not at issue in this case, since the New York law is based on its right to disregard all ex parte alimony decrees and not on an interest it may have in the indigent condition of former wives.[3]
For me, the rigorous commands of the Full Faith and Credit Clause are determinative. I cannot say that the Nevada judgment denying alimony is more "obnoxious" to New York policy (as expressed in § 1170-b of its Civil Practice Act) than its judgment of divorce. Since New York is required to give full faith and credit to the one, it is to the other.
MR. JUSTICE HARLAN, dissenting.
The Court holds today, as I understand its opinion, that Nevada, lacking personal jurisdiction over Mrs. Vanderbilt, had no power to adjudicate the question of support, and that any divorce decree purporting so to do is to that extent wholly voidpresumably in Nevada as well as in New Yorkunder the Due Process Clause of the Fourteenth Amendment, pursuant to the doctrine of Pennoyer v. Neff, 95 U. S. 714.
I cannot agree with such a holding. In the first place, as I see this case, there is no necessity to pass on this question at all. Our problem should be, initially at least, not whether this decree, insofar as it affects property, is "void" for lack of due process, but whether it binds New York *429 under the Full Faith and Credit Clause. In other words, we need not, in the first instance, decide what the Due Process Clause forbids Nevada to do, but merely what the Full Faith and Credit Clause compels New York to do. One of the wisest of our constitutional commentators has warned us to beware the "constricting necessitarianism" of deeming the two questions to be one and the same:
"In a problem so fraught with infelicities whatever mediation is devised, there is wisdom in confining pronouncements closely to what is imperative in the particular case. It is not logically necessary to deny Nevada's mastery within her own boundaries in order to deny her power of projection beyond them. Freedom of home manufacture and consumption does not necessarily entail freedom of export. Only if it is inexorable that what is meant by `jurisdiction' must be either wholly absent or wholly unlimited need frailty in sister states be conditioned on total impotence at home." T. R. Powell, And Repent at Leisure, 58 Harv. L. Rev. 930, 936.
Were we compelled to reach the question, I would by no means be ready to hold that Nevada, in connection with a valid divorce proceeding, had no power to adjudicate an incident so inextricably knit to the marriage status as is support. I would agree with Judge Fuld, dissenting below, that the denial of power to Nevada rests on the "erroneous premise that a mere incident of the marital status, which `in itself furnishes no foundation for a cause of action' . . . is the equivalent of an independent right."[1] Nor does it help to label Mrs. Vanderbilt's claim to support a "property" right and therefore an in *430 personam, rather than an in rem, matter. If it is due process for Nevada to adjudicate the marriage status of a domiciliary without personal service over the absent spouse (as it clearly is, see Williams v. North Carolina, I, 317 U. S. 287), I see no reason why Nevada cannot, at least for the purposes of her own law, also adjudicate the incidents of that status.
I do not think, however, that this forecloses the issue before us. I revert, therefore, to what, for me, is the real question in this case: must New York respect Nevada's decree insofar as it purports to adjudicate the question of support? The answer to this question, I think, turns squarely on an issue of New York law, namely, whether Mrs. Vanderbilt was domiciled in New York at the time of the divorce.
If Mrs. Vanderbilt was a New York domiciliary at the time of the divorce, the situation would seem to me to be as follows: New York's law and policy is that the right of a married woman domiciled in New York to support survives an ex parte divorce, whether obtained in New York or elsewhere. The only question under the Full Faith and Credit Clause is whether New York is compelled to disregard her own law and policy in favor of the law of Nevada on the question of the survival of support rights subsequent to an ex parte divorce. My answer to this question is "no." The interest of New York in her domiciliaries seems to me to be of sufficient weight to justify allowing her to apply her own policy on the question of what effect ex parte divorces will be given as against the surviving support rights of her own domiciliaries. In my view it does not follow automatically that merely because New York must recognize the validity of Nevada's ex parte divorce, she must also recognize the effect Nevada would give to that divorce in connection with the wife's rights to support. The two questions are *431 governed by different considerations. I quote again from Professor Powell:
"The `irreconcilable conflict' between two states on the question of marital status is not so insuperable in dealing with matters of money. It is less irksome to support two wives than to go to jail because of them. Though with respect to status one state or the other must yield, with respect to maintenance such yielding is not necessary.
". . . `The problem under the full faith and credit clause is to accommodate as fully as possible the conflicting interests of the two States.' The solution is a matter of judgment in each case, judgment based not only on the particularities of the individual case or type of case but upon the desirability of as much generality and predictability as is consistent with a fair degree of control by a state over the conduct and the relationships of persons who in every substantial sense are its own home folks. . . .
.....
"[It is argued] that the state where the stay-behind spouse has long been domiciled has an interest in making a quondam husband continue a prior obligation to support her, and that this interest is stronger and more meritorious than any possible opposing interest to prevent it that can be accredited to the state which gave him a divorce after being blindly satisfied that he intended an indefinite stay there. This seems so sensible that it should be obvious to any one who had never become confused by studying law." Powell, supra, at 952, 954-955.
In effect, the situation before us seems to me to be analogous to dower. If New York law should provide that the dower rights of her domiciliaries survive ex parte *432 divorces, I would suppose that New York could give effect to that policy in spite of an ex parte Nevada divorce which purported to cut off the right to dower. The problem in each case is to weigh the policy of giving an ex parte judgment uniform effect throughout the nation, against the interest of a particular State in a particular local policy. Where status is concerned, this Court held that the interest in certainty as to whether one is married or single outweighs the interest of home States in the marital status of their domiciliaries, so that North Carolina was forced to swallow Nevada's views as to what is sufficient cause for divorce even though the North Carolina wife had not appeared in the Nevada proceeding. Williams, I, supra. But I see no reason why we should extend that, for me, already somewhat unpalatable mediation to the limits of its logic in order to hold that Nevada's views as to support as well as divorce must be forced onto other States, and that Nevada can not only compel wives domiciled elsewhere to become single against their will, but to be pauperized against their will as well. Of course, the reason for the distinction is not that the wife's right to support is "worth" more than her interest in remaining a wife. But the interest of the wife in not becoming single and penniless is greater than her interest in not becoming single. In other words, merely because it is held that the wife must be deprived of one benefit ex parte, in the interest of national uniformity, does not compel us to hold that the other benefit must vanish with it, where the interest in national uniformity is not as compelling.[2]
*433 In deciding this case we must always remember that the reason why the Nevada ex parte divorce has the effect of a judgment in New York even on the question of status is because this Court found, in measuring the competing interests, that uniformity should prevail. It will not do, therefore, to say that once that is done the Court is foreclosed from weighing competing interests in determining the effect of the Nevada adjudication as to questions other than status. One cannot rest on the inexorability that the Nevada decree is a "judgment" and eliminate the fact that it was held to be a judgment outside Nevada as to status for reasons which do not necessarily apply to the question of support, any more than one can solve the problem by labeling support as a "property" right.[3]
Quite a different case is presented, it seems to me, where a wife becomes a domiciliary of New York after the ex parte divorce and is then granted support. In *434 such a case New York could not pretend to be assuring the wife the mere survival of a pre-existing right, because the wife could have had no pre-divorce rights in New York at all. New York would merely be granting the wife a marital right in the teeth of a valid Nevada adjudication that there is no marriage. And, of course, at the time of the divorce New York would have had no interest in the situation of any kind. In such a case, therefore, it seems to me that the Full Faith and Credit Clause would require New York to respect the Nevada judgment as to support rights. Furthermore, even aside from the judgment, as a matter of choice of law I should think New York would be forced to look to the law of a State which had a substantial contact with these parties at the time of the divorce in determining the effect to be given to the divorce decree. It seems to me unfortunate that this Court should permit spouses divorced by valid decrees to comb the country, after the divorce, in search of any State where the divorcing spouse has property and which has favorable support laws, in order there to obtain alimony. I would therefore by no means hold the Nevada adjudication "void" and therefore of no effect in any State.[4]
Thus decision here, as I see it, turns on the domicile of Mrs. Vanderbilt at the time of the divorce. On this question I am left in some doubt. Section 1165-a of the New York Civil Practice Act makes one year's residence necessary to suits for support. This is amenable to the interpretation that New York would not recognize Mrs. Vanderbilt as domiciled in that State until the lapse of a year, that is, after the decree of divorce here involved. See de Meli v. de Meli, 120 N. Y. 485, 24 N. E. 996. On the other hand, the opinion below intimates that the one-year *435 residency can be regarded as merely a procedural prerequisite to filing suit under § 1170-b, and does not affect Mrs. Vanderbilt's status as a domiciliary of New York ab initio.[5] In view of this uncertainty in the state law, I would remand to the state court for reconsideration in light of the above-stated principles.
NOTES
[1] It seems clear that in Nevada the effect of this decree was to put an end to the husband's duty to support the wifeprovided, of course, that the Nevada courts had power to do this. Sweeney v. Sweeney, 42 Nev. 431, 438-439, 179 P. 638, 639-640; Herrick v. Herrick, 55 Nev. 59, 68, 25 P. 2d 378, 380. See Estin v. Estin, 334 U. S. 541, 547.
[2] See Pennington v. Fourth Natl. Bank of Cincinnati, 243 U. S. 269; Harris v. Balk, 198 U. S. 215.
[3] Art. IV, § 1. "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." Congress has provided that judgments shall have the same force and effect in every court throughout the United States that they have in the State where they were rendered. 28 U. S. C. § 1738.
[4] "In an action for divorce, separation or annulment, . . . where the court refuses to grant such relief by reason of a finding by the court that a divorce . . . declaring the marriage a nullity had previously been granted to the husband in an action in which jurisdiction over the person of the wife was not obtained, the court may, nevertheless, render in the same action such judgment as justice may require for the maintenance of the wife." Gilbert-Bliss' N. Y. Civ. Prac., Vol. 6A, 1956 Cum. Supp., § 1170-b.
[5] The petition for certiorari also raised a number of other contentions. We have considered them and find that they do not justify reversing the decision below.
[6] Pennoyer v. Neff, 95 U. S. 714, 726-727. If a defendant has property in a State it can adjudicate his obligations, but only to the extent of his interest in that property. Pennington v. Fourth Natl. Bank of Cincinnati, 243 U. S. 269; Harris v. Balk, 198 U. S. 215.
[7] A concurring opinion in Armstrong v. Armstrong, 350 U. S. 568, 575, and the authorities collected there, set forth in greater detail the reasons underlying this holding. Cf. Meredith v. Meredith, 96 U. S. App. D. C. 355, 226 F. 2d 257, 69 Harv. L. Rev. 1497.
"A state lacks judicial jurisdiction to absolve a spouse from any duty of support which, under the law of a second state, he may owe the other spouse in the absence of personal jurisdiction over the latter." Restatement, Conflict of Laws, § 116 (2) (Tent. Draft No. 1, 1953), and see Comment f to § 116.
[1] Custody over children presents an entirely different problem. See May v. Anderson, 345 U. S. 528. The interests of independent human beings, the children, are involved. Also, insofar as the spouses' interests are concerned, the divorce may terminate their relations with each other as husband and wife, but it cannot terminate their relation to their children. They are still parents.
[2] "The deceptive appeal of the phrase `divisible divorce' should not be permitted to obscure the basic concepts involved. A finding of divisibility may be appropriate where, as in Estin, the particular right at issue is a distinct property right, embodied in a previously granted judgment, which is no longer dependent, for its recognition or enforcement, upon the marital relationship, or where, as in Armstrong, the court rendering the divorce has itself severed the issue of support and left it subject to separate adjudication in the future. The situation is, however, decidedly different where, as in the case before us, the claim asserted depends for its very existence on the continuance of the marital status and that status and its incidents have both been terminated by a jurisdictionally valid judgment of divorce." Judge Fuld, dissenting in this case in the New York Court of Appeals, 1 N. Y. 2d 342, 356-357, 135 N. E. 2d 553, 561. I would add that the concept of "divisible divorce" is a misnomer. The divorce is not divisible. It is the cause of action for terminating the marital relation and making a property arrangement that is divided.
[3] We are not told what a third State is to do if suit is brought there. Does New York or Nevada law control? Since, under this view, the husband's ex parte judgment denying alimony to the wife is a valid one, at least in Nevada, I would suppose that the wife could get a support judgment ex parte in New York. Then, there would be not merely a problem of choice of law in the third State, which has no domiciliary connection with either party, but rather a question of which judgment is entitled to full faith and credit in the third State.
[1] N. Y. 2d 342, 357, 135 N. E. 2d 553, 561.
[2] "It is easier to have a flat rule than to make distinctions based on judgment. Yet, from the standpoint of partitioning power among the several states, there may well be wisdom in having a gap between what due process will not forbid and what full faith and credit will not require. Certainly in suits over property and money there may be grounds that are thought good enough to justify a state in exerting its power so far as it relies wholly on its own strength and yet not so good that other states should be bound to lend a hand." Powell, supra, at 936; and see id., n. 14.
[3] For the most compendious exposition of the many situations where this Court has held that the Full Faith and Credit Clause does not demand automatic respect in a sister State for a judgment valid in the State where rendered, see the dissent of Mr. Justice Stone and Mr. Justice Cardozo in Yarborough v. Yarborough, 290 U. S. 202, 213. There can hardly be dispute over the proposition that "in the assertion of rights, defined by a judgment of one state, within the territory of another, there is often an inescapable conflict of interest of the two states, and there comes a point beyond which the imposition of the will of one state beyond its own borders involves a forbidden infringement of some legitimate domestic interest of the other. That point may vary with the circumstances of the case; and in the absence of provisions more specific than the general terms of the congressional enactment this Court must determine for itself the extent to which one state may qualify or deny rights claimed under proceedings or records of other states." Id., at 215 (footnotes omitted).
[4] See Morris, Divisible Divorce, 64 Harv. L. Rev. 1287.
[5] I draw that implication from the following passage in the opinion of the Court of Appeals: "But when the husband, abandoning his wife, left their California domicile to establish a Nevada domicile for his own purposes, the abandoned wife had a right to set up a New York domicile for herself and bring the matrimonial domicile to New York with her . . . . That right she exercised in this instance before the Nevada judgment was entered and she satisfied New York's residence requirements before suing for a separation. . . . We need not decide whether she would have the same right to come into New York, even after a foreign-State divorce, to take advantage of section 1170-b." 1 N. Y. 2d, at 351, 135 N. E. 2d, at 558.
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FILED
NOT FOR PUBLICATION OCT 09 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE PFAU; SUSIE PFAU; DAN No. 12-35400
DONOVAN, individually and on behalf of
all others similarly situated, D.C. No. 9:11-cv-00072-SEH
Plaintiffs - Appellants,
MEMORANDUM*
v.
GREG MORTENSON; CENTRAL ASIA
INSTITUTE, a corporation; PENGUIN
GROUP (USA), INC.; DAVID OLIVER
RELIN; MC CONSULTING, INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted October 7, 2013**
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, 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).
Plaintiffs George Pfau, Susie Pfau, and Dan Donovan appeal from the
district court’s dismissal with prejudice of their Fourth Amended Complaint. We
have jurisdiction under 28 U.S.C. § 1291 and we affirm.
We review de novo dismissals pursuant to Rules 9(b) and 12(b)(6) of the
Federal Rules of Civil Procedure. Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1102
(9th Cir. 2003). We review a denial of permanent injunctive relief for abuse of
discretion. Gentala v. City of Tucson, 213 F.3d 1055, 1060 (9th Cir. 2000). We
review a district court’s dismissal of a complaint with prejudice for abuse of
discretion. Okwu v. McKim, 682 F.3d 841, 844 (9th Cir. 2012).
The district court properly dismissed the complaint. Plaintiffs’ conclusory
statements and minimal factual allegations do not satisfy Rule 9(b)’s requirement
that fraud claims be pleaded with particularity. See Vess, 317 F.3d at 1106.
Plaintiffs’ fraud-based RICO claims do not adequately plead the required
elements. See Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996) (citing
Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985)). Plaintiffs fail to
allege that the purported misrepresentations caused their injuries. They also fail to
specify with the requisite particularity Defendants’ individual roles in the alleged
racketeering scheme, see Lancaster Cmty. Hosp. V. Antelope Valley Hosp. Dist.,
940 F.2d 397, 405 (9th Cir. 1991), to plead an enterprise theory, or to properly
2
plead the predicate acts of mail or wire fraud.
Plaintiffs’ fraud and deceit claims fail to state more than conclusory
allegations. The breach-of-contract and breach-of-implied-contract claims fail
because Plaintiffs have not adequately alleged all the elements of a valid contract
under Montana law. See Mont. Code Ann §§ 28-2-102, 28-2-103, 28-3-103.
Because of the defects in the RICO and common-law fraud, deceit, and
contract claims, the district court was also correct to dismiss Plaintiffs’ claims for
unjust enrichment, injunctive relief, an accounting, class status, punitive damages,
and damages against Penguin on a theory of principal liability.
Finally, the district court acted within its discretion in dismissing the
complaint and denying leave to amend. Plaintiffs have already had multiple
opportunities to amend, even after the defects in the pleadings were identified in
extensive briefing on motions to amend and dismiss the Third Amended
Complaint.
AFFIRMED.
3
|
735 P.2d 1209 (1987)
303 Or. 262
Dena Ann PLEMEL and State of Oregon, ex rel. Adult & Family Services Division, Respondents On Review,
v.
Brent David WALTER, Petitioner On Review.
No. 549; CA A34015; SC S33117.
Supreme Court of Oregon, In Banc.
Argued and Submitted November 5, 1986.
Decided April 21, 1987.
*1210 Daniel Hoarfrost, Portland, filed a brief for petitioner on review and waived oral argument.
Richard D. Wasserman, Asst. Atty. Gen., argued the cause for respondents on review.
LENT, Justice.
In this filiation proceeding the jury, by a 9-3 vote, found that Brent Walter was the father of Dena Plemel's child. Plemel's expert witness testified that blood tests of Plemel, Walter and the child did not exclude the possibility that Walter was the father. Walter did not challenge the validity of the tests or the failure of the tests to exclude him but did object, on grounds of irrelevance and prejudice, to testimony by the expert regarding the probability that he was the father. The trial court permitted the testimony, and the Court of Appeals affirmed, Plemel v. Walter, 80 Or. App. 250, 721 P.2d 474 (1986). Because we hold that the testimony was inadmissible in the form that it was presented, we reverse and remand for a new trial.
*1211 I.
Plemel's child was born on June 9, 1983. Pursuant to ORS 109.125, she initiated filiation proceedings against Walter, alleging that he was the father of the child. Subsequently, the state intervened as a petitioner. Walter denied paternity.
Plemel testified that she and Walter had intercourse on one occasion, September 11, 1982. Walter admitted having intercourse with Plemel but testified that it had occurred on the night of August 13-14, 1982. Both Plemel and Walter introduced the testimony of witnesses to corroborate their respective versions of when they had been together. A nurse practitioner who had examined Plemel testified that conception of the child would have been impossible in mid-August; she estimated that conception occurred between September 9 and September 16.
Plemel also called as a witness Dr. E.W. Lovrien, the director of the Oregon Health Sciences University Phenotype Laboratory. The laboratory had conducted blood tests of Plemel, Walter and the child. Lovrien testified that: (1) the tests did not exclude the possibility that Walter was the father; (2) the probability that the tests would have excluded a "falsely accused father" was 97.5 percent; (3) Walter's "paternity index" was 178; (4) Walter's "chance of paternity" was 99.4 percent; (5) Walter's "chance of nonpaternity" was 0.6 percent; and (6) it was "extremely likely" that Walter was the father. The last three statements were essentially equivalent to, and derived from, the paternity index. The "chance of paternity" was the "paternity index" stated as a percentage chance (i.e., odds of 178 to 1 are equal to a 99.4 percent chance); the "chance of nonpaternity" was the "chance of paternity" stated negatively; the expression "extremely likely" was taken from a table developed by a joint committee of the American Medical Association and the American Bar Association[1] to express the significance of any given "chance of paternity."
Walter, by way of a motion in limine and an objection, sought to exclude that portion of Lovrien's testimony related to the paternity index and its equivalents. He argued that the testimony was irrelevant because the "probability of excluding a falsely accused father" provided the jury with all of the information that could be obtained from the blood tests. The argument was premised on his contention that in order to derive the paternity index, Lovrien had made an arbitrary assumption about the strength of the other evidence presented in the case. Walter also argued that the testimony was prejudicial in that the jury would be too confused by it to understand its proper significance. The trial court, without stating its reasons, denied Walter's motion in limine and overruled his objection. The Court of Appeals affirmed, holding that the testimony regarding the paternity index helped the jury to interpret the blood test results and that Lovrien's testimony minimized any potential for jury confusion by clearly explaining the limited significance of the statistics he presented. 80 Or. App. at 253-54, 721 P.2d 474.
Because courts have so frequently misinterpreted the meaning and significance of paternity test results, see, e.g., McCormick, Evidence § 211 (3rd ed 1984) (and cases cited therein); Ellman & Kaye, Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity?, 54 N.Y.U.L. Rev. 1131 (1979) (and cases cited therein), we believe that some background is appropriate before we analyze Walter's arguments.[2]
*1212 Lovrien referred to the group of blood tests performed in this case as an "extended red cell enzyme" test. This group of tests reveals the presence of various antigens, red cell enzymes and plasma proteins in the blood. By knowing which of these substances are in the blood of the mother, child and putative father, a geneticist can state whether it is possible for the putative father to be the true father.
Each person has a large number of inherited traits, such as eye color and facial features. Different versions of a particular trait are known as phenotypes. For the inherited trait of eye color, for example, blue eyes are one phenotype, brown eyes are another. The antigens, enzymes and proteins in a person's blood are also inherited traits. One set, or "system," of antigens are the ABO antigens, which have been widely used in the classification of blood. Because no individual possesses every antigen in the ABO system, the ABO antigens that an individual does possess determine that individual's "blood type," or phenotype, for the ABO system. The ABO system can be divided into six phenotypes: O, A[1], A[2], B, A[1]B or A[2]B. See Joint AMA-ABA Guidelines: Present Status of Serological Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247, 263 (1976). If a person has the phenotype A[1], this means that a blood test revealed the presence of the A[1] antigen. Similarly, if a person has the phenotype A[1]B, the blood test revealed the presence of both the A[1] antigen and the B antigen. If the person's phenotype is O, the blood test was unable to detect the presence of any of the antigens for the ABO system.
The specific set of phenotypes that a person possesses is determined by that person's genes. Genes occur in pairs that contain one gene from each parent. A specific gene pair or a specific group of gene pairs control a particular body trait, and an individual's phenotype for that trait will reflect the nature of the genes that make up the controlling pair or pairs. If a person has the phenotype A[1]B, that person's ABO gene pair consists of an A[1] gene and a B gene. If the phenotype is A[1], the pair consists of an A[1] gene and either another A[1] gene or an O gene. This is because the O gene does not produce a detectable antigen. See Reisner & Bolk, A Layman's Guide to the Use of Blood Group Analysis in Paternity Testing, 20 J.Fam.L. 657, 662 (1982). If the phenotype is O, both genes are O.
Information about a person's phenotypes, then, can be used to derive information concerning that person's corresponding gene pairs. Moreover, because each parent contributes one gene to a pair, knowledge of a person's phenotypes can also be used to derive information about that person's parents' or children's phenotypes.
For example, Plemel's phenotype for the ABO system was found to be A[1]. Thus, she had an A[1] gene and either another A[1] gene or an O gene. The child's phenotype was found to be A[1]B, requiring that the child have an A[1] gene and a B gene. Because the child received one gene from Plemel and one from its father, and because Plemel did not have a B gene, the child had to have received the A[1] gene from Plemel and the B gene from its father. The child's father's phenotype would therefore have to be one of the "B phenotypes": B, A[1]B or A[2]B. See Joint AMA-ABA Guidelines, supra, at 264. If Walter's phenotype for this system were O, A[1] or A[2], he could not have been the father. Because Walter's phenotype was found to be A[2]B, a phenotype consistent with paternity, the test for this system could not exclude him as a potential father.
In addition to the ABO system, Lovrien's laboratory determined Walter's, Plemel's and the child's phenotypes for 18 other blood systems. Lovrien testified that for each of these systems, Walter's phenotypes were consistent with the accusation of paternity. The "extended red cell enzyme" test did not exclude the possibility that Walter was the father of Plemel's child.
If the frequency with which phenotypes occur in the population of potential fathers is known, more can be said than that the paternity test has failed to exclude the putative father. It is also possible to derive *1213 statistics about the ability of the paternity test to exonerate men falsely accused of paternity and the relative likelihood that the putative father is the true father.
Probability of Excluding a Falsely Accused Father. This statistic, sometimes termed the "prior probability of exclusion" or, simply, the "probability of exclusion," measures the ability of a paternity test to exclude men falsely accused of paternity. McCormick, supra, at 657 n. 4. The statistic is calculated as follows: For each mother-child combination of phenotypes, certain phenotypes will be inconsistent with paternity. For example, if the mother is A[1] and the child is B, the father cannot be A[1]. The frequency with which such combinations occur in the population is the probability of excluding a falsely accused father. See Reisner & Bolk, supra, at 670-71. If there are no such combinations in the population, e.g., if everyone is A[1], then the probability of excluding a falsely accused father is zero. A test with this probability would be useless.
As more blood systems are tested, the probability of excluding a falsely accused father can become quite high. The test in this case used 19 systems and had a probability of excluding a falsely accused father of 97.5 percent. Expressed in another way, in 39 instances out of 40 in which a man is falsely accused of being the father of a child, the tests conducted in this case would prove that the man did not father the child.
This statistic frequently is confused with the percentage of men in the population whose phenotypes are inconsistent with paternity, a percentage that is also often called the "probability of exclusion." The parties in this case, as well as the Court of Appeals, appear to have fallen into this confusion. Although the "extended red cell enzyme" test had a probability of excluding a falsely accused father of 97.5 percent, this does not imply that the proportion of the male population capable of fathering Plemel's child is 2.5 percent.[3] The probability of excluding a falsely accused father is a measure of the ability of the paternity test to exclude falsely accused fathers without reference to the phenotypes of any particular mother-child combination; the probability will be 97.5 percent for everyone tested. The results from the ABO system in this case provide a good illustration of the distinction. Lovrien testified that the ABO system alone will exclude falsely accused fathers in about 17 percent of cases. The father of Plemel's child, however, must have a B gene, which, according to Lovrien, occurs in only about 5 percent of the population. Thus, although the ABO system has a probability of excluding a falsely accused father of 17 percent, 95 percent of the male population has been excluded by the ABO system in this case.[4]
No statistic on the percentage of the relevant population capable of fathering Plemel's child was presented by Lovrien.
Paternity Index. This statistic, also known as the "likelihood ratio," the "chance of paternity" and the "likelihood of paternity," measures the putative father's likelihood of producing the child's phenotypes against the likelihood of a randomly selected man doing so. Despite the alternative labels, it is not the probability that the accused is the father. McCormick, supra, at 659 n. 17; Reisner & Bolk, supra, at 671-74.
Within the group of men genetically capable of fathering a particular child, some will be genetically more likely to have done *1214 so than others. For example, we noted above that Walter's phenotype for the ABO system was A[2]B and that the child's father had to have one of the "B phenotypes." Walter could transmit to his child either his A[2] or his B gene. The chance that he would transmit the B gene would be 50 percent. A man who had a B phenotype and two B genes (as opposed to a man with a B phenotype and one B gene and one O gene), however, would have a 100 percent chance of transmitting a B gene. Other things being equal, this man would be more likely to be the father of Plemel's child than would Walter.
The paternity index, which is a ratio that compares the putative father's likelihood of producing the child's phenotypes with the likelihood of a randomly selected man doing so, is not the likelihood of producing the child in question, but the relative likelihood of producing a child with the same phenotypes. The numerator of the ratio is the probability that a man with the phenotypes of the putative father and a woman with the mother's phenotypes would produce an offspring with the child's phenotypes. The denominator is the probability that a randomly selected man and a woman with the mother's phenotypes would produce an offspring with the child's phenotypes.
For example, as we noted above, the father of Plemel's child had to transmit a B gene to the child. We also noted that the chance that someone with Walter's phenotypes would do so was 0.5. This is the numerator of Walter's paternity index for the ABO system. The chance that a randomly selected man would produce an offspring with the child's phenotypes is simply the frequency with which the B gene occurs in the relevant male population, as compared to other genes. In the white male population this frequency is approximately 0.0658. (The percentage of white males with B genes will be somewhat less because some men will possess two B genes rather than only one.) This number is the denominator of the paternity index. Dividing the numerator by the denominator yields approximately 7.6, which is Walter's paternity index for the ABO system. Multiplying together his paternity indexes for all 19 serologic systems tested yields his overall paternity index, 178.
From the example above, it can be seen that the denominator of the paternity index will be the same for every putative father. This is because the denominator is the gene frequency in the population. The numerator, however, will vary from putative father to putative father because their phenotypes will vary. In the ABO system, some men will have two B genes, some, such as Walter, will have one B gene, and some will have no B gene. For each combination of genes, there will be a different probability of producing the child's phenotypes. Because the numerator varies from putative father to putative father, the paternity index will also vary. Thus, even though all men not excluded by a paternity test are capable of fathering the child, they will have different paternity indexes and thus different relative likelihoods of having fathered the child.
Because Walter's paternity index was 178, Walter was 178 times more likely than a randomly selected man to have fathered a child with the phenotypes of Plemel's child. Converting this into a percentage resulted in a "chance of paternity" of 99.4 percent and a "chance of nonpaternity" of 0.6 percent. The AMA-ABA "verbal predicate" used to describe a "chance of paternity" of 99.4 percent is "extremely likely." See Joint AMA-ABA Guidelines, supra, at 262. Again, this does not mean that it is "extremely likely" that Walter is the father of Plemel's child, only that, compared to a randomly selected man, it is "extremely likely" that Walter is the father of Plemel's child.[5]
*1215 Probability of Paternity. In order to convert the paternity index and its equivalents into a probability of paternity, i.e., the actual likelihood that this putative father is the father of the child at issue, some estimate of the strength of the other evidence in the case must be made. If Walter were sterile, he would still have a paternity index of 178 and a "chance of paternity" of 99.4 percent, but obviously his probability of paternity would be zero. Similarly, barring divine intervention, if Walter were the only person to have had intercourse with the mother, his paternity index would be 178 and his "chance of paternity" would be 99.4 percent, but his probability of paternity would be 100 percent. Of course, most cases will fall between these extremes.
The usual method for calculating the probability of paternity is Bayes' formula. See McCormick, supra, at 659; Ellman & Kay, supra, at 1147-52. This formula demonstrates the effect of a new item of evidence on a previously established probability. In this instance, the new item of evidence is the blood test result (i.e., the paternity index), and the previously established, or prior, probability is the probability of paternity based on the other evidence in the case. The calculation is simplified if the probabilities are expressed as odds. The odds of paternity using Bayes' formula are simply the product of the prior odds and the paternity index. See McCormick, supra, at 660. For example, if the other evidence in this case had established that Walter was sterile, his prior odds of paternity would have been zero. His odds of paternity, then, would have been zero times his paternity index of 178, which equals zero. On the other hand, if the other evidence in the case had led one to believe that the odds that Walter was the father were one to one, his odds of paternity would have been one times 178, which equals 178 or a probability of paternity of 99.4 percent. It can be seen, then, that the paternity index will equal the probability of paternity only when the other evidence in the case establishes prior odds of paternity of exactly one. This is because the paternity index's comparison of the putative father with a randomly selected man is mathematically equivalent to the assumption that the prior odds of paternity are one to one, or that the prior probability is 50 percent. Reisner & Bolk, supra, at 674.
Lovrien did not derive a statistic for probability of paternity, although, as we note below, his testimony frequently referred to the paternity index and its equivalents in language suggestive of a probability of paternity. If the paternity index or its equivalents are presented as the probability of paternity, this amounts to an unstated assumption of a prior probability of 50 percent. Reisner & Bolk, supra, at 674.
II.
Whether the paternity index and its equivalents were admissible is controlled in the first instance by ORS 109.258, which in relevant part provides:
"If * * * the blood tests show the possibility of the alleged father's paternity, admission of this evidence is within the discretion of the court, depending upon the infrequency of the genetic marker."[6]
The words "this evidence" refer to "the possibility of the alleged father's paternity," but it is not clear whether this phrase is limited to the bare possibility of paternity or includes a statement of the degree of possibility.
ORS 109.258 is virtually identical to section 4 of the Uniform Act on Blood Tests to Determine Paternity (UABT), which was enacted in Oregon in 1953.[7] Or. *1216 Laws 1953, ch. 628, § 4. When the UABT was proposed in 1952, courts admitted only evidence of exclusion; blood test results consistent with paternity were inadmissible. See 9 Uniform Laws Annotated 103-04 (1957) (commissioners' prefatory note 2). One objective of the UABT was to make results consistent with paternity admissible. The commentary to the UABT states:
"[I]f the [blood] test showed that the alleged father could be the father of the child and if the blood type discovered disclosed that the type of blood and the combination in the child was of a rare type and that it would be infrequent to find such a combination of blood, * * * such evidence ought to be admissible as evidence of proof of paternity."
9 Uniform Laws Annotated 103 (1957) (commissioners' prefatory note 2). We infer that "such evidence" refers to the infrequency of the blood type. This interpretation is consistent with the statutory language, which directs the court to exercise its discretion to admit blood test evidence in accordance with the "infrequency of the genetic marker." No mention is made of calculations of relative or absolute probabilities of paternity. For these reasons, we conclude that whether a putative father's paternity index, probability of paternity and similar statistical calculations are admissible is a matter to be determined by generally applicable laws of evidence.
The admissibility of expert testimony is governed by three general constraints. First, expert testimony must be relevant. See OEC 402. Relevant testimony is testimony
"having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
OEC 401. Second, expert testimony is subject to OEC 702:
"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert may testify thereto in the form of an opinion or otherwise."
Finally, expert testimony must not be unduly prejudicial, confusing or time-consuming:
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence."
OEC 403. Put more succinctly, in evaluating the admissibility of expert testimony, "this court must identify and evaluate the probative value of the evidence, consider how it might impair rather than help the factfinder, and decide whether truthfinding is better served by exclusion or admission." State v. Brown, 297 Or. 404, 409, 687 P.2d 751 (1984).
Walter contends that Lovrien's testimony regarding the paternity index and its equivalents was not probative because it provided the trier of fact with no information beyond that provided by the "probability of excluding a falsely accused father." This contention is not correct and is based on a misunderstanding of these statistics.
As we noted above, the "probability of excluding a falsely accused father" measures only the power of the test to exclude any falsely accused father; it does not describe the percentage of the relevant male population that could be the father in a particular case. It also does not reveal the relative likelihoods of paternity among the men not excluded by the blood test. This relative likelihood is conveyed by the paternity index, and for this reason the paternity index has probative value beyond that provided by an exclusion statistic. For example, even if the blood test reveals that the putative father is a member of a small percentage of the population capable *1217 of fathering the child, his paternity index, and hence his relative likelihood of paternity, may also be very small.
In addition, the presentation of paternity test results in terms of probabilities or likelihoods of paternity rather than population percentages may enable the trier of fact to understand better the significance of the test results, see Ellman & Kaye, supra, at 1146; Joint AMA-ABA Guidelines, supra, at 260-63; Finkelstein & Fairley, A Bayesian Approach to Identification Evidence, 83 Harv.L.Rev. 489, 502 (1970), and thereby satisfy OEC 702. First, a population percentage may be too easily confused with the probability of paternity. From the statistic that 97.5 percent of the population is incapable of being the father, the trier of fact may wrongly jump to the conclusion that there is a 97.5 percent probability that the putative father is the true father.[8] Second, even if it is explained to the trier of fact that the population percentage is not the probability of paternity, the trier of fact may be left wondering what the probability of paternity is and what significance the population percentage has for it. See Ellman & Kaye, supra, at 1146.
We conclude that the paternity index and its equivalents are probative. This conclusion, however, does not end our inquiry. We must still assess whether, as asserted by Walter, the probative value is substantially outweighed by any prejudice and confusion engendered by its presentation.
The fundamental problem in the presentation of blood test results is conveying to the trier of fact the need to integrate the blood test results with the other evidence presented in the case. Although there have been many recent advances in paternity testing, leading to very high probabilities of excluding falsely accused fathers, paternity testing alone cannot yet prove paternity. Other evidence must narrow the number of potential fathers so that the test results become meaningful. The presentation to the trier of fact of the putative father's "paternity index," "chance of paternity" or "probability of paternity" creates several difficulties for conveying to the trier of fact the need to integrate these statistics with the other evidence in the case.
First, the expert is unqualified to state that any single figure is the accused's "probability of paternity." As noted above, such a statement requires an estimation of the strength of the other evidence presented in the case (i.e., an estimation of the "prior probability of paternity"), an estimation that the expert is in no better position to make than the trier of fact.[9] If the expert were to make such an estimation, it could not satisfy OEC 702's requirement of assistance to the trier of fact.[10]Cf. Tiedemann v. Radiation Therapy *1218 Consultants, 299 Or. 238, 243-44, 701 P.2d 440 (1985) (expert opinion that medical treatment was "not negligent" did not comply with OEC 702).
Second, the paternity index and its equivalents frequently are confused with the probability of paternity. See McCormick, supra, at 661; 1A Wigmore, Evidence § 165b, 1821 (Tillers rev 1983). This case is an example. Lovrien did not calculate a "probability of paternity," but his testimony regarding Walter's paternity index and its equivalents could easily have been confused with a probability of paternity. Lovrien correctly described the paternity index as the chance that the child received its "genes from this man [Walter] compared with just an average man." Lovrien also testified, however, that the index meant that the odds were "178 times to 1 that he [Walter] is the right father," that a paternity index of 178 meant that "the chance that Brent Walter is the father is extremely likely," that Walter's "chance of paternity" was 99.4 percent, and that the "chance he is not the father based upon these [test results] is 0.6 percent." We doubt that any of the jurors would have made a distinction between the likelihood that Walter, rather than a randomly selected man, was the father (which is what the paternity index and its equivalents measure) and the probability that Walter was in fact the father.
Finally, the paternity index's comparison of the putative father with a randomly selected man is only indirectly relevant to the issue the trier of fact must decide. "The [trier of fact's] function is not to compare a defendant with a person selected randomly but to weigh the probability of defendant's [responsibility] against the probability that anyone else is responsible." Finkelstein & Fairley, supra, at 502 (emphasis in original). The comparison with a random man is obviously probative, but there is a danger that the trier of fact will accord it too much weight when it comes to decide whether the putative father is the true father. For example, if an individual purchases 178 of a total of 100,000 raffle tickets, and if the average person purchases one ticket, that individual will be 178 times more likely to win the raffle than a randomly selected person. The individual's chances of winning the raffle prize, however, are still minuscule because the proper comparison is not with the number of tickets purchased by a randomly selected person, but with the total tickets purchased by everyone. Similarly, Walter is 178 times more likely to be the father of Plemel's child than a randomly selected man, but this figure standing alone is not particularly meaningful. It is important for the trier of fact to understand that the paternity index must not be taken as practically conclusive evidence of paternity but should be considered in conjunction with other evidence presented in the case.[11]
Where the determination whether the probative value of evidence is substantially outweighed by the dangers set forth in OEC 403 must be made on a case-by-case basis, we ordinarily defer to the determination of the trial court. See, e.g., State v. Johns, 301 Or. 535, 555, 725 P.2d 312 (1986) (admissibility of prior acts to be determined on a case-by-case basis). We conclude that this is not such a case. The probative value of the statistics derived from blood test results and the dangers in their presentation to the trier of fact will be substantially the same in every case.[12]*1219 This court, as an appellate court, should determine the admissibility of this evidence. Cf. State v. Brown, 297 Or. 404, 442, 687 P.2d 751 (1984) (probative value of polygraph evidence outweighed by reasons for its exclusion).
Evidence of the putative father's paternity index and its equivalents is highly probative but also presents a substantial danger of misleading the trier of fact. For that reason, we conclude that this evidence should be admissible, but only subject to certain conditions. The purpose of these conditions is to convey to the trier of fact the significance of this evidence and the need to weigh it with the other evidence presented in the case.
First, the paternity index is admissible so long as the expert explains that the index is not the probability that the defendant is the father, but measures only the chance that the defendant is the father compared to the chance that a randomly selected man is the father. The expert should also not be allowed to use misleading formulations of the paternity index such as "the chance of paternity" and "the chance of nonpaternity" without making this qualification. If the expert's testimony does not satisfy this condition, the objecting party is entitled to have this testimony stricken and the jury instructed to disregard it.
Second, the expert, whether testifying in person or by affidavit, see ORS 109.254(2), should never be allowed to present over objection a single figure as "the" probability of paternity. If the expert does so, the objecting party is entitled to have that testimony stricken and the jury instructed to disregard it. The reason for this limitation is that the probability of paternity cannot be stated mathematically without making certain assumptions concerning the strength of the other evidence presented in the case. Similarly, the expert should not be allowed to make statements such as "it is extremely likely" or "it is practically proven" that the defendant is the father.
Finally, as a corollary to the above conditions, if the expert testifies to the defendant's paternity index or a substantially equivalent statistic, the expert must, if requested, calculate the probability that the defendant is the father by using more than a single assumption about the strength of the other evidence in the case. The expert may also so testify without request or without testifying as to the paternity index. This condition is not at odds with the second condition because this condition requires the expert to use various assumptions about the strength of the other evidence in the case rather than making a single assumption and presenting the probability calculated from that assumption as "the" probability of paternity. In this way the strength of the blood test results can be demonstrated without overstating the information that can be derived from them. If the expert uses various assumptions and makes these assumptions known, the factfinder's attention will be directed to the other evidence in the case, and it will not be misled into adopting the expert's assumption as the correct weight to be assigned to the other evidence. The expert should present calculations based on assumed prior probabilities of 0, 10, 20, 30, 40, 50, 60, 70, 80, 90 and 100 percent.[13] If the expert is requested to do so and fails to make these calculations, the trier of fact should be instructed to ignore the paternity index and its equivalents. Other statistics, such as the probability of excluding a falsely accused father and the proportion of the *1220 relevant population excluded by the blood tests, would still be admissible.
III.
With respect to the disposition of this case, we conclude that it is necessary to remand for a new trial. Lovrien testified that Walter's paternity index of 178 meant that he was 178 times more likely to be the father of Plemel's child than "an average man." While that testimony was accurate, other statements made by him, as we noted above, could have led the jury to infer that the paternity index was the probability that Walter was the father. Lovrien also testified that the paternity index was based on the assumption that "the most logical person" had been identified and accused of being the father and that if there was a zero prior probability that Walter was the father, the paternity index would be meaningless. From these statements the jury could have inferred that the significance of the paternity index would depend to some extent on the other evidence presented in the case, but this relationship was not made clear by Lovrien. Perhaps particularly confusing to the jury was the following statement made by Lovrien near the close of his testimony:
"[A]ssuming that the right man has been accused or investigated, then the laboratory is used as a means of investigating, if he denies fatherhood, then you want a good laboratory test to say well if he is not the father, let's show that he is not. And that is what we did. We used a good laboratory test here. And if he is not the father, he should have been excluded, but he wasn't."
On the record before us, we cannot say that the result would have been the same if Lovrien's testimony had been presented under the conditions set forth above.
The decision of the Court of Appeals is reversed. The judgment of the trial court is reversed, and the case is remanded to the trial court for a new trial.
NOTES
[1] See Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247, 262 (1976).
[2] Our discussion of paternity testing is drawn from McCormick, Evidence § 205B (3rd ed 1984); Ellman & Kaye, Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity?, 54 N.Y.U.L.Rev. 1131, 1132-52 (1979); Joint AMA-ABA Guidelines, supra; Reisner & Bolk, A Layman's Guide to the Use of Blood Group Analysis in Paternity Testing, 20 J.Fam.L. 657 (1982); see also American Association of Blood Banks, Inclusion Probabilities in Parentage Testing (1983); American Association of Blood Banks, Paternity Testing (1978).
[3] One could infer from Lovrien's response to a question on cross-examination that 2.5 percent of the male population was capable of fathering the child, but careful reading of his testimony shows that this was not the case.
[4] If the testing excluded a total of 99 percent of the population as the potential father, it might be tempting to conclude that the probability that the putative father was the true father was also 99 percent. It is easy to see, though, that this is not the case. If the relevant population were 1,000,000, and if 99 percent were excluded by the testing, then 990,000 would have been excluded, leaving 10,000 as potential fathers. On the basis of the blood tests alone, then, the probability of the putative father's paternity would not be 99 percent, but 1/10,000, or 0.01 percent. See 1A Wigmore, Evidence § 165b, 1819-20 (Tillers rev 1983); Ellman & Kaye, supra, at 1141; see also Tribe, Trial by Mathematics, 84 Harv.L.Rev. 1329, 1355 (1971).
[5] The joint guidelines, however, appear to contemplate that these predicates will be used to describe the probability that the putative father is the real father, not just the probability that he is the father compared to a randomly selected man. For example, for a "likelihood of paternity" greater than 99.8 percent, the verbal predicate is "practically proved." Because a randomly selected man is not the subject of paternity litigation, this predicate can only mean that it is "practically proved" that the accused is the true father.
[6] At the time of trial, ORS 109.258 referred to "blood type" instead of "genetic marker." The law was amended by Oregon Laws 1985, chapter 671, section 44b, to conform with advances in paternity testing, which is no longer limited to tests for blood types.
[7] At the time of trial, ORS 109.258 was identical to section 4. In 1985 the legislature substituted in the portion quoted above the words "genetic marker" for "blood type." See note 6, supra.
The UABT was proposed in 1952 and was adopted by only a few states. Even fewer adopted the quoted language from section 4. Section 4 became section 10 of the Uniform Act on Paternity in 1960. This act was also not widely adopted and was withdrawn in 1973 in favor of the Uniform Parentage Act. Section 12 of that act provides: "Evidence relating to paternity may include: * * * (3) blood test results weighted in accordance with evidence, if available, of the statistical probability of the alleged father's paternity." This section goes much further than section 4 of the UABT in that it explicitly permits admission of probability of paternity calculations. The Uniform Parentage Act has been adopted in approximately 15 states.
[8] This confusion probably could be dispelled easily by the putative father's attorney. See Ellman & Kaye, supra, at 1146 & n. 78. The attorney need only note that, if the relevant population were 100,000, exclusion of 97.5 percent would still leave 2500 potential fathers. Absent other evidence, the probability of paternity would not be 97.5 percent, but 1 in 2500, or 0.04 percent.
[9] The standard assumption in calculating the probability of paternity is that the prior probability of paternity is 50 percent. See McCormick, supra, § 211 at 659; Ellman & Kaye, supra, at 1149-51; Reisner & Bolk, supra, at 674. With this assumption the probability of paternity is equal to the paternity index. Reisner & Bolk, supra, at 674. Studies in Poland and New York City have suggested that this assumption favors the putative father, because in an estimated 60 to 70 percent of paternity cases the mother's accusation of paternity is correct. See Ellman & Kaye, supra, at 1150-51. Of course, the purpose of paternity litigation is to determine whether the mother's accusation is correct, and for that reason it would be both unfair and improper to apply the assumption in any particular case.
We also note that the Court of Appeals' justification of the assumption of a 50 percent percent prior probability of paternity is erroneous for another reason. The court stated that the "paternity index shows * * * that [the] assumption was, if anything, unduly favorable to father." 80 Or. App. at 253, 721 P.2d 474. The paternity index has absolutely no bearing on the prior probability of paternity; the prior probability is independent of the blood test results. See Tribe, supra, at 1366-68.
[10] We emphasize that the estimation is objectionable under OEC 702. Such an estimation would not necessarily violate OEC 703 or OEC 705. Under OEC 703, other evidence presented in the case could be made known to the expert, and the expert could then form an opinion as to the proper prior probability of paternity to use in calculating the probability of paternity. Under OEC 705, the expert could testify to the probability of paternity without initially disclosing the basis for the calculation. Such disclosure, however, must be made at the direction of the court or on cross-examination.
[11] For a comprehensive critique of the use of statistical methods in the conduct and design of trials, see Tribe, supra. Because of the unique circumstances of paternity litigation, as opposed to other efforts at legal identification, many of Tribe's criticisms are inapplicable to this case. See Ellman & Kaye, supra, at 1155-56.
[12] The trial court, of course, retains its discretion under ORS 109.258 to refuse to admit evidence of the possibility of paternity where the blood test is unable to exclude a sufficient proportion of the relevant population. Given the strength of modern paternity tests, the need to exercise this discretion should rarely arise.
[13] This final condition is derived from proposals made in Ellman & Kaye, supra. These proposals are discussed favorably in McCormick, supra, at 662.
At least two paternity testing laboratories in California have regularly reported calculations of probabilities of paternity based on assumptions of prior probabilities of paternity ranging from 10 percent to 90 percent in 10 percent increments. Peterson, A Few Things You Should Know About Paternity Tests (But Were Afraid to Ask), 22 Santa Clara L.Rev. 667, 691 n. 74 (1982). This requirement would impose a relatively minor burden on testing laboratories. Additional calculations based on other assumed prior probabilities may be presented with the permission of the trial court.
|
746 F.2d 278
1985 A.M.C. 2407, 40 Fed.R.Serv.2d 481,18 Fed. R. Evid. Serv. 391
HARCON BARGE CO., INC., Plaintiff-Appellee,v.D & G BOAT RENTALS, INC., Defendant Third-Party Plaintiff-Appellant.andM/V CHARLES D, Defendant-Appellee Cross-Appellant,v.SOUTHERN PACIFIC TRANSPORTATION CO., Third-Party DefendantAppellant-Cross-Appellee.SOUTHERN PACIFIC TRANSPORTATION CO., Plaintiff-Appellant,v.M/V I.C. HOSKINS, Her Engines, Boilers, Tackle, Etc., InRem, Defendant-Appellee.SOUTHERN PACIFIC TRANSPORTATION CO., Plaintiff-Appellant,v.M/V IBERVILLE, Her Engines, Boilers, Tackle, Etc., In Rem,et al., Defendants-Appellees.SOUTHERN PACIFIC TRANSPORTATION CO., Plaintiff-AppellantCross-Appellee,v.M/V CHARLES D, Her Engines, Boilers, Tackle, Etc., In Rem,and D & G Boat Rentals, Inc., Defendants-AppelleesCross-Appellants.SOUTHERN PACIFIC TRANSPORTATION CO., Plaintiff-AppellantCross-Appellee,v.M/V MARION HAGESTAD, et al., Defendants-Appellees Cross-Appellants.
No. 82-4584.
United States Court of Appeals,Fifth Circuit.
Nov. 12, 1984.
Christovich & Kearney, Lawrence J. Ernst, J. Warren Gardner, Jr., New Orleans, La., for plaintiff-appellant.
1
Larry S. Craig, Civil Div., Torts Branch, U.S. Dept. of Justice, Washington, D.C., Cliffe E. Laborde, III, Lafayette, La., for M/V IBERVILLE et al.
2
Robert McCleskey, Gerard T. Gelpi, New Orleans, La., for M/V I.C. HOSKINS & Smith Corp.
3
Donald L. King, New Orleans, La., for M/V MARION HAGESTAD & King.
4
Edwin Spivey Gault, Greenville, Miss., for M/V CHARLES D. & HARCON BARGE.
5
W. Gerald Gaudet, Lafayette, La., for D & G Boat Rentals.
6
Appeals from the United States District Court for the Western District of Louisiana.
7
Before RUBIN, REAVLEY, and TATE, Circuit Judges.
TATE, Circuit Judge:
8
This appeal, by a single notice of appeal, is from a single judgment in five suits that were consolidated for trial under Fed.R.Civ.P. 42(a). On the same day the notice of appeal was timely filed, the opposing parties in one of the five consolidated actions filed a timely motion to amend the judgment. Subsequently, pursuant thereto, an amended judgment was entered. No further notice of appeal was filed.
9
Under Fed.R.App.P. 4(a)(4), the effect of this filing of a motion to amend the judgment was that "the time for appeal for all parties shall run from the entry of an order" disposing of this motion. The rule further provides: "A notice of appeal filed before the disposition.... shall have no effect." In Griggs v. Provident Consumer Discount Company, 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982), the Supreme Court has held that a court of appeal has no power or discretion to waive the defect of prematurity of a notice of appeal filed before entry of the order disposing of such a motion. The Court further held that such a premature notice of appeal is a "nullity", and "it is as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act." 459 U.S. at 61, 103 S.Ct. at 403.
10
The harsh result of this mandated rigid application of this seemingly functionless provision of the rule is, in our view, that we must dismiss this appeal. Under Griggs, the timely filed motion to amend the judgment nullified the prior notice of appeal, and no notice of appeal was filed after the order was entered that granted the motion and amended the original judgment in a slight respect. We therefore lack jurisdiction to hear this appeal and must dismiss it.
11
Nevertheless, we must admit that our determination to this effect, required we believe by Griggs, is made complicated by the circumstance that the motion to amend was filed by the defendants in only one of the five consolidated cases and, arguably, should have affected the appellate delays in that case only. Ultimately, however, we feel unable to evade the rigorous application Fed.R.App.P. 4(a)(4) mandated by Griggs because (as will be explained below), the district court, all parties, and the district clerk treated the five consolidated actions as a single, combined suit--requiring but one judgment for all combined actions, and but one notice of appeal by any one party to all or any of the combined suits. Thus, under Rule 4(a)(4) the motion to amend this single judgment had the effect of not commencing the delay within which to notice on an appeal "for all parties" until entry of the order disposing of the motion, which thus required a new notice of appeal in order to confer appellate jurisdiction upon this court.
12
"Entry" of Judgment
13
Before setting forth in detail the facts of the present case, we deem it advisable to clarify what is meant by the date of "entry" of judgment, for purposes of determining the timeliness of a notice of appeal or of a motion to remand or alter a judgment, and how such entry is noted in the dockets of the district courts of the Fifth Circuit.
14
In their initial arguments to this court, reflecting a not uncommon confusion in this regard, all counsel argued timeliness on the basis that the appellate and post-judgment motion delays commenced with the notice of the filing on December 8, 1982 of the single judgment that disposed of the five consolidated suits. This judgment was filed in the Deputy Clerk's office in Opelousas, La., for the Opelousas-Lafayette Division (where the case was tried) of the United States District Court, Western District of Louisiana. Instead, however, timeliness is measured from the date of entry of the judgment on the docket sheet of the case in the Clerk of District Court's records at Shreveport, in this case, December 14, 1982 (i.e., six days after the judgment was filed in Opelousas and mailed from there to Shreveport).
15
In the instant case, whether timeliness is governed by the date of filing (December 8) or of entry (December 14) of the judgment, the timely served (December 15) and filed (December 21) motion to amend had as its consequence, in either event (see Part III infra ), the draconian effect under Rule 4(a)(4) of nullifying the otherwise-timely prior notice of appeal filed December 21 and, in the absence of a new notice, of depriving us of appellate jurisdiction. Nevertheless, because of some general confusion as to the matter, we deem it appropriate for the benefit of the bar to describe the governing principles, as well as the practice among the clerks of the district courts of the Fifth Circuit, with regard to the entry of a judgment or order.
16
The basic issue of timeliness in this regard concerns provisions of Fed.R.App.P. 4, as well as their relationship to Fed.R.Civ.P. 79. FRAP Rule 4(a)(1) provides that in a civil case the notice of appeal "shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment." (Emphasis added.) However, if a timely post-judgment motion is filed under Fed.R.Civ.P. 50(b) (for judgment notwithstanding the verdict), 52(b) (to amend or make additional findings of fact) or 59 (for a new trial, or to alter or amend the judgment), then "the time for appeal for all parties shall run from the entry of an order denying a new trial or granting or denying any other such motion." Fed.R.App.P. 4(a)(4) (emphasis added). Fed.R.Civ.P. 59(b), (e), provides that a motion for a new trial or to alter or amend a judgment "shall be served not later than 10 days after the entry of the judgment." (Emphasis added).
17
With regard to what is an "entry" of an order or judgment, Fed.R.Civ.P. 79(a) provides that the clerk of district court will maintain a "civil docket" book in which the file number of the civil action "shall be noted on the folio of the docket whereon the first entry of the action is made," and that "[a]ll papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be entered chronologically in the civil docket on the folio assigned to the action." The rule specifically provides that "[t]he entry of an order or judgment shall show the date the entry is made." Id.
18
The uniform practice of the clerks of the district courts of the Fifth Circuit is to signify the date of entry of an order or judgment under Rule 79(a), as follows: The date the judgment is filed is placed in the left-hand column of the case's docket sheet, followed by the description of the order or judgment in the right-hand column captioned for that purpose. If the judgment or order is entered at a later date than the date of filing, then such date of entry is added as a concluding note of the description of the judgment (which is in the right-hand column), by adding "Dkt", "Dk't", or "Dkt'd" (i.e., "docketed"), followed by the date of such entry.1
19
Overview of the Principal Procedural Facts and Issue
20
A single judgment was filed on December 8, 1982 and entered on the docket sheet in the clerk's office on December 14, 1982, which disposed of all claims that had been asserted in five suits that had been consolidated for trial. A party (Southern Pacific) to all five consolidated suits timely filed a single notice of appeal as to this judgment on December 21, 1982, by which it contests the awards made by the judgment as to each of the claims advanced by each of the five consolidated suits. On the same day, the defendants (M/V Iberville and Tidewater) in one of the consolidated suits filed a motion to amend the judgment with regard to its imposition of such upon them. The motion was granted and an amended judgment was entered on January 31, 1983. No further notice of appeal was filed by any party.
21
The defendants have filed a motion to dismiss the appeal because no new notice of appeal was filed after the amended judgment.2 Under Fed.R.App. 4(a)(4) and Griggs, supra, the original notice of appeal was a nullity, and we thus have no appellate jurisdiction--at least, if we regard the single judgment in the five consolidated suits as the only judgment that is the subject of this appeal.
22
However, if we regard the five suits as consolidated for "trial" (only) and hence regard this judgment, although in a single document and filed only in the principal of the five consolidated suits, as actually five judgments--one for each of the five consolidated suits--then, the motion to amend filed by the defendants in only one of the five suits that had been consolidated for trial, arguably, affected the appellate delays as to that suit only. The appellant Southern Pacific now so contends, and we regard this contention as the principal issue of this appeal.
I.
23
In this part I of the opinion, we will at somewhat tedious length we fear, set forth the procedural history and stance of this litigation. We have found no appellate decision that describes the mechanics of consolidation as practiced in the district courts and, from inquiry with our clerk's office, have found that the procedure utilized in the present case, leading to a single judgment disposing of all of the consolidated cases, is followed in the preponderant number of consolidated cases appealed to this court. Then, in part II, we will set forth the dispositive legal principles applicable on this record to the issues before us.
24
The litigation before us arises out of a series of four collisions by ships over a two-month period with a structure pertaining to a railroad bridge over the Atchafalaya River in Berwick, Louisiana. The five suits, which resulted in the judgment now appealed from, included four suits by the owner of the bridge (Southern Pacific) against, respectively, the four vessels involved in the collisions, and the fifth by the owner (Harcon Barge) of a vessel for damages, which impleaded Southern Pacific as a third-party defendant (based upon Southern Pacific's allegedly negligent design and maintenance of the bridge structure). This appeal is from a district court judgment that awarded damages sought by four of these five suits that had by order of the district court previously been consolidated for trial.3
25
The consolidation and its record effects occurred as follows:
26
On March 30, 1981, Southern Pacific (as plaintiff in four of the suits and third-party defendant in the fifth) moved for transfer of all the cases (and of one not before us on appeal, see note 3) and their consolidation with No. 79-1592 (Harcon Barge; which was the lowest docket number). Over the opposition of some of the other parties, this motion was granted by the district court on April 21, 1981. The order described Southern Pacific's motion as requesting consolidation "for purposes of trial", although the granted motion had simply requested consolidation. As will be seen, subsequent to this order consolidating the five cases, they were thereafter considered and treated by the district court, all parties, and the district clerk of court as if consolidated into a single proceeding for purposes of both trial and judgment.
27
Thereafter, the docket sheet in 79-1592 (Harcon Barge) was treated as if it were the docket sheet for all the consolidated cases, with exceptions not here relevant. Following the order of consolidation, on the docket sheet of each of the consolidated cases a notation was entered of the granting of this motion for consolidation, and on the heading sheet of each of the consolidated cases was noted that the case was consolidated with the other five cases. In addition, for each of the consolidated cases other than 79-1592 (Harcon Barge, the principal case), an entry on the case's docket sheet was made, immediately following the notation that the motion to consolidate was granted: "See 791592 [i.e., Harcon Barge v. D. & G. Boat Rentals] for all future entries except those pertaining only to [docket number of the particular action of the consolidated cases]." (Emphasis added.) In each of the four cases on appeal that were consolidated with 79-1592 (Harcon Barge), the final entry was "12-8-82. SEE 791592 (Judgment closing case)." The entries in the other consolidated cases did not include (as docketed in 79-1592, Harcon Barge) the notation of the date the judgment had been entered (docketed) in 79-1592, nor did they include docket entries as to the filing of the motion to amend the judgment by the defendants in one of the consolidated cases, nor of the notices of appeal and cross-appeal, or of the entry of the amended judgment.
28
After the order consolidating the cases, all of the parties filed all relevant pleadings captioned by all five case-titles and docket numbers, whether or not the pleading or filing was addressed to a claim initially asserted by only one of the now-consolidated suits.
29
The district court decided the consolidated suits by a single judgment, filed December 8, 1982, which was captioned with the titles and district court docket numbers of all of the five consolidated suits. The judgment, attached in full as an appendix to this opinion, disposed of each of the claims of each of the parties in separate paragraphs, as if asserted in a single action, without differentiation by docket number of the suits as originally filed before consolidation. See Appendix. This judgment was filed only in the record of 79-1592 (Harcon Barge), the principal action. (However, as earlier stated, a note was placed on the docket sheet of each of the other consolidated suits referring in each to the judgment filed in 79-1592 (Harcon Barge), the principal case, as closing the case. No further entry was made following this notation on the docket sheets of these other consolidated cases.)
30
After entry of the judgment of December 8, 1982, entries as to subsequent filings were made only in 75-1592 (Harcon Barge; the principal case). These include the motion to amend, notice of appeal, notices of cross-appeal, cost motions, the supersedeas bond, etc. Relevant to present issues, these docket entries, found only in 79-1592 (Harcon Barge), are:
31
Date Proceedings
-------- -----------
12-8-82 JUDGMENT in favor of Pltf.
.... (summary of provisions of
judgment, see Appendix, omitted)
(JMS/pm) NOE/mb DKT-D 12-14-
824
12-21-82 MOTION (Tidewater Venice and
M/V Iberville) to amend Judgment,
ref. to JMS (pm).
12-21-82 NOT OF APPEAL (Southern Pacific
Transportation Company from
12/8/82 Judgment ... (notation
that notice of entry sent to other
parties and the judge is omitted).
1-25-83 AMENDED JUDGMENT in favor
of Pltf. ... (summary of provisions
omitted) (JMS/pm) NOE/mb
DKT-D 1-31-83.
32
As earlier noted, the defendants (M/V Iberville and Tidewater) in one of the suits (No. 80-0512), after the judgment, filed5 on December 21, 1982 a "Motion to Amend Judgment" with regard to "[t]he fourth paragraph of the judgment, as rendered" (emphasis added), which paragraph had required these defendants "to bear costs". See Appendix. These defendants pointed out that they had made an offer of judgment in an amount more than the sum awarded by the judgment, so that under provisions of Fed.R.Civ.P. 68 they were entitled to be exonerated from costs incurred subsequent to the date of this offer of judgment of December 29, 1981. On January 25, 1983, the district court filed an "Amended Judgment", which repeated all awards made by the earlier judgment, except to exonerate these particular defendants from costs subsequent to December 29, 1981, and to impose them on Southern Pacific instead. This motion and the proceedings leading to the amended judgment, as well as the docket entries, were filed only in the record of 79-1592 (Harcon Barge), the principal case.6
33
On December 21, 1982, as noted, Southern Pacific filed a single notice of appeal, likewise captioned with the titles and district court docket numbers of all of the five consolidated suits, which notice "appeals all of the actions ... consolidated for trial at a single time", from "the Final Judgment entered in said actions on the 8th day of December, 1982" (emphasis added). Southern Pacific paid only a single filing fee, viewing its single appeal as questioning all awards made in the single judgment disposing of the claims asserted by all of the consolidated suit.7 The defendants in two of the consolidated suits8 likewise filed notices of cross-appeal "from the final judgment entered in this action on the 8th day of December, 1982", likewise captioned in their cross-appeals with the titles and district court docket numbers of each of the five consolidated suits. (Following entry of the amended judgment on January 31, 1983 no party filed any notice of appeal or cross-appeal.)
II.
34
As will be seen from this recitation of the procedural facts, following the order of consolidation, the five cases were regarded as consolidated into a single proceeding for purposes of both trial and judgment by the district court, by all counsel, and by the district clerk of court. All parties accepted that the claims asserted by the now-consolidated suits were properly decided by a single judgment, as to which any party aggrieved by any portion of the judgment (such as, in Southern Pacific's case, the awards made as to all of the claims initially asserted by each of the five consolidated suits) could perfect his appeal by a single notice of appeal and a single appellate filing fee (rather than, for instance, five filing fees for Southern Pacific's appeal from awards made for claims initially asserted separately by each of the five consolidated suits). Southern Pacific did not, for instance, question this construction of the record in its opposition to the initial motions to dismiss (see note 2 supra )9, and in its initial brief as appellant in this court Southern Pacific describes (p. 17) its appeal to this court as follows: "On December 15, 1982, Southern Pacific appealed the entire judgment of the trial court."
35
Not until after oral argument, and after this panel had requested supplementary briefing on the issues we now find require dismissal of this appeal, did Southern Pacific advance its present argument that the motion to amend the judgment by two of the party-defendants held liable within it, somehow, made Southern Pacific's notice of appeal premature under Fed.R.App.P. 4(a)(4) only against those defendants.
36
We find no statutory support for this contention.
37
The cases were consolidated by the district court as sought by Southern Pacific and authorized by Fed.R.Civ.P. 42(a).10 This rule authorizes the district court to "order all actions consolidated", when they involve "a common question of law or fact". Id. It also authorizes the district court to "make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." Id.
38
In our view, Rule 42(a) authorized the district court to consolidate the cases both for trial and for disposition by a single judgment, especially when (as here) no objection was taken to the district court's effective ruling to this end. Further, the order of the district court granting consolidation was adequate authority for the district clerk of court to make, thereafter, docket entries only on the principal case, with notations in each of the other consolidated cases sufficient to inform the parties therein to look to the docket sheet of the cited lead case for future docket entries. Thus, the entries on the docket sheet in 79-1592 (Harcon Barge), the principal case, of the dates of entry of the judgment and amended judgment, and of the filing of Tidewater's motion to amend and of the notices of appeal and cross-appeal, would be controlling not only for 79-1592 but also for the other four cases consolidated with it.
39
The governing principles with regard to consolidations under Rule 42(a) are summarized at 5 Moore's Federal Practice, p 42.02 at 42-27-29 (2d ed. 1984) (footnotes omitted):
40
Subdivision (a) speaks both of joint hearings or trials and of consolidation. This wording should not serve to give renewed life to a mistaken notion that there is some inherent distinction between a joint hearing (or trial) of particular issues, and consolidation.The rule is worded as it is to reflect the prior practice to merge the hearing or trial of separate actions so far as is necessary for their expeditious handling. Thus, one or many or all of the phases of the several actions may be merged. But merger is never so complete even in consolidation as to deprive any party of any substantial rights which he may have possessed had the actions proceeded separately. The actions retain their separate identity, and the parties and pleadings in one action do not automatically become parties and pleadings in the other action.
41
See also, to generally similar but somewhat differing effect. 9 Wright & Miller, Federal Practice and Procedure, Sec. 2382 (1971).
42
The parties may not by consolidation, of course, be deprived of some substantive right available to them in an individual suit now consolidated. "The actions [do] not lose their separate identities for purposes of consolidation." Alfred Dunhill of London v. Republic of China, 425 U.S. 682, 735, 96 S.Ct. 1854, 1880, 48 L.Ed.2d 301 (1976). A substantive advantage sought by reason of the consolidation was rejected by Dunhill, the Court observing that the consolidated actions "were not merged; they were simply consolidated for trial in the interest of economy." Id., 425 U.S. at 726, 96 S.Ct. at 1880. To similar effect, and for similar reasons to reject a substantive advantage sought by one party because of the consolidation, we ourselves have stated that "consolidation does cause one civil action to emerge from two; the actions do not lose their separate identity; the parties to one action do not become parties to the other." McKenzie v. United States, 678 F.2d 571, 574 (5th Cir.1982).
43
But the issue here is not whether in a general sense separate civil actions remained after consolidation. The issue is whether, because of consolidation, and because of the terms of the judgment and the expectations of the parties and the district court, the district court entered but a single judgment that disposed of all the claims asserted in the consolidated suits, from which only one appeal need be taken by any party aggrieved by any or several of the claims decided, whether or not initially asserted in more than one of the consolidated suits.
44
The above cited principles were not offended by the district court's action in the present case, which (without objection by the parties) consolidated the cases for both trial and single dispositive judgment of all claims, and by reason of which no party suffered substantive or procedural disadvantage by a procedure that decided all claims in one judgment rather than requiring a separate judgment for each of the five consolidated cases.
45
The district court, of course, could have maintained the separateness of the five suits except for the purpose of trial, but it did not do so. It could have required separate docket entries in each suit and rendered separate judgments in each suit, in which event requiring any party offended by any disposition to file a separate notice of appeal (and pay a separate appellate filing fee) as to each judgment as to which complaint was made; but it did not do so. We are unable to hold that the district court abused any discretion entrusted to it by Fed.R.Civ.P. 42(a) by the procedure it adopted, when consolidating the cases, so as "to avoid unnecessary costs or delay."
46
If Southern Pacific's contention at this late date were adopted--that, in effect, a judgment in a single document were regarded, instead, as five separate judgments--we would be faced, not only in this appeal but also in the numerous other consolidated cases similarly decided in the district courts throughout the circuit, with the issue as to whether individual notices of appeal were required as to each claim originally asserted separately in any one of the suits now decided by the consolidated judgment. In the present instance, for example, Southern Pacific filed only one notice of appeal and paid only one appellate filing fee, which notice is filed solely in the record of the principal suit (79-1592, Harcon Barge). Should its appeal be preserved only in this suit, but dismissed (for lack of a notice of appeal and a separate filing fee) as to the awards questioned by it that were based upon claims in the other four suits that were consolidated with 79-1592 for trial and judgment?
47
We are unable to find that the broad discretionary powers of the district court under Fed.R.Civ.P. 42(a) to consolidate suits and make appropriate orders to "avoid unnecessary costs or delay" is so rigidly limited, as Southern Pacific suggests, as to prohibit, where no substantive or procedural rights of any party are affected, the court to consolidate the cases both for trial and judgment and to accomplish this efficiently and with minimal cost (and no prejudice to any party), as was done in the present consolidation of the five suits.
III.
48
It is apparent from our statement of the procedural facts and from the record that Southern Pacific was not prejudiced by the consolidation procedures utilized herein, of which it was fully aware, except by its after-the-fact failure to recognize the draconian effect under Fed.R.App. 4(a)(4) that the filing of the motion to amend had the effect of nullifying its notice of appeal. It was fully aware that the motion was filed, did not contest its timeliness or its request for amendment, and was fully aware that an amended judgment was entered. The real cause of Southern Pacific's predicament is not any prejudice resulting from the consolidation procedures followed, but rather the unduly technical requirement of Rule 4(a)(4) that it file a new notice of appeal, and Southern Pacific's failure to do so after the amended judgment was entered.
49
The motion to amend was filed on December 21, 1982 by the defendants M/V Iberville and Tidewater. It prayed for the amendment of one paragraph of the judgment, which had assessed costs against these defendants, so as to relieve these defendants of their imposition because of their previous offer of judgment under Fed.R.Civ.P. 68. Without this amendment, subsequently granted, under the judgment these defendants would have been liable for such costs. The motion to amend was "[a] motion to amend or alter the judgment" under Fed.R.Civ.P. 59(e), which had the effect under Fed.App.P. Rule 4(a)(4) of nullifying any previous notice of appeal and, further, of commencing the delay within which to take an appeal only after this motion was disposed of.
50
When its deficiency in this regard was first called to Southern Pacific's attention by the motions to dismiss the appeal when initially filed in this court (see note 2 supra ), Southern Pacific solely contended in its opposition that the amendment sought (and granted) was not a substantive change in the judgment and that, since the defendants were entitled as of right to the Rule 68 relief, request for such relief could properly be made under Fed.R.Civ.P. 60, citing Glick v. White Motor Co., 317 F.Supp. 42, 43 (E.D.Pa.1970) and similar cases. In Glick, the plaintiff had filed a motion to amend under Rule 59(e), praying that it be awarded pre-judgment interest to which it was entitled under state law in this diversity suit. The motion was untimely as a Rule 59(e) motion, however, because served more than ten days after entry of the judgment of which amendment was sought. The district court nevertheless granted the amendment prayed for, reasoning that the motion for amendment to which the mover was entitled as of right to relief could be characterized as a motion under Fed.R.Civ.P. 60(a) to correct a clerical mistake, which under this rule could be corrected at any time.
51
The circumstance that relief sought by a timely filed motion to amend under Rule 59(e) could also have been obtained under Rule 60(a) is not persuasive of the conclusion that a timely filed motion to amend or alter the judgment under Rule 59(e) must always be characterized as a non-59(e) motion. Nor does Southern Pacific cite any decision to this effect. With all its defects, one virtue of Fed.R.App.P. 4(a)(4) is its certainty in providing that an effective notice of appeal must be filed when certain specified motions, including a motion to amend or alter under Rule 59(e), are filed after the judgment is entered. This certainty would be eroded if we adopted Southern Pacific's contention that a motion to amend the judgment, which looks and reads like and is a Rule 59(e) motion, may nevertheless be disregarded as such for purposes of evading the harsh effects of Rule 4(a)(4), because the amendment relief might have been sought by some other post-judgment motion.
52
Before oral argument, Southern Pacific's initial position was that the delay to notice on appeal commenced when the judgment was filed on December 8, 1982 (see Part I supra ), on which date notice of "entry" (filing) of the judgment was sent to all counsel by the deputy clerk at Opelousas (see note 4 supra ). We were originally given some concern that, since initially all parties shared Southern Pacific's misconception that this date was the effective date of entry of the judgment, perhaps (although the issue was not raised below) under this construction of the record the present Rule 59(e) motion to amend the judgment was not a "timely" motion as required by Fed.R.App. 4(a)(4); in the absence of timeliness, the motion could not have the effect of nullifying an otherwise timely notice of appeal. However, even under that construction of the record by the parties initially, the Rule 59(e) motion to amend the judgment was timely served and filed under Rule 4(a)(4) and would thus nullify Southern Pacific's otherwise timely prior notice of appeal.
53
The motion to amend by M/V Iberville and Tidewater was filed on December 21, 1982. To the motion was attached a certificate dated December 15, 1982, stating that on that date the motion and attachment had been served on all counsel in the consolidated cases by deposit in the United States mail, properly addressed and with sufficient postage.
54
Under Fed.R.Civ.P. 59(e), a motion to amend must be "served" not later than ten days after entry of judgment. Service of pleadings subsequent to the original complaint, with exceptions not here relevant, may be made upon an opposing attorney "by mailing it to him at his last known address.... Service by mail is complete upon mailing." Fed.R.Civ.P. 5(b). The filing thereafter of the motion must be made "within a reasonable time" after service. Fed.R.Civ.P. 5(d).
55
Under these principles, Tidewater's Rule 59(e) motion to amend was "served" on December 15, 1982, the relevant date for its timeliness, not the date it was "filed" on December 21, 1982, as so held in Allen v. Ault, 564 F.2d 1198 (5th Cir.1977). The date of service of a motion to amend the judgment within the meaning of Rule 59(e) is the date upon which the moving party certifies, without contest by the non-moving parties, that the motion was mailed to opposing counsel. Clayton v. Douglas, 670 F.2d 143, 144 (10th Cir.), cert. denied, 457 U.S. 1109, 102 S.Ct. 2911, 73 L.Ed.2d 1319 (1982); 11 Wright and Miller, Federal Practice and Procedure, Secs. 2812 at 83 & n. 48, Sec. 2817 at 109 & nn. 24-26 (1973).
56
Thus, even if (as earlier argued) the date of filing the judgment (December 8th) rather than the date of its entry (December 14) were the determinative date, then Tidewater's motion to amend, served on December 15, would be considered timely served and thereafter filed on December 21, within a reasonable time after such service. And, of course, since actually the date of the judgment's entry on December 14 is the determinative date, the present motion to amend, which was filed on December 21 (i.e., within the ten-day delay after entry of judgment allowed for service of the motion, prior to its filing), is clearly timely.
Conclusion
57
We therefore find that we are without jurisdiction to hear this appeal or (see note 8 supra ) or the cross-appeals, because of the failure of any party to file a notice of appeal after the amended judgment was entered in this case on January 31, 1983. The appeal must therefore be DISMISSED, at the cost of Southern Pacific, the appellant.
58
APPEAL DISMISSED.
Appendix
59
The judgment filed in this consolidated case on December 8, 1982, is as follows:
United States District Court
Western District of Louisiana
Lafayette-Opelousas Division
Section S
Filed Dec. 8, 1982
60
HARCON BARGE COMPANY, INC.
61
vs.
62
D & G BOAT RENTALS, INC.
Civil Action Number 791592
63
SOUTHERN PACIFIC TRANSPORTATION CO.
64
vs.
65
M/V I.C. HOSKINS, ET AL.
Civil Action Number 800511
66
SOUTHERN PACIFIC TRANSPORTATION CO.
67
vs.
68
M/V IBERVILLE, ET AL.
Civil Action Number 800512
69
SOUTHERN PACIFIC TRANSPORTATION CO.
70
vs.
71
M/V CHARLES D, ET AL.
Civil Action Number 800513
72
SOUTHERN PACIFIC TRANSPORTATION CO.
73
vs.
74
M/V MARIAN HAGESTAD, ET AL.
Civil Action Number 800514
JUDGMENT
75
These consolidated cases came on for trial before the Court, District Judge John M. Shaw presiding. After hearing the law and the evidence presented, and in accordance with the Findings of Fact and Conclusions of Law filed herewith,
76
It is ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Harcon Barge Company, and against defendant, Southern Pacific Transportation Company, in the amount of $21,629.68, with 9.07% interest from April 9, 1979, until paid, Southern Pacific to bear costs.
77
It is further ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of defendants, M/V I.C. Hoskins and the Arthur Smith Corporation, dismissing the claims of Southern Pacific Transportation Company against them, Southern Pacific to bear costs.
78
It is further ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Southern Pacific Transportation Company, and against M/V Iberville and Tidewater Venice, Inc., in the amount of TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS, with 9.07% interest from April 25, 1979, until paid, and in favor of the United States of America, dismissing the third party demand of defendants, M/V Iberville and Tidewater Venice, Inc., against it, defendants, M/V Iberville and Tidewater Venice, Inc., to bear costs.
79
It is further ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Southern Pacific Transportation Company, and against M/V Charles D and D & G Boat Rentals in the amount of FORTY THOUSAND AND NO/100 ($40,000.00) DOLLARS, with 9.07% interest from April 7, 1979, until paid, defendants, M/V Charles D and D & G Boat Rentals, to bear costs.
80
It is further ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Southern Pacific Transportation Company, and against M/V Marian Hagestad and Canal Barge Company, in the amount of EIGHT HUNDRED AND NO/100 ($800.00) DOLLARS, with 9.07% interest from May 3, 1979, until paid, defendants, M/V Marian Hagestad and Canal Barge Company to bear costs.
81
Opelousas, Louisiana, December 8, 1982.
82
/s/ John M. Shaw
JOHN M. SHAW
UNITED STATES
DISTRICT JUDGE
83
"COPY SENT
DATE 12-8
BY MB
TO Ernst
Davidson
Gaudet
Gault
Laborde
Bookter
McCleskey
84
King".
1
We have so informed ourselves through inquiry with the clerk of this court and with various clerks of the district courts. We earlier notified the parties of our intention to take judicial notice of this practice. No party disputes the accuracy of our description of the uniform practice of the district court clerks. We do not need to plumb the uncertain distinctions between judicial notice of "legislative facts", not governed by Fed.R.Evid. 201, and judicial notice of "adjudicative facts", governed by such rule. See Advisory Committee's note to Rule 201; 21 Wright & Graham, Federal Practice and Procedure, Sec. 5103 (1977). In either event, we may take judicial notice of this practice as a fact that is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.", Fed.R.Evid. 201(b)(2), as to which we have afforded the parties "an opportunity to be heard", Fed.R.Evid. 201(c), should it indeed be an "adjudicative" fact
Southern Pacific, the appellant, does complain that it had no reason to understand what the abbreviation for "docketed" meant. It does not complain that it was in anyway misled or prejudiced by reliance upon the allegedly incomprehensible abbreviation. See also part I infra.
2
After the record of this appeal was lodged in this court, the opposing parties in May 1983 filed a motion to dismiss Southern Pacific's appeal on the ground we now uphold. This motion was "denied" summarily without explanation by a motions panel on June 22, 1983, and the opponents' motion for reconsideration of the denial was likewise "denied", without explanation, on October 14, 1983. Southern Pacific suggests that, in view of these earlier rulings by the motions panel, "it seems unnecessary and repetitive to reexamine the same issues." Supplemental Memorandum, September 12, 1984, p. 3
This suggestion overlooks that "the requirement of a timely notice of appeal is 'mandatory and jurisdictional' ", Griggs v. Provident Consumer Discount Company, 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982), and that we would be required to notice our lack of appellate jurisdiction even if no motion to dismiss had been filed. Southern Pacific also overlooks the settled jurisprudence of this court that an interlocutory denial of a motion to dismiss an appeal may always be reconsidered and granted if subsequently found to be meritorious. As we recently stated, with full footnote citation of our jurisprudence, in Equal Employment Opportunity Commission v. Neches Butane Products Company, 704 F.2d 144, 147 (5th Cir.1983):
In this circuit, as in many others, a preliminary motion to dismiss for want of jurisdiction is submitted to a motions panel for disposition, often without opinion. See United States Court of Appeals for the Fifth Circuit, Internal Operating Procedures, Sec. 4(e) (1981); United States v. Bear Marine Services, 696 F.2d 1117, 1119 & n. 4 (5th Cir.1983). A denial by a motions panel of a motion to dismiss for want of jurisdiction, however, is only provisional. With the benefit of full briefing and (as was the case here) oral argument, the panel to which the case falls for disposition on the merits may conclude that the motions decision was improvident and should be reconsidered.
3
These five actions, with their civil-action docket numbers of the Western District of Louisiana, are: Harcon Barge Co. v. D & G Boat Rentals, No. 79-1592; Southern Pacific v. M/V I.V. Hoskins, No. 80-0511; Southern Pacific v. M/V Iberville, No. 80-0512; Southern Pacific v. M/V Charles D, No. 80-0513; and Southern Pacific v. M/V Marian Hagestad, No. 80-0514. Initially consolidated with these suits was a sixth action (Southern Pacific v. M/V Roland Thomas, No. 79-1705, which was compromised and dismissed before trial, and is not before us on this appeal
4
For those interested in esoteric information, the following is the meaning of the concluding abbreviations:
5
Fed.R.App.P. 4(a)(4) provides that, if a "timely motion" to, inter alia, alter or amend the judgment under Fed.R.Civ.P. 59 is filed, then the time for appeal does not run until entry of the order granting or denying such motion. Here, the motion was filed on December 21, within ten days of the entry of the judgment on December 19. As is explained infra, 746 F.2d at 289 the timeliness of the motion is actually determined by the date it is served (here, December 15 one day after entry of judgment), not by the date it is filed
6
They were not filed or noted, for instance, in the record of 80-0512 (M/V Iberville and Tidewater), the defendants in which suit had filed the motion to amend the judgment that disposed of all issues raised in the five consolidated suits
7
Southern Pacific complains of the insufficiency or denial of damages in the four suits in which it was plaintiff, and from the award of damages against it in the fifth suit (Harcon Barge, No. 79-1592), in which it was held to be partially negligent and liable for ten percent of that plaintiff's (Harcon's) total damages
8
By their cross-appeals, the defendants in No. 80-0514 (Southern Pacific v. M/V Marian Hagestad ) and No. 80-0513 (Southern Pacific v. M/V Charles D ), appeal from the award of damages against them). We will not discuss further these cross-appeals. They are a nullity, as filed before entry of the amended judgment that finally disposed of the consolidated litigation, for the same reasons that Southern Pacific's notice of appeal was ineffective to confer appellate jurisdiction upon us
9
Its then sole contention will be discussed in part III infra
10
Fed.R.Civ.P. 42(a) provides:
(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial if any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
|
15 F.3d 553
1994 Fed.App. 26P
UNITED STATES of America, Plaintiff-Appellant,v.Gerald Lee FLETCHER, Defendant-Appellee.
No. 93-3294.
United States Court of Appeals,Sixth Circuit.
Argued Nov. 29, 1993.Decided Jan. 31, 1994.Rehearing Denied March 30, 1994.
Nancy L. Kelley (argued and briefed), Office of the U.S. Atty., Cleveland, OH, for plaintiff-appellant.
Debra K. Migdal (argued and briefed), Federal Public Defender's Office, Cleveland, OH, for defendant-appellee.
Before: BOGGS and SILER, Circuit Judges; and CHURCHILL, Senior District Judge.*
BOGGS, Circuit Judge.
1
The United States appeals the district court's decision to depart downward in sentencing the defendant, Gerald Lee Fletcher, for bank robbery. The United States argues that the district court's downward departure was unreasonable and unwarranted. Because we find that the district court's decision to depart downward in Fletcher's case did not violate the Sentencing Guidelines, we affirm the district court's order.
2
* On the evening of September 12, 1991, Fletcher was drinking vodka and using cocaine; he continued to abuse these drugs into the morning of September 13. Fletcher used money belonging to someone else to pay for his excesses. As he was driving home, Fletcher realized that he needed to recoup the money he had spent. When he drove past the National City Bank in Cleveland, he decided to rob it.
3
Fletcher parked across the street from the bank and wrote on a matchbook, "10's, 50's, no more no less, nothing to lose." Fletcher then walked into the bank. A security guard told him that he could not smoke in the bank, so he went out, discarded his cigarette, and came back in. He stood in line and when his turn came, he handed the teller the note he had written. The teller gave Fletcher approximately $400. Fletcher left the bank, and on his way home, stopped to get more to drink.
4
Although the FBI obtained Fletcher's photograph from the bank's surveillance cameras, the FBI was unable to identify him. In June 1992, however, the FBI received a tip that Fletcher committed the robbery. The teller identified Fletcher from a photograph line-up; after Fletcher was arrested, he cooperated fully with the FBI.
5
Prior to his arrest, however, Fletcher apparently began to realize that he was on the road to ruin. In November 1991, Fletcher voluntarily admitted himself to a hospital for detoxification. This course of treatment was unsuccessful, and Fletcher again entered a detoxification program in April 1992. During this latter stay, Fletcher was referred for psychiatric treatment on a follow-up basis and was prescribed antipsychotic drugs. He was diagnosed as schizophrenic.
6
After Fletcher was arrested, the pre-sentencing report ("PSR") noted that he was cooperative and penitent. The PSR assigned a base offense level of 20, added 2 levels because the object of the robbery was a financial institution, pursuant to U.S.S.G. Sec. 2B3.1, and reduced the offense level by three levels for acceptance of responsibility. Fletcher's total offense level was thus 19. The PSR assigned nine criminal history points, which resulted in a criminal history category of IV. At this point, the sentence range was 46-57 months.
7
The PSR, however, also found that Fletcher was a career offender within the meaning of U.S.S.G. Sec. 4B1.1. This determination was based on Fletcher's conviction for aggravated assault in May 19761 and felonious assault in March 1985. This determination automatically placed Fletcher in criminal history category VI and increased his base offense level to 32, pursuant to U.S.S.G. Sec. 4B1.1(C). The PSR then reduced the base offense level by three for Fletcher's acceptance of responsibility, giving him a total offense level of 29. The sentence range rose from 46-57 months to 151-188 months. The PSR noted, however, that the career offender section of the guidelines might over-represent Fletcher's criminal history.
8
Prior to sentencing, Fletcher filed a motion to suppress the 1976 and 1985 convictions. The district court denied his motion. The district court then heard arguments on Fletcher's request for a downward departure. Fletcher argued that the criminal history category overstated his propensity for crime, that he had made extraordinary rehabilitation efforts, and that he was the sole caretaker of his two elderly parents, both of whom were ill.
The district court found that
9
the career offender status does in reality overstate [Fletcher's] criminal record. The record has been compiled over a protracted period of time. The felonious assault reduced to aggravated assault was an offense committed in 1976. The next serious offense was committed in 1985. And apparently the defendant stayed out of trouble with the exception of an indictment for theft that came down in 1991.
10
So the Court will depart. The Court will keep the offense level at 19, but the Court will sentence him on the basis of a criminal history category of Roman Numeral V rather the Roman Numeral IV. I believe to depart all the way back and totally ignore the career offender statute is inappropriate.
11
So, I'm going to increase the criminal history category. I'm going to depart downward from six to five and back to the offense level of 19.
12
The court determined that the appropriate sentence range was 57-71 months, and it sentenced Fletcher to 60 months in prison and five years supervised release.
13
The United States then filed this timely appeal.
II
14
The United States contends that the district court erred when it considered the age of one of Fletcher's convictions as a factor justifying departure. We use a three-part analysis, which we first adopted in United States v. Joan, 883 F.2d 491 (6th Cir.1989), to determine if the district court reasonably departed from the guidelines. We first determine if the " 'case is sufficiently "unusual" to warrant a departure.' " United States v. Brewer, 899 F.2d 503, 506 (6th Cir.) (quoting United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.1989)), cert. denied, 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990). This first step is purely a question of law and is reviewed under a de novo standard. Brewer, 899 F.2d at 506.
15
Second, we determine whether circumstances that would warrant departure actually exist in the particular case. Ibid. This step is a matter of factfinding and the district court's determinations are reviewed for clear error. Ibid.
16
Finally, we must decide if the district court's departure is reasonable. Ibid.; 18 U.S.C. Sec. 3742(f). " 'Reasonableness is determined by comparing the reasons for imposing a given sentence in general with the reasons for imposing a sentence in the particular case, as stated by the District Court.' " United States v. Feinman, 930 F.2d 495, 502 (6th Cir.1991) (quoting United States v. Belanger, 892 F.2d 473, 475 (6th Cir.1989)). However, "except to the extent specifically directed by statute, 'it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.' " Williams v. United States, --- U.S. ----, ----, 112 S.Ct. 1112, 1121, 117 L.Ed.2d 341 (1992) (quoting Solem v. Helm, 463 U.S. 277, 290 n. 16, 103 S.Ct. 3001, 3009 n. 16, 77 L.Ed.2d 637 (1983)).
17
A district court may depart from the sentencing guidelines if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. Sec. 3553(b). A district court may depart downward in cases where the court concludes "that a defendant's criminal history category significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes." U.S.S.G. Sec. 4A1.3, p.s. A departure is limited to "circumstances where reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's criminal history or likelihood of recidivism...."
18
U.S.S.G. Sec. 4A1.3, p.s., comment. (backg'd.). The policy statement also provides a ratcheting method for departures under this section: the district court must "use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable." U.S.S.G. Sec. 4A1.3, p.s.
19
In United States v. Feinman, supra, we affirmed the district court's decision to depart upward where the court had before it evidence that the seriousness of the defendant's record and his likelihood of recidivism was much greater than his criminal history category indicated. In that case, the defendant, Feinman, had an offense level of 30 and a criminal history category of V. Id. at 501. The district court found, however, that Feinman's long and lucrative association with the drug trade, as evidenced by his criminal history, indicated that Feinman was likely to repeat his crimes. Id. at 502. Consequently, the district court concluded that a criminal history category of V under-represented Feinman's criminal record and the court increased the category to VI. Ibid.
20
On appeal, we found that the economic benefit to Feinman, coupled with his long-term association with the drug culture, suggested that Feinman was likely to return to a life of crime after he was released from prison. We also agreed with the judge that the fact that Feinman's prior convictions were all related to drugs was "more serious than a random accumulation of points...." We concluded that Feinman's case implicated "unusual circumstances" under the first part of the Joan test. Ibid.
21
As in Feinman, we find that Fletcher's case also implicates unusual circumstances. Fletcher argued that his case was ripe for a downward departure because of his extraordinary family responsibilities, the age of the convictions on his record, the time intervening between the convictions, and his attempts to deal with his drug and alcohol problems. Moreover, Fletcher specifically requested the court to compare him "to other defendants who would typically be career offender material." Fletcher also argued that the court should consider his "likelihood of recidivism" in light of his success in rehabilitating himself.
22
We find that these circumstances present a satisfactory basis for a downward departure. Fletcher's unrelated past convictions, cf. Feinman, 930 F.2d at 502, the type of convictions, his attempts to deal with his alcohol problems, see United States v. Maddalena, 893 F.2d 815, 818 (6th Cir.1989), the age of the convictions, and Fletcher's responsibilities to his parents are circumstances that indicate that the seriousness of Fletcher's record and his likelihood of recidivism were over-stated by an offense level of 32 and a criminal history category of VI.
23
The United States argues that Fletcher's case is not unusual and that the district court erred by considering the age of the Fletcher's convictions. The United States argues that since the age of a conviction is a factor that the Sentencing Commission has already considered, see 18 U.S.C. Sec. 3553(b), U.S.S.G. Sec. 4A1.2(e)(1), the district court was prohibited from relying on this as a reason for a downward departure.
24
The United States relies on United States v. LaSalle, 948 F.2d 215 (6th Cir.1991) to support its position. In LaSalle, we held that a district court may not depart downward solely because it believes that the career offender sentence is excessive. In that case, the defendant was convicted of possession of cocaine and using a gun in relationship to a drug trafficking crime. For purposes of sentencing, the district court found that the defendant met the definition of "career offender" because he had two prior convictions, one for attempted breaking and entering, and another for assault with intent to murder. Id. at 216.
25
As a result of this enhancement, the guideline range for imprisonment was 210-262 months. The district court, however, departed downward and sentenced the defendant to 63 months. Ibid. In explaining the basis for the departure, the district court stated that it believed that the habitual criminal statutes violated the Double Jeopardy Clause, the application of the sentencing guidelines would result in disparate sentences among co-defendants, and that the defendant was being included in the career criminal category "because of things that happened a long time ago...." Id. at 216-17.
26
We vacated and remanded the case with instructions to impose a sentence within the 210-262 months range. We noted that the Sentencing Commission had already considered the effect of the age of prior convictions when it determined that these convictions should be included in the career offender computation, and that the district court could not justify a downward departure on this basis. Id. at 217-18.
27
The LaSalle case, however, is distinguishable from Fletcher's case. There is no indication in LaSalle that the district court related any of the factors to the defendant's likelihood of recidivism or relied on the general authorization for departure in U.S.S.G. Sec. 4A1.3, p.s. In Fletcher's case, however, the district court had before it evidence that spoke directly to Fletcher's likelihood of recidivism and the seriousness of his record. Moreover, the district court made a specific reference to the provisions of U.S.S.G. Sec. 4A1.3, p.s. when it departed downward. While we note that the age of Fletcher's convictions, standing alone, does not warrant a downward departure, a district court may take the age of prior convictions into account when considering a defendant's likelihood of a recidivism. On this record, the district court's consideration of the remoteness of Fletcher's 1976 conviction does not warrant a reversal.
28
Finally, the second and third parts of the Joan test are easily met. First, there is no factual dispute over Fletcher's criminal history, his attempts at rehabilitation, or his responsibility for his parents. Second, we believe that a one-category decrease in Fletcher's criminal history category and a decrease in the offense level to its original level is "reasonable."Accordingly, we AFFIRM the district court's decision to depart downward in Fletcher's case.
*
The Honorable James P. Churchill, Senior United States District Judge for the Eastern District of Michigan, sitting by designation
1
In computing convictions for the purpose of assessing career offender status, the Guidelines include "[a]ny prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense" and "any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period." U.S.S.G. Sec. 4A1.2(e)(1)
Although Fletcher was convicted in May 1976, he was incarcerated until May 1977, thus bringing this conviction within the provisions of U.S.S.G. Sec. 4A1.2(e)(1).
|
577 F.2d 752
U. S.v.Cunningham
No. 76-3634
United States Court of Appeals, Ninth Circuit
4/26/78
1
S.D.Cal.
REMANDED
|
353 So.2d 1261 (1978)
BAGWELL LUMBER COMPANY, Petitioner,
v.
FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY and Thomas W. Fenders, Respondents.
No. 76-902.
District Court of Appeal of Florida, Second District.
January 18, 1978.
S. Colquitt Pardee, Avon Park, for petitioner.
Kenneth H. Hart, Jr., and Alex D. Littlefield, Jr., Tallahassee, for respondents.
*1262 GRIMES, Acting Chief Judge.
Petitioner discharged one of its employees, respondent Fenders. Fenders applied for unemployment compensation benefits, but the claims examiner denied his claim. He appealed to the appeals referee who also found the claimant to be ineligible for the benefits. Fenders appealed the referee's decision to the Industrial Relations Commission which reversed the referee and ruled Fenders eligible for the benefits. Petitioner sought a writ of certiorari seeking our review of the commission's ruling.
At the hearing before the appeals referee, Thomas Bagwell, the owner of the petitioning company, testified that Fenders had worked for him as a truck driver for sixteen years. He said Fenders had been drunk on the job on numerous occasions and that he had often warned him about his drinking on the job.
On January 23, 1975, Bagwell's son sent Fenders home because the son thought he was drunk. The next morning, Bagwell telephoned Fenders. Bagwell stated that from Fenders' voice he could tell he was drinking so he fired him. In support of his statement that Fenders was often drunk, Bagwell presented police records which showed twelve convictions on drunk charges and one conviction for DWI between 1968 and 1975.
Fenders denied being drunk on either January 23rd or 24th. He said Bagwell had told him he was being fired so that a younger man could be hired.
On the basis of the testimony, the appeals referee found that Fenders was discharged for misconduct and therefore was disqualified from receiving unemployment compensation benefits. In reversing that decision, the Industrial Relations Commission stated that, "The employer's long delay in discharging the claimant for drinking at work and the quantum and quality of the evidence at the hearing ... are insufficient to support a finding of misconduct... ."
The appeals referee is the fact-finder in the unemployment compensation claims procedure. Section 443.07, Florida Statutes (1975). If the record shows that there was substantial competent evidence to support the factual findings of the appeals referee, then that decision must be upheld. Florida Department of Commerce v. Dietz, 349 So.2d 1226 (Fla. 2d DCA 1977) (Opinion filed September 23, 1977); Continental Baking Company v. Vilchez, 219 So.2d 733 (Fla. 2d DCA 1969).
We have concluded that there was competent substantial evidence upon which the referee could have made his finding that Fenders was dismissed for misconduct connected with his work. See Castillo v. Florida Department of Commerce, 253 So.2d 162 (Fla. 2d DCA 1971). Consequently, he is not entitled to receive unemployment compensation.
The writ of certiorari is hereby granted, the decision of the Industrial Relations Commission is reversed, and the decision of the appeals referee reinstated.
SCHEB and DANAHY, JJ., concur.
|
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jason Wright, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 2037 C.D. 2016
Respondent : Submitted: May 19, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COSGROVE FILED: September 14, 2017
Jason Wright (Petitioner) petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board) denying his request for
administrative relief and affirming his recalculation decision. Petitioner contends
the Board improperly extended his maximum sentence. His appointed counsel,
Nicholas E. Newfield, Esquire (Counsel) has petitioned for leave to withdraw his
representation. Upon review, we grant Counsel’s request and affirm the Board’s
order.
Petitioner is serving a 15-year sentence in a Pennsylvania state
correctional institution (SCI). His original maximum sentence date was February
15, 2013. He was paroled to a Federal Detainer on March 3, 2004, at which time
3,271 days remained on his sentence. Petitioner was released on parole from his
federal sentence on March 13, 2008 and failed to report to his Pennsylvania parole
officer. Petitioner was arrested in Virginia on October 21, 2011, and detained on
new criminal charges. The Board lodged a detainer against Petitioner the same
day, and he did not post bail. Petitioner was found guilty of the new charges on
March 16, 2012 and sentenced on July 31, 2013 to a new term to be served in
Virginia. A federal detainer was lodged against him at this time for violating his
federal parole. Petitioner was then released to federal authorities and served a 30-
month sentence. Petitioner completed this sentence on July 2, 2015, and was
returned to custody in Pennsylvania.
The Board denied Petitioner credit for time he was in federal custody,
from March 3, 2004 through March 13, 2008. The Board also denied credit from
October 21, 2011 to March 25, 2013, and March 25, 2013 through July 2, 2015.
The Board further exercised its discretion to deny Petitioner credit for all street
time. The Board recalculated Petitioner’s maximum sentence date to reflect the
remaining balance on his sentence of 3,271 days as of the date he was recommitted
in Pennsylvania, July 2, 2015. Thus, his new maximum sentence date is June 15,
2024.
Petitioner filed a petition for administrative review on January 5, 2016
challenging the Board’s decision to deny him credit while at liberty on parole, and
claiming the Board had improperly denied him credit for time he was held pending
charges and when he was paroled to federal custody. The Board affirmed the
decision. Petitioner appealed1 the Board’s decision to this Court, and Counsel was
1
Our scope of review is limited to a determination of whether necessary findings are
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights of the parolee were violated. Section 704 of the Administrative Agency
2
appointed. Counsel filed a petition to withdraw and a no merit letter, known as a
Turner/Finley letter. 2
DISCUSSION
We first consider the technical prerequisites imposed upon appointed
counsel who wishes to withdraw his or her representation.
Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the
nature and extent of counsel’s diligent review of the case,
listing the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed
pro se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites
of Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel’s
request to withdraw.
Law, 2 Pa.C.S. § 704; Shaffer v. Pennsylvania Board of Probation and Parole, 675 A.2d 784
(Pa. Cmwlth. 1996).
2
In Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988), the Pennsylvania Supreme
Court, applying Pennsylvania v. Finley, 481 U.S. 551 (1987), held that counsel seeking to
withdraw from a case in which the right to counsel does not derive from the United States
Constitution may provide a “no-merit letter” which details “the nature and extent of [the
attorney’s] review and list[s] each issue the petitioner wished to have raised, with counsel’s
explanation of why those issues were meritless…”
3
Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009) (quoting Commonwealth
v. Wrecks, 931 A.2d 717, 720–21 (Pa. Super. 2007)).
If appointed counsel’s no-merit letter meets the technical
requirements, this Court will independently review the merits of the petitioner’s
claims. Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 25
(Pa. Cmwlth. 2009).
In the matter sub judice, Counsel’s no-merit letter does indeed satisfy
the technical requirements of Turner/Finley. In his letter, Counsel thoroughly
analyzed Petitioner’s arguments on appeal and explained why each argument lacks
merit. Counsel served copies of his no-merit letter and petition to withdraw on
Petitioner and advised him of his right to retain private counsel or to proceed pro
se. Thus, we conclude that Counsel has complied with the technical requirements
of Turner/Finley. We next consider the merits of the underlying claim.
Petitioner concedes that he is a convicted parole violator, but argues
that the Board erred when it recalculated his maximum sentence date. Specifically,
Petitioner alleges that the Board failed to properly credit time served by Petitioner
when he was incarcerated under the Board’s detainer, and caused the Petitioner to
serve consecutive, instead of concurrent, sentences.
First we address Petitioner’s claim that he was improperly denied
credit for time served. Petitioner seeks credit for the time he was paroled to a
federal detainer from March 3, 2004 through March 13, 2008. Petitioner argues
that he should be given credit towards his original sentence for the time during
which he was serving his federal sentence. Petitioner argues that the four years he
spent in federal custody was not time at liberty on parole, but instead constructive
4
parole, which must be counted as time served concurrently with his original
sentence.
It is well established that an offender on constructive parole is
considered to be, for purposes of his original sentence, at liberty on parole.
Bowman v. Pennsylvania Board of Probation and Parole, 709 A.2d 945, 948 (Pa.
Cmwlth. 1998). An offender who is paroled from his original sentence to begin
serving a new sentence is considered to be on constructive parole. Merritt v.
Pennsylvania Board of Probation and Parole, 574 A.2d 597, 598, n.1 (Pa. 1990).
At liberty on parole does not mean liberty from all confinement, but instead liberty
from confinement as to the particular sentence from which the offender is paroled.
Cox v. Pennsylvania Board of Probation and Parole, 493 A.2d 680 (Pa. 1985). In
the instant case, Petitioner was paroled in order to serve a federal sentence. Thus,
he was on constructive parole, and is considered to be at liberty on parole for the
purposes of his original sentence from March 3, 2004 through March 13, 2008.
It is also well-settled that the Board has the authority to forfeit time at
liberty on parole when a parolee is recommitted as a convicted parole violator.
Section 6138(a) of the Prisons and Parole Code states that a convicted parole
violator “shall be given no credit for the time at liberty on parole,” unless the
Board, in its discretion, decides to award such credit. 61 Pa.C.S. § 6138(a). 3
3
Section 6138(a) of the Prisons and Parole Code states, in relevant part:
(a) Convicted violators.—
(1) A parolee under the jurisdiction of the board released from a
correctional facility who, during the period of parole or while
delinquent on parole, commits a crime punishable by
imprisonment, for which the parolee is convicted or found guilty
by a judge or jury or to which the parolee pleads guilty or nolo
contendere at any time thereafter in a court of record, may at the
5
Instantly, the Board chose not to award such credit. Because the Board’s authority
to deny credit for time at liberty on parole was clear, we agree with Counsel that
Petitioner’s petition for review arguing the Board unlawfully extended his
maximum sentence date is devoid of merit.
Next, Petitioner argues that the Board erred in its recalculation of his
maximum sentence date by causing Petitioner to serve consecutive, instead of
concurrent, time when it denied credit for time served for other charges. Petitioner
argues that he is entitled to credit from October 21, 2011 to March 25, 2013, when
he was held on a new offense in Virginia and by the Board’s detainer. He also
argues he is entitled to credit for the period between March 25, 2013 through July
2, 2015 when he was confined by federal authorities for his violation of federal
parole. He therefore concludes that the Board improperly extended his maximum
sentence date, and thus caused him to unlawfully serve consecutive sentences,
when it failed to grant credit for these periods of time.
The Commonwealth has the power to retake and hold in custody
without further proceedings any parolee charged after his parole with an additional
offense. 61 Pa.C.S. § 6137. When a parolee is arrested on new charges, he may
discretion of the board be recommitted as a parole violator.
(2) If the parolee’s recommitment is so ordered, the parolee shall
be reentered to serve the remainder of the term which the parolee
would have been compelled to serve had the parole not been
granted and, except as provided under paragraph (2.1), shall be
given no credit for the time at liberty on parole.
(2.1) The board may, in its discretion, award credit to a parolee
recommitted under paragraph (2) for the time spent at liberty on
parole . . . .
61 Pa.C.S. § 6138(a).
6
lose credit for any time at liberty on parole that he has accumulated. Houser v.
Pennsylvania Board of Probation and Parole, 682 A.2d 1365, (Pa. Cmwlth. 1996).
The Board additionally may take away credit for all previously accumulated and
credited street time. Krantz v. Pennsylvania Board of Probation and Parole, 698
A.2d 701 (Pa. Cmwlth. 1997). An offender may only receive credit against a
sentence for time spent in custody for the particular charges for which the sentence
is imposed. 42 Pa.C.S. §9760(1).
It was within the sound discretion of the Board to deny Petitioner
credit towards his maximum sentence date for time he was held pending other
charges. The extension of Petitioner’s maximum sentence date was not the
imposition of an unlawful concurrent sentence. Here, Petitioner was held in the
first period on a new offense and the Board’s detainer. Petitioner did not post bail
on the new offense, and was thus properly determined by the Board to be held
pending the new offense, and not solely on the detainer of the Board. The Board
thus properly denied Petitioner credit for this time. Petitioner was additionally
held in federal custody for violating federal parole. This period of incarceration
was for an offense other than that for which his original sentence was imposed.
Therefore, the Board properly denied Petitioner credit for this time. Petitioner’s
claim that the Board unlawfully extended his maximum sentence date is without
merit.
Accordingly, we grant Counsel’s petition to withdraw his
representation and affirm the Board’s order.
___________________________
JOSEPH M. COSGROVE, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jason Wright, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 2037 C.D. 2016
Respondent :
ORDER
AND NOW, this 14th day of September, 2017, the petition for leave to
withdraw as counsel filed by Nicholas E. Newfield, Esquire, in the above-
captioned matter is hereby granted and the order of the Pennsylvania Board of
Probation and Parole is affirmed.
___________________________
JOSEPH M. COSGROVE, Judge
|
586 P.2d 351 (1978)
37 Or.App. 13
Maurine NEUBERGER, Lee F. Martinson, Iris M. Felter, Frank Burger, Fay Burger, Marian O'Reilly, George Wittemyer, Jean Wittemyer, Wm. G. Cooney, Doris B. Cooney, Thomas E. Craven, James Cross, Mary Cross, Chistopher Curtin, Patricia Curtin, John Daily, Mary Lou Daily, Douglas P. Dickie, Ella Dickie, Fred C. Felter, Ervin F. Flick, Ada Flick, Alan Gilmore, Hope Z. Gilmore, Ivan Gold, Lois Gold, Merwyn R. Greenlick, Harriet Greenlick, Edward L. Hendricks, Ardis S. Hendricks, Howard E. Hermanson, Frances C. Hermanson, Richard E. Larsen, Phyllis J. Larsen, Helmer V. Larson, Gladys C. Larson, Norman C. Lindhjem, Barbara G. Lindhjem, Mary Louisa McCall, Jack B. Miller, Jeanne P. Miller, A. Don Parr, Dorthy C. Parr, Alex Pierce, Daphne Pierce, J.E. McQuaid, Glee McQuaid, Manvel Schauffler, Verna Schauffler, Joyce Spinks, D.J. Surman, Roy Taylor, Phillip Trautmann, Karen Trautmann, George Tsongas, Joyce Tsongas, Herbert H. Wing, Eileen A. Wing, Saul Zaik, Frances Zaik, Jim L. Cates, Sharon K. Cates, Donald L. Cook, Stacia A. Cook, Stuart Cutler, Beverlee Cutler, William Dippert, Jean F. Dippert, James Ehlbeck, Karen Ehlbeck, Keith Finzer, Joann Finzer, Thomas M. Frith, Jan E. Frith, Eugene C. Kauffman, Patricia A. Kauffman, Gifford L. Kauffman, Gifford L. Martin, Sr., Jewell N. Martin, Kahler Martinson, Donna Martinson, Frank A. Miller, Frank E. Panowicz, Marianne Panowicz, Charles Gary Peterson, Susan L. Peterson, Walt Smith, Carol Smith, LeRoy C. Stammer and Ilo M. Stammer, Appellants,
v.
CITY OF PORTLAND, Oregon, a Municipal Corporation, Neil E. Goldschmidt, Mayor and Member of the Council of the City of Portland, Francis J. Ivancie, Mildred Schwab, Connie McCready and Charles R. Jordan, Commissioners and Councilmen of the City of Portland, Homer G. Williams, Ronnie A. Bissell, Roland A. Haertel, D. Neal Marlett, Alan G. Quasha, Wayne G. Quasha and Jill Quasha, Co-Partners Doing Business As Wilbihama Investors, Oroc Lands (Oregon), Inc., an Oregon Corporation, Oroc Lands, Ltd., a Hong Kong Corporation, Wilbihama Investors and Oroc Lands, Ltd., a Joint Venture, Walter Lommel, Jr., Trustee, and Ed E. Meier and Helene E. Meier, Respondents,
Multnomah County, Oregon, Washington County, Oregon, City of Beaverton, Oregon, a Municipal Corporation, Defendants.
Nos. 417 998, 417 999; CA 7976.
Court of Appeals of Oregon.
Argued and Submitted March 23, 1978.
Decided November 6, 1978.
*353 Paul R. Meyer, Portland, argued the cause for appellants. With him on the briefs was Kobin & Meyer, Portland.
Stephen T. Janik, Portland, argued the cause for respondents Homer G. Williams, Ronnie A. Bissell, Roland A. Haertel, D. Neal Marlett, Alan G. Quasha, Wayne G. Quasha, and Jill Quasha, Co-Partners doing business as Wilbihama Investors; OROC Lands (Oregon), Inc., an Oregon corporation; OROC Lands, Ltd., a Hong Kong corporation; Wilbihama Investors and OROC Lands, Ltd., a joint venture; Walter Lommel, Jr., Trustee; and Ed E. Meier and Helene E. Meier. With him on the brief was Jennifer J. Johnson, and Davies, Biggs, Strayer, Stoel & Boley, Portland.
Thomas R. Williams, Sr. Deputy City Atty., Portland, argued the cause for respondents City of Portland, Oregon; Neil E. Goldschmidt, Mayor and Member of the Council of the City of Portland; Francis J. Ivancie, Mildred Schwab, Connie McCready and Charles R. Jordan, Commissioners and Councilmen of the City of Portland. With him on the brief was Christopher P. Thomas, City Atty., Portland.
Before RICHARDSON, P.J., and LEE and JOHNSON, JJ.
RICHARDSON, Presiding Judge.
This appeal concerns the validity of an ordinance of the City of Portland, adopted in September, 1975, granting a zone change from R-20 (single-family residence 20,000 square feet) to R-10 (single-family residence 10,000 square feet) for a 601 acre parcel of undeveloped land in northwest Portland. There are three landowners in the parcel, all of whose interests are subject to purchase contracts or options by a joint venture (applicant) which plans eventually to construct approximately 1,300 single family residences on the parcel. The ordinance allowing the zone change makes development of the parcel contingent on the applicant's subsequent procurement of city approval for a Planned Unit Development (PUD).
The petitioners, who are mainly owners of property adjacent to the rezoned parcel, sought judicial review of the City's action by both Writ of Review and Declaratory Judgment. These two proceedings were consolidated below, and the trial court dismissed the declaratory judgment suit on the ground that the relief sought in it was substantially identical to the relief sought through the writ of review. After trial, the court also dismissed the writ of review. Petitioners appeal both orders of dismissal. We affirm the dismissal of the declaratory judgment and reverse and remand in the writ of review proceeding.
The threshold question in this case is whether the proceedings before the city council were required to comply with the quasi-judicial substantive and procedural requirements of Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973), and subsequent related decisions of the Supreme Court and this court. Oregon's appellate courts have frequently been called upon to decide whether particular local land-use decisions are quasi-judicial or legislative in nature. In Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or. 3, 569 P.2d 1063 (1977), the Supreme Court observed:
"The property in question is a single compact tract of land under the ownership or control of a single developer. Our references in this opinion to `single tract' or `single parcel' amendments are convenient ways of describing the type and scale of land-use decisions which we have treated as quasi-judicial. See, e.g., Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973) (zone change on 32 acres under single ownership); Green v. Hayward, 275 Or. 693, 552 P.2d 815 (1976) (zone change on one 50-acre tract owned by proponent of change and adjacent 90-acre tract upon which proponent held option to purchase); Petersen v. Klamath Falls, 279 Or. 249, 566 P.2d 1193 (1977) (annexation of 141 acres owned by four individuals who planned a coordinated development). Compare Culver v. Dagg, 20 Or. App. 647, 532 P.2d 1127 (1957) (rezoning of more than half of county; land *354 under diverse ownership); Parelius v. Lake Oswego, 22 Or. App. 429, 539 P.2d 1123 (1975) (rezoning of 73 acres consisting of more than 25 parcels in diverse ownership); Joyce v. City of Portland, 24 Or. App. 689, 546 P.2d 1100 (1976) (rezoning of 842 acres owned by at least `several dozen' individuals). We do not intend, by the use of the terms `single tract' and `single parcel' to adopt a test for determining when a given land-use decision is quasi-judicial rather than legislative. A number of factors such as the size of the area affected in relation to the area in the planning unit, the number of landowners affected, and the kinds of standards governing the decision-makers may be relevant. The decision with which we are now concerned is clearly quasi-judicial, and we find it unnecessary to formulate, in the present case, a test for making that determination. 280 Or. at 11, n. 5, 569 P.2d at 1071.
It is also unnecessary to formulate a comprehensive test in this case for making that determination. For the reasons which follow, we conclude that a zone change proceeding is necessarily quasi-judicial when it is undertaken at the instance of a single applicant or a combination of applicants with united interests in the parcel they seek to have rezoned.[1]
There is consensus among the parties that the zone change in question, involving in excess of 600 acres, was regarded as "a major matter of policy for the City." However, the potential policy ramifications of a land-use decision are not determinative of whether Fasano applies. The rationale of Fasano is that local land-use decisions must be made in a quasi-judicial setting when there are "dangers of the almost irresistible pressures that can be asserted by private economic interests on local government." 264 Or. at 588, 507 P.2d at 30. In Sunnyside, the Supreme Court characterized Fasano's purpose as being
"* * * that land use decisions made at the instance of a private party be made only for reasons having to do with the needs and welfare of the community at large rather than for the accommodation of individual landowners or private developers. * * *" 280 Or. at 14, 569 P.2d at 1073 (Emphasis supplied.)
See also Auckland v. Bd. of Comm. Mult. Co., 21 Or. App. 596, 601, 536 P.2d 444, rev. den. (1975).
The cases where we have concluded that land-use decisions were legislative rather than quasi-judicial are distinguishable from the present case, and the distinguishing facts illustrate why the City proceedings in this case were required to be quasi-judicial. In Joyce v. City of Portland, 24 Or. App. 689, 546 P.2d 1100 (1976), we held that the City of Portland's rezoning of an 842 acre tract, adjacent to the parcel in question here, was a legislative action and not subject to Fasano's requirements. In Joyce, the rezoning ensued from a sua sponte evaluation by the city council, and the tract contained several dozen individual landowners. We stated:
"When a tract of land separately owned by a substantial number of individuals is rezoned as a result of a governmental evaluation of the existing land-use limitations imposed on the area, the change reflects a general policy and the action of the body is considered a legislative determination. * * *" 24 Or. App. at 691, 546 P.2d at 1101.
See also Culver v. Dagg, 20 Or. App. 647, 532 P.2d 1127, rev. den. (1975); and Parelius v. Lake Oswego, 22 Or. App. 429, 539 P.2d 1123 (1975).
Conversely, in this case, there is not a substantial number of landowners in the affected parcel, and the rezoning was instituted by the single interest which has controlling *355 rights in the entire parcel rather than by an independent government evaluation. The facts in Joyce inherently assured a disinterested decision by the governmental body and imput by the large number of landowners within the affected tract who had conceivably divergent interests. Those assurances are absent here. In this case, approximately 90 owners of property adjoining the parcel participated in the city council's deliberations. However, that extensive participation by strangers to the tract can only be viewed as a coincidence, and is no basis for the formulation of a rule of law. While the concerned participation in land-use deliberations by persons whose property would be directly impacted by the decision is a constant, the certainty of persons from nearby areas being similarly concerned cannot be assumed; nor, in the absence of quasi-judicial procedures, can the ability of such adjacent landowners to learn of a proposed change or to make their concern known to the decision-making body be assured.
The proceedings before the city council were required to be quasi-judicial and to comply with the requirements of Fasano and following cases. Because quasi-judicial actions are reviewable by writ of review, the trial court committed no error in dismissing the petitioners' declaratory judgment suit. We accordingly turn to the merits of petitioners' appeal in the writ of review proceeding.
The task of dealing with that appeal is complicated by the petitioners' presentation of the issues. The first 84 pages of their 221 page brief contain a statement of facts which is distorted, argumentative and hardly informative. Petitioners then devote 50 pages to a recitation of 42 assignments of error. At page 135, petitioners' counsel finally commences argument. Much of the argument in the brief consists of points supported by unrelated propositions. In short, petitioners have fired a "whiff of grapeshot" in a 720 degree direction in the hope that something may hit the target.
Given our conclusion that the quasi-judicial requirements of Fasano were applicable to the City proceedings, the principal issue raised by the writ of review is whether the applicant and the City complied with those requirements. Fasano requires that three substantive standards must be met, as shown by the proof of the proponents of a zone change, before the change can be allowed: first, that "the change is in conformance with the comprehensive plan" (or, in the absence of a comprehensive plan, "with generally accepted land use planning standards"); second, that "there is a public need for a change of the kind in question"; and third, that the public need is best met by the proposed change on the proposed land "as compared with other available property." Fasano, 264 Or. at 583, 584, 507 P.2d 23, 28; Braidwood v. City of Portland, 24 Or. App. 477, 481, 546 P.2d 777, rev. den. (1976). A corollary of the third standard is that
"* * * [i]f other areas have previously been designated for the particular type of development, it must be shown why it is necessary to introduce it into an area not previously contemplated and why the property owners there should bear the burden of the departure." Fasano, 264 Or. at 586, 507 P.2d at 29. (Footnote omitted.)
Petitioners contend that the applicant failed to meet its burden of proof as to those substantive standards, that the City's findings with respect to those standards were deficient, and that there was no substantial evidence to support the City's findings. Of the several specific arguments the petitioners make regarding the Fasano standards, only one warrants discussion: whether the applicant proved that the public need could best be accomplished by a zone change on the parcel in question rather than on alternative locations previously zoned or susceptible to being zoned in the same classification as the applicant sought for its property.
The petitioners state that "applicant had no evidence, and acknowledged it had none, concerning alternative sites," and that there was a report from a City planning official to the effect that there were 3,695 acres of *356 alternative undeveloped land in northwest Portland, a similar number in southwest Portland, and large amounts of undeveloped acreage in the unincorporated areas of Multnomah County and in Washington County. The applicant does not dispute the basic premise of petitioners that there was no proof regarding the feasibility of high density residential development on specific alternative locations. The applicant argues that the absence of such proof does not violate Fasano because, given the nature of the public need for the zone change which the applicant proved, its parcel was uniquely suited to the objectives the City sought to accomplish through the zone change, e.g., proximity of the residential development to the central business area, compatibility with the use of a mass transit system, and the size of the area which could be contiguously developed at R-10 density. In other words, the applicant argues that its proof of what the public need was, simultaneously established that only its own property could suffice to meet the need. As summarized by the applicant:
"The property has a unique capability of fulfilling these needs. There are no other parcels of land in the western portion of the City which have the same characteristics that are necessary to fulfill these needs. Thus there are no comparable parcels which might provide an alternative site for this project and no other sites which Fasano requires the City to compare to the Property.
"* * *
"* * * Petitioners contend that no one inventoried all of the vacant land within the City of Portland and within the tri-county area. It is correct that there was no such inventory, but Fasano does not require one. As pointed out above, there was ample evidence of the Property's uniqueness and its suitability to serve the public needs identified by the City Council. * * *" Applicant's brief at 67, 70-71. (Emphasis added.)
The applicant's reasoning is circular. The applicant was required to prove, first, the existence of a public need for the zone change, and second, the preferability of effecting that change on its parcel rather than on other available property. The applicant argues that the proof of the first fact obviated the need for proving the second. It is conceivable that evidence could be introduced to establish a public need for a zone change which is so specific that it can be accomplished only on a particular parcel of property. Here, however, it appears that the applicant and the City made an a priori assumption that only one parcel could suffice to meet the public need, and the applicant offered no proof to substantiate that assumption. In sum, Fasano required that the applicant offer evidence that other undeveloped property already zoned or susceptible to zoning at the higher density was either less suited than its property or wholly unsuited for the fulfillment of the "identified public needs" of the City. Applicant's argument that Fasano requires no comparison because nothing could be comparable begs the question.
Some support for the applicant's position can be found in Green v. Hayward, 275 Or. 693, 552 P.2d 815 (1976). There, the Supreme Court stated:
"* * * It is contended that there was no showing of necessity for change in this case, as much of the land in Lane County which had been previously zoned for heavy industrial development had not been used for that purpose. It is also argued that Bohemia's desire to build its new plant on land which it already owned (or had an option to purchase) was not a proper consideration. Ordinarily this argument would carry considerable weight. The integrity of comprehensive planning would be seriously compromised if a property owner could obtain a zone change on the ground that he did not own any of the land that was already zoned for the type of development he had in mind, or that his proposed development would be less profitable in an appropriately zoned area. In this case, however, * * * [t]he Board could reasonably have concluded that if the plant were not built adjacent to Bohemia's existing mill, no such plant would be built within the *357 county, and that it was in the public interest to have such a plant constructed. * * *" 275 Or. at 708-09, 552 P.2d at 824.
However, this case is distinguishable from Hayward in that, in the latter, there was in fact only one place anybody could locate a new plant adjoining Bohemia's existing one. Hence, if there were a public need for the second plant, it would be practicably if not literally impossible for that need to be achieved elsewhere. The "unique location" theory is far more attenuated in this case; no one argues that only one place in the City of Portland is susceptible to development at R-10 density. Moreover, it seems clear that the Supreme Court did not intend its "unique location" holding in Hayward to be liberally transferable to other fact situations. The court stated that, ordinarily, the contrary argument would carry considerable weight.
We conclude that the applicant failed to carry its burden of proof regarding other available property and, for the same reasons the proof failed, the City's findings on that issue were inadequate and not supported by substantial evidence.
Some of the petitioners' other contentions warrant brief discussion.
The petitioners argue that ORS 197.275, read together with other sections in ORS chapter 197 and in light of certain language from the Supreme Court's decision in Baker v. City of Milwaukie, 271 Or. 500, 533 P.2d 772 (1975), prohibited the City from making a zone change of this magnitude without first having adopted a comprehensive plan. ORS 197.275 specifically provides that, pending the adoption of a comprehensive plan, "existing planning efforts and activities shall continue." Moreover, Baker v. City of Milwaukie and Braidwood v. City of Portland, supra, necessarily contemplate the continuity of zoning actions in localities which have not yet adopted comprehensive plans.
The petitioners next argue that the city council did not comply with ORS 227.170, which provides:
"The city council shall prescribe one or more procedures for the conduct of hearings on permits and zone changes."
At the time the proceedings in question began, the statute read somewhat differently, but not in respects material here. According to petitioners, there were no "procedural rules enunciated in advance and consistently applied." The record controverts petitioners' contention. Cf., Anderson v. Peden, 30 Or. App. 1063, 569 P.2d 633 (1977), rev. allowed, 281 Or. 1 (1978).
Petitioners next contend that, in two respects, the "conditioning" of the zone change on the subsequent approval of a Planned Unit Development and the procedures relating to the "grant" of the PUD were legally flawed. First, the petitioners say the applicant did not comply with the established procedures of the City code for obtaining PUD approval. However, the applicant was not granted approval of a PUD; it was granted a zone change, and the ordinance granting the zone change provided that high density development on the applicant's parcel was subject to the approval of a PUD in the future. The other point of the petitioners is that the city's granting of the zone change and its making development of the parcel subject to the later approval of a PUD amounted to the approval of a "concept" or "master plan," which we construed another local government's ordinance as forbidding in Rockway v. Stefani, 23 Or. App. 639, 543 P.2d 1089 (1975), rev. den. (1976). What we found objectionable in Stefani was the approval of an application for a PUD which was internally incomplete, in that the specific plans for the PUD were to be submitted by the applicant after the PUD was approved. The present situation is not comparable. The applicant as of now has obtained nothing but a zone change. The development of the rezoned tract is subject to the later approval of a PUD. It is true that the zone change ordinance prescribes various requirements for the PUD application, but that does not constitute approval in advance of the PUD.
The petitioners argue next that they were denied an impartial tribunal, and that *358 there were ex parte contacts between the City and the applicant. The first of the ex parte contacts took the form of negotiations between the applicant and the City for the City's purchase of a different parcel from the one rezoned. (The other parcel was originally included in the application for the zone change, but was not the subject of any action by the City). The second ex parte contact of which the petitioners complain was the participation by one of the applicant's attorneys in the preparation of the city council's findings after the council had announced its decision on the zone change. We do not perceive how the petitioners were prejudiced by either of those contacts. The first was over a matter which was not pending before the council, and the second, in addition to occurring after the council had already decided the "contested" issue, was with a person (a city planning official) who had no control over the decision. See Tierney v. Duris, Pay Less Properties, 21 Or. App. 613, 536 P.2d 435, rev. den. (1975).
In addition to the ex parte contact contention, the petitioners make a variety of arguments to the effect that the city council was biased in favor of the applicant. These arguments are based on secondary matters, such as the City's allowing a "conditional" zone change for an unlimited period of time pending the applicant's filing of an application for a PUD. We find the arguments unpersuasive.
The petitioners next argue that the City was required to consider and make its action compatible with the comprehensive plans or other applicable zoning law of Multnomah County, Washington County, CRAG, and perhaps other bodies. This argument is based primarily on petitioners' understanding of our decision in Frankland v. City of Lake Oswego, 8 Or. App. 224, 493 P.2d 163 (1972), aff'd 267 Or. 452, 517 P.2d 1042 (1973). We find nothing in Frankland which suggests that a city zoning action affecting territory within the city must comply with other local governments' zoning laws. Further, we find nothing to suggest that the City's action here was subject to CRAG's jurisdiction under the principles we enunciated in Ruegg v. Clackamas County, 32 Or. App. 77, 573 P.2d 740 (1978).
Next, the petitioners object to the inclusion of certain economic data in the City's findings and to the city council's hearing evidence pertaining to those economic considerations, when the evidence petitioners sought to introduce relating to the financial condition of the applicant was excluded. The economic data which was considered by the city council and which was included in its findings pertained directly to the proposed development of the rezoned parcel, and not to the financial condition of the applicant. There was no error in the admission or exclusion of the evidence or in the findings.
The final argument of the petitioners which requires discussion is that the city council failed to abide by "generally accepted land-use planning standards," because it did not adhere to what petitioners understand the Supreme Court to have held in Roseta v. County of Washington, 254 Or. 161, 458 P.2d 405, 40 A.L.R.3d 364 (1969), that a zone change is not permissible unless there is a change in the character of the neighborhood. Petitioners' understanding of Roseta was expressly refuted by the Supreme Court in Fasano, where the court stated that Roseta
"* * * should not be interpreted as establishing a rule that a physical change of circumstances within the rezoned neighborhood is the only justification for rezoning. The county governing body is directed by ORS 215.055 to consider a number of other factors when enacting zoning ordinances, and the list there does not purport to be exclusive. * * *" 264 Or. at 585, 507 P.2d at 28.
As earlier indicated, petitioners advance a plethora of arguments in addition to those we have discussed. They are not meritorious, and a discussion of them is not necessary to clarify the law.
The trial court's dismissal of the declaratory judgment complaint is affirmed. Its order dismissing the writ of review is reversed and remanded with instructions to *359 remand the matter to the city council for hearings and preparation of appropriate findings on the limited issue of the availability and suitability of alternative locations for the realization of the public need already proved by the applicant.
Affirmed in part, reversed in part and remanded with instructions.
JOHNSON, Judge, dissenting.
The majority decision reflects the ever present temptation for courts to interject themselves into the operations of the more democratic institutions in our system of government, presumably because of a perceived superior judicial wisdom. I doubt we have that wisdom and, in any event, the constitution prohibits its exercise. Our intervention here is also an example of how courts can be used, deliberately or inadvertently, to thwart the democratic process. Appellant has, as the majority states, "fired a whiff of grape shot in a 720 degree direction," and a stray shot found the target. We have remanded this case to the Portland City Council, an elected legislative body, to conduct a meaningless exercise in semantics. In spite of the majority's logic, common sense dictates that there is no other comparable available land. Common sense further dictates the council will pro forma reaffirm its previous decision with findings, discussing other available properties. We can reasonably anticipate another whiff of grape shot aimed at that decision. After that litigation, the parties will prepare, negotiate and deliberate over the planned unit development. If approved by the city council, we can expect still another whiff. The majority perceives the underlying issue to be whether there is other available land. The city perceives the issue to be a political question of whether this large neighborhood is to be highly exclusive (20,000 square feet per single family residence) or is to have moderate density with moderate cost housing (10,000 square feet per single family residence.) The issue is political and we should be reluctant to enter the arena.
For the reasons stated infra, I believe the majority has applied the wrong legal principles. I would affirm the dismissal of the writ of review because the City's decision was legislative in nature. I would also affirm the trial court's decision on the declaratory judgment action because the assignments of error were not well taken.
The Writ of Review
The zone change proceeding concerned two parcels of property consisting of 899 acres[1] which are owned by three persons subject to a contract to purchase by a joint venture consisting of seven individual partners and two corporations. The applicants seek eventual approval of a planned unit development for the construction of 1,300 single-family residences. There are 90 plaintiffs who are landowners either in the City, the unincorporated area of Multnomah County, or Washington County whose property either adjoins or is near the subject parcels. Initially, Multnomah and Washington Counties, together with the City of Beaverton, were joined as party defendants, and according to plaintiff's brief, they took a position before the City Council in opposition to the zone change. Plaintiffs emphasize in their brief that all parties have taken the position throughout the proceedings, both before the City and upon judicial review, that the City's decision in this matter is a land use policy decision of major magnitude.
In Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973), the court rejected the view that all zoning decisions are per se legislative, held that a zone change for a 32-acre parcel was quasi-judicial, and established certain procedural and substantive rules for the conduct of quasi-judicial land use decisions. Following Fasano, there have been a number of decisions which have addressed the issue of whether a land use decision is legislative or quasi-judicial. See *360 Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or. 3, 569 P.2d 1063 (1977); Joyce v. City of Portland, 24 Or. App. 689, 546 P.2d 1100 (1976); Rockway v. Stefani, 23 Or. App. 639, 543 P.2d 1089 (1975), rev. den. (1976); Parelius v. Lake Oswego, 22 Or. App. 429, 539 P.2d 1123 (1975); Marggi v. Ruecker, 20 Or. App. 669, 533 P.2d 1372, rev. den. (1975); Culver v. Dagg, 20 Or. App. 647, 532 P.2d 1127, rev. den. (1975); Millersburg Dev. Corp. v. Mullen, 14 Or. App. 614, 514 P.2d 367 (1973), rev. den. (1974). There has been some suggestion that the test may be largely mechanical as the majority suggests, focusing on the size of the land area and the number of parcels and landowners that are the subject of the zoning. See Marggi, Parelius, and Joyce, all supra.[2] Heretofore, the largest land area that has ever been held to be the subject of a quasi-judicial decision was 400 acres. See Rockway v. Stefani, supra. The land area here is twice that size. In contrast, the subject land consists of only two parcels owned by three individuals. Neither of these factors, however, is determinative.
In Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or. 3, 569 P.2d 1063 (1977), the Supreme Court rejected a purely mechanical land-size/number-of-owners test. The court stated in a footnote:
"The property in question is a single compact tract of land under the ownership or control of a single developer. Our references in this opinion to `single tract' or `single parcel' amendments are convenient ways of describing the type and scale of land-use decisions which we have treated as quasi-judicial. * * * [citing cases discussed above] We do not intend, by the use of the terms `single tract' and `single parcel' to adopt a test for determining when a given land-use decision is quasi-judicial rather than legislative. A number of factors such as the size of the area affected in relation to the area in the planning unit, the number of landowners affected, and the kinds of standards governing the decision-makers may be relevant. The decision with which we are now concerned is clearly quasi-judicial, and we find it unnecessary to formulate, in the present case, a test for making that determination." (emphasis supplied) 280 Or. at 11 n. 5, 569 P.2d at 1071.
The court thus rejected the concept of "single tract" or "single parcel" as being determinative, and instead directed a pragmatic analysis weighing several factors. Size alone is not determinative, but rather the inquiry must focus on "size of the area affected in relation to the area in the planning unit." The substantive policy significance of a conditional use permit for 400 acres of rural property in Clackamas County such as at issue in Rockway v. Stefani, supra, or 1,000 acres in Malheur County, is far different from a zone change for 900 acres of undeveloped urban property within the Portland city limits. In the former cases only a few persons may be sufficiently affected to have an interest in the outcome, and thus the decision-making process has the earmarks of the "contested case" or "quasi-judicial" type proceeding. In contrast, a decision of the magnitude at issue here inevitably attracts widespread public attention and necessarily becomes political and legislative in nature.
In Sunnyside the court also mentioned the "number of land-owners affected." Contrary to the majority opinion, it is clear from the context of the statement that the court was referring not only to those landowners whose property is the subject of the zoning ordinance, but also affected adjoining landowners. Here there were at least 90 affected landowners who appeared in public opposition to the proposed zone change.
*361 Fasano and Sunnyside do not depart from the proposition that land use policies embodied in comprehensive plans and general zoning ordinances are decisions to be made in the legislative arena, subject only to the checks and balances of the democratic political processes and minimal judicial scrutiny. The premise of Fasano is that many municipal land use decisions granting special exceptions, even though theoretically amendments to the comprehensive plan or general zoning ordinances nevertheless are neither basic policy decisions nor legislative in character, but rather are administrative and quasi-judicial. 264 Or. at 580, 507 P.2d 23. The court's apparent concern and the rationale for the more stringent judicial review of certain land use decisions is that by piecemeal granting of special exceptions, basic land use policy decisions embodied in legislatively enacted comprehensive plans and general zoning ordinances may be undermined or altered without the benefit of the political input that is attendant to the legislative process. A land use decision which affects a small parcel and a small number of people is not likely to arouse sufficient public interest to insure an adequate legislative balancing of competing political interests. In particular, the court was concerned with the "dangers of the almost irresistible pressures that can be asserted by private economic interests on local government" in this type of decision-making environment. 264 Or. at 588, 507 P.2d at 30. (emphasis supplied) The court obviously was not concerned that some political pressures may be asserted because such pressures are not only inevitable in legislative decision-making, they are concomitant to the democratic process. Rather the concern is that in land use decisions where there are only a few interested individuals there is a likelihood that those few can exercise pressures of "almost irresistible" proportions. The countervailing pressures that characterize legislative decisions on basic policy matters are unlikely to exist.
In the instant case conflicting and countervailing pressures obviously did exist. Unlike many zone change proceedings where the private developer is the only party appearing, here we have at least 90 individuals who appeared in opposition. Among those individuals were persons of political prominence such as a former United States senator. Three major political subdivisions expressed a position in this proceeding. The "almost irresistible" pressures which Fasano was concerned with were not present. Moreover, it is apparent that there were political forces other than the mere parties to this litigation who had a stake in the outcome and which the City had to consider. The City Council indicated the principal reason for authorizing the zone change was to meet long-term housing needs, i.e., 1,300 single-family residences. Thus we have a decision which not only affected the parties directly, but would have a profound impact on several thousand other people. The decision to approve or disapprove was a "general * * * policy which is applicable to an open class of individuals," a factor which the Oregon Supreme Court indicated in Fasano may well be controlling in determining that it is legislative in nature. 264 Or. at 581, 587, quoting from Comment, Zoning Amendments The Product of Judicial or Quasi-Judicial Action, 33 Ohio St.L.J. 130, 137 (1972).
The final and probably the most important factor expressly mentioned in Sunnyside is "the kinds of standards governing the decision-makers." 280 Or. at 11 n. 5, 569 P.2d at 1071. If a decision is characterized as quasi-judicial, then the standards of Fasano must apply. The burden of proof is upon the proponents of change to prove that there is a public need, and the need is best met by the proposed change as compared to other available alternatives. 264 Or. at 584, 507 P.2d 23. This burden is only appropriate where there is an inherent danger that the democratic will may be thwarted because of "almost irresistible" pressures. Where the likelihood is that the democratic will will prevail, then Fasano standards are an unwarranted invasion into the legislative arena and violate the separation of powers. Legislative bodies are not expected to prove the public interest or to *362 prove that they have weighed alternatives. They are presumed to know the public interest. Here we have a decision which proponents, opponents, and the City publicly proclaim "is a major matter of policy for the City * * * which is going to make a difference for a long period of time, 50 to 100 years, in a very large neighborhood."[3] The land in question is the largest remaining tract of undeveloped land in the western part of the City. A multitude of citizens and three political subdivisions have participated in the proceedings. An open class of several thousand people is directly affected. Separation of powers dictates that we not impose Fasano requirements on the City in a decision of this nature and magnitude.
Declaratory Judgment Suit
A legislative decision is not subject to writ of review, ORS 34.040, but is subject to limited judicial review in a declaratory judgment suit. The early zoning decisions stated that judicial review was limited to the questions of whether the legislative action was "arbitrary or capricious." See, e.g., Jehovah's Witnesses v. Mullen, 214 Or. 281, 295, 330 P.2d 5 (1958). I interpret those cases as meaning that courts review for constitutional error. The reference to "arbitrary or capricious" is merely a restatement of the due process standard that is applied to any legislative act. See, e.g., Roseta v. County of Washington, 254 Or. 161, 458 P.2d 405 (1969), and cases cited therein, 254 Or. at 164 n. 2. More recent, but pre-Fasano cases indicate that a more stringent standard of judicial review is applicable in cases of "spot zoning." See Roseta v. Washington County, supra; Smith v. County of Washington, 241 Or. 380, 406 P.2d 545 (1965). "Spot zoning" by definition is now treated as quasi-judicial. See Fasano v. Washington Co. Comm., supra. Roseta and Smith are merely the predecessors of Fasano and are not authority for delineating the scope of review of legislative acts of the nature at issue here. Although not mentioned in the early zoning cases, it is also clear that judicial review of local government and legislative actions encompasses compliance with local government charters and state law. In summary, judicial review of legislative land use decisions is limited to the question of whether the decision complies with the constitution, local government charter, or state statute. Plaintiffs make five contentions, which appear to be directed at these considerations.
(1) Plaintiffs suggest that the change in zoning from R-20 to R-10 constitutes an unconstitutional classification, or is arbitrary in violation of due process. The express finding in the ordinance that there is a need for additional medium-priced housing within the City of Portland satisfies the "minimum rationality" test. See Clackamas County v. Ague, supra.
(2) Plaintiffs contend that since the City has not yet adopted a comprehensive plan, it is precluded by ORS 197.275[4] from making any zone changes. That statute merely *363 provides that comprehensive plans and zoning, subdivision, and other ordinances adopted prior to October 5, 1973, shall remain in effect until revised in accordance with the applicable provisions of Senate Bill 100, Oregon Laws 1973, ch. 80. Plaintiffs suggest that until a plan is adopted, there is a moratorium on all zone changes. To the contrary, ORS 197.275 merely requires that any zone changes made during the period prior to the adoption of the comprehensive plan must generally be in compliance with ORS ch. 197, and in particular with the state-wide planning goals. See Sunnyside Neighborhood v. Clackamas Co. Comm., supra; In the Matter of the Petition of Iris M. Felter and Paul R. Meyer, LCDC Appeal No. 75-003.
(3) Plaintiffs contend that the City failed to comply with former ORS 227.170.[5] It is clear from the definitions of "contested case" and "hearing," as provided in former ORS 227.160,[6] that former ORS 227.170 has no application to a legislative action of the nature at issue here.
(4) Plaintiffs argue that the City displayed "favoritism" toward the applicants in violation of former ORS 227.240(2). That statute required that regulations relating to the height and bulk of buildings and the size of yards and other open spaces "be uniform for each class of buildings throughout each [zoning] district."[7] The zone change ordinance at issue here merely provides for a conditional zone change from R-20 to R-10. We can only discern from *364 the record that the height and bulk of buildings, etc., is governed uniformly by the applicable city zoning ordinances. See, e.g., Portland, Ore., Code § 33.22.010 et seq. (1969). Plaintiffs do not indicate how the alleged favoritism violated former ORS 227.240.
(5) Plaintiffs assert without any specificity that the zone change violates the comprehensive plans of Washington County and the City of Beaverton and "the projections for comprehensive planning" by Multnomah County. The City is solely responsible for land use planning within its boundaries subject to compliance with the state-wide planning goals. ORS 197.175, 197.190, 215.130. Plaintiffs make no contention that the plan violates state-wide planning goals. See In the Matter of the Petition of Iris M. Felter and Paul R. Meyer, supra (holding that the subject zone change conformed to the interim state-wide planning goals, former ORS 215.515). Plaintiffs also contend that the trial court erred in failing to consider evidence of planning actions taken by these three jurisdictions and also the Columbia Region Association of Governments (CRAG) subsequent to enactment of the subject zone change. For the reasons stated above, the evidence concerning Multnomah County, Washington County, and the City of Beaverton is irrelevant. As to CRAG's planning actions, the evidence was irrelevant for the reasons stated in Ruegg v. Clackamas County, 32 Or. App. 77, 573 P.2d 740 (1978).
The demurrer to the declaratory judgment action was properly sustained.[8]
I respectfully dissent.
NOTES
[1] It also follows from the Supreme Court's and our decisions that a land-use proceeding must be quasi-judicial, regardless of the source of the motion for change, if only one interest or a small number of related interests can be affected positively or negatively by the change. See, e.g., Marggi v. Ruecker, 20 Or. App. 669, 533 P.2d 1372, rev. den. (1975), where we held that Fasano's quasi-judicial requirements were applicable to a comprehensive plan amendment initiated by the Hillsboro City Council and affecting "a single small parcel of property * *." 20 Or. App. at 670, 533 P.2d at 1372.
[1] Parcel A consists of 601 acres and parcel B consists of 298 acres. The original application sought to have both parcels rezoned. The ordinance only rezoned parcel A. The applicants gave the City an option to purchase parcel B for purposes of a public park. The option was clearly a consideration in the decision to grant the zone change.
[2] The application of Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973), quasi-judicial standards in this case would lead to inconsistent results. This is illustrated by Joyce v. City of Portland, 24 Or. App. 689, 546 P.2d 1100 (1976), wherein we affirmed the City's rezoning of approximately 842 acres of land which are immediately adjacent to the land at issue here. We held that the City's decision was legislative. The only distinction between Joyce and the present case is that the record there indicated there were several dozen individuals who owned property within the 842 acre tract.
[3] The quotation is from the opening statement by proponents' counsel in the hearing before the City Council which is quoted with favor by both the plaintiffs and the City in their briefs.
[4] ORS 197.275 provides:
"(1) Comprehensive plans and zoning, subdivision, and other ordinances and regulations adopted prior to October 5, 1973, shall remain in effect until revised under ORS 197.005 to 197.430 and 469.350. It is intended that existing planning efforts and activities shall continue and that such efforts be utilized in achieving the purposes of ORS 197.005 to 197.430 and 469.350.
"(2) After the commission acknowledges a city or county comprehensive plan and implementing ordinances to be in compliance with the goals pursuant to ORS chapter 197 and any subsequent amendments to the goals, the goals shall apply to land conservation and development actions and annexations only through the acknowledged comprehensive plan and implementing ordinances unless:
"(a) The acknowledged comprehensive plan and implementing ordinances do not control the action or annexation under consideration; or
"(b) Substantial changes in conditions have occurred which render the comprehensive plan and implementing ordinances inapplicable to the action or annexation.
"(3) As used in this section, `annexation' means the annexation of unincorporated territory by a city pursuant to ORS 222.111 to 222.750 and the formation of an annexation of territory to any district authorized by ORS 451.010 to 451.600.
[5] ORS 227.160 and 227.170 were amended in 1975 subsequent to the adoption of the subject zone change. Former ORS 227.170 provided:
"The city council of a city, by ordinance or rule, shall adopt a procedure for the conduct of hearings. The procedure shall be applicable to all requests for permits and to the determination of contested cases."
[6] Former ORS 227.160 provided:
"As used in ORS 227.160 to 227.180 unless the context requires otherwise:
"(1) `Contested case' means a proceeding in which the legal rights, duties or privileges or specific parties under general rules or policies provided under ORS 227.230, or any ordinance, rule or regulation adopted pursuant thereto, are required to be determined only after a hearing at which specific parties are entitled to appear and be heard.
"(2) `Hearing' means a quasi-judicial hearing, authorized or required by the ordinances and regulations of a city adopted pursuant to ORS 227.230:
"(a) To determine in accordance with such ordinances and regulations if a permit shall be granted or denied; or
"(b) To determine a contested case.
"(3) `Hearings officer' means a planning and zoning hearings officer appointed or designated by a city council under ORS 227.165.
"(4) `Permit' means authority or approval of a proposed use of land for which approval is a matter of discretion and is required pursuant to ORS 227.230, or any ordinance, rule or regulation adopted pursuant thereto, and the term includes, but is not limited to, conditional use, special exceptions, variance, special design zone and other similar permits."
[7] Former ORS 227.240 provided:
"(1) For each district provided for by subsection (1) of ORS 227.230, regulations may be imposed designating the class of use that shall be excluded or subjected to special regulations and designating the uses for which buildings may not be erected or altered, or designating the class of use which only shall be permitted. These regulations shall be designed to promote the public health, safety and general welfare. The council shall give reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values and the direction of building development in accord with a well considered plan.
"(2) The regulations provided for by subsection (2) of ORS 227.230 shall be uniform for each class of buildings throughout each district. The regulations in one or more districts may differ from those in other districts. The regulations shall be designed to secure safety from fire and other dangers and to promote the public health and welfare, and to secure provision for adequate light, air and reasonable access. The council shall pay reasonable regard to the character of buildings erected before May 29, 1919, in each district, the value of the land, and the use to which it may be put to the end that the regulations may promote public health, safety and welfare." (emphasis supplied)
Former ORS 227.230(2) provided:
"The council may place reasonable regulations and limitations upon the height and bulk of buildings erected after May 29, 1919, and regulate and determine the area of yards, courts and other open spaces having due regard of the use and occupancy in such case."
[8] It is technically questionable whether a demurrer will lie in a declaratory judgment action. I address the issue as whether, based upon the arguments made by plaintiffs on appeal, the suit for declaratory judgment should have been dismissed for failure to state grounds for declaratory relief.
|
247 P.3d 331 (2011)
240 Or. App. 490
Thomas W. MOSSBERG, Ph.D., Plaintiff-Appellant,
v.
UNIVERSITY OF OREGON, a public body of the State of Oregon, and Davison Soper, in his individual capacity, Defendants-Respondents, and
Melinda W. Grier, Richard Linton, and John Does 1-5, in their individual capacities, Defendants.
05C20721; A135714.
Court of Appeals of Oregon.
Argued and Submitted October 27, 2009.
Decided February 2, 2011.
*333 Thomas M. Christ, Portland, argued the cause for appellant. With him on the briefs were Julie A. Smith and Cosgrave Vergeer Kester LLP, and J. Channing Bennett and Garrett Hemann Robertson PC.
Erin C. Lagesen, Assistant Attorney General, argued the cause for respondents. With her on the brief were John R. Kroger, Attorney General, and Rolf C. Moan, Acting Solicitor General.
Before ORTEGA, Presiding Judge, and ROSENBLUM, Judge, and LANDAU, Judge pro tempore.
ORTEGA, P.J.
This appeal involves a dispute between the University of Oregon (the University) and plaintiff, who is a former faculty member of the University, over certain personal property. Following his resignation, plaintiff asserted claims against the University for conversion, inverse condemnation, and breach of contract. The trial court dismissed the conversion claim and granted summary judgment to the University on the inverse condemnation and breach of contract claims. For the reasons set forth below, we conclude that, although the trial court properly granted summary judgment in favor of the University with respect to the inverse condemnation claim, it erred in its disposition of plaintiff's conversion and breach of contract claims. We therefore reverse and remand.
The following facts are undisputed. Plaintiff was employed as a physics professor at the University for approximately 17 years. Before that, he was employed as a professor at Harvard University, where certain laboratory equipment was acquired for his use. He brought at least some of that equipment with him when he joined the University faculty.
In 1986, during the process of negotiating the terms and conditions of plaintiff's employment with the University, the University provost sent plaintiff a document captioned "Revised Conditions of Offer to [plaintiff]," which stated, in part:
"If you leave the University of Oregon, you will be able to take with you, at no cost, all equipment purchased on grants for which you were Principal Investigator. The University of Oregon would also recommend to the General Services Department of the State of Oregon that you be allowed to purchase at a fair market value any other equipment obtained to support your research."
Additional equipment was purchased with federal grant funds for plaintiff's use during his employment with the University.
When plaintiff resigned his position with the University in late September 2004, a dispute arose between the parties over plaintiff's entitlement to the laboratory equipment. The University and plaintiff engaged in weeks of negotiations regarding disposition of the equipment but were unable to reach an agreement. Eventually, University employees disassembled the laboratory equipment in the course of moving it, which, *334 according to plaintiff, rendered the equipment worthless. Plaintiff subsequently filed a complaint against the University alleging, among other things, that the equipment that he brought from Harvard was his personal property and that the University converted that property following his resignation. The trial court granted the University's motion to dismiss that claim on the ground that plaintiff was required to assert such a claim via the University's faculty grievance process.
Thereafter, plaintiff filed an amended complaint against the University. This time he alleged, among other things, that the equipment that he brought with him from Harvard was his personal property and that, by virtue of the "Revised Conditions of Offer," the University was contractually obligated to allow him to remove the Harvard equipment and any equipment purchased with federal grants for which he was the principal investigator during his tenure with the University.[1] Plaintiff asserted an inverse condemnation claim against the University on the basis that the University's handling of the laboratory equipment following his resignation amounted to an uncompensated taking for public use in violation of Article I, section 18, of the Oregon Constitution. Plaintiff also asserted that the University breached its contractual obligation by refusing to allow him to take the laboratory equipment following his resignation. The parties filed cross-motions for summary judgment on both those claims. The trial court granted summary judgment to the University, denied plaintiff's motion, and entered judgment for the University. Plaintiff appeals, assigning error to the trial court's dismissal of his conversion claim and grant of the University's motion for summary judgment on his inverse condemnation and breach of contract claims.
I. CONVERSION CLAIM
We begin by addressing the conversion claim. "To state a claim for conversion, a party must establish the intentional exercise of dominion or control over a chattel that so seriously interferes with the right of another to control it that the actor may justly be required to pay the full value of the chattel." Emmert v. No Problem Harry, Inc., 222 Or.App. 151, 159-60, 192 P.3d 844 (2008). Plaintiff alleged in his original complaint that the laboratory equipment that he brought with him from Harvard was his personal property and that the University converted that property when it refused to return it following his resignation.
The University moved to dismiss the conversion claim pursuant to ORCP 21 A(1), contending that the trial court lacked subject matter jurisdiction because "plaintiff's exclusive remedy is under the Administrative Procedure Act, ORS 183.310-.690." According to the University, the exclusive administrative remedy available to plaintiff was the faculty grievance process set forth in OAR chapter 571, division 3. Plaintiff argued in response that, because he was no longer an employee of the University when it converted his property, he was not eligible to participate in the University's faculty grievance process.
The trial court entered an order granting the University's motion to dismiss. In a letter ruling, the court explained:
"Unfortunately for plaintiff, this claim relates to a condition of his employment with the University. Plaintiff's demand and the alleged later conversion are all related to a condition of his employment that existed while he was employed by the University. Consequently, although plaintiff was not an employee at the time of the alleged conversion, because the claim relates to and stem[s] from a condition of his employment with the University, it remains subject to the provisions of the APA. Because the APA provides for review of the University's action, it is the exclusive means for obtaining review of that action. See Bay River, Inc. v. Envtl. Quality Comm'n, 26 Or.App. 717 [554 P.2d 620] (1976). This *335 court lacks jurisdiction over this claim and, accordingly, dismisses this claim with prejudice."
We review the trial court's determination that it lacked jurisdiction over plaintiff's conversion claim for legal error, Longstreet v. Liberty Northwest Ins. Corp., 238 Or.App. 396, 400, 245 P.3d 656 (2010), and conclude that the trial court erred.[2]
The University has adopted grievance procedures to address certain complaints by individuals associated with the University. See OAR ch. 571, div. 3. With regard to complaints brought by faculty members, a grievance is defined as "a complaint by an academic employee that the employee was wronged in connection with compensation, tenure, promotion, or other conditions of employment or the employee's rights were denied as to reappointment." OAR 571-003-0001(1). "Other conditions of employment" include, but are not limited to, "violations of academic freedom, discriminatory employment practices and nondiscriminatory employment practices, and laws, rules, policies and procedures under which the University of Oregon operates." OAR 571-003-0001(2). The University contends that plaintiff's complaint about its treatment of the Harvard equipment qualifies as a complaint that he was wronged in connection with one of the "other conditions of [his] employment" within the meaning of OAR 571-003-0001(2). We assume, without deciding, that the University's characterization is correct.[3] However, plaintiff was not eligible to participate in the grievance process described in OAR chapter 571, division 3, because he was not an employee of the University at the time of the alleged conversion.
The rules applicable to statutory interpretation also apply to the interpretation of administrative rules. Tye v. McFetridge, 199 Or.App. 529, 534, 112 P.3d 435 (2005), aff'd, 342 Or. 61, 149 P.3d 1111 (2006). To discern the intent behind an administrative rule, "[w]e begin by examining the text of the rule within its context. Unless defined otherwise in the rule, we give the words of the rule their ordinary meanings." Id. OAR 571-003-0001(1) defines a grievance to be a complaint by an "employee" that the "employee" has been wronged in certain ways. The term "employee" is not defined, so we give it its common meaning.
An employee is commonly understood to be a person who is employed by another. See Webster's Third New Int'l Dictionary 743 (unabridged ed 2002). If the drafters of OAR chapter 571, division 3, had intended to make the grievance process available to persons other than current employees, they would have stated that the process also was available to a "former" employee or would have replaced the word "employee" with "person" or some other term that is not intrinsically connected to current employment status. In interpreting a rule, we are constrained by the wording actually used and may not insert terms that have been omitted. City of Keizer v. Lake Labish Water Control Dist., 185 Or.App. 425, 431, 60 P.3d 557 (2002), rev. den., 336 Or. 60, 77 P.3d 635 (2003).
*336 As evidence that the grievance process is available to former employees, the University points to OAR 571-003-0001(1), which defines a grievance to include a complaint that an "employee's rights were denied as to reappointment." The problem with the University's argument is that, as the University conceded during oral argument, the rules contemplate that decisions to deny reappointment will be made before the expiration of the term of appointment. See, e.g., OAR 580-021-0305 (describing notice requirements for nonrenewal of appointment of tenured academic staff). Thus, a grievance related to a decision to deny reappointment could be filed while the grievant is still a University employee.
At least two other provisions of OAR chapter 571, division 3, lend contextual support to our determination that the faculty grievance process was not available to plaintiff because he was no longer an employee of the University at the time of the alleged conversion. First, OAR 571-003-0005(1) requires that the written statement by which a faculty member initiates a formal grievance "shall include" the grievant's campus address and campus telephone number. Given that former faculty members do not have campus addresses and phone numbers, the rule clearly contemplates that the faculty grievance process is available only to those individuals who are employed by the University when the pertinent dispute arises.
Second, OAR 571-003-0000(6) provides that prejudicial action shall not be taken against an employee during the time in which a grievance is pending. However, the implementation of any administrative action that is the subject of the grievance, specifically including the "termination or non-renewal of an employee," is deemed not to be a prejudicial act. In the event of such action, OAR 571-003-0000(6)(a) clarifies that, if a timely grievance has been filed, "it shall continue to be processed under these rules regardless of the fact that the grievant may no longer be employed[.]" OAR 571-003-0000(6). That clarification would not be necessary if a former employee was otherwise eligible to initiate a grievance.
Accordingly, for the reasons set forth above, the trial court erred in dismissing plaintiff's conversion claim.
II. INVERSE CONDEMNATION CLAIM
We turn to plaintiff's claim for inverse condemnation, which was disposed of on summary judgment. We review a grant of summary judgment viewing "the facts and all reasonable inferences that may be drawn from the facts in favor of * * * the nonmoving party." Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 638, 20 P.3d 180 (2001).
"Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. A genuine issue of material fact is lacking when `no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.' Id."
Outdoor Media Dimensions Inc., 331 Or. at 638-39, 20 P.3d 180.
Plaintiff contends that the laboratory equipment that he brought from Harvard is his private property. He also maintains that he has a contractual right to any equipment obtained with federal grant money for which he was the principal investigator during the time that he was employed by the University. As explained in more detail below, plaintiff alleges that, after his resignation, the University dismantled the entire laboratory without properly documenting the disassembly process, thereby entirely destroying the value of the equipment. According to plaintiff, the University's action amounts to an uncompensated taking for public use in violation of Article I, section 18, of the Oregon Constitution.
Article I, section 18, of the Oregon Constitution provides, in part, that "[p]rivate property shall not be taken for public use * * * without just compensation[.]" An action, such as this one, "to recover the value of private property that the government has taken without first filing condemnation proceedings is referred to as an action for `inverse *337 condemnation.'" Vokoun v. City of Lake Oswego, 335 Or. 19, 26, 56 P.3d 396 (2002). A plaintiff asserting a claim for inverse condemnation must show that the governmental act alleged to constitute a taking was done with the intent to take the property for public use. Id. at 27, 56 P.3d 396; Worman v. Columbia County, 223 Or.App. 223, 234, 195 P.3d 414 (2008); see also Willard v. City of Eugene, 25 Or.App. 491, 494, 550 P.2d 457 (1976) (an inverse condemnation action is proper only where the government has taken property for a public use).
The University argued, in part, that it was entitled to summary judgment on plaintiff's inverse condemnation claim because it did not take the laboratory equipment with the intent to put that property to public use. The trial court assumed that plaintiff could show that he owned the equipment and "that it was a type of property that could be `taken' pursuant to the takings clause[.]" The court concluded, however, that summary judgment was appropriate because there was no evidence that the University intended to take plaintiff's property for a public use. We agree.[4]
Very shortly after his resignation, plaintiff and various University employees began negotiating the ultimate disposition of his laboratory equipment. Although it is clear that plaintiff consistently represented that he believed that he was entitled to all of the equipment, he also proposed donating the majority of it (approximately 95 percent) to the University in return for certain consideration. To be sure, plaintiff's enthusiasm to do so fluctuated over time as a result of his apparent frustration with the progress of the negotiations. However, those negotiations were ongoing, and both parties entertained the possibility of a donation, as late as the first part of December 2004.
In early November 2004, more than a month after plaintiff's resignation, certain members of the physics department faculty and student body began the process of disassembling plaintiff's laboratory equipment. Davison Soper, who was the head of the University's physics department, decided that plaintiff's equipment needed to be moved so that a new physics department faculty member could occupy the laboratory space in which plaintiff's equipment was located. Soper did not receive permission from anyone in the University's administration office before he authorized moving plaintiff's equipment. In fact, Richard Linton, the Vice President for Research and Graduate Studies at the University, had previously instructed Soper, among others, that none of the equipment should be removed pending the conclusion of the donation negotiations between plaintiff and the University.[5]
At Soper's instruction, Michael Raymer, a physics department professor, supervised, but did not participate in, moving plaintiff's laboratory equipment from the larger portion of the room in which it had been located to a smaller adjacent space. The uncontroverted evidence is that Raymer and at least some of the other faculty members participating in the disassembly process were operating under the assumption that plaintiff had decided to donate the majority of the equipment to the University. Accordingly, they disassembled the laboratory equipment into its component parts, without documenting the process so as to permit reassembly of the laboratory as it was originally constituted. The majority of the component parts of the laboratory equipment were placed in the smaller space designated for short-term storage of plaintiff's equipment. However, unbeknownst to Linton, Grier, or even Soper, Raymer allowed some small number of the component pieces to be *338 distributed to or to be used by other faculty members.[6]
Plaintiff contends that the University intended to take his property for public use because Soper decided to move the equipment to advance a public purpose-that is, freeing up laboratory space for the new professor. We disagree. The notion that "public use" equates to "public benefit" in the context of a claim under Article I, section 18, of the Oregon Constitution has been rejected. Port of Umatilla v. Richmond et al, 212 Or. 596, 610, 321 P.2d 338 (1958); Foeller v. Housing Authority of Portland, 198 Or. 205, 233, 256 P.2d 752 (1953). The term "public use" in this context "means a more intimate relationship between the public and an item of property which has been acquired * * * than is denoted by terms such as `public benefit' and `public utility'. `Public use' demands that the public's use and occupation of the property must be direct." Foeller, 198 Or. at 233, 256 P.2d 752. A plaintiff asserting an inverse condemnation claim must show that the government took private property intending to put that property to public use. Here, to the extent that the decision to disassemble plaintiff's laboratory equipment resulted in a taking of his property, the intent was to make use of the physical space formerly occupied by plaintiff's laboratory equipment. That physical space is public property, not plaintiff's private property. We conclude that the University's goal of freeing up laboratory space for use by another professor does not constitute a public use sufficient to support an inverse condemnation claim under Article I, section 18, of the Oregon Constitution.[7]
Plaintiff also argues that the University intended to take his property for public use because "some pieces of equipment were distributed to other university professors" and used by them. The problem with that argument is that plaintiff does not identify, and we are not aware of, any evidence to support plaintiff's contention that the University took his property with the intent to improve the laboratories of its other professors. The University, through Linton, directed that plaintiff's laboratory equipment remain untouched pending resolution of the parties' negotiations regarding a possible donation. Neither the disassembly of plaintiff's laboratory nor the limited distribution of its component parts was authorized by University administration. Indeed, there is no evidence that a single member of the University's administration was even aware of any such activity until after plaintiff initiated this lawsuit.
It is true that Soper authorized moving the laboratory equipment, but he did so in contravention of Linton's directive. Consequently, we are not persuaded that Soper's authorization can be attributed to the University for purposes of analyzing whether the University intended to take plaintiff's property for public use. See Eminent Domain, 27 Am. Jur. 2d § 750 (2004) (a state and its departments cannot be held liable for negligent or ultra vires acts of its officers). In any event, even if we were to assume that Soper's decision to move the equipment in violation of his superior's directive to the contrary could somehow be attributed to the University, there is no evidence that Soper intended to take plaintiff's property for a public use when he authorized moving it. Rather, his direction to Raymer aimed to make room for the new professor.[8] Soper *339 did not dictate the manner in which the equipment was to be moved or authorize use of any of it.
Plaintiff is correct that direct proof of the government's intent to take private property for public use is not necessary; the requisite intent may be inferred in certain circumstances. See, e.g., Vokoun, 335 Or. at 29, 56 P.3d 396 ("A factfinder may infer the intent to take from the governmental defendant's action if * * * the natural and ordinary consequence of that action was the substantial interference with property rights."). Plaintiff's inverse condemnation action is premised on his allegation that the disassembly of the laboratory equipment destroyed the value of the equipment and, thus, substantially interfered with his rights in that property. However, plaintiff does not argue, much less provide any evidence, that the natural and ordinary consequence of the disassembly of the equipment was the destruction of its value. Rather, plaintiff's position is that the value of the equipment would have been preserved if the disassembly process had been properly documented.
The fact that a few University employees may have negligently disassembled plaintiff's laboratory or intentionally exercised control over a small number of its component pieces does not support an inference that the University took plaintiff's property with the intent to put that property to public use. A government employee's negligent or intentionally tortious conduct does not form the basis for an inverse condemnation claim.[9]Worman, 223 Or.App. at 236, 195 P.3d 414. Inferring the requisite intent would be especially unreasonable in light of the undisputed evidence that plaintiff's laboratory equipment was disassembled and, to a very limited extent, used by rank-and-file employees acting contrary to the official directive of the University. Further, at least some of the individuals involved were operating on the assumption that plaintiff ultimately would donate the vast majority of the equipment to the University.[10] It simply is not reasonable to infer from those facts that any of the individual employees, much less the University, intended to take plaintiff's property for public use within the meaning of Article I, section 18, of the Oregon Constitution.
Plaintiff does not identify any evidence in the summary judgment record from which a reasonable juror could infer that the University intended to take his property for public use. Therefore, the trial court did not err in granting summary judgment to the University on plaintiff's inverse condemnation claim.
III. BREACH OF CONTRACT CLAIM
We turn, finally, to plaintiff's breach of contract claim. Plaintiff alleges that he had a contractual right to the laboratory equipment that he brought with him from Harvard and to the equipment purchased with federal grants for which he was the principal investigator during his tenure at the University. The trial court granted the University's motion for summary judgment on plaintiff's breach of contract claim and denied plaintiff's cross-motion.[11]
*340 With regard to the Harvard property, the trial court concluded that summary judgment in favor of the University was appropriate because "the contract on which plaintiff relies for the authority to take that equipment in no way addresses the status of that equipment."[12] The court also concluded that, even if the purported contract did address the Harvard equipment, the University ultimately fulfilled its obligations under the contract by offering to transfer that equipment to plaintiff. Plaintiff's arguments on appeal focus solely on the equipment obtained under federal grants, and we focus our analysis accordingly.
With regard to the equipment obtained using federal grant funds during plaintiff's employment by the University, the University contended that any duty it had to transfer that equipment should be excused, because performance of that obligation would require it to violate federal and state regulations, 2 CFR section 215.34 and OAR 580-040-0310(2), respectively. "The general rule is that an agreement may not be enforced if it is illegal."[13]Mayfly Group, Inc. v. Ruiz, 208 Or.App. 219, 222, 144 P.3d 1025 (2006), rev. den., 342 Or. 344, 153 P.3d 123 (2007). The trial court ruled that, although performance of the contract would not violate 2 CFR section 215.34, it would violate OAR 580-040-0310(2). The trial court accordingly held that "the University is discharged from its duty to perform the contract as to all of the equipment acquired after plaintiff arrived at the University." Plaintiff argues on appeal that the trial court erred in deciding that performance of the alleged contract would violate state law. The University argues that summary judgment was correctly granted because the alleged contract was unenforceable under federal and state law. We conclude that the trial court erred in granting summary judgment to the University because the record does not include undisputed evidence from which the trial court could determine if performance of the contract would require the University to violate either the federal or the state regulations cited to the trial court.
The administrative rules of the Oregon University System provide that "[f]ederally funded property will be disposed of in accordance with applicable federal law or federal grant terms, if any. Otherwise, such property will be disposed of in accordance with these rules, or institution rules adopted hereunder." OAR 580-040-0306. The parties agree that the applicable federal law is set forth in 2 CFR section 215.34 (2010), and we begin our analysis with that provision.[14]
Title to equipment acquired with federal funds vests in the recipient university under 2 CFR section 215.34(c), subject to certain conditions, which include the following:
*341 "The recipient shall use the equipment in the project or program for which it was acquired as long as needed, whether or not the project or program continues to be supported by Federal funds and shall not encumber the property without approval of the Federal awarding agency. When no longer needed for the original project or program, the recipient shall use the equipment in connection with its other federally-sponsored activities, in the following order of priority:
"(1) Activities sponsored by the Federal awarding agency which funded the original project, then
"(2) Activities sponsored by other Federal awarding agencies."
2 CFR § 215.34(c). When the equipment is no longer needed for the original project or program for which it was acquired, or in connection with the recipient's "other federally-sponsored activities," the disposition of the equipment is governed by 2 CFR section 215.34(g), which provides, in part:
"When the recipient no longer needs the equipment, the equipment may be used for other activities in accordance with the following standards. For equipment with a current per unit fair market value of $5000 or more, the recipient may retain the equipment for other uses provided that compensation is made to the original Federal awarding agency or its successor. * * * If the recipient has no need for the equipment, the recipient shall request disposition instructions from the Federal awarding agency. The Federal awarding agency shall determine whether the equipment can be used to meet the agency's requirements. If no requirement exists within that agency, the availability of the equipment shall be reported to the General Services Administration by the Federal awarding agency to determine whether a requirement for the equipment exists in other Federal agencies. The Federal awarding agency shall issue instructions to the recipient no later than 120 calendar days after the recipient's request and the following procedures shall govern.
"(1) If so instructed or if disposition instructions are not issued within 120 calendar days after the recipient's request, the recipient shall sell the equipment and reimburse the Federal awarding agency an amount computed by applying to the sales proceeds the percentage of Federal participation in the cost of the original project or program. However, the recipient shall be permitted to deduct and retain from the Federal share $500 or ten percent of the proceeds, whichever is less, for the recipient's selling and handling expenses.
"(2) If the recipient is instructed to ship the equipment elsewhere, the recipient shall be reimbursed by the Federal Government by an amount which is computed by applying the percentage of the recipient's participation in the cost of the original project or program to the current fair market value of the equipment, plus any reasonable shipping or interim storage costs incurred.
"(3) If the recipient is instructed to otherwise dispose of the equipment, the recipient shall be reimbursed by the Federal awarding agency for such costs incurred in its disposition.
"(4) The Federal awarding agency may reserve the right to transfer the title to the Federal Government or to a third party named by the Federal Government when such third party is otherwise eligible under existing statutes."
The trial court held that the University could have satisfied its alleged contractual obligation to plaintiff in compliance with 2 CFR section 215.34(g) "by purchasing any equipment with a fair market value of over $5000 and transferring title of that equipment to plaintiff, and seeking permission from the awarding agency to transfer to LightSmyth the equipment having a fair market value of under $5000."[15] Even assuming that the trial court was correct in its determination that the stated actions would be consistent with the disposition standards detailed in 2 CFR section 215.34(g)(1)-(4), *342 and we harbor some doubt about that question, the disposition provisions of 2 CFR section 215.34(g) only come into play if the recipient "no longer needs" the property. The University has not identified, nor are we aware of, any evidence tending to show that the equipment is no longer needed for the original project or program for which it was acquired by the University or in connection with the University's federally sponsored activities. To the contrary, as we have already discussed in connection with our analysis of plaintiff's inverse condemnation claim, there is evidence that some of the equipment was actually used by members of the University's physics department. It is reasonable to infer from that evidence that the University needed at least some of the equipment at issue after plaintiff's resignation. Therefore, we conclude that the trial court erred in ruling that the University could, as a matter of fact, perform its alleged obligation under the contract in a manner consistent with the requirements of 2 CFR section 215.34. The University was not entitled to summary judgment as to that issue, because there is a disputed issue of material fact as to whether or not the University could perform its alleged contractual obligation consistently with federal requirements.
We next turn to the question of whether, as plaintiff contends, the trial court erred in granting summary judgment to the University based on its determination that the University would be required to violate state law if the alleged contract between the parties were enforced. For reasons similar to those discussed immediately above, we conclude that there is insufficient evidence in the record to support the trial court's determination that performance of the alleged contract by the University necessarily violated state law.
The administrative rules in OAR chapter 580, division 40, govern the disposal of surplus property by institutions of higher education in Oregon. OAR 580-040-0300. The trial court granted summary judgment on the basis that transferring the laboratory equipment to plaintiff would "violate OAR 580-040-0310(2), which prohibits an institution that is disposing [of] surplus equipment from giving to a current or former employee any benefit or opportunity not given to the general public."[16] The problem with the trial court's analysis is that the record on appeal does not support the trial court's implicit assumption that the equipment at issue qualifies as "Surplus Property" within the meaning of OAR chapter 580, division 40.
"Surplus Property" is defined as "all personal property * * * that is worn-out, obsolete or excess to * * * an institution's needs, or otherwise unsuitable for intended use, the disposal of which would be to the financial benefit of the institution * * *." OAR 580-040-0301(8). The University has identified no evidence in the record establishing, as a matter of law, that the equipment at issue was "worn-out, obsolete or excess to" its needs or that it was "otherwise unsuitable for [its] intended use." Accordingly, the trial court erred in granting summary judgment to the University on the basis that performance of the alleged contract necessarily violated OAR 580-040-0310(2).
Finally, the University argues that, even if its performance is not excused on the basis of illegality, we should affirm on the ground that it fully complied with its obligations under the contract when it ultimately offered to allow plaintiff to take all of the equipment that he had indicated he wanted to take. Although the University presented this argument to the trial court, the trial court did not address it in granting summary judgment. There are genuine issues of material fact that preclude us from affirming on the basis that the University fully discharged its obligations under the contract. For example, the parties dispute whether the University timely offered to allow plaintiff to take the pertinent equipment. Plaintiff maintains that he rescinded his offer to donate a majority of the equipment and that the University's offer was rendered "worthless" by the manner in which the laboratory equipment was disassembled. Accordingly, *343 we decline the University's invitation to affirm on a basis that was not addressed by the trial court.
Judgment on claims for conversion and breach of contract reversed and remanded; otherwise affirmed.
NOTES
[1] Plaintiff also asserted additional claims against the University and certain individual defendants associated with the University in his original and amended complaints. Those additional claims have been resolved in disputed proceedings before the trial court and by agreement of the parties. Only the trial court's disposition of the conversion, inverse condemnation, and breach of contract claims is directly at issue in this appeal.
[2] There is a "general rule of administrative law that as to matters within the jurisdiction of an administrative agency, judicial review is only available after the procedure for relief within the administrative body itself has been followed without success." Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 661, 20 P.3d 180 (2001) (internal quotation marks and brackets omitted). However, the APA does not provide for judicial review of every agency order. This court has held, on at least one occasion, that the State Board of Education's final disposition of an employee's grievance does not yield an order subject to judicial review within the meaning of ORS 183.310. See Gruszczynski v. Board of Higher Education, 106 Or.App. 260, 806 P.2d 1168 (1991). The trial court and the parties assumed that the University's grievance process, where it is applicable, ultimately yields an order that is subject to judicial review. We express no opinion as to the accuracy of that assumption.
[3] OAR 571-003-0003(1) provides that "[t]he faculty grievance procedure * * * may be utilized" to hear the described types of employment related complaints. (Emphasis added.) In addition, OAR 571-003-0000(7) provides that, if the grievant has filed a lawsuit "arising out of actions, omissions, decisions, events or policies which are the subject of a pending grievance or a grievance contemporaneously presented, the University may, in its sole discretion, decline to continue with or to entertain the grievance." We express no opinion as to whether the grievance procedures, where they are available, are mandatory.
[4] Like the trial court, we assume, without deciding, that all of the other requirements of an inverse condemnation claim are satisfied, including that plaintiff has an ownership interest in the laboratory equipment at issue. The University's attorney conceded during the summary judgment hearing that, at least for purposes of analyzing its motion for summary judgment on plaintiff's inverse condemnation claim, plaintiff owned the Harvard property.
[5] According to the concise statement of material facts filed by plaintiff in connection with his cross-motion for summary judgment, Melinda Grier, then the University's general counsel, issued a similar edict prior to commencement of the laboratory equipment disassembly.
[6] The University also argued that it was entitled to summary judgment on plaintiff's inverse condemnation claim because none of the individuals involved in the disassembly of the laboratory equipment had express authority to exercise eminent domain powers on behalf of the University. The University concedes on appeal that the trial court erred to the extent that it found that argument to be persuasive. See Boise Cascade Corp. v. Board of Forestry (S42159), 325 Or. 185, 201-02, 935 P.2d 411 (1997) (a property owner is not required to prove the existence of express eminent domain authority as an element of an inverse condemnation claim). "An inverse condemnation occurs when a governmental entity effectively takes property without actually exercising its power of eminent domain." Dept. of Transportation v. Hewett Professional Group, 321 Or. 118, 130, 895 P.2d 755 (1995).
[7] "[W]hat is a public use is always a question of law for judicial determination." Port of Umatilla, 212 Or. at 611, 321 P.2d 338.
[8] In his amended complaint, plaintiff asserted First Amendment and Due Process claims under the United States Constitution against certain individuals associated with the University. The trial court granted summary judgment against plaintiff on those claims, concluding that there was "uncontradicted" evidence that plaintiff's laboratory equipment was moved to provide space for the new faculty member and that plaintiff had provided no evidence that the University's stated purpose was mere pretext. Plaintiff has not challenged the entry of summary judgment in favor of the individual defendants.
[9] Plaintiff's attorney appeared to concede at the hearing on the cross-motions for summary judgment that some of the equipment needed to be used to be properly maintained. We do not imply any determination that the manner in which the laboratory equipment was disassembled was, in fact, negligent or that the individuals involved in that process engaged in tortious conduct.
[10] As we have already noted, plaintiff and various University employees were discussing the possibility of a donation when the disassembly process began. Moreover, before the disassembly process commenced, plaintiff appointed a representative who, along with Raymer, inspected the then-intact laboratory and designated those items that plaintiff wished to take and those that he, at least conditionally, intended to donate.
[11] Plaintiff assigns error to the entry of summary judgment in favor of the University. He does not argue that the trial court erred in denying his motion for summary judgment.
[12] Although the trial court held that plaintiff did not have a contractual right to the Harvard property, it acknowledged that plaintiff was not foreclosed from asserting an actual ownership interest in that property.
[13] That general rule is subject to exception. See, e.g., Perla Development Co. v. Pacificorp, 82 Or. App. 50, 54, 727 P.2d 149 (1986), rev. den., 303 Or. 74, 734 P.2d 354 (1987) (a party may agree to assume the risk of paying damages in the event of a supervening illegality). We assume, without deciding, that none of those exceptions applies here and that the trial court was correct to excuse the University from performing its alleged obligation to transfer the equipment to plaintiff if performance of that duty would require the University to violate either or both of the regulations at issue.
The University did not assert illegality as an affirmative defense in its answer to the amended complaint, as required by ORCP 19 B. However, plaintiff did not object to entry of summary judgment in the trial court on that basis and does not raise that issue on appeal. Plaintiff thus failed to preserve any such objection. Secor Investments, LLC v. Anderegg, 188 Or.App. 154, 170, 71 P.3d 538, rev. den., 336 Or. 146, 82 P.3d 162 (2003).
[14] 2 CFR Part 215 sets forth the uniform administrative requirements for federal grants to specified types of entities, including institutions of higher education. The provisions of 2 CFR Part 215 were not promulgated until May 2004, shortly before plaintiff's resignation from the University. Prior to that date, the disposition of property funded with federal grants was governed by Office of Management and Budget Circular A-110. The University contends, and plaintiff does not dispute, that the material provisions of the earlier circular were the same as 2 CFR Part 215. See 2 CFR § 215.0(e) ("The guidance in this part previously was issued as OMB Circular A-110. Subparts A through D of this part contains the guidance that was in the attachment to the OMB circular.").
[15] LightSmyth Technologies, Inc., is a private company cofounded by plaintiff which conducts research funded, at least in part, by federal grants.
[16] OAR 580-040-0310(2) provides that "[n]o current or former employee or agent for such will be granted any benefit or opportunity not granted the general public in acquisition of items through the disposal process."
|
85 U.S. 589 (1873)
18 Wall. 589
BULLARD
v.
BANK.
Supreme Court of United States.
*593 Mr. C.B. Goodrich, contra.
Mr. Justice STRONG delivered the opinion of the court.
The extent of the powers of National banking associations is to be measured by the act of Congress under which such associations are organized. The fifth section of that act enacts that the articles of association "shall specify in general terms the object for which the association is formed, and may contain any other provisions, not inconsistent with the provisions of this act, which the association may see fit to adopt for the regulation of the business of the association and the conduct of its affairs." And the eighth section of the same act empowers the board of directors "to define and regulate by by-laws, not inconsistent with the provisions of this act, the manner in which its stock shall be transferred." There are other powers conferred by the act, but unless these confer authority to make and enforce a by-law giving a lien on the stock of debtors to a banking association, very plainly it has not been given.
*594 What, then, were the intentions of Congress respecting the powers and rights of banking associations? The act of 1864 was enacted as a substitute for a prior act, enacted February 25th, 1863, and in many particulars the provisions of the two acts are the same. But the earlier statute, in its thirty-sixth section, declared that no shareholder in any association under the act should have power to transfer or sell any share held in his own right so long as he should be liable, either as principal debtor, surety, or otherwise, to the association for any debt which had become due and remained unpaid.
This section was left out of the substituted act of 1864, and it was expressly repealed. Its repeal was a manifestation of a purpose to withhold from banking associations a lien upon the stock of their debtors. Such was the opinion of this court in Bank v. Lanier.[*] In that case it appeared that a bank had been organized under the act of 1863, and that it had adopted a by-law, which had not been repealed, that the stock of the bank should be assignable only on its books, subject to the provisions and restrictions of the act of Congress, among which provisions and restrictions was the one contained in the thirty-sixth section, that no shareholder should have power to sell or transfer any share so long as he should be liable to the bank for any debt due and unpaid. And when the bank was sued for refusing to permit a transfer of stock, it set up, in defence, that the stockholder was indebted to it, and that under the by-law he had no right to make the transfer. But this court said, "Congress evidently intended, by leaving out of the act of 1864 the thirty-sixth section of the act of 1863, to relieve the holders of bank shares from the restrictions imposed by that section. The policy on the subject was changed, and the directors of banking associations were, in effect, notified that thereafter they must deal with their shareholders as they dealt with other people. As the restrictions fell so did that part of the by-law relating to the subject fall with them." *595 But this could have been only because the restriction was regarded as inconsistent with the policy and spirit of the act of 1864. It cannot truly be said that the by-law was founded upon the thirty-sixth section, though it doubtless referred to that section. It was not in that the power to make by-laws was given. The eleventh section was the one which authorized associations to make by-laws, not inconsistent with the provisions of the act, for the management of their property, the regulation of their affairs, and for the transfer of their stock; and that was substantially re-enacted in the act of 1864. Moreover, the sixty-second section of the latter act, while repealing the act of 1863, enacted that the repeal should not affect any appointments made, acts done, or proceedings had, or the organization, acts, or proceedings of any association organized, or in the process of organization under the act aforesaid, and gave to such associations all the rights and privileges granted by the act, and subjected them to all the duties, liabilities, and restrictions imposed by it. It is, therefore, manifest that it was not the repeal of the thirty-sixth section which caused the by-law to fall. It fell because it was considered a regulation inconsistent with the new Currency Act, the policy of which was to permit no liens in favor of a bank upon the stock of its debtors. It is impossible, therefore, to see why the decision in the case of The Bank v. Lanier does not require that the certified question should be answered in the negative.
An attempt was made in the argument to distinguish that case from the present by the fact that the articles of association of the Eagle Bank contain the provision to which we have referred, namely, that the directors should have the power to make by-laws which may prohibit the transfer of stock owned by any stockholder, who may be a debtor to the association, without the consent of the board, a provision which, it is said, the associates were justified in making by the fifth section of the act of 1864. The argument is that, though the act of Congress does not itself create a lien on a debtor's stock (as did the act of 1863), it does by the words of its fifth section authorize the creation of such a lien by *596 the articles of association, and by by-laws made under them. This leads to the inquiry whether the fifth section does authorize any provision in the articles of association that by-laws may be made prohibiting the transfer of stock of debtors to a bank, for if it does not the foundation of the argument is gone. Certainly there is no express grant of authority to make such a prohibition contained in that section. There is no specification of such a power. And if such a grant could be implied from the words used by Congress, the implication would be in direct opposition to the policy indicated by the repeal of the thirty-sixth section of the act of 1863, and the failure to re-enact it, as well as by the provisions of the thirty-fifth section, which prohibit loans and discounts by any bank on the security of the shares of its own capital stock, and prohibit also every bank from purchasing or holding any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith. Surely an implication is inadmissible which contradicts either the letter or the spirit of the act. Surely when the statute has prohibited all express agreements for a lien in favor of a bank upon the stock of its debtors, there can be no implication of a right to create such a lien from anything contained in the fifth section. But were there no such policy manifest in the act, the words of the fifth section would not bear the meaning attributed to them. The articles of association required by that section to be entered into must specify in general terms the object for which the association is formed, and may contain any other provisions, not inconsistent with the provisions of the act, which the association may see fit to adopt for the regulation of its business and the conduct of its affairs. To us it seems that a by-law giving to the bank a lien upon its stock, as against indebted stockholders, ought not to be considered as a regulation of the business of the bank or a regulation for the conduct of its affairs. That Congress did not understand the section as extending to the subject of stock transfers is very evident in view of the fact that in another part of the statute express provision was made for such transfers. *597 The eighth section empowers the board of directors of every banking association to define and regulate by by-laws, not inconsistent with the provisions of the act, the manner in which its stock shall be transferred. This would be superfluous if the power had been previously given in the fifth section. That Congress considered it necessary to make such an enactment is convincing evidence that they thought it had not elsewhere been made. Whatever power, therefore, the directors of a bank possess to regulate transfers of its stock, they derive, not from the fifth section of the act, and not from the articles of association, but from the eighth and twelfth sections by express and direct grant. It cannot, therefore, be maintained that the present case is not governed by the decision made in Bank v. Lanier, because the articles of association for the Eagle Bank authorized the directors to make a by-law restricting the transfer of stock. In that case there was a by-law prohibiting the transfer, as in this. Independent of the thirty-sixth section of the act of 1863, there was as much authority to make and enforce such a by-law as is given by the act of 1864. The eleventh and twelfth sections of the act of 1863 enacted that associations formed under it might make by-laws, not inconsistent with the laws of the United States or the provisions of the act, for the transfer of their stock, and that the stock should be transferable on the books of the association "in such manner as might be prescribed in the by-laws or articles of association." These powers given to the associates under that act are quite as large as those given by the act of 1864. Yet this court held that after the passage of the latter act a by-law giving a lien upon a debtor's stock was inconsistent with its provisions and invalid. Of course, if the act destroyed an existing by-law, it must prevent the adoption of a new one to the same effect.
We hold, therefore, on the authority of Bank v. Lanier, that the first question certified must be answered in the negative, and consequently the same answer must be given to the other two questions.
ANSWERED IN THE NEGATIVE.
*598 Mr. Justice CLIFFORD, dissenting:
I dissent from the judgment and opinion of the court in this case for the reasons assigned in the opinion delivered by me in the case of Knight et al. v. Bank, decided in the Circuit Court, Rhode Island District, June Term, 1871, which I still believe to be correct, and consequently refer to that case as a full expression of the reasons of my dissent in the present case.
NOTES
[*] 11 Wallace. 369.
|
324 F.3d 518
Kathleen ZILIAK, Plaintiff-Appellant,v.ASTRAZENECA LP and ASTRAZENECA AB, Defendants-Appellees.
No. 02-3446.
United States Court of Appeals, Seventh Circuit.
Argued February 28, 2003.
Decided March 31, 2003.
C. Richard Martin (argued), Martin & Martin, Boonville, IN, for Plaintiff-Appellant.
Bonnie L. Gallivan, L.A. Whaley (argued), Ice Miller, Indianapolis, IN, for Defendant-Appellee.
Before POSNER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
1
Kathleen Ziliak suffers from bronchial asthma. To treat her disease, her physician, Dr. Frank Amodio, prescribed Pulmicort Turbuhaler ("Pulmicort"), an inhaled corticosteroid manufactured by AstraZeneca LP.1 Following clinical studies conducted in 1996 and 1997, AstraZeneca determined that on rare occasions Pulmicort users developed glaucoma, cataracts, and increased intraocular pressure. As a result, AstraZeneca issued package inserts warning that "rare instances of glaucoma, increased intraocular pressure, and cataracts have been reported following the inhaled administration of corticosteriods." Although he was aware of AstraZeneca's warnings and of the risks of using Pulmicort to treat asthma, Dr. Amodio decided to prescribe Pulmicort to Ziliak because, in his view, the benefits of using the drug outweighed the risks. Ziliak began using Pulmicort in January 1998. The following month, she informed Dr. Amodio that she was "doing great" and had stopped coughing as a result of her asthma. In July, Ziliak saw Dr. Amodio again and reported that she had run out of Pulmicort and that she had started wheezing and having difficulty breathing again. Dr. Amodio decided that Ziliak should continue taking Pulmicort, and gave her a refill for her inhaler. Ziliak did not see Dr. Amodio again.
2
In November 1998, after a routine eye exam, Ziliak received the unfortunate news that she had developed severe glaucoma, cataracts, and high intraocular pressure. Following this diagnosis, Ziliak brought this products liability action against AstraZeneca in state court, alleging that AstraZeneca had failed to adequately warn of the risks of developing glaucoma, cataracts, and high intraocular pressure after using Pulmicort, and that the lack of adequate warnings rendered Pulmicort a defective or unreasonably dangerous product. Because the parties are diverse (Ziliak is a citizen of Indiana; AstraZeneca AB is incorporated and has its principal place of business in Sweden; AstraZeneca LP is a limited partnership with citizenship in Sweden, Delaware, and New York) and the amount in controversy exceeds $75,000, AstraZeneca removed the action to federal court. It then moved for summary judgment, arguing, among other things, that the firm could not be held liable for Ziliak's injuries under Indiana's "learned intermediary doctrine," and that the warning accompanying Pulmicort was adequate as a matter of law.
3
After receiving several extensions of time to respond to AstraZeneca's motion for summary judgment, Ziliak filed a response in which she argued that genuine issues of material fact existed concerning whether the warnings were adequate. In support, she tendered an affidavit from her medical expert witness, Dr. Donald Marks. Dr. Marks asserted that he was "aware of case reports and also two small studies of the incidence of glaucoma and cataracts with inhaled steroids, indicating a small, but not what I would try to minimize and dismiss as a rare risk," but opined that the studies were neither adequate in size nor in design to reasonably estimate the risk of developing the adverse side effects. These observations led him to conclude that "the information made available [to a prescribing physician] about the side effects of glaucoma and cataracts related to the use of inhaled corticosteroids was insufficient to warn him adequately of the risk of those side effects." He further concluded that "the information provided to the prescribing physician needs to state that there is a causal relationship between the use of Pulmicort and development of cataracts and glaucoma, that monitoring is necessary for development of these problems, and that cessation of inhaled steroid use needs to be considered, as part of any changing therapeutic regimen."
4
The district court found that Dr. Marks' testimony was inadequate because he had not sufficiently established his expertise. The court noted that in discussing the "case reports" and "two small studies," Dr. Marks had failed to mention when the reports and studies were made or published, and that he had failed to mention the results of the studies. But instead of rejecting Dr. Marks' testimony outright, the district court gave Ziliak 30 days to submit additional affidavits establishing his qualifications. The order was dated June 5, 2002. Ziliak tendered the supplemental affidavit on July 9. AstraZeneca then objected to Ziliak's submission on timeliness grounds and asked the district court to rule on its summary judgment motion. The district court rejected Dr. Marks' supplemental affidavit as "clearly late." The court then entered summary judgment in favor of AstraZeneca, concluding that the firm was shielded by Indiana's learned intermediary doctrine, that without Dr. Marks' testimony Ziliak had identified no evidence suggesting that AstraZeneca's warnings were inadequate, and that even if Dr. Marks' testimony was considered, the warning accompanying Pulmicort was consistent with his opinion of what the warning should have said.
5
Ziliak appeals, contending that the district court abused its discretion in rejecting her evidentiary submission as untimely, that genuine issues of material fact exist concerning whether the warnings accompanying Pulmicort were inadequate, and that the district court misapplied the law. We review de novo the district court's order granting summary judgment, viewing the facts and making all reasonable inferences that flow from them in the light most favorable to the non-moving parties. Nelson v. Sandoz Pharm. Corp., 288 F.3d 954, 962 (7th Cir.2002). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact for trial and that the moving parties are entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). We review the district court's decision to disregard an affidavit submitted in support of summary judgment for abuse of discretion. Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir.1998).
6
At the outset, we think it worth noting that a party's failure to comply with summary judgment evidentiary requirements is traditionally remedied not by dismissing the case, but by excluding the non-conforming submission and deeming the opposing party's proposed findings of fact admitted and then determining whether those facts entitle the moving party to judgment as a matter of law. E.g., Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 992 (7th Cir.2002); Hedrich v. Bd. of Regents of Univ. of Wis. Sys., 274 F.3d 1174, 1178 (7th Cir.2001); Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). That said, even if we ignore the untimeliness of Ziliak's submission and consider Dr. Marks' testimony, we can discern no genuine issue of material fact for trial.
7
Under Indiana law, manufacturers are strictly liable to consumers for injuries caused by defective or unreasonably dangerous products placed in the stream of commerce. Ind.Code § 34-20-2-1; Moss v. Crosman Corp., 136 F.3d 1169, 1171 (7th Cir.1998). Indiana recognizes, however, that some products such as pharmaceuticals are "unavoidably unsafe" in that they are incapable of being made completely safe for their intended or ordinary use. "Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous." Ortho Pharm. Corp. v. Chapman, 180 Ind.App. 33, 388 N.E.2d 541, 545-46 (1979) (quoting Restatement (Second) of Torts § 402A cmt. K (1965)). The duty to provide adequate warnings arises only when the manufacturer knows or should know of a risk posed by the product, and, in cases involving drugs available only by prescription, extends only to the medical profession, not the consumer. See id. at 548. Accordingly, AstraZeneca is absolved of strict liability so long as it has imparted adequate warnings to treating physicians. See Phelps v. Sherwood Medical Indus., 836 F.2d 296, 299 (7th Cir.1987). A warning is adequate if it is reasonable under the circumstances. Ortho, 388 N.E.2d at 549.
8
The warning accompanying Pulmicort stated that "rare instances of glaucoma, increased intraocular pressure, and cataracts have been reported following the inhaled administration of corticosteriods." Dr. Marks opined that, at a minimum, AstraZeneca should have warned that there exists a "causal relationship between use of Pulmicort and development of cataracts and glaucoma, that monitoring is necessary for development of these problems, and that cessation of inhaled steroid use needs to be considered, as part of any changing therapeutic regimen." We fail to see any inconsistency between what Dr. Marks believes that AstraZeneca should have said and what AstraZeneca actually said. If a pharmaceutical manufacturer warns doctors that specific adverse side effects are associated with the use of a drug, then a causal relationship between use of the drug and development of potential side effects is implicit in the warning, as is the doctor's need to monitor the patient and to consider alternative therapies. Here Ziliak does not dispute that Dr. Amodio was aware of AstraZeneca's warnings, and that he took the risks that Ziliak would develop adverse side effects into account when prescribing Pulmicort. Ziliak therefore has not identified any evidence demonstrating the existence of a triable question of fact whether the warnings accompanying Pulmicort were inadequate.
9
The judgment of the district court is AFFIRMED.
Notes:
1
The other appellee, AstraZeneca AB, distributes Pulmicort in the United States; we will refer to the two appellees simply as "AstraZeneca."
|
37 F.Supp.2d 1127 (1999)
John ROE, Plaintiff,
v.
CITY OF MILWAUKEE, Defendants.
No. 98-C-462.
United States District Court, E.D. Wisconsin.
February 23, 1999.
Mary M. Gundrum, Legal Aid Society of Wisconsin, Milwaukee, WI, for plaintiff.
Susan E. Lappen, Assistant City Attorney, Milwaukee, WI, for defendant.
DECISION and ORDER
MYRON L. GORDON, District Judge.
This civil rights action under 42 U.S.C. § 1983, was originally filed by the plaintiff in the circuit court for Milwaukee County on April 30, 1998. The complaint named the city of Milwaukee, ["the City"], Officer Wawryzmiakowski, and "Other Unnamed Police Officers." On May 20, 1998, the defendants removed the action to federal court pursuant to 28 U.S.C. § 1441(a) and (b). By order of November 2, 1998, I dismissed the federal claims against the individual defendants and remanded all of the state law claims to state court. Roe v. City of Milwaukee, 26 F.Supp.2d 1119 *1128 (E.D.Wis.1998). Thus, the only claims that remain in this case are the federal claims against the City.
Presently before the court are the following motions: (1) the plaintiff's "Motion to Proceed Anonymously and for a Protective Order"; and (2) the plaintiff's "Motion to Seal Certificate of Interest." The first motion will be granted in part and denied in part, and the later motion will be granted.
I. FACTUAL BACKGROUND
A brief summary of the underlying facts of this case, as alleged in the complaint, will be helpful in order to resolve the plaintiff's motions. At 11:30 p.m. on May 6, 1997, the plaintiff was arrested by Milwaukee police officers. He was observed by those officers to have a cut on his right hand, and, as a result, paramedics were called to the scene by the arresting officers to administer medical care. The plaintiff then informed the paramedics that he was HIV-positive.
After he received medical treatment for his hand, the plaintiff was transported to the fourth district police station in Milwaukee at which time he was "immediately placed in the custody and control of employees and officers of the MPD [Milwaukee police department], including named individual defendant, Officer Wawrzymiakowski, who is listed on the shift roster as the booking officer and other unnamed/unknown MPD officers and employees." (Complaint ¶ 13.) During the booking process, the plaintiff told the booking officer that he was HIV-positive.
After he was placed in his holding cell, "the officer who booked [him] taped a pink piece of paper with black bold writing on his cell door which said `HIV POSITIVE INMATE'." (Complaint ¶ 15.) When he asked the booking officer why it was there, she said that it was "a reminder to sanitize the cell after the plaintiff left and before another inmate occupied the cell." (Complaint ¶ 16.) Upon his request, the booking officer removed the sign from the cell door. The sign had allegedly been taped to his cell door for three hours. According to the plaintiff, "[d]uring the time that the sign was displayed, it could be seen by any officer or visitor at the station and by any of the at least five other inmates in custody in other cells at the time." (Complaint ¶ 18.)
Thereafter, the plaintiff commenced the instant lawsuit which alleges the following claims against the City:
(2) the City's failure to train, supervise and enforce lawful policies regarding disclosures concerning the plaintiff's HIV status deprived the plaintiff of his rights to privacy, liberty, due process and equal protection in violation of the Ninth and Fourteenth Amendment of the United States Constitution;
(4) the "City's failure to train, supervise and enforce lawful policies regarding such disclosures violated the plaintiff's right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution." (Complaint ¶ 26.)
II. LAW AND ANALYSIS
The plaintiff asks this court to permit him to proceed anonymously in this case, using the pseudonym John Doe, in place of his true name and to seal the certificate of interest that was filed in this action because it contains the plaintiff's true name. In addition, the plaintiff seeks a protective order directing the City to obtain the original and all known copies of the plaintiff's "Notice of Claim," which he filed in accordance with Wis.Stats. § 893.80(1), and to file them with this court under seal. The defendant has no objection to the plaintiff's request that the certificate of interest be sealed or that the plaintiff be allowed to proceed anonymously. However, the defendant objects to the plaintiff's application for a protective order because the notice of claim is a public record such that sealing that document would violate Wisconsin's Public Records Law and cause distortion of the city's liability records.
*1129 According to the court of appeals for the seventh circuit,
the privilege of suing or defending under a fictitious name should not be granted automatically even if the opposing party does not object. The use of fictitious names is disfavored, and the judge has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts.
Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997). The appellate court has recently renewed its criticism of the "overuse of pseudonyms in federal litigation" pointing to the principle that the "public has a right to know who is utilizing the federal courts that its tax dollars support." Coe v. County of Cook, 162 F.3d 491, 498 (7th Cir. 1998).
There are limited exceptions to the general rule that parties participating in federal litigation must use their real names. For instance, fictitious names are permitted when necessary to protect the privacy of children, rape victims and other particularly vulnerable parties. See Doe v. Blue Cross & Blue Shield, 112 F.3d at 872. The court of appeals has cautioned that such situations are rare, and the fact that a case involves a medical issue or a situation which the plaintiff finds embarrassing, without more, are not sufficient reasons for allowing the use of a fictitious name. See Coe v. County of Cook, 162 F.3d at 498 (plaintiff's embarrassment about having impregnated a woman to whom he was not married was not a compelling reason for waiver of the general rule that parties to federal litigation must litigate under their real names); Doe v. Blue Cross & Blue Shield, 112 F.3d at 872 (fact that the plaintiff suffered from a psychiatric disorder obsessive compulsive syndrome not a sufficient reason for allowing the use of a fictitious name).
In the instant case, the plaintiff argues that he should be allowed to proceed under a pseudonym because he is concerned that the litigation may result in the disclosure of his HIV-positive status. He contends that such disclosure would result in additional personal embarrassment, ostracism, harassment and perhaps, discrimination. In his affidavit, the plaintiff states that he has maintained confidentiality of his HIV-positive status and that only limited family, friends and medical personnel are aware of his medical condition.
In my opinion, the plaintiff's HIV-positive status is a compelling reason for allowing him to proceed under a pseudonym. I believe that in modern society one's HIV-positive status, unlike most other medical conditions, is still considered a stigma. The plaintiff's HIV-positive status cannot be viewed as a "common disorder" such that disclosure can be viewed as inconsequential. Cf. Doe v. Blue Cross & Blue Shield, 112 F.3d at 872. For these reasons, I believe that the requisite "exceptional circumstances" exist which justify a departure from the normal method of proceeding in federal court. Therefore, the plaintiff's motion to proceed anonymously and to seal his certificate of interest will be granted.
Notwithstanding the fact that the plaintiff will be allowed to proceed under a pseudonym, I do not believe that he is entitled to the protective order he requests in this case. The plaintiff asks the court to order the City to produce the original and all copies of the notice of claim he filed so that those documents may be placed under seal. The plaintiff cites no authority, nor much argument, in support for this application.
The defendant contends that the notice of claim filed by the plaintiff is a public record under Wisconsin's Public Records Law, Wis.Stats. § 19.21, such that it is to be "safely kept and preserved" by the custodian the City. Further, under Wis. Stats. § 19.35(1), the City, as the custodian, is obligated to permit any requestor to view and copy the record. The City maintains that it has a general interest in objecting to the protective order requested *1130 by the plaintiff because, if such procedure becomes commonplace, the City would be in a position where its records concerning potential liability will be inaccurate.
While the reasons offered by the City against the protective order are primarily administrative, the plaintiff has offered no compelling reason justifying a court order which contradicts the state's public record's law or disrupts the City's liability records. Indeed, the plaintiff does not even challenge the concerns raised by the City. While the notice of claim is considered a public document, copies are only provided to the public upon request and the plaintiff has not pointed to any evidence to suggest that such requests would, in fact, be made. Should the defendant wish to use a copy of the notice of claim in this case, such document can then be filed under seal in order to protect the plaintiff's privacy rights. Accordingly, the plaintiff's motion for a protective order will be denied.
Therefore, IT IS ORDERED that the plaintiff's "Motion for Leave to Proceed Anonymously and for a Protective Order" be and hereby is: (1) granted to the extent that the plaintiff will be allowed to proceed anonymously; and (2) denied to the extent that it seeks a protective order.
IT IS ALSO ORDERED that the plaintiff's "Motion to Seal Certificate of Interest" be and hereby is granted.
IT IS FURTHER ORDERED that the parties bear their own costs in connection with these motions.
|
742 F.2d 1463
U.S.v.Greene
83-5161
United States Court of Appeals,Ninth Circuit.
8/1/84
1
C.D.Cal.
AFFIRMED
|
335 N.W.2d 509 (1983)
STATE of Minnesota, Plaintiff,
v.
Darold John GROSS, Defendant.
No. C2-83-80.
Supreme Court of Minnesota.
July 1, 1983.
John H. Erickson, Brainerd, for plaintiff.
Hubert H. Humphrey III, Atty. Gen., Norman B. Coleman and Joel A. Watne, Sp. Asst. Attys. Gen., St. Paul, Stephen C. Rathke, County Atty., Brainerd, for defendant.
Considered and decided by the court en banc without oral argument.
AMDAHL, Chief Justice.
Defendant is being prosecuted in district court on a gross misdemeanor charge of aggravated DWI, Minn.Stat. § 169.121, subd. 3 (1982). The trial court denied a motion by defendant to suppress evidence of the result of a breath test indicating that defendant's blood alcohol concentration at the time of the arrest was .14%, and the court also denied a motion to dismiss. However, acting pursuant to Minn.R. Crim.P. 29.02, subd. 4, the trial court has certified a number of issues to this court as being important and doubtful: (1) whether evidence of the result of the breath test taken pursuant to the implied consent law must be suppressed because (a) defendant was not given a Miranda warning, (b) the state did not prove that the police had complied with the implied consent law, or (c) the state destroyed the test and control ampoules used in analyzing defendant's breath, and (2) whether defendant's prosecution is barred on the ground that the aggravated DWI statute is an impermissible ex post facto law. We affirm the trial *510 court's order denying both the motion to suppress and the motion to dismiss, and we remand for trial.
1(a). The first issue is whether the evidence of the test result should be suppressed because the police failed to give defendant a Miranda warning before they advised him of the provisions of the implied consent law and administered the breath test. In Prideaux v. State, 310 Minn. 405, 247 N.W.2d 385 (1976), we interpreted Minn.Stat. § 481.10 (1982) as giving a person a limited right to consult with counsel before deciding whether to submit to blood alcohol testing under the implied consent law. Minn.Stat. § 169.123, subd. 2(b)(3) (1982), provides that police must advise a person of this right as part of the standard implied consent advisory. However, we have never held that police must give a Miranda warning to a person before they give an implied consent advisory. Indeed, our decision in State v. Beckey, 291 Minn. 483, 192 N.W.2d 441 (1971), counsels against this. In any event, the issue is now settled because in South Dakota v. Neville, ___ U.S. ___, 103 S.Ct. 916, 923 n. 15, 74 L.Ed.2d 748 (1983),[1] the United States Supreme Court stated:
In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda. As we stated in Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980), police words or actions "normally attendant to arrest and custody" do not constitute interrogation. The police inquiry here is highly regulated by state law, and is presented in virtually the same words to all suspects. It is similar to a police request to submit to fingerprinting or photography. Respondent's choice of refusal thus enjoys no prophylactic Miranda protection outside the basic Fifth Amendment protection. See generally Arenella, Schmerber and the Privilege Against Self-Incrimination: A Reappraisal, 20 Am.Crim.L.Rev. 31, 56-58 (1982).
In conclusion, we hold that the trial court correctly decided that the failure of the police to give defendant a Miranda warning before they advised him of the provisions of the implied consent law does not require suppression of the evidence of the results of the breath test to which defendant submitted.[2]
(b) The issue concerning whether the police complied with the implied consent law is controlled by prior decisions of this court holding that the only advisory that police are required to give a person under the implied consent law is that mandated by statute. See, e.g., State v. Abe, 289 N.W.2d 158 (Minn.1980).
(c) The last of the three main issues raised by defendant with respect to the trial court's decision of the suppression motion relates to the destruction by police of the ampoules, particularly the test ampoule, used in analyzing defendant's breath. In this case the control ampoule was put back with the other control ampoules for reuse and the test ampoule, which had been *511 opened, was thrown away, as they usually are.
For a full discussion of the operation of the Breathalyzer brand breath testing machine, see State v. Habisch, 313 N.W.2d 13 (Minn.1981).
There is case law on both sides of the issue of whether the ampoules used in breath testing should be preserved. Compare People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974) (requiring preservation of the ampoules) with State v. Bush, 595 S.W.2d 386 (Mo.App.1980) (allowing destruction of the ampoules). Apparently the majority of courts that have addressed the issue have held that the ampoules need not be preserved.
The trial court relied, in part, upon a 1975 resolution by the Executive Board of the Committee on Alcohol and Drugs, National Safety Council, which stated that "a scientifically valid procedure is not known to be available for the reexamination of a Breathalyzer ampoule that has been used in the breath test * * * in order to confirm the accuracy and reliability of the original breath analysis." Formal Statement of Committee on Alcohol and Drugs, National Safety Council, Chicago, Ill., Oct. 2, 1975, quoted in Finkle, Alcohol and Traffic Safety, 3 Am.J.Forensic Med. & Pathology 273, 273 (1982).
Defendant has failed to establish that the evidence which was destroyed was material evidence. Under the circumstances, we hold that the trial court properly refused to suppress the evidence of the test result on this ground.
2. Defendant's other contention, that the aggravated DWI statute is an impermissible ex post facto law, is answered in the negative by our recent decision in State v. Willis, 332 N.W.2d 180, 185 (Minn. 1983).
Remanded for trial.
NOTES
[1] The holding in the Neville case was "that a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination." 103 S.Ct. at 923 (footnote omitted). In State v. Willis, 332 N.W.2d 180 (Minn.1983), this court, with three justices disagreeing, avoided deciding the issue of whether the Minnesota Constitution should continue to be interpreted as barring evidence of a refusal to submit to testing. See State v. Andrews, 297 Minn. 260, 212 N.W.2d 863 (1973), cert. denied, 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121 (1974). Even if it is true, as we held in Andrews, that a refusal to test gives rise to an inference of guilt, it does not follow logically that police must give a person a Miranda warning before advising the person of the provisions of the implied consent law.
[2] The trial court did suppress a statement defendant made in response to a prearrest, precustodial interrogation of defendant concerning how much alcohol he had consumed. The correctness of this ruling is not before us. As to the general inapplicability of Miranda to questioning during an investigatory stop, see In re the Welfare of M.A., 310 N.W.2d 699 (Minn. 1981).
|
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1643
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
ROBERT J. WACHOWIAK, JR.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 CR 22—Lynn Adelman, Judge.
____________
ARGUED NOVEMBER 1, 2006—DECIDED AUGUST 1, 2007
____________
Before KANNE, EVANS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Judge Adelman sentenced 24-
year-old Robert Wachowiak to 70 months’ imprisonment
for downloading and electronically “sharing” child pornog-
raphy on his home computer. Wachowiak’s sentence is
considerably less than his advisory guidelines range of
121 to 151 months, and the government submits it is
unreasonably low in light of the sentencing factors in 18
U.S.C. § 3553(a). In addition to discounting the serious-
ness of Wachowiak’s offense, the government argues, the
judge deviated from the sentencing guidelines on the
basis of mitigating factors routinely present in child
pornography possession cases or already reflected in
Wachowiak’s guidelines range. A 70-month sentence, the
2 No. 06-1643
government maintains, lies beyond the outer limit of the
district court’s post-Booker sentencing discretion.
We affirm. Although lenient, this below-guidelines
sentence survives review for reasonableness, a deferential
standard that has both procedural and substantive
aspects. See Rita v. United States, 127 S. Ct. 2456, 2465,
2468-70 (2007); United States v. Wallace, 458 F.3d 606,
609-10 (7th Cir. 2006). The government concedes that
Judge Adelman explicitly considered the litany of factors
specified in § 3553(a), including the nature and severity of
the crime, Wachowiak’s history and characteristics, the
advisory guidelines range, and the purposes of sentencing
enumerated in § 3553(a)(2). The challenge mounted here
is substantive, not procedural. We conclude that Judge
Adelman’s reasons for selecting a 70-month sentence—
Wachowiak’s “excellent” character, genuine remorse,
susceptibility to treatment, low risk of recidivism, strong
family support, and certain mitigating aspects of his
offense—are rooted in § 3553(a), sufficiently individu-
alized to the circumstances of this case, and generally
associated with sentencing leniency. Given the seriousness
of this crime, we might not have weighed these factors so
heavily, but we cannot say Wachowiak’s sentence is
unreasonable.
I. Background
Wachowiak first came to the government’s attention in
2004 when an undercover agent in Florida logged on to a
popular file-sharing network and found numerous images
of child pornography being “shared” from an IP address
in Milwaukee. The government traced the IP address to
Wachowiak’s home computer, obtained a search warrant
for his home, and seized his computer and external hard
drive. Forensic examination of the computer and hard
drive revealed hundreds of images of child pornography,
No. 06-1643 3
nine depicting children in bondage and nineteen depicting
children under the age of ten. Wachowiak was inter-
viewed and admitted to using the network to receive and
share child pornography files.
Wachowiak pleaded guilty to one count of receiving
child pornography in violation of 18 U.S.C. § 2252(a)(2),
which carries a 5-year minimum and 20-year maximum
sentence. His uncontested presentence report calculated
an advisory guidelines sentencing range of 121 to 151
months. His offense level of 32 reflected 13 points worth of
enhancements for using a computer, possessing images
of prepubescent children, possessing images portraying
sadism or masochism, and possessing more than 600
images. Wachowiak also received a three-point reduction
for acceptance of responsibility. This was his first offense,
so his criminal history was Category I.
At sentencing Wachowiak argued for the statutory
minimum, 60 months, while the government asked for a
guidelines sentence. Judge Adelman settled on 70 months,
concluding the guidelines range of 121 to 151 months
was greater than necessary to achieve the sentencing
purposes of § 3553(a). In his oral sentencing remarks
and later in a written opinion, the judge explained that
he had rejected Wachowiak’s proposed 60-month sentence
as too low given the number and nature of the images,
some of which depicted very young children, sadistic
conduct, and known victims of sexual exploitation. United
States v. Wachowiak, 412 F. Supp. 2d 958, 960 (E.D. Wis.
2006). The judge nevertheless found that several factors
mitigated the severity of Wachowiak’s offense, specifically:
(1) Wachowiak never enticed or had improper contact
with any child; (2) he was extremely cooperative with the
government and gave a prompt and detailed confession;
and (3) he never produced or purposely distributed any
images (although he did “share” them through the file-
sharing program). Id.
4 No. 06-1643
The judge went on to describe Wachowiak’s character as
“excellent,” noting that (1) Wachowiak had neither a
criminal record nor a history of drug use; (2) he was an
honor roll student in high school; (3) he was a talented
pianist employed as a liturgical musician and was pursu-
ing a bachelor’s degree in music education; (3) after
resigning his liturgical music position following his
arrest, he obtained a job as a bakery clerk at a local
grocery; and (4) all of his employers “thought highly of
him.” Id. Judge Adelman also relied heavily on the opin-
ions of two sex offender specialists who examined
Wachowiak and assessed his recidivism risk as low. Roger
Northway, M.S., a sex offender therapist, began treating
Wachowiak shortly after his arrest; he submitted a report
to the court based on his observations of Wachowiak
during treatment and certain risk assessment tests he
administered. Dr. Patricia Coffey, a licensed psychologist
with expertise in sex predator evaluations for the State of
Wisconsin, also examined Wachowiak. Both experts
reported that Wachowiak posed a low risk for direct sexual
contact with children and was a good candidate for treat-
ment because he understood his impulses were wrong
and wanted to control them. Id. at 961.
The judge also took note of the quality of Wachowiak’s
allocution, characterizing it as genuinely remorseful,
reflecting “insight into his behavior” and “progress in
treatment.” Id. Wachowiak, the judge said, “was making
every effort to combat his addiction to pornography and
remain crime-free.” Id. at 962. Finally, Judge Adelman
cited Wachowiak’s supportive family and friends who
would assist in his rehabilitation.
Judge Adelman then explained why he thought a 70-
month sentence better fulfilled the statutory sentencing
purposes of § 3553(a) than a guidelines sentence. The
latter, he concluded, would be greater than necessary to
promote respect for the law and provide just punishment,
No. 06-1643 5
§ 3553(a)(2)(A), given Wachowiak’s lack of criminal history
and what the judge viewed as the mitigated seriousness
of his offense. Id. The judge also concluded that 70 months
would provide “adequate deterrence” under § 3553(a)(2)(B)
because it was longer than sentences imposed on defen-
dants for similar crimes in federal and state court.1 The
judge said a sentence “exceeding five years would deter
others considering receiving this type of material.” Id. A
guidelines sentence of more than ten years was “greater
than necessary to protect the public” under § 3553(a)(2)(C),
the judge reasoned, because the experts concluded
Wachowiak posed little risk of recidivism or “crossing
the line” into actual improper contact with children.
Lastly, the judge said a guidelines sentence would
unduly delay Wachowiak’s access to treatment. See
§ 3553(a)(2)(D).
Finally, Judge Adelman explained several aspects of
Wachowiak’s case that he believed were appropriate
considerations under § 3553(a) but were not adequately
factored into the guidelines calculation. First, he said
the guidelines failed to fully account for Wachowiak’s
“sincere expression of remorse” and “otherwise outstand-
ing character” by narrowly channeling these considera-
tions into Wachowiak’s “acceptance of responsibility”
reduction under U.S.S.G. § 3E1.1 and criminal history
Category I, respectively. Wachowiak, 412 F. Supp. 2d at
963. Second, the judge said “the guidelines failed to
account for the significant collateral consequences
[Wachowiak] suffered as a result of his conviction,”
1
Later in his opinion, the judge discussed but ultimately
declined to consider Wachowiak’s argument that a below-
guidelines sentence was necessary under 18 U.S.C. § 3553(a)(6)
to account for unwarranted sentence disparities among fed-
eral and state defendants convicted of similar crimes. United
States v. Wachowiak, 412 F. Supp. 2d 958, 965 (E.D. Wis. 2006).
6 No. 06-1643
namely, the stigma of being a sex offender and his inability
to pursue a career in his chosen profession of music
education. Id. at 963-64. Third, the judge believed the
guidelines failed to consider the positive role of
Wachowiak’s family members, who promised to aid in his
rehabilitation and reintegration into the community
and support his efforts to avoid reoffending. Id. at 964.
Finally, the judge noted that the probation office had
recommended that Wachowiak receive a sentence signifi-
cantly below the guidelines range, which he characterized
as “unusual.” Id. at 964 n.6.
In addition to the 70-month term of imprisonment, the
judge imposed a three-year term of supervised release with
various nonstandard supervision terms. Wachowiak is
forbidden from associating with any minors without
prior approval from his probation officer. He must sub-
mit all his financial records, computer passwords and
pseudonyms, and permit periodic inspections of his
computer. He may not access the Internet from any
location without first notifying his probation officer.
The government appealed, challenging the 70-month
sentence as unreasonably low.
II. Discussion
Under the advisory guidelines regime ushered in by
United States v. Booker, we review Wachowiak’s 70-month
sentence for reasonableness. 543 U.S. 220, 261 (2005);
Rita, 127 S. Ct. at 2459. This abuse-of-discretion standard
has both procedural and substantive aspects. Rita, 127
S. Ct. at 2465, 2468-70; Wallace, 458 F.3d at 609; United
States v. Repking, 467 F.3d 1091, 1096 (7th Cir. 2006) (per
curiam). “The Supreme Court’s decision in Booker re-
quires the sentencing judge first to compute the guide-
lines sentence just as he would have done before Booker,
No. 06-1643 7
and then—because Booker demoted the guidelines from
mandatory to advisory status—to decide whether the
guidelines sentence is the correct sentence to give the
particular defendant.” United States v. Dean, 414 F.3d 725,
727 (7th Cir. 2005).
Booker sentencing discretion is exercised in accordance
with the sentencing factors specified in 18 U.S.C.
§ 3553(a).2 That section, “unlike the guidelines them-
selves after Booker, is mandatory. The sentencing judge
cannot, after considering the factors listed in that stat-
ute, import his own philosophy of sentencing if it is
inconsistent with them.” Id. at 729 (citations omitted). But
the § 3553(a) factors are broad, vague, and open-ended, id.,
and review for reasonableness is deferential, United
States v. Walker, 447 F.3d 999, 1008 (7th Cir. 2006), so the
2
18 U.S.C. § 3553(a) provides, in relevant part:
(a) Factors to be considered in imposing a sentence. The
court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in para-
graph (2) of this subsection. The court, in determining the
particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal con-
duct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educa-
tional or vocational training, medical care, or other
correctional treatment in the most effective manner.
8 No. 06-1643
sentencing judge has considerable discretion to individual-
ize the sentence to the offense and offender as long as the
judge’s reasoning is consistent with § 3553(a). “[T]he
sentencing statutes envision both the sentencing judge
and the [Sentencing] Commission as carrying out the
same basic § 3553(a) objectives, the one, at retail, the
other at wholesale.” Rita, 127 S. Ct. at 2463.
We have previously described Booker reasonableness
review in this way:
Two things are critical now: first, whether the district
court’s choice of sentence is adequately reasoned in
light of the § 3553(a) factors . . . ; and second, whether
the sentence can ultimately be deemed a reasonable
one. . . . At each point, the focus is on what the district
court did, not on what it might have done. Thus, the
procedural inquiry focuses on the actual reasons
given, not on whether the sentence could have been
supported by a different rationale; the substantive
inquiry looks at the sentence imposed, not at all the
other hypothetical sentences that might have been
chosen.
Wallace, 458 F.3d at 609 (citations omitted). Accordingly,
a sentence is reasonable if the sentencing judge has given
meaningful consideration to the sentencing factors enu-
merated in § 3553(a), including the advisory sentencing
guidelines, and arrived at a sentence that is objectively
reasonable in light of the statutory factors and the individ-
ual circumstances of the case. Id. at 609-12; United States
v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005); Dean,
414 F.3d at 729.
This obligation generally is easily discharged when the
judge chooses a sentence within a properly calculated
guidelines range, which on appeal is entitled to a presump-
tion of reasonableness. United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005) (adopting a rebuttable presump-
No. 06-1643 9
tion of reasonableness for within-guidelines sentences); see
also United States v. Laufle, 433 F.3d 981, 987 (7th Cir.
2006) (explaining the sentencing judge need only give a
concise statement of reasons when imposing a within-
guidelines sentence). We now know that the rebuttable
presumption of reasonableness we adopted in Mykytiuk
comports with the Sixth Amendment and the Supreme
Court’s substantive and remedial opinions in Booker. Rita,
127 S. Ct. at 2465-67.
The Court emphasized in Rita, however, that the
presumption it was approving “is an appellate court
presumption.” Id. at 2465 (emphasis in original); see also
United States v. Griffin, Nos. 05-4177 & 05-4178, 2007 WL
2027411, at *10 (7th Cir. July 16, 2007). The Court held
that because reasonableness review under Booker “merely
asks whether the trial court abused its discretion,” the
presumption of reasonableness for within-guidelines
sentences “applies only on appellate review.” Rita, 127
S. Ct. at 2465. In the district court, the sentencing deci-
sion is subjected to “the thorough adversarial testing
contemplated by federal sentencing procedure . . . [and]
does not enjoy the benefit of a legal presumption that
the Guidelines sentence should apply.” Id. (citations
omitted). Accordingly, while an appellate court may apply
a nonbinding presumption of reasonableness to a guide-
lines sentence, the district court’s Booker sentencing
discretion presupposes no thumb on the scale in favor of
a guidelines sentence.
Rita thus validated our observation in United States v.
Demaree that the sentencing judge “is not required—or
indeed permitted—to ‘presume’ that a sentence within the
guidelines range is the correct sentence3.” 459 F.3d 791,
3
To the extent some of our cases have suggested that the
appellate presumption of reasonableness for within-guidelines
(continued...)
10 No. 06-1643
794-95 (7th Cir. 2006) (citation omitted); see also
Cunningham, 429 F.3d at 676 (The sentencing court
“cannot treat all sentences that would fall within the
guidelines sentencing range as reasonable per se.”).
Although “[t]he applicable guideline nudges [the sentenc-
ing judge] toward the sentencing range, . . . his freedom to
impose a reasonable sentence outside the range is unfet-
tered.” Demaree, 459 F.3d at 795. That a within-guidelines
sentence is presumed reasonable on appeal does not mean
that a sentence outside the range is presumptively unrea-
sonable. United States v. Jordan, 435 F.3d 693, 698 (7th
Cir. 2006); United States v. Howard, 454 F.3d 700, 703
(7th Cir. 2006). Rita also held that “appellate courts
may not presume that every variance from the advisory
Guidelines is unreasonable.” 127 S. Ct. at 2467.
Although as a matter of procedural reasonableness the
sentencing court is not required to issue a detailed oral or
written opinion in every case, “a statement of reasons
[for the choice of sentence] is important.” Id. at 2468.
Whether imposing a sentence within or outside the
advisory guidelines range, the sentencing judge should at
least “set forth enough to satisfy the appellate court that
he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking
authority.” Id.
We have held that sentences outside the applicable
guidelines range—whether above or below it—may be
upheld as reasonable as long as the district court’s
§ 3553(a) explanation is sufficiently compelling to justify
3
(...continued)
sentences also applies as a “benchmark” or “presumption” in the
district court, United States v. Hankton, 463 F.3d 626, 629 (7th
Cir. 2006); United States v. Wurzinger, 467 F.3d 649, 650-51 (7th
Cir. 2006), that suggestion has been displaced by Rita.
No. 06-1643 11
the variance. Dean, 414 F.3d at 729. At a minimum, this
explanation should articulate the statutory factors the
judge believes warrant a sentence above or below the
guidelines range. Id. The more extreme the variance,
however, “the more compelling the justification based on
factors in § 3553(a) that the judge must offer in order
to enable [us] to assess the reasonableness of the sen-
tence imposed.” Id. If the justification is consistent with
§ 3553(a) and reasonably corresponds to factors unique to
the defendant (i.e., not normal incidents of the offense
or the judge’s wholesale disagreement with the guide-
lines), and the sentence chosen is within the broad range
of objectively reasonable sentences in the circumstances,
the sentence will be affirmed. See Wallace, 458 F.3d at
611; Repking, 467 F.3d at 1096; Dean, 414 F.3d at 729.
As we have noted, the government does not argue that
the sentence imposed here fails procedural review for
reasonableness. Nor could it. Judge Adelman’s oral
sentencing remarks and follow-up written opinion thor-
oughly and meaningfully analyzed the § 3553 factors,
including the sentencing guidelines. He carefully and at
length explained his choice of a 70-month sentence over a
guidelines sentence. There is no suggestion the judge
considered impermissible factors or that his factfinding
was clearly erroneous in any respect. The government
argues the judge’s statement of reasons was flawed, not
insubstantial. As such, we understand the government to
be challenging this sentence as substantively unreason-
able—simply too great a deviation from the bottom of the
applicable guidelines range given the seriousness of the
offense and what it views as a lack of unique justification.
While the contours of substantive reasonableness re-
view are still emerging, we have previously analogized it
to the “unreasonableness” standard in the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
12 No. 06-1643
§ 2254(d), which permits federal courts to grant habeas
relief for state prisoners only when the state-court decision
under review was “contrary to, or involved an unreason-
able application of ” clearly established federal law,
§ 2254(d)(1), or “was based on an unreasonable deter-
mination of the facts,” § 2254(d)(2). Wallace, 458 F.3d at
610. In the AEDPA context, we have held that an “unrea-
sonable” application of federal law is one that lies “well
outside the boundaries of permissible differences of opin-
ion.” Id. (quoting Hardaway v. Young, 302 F.3d 757, 762
(7th Cir. 2002)). Conversely, an application of federal law
will be upheld as reasonable under the AEDPA “if it was
‘one of several equally plausible outcomes.’ ” Id. (quoting
Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997)).
We also noted in Wallace and other cases that substan-
tive reasonableness review distinguishes between common
and particularized factors. Id. at 611; Jordan, 435 F.3d
at 696-97; Dean, 414 F.3d at 729 (sentencing judge should
supply “an adequate statement of the judge’s reasons,
consistent with section 3553(a), for thinking the sentence
that he has selected is indeed appropriate for the particu-
lar defendant”). A nonguidelines sentence premised on
factors that are common to offenders with like crimes may
reflect a simple disagreement with the guidelines; “Booker
did not authorize courts to find that the guidelines them-
selves (or the statutes on which they are based) are unrea-
sonable.” Wallace, 458 F.3d at 611 (citing United States v.
Miller, 450 F.3d 270, 275 (7th Cir. 2006) and United States
v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005)). On the
other hand, a variance from the guidelines that is suffi-
ciently particularized to the individual circumstances of
the case and not disproportionate to the strength of the
reasons for varying likely will survive reasonableness
review. See Jordan, 435 F.3d at 696-97 (affirming a
sentence well above the guidelines range for traveling in
interstate commerce to engage in a sex act with a minor
No. 06-1643 13
where the district court identified numerous highly
aggravating circumstances particular to defendant’s case);
United States v. Baker, 445 F.3d 987, 991-92 (7th Cir.
2006) (affirming a below-guidelines sentence for distribu-
tion of child pornography where the district court provided
an “extended discussion” of mitigating factors specific to
the defendant’s case).
The concept of substantive reasonableness contemplates
“a range, not a point.” Cunningham, 429 F.3d at 679. That
said, we have declined invitations to fix the outer limits
of the “reasonableness range” by reference to a ratio or
percentage by which the sentence deviates from the
guidelines range. Repking, 467 F.3d at 1095; Wallace,
458 F.3d at 613. We will not substitute our judgment for
that of the sentencing court. United States v. Ngatia, 477
F.3d 496, 501-02 (7th Cir. 2007) (“[T]he district court’s
choice of sentence, whether inside or outside the
guideline[s] range, is discretionary and subject therefore to
only light appellate review.” (citing Demaree, 459 F.3d at
795)); United States v. Williams, 425 F.3d 478, 481 (7th
Cir. 2005) (“The question is not how we ourselves would
have resolved the factors identified as relevant by section
3553(a) . . . . We are not sentencing judges.” (citation
omitted)). As with other discretionary decisions, the
district court is institutionally better situated to make
individualized sentencing judgments than an appellate
panel. Koon v. United States, 518 U.S. 81, 98 (1996);
Walker, 447 F.3d at 1008; Williams, 425 F.3d at 480.
The following examples of below-guidelines sentences
vacated as unreasonable by panels of this court may help
illustrate the limits of Booker sentencing discretion in
this circuit:
1) In United States v. Goldberg, No. 07-1393, 2007 WL
1827645 (7th Cir. June 27, 2007), we vacated as
unreasonable a sentence of one day in prison and ten
14 No. 06-1643
years’ supervised release in a child pornography
possession case where the guidelines range was 63 to
78 months and the district court’s reasons were at best
idiosyncratic and at worst deeply flawed. “A prison
sentence of one day for a crime Congress and the
American public consider grave, in circumstances that
enhance the gravity (we refer to the character of some
of the images) [depicting prepubescent girls being
vaginally raped by adult males], committed by a
convicted drug offender, does not give due weight to
the ‘nature and circumstances of the offense’ and the
‘history and characteristics of the defendant.’ ”
Goldberg, 2007 WL 1827645, at *3. In Goldberg, the
district court’s reasoning reflected serious misjudg-
ments about the gravity of the offense and the defen-
dant’s character and motivations, and the one-day
sentence was too severely disproportionate to the
guidelines range in the circumstances to withstand
reasonableness review.
2) In United States v. Roberson, 474 F.3d 432 (7th Cir.
2007), we vacated as unreasonable a sentence of one
month for an armed bank robbery and 84 months
consecutive on the companion gun charge. The applica-
ble guidelines range for the armed robbery was 46 to
57 months, and the 84-month consecutive sentence
for the gun offense was the mandatory minimum. The
district judge’s sentencing remarks reflected that
she was improperly influenced by her disagreement
with the statutory mandatory consecutive minimum
term on the gun offense and the prosecutor’s decision
to charge it. Id. at 434-35. Further, the mitigating
factors cited by the district court—the defendant’s
youth (he was 19 years old), good performance in
elementary school, and supportive family—were either
too “meager” or “two-edged” to support such a de
minimis sentence for an armed robbery. Id.
No. 06-1643 15
3) In Repking, 467 F.3d at 1091, we vacated as unrea-
sonable a sentence of one day in prison and three
years’ supervised release for a wealthy bank executive
who misappropriated nearly $1 million in bank funds
by making false banking entries. The defendant was
also convicted of filing a false tax return, and his
applicable guidelines range for these offenses was 41
to 51 months. Although we found the district court’s
sentencing remarks to be procedurally adequate, we
concluded that the judge drastically overvalued the
mitigating factors (the defendant’s charitable works
and payment of restitution) and undervalued the
seriousness of the crime.
4) In Wallace, 458 F.3d at 606, we vacated as unrea-
sonable a sentence of three years’ probation for a wire
fraud involving $400,000 of intended loss where the
applicable guidelines range was 24 to 30 months in
prison. We said the mitigating factors identified by the
district court were permissible (the defendant’s
“extraordinary remorse” and cooperation and other-
wise law-abiding life) but did not justify such remark-
able leniency. Id. at 613. “In the end, it is the fact
that the court chose to eliminate any meaningful
incarceration for a crime that involved $400,000 of
intended loss that makes this such an extraordinary
choice.” Id. at 614.
On the other hand, in Baker, this court affirmed a below-
guidelines sentence of 87 months for distribution of child
pornography where the applicable guidelines range was
108 to 135 months. 445 F.3d at 987. We noted that “the
district court paid close attention to Mr. Baker’s lack of a
criminal history, his relatively young age, his religious
background and his history of employment and higher
education.” All of these factors, we held, were permissible
and adequately linked to § 3553(a) for the district court
to rely on them in arriving at a below-guidelines sen-
16 No. 06-1643
tence. Id. at 992. In affirming the 87-month sentence, the
Baker panel observed that the district court’s deviation
from the guidelines range was “sufficiently proportional”
to the strength of its reasons for deviating. Id. at 993. That
is, the variance from the guidelines range was not so
disproportionate to the factors justifying it as to make it
unreasonable. And in Ngatia, 477 F.3d at 501-02, we
affirmed a below-guidelines sentence of 84 months for
heroin importation. Although the sentence in Ngatia
was substantially lower than the guidelines range of 188
to 235 months, we affirmed the district court’s exercise of
Booker discretion, which rested primarily on the defen-
dant’s good character, sincere remorse, educational
achievements, and rehabilitative efforts.
In Goldberg, Roberson, Repking, and Wallace, the below-
guidelines sentences were fairly obviously unreasonable,
imposing little or no imprisonment for quite serious
crimes, on very weak or (as in Goldberg and Roberson)
seriously misguided or even impermissible reasoning. We
see this case as closer to Baker, and to a lesser extent
Ngatia. Here, as required by § 3553(a)(1), Judge Adelman
evaluated the nature and circumstances of Wachowiak’s
offense, acknowledging the severity of the offense of
receiving child pornography and noting that consumers
of child pornography like Wachowiak share responsibility
with its producers for the harm inflicted on its young
victims. He also duly noted the quantity and nature of
some of Wachowiak’s images as aggravating circum-
stances. On balance, however, the judge believed the
mitigating circumstances of the offense outweighed the
aggravating. Wachowiak neither produced nor purposely
distributed any of the images and never enticed or had
any improper contact with a child. He cooperated with
the government, gave a detailed confession, expressed
sincere remorse, sought treatment, and pleaded guilty in
a timely fashion.
No. 06-1643 17
The government argues the judge gave too much weight
to these factors in mitigation and notes that Wachowiak’s
cooperation, remorse, and guilty plea are already ac-
counted for in the guidelines calculation. It is true that
a defendant’s cooperation, remorse, and prompt guilty
plea are factored into the acceptance-of-responsibility
adjustment, but we said in Wallace that “[i]f Booker means
anything at all, it must mean that the court was permit-
ted to give further weight to a factor covered by a specific
guidelines adjustment, especially where (as is true here)
that factor is present to an exceptional degree or in some
other way makes the case different from the ordinary case
where the factor is present.” 458 F.3d at 613 (quotations
omitted). Judge Adelman thought Wachowiak’s “greater
expression of remorse” and “insight into his condition and
the harm he was causing children” deserved more weight,
a permissible discretionary judgment post-Booker.
Judge Adelman’s reliance on the fact that the defendant
did not commit a more serious crime strikes us as question-
able, however. In the first place, the judge’s duty is to
address the crime the defendant did commit. As impor-
tantly, the Sentencing Commission sets and adjusts the
guidelines ranges with the specific objective of achieving
proportionality in sentencing for crimes of differing
severity. Rita, 127 S. Ct. at 2464. The Commission is “a
respected public body with access to the best knowledge
and practices of penology,” Goldberg, 2007 WL 1827645, at
*5; its judgments should not lightly be disregarded. The
expert witnesses who evaluated Wachowiak’s recidivism
risk assigned some relevance to the fact that Wachowiak
had not escalated to “hands-on” sex offending; we think
this factor was more appropriately considered as an
offender characteristic than an offense characteristic.
Judge Adelman also considered at length Wachowiak’s
history and characteristics as required by § 3553(a)(1).
He heard (through testimony and letters) from one of
18 No. 06-1643
Wachowiak’s college professors, two of his aunts, his
mother, his grandmother, and his girlfriend, all of whom
spoke highly of his character and pledged their continued
support for him. The judge also considered the opinions
of the two experts (a sex offender counselor and a licensed
psychologist) who reported that Wachowiak posed little
risk of reoffending, was motivated to change, and was a
good candidate for treatment.4 The judge noted
Wachowiak’s academic accomplishments and musical
talent, as well as the positive references provided by his
past employers. Together with Wachowiak’s lack of
criminal history and genuine remorse, these factors
convinced the judge of Wachowiak’s “excellent” character,
amenability to treatment, and low recidivism risk.
Again, while Wachowiak’s guidelines range accounted
for some of these mitigating personal characteristics, the
judge believed the guidelines painted only a partial picture
of Wachowiak’s character and the need for punishment
and deterrence (both specific and general) in this case.
Judge Adelman said his assessment of Wachowiak’s
“history and characteristics” under § 3553(a)(1) encom-
passed more than tallying prior convictions to yield a
criminal history score. In addition to Wachowiak’s law-
abiding past and sincere remorse, the judge found that he
was “a kind, caring individual, who enjoyed the broad
support of family, friends, colleagues, and teachers” and
4
The government argues that the expert evidence about
Wachowiak’s risk to reoffend was “inconclusive at best” because
Wachowiak had tried before to overcome his child pornography
consumption but failed, and because the risk instruments
administered by Wachowiak’s therapist, Mr. Northway, were not
specifically designed for offenders who had not committed a
“hands-on” offense. These are not arguments for a reviewing
court; the sentencing judge was entitled to accept the experts’
opinions and give them the weight he thought they deserved.
No. 06-1643 19
“demonstrated strength of character in confronting his
problems,” none of which were reflected in Wachowiak’s
Category I criminal history under the guidelines. The
government counters that Wachowiak’s lack of criminal
history and expressions of remorse are common to many
child pornography offenders and thus do not warrant an
exceptional sentence. While Wachowiak may be a typical
offender in some respects, Judge Adelman sufficiently
explained why in his judgment, Wachowiak’s degree of
remorse and his otherwise good character set him apart
from more run-of-the-mill child pornography offenders.
In short, Judge Adelman methodically worked through
the statute, ultimately concluding that 70 months suffi-
ciently punished Wachowiak, reflected the seriousness of
his offense, promoted deterrence, protected the public, and
ensured prompt treatment, all considerations required
by § 3553(a)(2). While we might disagree with some of
Judge Adelman’s reasons for selecting a below-guidelines
sentence, they are not wrongheaded to the point of unrea-
sonableness, as in Goldberg and Roberson. They were, for
the most part, specific to Wachowiak (that is, not routine
in all or most child pornography possession cases) and
generally correspond to leniency in sentencing. The judge
gave meaningful consideration to the guidelines range
and explained at length why he felt Wachowiak deserved
less.
This is not a case in which the judge manifested dis-
agreement with the culpability assumptions built into the
guidelines, a prototypically unreasonable exercise of
Booker sentencing discretion. United States v. Gonzalez,
462 F.3d 754, 755 (7th Cir. 2006); United States v. Miller,
450 F.3d 270, 275-76 (7th Cir. 2006); Wallace, 458 F.3d at
612-13. Nor is this a case in which the judge deviated
from the guidelines solely on the basis of overstated
mitigating factors or “normal incidents” of the offense.
Repking, 467 F.3d at 1096. Judge Adelman did refer to one
20 No. 06-1643
normal incident of a child pornography conviction—the
social stigma of being a sex offender—as a “collateral
consequence” the guidelines failed to take into account.
Were this his only or primary reason for deviating
from the guidelines we might be more skeptical of the
sentence’s reasonableness, as stigma and child pornogra-
phy convictions go hand in hand. But this was just one of
many reasons the judge gave for this below-guidelines
sentence.
At bottom, the government believes 70 months does not
adequately reflect the seriousness of Wachowiak’s offense.
If we were sentencing Wachowiak, we might agree. But
our task on reasonableness review is limited; we are to
ensure that “the district judge imposed the sentence for
reasons that are logical and consistent with the § 3553(a)
factors,” Williams, 425 F.3d at 781, and that the sentence
imposed falls within the broad range of reasonable sen-
tences in the circumstances of the case. A one-day sen-
tence for a millionaire bank executive who stole nearly
$1 million fell outside that range, Repking, 467 F.3d at
1096 (advisory guidelines range of 41 to 51 months), as
did a sentence of probation for a brokerage employee
who embezzled $400,000, Wallace, 458 F.3d at 606 (advi-
sory guidelines range of 24 to 30 months). A one-day
sentence for possession of hundreds of highly aggravated
images of child pornography fell outside that range,
Goldberg, 2007 WL 1827645, at *1, *3 (advisory guidelines
range of 63 to 78 months), as did a sentence of one month
for armed bank robbery, Roberson, 474 F.3d at 437 (advi-
sory guidelines range of 46 to 57 months). This sentence of
70 months for receiving child pornography, though cer-
tainly lenient given the seriousness of the crime, lies
tolerably within the boundaries of permissible differences
of judicial opinion.
Booker sentencing discretion is inevitably in tension
with the congressional goals of achieving greater unifor-
No. 06-1643 21
mity and proportionality in sentences through a system of
guidelines sentencing. Rita, 127 S. Ct. at 2464. But we do
not understand Booker’s review-for-reasonableness stan-
dard to empower us to displace district court sentencing
judgments more aggressively than traditional abuse-of-
discretion principles normally would allow. See United
States v. Pruitt, 487 F.3d 1298, 1319-20 (10th Cir. 2007)
(McConnell, J., concurring) (discussing the limits of
appellate review for reasonableness, observing that
“appellate courts . . . have neither the district court’s
familiarity with individual circumstances nor the [Sentenc-
ing] Commission’s expertise and democratic warrant to
set policy”). On this understanding of reasonableness
review, Wachowiak’s 70-month sentence is not unreason-
able.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-1-07
|
howard v. casey
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-091-CV
BRENT HOWARD,
APPELLANT
vs.
MICHAEL E. CASEY,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. 91-6574, HONORABLE JERRY A. DELLANA, JUDGE PRESIDING
This is an appeal from a personal injury action arising out of an automobile
accident in which appellant Brent Howard was a passenger in a vehicle operated by appellee
Michael Casey. On appeal, Howard argues the trial court abused its discretion by denying his
motion for new trial because the jury's failure to award damages in the case was against the great
weight and preponderance of the evidence. We will affirm the trial court's judgment.
FACTS
On November 5, 1989, at approximately 1:00 a.m., Howard, Casey and another
person were traveling along the outskirts of Ruidoso, New Mexico. Casey was driving, with
Howard and the other person as passengers. Casey lost control of the car and, in an effort to
regain control, drove into a ravine. No one reported serious injuries at the scene; however, the
next day Howard went to the Texas Tech University Health Services Center in Lubbock
complaining of back pain. Howard subsequently was sent to Lubbock General Hospital, where
he was admitted and stayed for approximately five days. The doctors diagnosed Howard with a
fracture of the second vertebral body of the lumbar spine.
Howard filed suit against Casey to recover damages for his personal injuries. At
trial the jury found that Casey was negligent, and the trial court rendered judgment based on the
jury's verdict. The jury found damages as follows:
Reasonable and necessary medical expenses incurred in the past: $ 5,613.95
Reasonable and necessary medical expenses which in reasonable medical
probability will be incurred in the future: $ 882.00
Conscious physical pain and mental anguish in the past: $ 4,050.00
Conscious physical pain and mental anguish which will probably occur in the
future: $ 0
Loss of earning capacity: $ 0
Physical impairment: $ 0
Howard filed a motion for new trial, alleging that the jury's failure to award
damages for future physical pain and mental anguish and for impairment was against the great
weight and preponderance of the evidence in the case. The trial court overruled the motion, and
Howard appealed.
STANDARD OF REVIEW
A trial court has broad discretion in ruling on a motion for new trial, and its
decision will not be disturbed on appeal absent a clear abuse of discretion. Strackbein v. Prewitt,
671 S.W.2d 37, 38 (Tex. 1984); Hicks v. Ricardo, 834 S.W.2d 587, 590 (Tex. App.--Houston [1st
Dist.] 1992, no writ). In reviewing a factual sufficiency challenge, an appellate court must
consider and weigh all of the evidence presented in the case, and should set aside the verdict only
if the jury finding is so against the great weight and preponderance of the evidence as to be
manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Hicks, 834 S.W.2d at 590;
Marshall v. Superior Heat Treating Co., 826 S.W.2d 197, 199 (Tex. App.--Fort Worth 1992, no
writ). The appellate court may reverse and remand the case when the jury's findings are against
the great weight and preponderance of the evidence. Balandran v. Furr's, Inc., 833 S.W.2d 648,
650 (Tex. App.--El Paso 1992, no writ).
DISCUSSION
In two points of error, Howard contends the jury's failure to award damages for
future conscious physical pain and mental anguish and for impairment was so against the great
weight and preponderance of the evidence as to be manifestly unjust. Howard argues that by
awarding damages for future medical expenses ($882), the jury implicitly found that Howard
would suffer from future pain and mental anguish. (1) He further argues that the undisputed
testimony and other evidence presented at trial necessitated an award for impairment. The
evidence in the record provides the following:
Dr. Robert King, an orthopedic surgeon consulted by Howard's parents after the
injury, testified by videotaped deposition that after consultation, he diagnosed Howard with a
"compression" fracture of the second vertebral body of the lumbar spine. Dr. King stated that
as a result of the injury, Howard was "more likely" than not to develop arthritic changes in the
injured region and more likely to continue to have some pain associated with certain physical
activities. Later, however, Dr. King clarified this statement by agreeing that everyone is at risk
of developing arthritic changes, but that Howard was simply more predisposed than others. He
further stated that in his opinion, Howard had suffered 5% to 7% permanent impairment to his
body. Dr. King defined "impairment" as a term which attempts to quantify conditions in terms
of loss of function; however, he agreed that a 5% impairment rating would not necessarily
correspond with a 5% reduction in physical activities or a 5% loss of enjoyment of life. Dr. King
agreed that Howard was completely healed by the time of trial, and testified that after reviewing
an MRI scan done on Howard in February of 1992, he was unable to find from the scan any
objective medical or clinical reason why Howard might be having discomfort in his back over two
years after the injury. Dr. King stated that based on his own tests, and on the level of discomfort
Howard had reported, he had advised Howard to take Tylenol or Advil for any pain he may incur.
He had also prescribed certain exercises for Howard to help with discomfort. At the time of trial,
Dr. King was not restricting Howard from pursuing any physical activities. He stated that certain
physical activities could cause Howard pain in the future, and that the activities Howard reported
as still causing him pain would probably continue to do so. Dr. King agreed that some of the
activities that Howard complained caused him pain could cause pain in a non-injured person as
well. He testified that the only reason he was of the opinion that Howard was continuing to have
pain at the time of trial was because Howard had reported having such pain, and that Dr. King
had found no objective basis for the pain. Finally, Dr. King agreed with the statement that in all
probability, there was no reason that Howard could not lead a normal and productive life,
participating in the sports in which he currently participates, and simply continuing to take Advil
and aspirin as needed. The record reflects that Howard's arm was in a cast at the time of Dr.
King's deposition as a result of an injury Howard suffered while playing volleyball. Dr. King
stated that he was treating Howard for this injury but that Howard had not mentioned any
problems regarding back pain during these visits.
Dr. James L. Smith, another orthopedic surgeon who began treating Howard in
December of 1989, testified through written interrogatories taken on August 12, 1992. Dr. Smith
testified that in regard to his last examination of Howard on August 22, 1991, he was unable to
detect or confirm any objective, clinical, or medical reason for any back pain. He answered "yes"
when asked if it was possible Howard was complaining of back pain two and one-half years after
the accident because he was subconsciously motivated by secondary gain factors, but also stated
he had no personal opinion as to whether this was, in fact, the case. (2) Dr. Smith stated that under
the American Medical Association Guidelines to Evaluation of Permanent Impairment, Howard
had a 7% impairment of his whole person; however, Dr. Smith also testified that he felt these
guidelines were inapplicable to the instant case. (3) In a letter dated September 13, 1991, addressed
to Howard's previous attorney, Dr. Smith stated that he would not have anticipated Howard's
complaints of pain to last so long after the injury, did not expect them to be permanent, and in the
meantime had recommended limiting painful activities and taking over-the-counter anti-inflammatories such as Advil for any pain. Dr. Smith further stated in the letter that Howard was
not at a great risk for developing osteoarthritis because the fracture involved the upper lumbar
region of the spine, and most arthritic conditions occur in the lower lumbar region. When asked
about the "reasonable medical probability" of chronic pain and discomfort, Dr. Smith replied that
it was possible Howard would have mild discomfort for two years following the injury, and that
the need for future medical care for Howard was "unlikely."
Howard testified that after being released from his initial hospitalization, he was
in a great deal of pain. Three and one-half weeks after the accident, he began resuming a
"somewhat normal lifestyle," but still wore a back brace prescribed by the doctors, and was
restricted from strenuous physical activities. Howard stated he wore his back brace full time for
four months, then wore it for another two or three months when performing any sporting activity,
and then was fully released from its use after March 19, 1990. He stated that for the first six
months after his injury, he was instructed by Dr. Smith to "moderate" his participation in physical
sporting activities; thereafter, he was instructed to resume a normal lifestyle, except that he was
to avoid heavy lifting and contact sports for the next several months. Howard testified that before
the accident he was very active: he lifted weights, played tennis, basketball and football, and
water skied. He stated that at the time of his testimony he was still having pain in his back, often
from sitting for long periods of time in a car or from physical activities. He stated he had not
been able to resume the normal lifestyle he had before the injury, but that he had attempted to do
almost everything he was able to do before the injury. Finally, Howard testified he was worried
about the activities he would be able to enjoy in the future.
Howard admitted that Dr. Smith had told him six months after the accident that
over the long-run he should have little trouble with his back. Howard stated the only medicine
he had been prescribed since the accident was Tylenol 3 when he left the hospital in Lubbock, but
that he had not refilled that prescription. Howard admitted he participated in volleyball and
softball during the spring of 1990; played soccer for his fraternity team; played intramural
football; water skied (some twenty times during the summer of 1991); played racquetball; played
tennis; boogie-boarded; went inner-tubing; went to Schlitterbahn (a water amusement park);
played water volleyball; and shot baskets a few times. In his opinion, however, Howard felt he
was not as competitive in some of these sports as he was before the injury. When asked about
his use of Advil or aspirin, Howard admitted he had taken none that day and had none with him
while in court that day or the previous day, but stated that he usually carries some in his car.
Howard's mother and his girlfriend also testified at trial. Both witnesses testified
that Howard was limited in performing certain physical activities and that sitting for prolonged
periods of time would cause Howard pain. Both witnesses supported Howard's testimony
regarding the pain he felt at the time of trial and the general decrease in his ability to function as
he did before the injury.
At least one Texas court of appeals has held that the fact that an injury has been
proven is not, in itself, a sufficient basis for an award of pain and suffering or physical
impairment. Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex. App.--Dallas
1988, no writ). The determination of damages for past and future physical pain, mental anguish,
and physical impairment are issues that are "particularly within the province of the jury."
Marshall, 826 S.W.2d at 200; see Hicks, 834 S.W. 2d at 591; see also Balandran, 833 S.W.2d
at 648. When faced with conflicting evidence on these issues, the jury "may believe one witness
and disbelieve others" and "may resolve inconsistencies in the testimony of any witness."
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Indeed, it is up to the jury "to
weigh opinion evidence and the judgment of experts. . . . [and] to decide which expert witness
should be credited." Pilkington v. Kornell, 822 S.W.2d 223, 230 (Tex. App.--Dallas 1991, writ
denied). A jury may believe all or any part of a witness' testimony, and may disregard any or all
of that testimony. Id.
Texas courts of appeals do not agree whether a party necessarily is entitled to
damages for future physical pain and mental anguish, when the jury finds that he will incur future
medical expenses. See Hyler v. Boyter, 823 S.W.2d 425, 427 (Tex. App.--Houston [1st Dist.]
1992, no writ); Blizzard, 756 S.W.2d at 805. The Blizzard court, in attempting to distinguish the
two lines of cases, concluded that:
The cases perhaps indicate that appellate courts are more reluctant to hold jury
findings of no damages for pain and suffering contrary to the great weight and
preponderance of the evidence when the indicia of injury and damages are more
subjective than objective. The more evidence of outward signs of pain, the less
findings of damages depend upon the claimant's own feelings and complaints, the
more likely appellate courts are to overturn jury findings of no damages for pain
and suffering.
Blizzard, 756 S.W.2d at 805 (emphasis added). Although Blizzard addressed the issue of a jury
awarding past medical expenses and refusing to award damages for past pain and suffering, we
find the same analysis applies to the instant case, wherein the jury awarded future medical
expenses while failing to award damages for future pain and mental anguish. See Hyler, 823
S.W.2d at 427.
In the instant case, there was conflicting evidence relating to the award of damages
for future physical pain and mental anguish. Although Howard, his mother, and his girlfriend all
testified that Howard was still having pain in his back at the time of trial, Dr. King and Dr. Smith
both testified that they had found no objective, medical reason for the continued pain.
Furthermore, although Howard claimed that strenuous physical activities caused him discomfort,
he also testified as to his continued participation in sports and other strenuous physical activities.
Considering this conflicting evidence, we cannot say that the jury's failure to award
damages for future physical pain and mental anguish is so against the great weight and
preponderance of the evidence as to be manifestly unjust. The jury "is the sole judge of the
witnesses' credibility and the weight to be given their testimony." Pilkington, 822 S.W.2d at 231.
Furthermore, under the "indicia of injury" analysis set forth in the Blizzard case, we find that the
complaints here relating to damages for future physical pain and mental anguish were subjective
in nature. Thus, our deference to the jury's findings of damages in this case is especially proper.
Hyler, 823 S.W.2d at 427; Blizzard, 756 S.W.2d at 805. Accordingly, we overrule Howard's
first point of error.
Howard contends in his second point of error that the jury's failure to award
damages for physical impairment was against the great weight and preponderance of the evidence.
Howard argues that the jury was not asked to divide the issue into past and future impairment and
that evidence of the fracture, the five-day hospitalization, the requirement of wearing a back brace
for three to four months, the inability to participate in normal physical activities and the
impairment ratings to which both doctors testified, required a finding of at least some physical
impairment in the past.
To recover damages for physical impairment, the injured party must "`sustain the
burden of proving that the effect of his physical impairment extends beyond any impediment to
his earning capacity and beyond any pain and suffering to the extent that it produces a separate
and distinct loss that is substantial and for which he should be compensated.'" Landacre v.
Armstrong Bldg. Maintenance Co., 725 S.W.2d 323, 324 (Tex. App.--Corpus Christi 1986, writ
ref'd n.r.e.) (emphasis added) (citations omitted); Allen v. Whisenhunt, 603 S.W.2d 242, 243
(Tex. Civ. App.--Houston [14th Dist.] 1980, writ dism'd) (quoting Green v. Baldree, 497 S.W.2d
342 (Tex. Civ. App.--Houston [14th Dist.] 1973, no writ)). Furthermore, a finding of damages
for physical impairment is a "subjective determination particularly in the province of the jury."
Marshall, 826 S.W.2d at 200; Landacre, 725 S.W.2d at 325. Thus, "[t]he mere fact of injury
. . . does not prove compensable pain and suffering, and certainly not impairment and lost
earnings. . . ." Blizzard, 756 S.W.2d at 805 (emphasis added); see Landacre, 725 S.W.2d at 324;
but cf. Robinson v. Minick, 755 S.W.2d 890, 894 (Tex. App.--Houston [1st Dist.] 1988, writ
denied) (holding that undisputed, objective evidence of facial fractures, surgery, and
hospitalization required an award for past physical impairment).
Based upon the record, we cannot say that the jury's failure to award damages for
impairment was not based upon factually sufficient evidence. Although the doctors testified
Howard had suffered a 5% to 7% impairment, Dr. Smith went on to testify that the guidelines
used to determine this rating were inapplicable to the instant case. The only other evidence
relating to impairment was subjective in nature, and the jury's finding in this regard was based
essentially on the weight and credibility it chose to give to various evidence and testimony.
Furthermore, the jury had before it evidence of Howard's participation in numerous physical
activities since his injury, which may have contributed to its failure to find that Howard suffered
any impairment. Even if the jury believed that Howard was unable to perform certain physical
activities as well as before the injury, such a finding would not mandate an award for physical
impairment. See Landacre, 725 S.W.2d at 325; see also Platt v. Fregia, 597 S.W.2d 495 (Tex.
Civ. App.--Beaumont 1980, writ ref'd n.r.e.).
Howard had the burden to prove a substantial loss for which he deserved
compensation beyond that awarded for pain and suffering. Landacre, 725 S.W.2d at 324; Allen,
603 S.W.2d at 243. Based on the evidence as a whole, we cannot say that the jury's failure to
find that Howard met this burden was against the great weight and preponderance of the evidence.
Accordingly, we overrule Howard's second point of error.
We affirm the judgment of the trial court.
Marilyn Aboussie, Justice
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: November 10, 1993
Do Not Publish
1. Although no one challenges the award of $882 for future medical expenses, our
review of the record does not reveal the basis for the jury's award of this specific amount.
2. Dr. King previously defined the term "secondary gain" as the situation in which
people may amplify their complaints of pain "because of other tangible or perceived
tangible rewards."
3. Dr. Smith testified that he used the AMA guidelines at the request of an attorney
who at one point was the attorney of record for Howard. While still representing
Howard, the attorney sought medical information from Dr. Smith regarding Howard's
injuries, and requested him to use the AMA guidelines in assigning an impairment rating
to Howard's condition. Dr. Smith testified that these guidelines are required by law to be
used for worker's compensation claims, and though "not really applicable in this case . . .
at her request I used it."
|
44 Md. App. 34 (1979)
408 A.2d 1043
MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY
v.
DELP AND CHAPEL CONCRETE AND CONSTRUCTION COMPANY ET AL.
No. 65, September Term, 1979.
Court of Special Appeals of Maryland.
Decided November 6, 1979.
The cause was argued before LOWE, MASON and COUCH, JJ.
Nell B. Strachan, with whom was Francis D. Murnaghan, Jr., on the brief, for appellant.
H. Emslie Parks, with whom were Wright & Parks on the brief, for appellees.
COUCH, J., delivered the opinion of the Court.
This appeal arises from a suit brought by appellees, Delp and Chapel Concrete and Construction Company (hereinafter D & C), a Maryland corporation, Andrew V. Caldwell, Jr., D & C's trustee in receivership, R. John Chapel, Virginia Chapel, Logan Delp and Eulalia Delp, against appellant, Mercantile-Safe Deposit and Trust Company (hereinafter Mercantile). D & C's declaration contained three counts. In Count One D & C sought recovery for Mercantile's alleged wrongful dishonor of twelve checks drawn on D & C's checking account with Mercantile. In Count Two the corporation and the individuals sought recovery for Mercantile's alleged conversion of the funds in the checking account. In Count Three all appellees sought recovery for Mercantile's alleged malicious interference with their business. Both compensatory and punitive damages were claimed in each count. Mercantile counterclaimed against D *36 & C and the individuals for the balance due it on an unpaid debt of D & C. Prior to trial, Mercantile moved to dismiss the individual plaintiffs from Counts Two and Three; the motion was denied without prejudice. The case proceeded to trial before a jury in the Circuit Court for Baltimore County, during which a timely motion for a directed verdict was made at the close of plaintiffs' case, and renewed at the close of all the evidence. These were also denied.
The jury returned a verdict for D & C on Count One (wrongful dishonor), awarding compensatory damages of $9,343.60 and punitive damages of $25,000.00. The verdict on Count Two (conversion) was returned in favor of all the appellees. Each appellee, excluding Logan Delp, whose absence during the trial led the trial court to rule that he was not entitled to punitive damages, was awarded both compensatory and punitive damages on Count Two. Mercantile prevailed on Count Three (malicious interference with business) and upon its counterclaim. Contented with the verdicts on Count Three and the counterclaim, Mercantile concerns itself in this appeal only with the judgments resulting from the verdicts rendered against it on Counts One and Two. No cross appeal has been filed by appellees.
The events leading up to this appeal began in January of 1974 when John R. Chapel, general manager of D & C, met with Frank Musotto, a commercial loan officer with Mercantile, in order to arrange financing for the fledgling corporation.[1] Chapel was given various forms to fill out. Upon D & C's opening of a checking account with Mercantile and the signing of personal guarantees by John and Virginia Chapel and Logan and Eulalia Delp, Mercantile approved D & C's request for an unsecured line of credit and agreed to lend D & C a maximum of $10,000.00 on this line of credit. D & C also obtained two secured installment loans from Mercantile. The first was a $2,100.00 loan for a station wagon, secured by the vehicle; the loan was dated February 21, 1974. On August 2, 1974 D & C borrowed $7,000.00 to purchase equipment. This loan was secured by the equipment. The *37 obligations under these loans were met by D & C without incident.
The line of credit transactions are the source of the present conflict. Mercantile made twelve advances under its terms to D & C between March 5 and September 14, 1974. The majority of the notes were paid or formally renewed on or before the date of maturity, with the exception of the following notes: the note of April 17 was paid one day late (due April 30 and paid May 1); the note of May 7 was paid four days late (due June 6 and paid June 10); and the note of May 20 was paid seven days late (due June 3 and paid June 10). The last note, dated September 14 and due on October 14 (the actual due date was Sunday, October 13, 1974) was not paid on the due date. John Chapel testified at trial that he requested of Mercantile and received an oral two week extension of the due date until October 31. The existence of the extension was disputed by the testimony of the Mercantile officers, but the jury apparently accepted Mr. Chapel's version. Nonetheless, it was undisputed at trial that D & C failed to pay the September 14 note upon the extended due date, October 31.
Frank Musotto, the commercial loan officer in charge of D & C's account, reviewed the terms of the September 14 note on November 4, 1974 and, relying upon a cross-default clause contained in it, decided to charge the D & C checking account for the principal and interest of the September 14 note and the remaining balances on the two installment loans. The cross-default clause of the September 14 promissory note states as follows:
"Upon the happening of any of the following events, each of which shall constitute a default hereunder, all liabilities of each maker to bank shall become immediately due and payable: (a) failure of any obligor ... to perform any agreement hereunder, to pay interest hereon promptly when billed, or pay any other liability whatsoever to bank when due; ... (d) ... the insolvency of any obligor."
Mr. Musotto stated two reasons for the decision to set off the loans against the checking account: the first, of course, was *38 the overdue status of the September 14 note; the second reason given by Musotto was information he received from D & C's insurance agent that the corporation was going out of business. This last point was disputed at trial by the insurance agent, who testified he recalled no phone conversations with Musotto between October 14 and November 4.
Having decided to exercise the set-off rights embodied in the note, Musotto directed both the Commercial Loan and the Installment Loan Departments, on November 4, to charge D & C's checking account with the balances on the September 14 note and the two installment loans; the charges, to the extent funds were available, were made the same day.[2] Musotto further authorized that D & C's checking account be "frozen" or placed "on status" until the charges were paid. According to the Mercantile officer's testimony, the "freezing" of the account meant that checks could not be routinely paid; the account would have to be handled on an individual basis rather than by computer.
The actions taken by Mercantile on November 4 resulted in nine checks drawn against the D & C account being returned unpaid and the funds applied to the installment loans instead. The nine checks were as follows:
Check No. Amount Dated Payee
1002 208.24 10-31 John Chapel
855 15.00 10-31 John Chapel
1000 35.02 10-31 Virginia Chapel
854 50.00 10-31 Logan Delp
1003 228.29 10-31 Logan Delp
841 206.12 10-21 Eulalia Delp
1001 65.21 10-31 R. Leopold
998 73.32 10-31 V. Leopold
993 134.82 10-24 M. Shaw
*39 These returned checks were stamped with a red box marked "NSF" and bore an additional handwritten notation "account closed". All of the above checks were either paid the second time presented or were replaced with new checks to the payees which were paid when presented. Three other checks, listed below, were presented later in November and returned marked "NSF" but not "account closed".
Check No. Amount Dated Payee
842 8,247.58 10-23 IRS
863 18.63 11-18 American Radio Telephone
864 30.80 11-19 Postmaster
Chapel learned of Mercantile's charges against the account on November 5 when he called Blake Hampson, an employee of the bank who worked under the supervision of Musotto, to request an extension of the September 14 note. Hampson informed him of the set off of the note and the two installment loans and that checks were being returned. Hampson met with Chapel and the corporation's attorney, Robert Powell, at Powell's office on November 11 or 12. D & C acknowledged the propriety of the $3,575.83 set off (promissory note) but requested that the amount charged to pay off the two installment loans, $5,337.79, be reversed. Chapel and Powell were concerned that an outstanding check payable to the IRS for withholding taxes in the amount of $8,247.58 would not be honored upon presentment. Mercantile, without conceding any error, agreed to reinstate the two installment loans and return $5,337.79 to the corporation's account. On November 21, 1974, D & C's account was credited with $5,337.79.
Appellant raises a multitude of issues on appeal which we shall address selectively:
"I. Was it error to submit the question of interpretation of written contracts to the jury?
A. Was the bank entitled as a matter of law to setoff defaulted debts against the plaintiff corporation's checking account pursuant to the corporation's written contracts with the bank?
*40 B. If a factual question was presented, was it error to refuse to instruct:
(1) that parties are bound by the terms of written contracts (including terms which define `default')?
(2) that upon default as defined in the written contracts a bank may legally setoff against the debtor's checking account?
II. Was it error to permit the plaintiff corporation (and individual plaintiffs not customers of the bank) to recover punitive damages:
(1) where the bank, in asserting its legal rights, relied on the terms of the written contracts?
(2) where the court refused to instruct the jury that if defendant acted in reliance on written documents and asserted its legal rights, no malice could be inferred?
(3) where there was insufficient evidence to sustain a finding of actual malice?
III. In a wrongful dishonor suit:
A. Was it error to permit the jury to find that under the facts before it the checks were wrongfully dishonored?
B. Was it error to permit the jury to award compensatory damages where no injury or damages were proved?
C. Was it error to refuse to instruct the jury on how to measure damages for wrongful dishonor?
IV. Was it error to permit the individual plaintiffs to sue the bank for an alleged conversion of the corporation's checking account funds?
A. Was it error to permit individuals who have no property interest in the funds *41 allegedly converted to bring the conversion suit?
B. Was it error to permit the individuals to recover in the conversion action by virtue of being named as payees on some of the returned checks?
V. Was it error to refuse to instruct the jury on how to measure damages in the conversion action?
VI. Was it error to permit plaintiffs to obtain multiple recoveries for one loss?"
Mercantile's Decision to Set Off the Three Obligations Against D & C's Checking Account
A fundamental question going to the heart of the appellees' allegations of wrongful dishonor and conversion must be answered first before the propriety of the trial court's submission of Counts One and Two to the jury can be considered. The question is this: Whether Mercantile was entitled as a matter of law to set off defaulted debts against D & C's checking account pursuant to D & C's written contracts with Mercantile and, as a result, did the trial court err in failing to grant Mercantile's motion for directed verdict. Since we shall conclude that the motion for directed verdict should have been granted, we need not discuss the propriety of the trial court's instructions to the jury.
The interpretation of a written contract, as a general matter, is a question of law for the court. See University National Bank v. Wolfe, 279 Md. 512, 521 n. 7, 369 A.2d 570 (1977); Allen Engineering Corp. v. Lattimore, 235 Md. 182, 187, 201 A.2d 13 (1964); Severin v. Green, 166 Md. 305, 307, 170 A. 731 (1933); see generally, 5 M.L.E., Contracts, § 153 (1960). The terms of a written contract, however, may be modified or waived by the subsequent conduct of the parties. University National Bank v. Wolfe, supra at 523; Sullivan v. Mosner, 266 Md. 479, 491, 295 A.2d 482 (1972) (subsequent oral agreement). Whether the subsequent conduct of the parties amounts to a modification or waiver of their contract, in this instance the terms controlling the due date of the *42 September 14 note, is generally a question to be decided by the trier of fact. University National Bank v. Wolfe, supra at 523; Hoffman v. Glock, 20 Md. App. 284, 289, 315 A.2d 551 (1974).
The question, then, reduces itself to one of whether there was any evidence of subsequent conduct which presented a factual issue of modification or waiver of the written terms of the September 14 note. We conclude that there was not. Appellees argue that there was ample evidence that a modification and/or waiver occurred with respect to the default term in the line of credit loan. The evidence they cite is Mr. Chapel's testimony that in the past, two week extensions for payment due on the loan had been granted orally. According to appellees, the record of line of credit notes, which shows notes paid after the due date, supports their theory of modification. Mr. Chapel also testified that he was granted an oral extension on the note due October 14 to October 31. He further stated that he had always received written notice of the past due status of a note and that in this particular instance he did not.
While the evidence of an extension of the due date to October 31 was contradictory, there was no dispute that October 31 came and went without payment of the note by D & C. The line of credit transactions reveal no basis for the appellees' contention that two week oral extensions had been granted in the past, and upon the passage of that period a further grace period was granted. As set forth previously, there were three notes which were paid, respectively, one day late (note of April 17, due April 30, paid May 1), four days late (note of May 7, due June 6, paid June 10) and seven days late (note of May 20, due June 3, paid June 10). The past practice of Mr. Chapel, with the exception of the three notes listed above, had been to go to the bank and formally renew the note if more time was needed by the corporation to make the payment. If Mercantile's determination of default and set off against the checking account had occurred within the period of the avowed extension, i.e., prior to October 31, 1974, a factual dispute might exist which would require the submission of the issue of modification to the jury. That, *43 however, is not the case here. Robert Powell, D & C's attorney, indeed admitted the default of the September 14 note in a letter dated November 14, 1974 to Blake Hampson of Mercantile and, as we observed earlier, the factual dispute existed only as to the alleged extension to October 31. There is no dispute that the "extended" due date of October 31 was not met. The trial court, therefore, should have ruled as a matter of law that the September 14 note was in default and that under its terms the two secured installment loans were in default as well. The September 14 note provides:
"Upon the happening of any of the following events, each of which shall constitute a default hereunder, all liabilities of each maker shall become immediately due and payable ..."
The events relied upon by Musotto, the Mercantile officer who determined that all three obligations were in default, were the past due status of the September 14 note and the insolvency of D & C on November 4. We need not address the insolvency question since the cross-default clause provides a sufficient legal foundation for Mercantile's exercise of its right under the note to determine all obligations immediately due and payable. Since no challenge is made by appellees to the propriety of the cross-default clause, and there is no evidence that Mr. Chapel made any protest as to the contents of the September 14 note, D & C is bound by its provisions. See Sullivan v. Mosner, 266 Md. at 495 (1972).
The September 14 note also contained a set off clause, which follows:
"Upon the occurrence of any default hereunder, Bank shall have the right immediately and without further action by it to set off against this Note all money owed by Bank in any capacity to each obligor, whether or not due; and Bank shall be deemed to have exercised such right of set off and to have made a charge against any such money immediately upon the occurrence of such default even though such charge is made or entered on the books of Bank subsequent thereto."
*44 Appellees' position here and at trial, having never assumed that D & C's debts were due, did not question the propriety of Mercantile's alleged right to recover the debts through the use of a set off against the checking account. Their position has remained constant that the terms of the September 14 note were modified by the subsequent conduct of the parties and therefore was not due and payable when Mercantile exercised its right of set off as provided in the note itself. Since this particular point is not disputed by appellees, Md. R. 1085, we shall avoid the niceties of the law governing a bank's right to set off; suffice it to note that according to the Maryland cases Mercantile has a right to set off matured debts of a depositor against the depositor's checking account. See Messall v. Suburban Trust, 244 Md. 502, 510, 224 A.2d 419 (1966) (creditor permitted to set off accelerated debt); see also Union Trust Co. v. Mullineaux, 173 Md. 124, 194 A. 823 (1937); Hayden v. Citizens National Bank of Baltimore, 120 Md. 163, 87 A. 672 (1913); First Denton National Bank v. Kenny, 116 Md. 24, 81 A. 227 (1911); Records v. McKim, 115 Md. 299, 80 A. 968 (1911); see generally, 4 M.L.E., Banks and Trust Companies, § 118 (1960); 5A Michie, Banks and Banking, §§ 119b-120 (1973).
Having established the basic legality of Mercantile's set off of the defaulted note and installment loans against D & C's checking account, we shall now consider whether Mercantile's motion for a directed verdict on Counts One and Two should have been granted. This discussion will essentially resolve appellant's issues III and IV and we need not go any further.
Wrongful Dishonor
Count One, which alleges Mercantile's wrongful dishonor of checks drawn on D & C's checking account, is premised upon the theory that the set off against the corporate checking account was improper. This, we have decided, was not the case. In reviewing the propriety of the denial of Mercantile's motion for directed verdict we must, of course, consider all evidence and inferences rationally drawn *45 therefrom in the light most favorable to the party against whom the motion is made. If there is in the record any legally relevant and competent evidence to prove the appellees' case then we must uphold the trial court's denial of the motion. Boggs v. Citizens Bank & Trust Co., 32 Md. App. 500, 502, 363 A.2d 247 (1976). We find no such evidence here.
The Commercial Law Article of the Annotated Code of Maryland, (1975), § 4-402, (hereinafter UCC) sets forth the cause of action known as wrongful dishonor:
"§ 4-402. Bank's liability to customer for wrongful dishonor.
A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. When the dishonor occurs through mistake liability is limited to actual damages proved. If so proximately caused and proved damages may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case. (An. Code 1957, art. 95B, § 4-402; 1975, ch. 49, § 2.)"
A payor bank, in this instance Mercantile, generally has a duty to its customer to pay items "properly payable" and drawn against the customer's account. UCC §§ 4-401; 4-104 (1) (i). If this duty is breached, then the bank is liable to its customer for wrongful dishonor under § 4-402. Comment 2 of that section states, "`Wrongful dishonor' excludes any permitted or justified dishonor..." The actions taken by Mercantile amount to a permitted, rather than wrongful, dishonor. Cf. Loucks v. Albuquerque Nat'l. Bk., 76 N.M. 735, 418 P.2d 191 (1966) (improper set off resulted in wrongful dishonor of plaintiff's checks); see generally, White & Summers, Uniform Commercial Code, § 17-4 (1972).
There were a total of twelve D & C checks which were allegedly dishonored by Mercantile. Of those twelve checks, nine were charged to D & C's account on November 4 and returned to the payees for non-sufficient funds on November *46 5. While the posting of an item (in this instance the entering of a debit to the customer's account), § 4-109 (d),[3] is a measuring point in the process of determining when an item may be finally paid, it does not mean that Mercantile's set off was too late to include those funds. See § 4-109 Comment. Mercantile's return of the nine checks is perfectly acceptable under § 4-301 which provides:
"(1) Where an authorized settlement for a demand item ... received by a payor bank otherwise than for immediate payment over the counter has been made before midnight of the banking day of receipt the payor bank may revoke the settlement and recover any payment if before it has made final payment ... and before its midnight deadline it
(a) Returns the item ..."
Mercantile's charges against the account on November 4 used all available funds, thus the bank's return of the checks for what Mercantile termed "non-sufficient funds" amounted to a rightful dishonor since the set off was exercised prior to midnight of the banking day (November 5) following receipt of the checks on November 4. See § 4-104 (1) (h); see generally, White & Summers, supra at § 17-7 for an excellent discussion of this problem.
Of the three remaining checks dishonored, only the IRS check was included in the jury award. The IRS check for $8,247.58 was returned marked NSF (non-sufficient funds) on November 12. The saga of the IRS check is a little more complex than that of the other checks.
On November 11, 1974 John Chapel, Robert Powell, who was D & C's attorney, and Blake Hampson met at Powell's office to discuss the bank's charges against the account. Understandably concerned that the IRS would take action *47 against D & C if the check, which was dated October 23, 1974 and sent to the IRS before the set off occurred, was not paid, John Chapel requested that the set offs be reversed immediately and the loans reinstated. While Hampson conceded no error on the part of the bank, he did agree to the bank's writing a letter to Mr. Powell stating that the bank would reverse their position on the installment loans and reinstate the $5,336.79, the pre-November 4 balance on the installment loans, in the checking account. According to Chapel's testimony Hampson represented that Mercantile's employees would monitor the account and the IRS check would not be rejected. The next day, November 12, the check was returned by Mercantile to the IRS. On November 13 Hampson stated to Chapel that the account was open and that checks would be honored. Chapel was notified by the IRS on November 14 that the check had been returned. The check was resubmitted to Mercantile by the IRS. Hampson called Chapel on November 19 and informed him that Mercantile had honored the IRS check on that day and that D & C's account would be overdrawn by $800 after the re-deposit of the installment loans. A letter, also dated November 19, from Hampson to Powell, informed Powell that the installment loans had been reinstated "as of this date". The credit to the account actually was made on November 21, 1974.
Our inquiry focuses upon the dishonor of the check on November 12. The checking account balance of November 12 was $954.22. Appellees argue that the balance should have been $6,292.01, representing the actual balance of $954.22 plus $5,337.79, the amount of the two installment loans, in other words, the reinstatement of the loans should have taken place immediately after the November 11 meeting. Appellees further contend that Mercantile had an obligation to reinstate that portion of the $3,575.83 (September 14 note) necessary to pay the IRS check. The answer quite simply to D & C's argument is that while Mercantile did agree to reinstate the amount of the set off attributable to the two installment loans as an accommodation to its customer, it never made any such agreement as to the September 14 note. Thus, even if the balance on November 12 had been $6,292.01, it would not have been sufficient to cover the face amount of the IRS check. *48 Appellees rely upon UCC § 4-401 (1) as authority for their position that the IRS check should have been drawn on insufficient funds. That section, which provides in pertinent part:
"As against its customer, a bank may charge against his account any item which is otherwise properly payable from that account even though the charge creates an overdraft."
refers only to the bank's discretion in payment of items even though it creates an overdraft; it places no affirmative obligation upon the bank to pay the item. Thus, there was no evidence upon which a claim for wrongful dishonor of the IRS check could be based.
We therefore conclude that appellant's motion for directed verdict on Count One should have been granted.
Conversion
We think it obvious at this juncture that neither D & C nor the individual plaintiffs have a cause of action in conversion of the checking account funds, since Mercantile's set off of the three obligations was lawful. Conversion necessarily involves the idea that the interference with another's property be wrongful, Interstate Ins. Co. v. Logan, 205 Md. 583, 588-89, 109 A.2d 904 (1954); Gray v. Frazier, 158 Md. 189, 192, 148 A. 457 (1930); Western Md. Dairy v. Md. Wrecking & Equipment Co., 146 Md. 318, 327, 126 A. 135 (1924); Kirby v. Porter, 144 Md. 261, 266, 125 A. 41 (1923); see generally, 5 M.L.E., Conversion, § 24 (1960). Mercantile's actions simply cannot be characterized as anything but legal. The appellant's motion for directed verdict on Count Two was erroneously denied.
Having concluded that Mercantile's motion for directed verdict on Counts One and Two should have been granted, we see no necessity for reaching the other issues raised by Mercantile.
Judgment reversed.
Costs to be paid by appellees.
NOTES
[1] D & C was formed in July of 1973.
[2] The D & C checking account showed a balance of $8,261.70 on November 4, 1974, which was insufficient to meet the entire indebtedness of $8,913.62. The bank's debits that day included $3,575.83, the principal and interest on the September 14 note, and $4,685.87, a major portion of the amount due on the two installment loans. The balance on the installment loans, $651.92, was debited against the account on November 7, 1974 after more funds became available.
[3] Section 4-109 (d) provides in pertinent part:
"The `process of posting' means the usual procedure followed by a payor bank in determining to pay an item and in recording the payment including one or more of the following or other steps as determined by the bank: (d) entering a charge or entry to a customer's account."
|
581 S.E.2d 245 (2003)
40 Va. App. 728
Gregory Tyrone ALSTON
v.
COMMONWEALTH of Virginia.
Record No. 3442-01-2.
Court of Appeals of Virginia, Richmond.
June 3, 2003.
*247 David M. Gammino, Richmond, for appellant,
Marla Graff Decker, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges ELDER, ANNUNZIATA and CLEMENTS.
CLEMENTS, Judge.
Gregory Tyrone Alston was convicted on his conditional guilty plea of possession of more than one-half ounce but less than five pounds of marijuana with intent to distribute, in violation of Code § 18.2-248.1. On appeal, Alston contends the trial court erred in denying his motion to suppress the marijuana found on his person and in his car as the product of an unlawful seizure that violated his Fourth Amendment rights. Finding no error, we affirm the judgment of the trial court.
I. Background
In reviewing a trial court's denial of a motion to suppress, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party prevailing below. See Weathers v. Commonwealth, 32 Va.App. 652, 656, 529 S.E.2d 847, 849 (2000). So viewed, the evidence presented in this case established that on July 27, 2001, Richmond City Police Officer Brian Hixson was on routine patrol with Officer Timothy DeGrauwe and Officer Durham. The three officers were in one patrol car, which Hixson was driving. At approximately 10:55 a.m., the officers pulled into the property known as the Ruffin Road apartment complex. The apartment complex was posted with "no trespassing" signs.
*248 After driving approximately fifty yards into the complex, Hixson observed a purple Nissan car in the complex "come around the corner" and head in the officers' direction. Alston, whom Hixson did not know at the time, was driving the car, and there were two passengers in the rear seat and one in the front seat. As Alston drove by the patrol car, Hixson recognized the passenger in the front seat as Pierre Stanberry, someone who Hixson knew had been banned by court order from entering the Ruffin Road apartment complex. Hixson had previously arrested Stanberry for trespassing on that property at least twice, the last time occurring in September or October of 2000. Hixson turned the patrol car around to investigate Stanberry's presence in the complex. The officers observed Alston pull up to Ruffin Road at the entrance/exit of the apartment complex and activate his turn signal "indicating [he was] going to make a left-hand turn" onto Ruffin Road. Then, "[al of a sudden[,] the left turn signal went off and [Alston] made a quick right turn" onto Ruffin Road. Almost immediately, Alston pulled to the side of the road directly in front of a parked car, parked, and "quickly" got out of the car and started walking away.
Hixson, who had followed Alston onto Ruffin Road, pulled over next to Alston's car, stopping in the road. He then stepped out of his vehicle and "asked" Alston, who had walked "into the roadway, right in front of [the police] vehicle," to "have a seat back in his car." Because the patrol car was "in the travel lane of Ruffin Road," Hixson activated the car's emergency lights at some point.[1]
Complying with Hixson's request to return to his car, Alston went back to his car and got in. Hixson then approached Alston's car and immediately noticed a "box of open sandwich haggles" and an "open beer" in the car's center console. He also smelled the odor of marijuana emanating from the car.
Hixson asked Alston for identification, which Alston provided. Returning to the patrol car, Hixson ran Alston's information through "Richmond-Henrico NCIC" and learned that Alston had an outstanding warrant on file with the City of Richmond. Hixson arrested Alston on that warrant.
Incident to that arrest, Officer Durham searched Alston and his car. As a result of the search, Durham found marijuana on Alston's person and in his car. Additional charges were then brought against Alston. Pierre Stanberry was also charged with several offenses, including trespassing.
On cross-examination at the suppression hearing, Hixson acknowledged that, as far as he knew, Alston was legally parked and had not engaged in any criminal activity when he asked him to get back in his car. He further acknowledged that his investigation of Stanberry's trespassing would not have been hindered if Alston had left because he could have gone directly to Stanberry, who stayed in the car, and asked him questions. When asked to describe the "reasonable and articulable suspicion" that served as the basis for having Alston get back in his car, Hixson explained, "It seemed suspicious to me the way he pulled out of the complex and then just pulled over right in front of the complex that he had just exited from, and then he quickly got out of the vehicle and walked." Hixson further testified: "It all seemed very suspicious to me. Mr. Stanberry I knew was banned from the property. I knew him by name, and I just asked Mr. Alston to have a seat back in the vehicle."
Officer DeGrauwe, who was called as a witness for Alston, testified that, when he saw Alston get out of his car and start to walk "across the street," he got out of the patrol car and "got ready to run" after him, because, based on his training and experience, that was what normally happened under such circumstances. When asked to explain the circumstances that made him believe that Alston was going to try to run away, DeGrauwe stated that Alston's "quick right turn" after signaling to turn left, his pulling over suddenly and parking, and his getting out of the car are occurrences that *249 are generally followed by "a foot pursuit." Ultimately, however, he did not have to pursue Alston, DeGrauwe stated, because "Officer Hixson looked at [Alston] and said get back in the car," and Alston, who was approximately ten feet away, complied.
Alston testified at the suppression hearing. According to his testimony, he had never been banned from the Ruffin Road apartment complex and did not know that Stanberry, his cousin, had been. On the day in question, he had been visiting another cousin who lived at the apartment complex. When he was leaving the complex, she called on his cell phone to tell him he had left something at her place. He immediately pulled over to the side of the road, parked, and had started to walk the short distance back to his cousin's apartment when the police pulled up. One of the "three or four" officers who were there "told [him] to get back in the car." Believing, based on the officer's tone of voice, that he was not free to leave, he got back in the car, as ordered.
Alston admitted that he had missed an earlier court date and that he knew he had an outstanding warrant for failure to appear. He admitted there was a can of beer in his car but denied it was open. He also denied that there were "baggies" in the car or that anyone in the car had been smoking marijuana.
In a pretrial motion, Alston moved to suppress the marijuana as the product of an unlawful seizure. Ruling that, under the circumstances of this case, Hixson could ask Alston to get back in his car in order "to secure the situation just long enough to find out what [was] going on," the trial court denied Alston's motion to suppress.
Alston then entered a conditional plea of guilty, preserving his right to appeal the trial court's denial of his motion to suppress. Upon that plea, the trial court found Alston guilty of possession of more than one-half ounce but less than five pounds of marijuana with the intent to distribute and sentenced him to thirty-six months of incarceration, with thirty months suspended for a period of five years on certain conditions. This appeal followed.
II. Analysis
"In reviewing a trial court's denial of a motion to suppress, `[t]he burden is upon [the defendant] to show that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.'" McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (alterations in original) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). "`Ultimate questions of reasonable suspicion and probable cause to make a warrantless search' involve questions of both law and fact and are reviewed de novo on appeal." Id. (quoting Ornelas v. United `States, 517 U.S. 690, 691, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996)). However "we are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." Id. at 198, 487 S.E.2d at 261 (citing Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663).
Encounters between the police and citizens "generally fall into one of three categories." Id.
First, there are, consensual encounters which do not implicate the Fourth Amendment. Next, there are brief investigatory stops, commonly referred to as "Terry" stops, which must be based upon reasonable, articulable suspicion that criminal activity is or may be afoot. Finally, there are "highly intrusive, full-scale arrests" or searches which must be based upon probable cause to believe that a crime has been committed by the suspect.
Id. (citations omitted) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)).
Alston contends he was unlawfully seized under Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968), when Officer Hixson stopped him from walking away by ordering him back to his car. At that moment, Alston argues, Hixson did not have grounds to support a reasonable, articulable suspicion that he was engaged in criminal activity. The officer's observation of his "commonplace" driving behavior, his walking *250 away from his lawfully parked car, and his having someone in his car who was suspected of trespassing, gave rise, at best, Alston maintains, to a mere inchoate hunch that he was engaged in criminal activity. Thus, Alston concludes, Officer Hixson violated his Fourth Amendment rights in ordering him back to his car and the trial court erred in refusing to suppress the subsequently discovered marijuana, a product of the unlawful seizure.
The Commonwealth contends Alston was not seized for Fourth Amendment purposes until he was arrested on the outstanding warrant. Prior to that, the Commonwealth argues, the encounter between Officer Hixson and Alston was entirely consensual.
Assuming, without deciding, that Alston was "seized" within the meaning of the Fourth Amendment when Officer Hixson stopped him from walking away, we agree with the trial court that, on the facts of this case, that seizure was not in violation of Alston's Fourth Amendment rights because Hixson was entitled to briefly detain Alston for investigative purposes in order to question him and maintain the status quo.
"The Fourth Amendment does not forbid all ... seizures but only those that are unreasonable." Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d 781, 782-83 (1971) (citing Terry, 392 U.S. at 9, 88 S.Ct. at 1873). Whether a seizure is unreasonable under the Fourth Amendment depends on "the particular facts of [the] case." Harris v. Commonwealth, 262 Va. 407, 414, 551 S.E.2d 606, 609 (2001).
"[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information." Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705 (1985). Indeed, "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Moreover,
an officer need not suspect an individual of a particular crime in order to justify a Terry stop. A general suspicion of some criminal activity is enough, as long as the officer can, based on the circumstances before him at the time, articulate a reasonable basis for his suspicion.
Hatcher v. Commonwealth, 14 Va.App. 487, 490, 419 S.E.2d 256, 258 (1992). Likewise, "[a]ctual proof that criminal activity is afoot is not necessary; the record need only show that it may be afoot." Harmon v. Commonwealth, 15 Va.App. 440, 444, 425 S.E.2d 77, 79 (1992). The investigatory stop, however, "must be based on something more than the officer's `inchoate and unparticularized suspicion or "hunch."` " Ramey v. Commonwealth, 35 Va.App. 624, 629, 547 S.E.2d 519, 522 (2001) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883).
We are further mindful in assessing an officer's justification for a seizure that "[t]here are no bright line rules to follow when determining whether a reasonable and articulable suspicion exists to justify an investigatory stop." Hoye v. Commonwealth, 18 Va.App. 132, 135, 442 S.E.2d 404, 406 (1994). As the Supreme Court stated in Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000):
In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.
In deciding whether to make an investigatory stop, "an officer is `entitled to rely upon "the totality of the circumstances the whole picture."` " Peguese v. Commonwealth, 19 Va.App. 349, 351, 451 S.E.2d 412, 413 (1994) (en banc) (quoting Lansdown v. Commonwealth, 226 Va. 204, 212, 308 S.E.2d 106, 112 (1983) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981))). The police officer is *251 also entitled "to view the circumstances confronting him in light of his training and experience, and he may consider any suspicious conduct of the suspected person." James v. Commonwealth, 22 Va.App. 740, 745, 473 S.E.2d 90, 92 (1996). "[A] trained law enforcement officer may [be able to] identify criminal behavior which would appear innocent to an untrained observer." Taylor v. Commonwealth, 6 Va.App. 384, 388, 369 S.E.2d 423, 425 (1988).
Applying these principles to the present case, we conclude that, based on the totality of the circumstances confronting him, Officer Hixson acted reasonably in stopping Alston from walking away and asking him to return to his car.
Hixson initially observed Alston driving on property that was posted "no trespassing." As Alston drove by the patrol car, Hixson saw a passenger in the car who he knew had recently been barred from the property. On the basis of that observation, Hixson had a reasonable and articulable suspicion that the passenger in Alston's car was trespassing. Hixson was therefore entitled to stop Alston's vehicle in order to investigate the suspected criminal activity. See Freeman v. Commonwealth, 20 Va.App. 658, 660-61, 460 S.E.2d 261, 262 (1995) (noting that "[a] police officer may stop the driver or occupants of an automobile for investigatory purposes if the officer has `a reasonable articulable suspicion, based on objective facts, that the individual is involved in criminal activity'" (quoting Jacques v. Commonwealth, 12 Va.App. 591, 593, 405 S.E.2d 630, 631 (1991))).
Intending to conduct such an investigatory stop, Hixson turned his patrol car around and proceeded after Alston's car. However, before the officer could initiate the stop, Alston, after signaling he was going to turn left upon leaving the property, abruptly turned right and almost immediately pulled to the side of the road and parked. Alston then "quickly" got out of his car and started to walk away. Hixson pulled up next to Alston's car and, finding Alston's conduct "suspicious" asked him to return to his car.
We conclude that Alston's behavior reasonably suggested that criminal activity may be afoot. In light of Alston's evasive driving maneuvers after passing Hixson's patrol car and his quick exit and departure from his parked car, a reasonable officer could conclude that Alston sought to avoid contact with the police in order to elude their investigation. See Hatcher, 14 Va.App. at 490, 419 S.E.2d at 258 (finding that a passenger of a lawfully stopped car who walked away from the car did so to evade the police officer's investigation). Hence, Hixson's observations of Alston's suspicious conduct provided him with a reasonable basis independent of the passenger's suspected trespassing to believe that Alston also might be involved in criminal activity.
Alston argues that his behavior was consistent with innocent conduct and showed "no indicia of criminal activity." We find, however, that, taken together as a whole, Alston's actions after he drove by the patrol car were sufficiently suspicious to provide Hixson with the requisite reasonable and articulable suspicion to stop Alston from walking away from the scene. See Terry, 392 U.S. at 22-23, 88 S.Ct. at 1880-81 (concluding that defendant's "series of acts, each of them perhaps innocent in itself," in combination warranted further investigation by the police). Hixson's brief detention of Alston was therefore reasonable to allow the officer to confirm or dispel his suspicion and to maintain the status quo during the course of the lawful roadside investigatory stop. See Hatcher, 14 Va.App. at 491-92, 419 S.E.2d at 259 (holding that a police officer's brief detention of a passenger who walked away from a lawfully stopped vehicle is warranted to promote the officer's "significant interest in gaining control of and monitoring a potentially hazardous roadside stop in order to conduct his lawful investigation," particularly when "events subsequent to the lawful traffic stop focus suspicion on [the] passenger"); see also United States v. Mantillas, 183 F.3d 682, 698 (7th Cir.1999) (finding that a police officer had reasonable suspicion to stop and briefly detain the defendant based, in part, on the defendant's "quickly" exiting and walking away from his vehicle in a parking lot when the officer, responding to a radio dispatch, arrived at the parking lot and illuminated *252 the defendant's vehicle with a spotlight).
Alston further contends that, even if Hixson had grounds to support a reasonable and articulable suspicion that he was engaged in criminal activity, the officer could only detain him briefly "at the point where he stood, after he immediately stopped when hailed by the police." By ordering him back into the confines of the car, Alston argues, Hixson transformed any possible investigatory detention into a custodial seizure requiring probable cause, which, at that point, did not exist.
We disagree with Alston that, by asking him to get back into his car rather than questioning him outside the car "where he stood," Hixson changed the nature of the detention from an investigatory stop into a full-fledged arrest. "The perception . . . that one is [in custody] is insufficient to convert a Terry stop into an arrest. A brief but complete restriction of liberty is valid under Terry." United States v. Moore, 817 F.2d 1105, 1108 (4th Cir.1987). For example, an investigatory stop does not necessarily become a custodial arrest when circumstances cause a police officer to draw his gun upon a suspect. See Harris v. Commonwealth, 27 Va.App. 554, 562, 500 S.E.2d 257, 261 (1998).
Moreover, "[c]ourts have routinely allowed officers to insist on reasonable changes of location when carrying out Terry stops." United States v. White, 648 F.2d 29, 37 (D.C.Cir.1981). Indeed, it is well established that police officers who are conducting a lawful investigatory stop are "authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop." United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985). The personal safety of the driver and other occupants of a lawfully stopped vehicle is also a legitimate concern for the police. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977).
Thus, "[following a lawful traffic stop, the Fourth Amendment permits the police to order the passengers to get out of the car pending the completion of the stop." Harris, 27 Va.App. at 562, 500 S.E.2d at 261 (citing Maryland v. Wilson, 519 U.S. 408, 414, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997)). Likewise, we have "previously held that police officers may ... detain passengers beside an automobile until completion of a lawful traffic stop." Id. (citing Hatcher, 14 Va.App. at 491-92, 419 S.E.2d at 259). The police may also order the driver to exit the car, see Mimms, 434 U.S. at 111 n. 6, 98 S.Ct. at 333 n. 6, and it follows that "a police officer has the power to reasonably control the situation by requiring [an occupant of the vehicle] to remain in [the] vehicle during a traffic stop." Rogala v. District of Columbia, 161 F.3d 44, 53 (D.C.Cir.1998). These additional intrusions upon the personal liberties of the occupants of the vehicle, who "`are already stopped by virtue of the [lawful] stop of the vehicle,'" are "de minimis" and are reasonable under the Fourth Amendment because of the "`weighty [public] interest in officer safety'" and the need to "maintain the status quo during the course of the investigatory traffic stop." Harris, 27 Va. App. at 562, 500 S.E.2d at 261 (quoting Wilson, 519 U.S. at 414, 117 S.Ct. at 886).
Applying these principles to the circumstances of the present case, we conclude that Officer Hixson did not violate Alston's Fourth Amendment rights by having him get back in his car before questioning him. In doing so, Hixson took steps that were reasonably necessary not only to protect Alston, himself, and his fellow officers from the dangers inherently associated with a roadside stop but also to maintain the status quo during the stop. Even though this case did not involve a situation that was overtly dangerous, such as "a dark and deserted spot or one lone officer facing a earful of suspects, our reluctance to second-guess the judgment of experienced officers is not limited to such extreme situations." White, 648 F.2d at 36 (footnote deleted). Moreover, the additional intrusion upon Alston's personal liberty was minimal. We conclude, therefore, that Hixson acted reasonably in asking Alston to get back in his car in order to control and monitor the situation during the course of the *253 investigatory stop. See Hatcher, 14 Va.App. at 491-92, 419 S.E.2d at 259.
Thereafter, Officer Hixson, in approaching Alston's car to investigate the suspected trespassing and Alston's possible criminal involvement, saw a "box of open sandwich baggies" and an open container of beer in plain view in the center console of the car and detected an odor of marijuana emanating from the car. Based on those observations, Hixson had a reasonable and articulable suspicion that justified further investigation of Alston's suspected criminal activity. Hixson's subsequent discovery that there was an outstanding warrant for Alston then provided the officer with the probable cause necessary to arrest Alston. Incident to that arrest, the police conducted a search that led to the discovery of the marijuana on Alston's person and in his car.
We hold, therefore, based upon our de novo review, that, under the facts and circumstances of this case, the trial `court did not err in denying Alston's motion to suppress.
Accordingly, we affirm Alston's conviction.
Affirmed
NOTES
[1] Hixson acknowledged at the suppression hearing that the patrol car's emergency lights were activated during the course of the investigation. However, he could not recall whether he activated the emergency lights before or after he asked Alston to return to his car. Alston testified that he did not "remember [the] emergency lights being on."
|
79 F.3d 1160
U.S.v.Potes-Ramirez*
NO. 95-4668
United States Court of Appeals,Eleventh Circuit.
Feb 27, 1996
1
Appeal From: S.D.Fla., No. 94-00642-CR-LCN
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
|
200 Cal.App.2d 533 (1962)
JOSEPH R. OCHINERO, Plaintiff and Appellant,
v.
FRED A. WERTZ et al., Defendants and Respondents.
Civ. No. 21.
California Court of Appeals. Fifth Dist.
Feb. 20, 1962.
Lawrence W. Young and Robert L. Young for Plaintiff and Appellant.
John R. Nixon for Defendants and Respondents.
STONE, J.
This is an appeal by plaintiff Ochinero from an order vacating the default of defendants Fred A. Wertz and Chester E. Wertz pursuant to motion under Code of Civil Procedure, section 473. The third defendant, Marion W. Irons, as to whom the motion was denied, has not appealed.
Defendant Chester Wertz, 63 years of age, farms in Stanislaus County, and his brother, Fred Wertz, aged 65, farms in Butte County. Their codefendant, Marion W. Irons, a self-styled businessman, prevailed upon them to invest in the trading stamp business in the San Joaquin Valley. Mr. Irons negotiated a contract for the three defendants to purchase the Valley Green Stamp Company from plaintiff. This action stems from that agreement. Copies of summons and complaint were served upon Chester Wertz September 19, 1960, and he turned them over to Irons, who was managing the Valley Green Stamp Company. Defendant Fred Wertz was served with summons and complaint on September 21, 1960, and he too turned the papers over to Irons. In each instance Irons agreed to get in touch with the plaintiff, to handle the matter and "straighten it out" for each defendant. On the other hand, each of the defendants Wertz admitted that he read both the summons and the complaint before delivering them to Irons. The Wertz Brothers continued with their farming activities, and left the lawsuit to be handled by Irons.
The record indicates that although Irons talked with plaintiff both in person and by telephone, he did little toward settling the dispute until near the end of the time for the Wertz Brothers to file an appearance. This was due primarily to his participation in a criminal action in Stanislaus County, Irons being the defendant. However, Irons alleged in his affidavit that prior to his becoming engrossed with his criminal trial, he discussed the instant action with the plaintiff, who told him not to worry and that the matter would be straightened out shortly. The record reflects, without contradiction, that on Friday, October 21, 1960, Irons called plaintiff in an effort to settle the litigation, and plaintiff suggested a meeting the following day, Saturday, October 22, with him and his attorneys. Irons and two other persons, who later were witnesses *535 at the hearing of the motion to set aside the default, met with plaintiff as requested. During the morning meeting plaintiff tried, without success, to call his attorneys. After lunch, the settlement discussion continued and plaintiff again attempted to call his attorneys, but without success. After additional settlement discussion, plaintiff suggested that Irons return the first part of the following week with defendant Fred Wertz for the purpose of settling the litigation.
The record discloses, however, that on Friday, October 21, the same day that plaintiff asked defendant Irons to meet with him, the attorneys had the clerk enter the default of defendant Fred Wertz. This, incidentally, was the first day that the default could have been entered.
On October 25, defendant Irons called plaintiff's counsel for an appointment, his purpose being a meeting to settle the litigation as suggested by plaintiff. Irons alleges that the attorney advised him that he did not want to talk, that he just wanted the money. Although the defaults of defendants Fred and Chester Wertz had been entered, this was not mentioned. On October 27, Irons and defendant Fred Wertz were advised by plaintiff to see his attorneys. Accordingly they called at the offices of the attorneys and were advised for the first time that defaults had been entered. Defendants secured the services of their present counsel the same day.
A default judgment was taken against each defendant individually for the sum of $25,108.94, together with $160.20 costs. Defendants moved under Code of Civil Procedure, section 473, to have the judgments set aside. Oral testimony was taken at the hearing and considered by the court in addition to the affidavits the substance of which has been heretofore related. The court took the matter under submission, and thereafter granted the motion as to defendants Chester E. Wertz and Fred A. Wertz, allowing each 15 days in which to answer. Plaintiff appeals from the order.
[1] On this appeal plaintiff has the burden of showing that the trial court abused its discretion in setting aside the default judgment. (Etchepare v. Ehmke, 137 Cal.App.2d 508, 511 [290 P.2d 374].) Mr. Witkin, in his work, 3 California Procedure, Attack on Judgment in Trial Court, section 47, page 2098, comments as follows about Code of Civil Procedure, section 473, "This remedial statute is highly favored and is liberally applied to carry out the policy of permitting trial on the merits." (See authorities cited by Witkin.)
Plaintiff cites numerous cases in which various excuses or *536 kinds of justification for relief under section 473 are considered, and contends that the facts of this case do not come within the rationale of any of the excuses approved by California decisions. However, in the cited cases the person upon whom the defendant relied simply failed to act. There was no element of misreliance or excusable neglect or inadvertence which could be traced to the opposing party. Here defendant Irons negotiated with plaintiff in the interest of all the defendants. Negotiating alone would not be sufficient perhaps to justify setting aside or vacating a default, but we have the additional factor that on the very day the default of defendant Fred Wertz was entered by plaintiff's attorney, plaintiff himself requested defendant Irons to meet with him. The purpose of the meeting was to discuss a settlement and a disposition of the pending action. Furthermore, the following day plaintiff, in the presence of Irons, attempted to call his attorneys, both in the morning and in the afternoon. When the attorneys could not be reached, it was plaintiff who suggested to defendant Irons that another meeting be held the following week. During the interim, plaintiff's counsel entered the default of defendant Chester Wertz.
[2] It would appear that plaintiff failed to advise his attorneys that he was negotiating with defendants through Irons. It is equally apparent that the attorneys did not advise plaintiff that they were entering the defaults of the defendants. Thus, while plaintiff was negotiating, his attorneys were defaulting. No deceit was involved, the situation resulted from a lack of communication.
It is significant that the negotiations were carried on at the request of plaintiff, that is, it was he who suggested the time and the place of the meetings with defendant Irons. This evidence is of a substantial nature, it supports the order of the trial court, and it cannot be said that there was an abuse of discretion in setting aside the default judgments. In point is the case of Stegge v. Wilkerson, 189 Cal.App.2d 1 [10 Cal.Rptr. 867]. The parties were there in the process of negotiating when defendant's default was entered. Stressing that the negotiations were had between the parties, not counsel, the court said, at pages 4-5:
" 'There can be no doubt that a trial court may find excusable neglect or surprise where settlement negotiations are being had between counsel, and where there is an oral or implied understanding that no default will be taken without notice, ...' *537"
"Applying these well-settled principles to the instant case we are convinced that the trial court did not abuse its discretion in setting aside the default judgment. While the negotiations were carried on between the parties rather than through counsel, we think there is no difference in principle between the situation shown by the record in this case than that in the Yarbrough case. The court could well find that the negotiations lulled Wilkerson into a sense of security. It also should be noted that only 39 days elapsed between the time summons was served and the default judgment entered. It should also be noted that only six days elapsed before relief from default was sought. Clearly Wilkerson acted promptly after the default was entered. There was no abuse of discretion on the part of the trial court."
Plaintiff attacks the veracity of defendant Irons. He points out that during the period in question Irons was being tried in Stanislaus County upon felony charges. Plaintiff also questions the credibility of the defendants Wertz insofar as they claim to have relied upon a person of the character and integrity of Irons. [3] Judging the credibility of witnesses, however, is the province of the trial court. (La Jolla Casa deManana v. Hopkins, 98 Cal.App.2d 339, 349 [219 P.2d 871].) The rule is the same whether the witness whose credibility is being judged gave his testimony orally or by way of affidavit. (Griffith Co. v. San Diego College for Women, 45 Cal.2d 501, 508 [289 P.2d 476, 47 A.L.R.2d 1349]; Hodge Sheet Metal Products v. Palm Springs Riviera Hotel, 189 Cal.App.2d 653, 658 [11 Cal.Rptr. 435].)
In Pearson v. Pearson, 179 Cal.App.2d 360 [3 Cal.Rptr. 839], the court considered the province of an Appellate Court when faced with a record reflecting conflicting testimony on a motion to set aside a default judgment, and succinctly stated the rule in the following language, at page 361: "It was the trial court's task to select the true from the false or half true statements that were placed before it; not ours."
Since the record reflects evidence of a substantial nature which supports the order of the trial court, we cannot say that the order vacating the default judgments constitutes an abuse of discretion.
The order is affirmed.
Conley, P. J., and Brown, J., concurred.
|
Matter of Shanna O. v James P. (2019 NY Slip Op 07455)
Matter of Shanna O. v James P.
2019 NY Slip Op 07455
Decided on October 17, 2019
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: October 17, 2019
526672
[*1]In the Matter of Shanna O., Appellant,
vJames P., Respondent. (Proceeding No. 1.)
In the Matter of Amanda P., Respondent,
vJames P., Respondent, and Shanna O., Appellant. (Proceeding No. 2.)
Calendar Date: September 11, 2019
Before: Egan Jr., J.P., Lynch, Mulvey and Devine, JJ.
Pamela B. Bleiwas, Ithaca, for appellant.
Michelle I. Rosien, Philmont, for Amanda P., respondent.
Veronica M. Gorman, Binghamton, attorney for the child.
Mulvey, J.
Appeal from an order of the Family Court of Broome County (Connerton, J.), entered April 10, 2018, which, among other things, granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, for custody of the subject child.
Shanna O. (hereinafter the mother) and respondent James P. (hereinafter the father) are the parents of the subject child (born in July 2005). In the fall of 2007, the father moved to New York, leaving the child and the mother in the state where they had all been living together. In April 2008, the mother allowed the father to take the child for an extended visit. The father then obtained a Family Court order granting him sole custody, so the child remained living with the father and petitioner Amanda P. (hereinafter the stepmother), who later married the father. From 2008 until the mother moved back to this state in 2012, the mother visited the child approximately 16 times and admits that, at one point, she went three years without seeing the child. In 2012, the mother began daytime visits with the child and progressed into visits every other weekend, as embodied in a 2013 Family Court order.
In the fall of 2016, the father informed the mother that he had separated from the stepmother but left the child in the stepmother's care. The mother began communicating more regularly with the stepmother and, based on the father's approval, began visiting with the child every weekend. In early May 2017, the stepmother asked the father to completely leave the residence. At the end of July 2017, the mother filed a petition against the father seeking custody. The stepmother later filed a custody petition against both parents. After hearings on both petitions, Family Court awarded custody to the stepmother and visitation to each parent. The mother appeals.
Although Family Court has rendered a thorough and thoughtful decision, it erred in basing its custody determination on the premise that the stepmother was a de facto parent who had standing to seek custody under Domestic Relations Law § 70 (a) pursuant to the Court of Appeals decision in Matter of Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1 [2016]). Domestic Relations Law § 70 (a) provides that "either parent" may apply to a court for custody of a child residing in the state. In Matter of Brooke S.B., the Court expanded the definition of the word parent — a term not defined in the statute — to include a partner to a biological or adoptive parent where the partner has demonstrated "by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together" (Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d at 14). While the Court noted that "[a] growing body of social science reveals the trauma children suffer as a result of separation from a primary attachment figure — such as a de facto parent — regardless of that figure's biological or adoptive ties to the children" (id. at 25), the Court also noted that courts "must, however, protect the substantial and fundamental right of biological or adoptive parents to control the upbringing of their children" (id. at 26). The Court was not considering "whether to allow a third party to contest or infringe on those rights; rather, the issue [was] who qualifies as a 'parent' with coequal rights" (id.).
The Court purposely kept its holding narrow and did not expand it to include all or most stepparents, or all people who could establish a functional equivalency to a parent (id. at 27-28). While rejecting the premise that it was required in that case to "declare that one test would be appropriate for all situations" (id. at 27), the Court noted that, based on the Legislature's "use of the term 'either,' the plain language of Domestic Relations Law § 70 clearly limits a child to two parents, and no more than two, at any given time" (id. at 18 n 3). As the reasoning relied upon by Family Court would result in the child having three parents — the mother, the father and the stepmother — who would all simultaneously have standing to seek custody, such reasoning does not comport with the holding in Matter of Brooke S.B. Therefore, to establish standing to seek custody as a nonparent, the stepmother had to demonstrate extraordinary circumstances.
"Notwithstanding Family Court's failure to make the threshold determination regarding extraordinary circumstances, we may independently review the record to make such a determination where, as here, the record has been adequately developed" (Matter of Roth v Messina, 116 AD3d 1257, 1258-1259 [2014] [citations omitted]; see Matter of Rosso v Gerouw-Rosso, 79 AD3d 1726, 1727 [2010]; Matter of Michael G.B. v Angela L.B., 219 AD2d 289, 292 [1996]). "A parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, disruption of custody over an extended period of time or other extraordinary circumstances" (Matter of Brown v Comer, 136 AD3d 1173, 1174 [2016] [internal quotation marks, brackets and citations omitted]; see Matter of Curless v McLarney, 125 AD3d 1193, 1195 [2015]). "The extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case, including, among others, the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role" (Matter of Brown v Comer, 136 AD3d at 1174 [internal quotation marks, ellipsis and citations omitted]). Only after the nonparent establishes extraordinary circumstances may a court consider the best interests of the child (see id. at 1176; Matter of Banks v Banks, 285 AD2d 686, 687 [2001]).
This situation is unlike those where a parent simply left a child in the care of a relative, such as a grandparent or cousin (compare Matter of Brown v Comer, 136 AD3d at 1175). Here, the child was residing with the other parent — the father — pursuant to a court order. The mother did not originally expressly relinquish the child to the stepmother. Rather, the stepmother assumed parental responsibilities due to her relationship with the father and based on his custodial authority. Nevertheless, in considering the cumulative effect of all the issues, we note that the mother had very little contact with the child for five years, including not seeing him at all for three continuous years, while the child was at a formative age and being raised by the father and the stepmother. Starting in 2012, the mother began consistently exercising her visitation and has continued to do so. However, the mother remained uninvolved in the child's medical and educational life and was only minimally involved in his extracurricular activities. Although she contends that the father did not provide information on these topics when asked, the mother did not exercise her rights under the custody order to obtain such information on her own, nor did she ask the stepmother for information on most of these topics, despite being directed to do so by the father. For example, the mother complained that the father and the stepmother did not provide information about school activities, but she acknowledged that the school calendar was available online. The mother asserted that she was stymied in her attempts to obtain records from the child's elementary school, but she did not later attempt to contact the child's middle school, which he had been attending for two years at the time of the hearing. Despite dropping the child off at soccer events during her visitation time, the mother did not know the names of any of his coaches or the schedule for soccer practices and games that did not take place on her weekends. Overall, she took little initiative to learn about the child's life outside of her parenting time.
The child, who was 12 years old at the time of the hearing, had lived with the stepmother since he was 2½ years old. Throughout that time, the stepmother provided the day-to-day care for the child and they formed a close bond (compare Matter of Burton v Barrett, 104 AD3d 1084, 1085-1086 [2013]). Though the mother cannot be faulted for allowing the child to remain living with the stepmother while the custodial father was also present in the household, the mother testified that the father informed her in September or October 2016 that he no longer lived with the stepmother and the child. The mother further testified that she discovered on June 28 or 29, 2017 that the child was going to a summer recreation program, rather than spending extended time with her in the summer, yet she did not file her petition until July 28, 2017 (compare Matter of Hawkins v O'Dell, 166 AD3d 1438, 1439 [2018]; Matter of Burton v Barrett, 104 AD3d at 1086). It is unclear why the mother waited approximately 10 months after learning that the child was no longer living with the father to seek custody, and thereby attempt to assume the primary parental role. Instead, she chose to leave the child in the stepmother's continued care. Under these facts, the stepmother established extraordinary circumstances providing her with standing to seek custody (see Matter of Curless v McLarney, 125 AD3d at 1196-1197; Matter of Tucker v Martin, 75 AD3d 1087, 1088-1090 [2010]; Matter of Isaiah O. v Andrea P., 287 AD2d 816, 817 [2001]).
Moving to the best interests of the child, he has lived with the stepmother since he was a toddler, has a close bond with her and was described as inseparable from his half brother, who also lives with them. The child has always attended schools in the same district, has an educational plan to address his difficulties, participates in sports in that district and all of his friends are there. The mother lives in a different school district. The stepmother has been managing the child's medical conditions for a decade, whereas the mother did not even know the names of his doctors. The stepmother has been communicating with the mother regarding visits and providing the majority of the transportation; the mother has no vehicle and her driver's license is suspended, although she drove to drop the child off on at least some occasions. It appears that the stepmother would be most likely to foster a relationship between the child and the other person, as demonstrated by the mother describing it as "[u]nfortunate[]" that the child had lived with the stepmother on a day-to-day basis for a decade and formed a bond with her. Although not determinative, the child's attorney advocated that the child continue living with the stepmother (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]). Overall, because the stepmother has been the most consistent parental figure in the child's life and will maintain stability for him, it is in his best interests to live primarily with her (see Matter of Curless v McLarney, 125 AD3d at 1197). Accordingly, we affirm the award of custody and primary residence to the stepmother.
Egan Jr., J.P., Lynch and Devine, JJ., concur.
ORDERED that the order is affirmed, without costs.
|
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 23, 2009
No. 09-11953 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-80685-CV-JIC
JANIS BLACKMON,
Plaintiff-Appellant,
versus
WAL-MART STORES EAST, L.P.,
d.b.a. Wal-Mart,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 23, 2009)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Janis Blackmon appeals an adverse summary judgment in favor of her
former employer, Wal-Mart, on her sexual harassment and retaliation claims under
Title VII, 42 U.S.C. §§ 2000e-2(a), 3(a), and the Florida Civil Rights Act, Fla. Stat.
§ 760.10. On appeal, Blackmon argues that the district court erred in concluding
that comments of a sexual nature made by a co-worker Manuel Pereiro,
culminating in a single incident of physical touching, were not severe or pervasive
enough to amount to a hostile work environment. Blackmon also challenges the
district court’s determination that Wal-Mart is not liable for any alleged hostile
work environment because it took prompt remedial action upon learning of the
harassment. Finally, Blackmon argues that she was unlawfully retaliated against
and terminated for complaining about Pereiro’s conduct and that Wal-Mart’s
justification for her termination, excessive absenteeism, was mere pretext.
I.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion. Skrtich
v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002). “Summary judgment is
appropriate only when the evidence before the court demonstrates that ‘there is no
genuine issue of material fact and that the moving party is entitled to judgment as a
matter of law.’” Id. (quoting Fed.R.Civ.P. 56(c)). “There is no genuine issue of
material fact if the nonmoving party fails to make a showing sufficient to establish
2
the existence of an element essential to that party’s case and on which the party
will bear the burden of proof at trial.” Jones v. Gerwens, 874 F.2d 1534, 1538
(11th Cir. 1989). “Genuine disputes are those in which the evidence is such that a
reasonable jury could return a verdict for the non-movant.” Mize v. Jefferson City
Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
The Florida Civil Rights Act of 1992 (“FCRA”) protects employees from
gender discrimination in the workplace. Fla. Stat. § 760.10(1)(a). Because the
FCRA is patterned after Title VII, “federal case law on Title VII applies to FCRA
claims.” Guess v. City of Miramar, 889 So.2d 840, 846 n.2 (Fla. 4th Dist. Ct.
App. 2005). Under Title VII, a plaintiff can establish gender discrimination
through sexual harassment by the creation of a hostile work environment, by
showing:
(1) that she belongs to a protected group; (2) that she has been
subjected to unwelcome sexual harassment; (3) that the
harassment was based on her sex; (4) that the harassment was
sufficiently severe or pervasive to alter the terms and conditions
of employment and create a discriminatorily abusive working
environment; and (5) that a basis for holding the employer
liable exists.
Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir.
2006).
Whether harassing conduct is sufficiently severe or pervasive to alter the
3
terms and conditions of a plaintiff’s employment includes an objective and a
subjective component. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114
S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). The plaintiff must subjectively perceive
the environment to be abusive, and the conduct must be severe or pervasive enough
to create an objectively hostile or abusive work environment. Id. at 21, 114 S.Ct.
at 370. The U.S. Supreme Court has noted that “[w]hether an environment is
‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances,”
such as (1) the frequency of the discriminatory conduct; (2) its severity;
(3) whether the conduct was physically threatening or humiliating; and (4) whether
it unreasonably interfered with the employee’s work performance. Id. at 23, 114
S.Ct. at 371.
“An employer is subject to vicarious liability to a victimized employee for
an actionable hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee.” Faragher, 524 U.S. at 807. The
employer is strictly liable for the hostile environment if the supervisor takes
tangible employment action against the victim. See id. at 807. However, when an
employee has established a claim for vicarious liability where no tangible
employment action was taken, a defending employer may raise as an affirmative
defense to liability or damages: “(a) that the employer exercised reasonable care to
4
prevent and correct promptly any sexually harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm otherwise.” Id.
Finally, when the perpetrator of the harassment is merely a co-employee of the
victim, the employer is liable only “if it knew or should have known of the
harassing conduct but failed to take prompt remedial action.” Miller, 277 F.3d at
1278. “When an employer has a clear and published policy that outlines the
procedures an employee must follow to report suspected harassment and the
complaining employee follows those procedures, actual notice is established.”
Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003).
We turn first to Wal-Mart’s liability for Pereiro’s conduct. In our view, the
record is clear that Wal-Mart responded promptly to Blackmon’s complaints
regarding Pereiro’s behavior.1 Blackmon testified that between December 2005
and July 19, 2006, Pereiro approached her at her cash register and made harassing
comments such as “Come on Janis, you are going to give in,” and “Babe, I’m
going to get what I want.” Pereiro also stated four or five times “You know I want
to screw you, don’t you?” On July 19, 2006, Pereiro approached Blackmon’s cash
register to give her change. He came up behind her, with the bag of coins in his
1
There is no dispute that Wal-Mart has in place a clear and published anti-harassment
policy.
5
right hand and grabbed or cupped both of Blackmon’s breasts. Both Wal-Mart’s
security camera and witnesses confirm that Pereiro touched Blackmon’s breast but,
because it appeared the two had engaged in horseplay before the touching, it was
not clear whether the touching was an accident. It is undisputed, however, that
Wal-Mart promptly investigated the incident, and Pereiro was fired on July 31,
2006, less than two weeks later. After he was terminated, Pereiro came back to the
store on at least four occasions, during which he threatened Blackmon that she
would be fired. When Blackmon complained to assistant manager Debbie Cole,
Cole told Blackmon to walk away from her register when Pereiro came into the
store.
Blackmon argues that Wal-Mart’s remedial measures were inadequate
because (1) Wal-Mart had actual notice of Pereiro’s behavior before the July 19
incident and (2) Wal-Mart refused to ban Pereiro from the store after he was
terminated. We disagree.
Although Blackmon did not report all of Pereiro’s behavior to management,
she did complain to Debbie Cole, an assistant manager designated by Wal-Mart to
receive such complaints, each time Pereiro said “You know I want to screw you,
don’t you?”. Blackmon does not dispute that Cole, in turn, reprimanded Pereiro
6
after each of Blackmon’s complaints.2 Therefore, there is no genuine dispute as to
the fact that Wal-Mart took prompt remedial action upon learning of the
harassment. It reprimanded Pereiro several times and, within two weeks of the
touching incident, it terminated his employment. Blackmon’s argument that Wal-
Mart should have banned Pereiro from the store is unavailing in light of these facts.
Wal-Mart’s termination of Pereiro was a prompt and adequate remedy.
Having determined that Wal-Mart is not liable for Pereiro’s conduct, we find
it unnecessary to address the remaining elements of hostile work environment
sexual harassment. We affirm the district court’s grant of summary judgment as to
this issue.
II.
The FCRA, like Title VII, 42 U.S.C. § 2000e-3(a), includes a separate
anti-retaliation provision, stating that:
It is an unlawful employment practice for an employer
. . . to discriminate against any person because that
person has opposed any practice which is an unlawful
employment practice under this section, or because that
person has made a charge, testified, assisted, or
2
Blackmon also apparently complained to a Customer Service Manager (“CSM”) named
Brenda about some of Pereiro’s other conduct. However, as the district court concluded, the
evidence is clear that a CSM is not a supervisor and was not designated under Wal-Mart’s anti-
harassment policy to receive complaints. Blackmon has made no argument on appeal
challenging this determination and it is therefore waived. We further note that Pereiro was a
CSM and therefore the district court did not err in concluding that he also was not Blackmon’s
supervisor.
7
participated in any manner in an investigation,
proceeding, or hearing under this section.
Fla. Stat. § 760.10(7). Federal case law on Title VII applies to FCRA retaliation
claims. Guess, 889 So.2d at 846 n.2.
To establish a prima facie case of retaliation, Title VII requires the plaintiff
to establish that: (1) she engaged in a statutorily protected activity; (2) she suffered
a materially adverse action; and (3) there was a causal relation between the
protected activity and the adverse action. Goldsmith v. Bagby Elevator Co., Inc.,
513 F.3d 1261, 1277 (11th Cir. 2008). “After the plaintiff has established the
elements of a claim, the employer has an opportunity to articulate a legitimate,
nonretaliatory reason for the challenged employment action as an affirmative
defense to liability.” Id. Once the employer makes this showing, “the plaintiff has
a full and fair opportunity to demonstrate that the [employer’s] proffered reason
was merely a pretext to mask discriminatory action.” Bryant v. Jones, 575 F.3d
1281, 1308 (11th Cir. 2009).
To show pretext, the plaintiff must present evidence sufficient “to permit a
reasonable factfinder to conclude that the reasons given by the employer were not
the real reasons for the adverse [action].” Combs v. Plantation Patterns, 106 F.3d
1519, 1528 (11th Cir. 1997). Conclusory allegations, without more, are
insufficient to show pretext when extensive evidence supports the employer’s
8
legitimate nonretaliatory reason. Mayfield v. Patterson Pump Co., 101 F.3d 1371,
1376 (11th Cir. 1996). Instead, the plaintiff must meet the proffered reason “head
on and rebut it.” Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000).
Blackmon failed to provide any evidence that would indicate that Wal-Mart
inconsistently applied its policies to her or otherwise retaliated against her for
complaining about Pereiro. Wal-Mart has, in essence, a “four strikes” policy,
pursuant to which an employee who commits an infraction one time receives an
verbal “coaching” from a supervisor, twice, a written coaching, and three times, a
coaching known as a “Decision-Day” coaching. Any fourth infraction committed
after a Decision Day coaching results in termination.
It is undisputed that Blackmon was terminated for excessive absenteeism
after a Decision-Day coaching. Blackmon argues that, pursuant to Wal-Mart
policy, an employee must receive a warning before that employee may be
terminated for poor attendance. This is an incorrect statement of Wal-Mart’s
policy. Rather, under Wal-Mart’s rules, a coaching received—for any reason,
including absenteeism—after a Decision-Day coaching results in termination.
Thus, although Blackmon is correct that Wal-Mart does not terminate for excessive
absenteeism alone, it is undisputed that Blackmon’s excessive absenteeism
occurred after three earlier infractions and a Decision-Day coaching. Thus,
9
Blackmon’s termination was consistent with Wal-Mart’s “four strikes” policy and
she cannot demonstrate that Wal-Mart’s justification was a pretext for retaliation.
AFFIRMED.
10
|
855 F.2d 277
11 Fed.R.Serv.3d 1576, 48 Ed. Law Rep. 1067
Mary GLOVER; Lynda Gates; Jimmie Ann Brown; MannettaGant; Jacalyn M. Settles, and several Jane Doeson behalf of themselves and all otherssimilarly situated, Plaintiffs-Appellees,v.Perry JOHNSON, Director, Michigan Department of Corrections;Florence R. Crane; G. Robert Cotton; Thomas K. Eardley,Jr.; B. James George, Jr.; Duane L. Waters, MichiganCorrections Commission; William Kime, Director Bureau ofPrograms; Robert Brown, Jr., Director, Bureau ofCorrectional Facilities; Frank Beetham, Director, Bureau ofPrison Industries; Richard Nelson, Director, Bureau ofField Service; Gloria Richardson, Superintendent, HuronValley Women's Facility; Dorothy Costen, Director ofTreatment, Huron Valley Women's Facility; and Clyde Graven,Sheriff, Kalamazoo County, Individually, and in theirofficial capacities, Defendants-Appellants.
Nos. 86-2125, 87-1466.
United States Court of Appeals,Sixth Circuit.
Argued Sept. 24, 1987.Decided Aug. 22, 1988.
Susan A. Harris (Lead Counsel) (argued), Asst. Atty. Gen., Detroit, Mich., Keith D. Roberts, Lansing, Mich., for defendants-appellants in No. 87-2125.
Charlene Snow (argued), Deborah LaBelle, Detroit, Mich., for plaintiffs-appellees in No. 87-2125.
Frank J. Kelley, Atty. Gen., Corrections Div., Susan Harris (argued), Asst. Atty. Gen., Corrections Div., Lansing, Mich., for defendants-appellants in No. 87-1466.
Charlene Snow, Deborah LaBelle (argued), Detroit, Mich., for plaintiffs-appellees in No. 87-1466.
Richard Meisler, for University of Mich.
Before ENGEL, Chief Judge*, and MERRITT and RYAN, Circuit Judges.
RYAN, Circuit Judge.
1
This is an appeal from two orders entered in a class action brought by female inmates of the Michigan prison system, claiming the denial of equal protection of the law in the provision of educational opportunities to female inmates in the Michigan prison system. The orders were separately appealed and are consolidated for review.
2
In the first of the two orders appealed from (86-2125), the district court:
3
(a) Ordered defendants to "provide a four-year degree program" leading to a baccalaureate degree for four named members of the plaintiff class residing at the Florence Crane Correctional Facility.
4
(b) Enjoined defendants from transferring any female inmates from the Crane Facility to the Huron Valley Women's Facility for the purpose of enabling female inmates "to receive four-year degree programs"; and
5
(c) Ordered defendant to "continue in its efforts to offer four-year degree programs to all other interested prisoners incarcerated at the Florence Crane Facility."
6
In the second order appealed from (87-1466) 659 F.Supp. 621 (1987), the district court appointed an administrator to "design and implement educational programs for female inmates on a parity with male inmates" in the Michigan correctional system.
7
The orders are challenged on a number of grounds, principally as being beyond the district court's proper authority given the state of the record, considerations of comity and federalism, and the requirements of Fed.R.Civ.P. 52(a).
8
We do not reach the merits of the substantive legal and equitable challenges to the district court's orders. Instead, we vacate the preliminary injunction because it is not supported by minimally sufficient findings of fact, and we set aside the order appointing the administrator because we are not presented with an evidentiary record demonstrating sufficiently compelling justification, given considerations of comity and federalism, for the extreme intrusiveness into the constitutional prerogatives of a state agency that results from the order appointing an administrator.
I.
9
This litigation has been pending for more than ten years. It is unnecessary, and probably impossible, to fully and accurately detail the entire history of this vigorously, sometimes bitterly, contested controversy. Nevertheless, a brief review of that portion of the litigation relevant to the orders appealed from is necessary to our decision.1
10
In May of 1977, plaintiffs filed a class action in the United States District Court for the Eastern District of Michigan alleging that male inmates at Michigan prisons were afforded education and training opportunities, including a two-year associate degree and a four-year baccalaureate degree program, not afforded to female inmates, in violation of the equal protection clause of the fourteenth amendment of the federal Constitution. A number of other allegations of unfair discriminatory and disparate treatment were made that are not relevant to these appeals.
11
When the lawsuit was filed, female inmates in Michigan were housed only at the Huron Valley Women's Facility.2 In October of 1979, the district court issued a lengthy and wide-ranging opinion and order which included highly detailed findings of fact. The court ordered, among other things, that "the State" provide to female inmates at the Huron Valley Women's Facility a two-year post-secondary education program leading to an associate's degree, comparable to the program then being offered to male inmates at the state prison of Southern Michigan (Jackson).3 The district court's order did not specifically require that a four-year degree program be instituted for women inmates, although such a program was being offered for male inmates at Jackson. The order stated that the state "may encourage the development of such a program in whatever manner available in light of its overall responsibility for educational programming at the facility." Glover v. Johnson, 478 F.Supp. 1075, 1102 (E.D.Mich.1979) (Glover I ).
12
In April 1981, the district court issued its "Final Order" which it described as having been "arrived at by agreement of counsel for the parties." Glover v. Johnson, 510 F.Supp. 1019, 1020 (E.D.Mich.1981) (Glover II ). The court reiterated that comparable education programs for men and women were to be provided at the Huron Valley Women's Facility, and stated:
13
[T]hat the State, while not obligated to provide a four-year baccalaureate program at Huron Valley Women's Facility, shall assist and cooperate in the establishment and operation (including the provision of space) of a baccalaureate program which any four-year college desires to offer women inmates; and in no way shall that assistance be less than that provided to colleges offering baccalaureate programs at men's prisons.
14
Glover II, 510 F.Supp. at 1021. The court required that the defendants file quarterly progress reports for five years "or until such time as the Court finds defendants are in compliance." Id. The court held status conferences with counsel for the parties in 1981, 1982, and 1984.
15
In April 1985, the Department of Corrections opened the Florence Crane Correctional Facility for Women at Coldwater, Michigan. During the next several months, approximately 340 women were transferred to Crane from the overcrowded Huron Valley Facility, including some inmates who had been eligible to participate in the third and fourth year baccalaureate program that had been offered intermittently since 1980 at Huron Valley by Eastern Michigan University.
16
The parties sharply disagree about the facts relating to the availability of educational opportunities to inmates at Huron Valley, about the causes for the unavailability of education programs at Florence Crane, and about the defendant's efforts to comply with the district court's 1979 and 1981 orders. We are handicapped in determining whose version of the facts is correct because of the sparsity of an evidentiary record, and the absence of adequate fact-finding by the district court. However, some facts necessary to an understanding of what we decide today appear to be incontrovertible.
17
Spring Arbor College, a private degree granting institution located not far from Jackson Prison, has provided a four-year degree program to male inmates at Jackson continuously since 1979. Indeed, it was the absence of a comparable program for women at Huron Valley that was one of the motivating causes for this lawsuit. Funding for the program at Jackson was provided mainly through federal funds in the form of PELL grants. Since 1984, Spring Arbor College also received state funds under a Michigan Department of Education program providing reimbursement to that school for degrees issued to Jackson Prison inmates. 1984 Mich.Pub.Acts 238 Sec. 21(a). Eventually, because Spring Arbor College was conferring approximately forty bachelor degrees a year upon Jackson inmates, the college received an annual "straight line item" appropriation of $120,000 from the state of Michigan, representing the statutorily authorized $3,000 per graduate. Although the defendants provided no funds in support of the Spring Arbor program, they were, of course, aware of the funding and accommodated the class offerings at Jackson by providing classroom space and facilities and cooperatively arranging inmates' schedules. The defendants claim that no comparable education programming was offered at any of the state's other male correctional institutions. The plaintiffs disagree and claim education programs were offered in at least one other correctional facility for men.
18
For one reason or another, no college or university has ever offered a regular four-year degree program at the Huron Valley Women's Facility, although one school provided three semesters of college classes at Huron Valley between 1980 and 1984. Plaintiffs attribute the absence of a regular and continuous baccalaureate program to the defendants' "intransigence" and "obduracy." Defendants attribute it to an absence of sufficient inmate interest and a lack of private, federal, or state funding.
19
In the spring of 1985, some baccalaureate program courses were offered at Huron Valley, paid for with funds authorized by defendant Perry Johnson, then Director of the Department of Corrections. No classes were offered at Huron Valley in the fall of 1985, due in part, apparently, to the fact that Eastern Michigan University had offered a number of courses in 1983 and had not been paid for its services. As a result, several student inmates had not received grades for credits earned in those courses. The problem was eventually rectified and the inmates received the credits they had earned.
20
No educational programs of any kind have ever been offered at the Florence Crane Facility. Defendants claim it is because there has been an insufficient showing of interest among the Crane inmates to meet the requirements of the two colleges whose services defendants have solicited, and who insist that at least fifteen students must register for any course offered in either the two-year associate degree or four-year baccalaureate programs. Plaintiffs contend that at least fifty women at Crane "were interested" in a community college program and that the only reason a four-year degree program is not offered at Crane is because the defendant simply refuses to provide it. Once again, the trial court has made no specific findings of fact about the matter.
21
In January 1986, impatient with the lack of progress toward compliance with the district court's orders, the plaintiffs filed a motion for contempt, alleging noncompliance "in all aspects of the 1979 and 1981 orders." Hearings were held in March, June and July of 1986. The district court took the motion for contempt under advisement and has not, to date, ruled on it.
22
In October 1986, classes were once again offered at the Huron Valley Women's Facility but none were offered at Crane. Four inmates at Crane who were eligible to participate in the four-year degree program, and who expressed interest in participating in such a program, were given the opportunity to transfer to Huron Valley so that they might participate in the four-year degree program there. The defendants argued that transfer of the inmates to Huron Valley was necessary since no school was interested in offering a four-year degree program at both Crane and Huron Valley, given the small number of interested participants at Crane. The four inmates declined to be transferred, and the plaintiffs immediately filed a motion for a temporary restraining order requesting the court to restrain the defendants from transferring the four inmates to Huron Valley, and to mandate that a four-year degree program be offered for the four inmates at Crane. At oral argument on the matter, defendants argued that the court's 1981 order did not require it to offer an educational program at Crane and that, in all events, it was economically infeasible to offer a baccalaureate degree program at both women's institutions. The plaintiffs argued that the defendants were merely engaging in delaying, evasive, and contumacious tactics to avoid compliance with the district court's 1981 order. The court issued a preliminary injunction enjoining the defendants from transferring the four inmates at Crane to Huron Valley and requiring that the defendants implement a four-year baccalaureate degree program at Crane immediately. It is that injunctive order which is appealed from in case number 86-2125.
23
The defendants represent to this court that despite genuine effort on their part, they have been unable to interest any educational institution in offering a four-year baccalaureate program at the Crane facility.4 They represent further that the Department of Education, which is not a party to this action, will no longer provide tuition reimbursement for the degree program now provided for male inmates at Jackson Prison and that, as a result, there will be no four-year degree program offered to male inmates in any Michigan correctional facility thus precluding any basis for a parity-based offering at any women's facility.
24
When classes leading to a baccalaureate degree did not begin at the Crane Facility on October 21, 1986, the day after the court's preliminary injunction mandating such a program, the plaintiffs filed a second motion to hold the defendants in contempt. A hearing was held on October 31, 1986, and was adjourned to November 6, 1986. Testimony was taken on that date and the district court once again took under advisement the motion for contempt. Apparently at that hearing--the record is unclear on the matter--the district court indicated an intention to appoint an "administrator of education" to ensure compliance with its 1979 and 1981 orders. At the hearing, the district court "appointed" a search committee comprised of administrative and academic officials of the University of Michigan to recommend a candidate for the administrator position, although no order was entered appointing the committee or defining its charge. Apparently both appellants and appellees recommended nominees for the administrator's position.
25
Hearings were held on April 13 and April 17, 1987, after which the district court entered a Memorandum Opinion and Order which defendants claim had been prepared by the district court many months earlier and, in fact, had been submitted to the parties for their consideration, which appointed Dr. Richard Meisler "administrator to design and implement educational programs for female inmates on a parity with male inmates." It is that order and the appointment of Dr. Meisler which is appealed in case number 87-1466.
II.
26
Initially, we note that plaintiffs' claims that they have been denied equal protection of the law under the fourteenth amendment by the defendants' failure to provide educational opportunities to women inmates in parity with those offered to male inmates is not at issue in this case. The plaintiffs have prevailed on that claim and the district court's 1979 judgment and 1981 judgment and final order so provide. The single issue that is presented in these consolidated appeals is whether the district court abused its discretion in granting the preliminary injunction in No. 86-2125, and the order appointing administrator in No. 87-1466.
27
Before discussing that issue, we note preliminarily that defendants' claim that women inmates at the Crane Correctional Facility are not within the class designated by the 1981 order is without merit. The 1979 judgment entered by the district court defined the class as "all female felons who are now or may be in the future, incarcerated at Huron Valley Women's Facility. A sub-class is certified composed of all state women inmates incarcerated at the Kalamazoo County Jail." At that time, the Huron Valley and Kalamazoo Facilities were the only institutions housing women inmates in Michigan. In granting class certification, the court stated, "The action is brought as a class action on behalf of all female inmates in Michigan." Given the facts at the time of the class certification and the court's very explicit statement of its purpose in certifying the class, it is clear that the class consists of all women inmates, including inmates at the Florence Crane Facility, which was opened some five years after the certification of the class.III.
28
We address first the propriety of the district court's October 20, 1986, temporary injunction as amended on October 31, 1986.5 A preliminary injunction is an equitable remedy within the district court's discretion and the applicable standard of review on appeal is abuse of discretion. Christian Schmidt Brewing Co. v. Heilman Brewing Co., 753 F.2d 1354 (6th Cir.1985). As this court stated:
29
There are four factors to be considered in determining whether the grant or denial of a preliminary injunction was an abuse of discretion: (a) the likelihood of the success on the merits of the action, (b) the irreparable harm which could result without the relief requested, (c) the impact on the public interest, and (d) the possibility of substantial harm to others ... Although these four factors must be considered in assessing a request for a preliminary injunction, the four factors do not establish a rigid and comprehensive test for determining the appropriateness of preliminary and injunctive relief. Instead, the district court must engage in a realistic appraisal of all the traditional factors weighed by a court of equity.
30
Christian Schmidt Brewing Co., 753 F.2d at 1356 (citations omitted). It is settled that the district court must make specific findings of fact "concerning each of these four factors, unless fewer are dispositive." In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985). The requirement that specific findings of fact be made in support of the trial court's grant or denial of a request for a temporary injunction is derived from Fed.R.Civ.P. 52(a) which, in relevant part, provides:
31
In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions, the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review.... (Emphasis added.)
32
The parties vigorously contest whether, in issuing its injunction, the district court has complied with three of the four criteria laid down in Christian Schmidt Brewing Co., supra. Defendants claim, at length, that the facts of this case show that no irreparable harm will result to the four inmates at Crane if a four-year baccalaureate degree program is not offered at that institution because such a program is offered at Huron Valley to which defendants are willing to transfer the four; that it is impossible for it to comply with the injunctive order to provide a baccalaureate program at Crane because no educational institution has been found that is willing to offer that program at Crane, and that the facts show that the district court has ordered defendants to provide educational programming at Crane which is not comparable in any way to educational programming offered to male prisoners at Jackson since, at Jackson, the defendants and the state of Michigan do not provide any educational programming. Such programs as exist are said to be provided by private and public colleges and universities and the defendant merely provides classroom space and, in other small ways, accommodates the inmates' schooling schedules. Defendants claim, in sum, that the facts of this controversy show that what the court has ordered to be done at Crane to achieve compliance with its 1981 order is beyond the scope of the 1981 order, will generate new equal protection claims by male inmates for education programs at Michigan's many other correctional facilities for men, is not warranted by any evidence of noncompliance with the order, and is, in all events, entirely beyond the defendants' ability to comply.
33
Plaintiffs, on the other hand, insist that there are no facts in dispute in this case and thus no fact finding by the district court was required in support of the issuance of its injunction, and that the injunction was properly issued as a matter of law. Plaintiffs also insist that defendants "contort the facts in their brief in what appears to be an attempt to make something what it is not"; that the "factual arguments" defendants now raise were not raised at the October 20 "evidentiary hearing"; that the defendants "twist the statements of the court ... in such a manner as to make the court sound foolish"; and, somewhat in contradiction to their first claim, argue that "[t]he district court did make findings of fact. They may not be set forth in the textbook manner appellant would like, but they are findings nevertheless."
34
It is incontestably plain to us that there are a host of highly controverted factual claims, sharply disputed by the parties, from which the district court was necessarily required to pick and choose in order to arrive at the factual conclusions necessary to justify the issuance of its October 20 injunctive order. It is equally clear that the district court necessarily rejected a number of defendants' factual assertions and embraced the plaintiffs' version of the facts on a number of contested matters. Unfortunately, the district court made no record of any factual findings whatever in support of its injunctive order but merely recited in the order the requisite conclusionary "findings," in the familiar formulae language necessary for the issuance of a preliminary injunction. Its order reads:
35
This matter having come before the Court on Plaintiffs' Motion for Temporary Restraining Order; the Court having reviewed the matter, and heard oral argument, the Court finds that:
36
1. Those Plaintiff class members incarcerated at the Florence Crane Correctional Facility are covered by the Orders previously entered in Glover v. Johnson, 478 F.Supp. 1075 (1979); 510 F.Supp. 1019 (1981) and pursuant to the Order of Intervention, Severance and Transfer entered by Judge Gibson in the matter of Fair, et al. v. Brown, et al., Case No. K 85-535 CA9.
37
2. Plaintiffs will suffer irreparable harm if four-year degree educational programs are not offered to women incarcerated at the Florence Crane Facility either at the Facility or at a nearby educational facility, beginning October 21, 1986. The Court finds the irreparable harm here to be the denial of Plaintiffs' constitutional rights to parity in educated programming pursuant to Glover v. Johnson, 478 F.Supp. 1085 [1975] (1979); 510 F.Supp. 1019 (1981).
38
3. Any harm to Defendants in providing such programming at the Crane Facility does not outweigh the irreparable harm to Plaintiffs.
39
4. There is a high likelihood that Plaintiffs will succeed on the merits of this order.
40
IT IS HEREBY ORDERED that a Preliminary Injunction be issued enjoining Defendants from requiring Plaintiffs to transfer to Huron Valley Women's Facility to receive four-year degree programs; and Orders Defendants as follows:
41
IT IS HEREBY ORDERED that Defendants, ROBERT BROWN, Director, Michigan Department of Corrections, JAMES LINCOLN, THOMAS K. EARDLEY, JR., GWEN ANDREW, BRUNETTA BRANDY, DUANE L. WATERS, M.D., the MICHIGAN CORRECTIONS COMMISSION provide four-year degree programming for Joyce Dixon, Victoria Hollis, Mildred Perry and Gladys Wilson who are presently incarcerated at the Florence Crane Facility in addition to the programming provided for women prisoners at the Huron Valley Women's Facility.
42
IT IS FURTHER ORDERED that Defendants continue in the efforts to offer four-year degree programs to all other interested prisoners incarcerated at the Florence Crane Facility.
43
The injunctive order is unsupported by a memorandum opinion or even a transcript of a bench opinion. As is plain from the order, no facts are recited describing how the women incarcerated at the Florence Crane Facility "will suffer irreparable harm" if a four-year degree program is not presented at Crane, or why absence of such a program will generate irreparable harm, save the court's legal conclusion that the harm is "the denial of plaintiffs' constitutional rights." Similarly, the court concludes that harm to the plaintiff outweighs harm to the defendants and that the plaintiffs are likely to succeed in the litigation, without reference to any specifics in an evidentiary record and particularly without reconciling the sharp disagreement between the parties about the capacity of the defendant to provide such programs, and the defendants claim that to do so would generate new constitutional deprivations to male prisoners and negatively "impact the public interest."
44
Without sufficiently specific findings of fact, this court is unable to meet its obligation to properly review the district court's compliance with the criteria mandated by the rule for the issuance of preliminary injunctions.
45
While specific findings of fact for the issuance of a preliminary injunctive order need not be made as to all four factors listed in Christian Schmidt Brewing Co. if fewer are dispositive, In re DeLorean Motor Co., 755 F.2d at 1228, in this instance there are no factual findings by the district court whatever, merely legal conclusions. We are unable therefore to carry out our responsibility to determine the rationale for the court's sweeping order, to determine whether it rests upon facts that have a basis in the record, and thus to know whether, as the defendants charge, the court has abused its very substantial discretion. Supporting findings of fact are especially critical in a case such as this in which the court's order intrudes significantly into the prerogatives of state correctional officials and must therefore be narrowly tailored to remedy the constitutional violation found. See Kendrick v. Bland, 740 F.2d 432, 437 (6th Cir.1984).
46
We must therefore vacate the district court's amended injunctive order and remand the matter to that court for specific findings of fact as required under Fed.R.Civ.P. 52(a) and the cases we have cited.
IV.
47
On April 17, 1987, the district court signed and entered a Memorandum Opinion and Order appointing Dr. Richard Meisler to serve as a court supervised administrator with authority, inter alia,
48
[T]o design and implement educational programs for female inmates on a parity with male inmates. The administrator shall have full power, subject to the supervision of the Court, to contract for educational services with educational institutions necessary to achieve parity.
49
IT IS FURTHER ORDERED that defendants shall not circumvent this order by reducing educational programs presently provided male inmates.
50
IT IS FURTHER ORDERED that defendant bear the cost of the plans designed and implemented by the Administrator.
51
IT IS FURTHER ORDERED that any State Officers necessary to provide complete relief pursuant to this order be joined as party defendants. (Footnote omitted.)
52
It is obvious not only from the text of the order but from the events surrounding its preparation and entry that the October 1986 injunctive order and the appointment of the administrator are very closely related. As we have indicated, apparently the memorandum and order appointing the administrator was actually prepared in November of 1986, very shortly after the injunctive order was issued, but was not signed and entered. It appears to have been distributed to counsel for the parties, unsigned, for information purposes. The order recites in considerable detail the history of this litigation, observes that the defendants have "through bureaucratic inertia, intransigence, and resistance [denied] female inmates equal educational opportunities," and finds that the "defendants flouted" the court's 1986 preliminary injunction. The order states that the court "[provided] this detailed chronology to explain [its] conclusion that ordering contempt penalties will not bring compliance." Although the record is unclear, it appears that no evidentiary hearings were ever held primarily for the purpose of making factual findings on the necessity or desirability of appointing an administrator. Hearings were held in the district court on October 31, November 6, November 13, and November 20, but those hearings appear to have been related to the plaintiffs' motion that the defendants be held in contempt for violation of the October 20 injunctive order.6 But it is evident from the text of the order appointing the administrator that the order was substantially related to the injunctive order in the sense that it is really the district court's response to its perceived inability to enforce the injunctive order through ordinary contempt proceedings. The court declared as much in the memorandum portion of the order:
53
* * *
54
* * *
55
After a hearing on October 20, 1986, I granted preliminary relief ordering defendants to provide the courses both at Huron Valley and at Crane beginning October 21, 1986. Defendants flouted this direct order and did not begin courses at Crane.4
56
Defendants' counsel appeared on October 31, 1986 in response to my order to explain why courses had not begun. Characteristically, defendants attempted to obfuscate the issue by substituting counsel who had not previously handled the case.5 I did not receive an adequate explanation and ordered an evidentiary hearing for November 6, 1986. There are still no baccalaureate courses at Crane.
57
I provide this detailed chronology to explain my conclusion that ordinary contempt penalties will not bring compliance.6 Only an Administrator, appointed and supervised by me, can design and implement the educational programs required by my orders.
58
* * *
59
* * *
60
Thus, it is plain that the appointment of the administrator is, in essence, an effort, in lieu of contempt proceedings, to enforce the injunctive order. However, as we have indicated, the injunctive order must be set aside because it is not supported by sufficiently specific findings of fact on the essential criteria for the issuance of injunctive relief required in Christian Schmidt Brewing Co., supra, and mandated by Rule 52(a). The order appointing administrator, to the extent that it is an enforcement extension of the injunctive order, suffers, therefore, from the same absence of factual findings to justify it that vitiates the injunctive order. It would be most anomalous to invalidate the court's injunctive order but approve a subsequent enforcement measure carrying its terms into effect.
61
But that is not the only reason we must set aside the order appointing the administrator. Even if it were not so directly related to, indeed generated by, the injunctive order we are dissolving, and could be said to have an independent basis, we think it is an excessively intrusive interference in the prerogatives of a state agency that is not supported by evidence of the quality and quantity required for the exercise of such extraordinary federal judicial power.
62
We recognize that in appropriate circumstances the district court may, in the exercise of its equitable powers, take such means as are necessary to enforce its judgment finding a violation by a state agency and its officials of the constitutional rights of inmates of a state correctional institution. Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978). And while considerations of federalism and comity caution restraint in the intrusion of federal judicial authority into the administration of state correctional institutions, exercise of that authority may include appointment of a court supervised administrator to oversee such aspects of prison policy as have, in the past, resulted in unconstitutional practices. Kendrick, 740 F.2d at 438.
63
However, before a district court undertakes to override the prerogatives of state correctional authorities in the administration of any aspect of prison administration, it must assure itself that no less intrusive means of bringing about compliance with constitutional requisites is available. As this court stated in Kendrick:
64
It is fundamental that the federal forum, as the ultimate guardian of constitutional rights, possesses the authority to implement whatever remedy is necessary to rectify constitutionally infirm practices, policies or conduct.... This broad, equitable authority, however, is tempered by precepts of comity and federalism.... The restraints of federalism must be applied not only when an injunction is sought against the judicial branch of state government, but also when an injunction is urged "against those in charge of an executive branch of any agency of state or local government.".... Thus the federal equity court in fashioning a remedy must afford relief which is "no broader than necessary to remedy the constitutional violation." ...
65
These underlying and restricted principles of comity and federalism are perhaps nowhere more compelling than in actions seeking relief against unconstititional practices, policies and conduct manifest in state penal institutions.
66
740 F.2d at 437 (citations omitted).
67
The court's order appointing the administrator eloquently expresses the court's frustration with the lack of progress in bringing regular two-year educational programs and four-year baccalaureate programs to the female inmates of Michigan's correctional institutions. Although the court's order fully details the procedural and some of the factual history of the litigation, it does not contain any specific factual findings detailing the acts or omission of the defendants that led the court to conclude that the "defendants flouted" the district court's orders. While it is very clear that the education program for women the district court ordered in 1979 and 1981 has not come to fruition, and that at the time of the appointment of the administrator educational opportunities for men and women in the Michigan prison system were not in parity, neither the court's order nor any record made in support of it contains evidence of the quality and weight necessary to justify the conclusion that the defendants willfully disobeyed the court's order, violated the plaintiffs' constitutional rights, and forfeited to the federal judiciary the defendants' constitutional authority to continue to administer all aspects of the Michigan correctional system. The district court has undertaken the extraordinary measure of placing an element of Michigan correctional prison administration in virtual receivership without the requisite showing or findings of "exceptional circumstances" which the Supreme Court and this court have often pointed out are necessary for the imposition of such an intrusive remedy. See, e.g., In re U.S., 816 F.2d 1083 (6th Cir.1987), and the authorities discussed therein.
In Kendrick, this court stated:
68
These underlying and restrictive principles of comity and federalism are perhaps nowhere more compelling than in actions seeking relief against unconstitutional practices, policies and conduct manifest in state penal institutions. The rationale was articulated by the Supreme Court more than a decade ago:
69
It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations and procedures, than the administration of its prisons.... The strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons. Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 137-38, 36 L.Ed.2d 439 (1973)....
70
Federal restraint into intrusion of a state penal institution is counseled for at least two reasons:
71
[J]udicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the providence of the Legislative and Executive Branches of our Government, not the Judicial. (Citations omitted.)
72
Accordingly, it was incumbent upon the district court in the action sub judice to impose the least intrusive remedy available. In a factually similar case, the Ninth Circuit has articulated that:
73
[T]he remedy may be only so much as is required to correct the specification. The remedy may go beyond this only when there is a record of past constitutional violations and violations of past court orders. Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir.1982).
74
Kendrick, 740 F.2d at 437-438.
75
The defendants have made a persuasive, if not conclusive, case for the proposition that they have done all in their power to comply with the court's 1979 and 1981 orders to provide educational parity for female and male inmates. The district court obviously has concluded otherwise but has not made sufficiently specific findings of fact, choosing between contested factual claims and rejecting, without evidentiary support, the defendants' protestations of inability to comply with the court's wishes. The court has not, in appointing the administrator, acted upon a record that contains even minimally persuasive evidentiary support for its conclusions that the authority of state correctional officials should be suspended and, indeed, supplanted by a court supervised administrator with powers to secure to the plaintiffs the constitutional rights guaranteed them under the 1981 order.
76
The record before us is not deficient solely because it does not contain adequate findings of fact, as distinguished from mixed ultimate conclusions of fact and law, that defendants have willfully disobeyed the district court's 1979 and 1981 orders. It strongly suggests that the district court has not attempted to exhaust a number of methods to enforce its order that are less intrusive than placing a portion of the state correctional administration in virtual receivership. The district court order must be obeyed, and the court, as it observed, is not required to merely issue its injunction and then hope for compliance. But the record does not support the district court's conclusion that the contempt proceedings will not bring about compliance with its orders. The motion for contempt was not followed by sufficiently exhaustive evidentiary hearings and, indeed, was never resolved in an order of any kind, save the order appointing the administrator.
77
Quite aside from the reticence a federal court should have, as a matter of federalism and comity, to attempt to administer any portion of a state correctional system program except in the most compelling situations, there is no record showing in this case that the court cannot enforce its orders itself, perhaps with the assistance of a monitor, but without the intrusive interference of a judicial administrator.
78
We think that on the basis of the record before us, the district court has not been presented with an evidentiary record that justifies that extraordinary remedy and has, therefore, abused its discretion in appointing the administrator.
V.
79
We are respectful of the district court's judgment that the plaintiffs' equal protection rights have been violated and we have no occasion to question the court's requirement that the appropriate remedy is to require the defendants to provide educational programs for women inmates that are on a par with those being provided to men. And it is not an easy task to devise a formula for determining what "parity" is, in the circumstances of this case. We suggest that upon remand the district court might wish to consider the following:
80
1. Making findings of fact specifically detailing
81
a) The history of educational offerings at all Michigan correctional institutions since the court's 1981 "Final Order."
82
b) The current state of educational programs at all Michigan correctional institutions.
83
c) The identity of the public and private colleges and universities now providing educational programs to Michigan prison inmates, and the identity of the specific Michigan correctional facilities in which such programs are being offered.
84
d) The per capita amount now being expended for two-year and four-year degree programs for women and for men at such institutions, and the source of those funds.
85
e) The efforts expended by the defendants to comply with the court's 1981 order.
86
f) The specific manner in which the defendants have not complied.
87
g) The estimated total cost and per capita cost of educational programs leading to two and four-year degrees.
88
2. Developing a detailed plan for remedying the equal protection violation through ordering expenditures for educational programs for women inmates on a parity with those already being offered to men, if any, on a per capita, not a total expenditure, basis, i.e., an educational program based on parity of expenditures rather than a plan requiring the same degrees, courses and subjects for both men and women.
VI.
89
We therefore VACATE both the preliminary injunction and the order appointing an administrator. We REMAND to the district court to make specific factual findings regarding the defendants' performance in attempting to comply with the district court's 1981 order and the least intrusive means to accomplish that goal. The district court should develop a detailed plan for remedying the equal protection violation, limiting its equitable powers to requiring equal educational opportunity by ordering that expenditures for education programs within the Michigan state correctional system be allocated among all interested and eligible inmates, on an approximate per capita basis.
90
ENGEL, Chief Judge, concurring.
91
I concur fully in Judge Ryan's thoughtful opinion. I add these thoughts only to caution that the court's reference to per capita allocation of costs not be overread but be considered in the overall context in which it was intended.
92
Equal protection is not the same as identical treatment, for identical treatment may indeed result in very unequal protection. Nor is exact mathematical parity of financial per capita expenditure to be similarly equated. All of these factors may be important considerations as Judge Ryan has so carefully pointed out, and in this I fully concur. I write separately only to emphasize that evidence of comparable per capita expenditure is not an end in itself but may be one consideration--by no means controlling--in the more difficult task of determining first whether equal protection of the law has been denied and, if so, in determining how most effectively that deprivation can be cured.
93
In the context here, it is obvious that regardless of the equal protection clause, there are many and significant differences between the sexes and there is nothing humanity can do about them even if we would. For one thing, the proportion of women in penal institutions is far smaller than that of men. There are physical differences. There are physiological differences. There are probably differences in the nature of the crimes for which men and women find themselves incarcerated and there may in consequence be differences in the relative dangerousness to the public posed by such inmates. The task of an even-handed penological system responsible for the confinement of both sexes is to adjust realistically to such differences without temptation to use them to mask latent bias or uncorroborated assumptions. The very difference between the sexes may mean in a given situation that the delivery of rehabilitative services may necessarily require the varied expenditure of monies because of natural differences in the sexes or in their conditions of confinement. In short, I would not like to think that anything we have said here is construed to require or encourage an oversimplistic approach to what is in reality a difficult task requiring a full measure of judicial thought.
*
The Honorable Albert J. Engel assumed the duties of Chief Judge effective April 1, 1988
1
Part of the problem in accurately detailing the facts of this case is that the parties disagree about them and, as our conclusions attest, the district court's orders do not include sufficiently detailed fact-finding resolving material differences in the parties' versions of the relevant events
A reader interested in the genesis of the controversy and the district court's resolution of a number of issues presented in the early stages of the litigation should examine Glover v. Johnson, 478 F.Supp. 1075 (E.D.Mich.1979), and Glover v. Johnson, 510 F.Supp. 1019 (E.D.Mich.1981).
2
Due to overcrowding, some inmates were temporarily held at the Kalamazoo County Jail on a rotating basis under contract with the county
3
The state of Michigan was not then and is not now a party to this litigation. The Department of Corrections, its director, and the individual members of the Michigan Corrections Commission, as well as a number of other prison officials, are sued "individually and in their official capacities."
4
We decline to burden this opinion with a detailed recitation of the highly controverted versions offered to this court by the plaintiffs and the defendants relating to the defendants' alleged efforts to establish an educational program at Crane in order to comply with that portion of the district court's October 1986 preliminary injunction
5
For purposes of consistency and ease of reference, we will refer to the injunction as having been entered on October 20, 1986, although it was amended in an important respect eleven days later
6
When, in plaintiffs' view, defendants failed to comply with the October 1986 injunctive order, plaintiffs, on October 29, 1986, filed a motion for contempt. A hearing on that motion was apparently scheduled for October 31, 1986, at which time the injunctive order was amended, but the contempt motion was adjourned to November 6. On that date, defendants Brown and Nemecek testified on the contempt issue. Following the November 20 hearing, the motion for contempt was taken under advisement
4
Plaintiffs brought the violation to my attention in their October 29, 1986 petition asking that I hold defendants in contempt
5
After plaintiffs filed their January 22, 1986 petition to hold defendants in contempt, defendants attempted to substitute counsel without providing me advance notice or seeking my permission. This is still more evidence of the low esteem in which defendants hold this Court
6
I may nevertheless fine or imprison any defendant responsible for failing to implement my order
|
THIRD DIVISION
December 18, 2002
No. 1-02-0525
In re
MARRIAGE OF )
ALICE KING, ) Appeal from the
Petitioner,
) Circuit Court
and )
Cook County
.
)
SAMUEL KING, )
Respondent,
)
)
(Muller Law Firm, )
Plaintiff,
)
)
)
Samuel King, )
Defendant-Appellee, ) Honorable
) James G. Donegan,
(Kenneth Swiatek, James Finnegan and
)
Judge Presiding
Francisco Javier Iniguez,
)
)
Levy Sale Purchasers-Appellants)). )
PRESIDING JUSTICE SOUTH delivered the opinion of the court:
In the underlying action, Alice King, who is not a party to this appeal, filed a petition for dissolution of marriage from her husband of 56 years, Samuel King (appellee). The Muller Law Firm filed an appearance on behalf of appellee in the dissolution proceedings. The Muller Law Firm subsequently filed a motion to withdraw from representing appellee, which was granted on July 31, 1998, and appellee proceeded
pro se
. The court also granted the Muller Law Firm leave to file a petition for setting final fees.
On January 5, 1999, the trial court entered an order pertaining to the petition for attorney fees which reads in pertinent part:
"Judgement is entered in favor of the Muller Firm, Ltd. and against Samuel King in the amount of $4,380.00 including costs for reasonable and necessary attorney's fees in connection with this litigation, with no just cause existing to delay appeal or enforcement hereof. Said sum shall be paid directly to the Muller Firm Ltd. from one of Mr. King's bank accounts currently restrained***."
One month later, on February 5, 1999,
a judgment for dissolution of marriage was entered. The order allocated all of the marital property, with the marital residence going to appellee. With regard to attorney fees, the judgment read in pertinent part with the following stricken words:
"8.2 The Court entered Judgment against Samuel King and in favor of The Muller Firm on January 5, 1999 in the amount of
$4700.00
$4,380.00. Said sum shall be paid
out of the accounts listed in Section 2.2(a)
out of, Samuel King's assets."
On February 9, 1999, the Muller Law Firm filed a citation to discover assets with several of appellees banking institutions and recorded the trial court's order of January 5, 1999, with the Cook County recorder of deeds so as to create a lien against appellee's home. On April 14, 2000, the Muller Law Firm presented to the Cook County sheriff a direction to levy appellee's property to be sold to satisfy the $4,350 judgment. A levy was issued on appellee's property bearing a date stamp of April 13, 1999. At the time the levy was issued, appellee's home had an appraisal value of $80,000.
On September 7, 2000, the sale of appellee's property was conducted. The Muller Law Firm placed a bid of $25,000. The second highest bid was made by Kenneth Swiatek for $23,300. Swiatek, James Finnegan and Francisco Javier Iniguez are the appellants in this case. Appellants' bid was ultimately accepted, a certificate of purchase was issued on September 15, 2000, and an assignment of certificate of sale was issued to appellants on December 7, 2000. On March 9, 2001, a deed was issued to appellants following the expiration of the redemption period.
Appellee subsequently sought legal representation and Kimberly Anderson filed a petition to vacate the sheriff's sale on behalf of appellee, which was denied on August 29, 2001. On September 19, 2001, the probate division appointed the Cook County public guardian as temporary guardian of appellee's estate and assets. On September 27, 2001, the public guardian appeared on appellee's behalf and filed a motion to reconsider the trial court's denial of appellee's petition to vacate the sheriff's sale. In addition to arguing that appellee was mentally and physically impaired, the public guardian also argued that the January 5
order required that the $4,380 judgment be satisfied from appellee's bank accounts instead of by means of placing a levy on his home; that the notice of levy was not posted in three public places pursuant to section 12-115 of the Code of Civil Procedure (Code) (735 ILCS 5/12-115 (West 2000)); that the report of commissioners was not signed under oath pursuant to sections 12-910 and 12-911 of the Code (735 ILCS 5/12-910, 12-911 (West 2000)); that the certificate of sale was not sold to the highest bidder; that the sale was never approved by the court pursuant to sections 12-144.5 and 12-145 of the Code (735 ILCS 5/12-144.5, 12-145 (West 2000)); that the levy reflects inconsistent dates; and finally, that there are two inconsistent receipts of sale, which are unsigned and undated and do not include a bid amount or the resulting surplus to which appellee is entitled.
After a hearing on appellee's motion to reconsider was held, the trial court entered an order granting appellee's motion on November 19, 2001. Appellants filed a motion to reconsider the trial court's order, which was denied on January 23, 2002. In their notice of appeal, appellants request the reversal of the trial court's November 19
order granting the public guardian's motion to reconsider, and the court's order of January 23, 2002, denying appellants' motion to reconsider the trial court's order of November 19.
Appellants raise two issues on appeal: (1) whether the portion of the trial court's January 5, 1999, judgment order granting attorney fees to the Muller Law Firm, which purports to limit enforcement of the judgment for attorney fees to certain bank accounts of appellee, is valid or merely surplusage; and (2) whether a hearing pursuant to section 12-144.5 of the Code (735 ILCS 5/12-144.5 (West 2000)), requiring a judicial confirmation of a sale, where no hearing was required under the prior provisions, applies to a sale held prior to the effective date of the statute where the redemption period ended after the statute became effective. A notice of appeal confers jurisdiction on an appellate court to consider only the judgments or parts thereof specified in the notice of appeal.
Mimica v. Area Interstate Trucking, Inc
., 250 Ill. App. 3d 423, 425, 620 N.E.2d 1328 (1993). A notice of appeal is to be liberally construed and an appeal from a subsequent final judgment will draw into question all prior nonfinal rulings and final but nonappealable orders that produced the judgment.
First National Bank of Elgin v. St. Charles National Bank
, 152 Ill. App. 3d 923, 930, 504 N.E.2d 1257 (1987). "A notice of appeal need not designate a particular order to confer jurisdiction, as long as the order which is specified directly relates back to the judgment or order from which review is sought."
Taylor v. Peoples Gas Light & Coke Co.
, 275 Ill. App. 3d 655, 659, 656 N.E.2d 134 (1995). "An unspecified judgment is reviewable if it is a 'step in the procedural progression leading to the judgment specified in the notice of appeal.' "
Taylor
, 275 Ill. App. 3d at 659, quoting
Burtell v. First Charter Service Corp.
, 76 Ill. 2d 427, 435, 394 N.E.2d 380 (1979).
In its notice of appeal, appellants appeal the order of November 19, 2001,
granting appellee's motion to reconsider. Therefore, we will address appellants' issues on appeal in the context of the trial court's grant of appellee's motion to reconsider.
Furthermore, we reject appellee's contention that this case is moot as there is a definite controversy between the various parties. See
First National Bank of Waukegan v. Kusper
, 98 Ill. 2d 226, 233-34, 456 N.E.2d 7 (1983) (holding that, under Illinois law, a matter is considered moot when no controversy remains or the issues involved cease to exist, thereby rendering it impossible for the court to grant effective relief to the complaining party).
A motion to reconsider may be brought pursuant to section 2-1203 or 2-1401 of the Code. 735 ILCS 5/2-1203 (West 1998); 735 ILCS 5/2-1401 (West 2000). The purpose of a motion to vacate under section 2-1203 is to alert the trial court to errors it has made and to afford an opportunity for their correction.
In re Marriage of Sanborn
, 78 Ill. App. 3d 146, 396 N.E.2d 1192 (1979). Whether to grant or deny a motion to reconsider is within the sound discretion of the trial court.
In re Marriage of Potter
, 88 Ill. App. 3d 606, 609-10, 410 N.E.2d 999 (1980). Whether a trial court has abused its discretion turns on whether the court's refusal to vacate
" 'violates the moving party's right to fundamental justice and manifests an improper application of discretion.' "
Harris v. Harris
, 45 Ill. App. 3d 820, 821, 360 N.E.2d 113 (1977), quoting
Anderson v. Anderson
, 28 Ill. App. 3d 1029, 1034 (1975).
The first issue we consider is whether the language in the January 5, 1999, judgment order granting attorney fees to the Muller Law Firm, which limits enforcement of the judgment for attorney fees to certain bank accounts of appellee, is valid. Appellants argue that the portion of the trial court's order limiting the award of attorney fees to appellee bank accounts is surplusage and of no effect. They argue that although the trial court has the authority and discretion to award attorney fees, once those fees are awarded, the trial court lacks the authority to limit how an attorney is entitled to enforce the judgment to obtain those fees.
The trial court's order of January 5
states in pertinent part:
"Judgement is entered in favor of the Muller Firm, Ltd. and against Samuel King in the amount of $4,380.00 including costs for reasonable and necessary attorney's fees in connection with this litigation, with no just cause existing to delay appeal or enforcement hereof.
Said sum shall be paid directly to the Muller Firm Ltd. from one of Mr. King's bank accounts currently restrained
***." (Emphasis added.)
In response, appellee asserts that the trial court's January 5
order was no longer in existence but was superseded by the trial court's subsequent judgment for dissolution of marriage entered by the trial court on February 5
, and the question of whether the limiting language in the order of January 5
is surplusage is irrelevant.
In its reply brief on appeal, appellants argue that the trial court's order of January 5
was not superseded by the February 5
order because the January 5
order was a final judgment that was independent of the February 5
order.
We agree with appellee's position that the final judgment for dissolution of marriage entered on February 5
was the final appealable order.
Cases involving dissolution of marriage proceedings are inherently more problematic upon appellate review due to the large number of separate issues that are determined in a single proceeding because all of these issues are not decided at the same time. Therefore, a trial court's inclusion of Rule 304(a) (134 Ill. 2d R. 304(a)) language in an order entered prior to the entry of the judgment for dissolution does not automatically render that order final and appealable.
The request for attorney fees in a dissolution action that has not yet been resolved is not an independent action and must be considered to be part of the overall divorce proceeding. See
In re Marriage of Zannis
, 114 Ill. App. 3d 1034, 449 N.E.2d 892 (1983).
In
In re Marriage of Leopando
, 96 Ill. 2d 114, 449 N.E.2d 137 (1983), the Illinois Supreme Court considered the applicability of Rule 304(a) in dissolution proceedings. There, in ruling that a custody order was not a separate claim within the meaning of the rule, the Illinois Supreme Court specifically stated that "[a] petition for dissolution advances a
single claim
; that is, a request for an order dissolving the parties' marriage. The numerous other issues involved *** are merely questions which are ancillary to the cause of action." (Emphasis added and omitted.)
Leopando
, 96 Ill. 2d at 119. Therefore, the supreme court concluded that until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated.
In
In re Marriage of Derning
, 117 Ill. App. 3d 620, 453 N.E.2d 90 (1983), the appellate court, relying on
Leopando
, held that an order of dissolution reserving the allocation of attorney fees was not a final and appealable order. The court stated that, like a custody order, an attorney fees judgment in a dissolution of marriage case is not a separate claim but is integral to the order dissolving the parties' marriage.
Derning
, 117 Ill. App. 3d at 627. The court noted that the parties' liability for attorney fees is similar to their liability for debts incurred during the marriage, in that both must be allocated to the parties before a reviewing court can determine whether the trial court's decision concerning property and maintenance comports with the statutory requirements.
Derning
, 117 Ill. App. 3d at 627-28.
In
Zannis
, the appellate court took an appeal from two orders of the trial court denying a petition for attorney fees which was entered before the judgment for dissolution of marriage.
Zannis
, 114 Ill. App. 3d 1034, 449 N.E.2d 892. The court noted that pursuant to
Leopando
, which was decided after the case was filed, "[d]issolution of marriage cases present many questions and issues" to which "[a]ttorney fees are purely collateral."
Zannis
, 114 Ill. App. 3d at 1037.
Allowing the review of the issue of attorney fees the court stated:
"Case law at the time this appeal was taken allowed for a review of an award for temporary attorney fees before the entire dissolution was decided when, as here, the trial court expressly stated that there was 'no just reason for delaying enforcement or appeal.' " 114 Ill. App. 3d at 1037.
Based upon the established precedent, we hold that the trial court's order of January 5
was not an independent order, distinct from the final judgment for dissolution entered on February 5
.
We do realize that as recently as 1997, the legislature amended sections of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508 (West 1998)) pertaining to contributions for attorney fees and petitions for approval of final fees requiring that they be considered in separate and distinct proceedings. However, in
In re Marriage of McGuire
, 305 Ill. App. 3d 474, 477, 712 N.E.2d 411 (1999), we noted that one purpose of this legislation was to reduce the potential for conflicts of interest between attorneys and their clients and for infringement upon the attorney-client privilege in cases where attorney fees became an issue.
McGuire
, 305 Ill. App. 3d at 477. The court reasoned that any amendments to section 508(a) of the Act did not constitute substantive changes but altered the procedures by which issues regarding attorney fees are presented and heard in dissolution cases.
McGuire
, 305 Ill. App. 3d at 478.
Relying on
McGuire
, the court in
Marriage of Suriano
, 324 Ill. App. 3d 839, 847, 756 N.E.2d 382 (2001), stated that section 508(c) becomes pertinent in a
final
determination only
after a judgment for dissolution of marriage
awards contribution for attorney fees to the petitioning party.
Appellants' argument that the trial court's ability to subsequently revoke or change a fee award in dissolution proceedings is an impairment of property rights is contrary to the legislative intent behind the act allowing the trial court broad discretion under the act prior to the entry of a final judgment for dissolution of marriage.
Our holding in
In re Marriage of Tetzlaff
, 304 Ill. App. 3d 1030, 711 N.E.2d 346 (1999), is instructive. In
Tetzlaff
, the court entered an order awarding the wife's counsel interim attorney fees prior to the final judgment for dissolution was entered.
Tetzlaff
, 304 Ill. App. 3d at 1031. The court subsequently entered an order requiring the withdrawing attorneys to place $35,000 of the $65,000 award into an escrow account for successor attorneys. The withdrawing attorneys filed an interlocutory appeal.
Tetzlaff
, 304 Ill. App. 3d at 1031.
Relying on
Leopando
, the
Tetzlaff
court held that the trial court's order was not subject to an interlocutory appeal because "the Act discourages piecemeal appeals in the absence of some compelling reason."
Tetzlaff
, 304 Ill. App. 3d at 1039.
In this case, the order entered by the trial court on January 5
was interlocutory in nature and was not final nor appealable until the judgment for dissolution of marriage between the parties was entered. To conclude that the January 5
order was independent of the entire dissolution proceeding is contrary to legislative intent and well-established case law.
Interestingly enough, although the court instructed the Muller Firm to facilitate payment of the attorney fees within 14 days from that order, the firm did not take any action to collect those fees until February 9
, four days
after
the judgment for dissolution was entered. The portion of the judgment for dissolution
of marriage relating to attorney fees states in pertinent part:
"8.2 The Court entered Judgment against Samuel King and in favor of The Muller Firm on January 5, 1999 in the amount of
$4700.00
$4,380.00. Said sum shall be paid
out of the accounts
listed in Section 2.2(a)
out of, Samuel King's assets."
The trial court made specific reference to the January 5
order and incorporated that order into this final order. Based upon the foregoing, we find that the February 5
order was the final and appealable order and supersedes any other orders entered by the trial court.
We must note that appellee makes a contradictory argument that upon review we should rely on the portion of the court's order that requires payment of the attorney fees only from certain delineated bank accounts. We hold that to the extent that the language in the judgment for dissolution of marriage order controls the award of attorney fees itself
, that order specifically authorizes payment of fees from any of "Samuel King's
assets
." (Emphasis added.) In fact, the language in the February order that would have restricted payments to certain accounts – "Said sum shall be paid
out of the accounts
listed in Section 2.2(a)
" – was stricken. We can only conclude that the court intended to enter a final order allowing the payment of the attorney fees from
any asset
appellee possessed, including the marital home.
The second issue on appeal is whether section 144.5 of the Code, effective January 1, 2001, which requires a hearing to confirm the sale, applies to the sale of appellee's property.
We find it unnecessary to address this issue. Upon review of the record, appellee's motion to reconsider was based upon eight irregularities involving the sale of this property. As appellee maintains, it is true that while appellants appealed from the trial court's order granting appellee's motion to reconsider based upon all of these irregularities, appellants only address two of these irregularities in their appellate brief. However, we decline to apply the doctrine of waiver in this case.
Normally, issues raised in the notice of appeal but not raised or argued before the appellate court are deemed waived.
Kincaid v. Ames Department Stores, Inc.
, 283 Ill. App. 3d 555, 570, 670 N.E.2d 1103 (1996). However, this court has interpreted the rule of waiver as an admonition to the parties and not a limitation on the jurisdiction of reviewing courts.
In re C.R.H.
, 163 Ill. 2d 263, 274, 644 N.E.2d 1153 (1994);
Hux v. Raben
, 38 Ill. 2d 223, 224-25, 230 N.E.2d 831 (1967); see
Dineen v. City of Chicago
, 125 Ill. 2d 248, 265-66, 531 N.E.2d 347 (1988). In this regard, the supreme court has stated that a reviewing court may, in furtherance of its responsibility to provide a just result, override considerations of waiver.
Welch v. Johnson
, 147 Ill. 2d 40, 48, 588 N.E.2d 1119 (1992);
In re Marriage of Sutton
, 136 Ill. 2d 441, 446, 557 N.E.2d 869 (1990);
Hux
, 38 Ill. 2d at 225, 230 N.E.2d 831. This interpretation is supported by Supreme Court Rule 366(a)(5), which deals with the powers of a reviewing court and the scope of review. 134 Ill. 2d R. 366(a)(5). Rule 366(a)(5) provides that a reviewing court has the authority to "enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief *** that the case may require." 134 Ill. 2d R. 366(a)(5).
The Illinois Supreme Court has also stated that "judgment may be sustained upon any ground warranted, regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct."
Material Service Corp. v. Department of
Revenue
, 98 Ill. 2d 382, 387, 457 N.E.2d 9 (1983); see also
Estate of Johnson v. Condell Memorial Hospital
, 119 Ill. 2d 496, 502, 520 N.E.2d 37 (1988). We find it necessary to do so in this case.
Although the trial court granted appellee's motion to reconsider based upon all of the irregularities involved in the sheriff's sale, it primarily based its ruling upon the fact that "an officer of the court prepared a memorandum of judgment that said he had a certain judgment against a party that he didn't have."
The record in this case indicates that the lien against appellee's property was recorded based upon the trial court's January 5
order. Section 12-101 requires that the lien be recorded with the final judgment. As previously discussed, the January 5
order was not final and appealable but was merely interlocutory in nature. The final judgment was the order of judgment for dissolution entered on February 5
. If the order upon which appellants sought to create a lien was not a final judgment and essentially merged into the final judgment, a valid lien was never created. See
Armstrong v. Obucino
, 300 Ill. 140, 133 N.E. 58 (1921) (where a court, after acquiring jurisdiction, has assumed to enter a decree for a sale which goes beyond the limits of the jurisdiction and transgresses the law, the decree is void, and the sale based thereon is likewise an absolute nullity);
City of Chicago v. Central National Bank
, 134 Ill. App. 3d 22, 479 N.E.2d 1040 (1985) (where the judgment is void, a judicial sale held pursuant to that judgment is also void).
Based upon the foregoing analysis, the judgment of the circuit court is affirmed.
Affirmed.
HOFFMAN and WOLFSON, JJ., concur.
|
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 12, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-6089
v. (W .D. Oklahoma)
(D.C. No. 04-CR-97-L)
G REG O RY CA RL M IN A RD ,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, M cKA Y, and M U RPH Y, Circuit Judges.
I. Introduction
Following indictment on drug and firearm charges, Gregory Carl M inard
moved to suppress inculpatory statements he made to police. The district court
held an evidentiary hearing as required by Jackson v. Denno, 378 U.S. 368
(1964), to determine whether M inard’s statements were made voluntarily. After
considering evidence presented by both the Government and M inard, the court
*
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 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
determined the Government carried its burden of showing, in each instance, the
knowing and voluntary nature of M inard’s Fifth Amendment waiver and
incriminating statements. The court denied M inard’s suppression motion and
ruled the statements admissible at trial.
M inard subsequently pleaded guilty to one count of knowingly
manufacturing methamphetamine under 18 U.S.C. § 841(a)(1) and one count of
being a felon in possession of firearms under 18 U.S.C. § 922(g)(1). 1 The court
sentenced M inard to concurrent prison terms of 240 months on the
methamphetamine charge and 120 months on the firearms charge. In his plea
agreement, M inard retained the right to appeal the district court’s denial of his
suppression motion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this
court affirms the district court’s decision.
II. Background
M inard was shot in the chest by co-defendant Christopher Spindler on
M arch 27, 2004, following an early morning argument and gun fight at M inard’s
home in Oklahoma City. M inard was taken to Oklahoma U niversity M edical
Center. During his hospital stay, M inard was under arrest on state charges for
1
In exchange for his guilty plea, prosecutors moved to dismiss count 1 of
the indictment. Count 1 accused M inard and three others of conspiracy to
manufacture, possess with intent to distribute, and distribute 500 grams or more
of methamphetamine in violation of 18 U.S.C. § 841(a)(1).
-2-
manufacturing methamphetamine. M inard did not have surgery to remove the
bullet, but his condition improved during his hospitalization.
A police search of M inard’s house immediately after the shooting revealed
chemicals and tools used in methamphetamine manufacturing. A .22 caliber
pistol belonging to M inard was subsequently recovered inside the house; the .357
caliber revolver M inard used in the shootout w as recovered from a co-defendant.
The police investigation revealed M inard routinely sold methamphetamine to
Spindler and others. M inard ultimately admitted, for sentencing purposes, to
manufacturing one kilogram of methamphetamine.
W hile in the hospital in the days after the shooting, M inard was
interviewed twice by police detectives, once on M arch 30 and again on April 2.
In each interview , an Oklahoma City police detective advised M inard of his
M iranda rights and, in response, M inard waived his rights and agreed to speak
with the officers. In the course of these interview s, M inard admitted to
manufacturing methamphetamine in his home as well as to owning two guns.
M inard was interview ed again a month later, on April 29, at the Oklahoma City
jail. In this third interview, after again w aiving his M iranda rights, he provided
additional details about his role in manufacturing and selling methamphetamine
and about the shooting incident. None of these conversations was recorded or
transcribed. M inard does not, however, contest the substance of the conversations
-3-
Detectives Park and Chute recounted to the court. M inard only claims the
waivers and statements he gave were unknowing and involuntary.
At the hearing on M inard’s motion to suppress, the district court heard
testimony from Nurse Heather Ross, the nurse on duty during the first of the
interviews, to establish M inard’s medical condition at the time of that first
interview. The court also received into evidence M inard’s hospital records
(G overnment Exhibits 3–5) and the waiver forms he signed (Government Exhibits
1 and 2). Detective Kenneth Park testified about M inard’s demeanor and the
substance of his statements during the hospital interviews. Attempting to counter
Park’s testimony, M inard’s mother, Barbara Lynch, testified about M inard’s
confused mental state and dire physical condition during her visits to the hospital.
Detective A llen Chute testified about the nature and substance of the jailhouse
interview .
Considering the evidence before it, the district court determined “the
government has carried its burden of showing by the preponderance of the
evidence that M inard’s waiver of rights and subsequent confessions were
knowingly and voluntarily made.” The court denied M inard’s motion to suppress.
The court found no evidence of police coercion at either the hospital or the jail,
and, despite M inard’s injury and receipt of pain m edication, rejected M inard’s
argument that pain or painkillers affected M inard’s free will.
-4-
On appeal, M inard claims the district court incorrectly concluded his
statements were voluntary and, therefore, erroneously failed to suppress the
statements. This court concludes M inard’s assertions on appeal are unavailing.
III. Discussion
M inard challenges both the validity of his M iranda waiver and the
voluntariness of the statements he gave after providing a waiver. A M iranda
waiver, to be valid, must be given voluntarily, knowingly, and intelligently.
M iranda v. Arizona, 384 U.S. 436, 444 (1966). An inculpatory statement, to be
admissible, must be made voluntarily and of the defendant’s free will. Colorado
v. Connelly, 479 U.S. 157, 167 (1986).
Involuntariness in the context of both M iranda waivers and confessions
requires a finding of coercive police action. Id. (“[C]oercive police activity is a
necessary predicate to the finding that a confession is not ‘voluntary’ within the
meaning of the Due Process Clause.”); M oran v. Burbine, 475 U.S. 412, 421
(1986) (“[T]he relinquishment of the [M iranda] right must have been voluntary in
the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception.”). Thus, in the absence of police coercion, a
court cannot conclude a defendant’s waiver or inculpatory statements are
involuntary.
A valid waiver, however, requires more than just a finding of voluntariness.
In addition to being voluntary, a waiver of M iranda rights must also be knowing
-5-
and intelligent. 384 U.S. at 444. In contrast to a voluntariness analysis, a court
need not find coercion in order to find a defendant’s waiver unknowing or
unintelligent. See United States v. Cristobal, 293 F.3d 134, 142 (4th Cir. 2002).
Instead, the totality of the circumstances must demonstrate a defendant waived his
rights with a “requisite level of comprehension.” M oran, 475 U.S. at 421. A
waiver is knowing and intelligent only if it was made with “a full awareness of
both the nature of the right being abandoned and the consequences of the decision
to abandon it.” Id. A defendant need not, however, understand all the
consequences of the waiver. See Colorado v. Spring, 479 U.S. 564, 574 (1987).
He need only understand his right to remain silent or have his statements used
against him. Id.
W hen a defendant challenges the validity of a M iranda waiver or the
voluntariness of his inculpatory statements, this court independently reviews the
entire record and decides de novo whether the defendant’s actions and words w ere
voluntary. United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir. 1996).
This court accepts the district court’s findings of fact, however, unless the
findings are clearly erroneous. Id. Examples of factual findings in the
voluntariness context include the district court’s determinations about police
intimidation of a suspect or the suspect’s susceptibility to police coercion. United
States v. Chalan, 812 F.2d 1302, 1308 (10th Cir. 1987). W ith these standards in
-6-
mind, we consider separately each of M inard’s three interviews with law
enforcement.
A. M arch 30 ICU Interview
M inard argues he was under the influence of painkillers and in great pain
during the M arch 30 hospital interview . Although he listened to D etective Park
read the waiver of rights form, read the form himself, and signed the form, he
contends he was confused and did not understand the nature of the legal rights he
was w aiving. M inard, therefore, argues his statements w ere involuntary and his
waiver was invalid.
Unless clearly erroneous, this court must accept the district court’s factual
findings. Based on a transcript of the district court’s evidentiary hearing and the
exhibits received by the district court, we conclude the district court properly
found an absence of evidence of police coercion and properly determined
M inard’s waiver and inculpatory statements were voluntarily made.
Park interviewed M inard in the surgical trauma ICU just after 1:00 p.m. on
M arch 30, 2004, three and a half days after M inard was admitted to the hospital.
Park asked N urse Ross for permission to interview M inard. Park also asked Ross
whether M inard was under the influence of mind-altering drugs or painkillers and
whether he would be able to answer Park’s questions. Although she did not check
M inard’s chart before answering Park’s questions, Ross indicated M inard was not
under the influence of drugs and w ould be able to respond to Park’s inquiries.
-7-
Once inside M inard’s room, Park roused M inard from sleep and allowed
M inard time to drink a sip of water and orient himself. Park said he read M inard
a standard waiver of rights form word for word, made sure M inard could read
English, and allowed M inard the thirty seconds to a minute he needed to read the
form over for himself. Park estimated he was seated in a chair about a foot and a
half to two feet from the side of M inard’s bed during this time. M inard signed
the document while lying down in bed. M inard also verbally stated his
willingness to talk to Park. The entire interview lasted twenty minutes.
Hospitalization and pain alone are not enough to create any sort of
presumption of coercion or involuntariness. See United States v. M orris, 287
F.3d 985, 989 (10th Cir. 2002) (rejecting gunshot victim’s claim of FBI coercion
where FBI took care in determining whether victim’s m edical condition would
impair his ability to answ er questions); United States v. Hack, 782 F.2d 862, 866
(10th Cir. 1986) (concluding statements made two days after gunshot wound to
defendant’s mouth while defendant was still in pain were voluntary). Despite
M inard’s attempt to equate his situation with that in M incey v. Arizona, 437 U.S.
385, 389–402 (1978), his situation is easily distinguishable from M incey:
M inard’s interrogation took place three days after being shot; M inard signed a
waiver and indicated great willingness to speak with Detective Park; M inard did
not complain of pain to Park; M inard had a chest tube and IV inserted at the time
of the interview but was not otherwise encumbered by medical apparatus; M inard
-8-
had not received painkillers or other mind-altering drugs in the eighteen hours
prior to the interview; M inard did not indicate confusion about any subject on
which Park questioned him. There are no indicia of police coercion in this
encounter. Therefore, M inard’s w aiver could not have been involuntary even if
his decision to talk were influenced by pain medication or pain level. See
Connelly, 479 U.S. at 167.
Additionally, this court concludes, based on facts found by the district
court, that M inard’s mental state, pain medication level, and pain intensity level
did not negate his ability to knowingly or intelligently waive his rights. The
evidence presented to the district court shows that M inard, a thirty-seven year old
man with an eleventh grade education and several prior felony convictions, had
no difficulty understanding the waiver and its implications.
Regarding M inard’s mental state, Nurse Ross testified about the
neurological assessment used to rate a patient’s verbal, motor, and neurological
responses. On M arch 30 Ross rated M inard’s verbal response as five or
“oriented” at 7:00 a.m. and again at 3:00 p.m., but rated M inard a four or
“confused” at 11:00 a.m., two hours before Detective Park’s visit. M inard’s
records also showed he had been rated a five or “oriented” at each other four hour
interval on M arch 29 and 30 before and after the 11:00 a.m. “confused” rating. 2
2
Nurse Ross explained that “confused” means the patient is oriented to at
least person, place, or time, but not all three; it can also mean the patient is
-9-
In addition to medical testimony from Nurse Ross, Detective Park testified
about M inard’s mental acuity and condition on M arch 30 by describing the
substance of their conversation. Park estimated he had interviewed close to a
thousand people during his career as a police officer and, based on his experience,
M inard showed no signs of difficulty understanding Park’s questions. In
particular, Park said M inard was able to discuss manufacturing methamphetamine
using the red phosphorous method, provided the name of the person who taught
him to cook methamphetamine, and told Park where in M inard’s house Park
would find particular items used to manufacture methamphetamine. Park was
able to corroborate both the location of the items M inard mentioned and
information M inard provided about the two other people with whom M inard
shared the house.
Barbara Lynch, M inard’s mother, attempted to demonstrate M inard’s
mental confusion on M arch 29 and 30, but the district court determined her
testimony was insufficient to temper Ross’ and Park’s testimony and the
information contained in M inard’s medical records. Lynch testified M inard
drifted off during her visits to the hospital and, upon reawakening, was surprised
to see her. She also said M inard did not remember from one day to the next that
sleeping. Ross also noted M inard opened his eyes spontaneously and responded
to her commands at 11:00 a.m. and that, at 1:00 p.m. when Park arrived, M inard’s
vital signs were stable.
-10-
she had visited him the day before and mistakenly thought his daughter had
visited him in the hospital. On cross examination, however, Lynch admitted
M inard was not “incoherent, it w as just that he would be kind of dazed.” Lynch
also had difficulty remembering the dates of her visits and whether M inard
exhibited confusion on M arch 29, the day before his interview with Detective
Park, or on M arch 30.
On the issue of pain medication, prior to Detective Park’s visit, M inard had
last received four milligrams of morphine intravenously at 8:48 p.m. on the
evening of M arch 29, nearly eighteen hours before the interview with Detective
Park. Nurse Ross testified every administration of morphine is noted on a
patient’s chart and confirmed M inard did not have the ability to administer
morphine to himself. Nurse Ross testified that, although pain medication affects
different patients differently, four milligrams of morphine usually lasts four to
five hours. There was no evidence M inard received other mind-altering drugs on
M arch 29 or 30.
In terms of M inard’s pain level, Nurse Ross testified about M inard’s self-
reports of pain. At 7:00 a.m. on M arch 30, before the interview, M inard had no
com plaint of pain. When he complained of pain at 2:14 p.m., after the interview ,
he rated his pain as a seven on a one-to-ten scale. Detective Park testified M inard
may have appeared to be in a bit of discomfort when he adjusted his position in
bed, but there were no indications of extreme pain.
-11-
B ased on the evidence noted herein and other evidence in the record, we
conclude M inard’s mental and physical condition did not impair his ability to
voluntarily, knowingly, or intelligently waive his Fifth Amendment rights.
Additionally, because we conclude there was no police coercion at any point
during the M arch 30 encounter, this court affirms the district court’s
determination that M inard’s subsequent statements to police were voluntary and
given freely. See United States v. Erving L., 147 F.3d 1240, 1249 (10th Cir.
1998) (“[I]t is clear after Connelly that a confession is only involuntary . . . if the
police use coercive activity to undermine the suspect’s ability to exercise his free
will.”). The district court properly denied M inard’s suppression motion as the
m otion related to the M arch 30 interview.
B. April 2 H ospital Room Interview
According to Detective Park’s uncontroverted testimony, Park returned to
the hospital on April 2, 2004 with Detective Allen Chute to question M inard about
the shooting. M inard had been moved to a standard hospital room. Park checked
with a nurse prior to entering M inard’s room. Unlike the earlier visit, M inard was
awake when Park and Chute entered the room and was “extremely cognizant” and
“fully aw are” from the beginning of the interview. Although Park did not have a
waiver form for M inard to sign on this visit, Park read M inard his M iranda rights
from a card; M inard said, “Yeah, I’ll talk with you.” M inard then told the
detectives about the shooting incident, including admitting his ownership of the
-12-
.357 caliber gun used to fire at Christopher Spindler. M inard also told Park about
the .22 caliber pistol located under an ottoman in the living room. This interview
lasted approximately ten to fifteen minutes.
M inard does not seriously challenge the waiver or statements he made in
this interview as involuntary. Rather, he alleges they should be suppressed as fruit
of the allegedly illegal earlier interview. Because this court has determined the
legality of the earlier interview , there is no constitutional problem with the April 2
interview.
C. April 29 Jailhouse Interview
M inard’s challenge to his third police interview alleges Detective Chute and
Special Agent W hitney created a coercive environment by discussing the
possibility that M inard had cancer. M inard contends the conversation so unsettled
him that his M iranda waiver w as invalid and his statements were involuntary.
Upon a review of the evidence presented to the district court, this court agrees
with the district court’s assessment that the record is devoid of evidence to support
M inard’s position.
Detective Chute testified he recalled hearing early in the investigation that
M inard possibly had cancer. He remembered asking M inard about this at the
beginning of the interview, but denied telling M inard he had cancer. Chute said
M inard responded to the officers’ inquiry by saying he did not have cancer. Agent
-13-
W hitney then read M inard his M iranda rights from a standard ATF waiver form, 3
which M inard then read for himself and signed. Chute testified neither he nor
W hitney made promises to M inard in exchange for his willingness to talk to them.
Other than conclusory arguments in M inard’s brief, there is no indication
that M inard’s decision to talk with Chute and Whitney on April 29 was influenced
by the cancer discussion. Chute testified the entire interview lasted twenty-five to
thirty minutes. He thought M inard seemed comfortable, aware, and cognizant of
his surroundings during the interview. M inard told Chute and Whitney about the
shooting and the chase and gun fight that preceded it, admitted again that he used
a .357 caliber gun to fire at Christopher Spindler, and told Chute where to look for
the .357 W esson if detectives couldn’t find the gun in his house. M inard also told
the officers about his methamphetamine use: he indicated he manufactured
methamphetamine mostly for his own use but also sold it to pay his bills and rent.
He estimated he manufactured approximately two to three ounces per week from
Christmas 2003 to M arch 2004 and sold it at $900 per ounce.
Although this court questions the officers’ rationale for mentioning cancer
to M inard at all, the officers’ conduct does not am ount to “coercive activity to
undermine the suspect’s ability to exercise his free will.” United States v. Lugo,
3
Although it is unclear from the record whether this cancer discussion
occurred prior to or after M inard signed a waiver form, M inard’s counsel at oral
argument said the discussion happened first.
-14-
170 F.3d 996, 1004 (10th Cir. 1999). As the district court correctly determined,
there is no evidence to suggest M inard’s w ill was overborne or to indicate his
inculpatory statements were made involuntarily. Additionally, there is no
suggestion M inard’s waiver was not knowing or intelligent. This court therefore
concludes M inard’s waiver was valid and his statements were voluntary.
IV. Conclusion
This court affirms the district court’s denial of M inard’s suppression
motion.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
-15-
|
5 So.3d 681 (2009)
GOMEZ
v.
STATE.
No. 3D08-1352.
District Court of Appeal of Florida, Third District.
March 2, 2009.
Decision without published opinion. App.dismissed.
|
712 A.2d 1101 (1998)
154 N.J. 282
Dennis GARRISON, Plaintiff-Respondent,
v.
TOWNSHIP OF MIDDLETOWN, Defendant-Appellant,
New Jersey Transit, Defendant.
Supreme Court of New Jersey.
Argued September 22, 1997.
Decided July 7, 1998.
*1102 Bernard M. Reilly, Red Bank, for defendant-appellant (Dowd & Reilly, attorneys).
Steven L. Kessel, Red Bank, for plaintiff-respondent (Drazin and Warshaw, attorneys).
The opinion of the Court was delivered by POLLOCK, J.
The New Jersey Tort Claims Act (Act), N.J.S.A. 59:4-1a, defines a "dangerous condition" on the property of a public entity as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." This appeal questions the extent to which the reasonableness of a claimant's use of property is relevant to the determination whether the condition of the public entity's property was dangerous. The Law Division granted the motion for summary judgment of defendant, Township of Middletown (Middletown). In an unreported opinion, the Appellate Division reversed. We granted the Middletown's petition for certification, 147 N.J. 579, 688 A.2d 1054 (1997). We reverse the judgment of the Appellate Division and reinstate the Law Division's judgment of dismissal.
I.
Because this matter arises on defendant's motion for summary judgment, we accept plaintiff's version of the facts and give plaintiff the benefit of all favorable inferences. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 666 A.2d 146 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 110 A.2d 24 (1954). The underlying accident occurred on a Middletown parking lot adjacent to a New Jersey Transit station. At night the lot is illuminated. Middletown also owns thirty-five parks, many of which have football fields. Two of the parks have lighting.
Plaintiff, Dennis Garrison, was injured at about 9:30 p.m. on November 19, 1989, while playing touch football on the parking lot. No one on behalf of Middletown gave permission to the players to play football on the parking lot. During previous football games on the parking lot, patrolling police officers had not told the players to stop. Plaintiff and his friends used the lot because it was lighted and the lines demarcating the parking spaces served as boundaries.
Before the game began, plaintiff knew that the area on which he was playing had an uneven surface or declivity. In that area, which was about twenty-one feet from one of the "sidelines," the paved part of the lot was one and one-half inches lower than adjacent broken gravel.
Plaintiff, who was just a few weeks away from his seventeenth birthday at the time of the accident, nonetheless decided to play night football on the lot. He and his friends agreed to try to avoid the uneven pavement. They also agreed not to start any plays in that area. After they had been playing for about an hour, however, plaintiff tried to rush the quarterback on the opposing team. While trying to evade a blocker, plaintiff ran from the pavement to the adjacent area, planted his foot on the uneven surface, and damaged his knee.
*1103 Plaintiff sued both Middletown and New Jersey Transit alleging that they had negligently allowed a dangerous condition to exist in the parking lot and that the condition caused his injury. Both defendants moved for summary judgment. Ultimately, the Law Division granted both motions. Although plaintiff did not appeal from the judgment of dismissal in favor of New Jersey Transit, he did appeal from the judgment in favor of Middletown.
In granting Middletown's motion, the Law Division reasoned that Middletown neither intended nor anticipated plaintiff's use of the parking lot, that plaintiff knew that the pavement was uneven in the area where the accident occurred, and that the uneven pavement was not a "dangerous condition" as defined by the Act.
The Appellate Division reversed, determining that the Law Division had misconstrued the Act by focusing on the intended use of the parking lot. According to the Appellate Division, plaintiff's use of the property as a football field was foreseeable. Although Middletown could assert plaintiff's negligence as an affirmative defense, his negligence would not constitute a lack of due care sufficient to bar his claim. The Appellate Division concluded that plaintiff presented sufficient evidence of Middletown's actual or constructive knowledge of the defective condition, and of the unreasonableness of Middletown's actions concerning the defective condition, to preclude summary judgment for Middletown.
II.
The Act establishes a system for public entities in which immunity from tort liability is the general rule and liability is the exception. Bombace v. City of Newark, 125 N.J. 361, 372, 593 A.2d 335 (1991). Thus, the Act sets forth as its purpose:
[I]t is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carrying out the above legislative declaration.
[N.J.S.A. 59:1-2.]
To recover under the Act, a plaintiff must prove, among other things, that at the time of the injury the public entity's property was in a dangerous condition, that the condition created a foreseeable risk of the kind of injury that occurred, and that the condition proximately caused the injury. N.J.S.A. 59:4-2. Even then, the Act imposes no liability on a public entity if "the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." N.J.S.A. 59:4-2.
Essential to the determination of a public entity's tort liability is the definition of the statutory term "dangerous condition." The Act defines a "dangerous condition" as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1a. By its terms, the Act explicitly requires that a dangerous condition can be found to exist only when the public entity's property "is used with due care."
The issue in the instant case is not whether Middletown intended the parking lot to be used for night football games. Rather, the issue is whether the declivity in the parking lot created a substantial risk of injury when the property was used with due care. So stated, our analysis focuses not on plaintiff's individual conduct, but on whether playing night football on a paved parking lot with a known declivity constitutes a use of the property with the care that was due.
If a public entity's property is dangerous only when used without due care, the property is not in a "dangerous condition." Accordingly, in Speziale v. Newark Housing Auth., 193 N.J.Super. 413, 417, 474 A.2d 1085 (App.Div.1984), the Appellate Division reversed a jury verdict for the plaintiff because she failed to show that two to three inches of rain water on the floor created a substantial risk of injury when the property was used with due care. The plaintiff slipped and fell while attempting to step from a staircase over a pit filled with water onto a single step *1104 leading into a laundry room. Id. at 415, 474 A.2d 1085. Because the plaintiff could have sought assistance or waited for the water to abate, she had not used the property with due care. Id. at 417, 474 A.2d 1085. Hence, the condition of the property did not constitute a dangerous condition, and the case should not have been submitted to the jury for a determination of contributory negligence. Ibid.
Although the plaintiff's lack of due care negated a finding of a dangerous condition, the Appellate Division emphasized that a plaintiff's contributory negligence will not ordinarily immunize a public entity from liability. Id. at 418, 474 A.2d 1085. The Appellate Division reasoned that such a conclusion would be contrary to N.J.S.A. 59:9-4, which provides that a plaintiff's negligence shall not bar her claim unless her negligence is greater than that of the public entity. Id. at 418-19, 474 A.2d 1085. The court indicated that, when a condition is dangerous to all users, the plaintiff may be able to establish the existence of a dangerous condition even though he may have been contributorily negligent:
For instance, let us assume that a county constructs a straight road which abruptly, without warning signs or indicia, veers at a 45 degree angle. That condition could be said to create a substantial risk of injury when used in the darkness with due care by driver generally in a manner reasonably foreseeable that it will be used. However, the individual driver who traverses such a road at an excessive rate of speed while embracing a companion may still be found culpable of contributory negligence by a jury.
[Id. at 419, 474 A.2d 1085.]
Similarly, in Hawes v. New Jersey Dep't of Transp., 232 N.J.Super. 160, 164, 556 A.2d 1224 (Law Div.), aff'd, 232 N.J.Super. 159, 556 A.2d 1224 (App.Div.1988), the Law Division granted summary judgment in favor of New Jersey Transit and held that unprotected railroad tracks did not constitute a dangerous condition. In that case, a train struck and killed the decedent as he tried to cross a railroad track. Id. at 161, 556 A.2d 1224. Plaintiff, the administratrix of decedent's estate, argued that New Jersey Transit, although it knew trespassers regularly used the crossing, created a dangerous condition by failing to erect a fence or take other protective measures. Ibid. The Law Division rejected the argument, finding that anyone using the railroad's property with due care would not encounter a substantial risk of harm. As the court stated,
common sense dictates that a person using due care would make certain no trains were approaching before walking across a railroad track. Exercising even a minimum of care, a person should be able to eliminate any chance of being hit by a train. Accordingly, [the railroad's] property did not constitute a dangerous condition.
[Id. at 164, 556 A.2d 1224.]
Finally, in Lytle v. City of Newark, 166 N.J.Super. 191, 192, 399 A.2d 333 (Law Div. 1979), the parties' automobiles collided in an intersection in which the traffic lights were not working. Aware that the traffic lights did not work, plaintiff nonetheless proceeded through the intersection after she saw the traffic light a block ahead turn green. Id. at 195, 399 A.2d 333. She claimed that the broken lights constituted a dangerous condition. Id. at 193, 399 A.2d 333. The Law Division granted a judgment of dismissal in favor of the city of Newark. It concluded that the manner in which she proceeded "indicates that the property was not used with due care. As such, a dangerous condition could not have existed." Ibid. Additionally, the Law Division noted that the plaintiff failed to demonstrate "how the absence of a traffic control signal in any way contributed to the accident." Ibid.
Because the California Tort Claims Act was the model for the Act, we often consider interpretations of that Act when interpreting our own. Levin v. County of Salem, 133 N.J. 35, 46, 626 A.2d 1091 (1993). Consideration of California law is appropriate here because the definition of "dangerous condition" in the California statute, Cal. Gov't Code § 830a, is nearly identical to that in N.J.S.A. 59:4-1a. The California Law Revision Commission's Comment to Cal. Gov't Code § 830 explains:
*1105 A condition is not dangerous within the meaning of this chapter unless it creates a hazard to those who foreseeably will use the property or adjacent property with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.
* * *
The plaintiff is required to establish that the condition was one that created a hazard to a person who foreseeably would use the property or adjacent property with due care.
Pursuant to that legislative mandate, California courts, like those in New Jersey, have refused to find that property is in a dangerous condition if the property poses a substantial risk of injury only to those who engage in objectively unreasonable conduct. For example, in Fredette v. City of Long Beach, the plaintiff injured himself when he dove into shallow water from a pier in the final stages of reconstruction. 187 Cal.App. 3d 122, 127-28, 231 Cal.Rptr. 598 (1986). He argued that the absence of barricades or warning signs on the pier created a dangerous condition. Id. at 129, 231 Cal.Rptr. 598. The California court rejected that argument, explaining:
The negligence of a plaintiff-user of public property ... is a defense which may be asserted by a public entity; it has no bearing upon the determination of a "dangerous condition" in the first instance. So long as the plaintiff-user can establish that a condition of the property creates a substantial risk to any foreseeable user of the public property who uses it with due care, he has successfully alleged the existence of a dangerous condition regardless of his lack of due care.
[Id. at 131, 231 Cal.Rptr. 598 (citations omitted).]
On the other hand, if "it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not dangerous." Ibid. In sustaining a jury verdict for the city of Long Beach, the court found that "the physical characteristics" of the pier notified "persons exercising due care" that the activity in which the plaintiff participated was, "in and of itself, a hazardous activity that should be avoided. We think it clear that no member of the public may ignore the notice which the condition itself provides." Id. at 132, 231 Cal.Rptr. 598. The court concluded that the city of Long Beach had not created a dangerous condition, and that its failure to erect barricades or post signs was not the proximate cause of plaintiff's injuries. Id. at 131, 231 Cal.Rptr. 598.
In Rombalski v. City of Laguna Beach, 213 Cal.App.3d 842, 849, 261 Cal.Rptr. 820 (1989), a thirteen-year old plaintiff was rendered a quadriplegic after diving from a rock on a public beach. Affirming summary judgment for the municipality of Laguna Beach, the Court of Appeal held as a matter of law that the rock was not a dangerous condition because the plaintiff could not show that he had exercised due care. Id. at 849-50, 261 Cal.Rptr. 820. The court reasoned that "[i]n Fredette, as in this case, the condition of the rock only become dangerous when misused." Id. at 850, 261 Cal.Rptr. 820. The dive, moreover, was a hazardous recreational activity for which the city was immune. Id. at 851-52, 261 Cal.Rptr. 820.
Finally, in Mathews v. City of Cerritos, 2 Cal.App. 4th 1380, 1382, 4 Cal.Rptr.2d 16 (1992), the eight-year old plaintiff injured himself while attempting to ride his bicycle down a steep hill in a city park when the grass was wet with dew. The boy knew the hill was too steep and dangerous for bike-riding. Id. at 1383, 4 Cal.Rptr.2d 16. In affirming summary judgment for the city of Cerritos, the Court of Appeal reasoned that the condition of the park did not constitute a dangerous condition:
Reasonably foreseeable use with due care, as an element in defining whether property is in a dangerous condition, refers to use by the public generally, not the contributory negligence of the particular plaintiff who comes before the court; the particular plaintiff's contributory negligence is a matter of defense. Nevertheless, the plaintiff has the burden to establish that the condition is one which creates a hazard to persons *1106 who foreseeably would use the property with due care.
* * *
Applying these principles here, we conclude that the danger of riding a bicycle down a very steep, wet, grassy hill is obvious from the appearance of the property itself, even to children exercising a lower standard of care.
[Id. at 1384-85, 4 Cal.Rptr.2d 16.]
The California cases confirm that "used with due care" implies a standard of objective reasonableness. A use that is not objectively reasonable from the community perspective is not one "with due care." To this extent, "used with due care" refers not to the conduct of the injured party, but to the objectively reasonable use by the public generally. See California Tort Liability Practice § 3.21, at 321 (3rd ed.1992) (stating that "`used with due care' requirement refers to use by the public generally"); California Jury Instruction Civil § 11.54, at 473 (7th ed.1986) (stating that "`used with due care' refers to whether the condition would result in injuries when used with due care by the public generally. It does not refer to the care used by any person in connection with this particular accident.")
Consistent with California's interpretation, the Appellate Division has held that the existence of a dangerous condition depends on "whether the property creates a substantial risk of injury `to persons generally, who would use the property with due care in a foreseeable manner.'" Daniel v. New Jersey Dep't of Transp., 239 N.J.Super. 563, 587, 571 A.2d 1329 (App.Div.) (citations omitted) (emphasis in original), certif. denied, 122 N.J. 325, 585 A.2d 343 (1990); see also Speziale, supra, 193 N.J.Super. at 419, 474 A.2d 1085 ("[T]he test is whether the condition created a substantial risk of harm to persons, generally, who would use the public property with due care in a foreseeable manner.") (emphasis omitted) (quoting Holmes v. Oakland City, 260 Cal.App. 378, 67 Cal.Rptr. 197 (1968)). When the property poses a danger to all users, an injured party may establish that property was in a dangerous condition notwithstanding his or her failure to exercise due care. See, e.g., Furey v. County of Ocean, 273 N.J.Super. 300, 310-11, 641 A.2d 1091 (App.Div.) (holding that drop-off at shoulder of road ranging between two to six inches could be dangerous condition because "roadway was not safe for drivers in general;" hence, "it is irrelevant why decedent's vehicle left the road"), certif. denied, 138 N.J. 272, 649 A.2d 1291 (1994); Daniel, supra, 239 N.J.Super. at 590, 571 A.2d 1329 (holding that two road projects which created ramp with tendency to catapult automobiles across highway median could create dangerous condition because "a driver may make contact with a median notwithstanding his or her exercise of due care"). In such cases the plaintiff's negligence more appropriately relates not to the determination whether the property was dangerous, but to the issues of proximate causation or comparative negligence.
As the California opinions illustrate, courts concentrate on the activity in which the plaintiff engaged. The purpose of the evaluation is to ascertain whether the plaintiff had engaged in an activity that is so objectively unreasonable that liability for resulting injuries may not be attributed to the condition of the property. The focus of the inquiry is not on the details of the plaintiff's activity, but on the nature of the activity itself. Although the inquiry "does not refer to the actual activities of the plaintiff," Daniel, supra, 239 N.J.Super. at 587, 571 A.2d 1329, it invites examination whether the plaintiff's "conduct while engaging in a foreseeable activity amounts to an objectively reasonable use of the property." Levin, supra, 133 N.J. at 59, 626 A.2d 1091 (Stein, J., dissenting); see Speaks v. Jersey City Hous. Auth., 193 N.J.Super. 405, 411, 474 A.2d 1081 (App.Div. 1984) ("the reasonable user requirement [of N.J.S.A. 59:4-1a] of equal necessity, refers to the conduct of an individual").
In the present case, the record does not establish that the declivity was dangerous to all foreseeable users of the parking lot. Nothing indicates that the declivity posed a risk to commuters or to other persons who parked their cars or walked to the train station. In brief, the condition of the property was not dangerous for anyone who used it "with due care."
*1107 Furthermore, that plaintiff's use was not "with due care" is manifest. Touch football on a poorly-lit uneven railroad-station parking lot constitutes a use of public property that is as a matter of law "without due care." The fact that plaintiff was injured does not prove that the condition of the property posed a risk of harm to anyone who exercised due care in the use of the property. Even under the generous test applicable to motions for summary judgment, plaintiff has not proved that the property when used with due care created a substantial risk of injury to the general public.
III.
Our concurring colleagues agree with the dismissal of plaintiff's action but would do so because the declivity was not a proximate cause of plaintiff's injury. In short, they would judge the unreasonableness of the plaintiff's conduct exclusively with regard to proximate causation or comparative negligence. (Conc. op. at 295, 712 A.2d at 1108). That analysis, however, ignores the relevance of proof of the use of the property with due care as part of establishing that the property was in a dangerous condition. To that extent, the concurrence departs from the plain language and purpose of the Act.
An examination of the objective reasonableness of the plaintiff's use of the property under N.J.S.A. 59:4-1a does not conflict with an examination of that use under N.J.S.A. 59:9-4, which pertains to the comparative negligence of the parties. N.J.S.A. 59:9-4 provides that a plaintiff's negligence is not a bar to recovery unless it is greater than the public entity's negligence. Daniel, supra, 239 N.J.Super. at 588, 571 A.2d 1329 (plaintiff may be able to establish existence of dangerous condition even though he personally may have been negligent); Speziale, supra, 193 N.J.Super. at 419, 474 A.2d 1085 (same). In a sense, proof of a plaintiff's due care, like proof of the physical condition of property, is a threshold requirement. That plaintiff's conduct relates also to proximate causation, N.J.S.A. 59:4-2, and comparative negligence, N.J.S.A. 59:9-4, does not preclude its relevance to the determination whether the property was in a dangerous condition.
When construing the Act, courts seek to follow the legislative mandate favoring the immunity of public entities. Bombace, supra, 125 N.J. at 373, 593 A.2d 335. The Legislature could have written the Act to create more expansive liability for public entities. Specifically, the Legislature could have provided that the plaintiff's due care is irrelevant to the inquiry whether property is in a "dangerous condition." Alternatively, the Legislature could have limited consideration of a plaintiff's use of the public property to issues of causation or comparative negligence. A statute so drafted would comport with our concurring colleagues' construction of the Act. The Legislature, however, took a different course. It wrote the "due care" requirement into the definition of "dangerous condition." In brief, the Legislature made a conscious policy choice to exclude public entities from liability for people who engage in unreasonable activities on public property.
Because of our disposition in this case, we need not resolve whether the declivity posed a substantial risk of injury, whether the declivity was the proximate cause of plaintiff's injury, whether Middletown had notice of the declivity, or whether Middletown's actions were "palpably unreasonable."
The judgment of the Appellate Division is reversed and the judgment of the Law Division is reinstated.
STEIN, J., concurring.
I join in the Court's judgment reversing the judgment of the Appellate Division. The Court's analysis and rationale, however, are flawed and will generate confusion and imprecision in the conduct of Tort Claims Act (Act) litigation.
Misreading the statute, the Court holds that for purposes of public entity liability under the Act a condition of public property is not "dangerous" unless the specific plaintiff that brought the litigation satisfies the "threshold requirement" that he or she used due care when encountering the property. Ante at 293-94, 712 A.2d at 1107. Thus, under the Court's analysis a large, deep, *1108 unmarked and obviously hazardous pothole in a public-entity-owned parking lot would constitute a "dangerous condition" in a lawsuit brought by a person who tripped on the pothole while exercising due care, but the identical pothole would not constitute a dangerous condition in a different suit against the same public entity brought by a person who tripped on the pothole while roller-blading backwards across the lot. The Court claims that its contradictory and illogical standard for identifying a "dangerous condition" of public property is faithful to the Act. The Court's analysis disregards, however, those other provisions of the Act that do attach relevance to the specific conduct of the plaintiff in the litigation. For example, N.J.S.A. 59:9-4 provides that a plaintiff's contributory negligence not greater than that of the public entity does not bar recovery under the Act and requires the fact finder to allocate fault between the plaintiff and the public entity. N.J.S.A. 59:4-2 imposes liability on a public entity based on a dangerous condition of property only if the plaintiff's injury was proximately caused by the dangerous condition. Those sections of the Act, not the definition of "dangerous condition," are designed to accord significance to the conduct of the specific plaintiff and to his or her lack of due care.
The Court's faulty analysis does not affect the result in this appeal because the record reveals a failure of proof either that the condition of public property at issue here was a proximate cause of plaintiff's injury or that the public entity's lack of action to address that condition was palpably unreasonable. See N.J.S.A. 59:4-2. Nevertheless, the Court's strained effort to define a "dangerous condition" of property by focusing not on the foreseeable hazard posed by the property to careful users but rather on the carelessness of the specific plaintiff retards the orderly development of our Tort Claims Act jurisprudence and diminishes the persuasiveness of the Court's disposition.
I
As summarized in the Court's opinion, ante at 284-86, 712 A.2d at 1102-03, plaintiff's claim is based on an injury he sustained while playing touch football at night with friends on an illuminated township parking lot located adjacent to a New Jersey Transit station. Neither party disputes, for purposes of the Township's summary judgment motion, that plaintiff was injured when he rushed the passer and stumbled on an uneven portion of the lotan area where the paved portion was one and one-half inches lower than an adjacent broken gravel surface. Plaintiff was aware of the uneven surface. He and his friends noticed it before the football game began and agreed that they would try to avoid that area of the lot.
After discovery was completed the Law Division granted defendants' motions for summary judgment, reasoning that the uneven surface of the parking lot did not constitute a dangerous condition as a matter of law because the touch football game was not an intended use of the property. Reversing, the Appellate Division panel observed that the same injury plaintiff experienced "could have been sustained by, for example, a commuter who had parked his car in the lot and then run, or even walked, to catch a train, falling at the point where the repaved and unrepaved portions of the lot met," and noting that "any person using the parking lot for its intended use could have suffered the same mischance that plaintiff did because the danger lay not in the use itself but rather in the defective condition."
The Court now reverses and holds that "a dangerous condition can be found to exist" only when the plaintiff uses the public entity's property with "due care," ante at 287, 712 A.2d at 1103, emphasizing that public property is not "dangerous," as that term is used in N.J.S.A. 59:4-1a, if someone is injured while failing to exercise due care. Ante at 293, 712 A.2d at 1107.
Apparently recognizing the incongruity of an analysis that makes the dangerousness of property depend not on its general condition but rather on a specific plaintiff's use, the Court qualifies its holding by observing that to some extent "`used with due care' refers not to the conduct of the injured party, but to objectively reasonable use by the public generally." *1109 Ante at 291, 712 A.2d at 1106. Adding further confusion to its analysis, the Court back-pedals and concedes that "[w]hen the property poses a danger to all users, an injured party may establish that property was in a dangerous condition notwithstanding his or her failure to exercise due care." Ante at 292, 712 A.2d at 1106. But the Court discards that more rational approach when it insists that to decide these cases "courts must first evaluate the activity in which the plaintiff engaged." Ante at 292, 712 A.2d at 1106.
After demanding a plaintiff-specific analysis to determine if public property is dangerous, the Court thereafter abandons that inquiry, determining that in this case
the record does not establish that the declivity was dangerous to all foreseeable users of the parking lot. Nothing indicates that the declivity posed a risk to such persons as commuters or to other persons who parked their cars or walked to the train station. In brief, the condition of the property was not dangerous for one who used it "with due care."
Ante at 293, 712 A.2d at 1106.
Without acknowledging its inconsistency, the Court effectively decides this case by concluding as a matter of law that the municipal parking lot did not constitute a dangerous condition because it posed no risk to any person using due care, thereby confirming that plaintiff's lack of due care is irrelevant in determining whether the parking lot was dangerous. If the record had contained abundant evidence of commuters tripping and falling daily on the very same declivity, I infer that the Court would concede that the property was dangerous irrespective of plaintiff's lack of due care.
II
The Court supports its plaintiff-specific understanding of the term "dangerous condition" by reliance on decisional law in this state, as well as on cases decided by courts in California on whose Tort Claims Act New Jersey's statute was modeled. See Levin v. County of Salem, 133 N.J. 35, 46, 626 A.2d 1091 (1993). However, neither jurisdiction's decisional law supports the Court's unorthodox interpretation of the term "dangerous condition" as used in the Act. The statute defines a dangerous condition as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1a. The interpretative issue is readily apparent: does the statute contemplate, as the Appellate Division concluded, that a dangerous condition exists if it poses a risk of injury to any person using the property with due care in a reasonably foreseeable manner, or does it contemplate, as the Court concludes, that no matter how hazardous a condition of property may be it is not a "dangerous condition" unless the specific plaintiff used the property with due care in a reasonably foreseeable manner. The plain language of the statute, which includes no reference to the specific plaintiff's use of the property, clearly supports the Appellate Division's interpretation that focuses on whether public property poses a substantial risk of injury to any person using the property with due care in a reasonably foreseeable manner. Because of the Court's acknowledged reliance on precedent to sustain its interpretation, I focus on the same cases but reach a different conclusion.
The first case discussed by the Court, Speziale v. Newark Housing Authority, 193 N.J.Super. 413, 474 A.2d 1085 (App.Div. 1984), expressly contradicts the Court's analysis. There, the plaintiff "slipped and fell while attempting to step from a staircase over a pit filled with water onto a single step leading into a laundry room." Ante at 287, 712 A.2d at 1103-04. Reversing a jury verdict for the plaintiff, the Appellate Division concluded that the plaintiff had failed to prove the existence of a dangerous condition of property, concluding that the flooded condition posed no substantial risk of injury because "[a] person in plaintiff's position here could have been reasonably expected to wait until the water condition abated, or to have sought assistance." 193 N.J.Super. at 417, 474 A.2d 1085. The court added, however, that a public entity was not immune from *1110 liability under the "dangerous condition" section of the Act merely because the specific plaintiff was contributorily negligent. Id. at 418, 474 A.2d 1085. The Appellate Division quoted with approval the California Law Revision Commission's comment to the corresponding section of the California statute, Cal. Gov't Code § 830(a):
Although the condition will not be considered dangerous ... unless it creates a hazard to those who foreseeably will use the property ... with due care, this does not require that the injured person prove that he was free from contributory negligence.... The plaintiff is, however, required to establish that the condition was one that created a hazard to a person who foreseeably would use the property ... with due care.
[Ibid.]
Hawes v. New Jersey Department of Transportation, 232 N.J.Super. 160, 556 A.2d 1224 (Law Div.), aff'd, 232 N.J.Super. 159, 556 A.2d 1224 (App.Div.1988), also relied on by the Court, does not support the Court's analysis. There, the trial court granted the defendant's motion for summary judgment in a suit brought by the administratrix of the estate of a decedent killed by one of the defendant's trains when he attempted to cross a railroad track. Focusing on a hypothetical user rather than the plaintiff, the court concluded that the property did not constitute a dangerous condition because "it is clear ... that if a person were to use the defendant's property with due care, he would encounter no substantial risk of harm." Id. at 164, 556 A.2d 1224. But the Law Division expressly rejected the defendant's contention that a dangerous condition cannot exist if the specific plaintiff does not use due care: "The defendant also seems to imply that due care is a condition precedent to a finding that property is dangerous. This position is untenable." Id. at 161 n. 1, 556 A.2d 1224 (citing Speziale, supra, 193 N.J.Super. 413, 474 A.2d 1085).
Lytle v. City of Newark, 166 N.J.Super. 191, 399 A.2d 333 (Law Div.1979), another Law Division opinion relied on by the Court, appears to support the Court's construction of the statute. In Lytle, the plaintiff was injured in a collision with another car in an intersection at which the traffic lights were inoperative. Concluding that even without functioning traffic lights the intersection would not have been dangerous if the drivers had used due care, the court concluded that the specific plaintiff's lack of due care precluded a finding that a dangerous condition existed. Id. at 195, 399 A.2d 333. Notably, the Appellate Division in Speziale, supra, on which the Court also relies, expressly disapproved of Lytle to the extent that it suggests that no dangerous condition can exist if a plaintiff is contributorily negligent. 193 N.J.Super. at 418, 474 A.2d 1085.
In Daniel v. New Jersey Department of Transportation, 239 N.J.Super. 563, 571 A.2d 1329 (App.Div.), certif. denied, 122 N.J. 325, 585 A.2d 343 (1990), also cited by the Court, the Appellate Division's analysis flatly contradicts the Court's holding that a dangerous condition cannot exist if the specific plaintiff fails to use due care. There, the court sustained a jury verdict in favor of the executrix of the decedent's estate and against the New Jersey Department of Transportation (DOT). The decedent, Barbara Rhem, was killed while she was a front-seat passenger in a car traveling eastbound on Route 30 driven by her cousin, William Rhem, when a car driven by George Jones, Jr. traveling westbound on Route 30 became airborne, crossed the median, and collided head-on with the Rhem vehicle. In asserting a claim against the State, the plaintiff contended that a dangerous condition existed by virtue of DOT's reduction of the curb height in 1970 from eight to two inches and the asphalt paving of the median in 1981 that allegedly created a "ramp-like" effect that caused Jones's vehicle to be catapulted into the eastbound lane. Id. at 571, 571 A.2d 1329.
In discussing the statutory term "dangerous condition," the Appellate Division was critical of the trial court's charge informing the jury that the statutory phrase "due care" referred to the conduct of the driver of the Rhem vehicle. The court stated:
As we understand the statute, the phrase "used with due care" does not refer to the actual activities of the parties. Rather, the focus is on the condition of the *1111 property itself. In deciding whether a dangerous condition exists, the fact-finder must determine whether the property creates a substantial risk of injury "to persons generally, who would use the property with due care in a foreseeable manner." Holmes v. Oakland City, 260 Cal.App.2d 378, 387-388, 67 Cal.Rptr. 197, 203 (App. Ct.1968) [Emphasis in original]. Accordingly, in order to prove his case, "plaintiff must show `that the condition was one that created a hazard to a person who foreseeably would use the property ... with due care.'" Ibid.
[239 N.J.Super. at 586-87, 571 A.2d 1329 (citation omitted).]
The court added that it would not be feasible for a public entity to predict "every imaginable way in which its property can or will be used." Id. at 587, 571 A.2d 1329. Therefore, the court noted,
[t]he Legislature has dealt with this problem by creating a fictitious person, a reasonable person of ordinary prudence. Under the statutory definition, a dangerous condition exists if the property poses a substantial risk of injury when it is used in a reasonably prudent manner in a foreseeable way. To that extent, the reasonable user requirement does not refer to the actual activities of the plaintiff or others. Rather, it constitutes a personification of a community ideal of reasonable behavior.
In that context, the trial court erred when it referred solely to the Rhems' behavior in determining whether the property presented a dangerous condition. Contrary to the instruction given in this case, the actual conduct of the plaintiff is wholly irrelevant to this inquiry. Thus, a plaintiff "may be able to establish the existence of a dangerous condition even though he personally may have been contributorily negligent." Speziale v. Newark Hous. Auth., 193 N.J.Super. at 419, 474 A.2d 1085. Under the Act, "[c]ontributory negligence shall not bar recovery...." N.J.S.A. 59:9-4. A person who negligently contributes to the injury he sustains is not barred from bringing suit as long as it can be shown that there was a defect in the public property and that the harm would have occurred even had he exercised due care. Ibid.
[Id. at 587-88, 571 A.2d 1329 (emphasis added).]
In Furey v. County of Ocean, 273 N.J.Super. 300, 641 A.2d 1091 (App.Div.), certif. denied, 138 N.J. 272, 649 A.2d 1291 (1994), also relied on by the Court, the Appellate Division upheld a jury verdict in favor of the surviving spouse of a volunteer fireman who was killed when his vehicle went out of control and struck a tree. His estate contended that a two to four inch drop-off from the paved road to the unpaved shoulder was a "dangerous condition" that proximately caused his death. In response to the County's contention that the plaintiff was unable to establish why the decedent's vehicle left the roadway, the Appellate Division emphasized that "[i]n determining if the drop-off created a dangerous condition, it is irrelevant why decedent's vehicle left the road." Id. at 310, 641 A.2d 1091. The court observed that what was relevant was whether the condition of the road and shoulder posed a substantial risk of injury to a driver using due care. Ibid. The court referred to the "used with due care" language of N.J.S.A. 59:4-1a and cited Daniel, supra, 239 N.J.Super. at 587, 571 A.2d 1329, with approval, noting that the Daniel court had "rejected the argument that the actual conduct of the plaintiff would be relevant in determining if a dangerous condition existed." 273 N.J.Super. at 311, 641 A.2d 1091.
The Court's reliance on California cases that squarely contradict its holding is bewildering. In Fredette v. City of Long Beach, 187 Cal.App.3d 122, 231 Cal.Rptr. 598 (1986), the plaintiff was rendered a quadriplegic when he dove into shallow water from a pier undergoing reconstruction, and he contended that the absence of warning signs or barricades on the pier created a "dangerous condition." Section 830(a) of the California Government Code defines dangerous condition as "a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used," a *1112 definition substantially identical to that contained in our Tort Claims Act. Although sustaining a jury verdict in favor of the defendant, the Fredette court held that the plaintiff's lack of due care had no bearing on whether a dangerous condition existed:
It is well settled, however, that the negligence or lack of due care exhibited by a plaintiff-user of public property does not necessarily defeat his cause of action. The Law Revision Commission's Comment to section 830 provides: "Although the condition will not be considered dangerous within the meaning of this chapter unless it creates a hazard to those who foreseeably will use the property or adjacent property with due care, [emphasis in original] this does not require that the injured person prove that he was free from contributory negligence. Contributory negligence is a matter of defense under subdivision (b) of Section 815. The plaintiff is, however, required to establish that the condition was one that created a hazard to a person who foreseeably would use the property or adjacent property with due care."
The negligence of a plaintiff-user of public property, therefore, is a defense which may be asserted by a public entity; it has no bearing upon the determination of a `dangerous condition' in the first instance. (See Callahan v. City and County of San Francisco (1967) 249 Cal.App.2d 696, 702-03, 57 Cal.Rptr. 639; Van Alstyne, Cal. Government Tort Liability Practice (Cont. Ed.Bar 1980) § 3.12, pp. 198-201.) So long as a plaintiff-user can establish that a condition of the property creates a substantial risk to any foreseeable user of the public property who uses it with due care, he has successfully alleged the existence of a dangerous condition regardless of his personal lack of due care. If, however, it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not "dangerous" within the meaning of section 830, subdivision (a).
[231 Cal.Rptr. at 602 (emphasis added).]
The Court also relies on Mathews v. City of Cerritos, 2 Cal.App. 4th 1380, 4 Cal.Rptr.2d 16 (1992). In Mathews, the eight-year-old plaintiff sustained personal injuries when he attempted to ride his bicycle down a very steep hill in a public park, lost control, and was thrown into a block wall. 4 Cal.Rptr.2d at 17. Although upholding the trial court's grant of summary judgment on the ground that the plaintiff had not established the existence of a dangerous condition, the Court of Appeals, adhering to California precedent, expressly stated that the plaintiff's due care was not an element of the definition of dangerous condition:
Reasonably foreseeable use with due care, as an element in defining whether property is in a dangerous condition, refers to use by the public generally, not the contributory negligence of the particular plaintiff who comes before the court; the particular plaintiff's contributory negligence is a matter of defense. Nevertheless, the plaintiff has the burden to establish that the condition is one which creates a hazard to persons who foreseeably would use the property with due care.
[Id. at 18.]
Although not acknowledged by the Court's opinion, numerous California cases, consistent with Fredette, supra, state unequivocally that the specific plaintiff's lack of due care is irrelevant to the determination of the existence of a dangerous condition. See, e.g., Alexander v. State, 159 Cal.App.3d 890, 205 Cal.Rptr. 758, 763 (1984) ("`Instructions defining for the jury the statutory concept of a dangerous condition should avoid creating any implication that due care on the part of the plaintiff or of third persons must be established by plaintiff as a condition of recovery.'") (quoting Van Alstyne, Cal. Government Tort Liability Practice § 3.85, at 315 (1980)); Swaner v. City of Santa Monica, 150 Cal.App.3d 789, 198 Cal.Rptr. 208, 213 (1984) ("The negligence of a plaintiff-user of public property, therefore, is a defense which may be asserted by a public entity; it has no bearing upon the determination of a `dangerous condition' in the first instance."); Holmes v. City of Oakland, 260 Cal.App.2d 378, 67 Cal.Rptr. 197, 203 (1968) ("[T]he test is whether the condition creates a substantial *1113 risk of harm to persons, generally, who would use the public property with due care in a foreseeable manner.... [The plaintiff] need not, however, allege that he was free from contributory negligence since contributory negligence is a matter of defense...."); Callahan v. City & County of San Francisco, 249 Cal.App.2d 696, 57 Cal.Rptr. 639, 644 (1967) ("Plaintiff does not say, and is not required to say, that the driver with whom she was riding was exercising due care.... There is logic, as well as the quoted commentaries, in favor of appellant's position that section 830, subdivision (a) defines dangerous condition with relation to the general public and not to a particular driver or user or person coming into contact with public property.").
In the face of overwhelmingly contradictory precedent both in our cases and in California decisions, I find mystifying the Court's intransigent demand that determination of a "dangerous condition" must depend on the plaintiff's conduct, ante at 292, 712 A.2d at 1106, and its insistence on "the relevance of proof of the use of the property with due care as part of establishing that the property was in a dangerous condition." Ante at 293, 712 A.2d at 1107. Despite those broad assertions, the Court seemingly rejects its own rationale when it declares that if property poses a danger to all users, "an injured party may establish that property was in a dangerous condition notwithstanding his or her failure to use due care." Ante at 292, 712 A.2d at 1106. The Court's inconsistent positions concerning the significance of a plaintiff's conduct raises grave doubts about the cogency and durability of the Court's analytical approach.
Moreover, the Court holds that playing touch football at night on an uneven parking lot constitutes a use that is as a "matter of law `without due care.'" Ante at 293, 712 A.2d at 1107. That holding implies that girls who play hop scotch on a city sidewalk, or boys who play stick ball in a city street at night or stoop ball on the city sidewalks in front of their homes lack "due care" as a matter of law. In such cases, even if the city were on notice of a defective condition of its property, such as a sinkhole under the area or a leaking gas main, the youthful user of the streets would be precluded from recovery because the Court disapproved of the game "as a matter of law."
The Court's formulation is thus both illogical and certain to pose analytical difficulties for trial courts. For example, in a suit by an automobile passenger injured in part because of an obviously dangerous condition of public property, but in a factual setting in which the driver of her car failed to use due care, the Court's rationale could be understood to preclude a finding that a dangerous condition existed. Cf. Callahan, supra, 57 Cal.Rptr. at 644 (posing similar hypothetical and criticizing rule defining dangerous condition in terms of plaintiff's or third person's due care because "[s]uch a holding would bar liability of the governmental unit in many cases affecting wholly blameless parties."). Nor is the Court's analysis necessary to vindicate the legislative objectives underlying the Tort Claims Act because the public entity can assert a plaintiff's lack of due care or inappropriate use of public property in support of a defense based on comparative negligence or lack of proximate cause.
In my view, the decisions of the Appellate Division in Furey, supra, 273 N.J.Super. at 310-12, 641 A.2d 1091, Daniel, supra, 239 N.J.Super. at 586-88, 571 A.2d 1329, and Speziale, supra, 193 N.J.Super. at 418-19, 474 A.2d 1085, as well as the analogous holdings of the California cases regarding the proper role of "due care" in the determination of the existence of a "dangerous condition," fairly reflect the legislative purpose underlying the definition of dangerous condition in the New Jersey Tort Claims Act. If the public property is safe when used by any person with due care and a risk of harm is created only when foreseeable users fail to exercise due care, then the property is not "dangerous" within the meaning of N.J.S.A. 59:4-1a. However, if a plaintiff can establish that a condition of the property creates a substantial risk to any foreseeable user of the property who uses it with due care, that plaintiff has established the existence of a dangerous condition irrespective of the nature of plaintiff's use of the property or the plaintiff's lack of due care. In either case the conduct of the specific plaintiff is not relevant to the determination of a "dangerous condition," but rather bears on causation *1114 and on any defense of comparative negligence raised by the public entity.
Plaintiff has submitted evidence of a physical defect in the Township's parking lot. As the Appellate Division observed, the type of injury sustained by plaintiff could have been sustained by a commuter running or even walking to catch a train. Accordingly, if the trial court determined that the condition of the public property created a substantial risk of injury to a foreseeable user exercising due care, summary judgment on the ground that plaintiff could not establish a dangerous condition of the property would be improper.
III
Nevertheless, I would sustain the grant of summary judgment in favor of the Township on the basis that, even assuming a "dangerous condition" existed, the condition as a matter of law was not a proximate cause of plaintiff's injury.
In the context of the Tort Claims Act, proximate cause has been defined as "any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred." Polyard v. Terry, 160 N.J.Super. 497, 511, 390 A.2d 653 (App.Div.)(quoting Fernandez v. Baruch, 96 N.J.Super. 125, 140, 232 A.2d 661 (App.Div.1967), rev'd on other grounds, 52 N.J. 127, 244 A.2d 109 (1968)), aff'd, 79 N.J. 547, 401 A.2d 532 (1979). The element of proximate cause in the Act, however, is essentially no different than the element of proximate cause within our common law negligence jurisprudence. On several occasions this Court has declared that proximate causation is not a simple factual inquiry of cause and effect, but rather that "[p]roximate or legal causation is that combination of `logic, common sense, justice, policy and precedent' that fixes a point in a chain of events, some foreseeable and some unforeseeable, beyond which the law will bar recovery." People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 264, 495 A.2d 107 (1985) (quoting Caputzal v. Lindsay Co., 48 N.J. 69, 77-78, 222 A.2d 513 (1966)); see also Kuzmicz v. Ivy Hill Park Apartments, Inc. 147 N.J. 510, 540-41, 688 A.2d 1018 (1997) (Stein, J., dissenting) (same); Contey v. New Jersey Bell Tel. Co., 136 N.J. 582, 587, 643 A.2d 1005 (1994) ("We have ... defined the limits of proximate cause as an instrument of fairness and policy.") (internal quotation omitted); Brown v. United States Stove Co., 98 N.J. 155, 173, 484 A.2d 1234 (1984) ("The assessment as to whether conduct can be considered sufficiently causally connected to accidental harm so as to justify the imposition of liability also implicates concerns for overall fairness and sound public policy."); Rappaport v. Nichols, 31 N.J. 188, 205, 156 A.2d 1 (1959) ("We are fully mindful that policy considerations and the balancing of the conflicting interests are the truly vital factors in the molding and application of the common law principles of negligence and proximate causation.").
Ordinarily, issues of proximate cause are considered to be jury questions. See Martin v. Bengue, Inc., 25 N.J. 359, 374, 136 A.2d 626 (1957). However, in unique cases our courts have rejected the imposition of liability as a matter of law for highly extraordinary consequences. See, e.g., Caputzal, supra, 48 N.J. at 77-80, 222 A.2d 513 (holding that even if defect in water softener caused rusty discoloration of water, manufacturer was not liable to plaintiff who sustained idiosyncratic and highly extraordinary heart attack brought on by fright at sight of discolored water); Glaser v. Hackensack Water Co., 49 N.J.Super. 591, 597-602, 141 A.2d 117 (App.Div.1958) (holding that water company whose employee entered plaintiff's garage without notice to read meter was not liable to plaintiff who became frightened for safety of infant daughter and injured herself while running downstairs).
In Caputzal, supra, 48 N.J. at 78, 222 A.2d 513, the Court quoted Dean Prosser:
"As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.
This limitation is sometimes, although rather infrequently, one of the fact of causation. More often it is purely one of policy, of our more or less inadequately expressed ideas of what justice demands, or of administrative possibility and convenience, *1115 none of which have any connection with questions of causation at all." (Prosser, [Torts § 30, at 240-41 (3d ed.1964) ]).
As an element of a claim against a public entity under N.J.S.A. 59:4-2, proximate causation must be evaluated in the context of the overall policies underlying the Tort Claims Act. Although the Legislature enacted the Tort Claims Act in 1972 as a response to mounting judicial disfavor with the doctrine of sovereign immunity, Rochinsky v. New Jersey Dep't of Transp., 110 N.J. 399, 404, 541 A.2d 1029 (1988), this Court has consistently stated that immunity under the Tort Claims Act "is the rule, and liability the exception." Bombace v. City of Newark, 125 N.J. 361, 372, 593 A.2d 335 (1991). The Court has found that the legislative policy expressed in the Act was "to establish immunity as the general rule." Id. at 373, 593 A.2d 335; see also Manna v. State, 129 N.J. 341, 347, 609 A.2d 757 (1992) ("Immunity is the dominant consideration."); Rochinsky, supra, 110 N.J. at 408, 541 A.2d 1029 (same).
Applying the public policy of the Act to the related elements of proximate causation and foreseeable injury, I note that there are circumstances in which the use of public property is so different and far-removed from the use for which the property is intended, and in which the injury suffered is so much more severe than that which foreseeably would have been sustained in the course of an intended use of the property, that the plaintiff's use rather than the dangerous condition must reasonably be viewed as the proximate cause of the injury. In such a case, summary judgment would not be improper. See, e.g., Lay v. Kansas Dep't of Transp., 23 Kan.App.2d 211, 928 P.2d 920, 924-25 (1996) (holding that State's negligent failure to warn motorists of country road-highway intersection beyond blind curve was not proximate cause of injury sustained where plaintiff rolled over his automobile while driving too fast to negotiate curve, despite plaintiff's allegation that he would have slowed down if intersection warning was posted); Bartell v. Palos Verdes Peninsula Sch. Dist., 83 Cal. App.3d 492, 147 Cal.Rptr. 898, 899 (1978) (affirming dismissal of cause of action where plaintiff's son suffered fatal injuries when he fell in public school playground while playing game in which he was "slung from the end of a rope while riding a skateboard."). But see Callahan, supra, 57 Cal.Rptr. 639 (reversing dismissal of cause of action where injured plaintiff was passenger in car that was drag racing on "negligently maintained" public highway).
I conclude that this is such a case. That disposition is not intended as a criticism of the decision by Dennis Garrison and his friends to play touch football in an illuminated, public and largely vacant commuter parking lot. Their use of the public property was not an unreasonable one. However, it was far-removed from the intended use of the property and significantly magnified the risk of injury posed by any surface irregularities in the lot. The sharp cuts and changes of direction inherent in playing touch football undoubtedly contributed both to plaintiff's fall and to the severity of his injury. Moreover, the record contains minimal evidence that the Township knew that the parking lot regularly was used for touch football and no evidence that the Township acquiesced in that use over an extended time period. Although the surface declivity in the lot may have been a cause in fact of plaintiff's injury, in view of the legislative policy underlying the Act it cannot be deemed the legal or proximate cause.
IV
Finally, summary judgment also could be sustained on the ground that plaintiff failed to establish a jury question on whether the Township's conduct was palpably unreasonable. The requirement set forth in the Act that a public entity's conduct be "palpably unreasonable" requires a plaintiff to show more than ordinary negligence. See Williams v. Town of Phillipsburg, 171 N.J.Super. 278, 286, 408 A.2d 827 (App.Div. 1979) (reversing where trial court mixed "concepts of negligent conduct and palpably unreasonable conduct" when instructing jury on defendant's duty). The Comment to N.J.S.A. 59:4-2 states:
This section recognizes the difficulties inherent in a public entity's responsibility for maintaining its vast amounts of public property. Thus it is specifically provided that when a public entity exercises or fails to exercise its discretion in determining what action should or should not be taken *1116 to protect against the dangerous condition that judgment should only be reversed where it is clear to the court that it was palpably unreasonable. Bergen v. Koppenal, 52 N.J. 478, 480, 246 A.2d 442 (1968). That decision was based on the thesis that a public entity's discretionary decisions to act or not to act in the face of competing demands should generally be free from the second guessing of a coordinate branch of Government.
This Court has explained that "`palpably unreasonable' implies `behavior that is patently unacceptable under any circumstance' and that `it must be manifest and obvious that no prudent person would approve of its course of action or inaction.'" Holloway v. State, 125 N.J. 386, 403-04, 593 A.2d 716 (1991)(quoting Kolitch v. Lindedahl, 100 N.J. 485, 493, 497 A.2d 183 (1985)); see also Johnson v. County of Essex, 223 N.J.Super. 239, 257, 538 A.2d 448 (Law Div.1987)("To be palpably unreasonable, it must be action or inaction that is plainly and obviously without reason or reasonable basis, capricious, arbitrary or outrageous."). The burden of proving that the public entity's action or inaction was palpably unreasonable rests with the plaintiff. See Kolitch, supra, 100 N.J. at 493, 497 A.2d 183; Wooley v. Board of Chosen Freeholders, 218 N.J.Super. 56, 62, 526 A.2d 1116 (App.Div.1987).
Although the question of palpable unreasonableness is generally one for the jury, it may be decided by the court as a matter of law in appropriate cases. Wooley, supra, 218 N.J.Super. at 62, 526 A.2d at 1118. I am persuaded that this is such a case. Even if we accept plaintiff's other contentions of fact and lawthat the declivity posed a substantial risk of injury to a foreseeable user exercising due care, and that the declivity was the result of a suspended repaving project by the Townshipthe Township's failure to devote its resources to the completion of repaving or to the amelioration of the declivity cannot be deemed palpably unreasonable. In view of the Township's responsibilities for maintaining significant areas of public property, we reasonably may infer, absent other evidence in the record, that the one inch to one and one-half inches declivity must necessarily be viewed as a maintenance item of low priority. Had the Township received prior complaints or reports of prior injuries with regard to the alleged dangerous condition, the issue might be viewed differently. Here, however, we have no evidence of prior injuries or complaints, as well as plaintiff's own admission that the small declivity was visible even after dark in the illuminated parking lot. No evidence exists in this record that would allow reasonable jurors to conclude that the Township's inaction with respect to this surface declivity was patently unacceptable in a way so manifest and obvious that no prudent person would approve of its inaction.
The standard for summary judgment in New Jersey "requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540, 666 A.2d 146 (1995). This record contains insufficient evidence to permit a rational factfinder to conclude that the Township's failure to correct the surface declivity in the parking lot was palpably unreasonable.
V
For the reasons stated, I join in the Court's judgment but not in its opinion. Justice O'Hern joins in this opinion.
For reversal & reinstatementChief Justice PORITZ and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN7.
OpposedNone.
|
9 F.Supp. 934 (1935)
THE CENTRAL STATES.
In re STEAMTUG CENTRAL STATES, Inc.
District Court, E. D. New York.
February 26, 1935.
*935 John J. Bennett, Jr., Atty. Gen. of State of New York (Robert P. Beyer, Asst. Atty. Gen., of counsel), for the State of New York.
Foley & Martin, of New York City (Christopher E. Heckman, of New York City, of counsel), for petitioner.
GALSTON, District Judge.
The state of New York, by petition, moves for a modification of the stay contained in the order of this court dated January 17, 1935, so as to permit the state of New York to prosecute an action against the Steamtug Central States, Inc., for reimbursement for expenses incurred in removing the hulk of the steamtug Central States from the waters of the Erie Canal.
On July 17, 1934, the petition of the Steamtug Central States, Inc., was filed in this court pursuant to sections 4283, 4284, and 4285 of the Revised Statutes of the United States (46 USCA §§ 183-185), for the limitation of its liability. It appears that no answer was filed by the state of New York nor has any claim been filed pursuant to the order of December 12, 1934, which contained the following provision: "Ordered, that the defaults of all persons or corporations claiming damages for any and all loss, damage or injury caused by or resulting from the aforesaid alleged accident and not having filed claims as aforesaid be, and the same hereby are noted."
The petitioner, therefore, the state of New York, is without status to make the pending motion. However, assuming that the motion were properly cognizable, the relief sought could not be granted.
The petition in limitation of liability discloses that on November 10, 1933, the Central States with a tow left Troy, N. Y., bound for Buffalo, N. Y.; that on or about November 17, 1933, the tug, while proceeding with its tow through the New York State Barge Canal, came in contact with ice in the canal, which resulted in injuring the tug's hull and opening her seams; and that in consequence the tug sank in the New York State Barge Canal in the vicinity of Clyde, county of Wayne, state of New York.
The petition of the state of New York, citing section 183 of the Canal Law of the State of New York (Consol. Laws N. Y. c. 5), alleges that that act provides that when vessels sink in the waters of the Erie Canal and become a menace to navigation and are not removed by the registered owners upon demand by the state authorities, the state may then, upon due notice of sale in accordance with the provisions of the law, sell the sunken vessel at public auction, apply the proceeds of such sale against the cost of removal, and collect any additional costs from the registered owner of the sunken vessel.
It is then alleged that pursuant to such provisions of the state law, the hulk was sold and the proceeds applied against the cost of removal, and that thereafter demand was made upon the Steamtug Central States, Inc., for the sum of $1,487.88, representing the actual cost of removal less the credit of the sum realized on the sale of the hulk.
The state of New York contends that the United States District Court has no jurisdiction to restrain any action by the state of New York to recover the amount expended in removing the hulk of the vessel above stated, because the sinking of the tug occurred in the waters of the Erie Canal, jurisdiction and control of which is vested exclusively in the state of New York and subject to sole review by the courts of that state.
It is also alleged in the petition of the state of New York that the claim of the *936 state of New York does not arise out of any matter connected with the operation of the steamtug or the resulting collision, but accrued subsequent thereto by reason of the owner's failing to remove the hulk of the abandoned vessel.
The question of jurisdiction seems to be settled by Perry v. Haines, 191 U. S. 17, 24 S. Ct. 8, 11, 48 L. Ed. 73. It was said in that case: "The Erie canal, though wholly within the state of New York, is a great highway of commerce between ports in different states and foreign countries, and is navigated by vessels which also traverse the waters of Hudson river from the head of navigation to its mouth."
On the right to limitation, U. S. Code, title 46, § 183 (46 USCA § 183), provides: "The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending. (R. S. § 4283.)"
The language of the foregoing section is very broad indeed and enables the owner to limit his liability under the conditions stated for any loss or damage which may occur, and this must include the damage resulting to the state of New York in removing the wreck. The right thus to limit is discussed fully in Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 528, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. In the opinion, Mr. Justice McReynolds quotes from The Lottawanna, 21 Wall. 558, 22 L. Ed. 654: "In The Lottawanna, Mr. Justice Bradley, speaking for the court, said: `That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend "to all cases of admiralty and maritime jurisdiction." * * * One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several states, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other or with foreign states.'"
So in the matter at bar the federal statute is paramount to the provisions of section 183 of the Canal Law of the State of New York. See, also, Union Fish Co. v. Erickson, 248 U. S. 308, 39 S. Ct. 112, 63 L. Ed. 261.
In conclusion it need only be added that a wreck is a "vessel" within the meaning of section 183 of title 46, U. S. Code (46 USCA § 183), and that in consequence the owner may file a petition for limitation. The Snug Harbor (D. C.) 46 F.(2d) 143.
Motion is denied. Settle order.
|
227 F.2d 41
97 U.S.App.D.C. 26
WONG KAY SUEY, Appellant,v.Herbert BROWNELL, Jr., Attorney General of the UnitedStates, et al., Appellees.WONG POO SING, Appellant,v.Herbert BROWNELL, Jr., Attorney General of the UnitedStates, et al., Appellees.Emily WONG, Appellant,v.Herbert BROWNELL, Jr., Attorney General of the UnitedStates, et al., Appellees.
Nos. 12092-12094.
United States Court of Appeals District of Columbia Circuit.
Argued April 20, 1955.Decided Oct. 13, 1955.
[97 U.S.App.D.C. 27] Mr. Charles R. Richey, Washington, D.C., for appellants.
Mr. Lewis Carroll, Asst. U.S. Atty., with whom Mr. Leo A. Rover, U.S. Atty., Miss Catherine B. Kelly, Asst. U.S. Atty., and Mr. Albert E. Reitzel, Asst. Gen. Counsel, Immigration and Naturalization Service, were on the brief, for appellees.
Before EDGERTON, WILBUR K. MILLER, and FAHY, Circuit Judges.
EDGERTON, Circuit Judge.
1
These are exclusion cases that have been consolidated. The plaintiffs arrived in the United States in August or October, 1952. They claimed and were denied admission as citizens of the United States. Section 503 of the Nationality Act of 1940, 54 Stat. 1171, 8 U.S.C. (1946 ed.) § 903, provides that 'if any person who claims a right or privilege as a national of the United States is denied such right or privilege * * * such person, regardless of whether he is within the United States or abroad, may institute an action * * * for a judgment declaring him to be a national of the United States * * *.'
2
In 1954 the plaintiffs filed separate complaints for judgments declaring them to be citizens of the United States, and asked that the defendants be restrained from interfering with their rights as citizens. In each case the District Court denied a preliminary injunction on the ground that it was 'without jurisdiction to hear plaintiff's complaint for declaratory judgment.' These appeals followed.
3
In December, 1952, the Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq., had become effective. Section 403(a)(42), 66 Stat. 280, repeals the Nationality Act of 1940. Section 360(a) of the Act of 1952 provides in effect that if any person 'who is within the United States' claims a right as a national of the United States, and the right is denied upon the ground that he is not a national, he may institute an action for a declaratory judgment, 'except that no such action may be instituted in any case if the issue of such person's status as a national of the United States (1) arose by reason of, or in connection with any exclusion proceeding under the provisions of the or any other act, or (2) is in issue in any such exclusion proceeding.' 66 Stat. 273, 8 U.S.C. § 1503(a).
4
The question is whether the 1952 Act deprived the plaintiffs of their right under the 1940 Act to have the issue of their citizenship, which had arisen in exclusion proceedings, decided in actions for declaratory judgments. We think not.
5
The question turns upon the savings clause of the 1952 Act. That clause, § 405(a), provides that 'Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect * * * any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this Act shall take effect; but as to all such prosecutions, suits, actions, proceedings, statutes, conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect. * * *' 66 Stat. 280, 8 U.S.C. p. 734 (8 U.S.C.A. § 1101 note).
6
The general language in this savings clause is broad enough to cover the plaintiffs' rights, under the 1940 Act, to sue for declaratory judgments. It may be said that the only 'rights' directly referred to in the savings clause [97 U.S.App.D.C. 28] are rights 'in process of acquisition.' But we think this phrase was intended to have a broadening rather than a narrowing effect. Congress can hardly have intended to preserve only rights 'in process of acquisition' and cut off rights fully acquired. Moreover, the savings clause is to be liberally interpreted. 'The whole development of this general savings clause * * * manifests a well-established congressional policy not to strip aliens of advantages gained under prior laws. The consistent broadening of the savings provision, particularly in its general terminology, indicates that this policy of preservation was intended to apply to matters both within and without the specific contemplation of Congress.' United States v. Menasche, 348 U.S. 528, 535, 75 S.Ct. 513, 518.
7
The general language in this savings clause operates 'unless otherwise specifically provided' in the Act. This exception does not cover this case. Nowhere in the 1952 Act is it 'specifically provided' that if the issue of citizenship has arisen in an exclusion proceeding, a right already accrued under the 1940 Act, to have the issue decided in an action for a declaratory judgment, shall be cut off.
8
Considered by itself, and apart from the fact that the savings clause is to be liberally interpreted, the reference in § 360(a) of the Act to exclusion proceedings under 'this or any other act' might perhaps seem to bring the case within the words 'otherwise specifically provided.' But specificity is a matter of degree. What may be relatively specific in one context may not be so in another. At several points in the 1952 Act, exceptions to the general principle of the savings clause are so specifically expressed as to make § 360(a) seem, by comparison, to fall far short of 'specifically' providing an exception. For example, § 241(d), 66 Stat. 208, 8 U.S.C.A. § 1251(d), enacts that 'the provisions of this section shall be applicable to all aliens belonging to any of the classes enumerated (as deportable) in subsection (a), notwithstanding * * * that the facts, by reason of which any such alien belongs to any of of the classes enumerated in subsection (a), occurred prior to the date of enactment of this Act.' Section 360(a), on the other hand, merely refers in general terms to an exclusion proceeding under 'this or any other act' and does not add: 'notwithstanding that the exclusion proceeding occurred prior to the enactment of this Act.' Section 313(a), 66 Stat. 240, 8 U.S.C.A. § 1424(a), enacts that 'Notwithstanding the provisions of section 405(b) (a savings clause regarding petitions for naturalization) no person shall hereafter be naturalized as a citizen of the United States-- (1) who advocates or teaches * * * opposition to all organized government * * *.'; and § 318, 66 Stat. 244, 8 U.S.C.A. § 1429, provides that 'Notwithstanding the provisions of section 405(b) * * * no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest * * *.' Section 360(a), on the other hand, does not enact that no action for a declaratory judgment may be instituted 'notwithstanding the provisions of section 405(a) * * *.' Section 360(a) does not mention § 405(a).
9
We take § 360(a) to mean that no right to have the issue of citizenship determined in a suit for a declaratory judgment shall arise in the future, if the issue of citizenship arose in connection with exclusion proceedings. In view of the savings clause, we do not take § 360(a) to mean that an existing right to sue for a declaratory judgment shall be cut off.
10
Our view of the case makes it unnecessary to decide whether the plaintiffs are 'within the United States' in the sense in which § 360(a) uses that term. Unless they are, the section does not apply to them at all. Even if they are, it does not bar their present suits.
11
We think the District Court erred in holding that it lacked jurisdiction.
12
Reversed.
|
355 F.Supp.2d 1246 (2004)
OKLAHOMA NATURAL GAS COMPANY, Plaintiff,
v.
APACHE CORPORATION, Defendant and Third-Party Plaintiff,
v.
Kaiser-Francis Oil Company, and George B. Kaiser, an individual Third-Party Defendants.
No. 01-CV-0095-H(C).
United States District Court, N.D. Oklahoma.
December 9, 2004.
*1249 Bradley W. Welsh, Gene Carson Buzzard, Oliver Sterling Howard, Thomas J. Kirby, Gable & Gotwals, Tulsa, OK, for Plaintiff.
Christopher Kahl Woosley, Cooper McKinney & Woosley PLLP, R. Kevin Layton, Sheila Marie Powers, Boesche McDermott LLP, Tulsa, OK, for Defendant.
Frederic Dorwart, Jean Michael Medina, Paul DeMuro, Fred Dorwart Lawyers, Tulsa, OK, for Third Party-Defendants.
ORDER
HOLMES, Chief Judge.
This matter comes before the Court pursuant to the Report and Recommendation (the "Report") of United States Magistrate Judge Paul J. Cleary, filed October 19, 2004 (Docket No. 172), wherein he recommends that Plaintiffs Motion for Attorney Fees, filed April 20, 2004 (Docket No. 144), be granted in the amount of $339,547.60. Plaintiff Oklahoma Natural Gas Company ("ONG") filed a written objection to the Report and Recommendation on November 1, 2004 (Docket No. 174). Apache Corporation, Kaiser-Francis Oil Company and George B. Kaiser filed a joint written objection (the "Joint Objection") to the Report and Recommendation on November 1, 2004 (Docket No. 175).
Rule 72(b) of the Federal Rules of Civil Procedure provides in pertinent part that if specific written objections are timely filed,
[t]he district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.
Fed.R.Civ.P. 72(b).
I
ONG raises two objections to the Report. First, ONG objects to the hourly rate set for lead trial attorney Oliver Howard. The Report recommended an hourly rate of $250 for Mr. Howard's services. ONG paid Mr. Howard at an hourly rate ranging from $320-375.
The Court is unaware of any attorney fee award in the Northern District that *1250 reflects an hourly rate in excess of $250. The highest rate is appropriate for Mr. Howard, who is one of the most skilled and respected attorneys in the state. The Court, however, is not prepared to increase at this time the maximum award for even the most skilled practitioner. Therefore, the Court finds that the hourly rate of $250 for Mr. Howard is appropriate.
Second, ONG objects to the reductions the Report recommended for block billing. The Report found that block billing prevented an adequate evaluation of whether particular time entries were reasonable. Therefore, the Report recommended that the revised lodestar amount be reduced by 15 percent. ONG argues that the reduction should have been made only to the time identified as block billing. The Court finds that, based on a de novo review of the record, Magistrate Judge Cleary's reductions for block billing are appropriate under the facts and law of the case.
Accordingly, the Court hereby accepts Magistrate Judge Cleary's Report and Recommendation with respect to Mr. Howard's hourly rate and the reduction for block billing.
II
Apache Corporation, Kaiser-Francis Oil Company and George B. Kaiser raise four objections to the Report in the Joint Objection. First, they object to the Report's recommendation that a Westlaw charge of $5,361.29 be permitted. Second, they object to the absence from the Report of a recommended reduction for "excessive attorney attendance at depositions and hearings." Third, they object to what they consider to be insufficient adjustments in the Report with respect to ONG's paralegal bill. Fourth, they object to the fact that the recommended lodestar reduction for block billing was only 15 percent, rather than 25 percent.
Based on a de novo review of the record, the Court finds as follows: the Westlaw charge of $5,361.24 is appropriate and should be allowed; reductions for "excessive attorney attendance at depositions and hearings" are not compelled by the facts of this case; the paralegal charges allowed by the Report are proper; and the block billing reduction was appropriate in the amount recommended. Accordingly, the Court hereby accepts Magistrate Judge Cleary's Report and Recommendation with respect to these issues.
Ill
Based upon a careful review of the record, the Court hereby adopts and affirms the Report and Recommendation of United States Magistrate Judge Paul J. Geary (Docket No. 172). Accordingly, Plaintiffs Motion for Attorney Fees (Docket No. 144), filed April 20, 2004, is hereby granted in the amount of $339,547.60.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
CLEARY, United States Magistrate Judge.
The Court entered Judgment in this contract dispute in favor of Plaintiff Oklahoma Natural Gas ("ONG") on April 6, 2004. Pursuant to 12 O.S. § 936, ONG has moved for an award of attorney fees as prevailing party [Dkt. # 144], and District Judge Sven Erik Holmes has referred the matter to the undersigned for report and recommendation. [Dkt. #148]. ONG seeks $443,546.72 in attorney fees and $5,361.29 in Westlaw charges for a total amount of $448,908.01.[1] Following extensive *1251 briefing, an evidentiary hearing was held August 10, 2004.[2] In addition to the testimony of Gable & Gotwals attorney Thomas Kirby ("Kirby"), supporting and explaining the fee application, testimony of two expert witnesses was offered to the Court: David Riggs ("Riggs"), a Tulsa attorney with more than 35 years experience practicing law, testified in support of ONG's fee application. Michael Burrage ("Burrage"), a long-time Oklahoma attorney and a former U.S. District Judge of this Court, testified in opposition to the fee application. Having reviewed the parties' briefing and the voluminous documentation submitted, and having heard the testimony and evidence presented at the evidentiary hearing, the undersigned recommends that Plaintiffs Motion for Attorney Fees be GRANTED in the amount set forth below.
I
Case History
Plaintiff filed this lawsuit on February 8, 2001, alleging breach of the recoupment provision of a take or pay gas purchase contract.[3] [Dkt. # 1]. Apache Corporation ("Apache") Answered and asserted affirmative defenses, including statute of limitations, waiver, settlement, and accord and satisfaction. [Dkt. # 4]. Thereafter, Apache sued KFOC and George B. Kaiser (individually, "Kaiser"; collectively, these Defendants will be referred to as "the Kaiser Defendants") alleging that they were obligated to indemnify Apache for any deficiency payments Apache was found to owe ONG. [Dkt. # 5]. Kaiser Defendants also counter-claimed against Apache for amounts they allegedly reimbursed Apache in error for money ONG recouped from Apache [Dkt. # 10], and Apache subsequently filed a counter-claim against ONG to recover the money ONG allegedly recouped from Apache in error. [Dkt. # 18].
In early October 2001, Apache and KFOC filed a joint motion for summary judgment, contending that a July 1988 Settlement Agreement between ONG and KFOC released ONG's contract claim asserted herein. [Dkt. # 26]. ONG filed a cross-motion for partial summary judgment on the same issue. [Dkt. # 30]. In December 2001, citing ambiguities in the language of the Settlement Agreement, the Court denied both motions. [Dkt. # 44, 45].
A second wave of summary judgment motions came in the spring of 2002: Apache moved for summary judgment against ONG on statute of limitations. [Dkt. # 54]. At the same time, Apache and KFOC jointly moved for reconsideration of the Court's prior denial of their summary judgment motion relating to the 1988 settlement agreement. [Dkt. # 55]. *1252 Shortly thereafter, Apache moved for summary judgment against the Kaiser Defendants on its indemnification claim. [Dkt. # 58]. Finally, ONG moved for summary judgment on Apache's affirmative defenses and on ONG's breach of contract claim. [Dkt. # 74]. On April 8, 2002, the Court denied Apache's and KFOC's Motion for Reconsideration. [Dkt. # 71]. On June 17, 2002, the remaining summary judgment motions were referred to the undersigned for Report and Recommendation [Dkt. # 90]. A Report was issued on September 12, 2002 [Dkt. # 98], recommending that ONG's motion be denied in part and granted in part, that Apache's motion against the Kaiser Defendants be granted and that the motion against ONG be denied. The Report and Recommendation was adopted on October 17, 2002. [Dkt. # 103].
Before trial the parties stipulated that the amount of unrecovered deficiency payment claimed by ONG was $1,243,130.43 [Dkt. # 66] and waived jury. [Dkt. # 67].
The case was tried on June 20 & 25 and July 28-29, 2003. Judge Holmes entered Findings of Fact and Conclusions of Law on March 25, 2004 [Dkt. # 139], and two weeks later entered Judgment in favor of ONG for $1.2 million [Dkt. #141]. Apache and the Kaiser Defendants have filed their Notices of Appeal to the Tenth Circuit Court of Appeals. [Dkt. ## 152 & 154].
II
Complexity of the Case
While the case involved multiple parties, their respective interests were not complicated, ONG's Complaint alleged a single breach of contract claim against Apache for failure to repay deficiency payments that were not recouped. The interests of KFOC and Kaiser were virtually identical, and Apache's interestswith the exception of Apache's Third Party indemnification claimwere similarly aligned with the Kaiser Defendants with respect to ONG's underlying contract claim.
Apache asserted two key affirmative defenses: First, that a July 1988 settlement agreement between ONG and KFOC also covered ONG's contract claim against Apache. Second, that the statute of limitations had run on ONG's contract claim. The case presented interesting factual issues; however, in spite of these issues, the lawsuit was not extraordinarily complex. The number of depositions taken and the number of documents exchanged were relatively small, and the underlying theory of contract recovery was straightforward.
III
Applicable Law
In diversity cases such as this, attorney fees are substantive and are determined by state law. Oulds v. Principal Mutual Life Ins. Co., 6 F.3d 1431, 1445 (10th Cir.1993). Oklahoma follows the American Ruleeach litigant is responsible for its own attorney fees unless that rule is modified by statute or contractual provision. State ex rel. Dept. of Transp. v. Norman Indus. Dev. Corp., 2001 OK 72, ¶ 7, 41 P.3d 960, 962. The dispute at issue concerns a written contract for the purchase or sale of goods, and the undersigned concludesand the parties agree that such a contract falls within 12 O.S. § 936. RJB Gas Pipeline Co. v. Colorado Interstate Gas Co., 813 P.2d 1, 13 (Okla. App.1989). The statute provides:
In any civil action to recover for labor or services rendered, or on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed *1253 a reasonable attorney fee to be set by the court, to be taxed and collected as costs.
Section 936 reflects the Legislature's intent to mandate prevailing party attorney fees in actions to collect money promised, however evidencedpromissory note, negotiable instrument, account for property, labor or services or a bill or contract for goods. Kay v. Venezuelan Sun Oil Co., 1991 OK 16, 806 P.2d 648, 651, n. 11. The rationale for this departure from the American rule appears to be two-fold: First, to make whole the successful party in such litigation. Second, to create an economic incentive influencing decisions whether to pursue legal relief and whether to settle or resist a claim pressed by another.[4]
An award of fees under section 936 is mandatory, Arkla Energy Resources v. Roye Realty and Developing, Inc., 9 F.3d 855, 865 (10th Cir.1993) (citing Ellis v. Leboivitz, 1990 OK 107, 799 P.2d 620, 621); however, in all cases the amount of fees awarded must be reasonable. Morgan v. Galilean Health Enterprises, Inc., 1998 OK 130,114, 977 P.2d 357, 364. The determination of reasonableness and the amount of the fee award are generally left to the sound discretion of the district court. Arkla Energy, 9 F.3d at 865 (citing Wilkerson Motor Co. v. Johnson, 1978 OK 12, 580 P.2d 505, 509); Gamble, Simmons & Co. v. Kerr-McGee Corporation, 175 F.3d 762, 773 (10th Cir.1999) (applying 12 O.S. § 936). An award of fees must be reasonable under the particular circumstances and must bear some reasonable relationship to the amount in controversy. Southwestern Bell Telephone Co. v. Parker Pest Control, Inc., 1987 OK 16, 737 P.2d 1186, 1189.
ONG is seeking fees based on a "lodestar" computation. The burden is on ONG to demonstrate that the time for which compensation is sought was reasonable and necessary in order for the court to decide the fee amount to be awarded. Oliver's Sports Center v. National Standard Ins. Co., 1980 OK 120, 615 P.2d 291, 295; Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, 932 P.2d 1091, 1099-1100 (Lawyers seeking fees must present detailed time records and offer evidence of reasonable value of services rendered). The Oklahoma Supreme Court has outlined a two-step procedure for arriving at a reasonable fee: (1) determine the compensation based on an hourly rate, and (2) enhance it by adding an amount arrived at by applying the factors set forth in State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659, 660-61, or those provided for in Rule 1.5 of the Oklahoma Rules of Professional Conduct. 7 OKPRAC § 24.8 (West 1999). In this case, ONG does not seek enhancement of its claimed fee; therefore, the Court's chore is to determine the compensation to which ONG is entitled based on the services provided and the applicable hourly rate.
The essentia] task for the court is to determine the reasonable time spent on the case and multiply those hours by the hourly rate generally charged for comparable work in this market. Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2675.1, p. 376. Although Oklahoma law governs this determination, federal case law may also be helpful in applying the fundamental reasonableness test. See Finnell v. Seismic, 2003 OK 35, ¶ 17 n. 38, 67 P.3d 339, 346 n. 38 (noting that the federal standards are substantially similar *1254 to those contained in Rule 1.5 of the Rules of Professional Conduct, 5 O.S.2001, Ch.l, App. 3-A and "an exhaustive application of either list will almost always lead to a just and reasonable result.").
IV
ONG's Attorney Fee Request
In accordance with N.D. LR 54.2, ONG timely submitted its motion for attorney fees with supporting affidavit and itemized accounting of attorney time expended. The lodestar amount sought is $448,908.01. (Exh. "A" to Order[5]). This amount reflects certain volume-based discounts given to ONG by the Gable & Gotwals firm based on total work the firm received from ONG. These discounts range from 13 percent ($9,391.10) of total billing in 2001 to six-tenths of 1 percent ($980.25) in 2002. In addition, by agreement with ONG, Gable & Gotwals reduced the billing rate for Oliver Howard ("Howard") by approximately $20 per hour for 2002-04.
ONG's Requested Lodestar Amount
The lodestar amount requested by ONG is set forth in Exhibit "A" to the Court's Order. The request includes nearly 2,000 attorney hours representing fees of $413,961.25; nearly 800 paralegal hours representing fees of $46,554; and, Westlaw research charges of $5,361.29. Deducted from the bills paid by ONG were volume discounts totaling $14,768.53. At the August 10, 2004, hearing, ONG corrected several billing errors thereby reducing the fee request by another $2,200. Thus, ONG's lodestar fee request is $448,908.01.
Defendant has stipulated to the hourly billing rates of ONG's attorneys with the exception of Howard. Howard's requested billing rate ranges from $320 to $375 with most of the time (305 hours) billed at $340 per hour. Defendants contend that the market rate is $250-280 per hour. Defendants also object to the hourly billing rate$100 to $125for information technology work, claiming that this exceeds the market rate for paralegals.
Defendant's Exhibit # 24R submitted at the August 10, 2004, hearing, outlines numerous other complaints about ONG's fee request, including[6]:
[] Excessive paralegal time;
[] Paralegal assistant time;
[] Excessive attorney time;
[] Excessive brief preparation;
[] Excessive inter-office conferences;
[] Multiple attorneys at depositions, hearings, trial;
[] Time entries lacking complete information or detail (block billing and redactions);
[] Impermissible Westlaw charges.
Defendant requests a total reduction in ONG's fees of $201,796.
V
Discussion
The specific items challenged by Defendants are addressed separately below. In assessing this fee application, the undersigned has used the following methodology: First, the lodestar amount requested by ONG has been set forth in Exhibit "A" hereto reflecting the hourly rates and number of hpurs requested. Second, based on certain recommended reductions to either hourly rates or specific hours *1255 claimed, the undersigned has determined a revised lodestar amount as set forth in Exhibit "B" hereto. Third, the undersigned has then addressed further reductions to the revised lodestar amount accounting for block-billing and other issues involving Defendants' claims of duplication of effort or excessive hours. A general percentage reduction was made to the revised lodestar amount to reflect reasonable adjustments for block-billing and other problems. Finally, the ratio between this final attorney fee amount and the amount in controversy herein was compared to fee awards previously approved by the Oklahoma Supreme Court to ensure that the fee awarded here bore a reasonable relationship to the amount in controversy.
A. Hourly Rate for Oliver Howard.
ONG seeks compensation for five attorneys who worked on this matter. The attorneys and their billings rates are: Gene Buzzard ("Buzzard") ($185-200); Kirby ($200-210); Brad Welsh ("Welsh") ($120-155), Howard ($320-375), and C. Burnett Dunn ("Dunn") ($210). Kirby was the managing attorney on the case, while Howard served as lead trial attorney. Welsh did most of the legal research and drafting. Buzzard managed the case initially until Kirby was available to assume that role. Dunn was a witness on behalf of ONG. Defendant's expert witness suggests that the proper billing rate for an attorney competent to handle this case is $250-280 per hour, while ONG's expert finds Howard's billing rate acceptable.
For comparison, the highest hourly rate charged by any defense attorney through the trial of this matter was $250. No other lawyer on either side of the case billed at more than $200 per hour through the date of trial [Exh. # 7 to Defendants' Hearing Exhibit Notebook (hereafter, "Defendants' Hearing Exhibits")]. This observation is not conclusive of the matter, but may be indicative of the prevailing local rate for similar work. ONG is entitled to the prevailing rate for like services based on local standards. Morgan, 1998 OK at If 16, 977 P.2d at 364-65. See also Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir.1996) ("A reasonable rate is the prevailing market rate in the relevant community.")
Evidence presented at trial included a survey of representative Tulsa law firms and their range of billing rates for attorneys with various levels of experience. This survey indicates that the hourly rate for lawyers of Howard's experience range from $150 to $400.[7] The survey only indicates the range of hourly rates. It does not indicate the number of lawyers who bill at each rate. Based on the evidence submitted, the prevailing community billing rates and rates that this court has approved in similar cases, the undersigned concludes that the prevailing hourly rate for lawyers competent to handle litigation of this sort is $250 per hour. Howard undoubtedly commandsand receivesa higher hourly rate, but under a fee-shifting analysis, one's adversary is not required to pay a premium rate.[8] The case at bar, while offering some unique factual issues, would not be classified as particularly complex, nor was it document intensiveonly about 3000 documents were exchanged. Finally, pursuant to agreement of the parties *1256 the matter was tried to the Court on stipulated damagesthereby reducing the costs associated with trial.
Using the $250 hourly rate for Howard results in a reduction of $32,722.50 in ONG's total fee request.
B. Paralegal time and rates.
Oklahoma law recognizes that in appropriate circumstances paralegal fees may be recovered under a fee-shifting statute such as § 936. Recovery of paralegal fees "is limited to work for services performed, which otherwise would have had to have been performed by a licensed attorney at a higher rate." Taylor v. Chubb Group of Ins. Cos., 1994 OK 47, 874 P.2d 806, 809 (Okla.1994) (emphasis in original) (hereafter, "Chubb"). Defendants challenge the fees claimed for paralegal work on three bases: (1) excessive hourly rates; (2) excessive hours; (3) claims for paralegal assistant time. The court must determine if the paralegal time is for work that would otherwise have had to be performed by an attorney, if the hours so recorded are reasonable and necessary and whether the rate of paralegal compensation conforms to the prevailing community standard. As always, the claimed fees must be reasonable and ONG bears the burden of supporting the claimed amount. Oliver's Sports Center, 615 P.2d at 294-95.
(1)
Paralegal Rates
ONG's attorneys, Gable & Gotwals, used three types of paralegals in this case: certificated paralegals, paralegal assistants and a paralegal specializing in information technology. Certificated paralegalsCheryl Anderson ("Anderson") and Debbie Baker ("Baker")billed at $95 and $80 per hour respectively. Paralegal assistants Katherine Jones ("Jones") and Bertha Edens ("Edens") billed at $30 and $25 per hour respectively. Information technology specialist Don Lovy ("Lovy") billed at $100 to $125 per hour.[9]
Based on the survey information submitted, it appears that paralegals in the Tulsa area bill at $60 to $80 per hour depending upon responsibilities. Here, Anderson and Baker had supervisory responsibility over Jones and Edens and performed key functions regarding document management, development of privilege log, preparing demonstrative exhibits and maintaining a document database. The undersigned concludes that given these responsibilities, the billing rates for Anderson and Baker are not excessive.
The undersigned also finds that the billing rates for Jones and Edens are below the market rate, and, therefore, not excessive. The hourly rate for Lovy approaches that of an associate attorney and is, therefore, excessive for a paralegal. Accordingly, Lovy's hourly rate will be reduced to $85 per hour. This reflects a more appropriate billing rate for a paralegal with specific technical expertise.
(2)
Paralegal Hours.
The paralegals and assistants described above had substantively different roles in the litigation. Anderson's duties entailed document management and work on a document database. Baker was involved in designing the document database, reviewing records produced by defendants for inclusion in the document database and overseeing document production. Jones spent her time on Bates labeling, copying, *1257 and other unspecified work involving the firm's Summation document control software.[10] Edens worked "coding," copying, and organizing documents for inclusion in the Summation database. The vast majority of paralegal time was logged by Baker and Jones. Both billed for more than 300 hours over the life of the case. Lovy billed 48.25 hours for trial preparation and assistance at trial.
Paralegal time was heavily concentrated in two time periods: From January to June 2002, approximately 445 paralegal hours were recorded. From April to July 2003, approximately 300 paralegal hours were recorded.
(a) Paralegal Work from January to June 2002
Baker and Jones performed the bulk of the paralegal work recorded from January to June 2002. Baker recorded about 85 hours and Jones recorded about 260 hours.
Baker's time was clearly spent on functions that an attorney would otherwise have to have performed. Baker's time for this period warrants no reductions.
Jones' work during this period is summarized by two time entries that appear over and over in her records: "Summation," and "Coding documents into Summation database." This time represents a total of 260 hours or $7,800 in claimed fees. In addition, there are about seven hours making copies.
The undersigned concludes that making copies is a secretarial function that should be included in firm overhead. Thus, seven hours or $210 will be deducted from the fee application. The undersigned is also concerned with the large amount of time that is inadequately detailed. More than 45 hours ($1,350) are recorded with the simple notation, "Summation." This does not provide adequate detail to permit a meaningful review of the reasonableness of the activity. Accordingly, this time will be disallowed. In addition, 216 hours representing $6,480are recorded for "Coding documents into Summation database." Defendants have submitted to the Court a bid sheet from in Data Corpqration indicating that a significant portion of this coding work could have been outsourced at a total cost of $1,323.90. While the undersigned is not convinced that outsourcing this work would provide all of the same benefits as performing it in-house e.g., paralegal familiarity with the documents can lead to better deposition and trial preparationthe disparity between the outsource cost and the in-house cost is stark. The Court will reduce the time spent coding documents by one-half or $3,240.
This results in a total reduction for this phase of paralegal work of $4,800.
(b) Paralegal Work from April to July 2003
Paralegal work in this time period was spent preparing for and attending the nonjury trial of this case. Four paralegals recorded time during this period: Baker, 213 hours ($17,040); Anderson, 35.5 hours ($3,372.50), and Lovy, 48.25 hours ($5,287.50).
Much of Baker's time was spent preparing trial exhibits and coding exhibits and updating the exhibit database for trial. Approximately 125 hours in May and June were spent on these tasks. The undersigned finds that this is an excessive amount of time given that the case was tried non-jury and upon stipulated damages. Given the small number of witnesses *1258 and critical exhibits, the case did not require computerized presentation of exhibits. Defendants are only obligated to pay for attorney time that was reasonable and necessary. Accordingly, the Court will strike half of Baker's May-June time. This results in a reduction of $5,000 for this phase of paralegal work.
Defendants challenge the recoverability of fees for Lovy's time. Lovy's work consisted largely of preparing exhibits for computer presentation at trial and for computer work performed during trial. Defendants assert that there is no Oklahoma authority for recovery of these fees. In Chubb, the Oklahoma Supreme Court recognized that the term "attorneys fees" encompasses fees for services performed by legal assistants and paralegals. The court offered a non-exclusive list of tasks that a legal assistant may perform. The list includes: organizing trial exhibits and assisting lawyers at trial. Chubb, 874 P.2d at 809. The work that Lovy performed is akin to these tasks. The trial exhibits were organized for electronic presentation and Lovy assisted at trial in presenting evidence electronically. The undersigned concludes that this time is compensable at the reduced hourly rate described above. This results in a reduction of $1,186.25 in Lovy's claimed fees.
For the reasons set forth above, paralegal charges will be reduced by a total of $10,986.25.[11]
C. Redacted Time Entries.
Defendants seek to reduce ONG's fee request because certain billing records have been redacted, thus making it impossible to determine what work was done. Defendants ask that Welsh's time be reduced at set forth in Defendants' Exhibit 19 and the fee application reduced a total of $4,424.
It is the applicant's responsibility to provide the court with contemporaneous billing records containing sufficient detail to allow the Court to determine if the fees requested were reasonable and necessary. Obviously, this review becomes problematic when the supporting time records redact information essential to the task. After reviewing the time records at issue the undersigned finds that the fee request should be reduced by $4,104 due to redactions that result in insufficient detail to support the time claimed. This reduction in Welch's fees is reflected in the revised lodestar figure set forth in Exhibit "B" to this Order.
D. C. Burnett Dunn Attorney Fees.
Defendants seek to reduce ONG's fee application by $1,627.50 for time charged by attorney Dunn who was a witness in this case. Dunn's time was logged on seven days in March and April 2002. The total of 7.75 hours clearly is related to Dunn's status as a witnessnot a lawyerin the case. For example, Dunn billed three hours on April 19, 2002, for the time spent giving his deposition and one hour on April 29 and 30 for time spent reviewing his deposition for corrections. Other billed time concerns preparation for his deposition. Dunn was not serving as a lawyer-advocate, but as a fact witness. This time cannot be billed to the client, and, therefore, the fees cannot be shifted to Defendants. Accordingly, ONG's fee application will be reduced by $1,627.50. This reduction is reflected in the revised lodestar figure, Exhibit "B" hereto.
*1259 E. Duplicate Attorney Appearances.
Defendants seek to reduce ONG's fee request by $10,000 because multiple attorneys attended hearings, depositions and trial. There is no legal basis to limit an attorney fee award to only one attorney. See, e.g., A.J. v. Kierst, 56 F.3d 849, 863-65 (8th Cir.1995) (Use of more than one attorney in multiple party litigation recognized as both desirable and common). When more than one attorney represents the prevailing party "fees awarded should reflect the efforts of all, at least to the extent that the time reported does not reflect duplication of effort or work that should be performed by non-lawyers." Id. at 863-64; Reynolds v. Coomey, 567 F.2d 1166, 1167 (1st Cir.1978). See Burk, supra (awarding fees to multiple lawyers). The Court has not been cited any Oklahoma authority that prohibits more than one lawyer from seeking fees under a feeshifting statute. Certainly the federal cases do not support such a rule. Kierst, 56 F.3d at 864 ("We are not aware of any cases, however, which hold that a court may reduce attorneys' fees solely on the basis that multiple attorneys helped to secure a prevailing party's success.") (emphasis in original). However, if multiple representation results in inefficiency or duplication of effort, the court may reduce an attorney fee request accordingly. Id.
Citing Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983), Defendants argue that ONG must justify the presence of more than two lawyers at trial and hearings and more than one lawyer at depositions.[12] In Ramos, the court said:
[W]e think that the presence of more than two lawyers during trial or the presence of more than one lawyer at depositions and hearings must be justified to the court. No fees should be awarded for hours reported by lawyers or law clerks who are present at depositions, hearings, or trial for the purpose of being trained and who do not participate in or contribute to the proceedings.
Id. at 554, n. 4.
Kirby testified at the attorney fee hearing that three lawyers divided the work assignments for ONG on this case [13]: Kirby was the managing attorney, overseeing all aspects of the case; Howard was lead trial counsel; and, Welsh was responsible for drafting pleadings and proposed Findings of Fact and Conclusions of Law. Kirby and Howard split the deposition work, a common approach in modern business litigation. The undersigned finds no basis for fee reduction based solely on the number of lawyers representing ONG, given their clearly defined tasks.
F. Westlaw Legal Research Charges.
Defendants seek to reduce ONG's fee application by $5,361.29the amount of claimed Westlaw charges. These charges are for access to the Westlaw database and are in addition to the fees billed for attorney time spent on research after accessing the Westlaw database.
Oklahoma courts have not yet answered the question of whether one can recover Westlaw charges as a substitute for attorney fees. In Wilson v. Glancy, 1995 OK *1260 141, 913 P.2d 286, 292 (Okla.), the Oklahoma Supreme Court indicated that Westlaw research is not recoverable as an element of costs[14]; however, Wilson did not address the issue of whether Westlaw charges could be recovered as attorney fees.
The undersigned now looks for guidance from other jurisdictions, and here a clearer picture emerges. The prevailing view among federal courts is that computer research charges are recoverable as attorney fees as a "substitute for an attorney's time." E.g. United States for Use & Benefit of Evergreen Pipeline Const. Co., Inc. v. Merritt Meridian Const. Corp., 95 F.3d 153, 173 (2nd Cir.1996); Haroco, Inc. v. American Nat'l Bank & Trust Co. of Chicago, 38 F.3d 1429, 1440^1 (7th Cir.1994); Johnson v. University College of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1209 (11th Cir.1983); Camargo v. Trammell Crow Interest Co., 318 F.Supp.2d 448, 451 (E.D.Tex.2004); Webb v. Abbruzzese, 2003 WL 21771017, *3 (E.D.Tex.). This Court has approved such charges. Deborah Robinson, D.O. v. Armen Marouk, D.O., et al., Case No. 96-CV-0160-K(E) (Report and Recommendation, p. 18, June 21, 2000, adopted, Order, July 25, 2000). The theory is that computer research reduces the amount of attorney time required for legal research and, therefore, saves the client money. It appears that, at least in the federal courts, the modern trend is to allow recovery of computer research charges as attorney fees.[15]
Another consideration is the equity of the proposition before the Court. At the same time that ONG submitted the application that is the subject of this Report, Apache also filed an application for fees and expenses as against the Kaiser Defendants. [Dkt. # 142]. In that Application, Apache sought $107.25 for computer research. The Kaiser Defendants did not object to this charge or any other element of Apache's fees and expenses. [Dkt. # 149]. The Kaiser Defendants reiterated this position at the hearing on fees on August 10, 2004. Thus, Apache has soughtand the Kaiser Defendants did not opposethe very same charges they now object to in ONG's application. Clearly, the determination of this issue should be consistent for all parties.
The undersigned concludes that Oklahoma is mute on the issue of recovery of computer research charges as attorney fees, but that federal cases favor the award of such expenses. Further, since Apache itself has requested reimbursement for computer research costs and the Kaiser Defendants have not objected thereto, equity and consistency militate in favor of recovery. The computer charges will be allowed.
Revised Lodestar Amount.
Incorporating the $250 hourly for Howard and the reductions noted above from paralegal time results in a revised lodestar figure of $395,366.51. This number reflects the reasonable hourly rate multiplied by billed hours. However, because block billing makes it impossible for the undersigned to fully determine the reasonableness of the billed hours, and because the undersigned has found some duplication of effort and excessive charges as set forth below, a further reduction is required.
*1261 G. Further Reductions for Block Billing and Excessive Attorney Time
Defendants seek a reduction of ONG's requested fees because the fee application lumps together unrelated tasks without indicating how much time was spent on each, therefore, making it impossible to assess the reasonableness of the time expended.. Defendants' total requested reductions on this and related issues are:
[] Excessive Attorney Deposition
Preparation $ 22,000
[] Excessive Brief Preparation $ 20,000
[] Excessive Inter-Office Conferences $ 31,264
[] Excessive Attorney Document Review $ 4,000
[] Block Billing $ 35,940
TOTAL $113,204
These issues raised are addressed below.
(1)
Excessive Deposition Preparation
Four ONG attorneys billed deposition preparation: Kirby, 153 hours; Howard, 22.5 hours; Welsh, 2.7 hours, Dunn, 2.5 hours. The Court will dispense with the two smallest billings first. Dunn's hours have already been disallowed. See § V(D) above. No further discussion of Dunn's time is necessary.
Defendants attribute deposition preparation time to Welsh based on two time entries: On Feb. 8, 2002, Welsh billed 2.3 hours for drafting a memo on summary judgment issues to assist others in preparing for depositions. This is not duplicative of other attorneys' work, nor is it excessive. On May 21, 2002, Welsh billed 4 hours preparing Kirby for the deposition of an expert witness. According to Kirby's testimony Welsh was working on a Daubert challenge to the witness. Thus, this time is not duplicative or excessive.
The bulk of the deposition preparation time is attributable to two attorneys: Howard and Kirby. Kirby was the managing attorney on the case and had primary contact with the client, while Howard was the lead trial attorney. Fifteen depositions were taken in the case, seven ONG witnesses were deposed while Kaiser-Francis and Apache each had four witnesses deposed. Howard and Kirby divided the work of taking and defending depositions, with Kirby handling the greater number of witnesses.
A review of the records indicates that Howard billed for about 22.5 hours of deposition preparation time and Kirby billed about 150 hours. The undersigned does not find Howard's 22.5 hours of preparation time excessive. Two of the witnesses he deposed were Apache's 30(b)(6) witnesses, and Jim Willis was an officer of Kaiser-Francis Oil Corp. The amount of deposition preparation by Howard is not excessive.
Kirby's greater preparation time is attributed to two factors; First, as the attorney managing the case, he had ultimate responsibility for the case and had to be familiar with all aspects of the litigation. Second, his more extensive preparation often supplemented Howard's knowledge and saved money by reducing Howard's preparation time at his higher billing rate. From a review of the time records and the amount of deposition preparation time spent by Apache and the Kaiser Defendants relative to the amount of deposition testimony they elicited, it appears that Kirby's additional hours reduced the preparation time Howard would otherwise have incurred and resulted in a savings to the client. Accordingly, the undersigned finds no basis for reduction of the attorney deposition preparation time.
(2)
Excessive Brief Preparation
Defendants seek to reduce ONG's fees by $20,000 for "excessive brief preparation." Defendants contend that the time that ONG spent on briefing far exceeds that which the Defendants expended together. Defendants' Hearing Exhibit 16 *1262 indicates that ONG spent 584 hours (representing $90,680) on briefing while the Kaiser-Francis Defendants spent 248 hours ($50,200) and Apache spent 190 hours ($32,950).[16]
ONG filed three briefs in 2001 involving the summary judgment motion related to whether the July 1988 Settlement Agreement between ONG and KFOC released ONG's claim against Apache.
In 2002, ONG prepared and filed 12 briefs including a brief in support of Motion to Compel (later withdrawn); four briefs concerning motions for summary judgment; two briefs supporting ONG's Motion to Exclude Defendants' expert witness; two briefs in support of ONG's Motion in Limine regarding Witnesses Pam Sublette and Watkins; an Objection to the Magistrate Judge's Report and Recommendation on the Parties' motions for summary judgment; and a Reply to the Defendants' objection to the Magistrate Judge's Report and Recommendation on Parties' Motions for summary judgment.
In 2003, ONG filed various Trial Briefs, proposed Findings of Fact and Conclusions of Law and briefs regarding attorney fees and Bill of Costs.
The undersigned has reviewed the time spent on briefing. Generally, two attorneysKirby and Welshworked on any briefs. Welsh was responsible for research and drafting; Kirby reviewed and revised these drafts. The undersigned encountered difficulty in determining the extent of any duplicative effort due to the block billing employed by ONG's attorneys. The undersigned has recommended a further reduction in fees because of this block billing and its impact on analysis of the time spent on such tasks such as briefing. As a result of that reduction, and after review of the specific work done on the briefs submitted herein, the undersigned recommends no further reduction for excessive briefing.
(3)
Excessive Attorney Document Review
Defendants seek a reduction of $4,000 for excessive attorney document review. According to Defendants' calculations, ONG's attorneys spent a total of 67 hours ($12,240) reviewing documents while KFOC only spent 21 hours ($4,190) and Apache only 22 hours ($3,975).
Again, the comparison between time spent by Defendants on document review and that spent by Plaintiff may offer some benchmark for what is a reasonable amount of time for document review, but such comparison is not conclusive. Regardless of the amount of time spent by Defendants, the test is whether the amount of time spent by ONG's lawyers was reasonable under the circumstances. The undersigned has found evidence of excessive document review, however, in attempting to determine the exact amount of any such excess I have again been stymied by the block billing encountered in ONG's attorney time records. Accordingly, a reduction for block-billing will be used to account for excessive attorney document review.
(4)
Inter-Office Communications
The submitted time records reflect instances in which multiple lawyers conferred with one another and all billed for the time. Obviously, lawyers working together on a case must communicate with each other and that communication may spare the client duplication of effort; however, multiple billing for interoffice conferences is problematic because multiple timekeepers are billing for the same *1263 work. At least one court has held that the exercise of good billing judgment requires that only one participant in a conference should bill for that conference. Taylor v. Albina Community Bank, 2002 WL 31973738, *4 (D.Or.). Not all courts adopt this broad rule, however. Most courts seem to review such time to determine if it truly reflects duplicative effort. The undersigned has reviewed the interoffice conferences challenged by Defendants. Generally, the challenged time falls into two categories: (1) Time where two attorneys conferred on a matter, but only one billed that time.[17] In such a case, there is no issue of duplication of effort and the time should be allowed. (2) Time where two or more attorneys conferred and all billed that time.[18] In this instance a reduction for duplication of effort is justified. In this last instance, a determination of how much time should be subtracted is made impossible because of attorney block-billing. The undersigned cannot adequately determine the amount of time each lawyer billed for a conference; thus, the undersigned has resorted to a general reduction for block-billing as described below.
(5)
Block-Billing
The undersigned's review of ONG's records to determine if an unreasonable amount of hours was spent on specific tasks has been hampered by block billing.[19] Block billing or "lumping" occurs when an attorney records time spent on various tasks on a given day but does not indicate the amount of time spent on each specific task. Block billing creates problems for the court reviewing a fee application. First, it does fulfill the fee applicant's obligation to submit "detailed time records" because time entries do not identify how much time was spent on each task.[20] This prevents the court from determining if a reasonable amount of time was expended on certain work. In addition, where a case involves both claims for which attorney fees may be awarded and others for which an award is not permissible, lumping prevents the court from determining which time is compensable and which is not. See Taylor, 2002 WL 31973738 at *3 (Block billing of three or more hours and containing multiple tasks "prevents the court from determining the reasonableness of the hours spent on a specific task.")
The undersigned has found no controlling Oklahoma authority on block-billing. The Pursley opinion, supra, is one of the few state cases to allude to the issue. Thus, the undersigned again looks to guidance from other jurisdictions. The Tenth Circuit has not adopted a per se rule prohibiting fees due to block billing. Cadena *1264 v. Pacesetter Corp., 224 F.3d 1203, 1215 (10th Cir.2000). Nevertheless, where block billing makes it difficult, if not impossible, for the Court to determine the amount of time spent on specific tasks, a general reduction in attorney fees may be warranted. See Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.1998) ("[A] district court may discount requested attorney hours if the attorney fails to keep 'meticulous, contemporaneous records' that reveal `all hours for which compensation is requested and how those hours were allotted to specific tasks.'") (emphasis added).
Block billing is a critical problem where, for example, plaintiff alleges claims for which fees may be shifted and others for which fee-shifting is not appropriate. There it is important to determine the time spent on claims for which an attorney fee award is authorized. The Court is not confronted with that particular problem here because the only claim in this matter is a breach of contract claim that both sides agree falls within the fee-shifting provisions of 12 O.S. § 936. However, that does not solve the court's difficulties in assessing the time spent on various litigation activitiese.g., document review, deposition preparation, briefingthat Defendants have challenged. The undersigned is unable to adequately evaluate the time spent on these activities due to block billing. For example, it is impossible to evaluate the following time entry to determine whether too much time was spent preparing for depositions:
Draft notes and review documents in preparation for Apache deposition. Telephone conferences with K. Legnon, T. Carney, and J. Jarrett in search for documents. Conference with Debra Baker in search for documents. Telephone conferences with Pete Walker regarding declaration. Telephone conferences with A. Ratliff regarding recoupment calculation. Draft stipulation on recoupment. Review and revise response brief on summary judgment. Review Apache contract file.
TJK 7.3 [hours] [$]1,460.00
[Exh. 1 to ONG's 8/10/2004 Hearing Exhibits, ONG Fees 0095]
Likewise, the Court cannot evaluate the reasonableness of time spent in interoffice conferences when confronted with entries such as this:
Teleconference with KFOC counsel office regarding exhibits and conferences with Debra Baker regarding notebooks. Review KFOC trial brief and findings and conferences with Brad Welsh and Oliver Howard regarding same. Conference with Oliver Howard and Brad Welsh regarding exhibits and Adkins and Sublette testimony. Draft letter on Adkins testimony.
TJK 5.7 [hours] [$] 1,140.00
[Exh. 1 to ONG's 8/10/2004 Hearing Exhibits, ONG Fees 00212]
Given the block billing present herein and the evidence of some duplication of effort among counsel, the undersigned is faced with a formidable task in determining the proper reduction to be made in ONG's fee application. In Taylor, the court noted the problem this creates:
If this court had the luxury of unlimited time, it could spend days carefully reviewing each and every time entry in order to calculate a reduction in the attorney fee request by date, timekeeper, and amount. Such an extensive review could not be precise, however, given the block billing entries and the necessarily subjective determination of which specific hours should be excluded.
Taylor, 2002 WL 31973738 at *5.
Defendants seek a reduction of more than $100,000 to account for problems they have identified related to excessive attorney *1265 time and block-billing. After a thorough review of ONG's records, the undersigned does not feel a reduction of this magnitude is warranted. Instead, the undersigned will adopt the tack taken by courts that have used a general reduction to compensate for hours not properly recorded. See Poynor v. Community Unit School District # 300, 1999 WL 1101566, *1 (N.D.Ill. Nov.30, 1999); Reyes v. Nations Title Agency of Illinois, 2001 WL 687451, *2 (N.D.IU. June 19, 2001) (10 percent reduction of block-billed time entries); Mogck v. Unum Life Ins. Co. of America, 289 F.Supp.2d 1181, 1194-95 (S.D.Cal.2003) (10 percent reduction for excessive interoffice conferences and other problems). This is the most reasonable approach since duplication of effort does not appear to be egregious.
Accordingly, a general 15 percent reduction of the revised lodestar amount will be used to compensate for block billing, interoffice conferences, excessive attorney time and duplication of effort reflected in the time records. This reduction will be applied to the revised lodestar figure so that ONG is not penalized twice. Therefore, ONG's fee application will be reduced by $59,920.16 to account for all of the block billing and necessary time reductions. This reduction brings the total allowed fee to $339,547.60.
H. Relationship of Fees to Amount in Controversy.
Final determination of a reasonable attorney fee is subject to the rule that the fee awarded must bear some "reasonable relationship to the amount in controversy." Finnell v. Seismic, 2003 OK 35, ¶ 17, 67 P.3d 339, 346; Southwestern Bell Telephone Co., 1987 OK 16, ¶ 17, 737 P.2d at 1189. There is no bright line rule for this determination. The Oklahoma Supreme Court has approved a fee that far exceeded the amount recovered. Arkoma Gas Co. v. Otis Engineering Corp., 1993 OK 27, ¶ 6, 849 P.2d 392, 395 (approving fee of $5,500 in breach of warranty case where plaintiff sought $70,000 but only recovered $100). The Court has approved fees nearly equaling the amount recovered. Parker Pest Control, supra, at 1190 (approving fee of $3,000 in case in which plaintiff sought $3,867 and Defendant confessed judgment for $1,500).
Here, the amount in controversy was approximately $1.2 million. The recommended fee award is $339,547.60. Clearly, this sum comports with the ratio of fees to damages previously approved by the Oklahoma Supreme Court. Accordingly, the undersigned RECOMMENDS that ONG's attorney fee application be GRANTED in the total amount of $339,547.60.
OBJECTIONS
The District Judge assigned to this case will conduct a de novo review of the record and determine whether to adopt or revise this Report and Recommendation or whether to recommit the matter to the undersigned. As part of his/her review of the record, the District Judge will consider the parties' written objections to this Report and Recommendation. A party wishing to file objections to this Report and Recommendation must do so within ten days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The failure to file written objections to this Report and Recommendation may bar the party failing to object from appealing any of the factual or legal findings in this Report and Recommendation that are accepted or adopted by the District Court. See Moore v. United States, 950 F.2d 656 (10th Cir.1991); and Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir.1996). Oct. 19, 2004
*1266 EXHIBIT "A" TO COURT'S ORDER (page 1 of 2)
ONG's Requested Lodestar Amount
The lodestar amount requested by ONG is set forth below. The attorney fee application reflects the following number of hours and rates:
Attorneys Rate Honrs Fees
Gene Buzzard $185 63.1 hours $ 11,668.50[1]
$200 .5 hour $ 100
Oliver Howard $320 71.75 tars $ 22,960
$340 305 hrs $103,700
$375 2 hrs $ 750
Thomas Kirby $200 1,024.8 hrs $204,860
$210 9.1 hrs $ 1,911
$100 8.3 hrs $ 830
Brad Welsh $120 315.8 hrs $ 37,896
$135 31.1 hrs $ 4,198.50
$140 160.6 $ 22,484
$155 5.4 $ 837
Eric King $185 .75 $ 138.75
C. Burnett Dunn $210 7.75 hrs $ 1,627.50
Attorneys Subtotal $413,961.25
*1267
Paralegals Rate Hours Fees
Cheryl Anderson $95 38.5 hrs $ 3,657.50
Debra Baker $80 333.3 hrs $26,664
Kathy Jones $30 317.25 hrs $ 9,517.50
Bertha Edens $25 53.5 hrs $ 1,337.50
Terry Fisher $45 2 hrs $ 90
Don Lovy $100 29.75 hrs $2,975
$125 18.5 hrs $2,312.50
Paralegal Fees $46,554
Attorney Fees (from page 1) $413,961.25
Total Fees (Atty plus Paralegal) $460,515.25
LESS Discounts to ONG ($ 14,768.53)
TOTAL FEES REQUESTED $445,746.72
Westlaw charges $ 5,361.29
AMOUNT REQUESTED IN ONG'S FEE APPLICATION $451,108.01
LESS corrections made at 8/10/2004 hearing $ 2,200.00
LODESTAR REQUEST BASED
ON EVIDENCE AT 8/10/2004 HEARING $448.908.01
*1268 EXHIBIT "B" TO COURT'S ORDER (page 1 of 2)
Revised Lodestar Amount
The Revised Lodestar Amount is set forth below. Tghe undersigned's recommended reductions in billing rates and hours are indicated in italics:
Attorneys Rate Honrs Fees
Gene Buzzara $185 63.1 hours $ 11-668.50[1]
$200 .5 hour $ 100
Oliver Howard $250 71.75 hrs $ 17,937.50
$250 305 hrs $ 76,250
$250 2 hrs $ 500
Thomas Kirby $200 1,024.8 hrs $204,860
$210 9.1 hrs $ .1,911
$100 8.3 hrs $ 830
Brad Welsh $120 296.3 hrs $ 35,556
$135 31.1 hrs $ 4,198.50
$140 148 hrs $ 20,720
$155 5.4 $ 837
Eric King $185 .75 $ 138.75
C Burnett Dunn $210 0 hrs $ 0
Attorneys Subtotal $375,507.25
*1269
Paralegals Rate Honrs Fees
Cheryl Anderson $95 38.5 hrs $ 3,657.50
Debra Baker $80 270.8 hrs $21,664
Kathy Jones $30 157.25hrs $ 4,717.50
Bertha Edens $25 53.5 hrs $ 1,337.50
Terry Fisher $45 2 hrs $ 90
Don Lovy $85 48.25 hrs $4,101.25
Paralegal Fees $ 35,567.75
Attorney Fees (from page 1) $375,507.25
Total Fees (Atty plus Paralegal) $411,075.00
LESS Discounts to ONG ($ 14,768.53)
TOTAL FEES REQUESTED $396,306.47
Plus Westlaw charges $ 5,361.29
Subtotal $401,667.76
LESS corrections made at 8/10/2004 hearing (S 2,200.00)
REVISED LODESTAR AMOUNT $399,467.76
NOTES
[1] This amount reflects a $2,200 reduction made by ONG at the August 10, 2004, hearing on its fee request. The reduction corrected three billing errors ONG had recently discovered in its attorney time records. [Exh. 5 to Oklahoma Natural Gas Company's 8/10/2004 Hearing Exhibits in Support of its Motion for Attorney Fees (hereafter, "ONG's 8/10/2004 Hearing Exhibits")].
[2] An evidentiary hearing should generally be held to resolve factual disputes over reasonableness and amount of fees. Michael A. Cramer, MAI, SRPA, Inc. v. United States, 47 F.3d379, 383 (10th Cir. 1995).
[3] ONG and Kaiser Francis Oil Corp. ("KFOC") entered into the subject contract in June 1980 under the terms of which ONG was to take delivery of certain quantities of gas on an annual basis from the Giles No. 1 Well in Grady County, Oklahoma. When KFOC tendered the contract quantity of gas, ONG was required to pay for it whether or not it actually accepted the gas. However, if ONG paid for the gas without taking delivery, any such deficiency payment was subject to recoupment through future deliveries of gas. If by the end of the contract ONG had not recouped all of the deficiency payments, KFOC was to repay ONG the unrecovered sum. In July 1983 KFOC assigned its rights under the contract to Apache. ONG later made demand on Apache for unrecovered deficiency payments of approximately $1.2 million, and Apache failed to pay.
[4] For a general discussion of the theories underlying fee-shifting statutes such as 12 O.S. § 936 see, Thomas D. Rowe, Jr., The Legal Theory of Attorney Fee Shifting: A Critical Overview, 1982 Duke L.J. 651, 665 [September 1982].
[5] Exhibit "A" to this Order breaks ONG's fee request into hourly rates and hours charged for each billing attorney and paralegal.
[6] Two challenges set forth in Defendants' Exhibit #24R-duplicate entry ($1,500) and wrong case ($600)were conceded by ONG at the August 10 hearing and resolved. ONG also noted another instance of time incorrectly recorded in the submitted time records and deducted that amount ($100) as well.
[7] This range includes lawyers with 15 to 25 + years experience. The undersigned believes the hourly rates for all of these experience levels are relevant to the determination of an appropriate hourly rate herein.
[8] ONG may wisely and for good reason choose to travel the litigation highway in a Lexus rather than the more common Chevrolet. However, under a fee-shifting statute such as presented here, the losing party is only responsible for the cost of the Chevrolet, if that is the standard in the community.
[9] Plaintiff contends that Lovy is a paralegal; Defendants argue that Lovy's work does not meet the test of Chubb.
[10] ONG's lawyers used two pieces of litigation software: Summation, a popular document management package, and Sanction which creates image files to display documents or deposition transcripts at trial.
[11] This includes Lovy's time ($1,186.25), seven hours of copying ($210), inadequately described time ($1,350), excessive document coding ($3,240) and excessive exhibit preparation ($5,000).
[12] It should be noted that ONG was not alone in using multiple attorneys. Apache was represented by R. Kevin Layton, Sheila Powers and Christopher Woosley. The Kaiser Defendants were represented by J. Michael Medina, Paul DeMuro and Frederic Dorwart.
[13] Buzzard also worked on the case, but only until Kirby was free from another assignment to take over managerial responsibility. Thereafter, Buzzard did not bill on the matter. Dunn was a witness for ONG. The undersigned has stricken fees requested for Dunn on the ground that he was serving as a fact witness, not an attorney when this time was incurred.
[14] Similarly, the Tenth Circuit Court of Appeals has also noted that computer legal research charges are not statutorily authorized costs under 28 U.S.C. § 1920. Jones v. Unisys Corp., 54 F.3d 624, 633 (10th Cir.1995).
[15] Not all federal courts agree with this analysis, however. See Standley v. Chilhowee IV School Dist., 5 F.3d 319, 325 & n. 7 (8th Cir. 1993) (computer assisted legal research must be factored into the attorneys' hourly rate and may not be added to fee award).
[16] A portion of Apache's and the Kaiser Defendants' briefing time was spent on the indemnification issuean issue that ONG did not have to brief.
[17] For example, the time records reflect that on Dec. 14, 2000, and Jan. 5, 2001, Buzzard recorded time spent conferring with Kirby; however, only Buzzard recorded time for this conference.
[18] For example, on June 10, 2003, Howard, Kirby and Welsh all met to discuss the case. All three lawyers billed for this time.
[19] The parties' attention is directed to In re Reconversion Technologies, Inc., 216 B.R. 46, 57-58 (Bankr.N.D.Okla.1997), a decision by U.S. Bankruptcy Judge Terrence Michael that addresses this issue in detail.
[20] See, for example, Pursley v. Mack Energy Co., 1995 OK CIV APP 129, 908 P.2d 289, where the court noted that because of lumping it was not possible to determine how of fee applicant's time was spent on matters unrelated to the lien claims he prevailed on. "The time records do little to inform us in this regard; fewer than ten hours are expressly attributed to work on the lien issues or Mack Energy's counterclaim." Id., 908 P.2d at 291 n. 1.
[1] Due to a mathematical error in the fee application, Buzzard's total amount claimed is understated by $5. The Attorney Fee Chart submitted wilh ONG's application states that Buzzard billed 3 hours in 2002 at $185 per hour for a total of $550. The amount should be $555. [Exh. 1 to Oklahoma Natural Gas Company's 8/10/2004 Hearing Exhibits].
[1] Due to a mathematical error in the fee application, Buzzard's total amount claimed is understated by $5. The Attorney Fee Chart submitted with ONG's application states that Buzzard billed 3 hours in 2002 at $185 per hour for a total of $550. The amount should be $555. [Exh. 1 to Oklahoma Natural Gas Company's 8/10/2004 Hearing Exhibits].
|
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 29, 2007*
Decided April 3, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-3416 Appeal from the United
States District Court for the
PRINCE FORYOH, Northern District of Illinois,
Plaintiff-Appellant, Eastern Division.
v.
No. 06 C 1131
RONALD BANAS, David H. Coar, Judge.
Defendant-Appellee.
Order
After he was convicted of harassment by telephone, see 135 ILCS 135/101,
Prince Foryoh filed this suit under 42 U.S.C. §1983 against the officer who arrested
him, contending that the officer lacked probable cause and employed excessive force.
The district court initially permitted Foryoh to proceed in forma pauperis but later
revoked that permission and dismissed the suit under 28 U.S.C. §1915(e)(2)(A) after
concluding that Foryoh’s financial affidavit was false.
In another of Foryoh’s suits, his mother gave testimony to the effect that she
provides about 90% of his support—including meals, car, college tuition, textbooks,
and housing. Foryoh concedes that his mother has provided (and continues to pro-
vide) financial support but insists that she is extending loans rather than making
* After examining the briefs and the record, we have concluded that oral argument is unneces-
sary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 06-3416 Page 2
gifts. That is not how his mother characterized things, but like the district judge we
need not resolve this intra-familial dispute. Foryoh did not report the value of these
“loans” on his affidavit and other filings. In response to a question whether he had
received more than $200 from any source in the preceding year, Foryoh neglected to
mention his mother’s assistance. So his application for leave to proceed in forma
pauperis had a material omission and may well have been perjurious.
Foryoh must pay the full filing and docket fees for both the complaint in the dis-
trict court and the appeal taken to this court. Moreover, by attempting to deceive
the district court he has forfeited the privilege of proceeding in forma pauperis in
any case until he had paid, in full, all outstanding fees and costs for all of his law-
suits. (There are several others.) See Campbell v. Clarke, No. 06-3138 (7th Cir. Apr.
2, 2007). Finally, for the reasons given in Campbell, we will enter an order under
Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995), to remain
in force until all fees and costs, from all of Foryoh’s federal suits, have been paid. In
any application to this court to have the Mack order lifted, Foryoh must provide
(under oath) a complete list of all of his federal suits and proof that all of his finan-
cial obligations with respect to these suits have been met.
|
4 Cal.2d 469 (1935)
THE PEOPLE, Respondent,
v.
CLARENCE DE MOSS, Appellant.
Crim. No. 3871.
Supreme Court of California. In Bank.
October 22, 1935.
Tom Okawara for Appellant.
U.S. Webb, Attorney-General, and Ralph H. Cowing, Deputy Attorney- General, for Respondent.
WASTE, C.J.
In an information filed by the district attorney of the county of Merced, the defendant was charged with the murder of Mabel De Moss, his wife. He entered pleas of not guilty and not guilty by reason of insanity. The jury brought in a verdict of murder in the first degree without recommendation and a verdict that he was sane at the time of the commission of the offense. From a judgment imposing the extreme penalty and from an order denying a new trial, defendant prosecutes this appeal.
The homicide was perpetrated on October 14, 1934, at a time when the parties were estranged. They had been living apart for approximately three weeks. The decedent, with four of the six minor children of the marriage, was then living with her parents. The defendant had two of the boys living with him. There is evidence in the record tending to indicate that on four occasions during the year preceding the homicide the defendant had been abusive to the decedent and had mistreated his family, causing the decedent to leave him on each occasion. At least upon one occasion during this period he became intoxicated and beat the decedent. There is evidence to the effect that on the day of the shooting the defendant, accompanied by his two sons, drove his automobile to the place where the decedent was living with the other children. He did not enter the house but conversed with the decedent at the side of the automobile. At the conclusion of the conversation the decedent departed for the house and when about fifty or sixty feet distant from the automobile she received the gunshot wounds which caused her death. The attending physician testified that he saw the decedent at about seven- thirty on the evening of the homicide; that she was suffering extreme shock from gunshot wounds over the right chest, back and side; that there were one hundred and sixty punctures from the shots; and that she died from the gunshot wounds the following morning. *472
The defendant testified that on the day of the shooting he drove his automobile, accompanied by his two sons, to the place where the decedent was living with her parents; that it was then about dusk; that he did not enter the house but remained near his automobile and talked with his other children who had come out to greet him; that he sent one of the boys to the house to tell the decedent to come out to the automobile; that this invitation was declined and only after he threatened to take one of the girls back to town with him did the decedent leave the house and converse with him; that the children were then sent away to play; that he then kissed the decedent and asked her to return to him; that after some conversation she stated, "well, probably in a short time we can fix things up"; that he kissed her again and she turned back toward the house; that he then called the boys for the return trip to town; that he thereupon undertook to remove a double-barreled shot- gun, carried for hunting purposes, from the rear to the front of the automobile to have it available in the event a rabbit crossed his path on the return trip; that in so removing the gun it accidentally struck the back of the front seat of the automobile causing it to be discharged twice; that he heard someone scream; that he did not know "whether my wife had been hit or what it was"; that it was then dark; that he heard "somebody about ... got excited ... turned and ran"; that he was afraid to investigate because "if my wife was hurt, that I would get another beating up"; that he ran into a corn field and "must have fainted or something"; that when he regained consciousness it was still dark, the moon was up and he "did not know what to do"; that he did not realize what had happened and set out to walk to Turlock; that on the way he called for his overalls at a place where previously they had been left for repairs; that he there drank some whiskey, put on the overalls and set out to complete his trip to Turlock, getting an automobile ride part of the way; that during the day he had several glasses of whiskey and some beer to drink; that he loved his wife and did not intend to injure or kill her.
There was evidence tending to show that the gun used by the defendant was found a few hundred feet from the scene of the shooting partly imbedded in sand under a grape vine. Three persons who had heard, but did not witness, the shooting testified that the two discharges of the gun did not occur *473 in rapid succession but that from two to four seconds intervened between them. There is evidence to the effect that defendant stated in January, 1934, the next time anyone interfered in his family affairs "someone would get killed" and that two or three weeks prior to the shooting he said that "if his wife would not live with him he would just see she did not live with anyone". There is testimony that on the day preceding the shooting (Saturday) the defendant remarked as he left work that he would see the witness Monday morning if he (defendant) was not "in jail or shot". A newspaper man testified that he met the defendant early in the morning of the day following the shooting and that the defendant stated "I know, I shot my wife, I will go with you, I won't run away." The defendant at the same time said the shooting was an accident.
[1] An examination of the entire record satisfies us that there is sufficient evidence to warrant the implied finding of the jury that the shooting was deliberate and intentional and not accidental as contended by the defendant. The quarrels and separations of the parties, together with the threats of defendant, establish sufficient motive for the killing and militate against any theory of an accidental killing. Defendant's flight and change of clothes immediately following the shooting also tend to destroy his defense.
[2] The jury's characterization of the homicide as murder of the first degree also finds support in the record. The evidence of intoxication, referred to by defendant in support of his argument for a reduction in the degree of the offense, is not such as to suggest that he was incapable of forming or entertaining the intent essential to murder of the first degree. At best, the record merely discloses that the defendant had three drinks of whiskey early in the morning and two or three more glasses between 3 and 4 P. M. on the day of the shooting. He had also consumed a bottle or two of beer. The shooting, as stated above, did not occur until the end of the day, about dusk. Moreover, defendant's detailed recollection and minute description of the happenings immediately preceding the shooting tend to dispel any contention that his mind was so confused or disordered by the consumption of intoxicants as to relieve him from full responsibility for the ordinary consequences of his wrongful acts. This, and other evidence, may well have caused the jury to reject the defendant's *474 evidence as to the extent of his intoxication and to conclude that he was not so inebriated as to be unable to appreciate the character and gravity of his deliberate and wrongful acts.
[3] Voluntary intoxication is never an excuse for crime. (Sec. 22, Pen. Code; People v. Burkhart, 211 Cal. 726, 730 [297 P. 11].) The weight to be accorded to evidence of intoxication, and whether such intoxication precluded the accused from forming a specific intention to kill and murder, which intent is a necessary element in murder of the first degree, are matters essentially for the determination of the trier of the facts. (People v. Murphy, 1 Cal.2d 37, 40 [32 PaCal.2d 635].) As already indicated, we cannot say from an examination of the entire record that the defendant was so disordered mentally at the time of the shooting as to preclude the resulting homicide from being of that "willful, deliberate and premeditated" character designated in section 189 of the Penal Code as murder of the first degree.
[4] The several assignments of error having to do with the asserted improper admission of evidence tending to establish prior quarrels between the decedent and the defendant and the making of threats by the latter, are clearly without merit. Such evidence was competent to show motive and the state of mind of the defendant. The objection that the evidence is remote goes to its weight rather than to its admissibility. (People v. Wilson, 23 Cal.App. 513, 521 [138 P. 971].) Other rulings complained of present nothing approximating error.
[5] Defendant contends that it was prejudicial error for the court below to give the following instruction:
"You are instructed that it is a well-settled rule that drunkenness is no excuse for the commission of a crime. Insanity produced by intoxication does not destroy responsibility when the party, when sane and responsible, made himself voluntarily intoxicated; and drunkenness forms no defense whatever to the fact of guilt, for, when a crime is committed by a party while in a fit of intoxication the law will not allow him to avail himself of his own gross vice and misconduct to shelter himself from the legal consequences of such crime. Evidence of such intoxication can only be considered by the jury for the purpose of determining the degree *475 of crime, and for that purpose it must be received with great caution."
It is urged that the early part of the instruction having to do with insanity is erroneous in that insanity produced in any manner, by intoxication or otherwise, is a defense to criminal prosecution. An instruction in substantially the same language was approved in People v. Jones, 63 Cal. 168, 169. It is there declared:
"Insanity, from the long continued use of intoxicants, was the only defense made on behalf of the defendant. In substance, the court charged the jury to the effect that insanity produced by intoxication would not destroy responsibility when the party, when sane and responsible, made himself voluntarily intoxicated, and that drunkenness was no excuse for crime, but it was a circumstance for the consideration of the jury in determining the degree of the crime. The charge upon the subject in the very language by which it was given to the jury was considered and approved by this court in the cases of People v. Ferris, 55 Cal. 588, 592; People v. Williams, 43 Cal. 344, 345; People v. Lewis, 36 Cal. 531."
Moreover, the court below charged the jury in the exact language of section 22 of the Penal Code, as follows:
"No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act."
Complaint is also made of the latter part of the instruction informing the jury that evidence of intoxication may only be considered for the purpose of determining the degree of the crime "and for that purpose it must be received with great caution". The quoted language was held not to be prejudicial in People v. Nihell, 144 Cal. 200, 203 [77 P. 916], wherein it is stated:
"Instructions to the effect that evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of the crime, and for this purpose 'it must be received with great caution' have also been often considered by this court, and it is apparently well settled that a *476 judgment will not be reversed for the giving of such an instruction. People v. Vincent, 95 Cal. 425, 428 [30 P. 581]; People v. Methever (132 Cal. 326 [75 P. 1093]), supra. As was said, however, in People v. Suesser, (142 Cal. 354 [75 P. 1093]), supra, of the instruction regarding the care with which the defense of insanity should be regarded, so of this; so far as it cautions the jury that evidence of drunkenness shall be received with caution, 'it would be better if such instruction were omitted altogether'. We know of no rule of law which, in view of our constitutional provision as to charging juries upon matters of fact, justifies the giving of such instructions, but we cannot see that the giving of the same could have affected the substantial rights of the defendant."
[6] We cannot agree with the defendant's final contention that the court below exceeded the bounds of propriety or went outside the record in its brief comment on the evidence. As amended in 1934, section 19 of article VI of the Constitution provides: "The court may instruct the jury regarding the law applicable to the facts of the case, and may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case. The court shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses." It is unnecessary to quote the court's statement to the jury. During its comment, the court on more than one occasion impressed upon the jury, as required by the constitutional provision, that it was the final and exclusive arbiter of questions of fact and of the credibility of the witnesses and was in no way bound by any view or opinion expressed by the court. It then proceeded to briefly narrate a few circumstances developed by the evidence and tending to militate against the defendant's contention that he loved the decedent and that the shooting was accidental. In our opinion, the comment was within the record, or inferences fairly deducible therefrom, and was warranted under the terms of the constitutional provision. No portion of such comment is an "out and out prosecutor's argument" as urged by the defendant. [7] A trial court may, under the constitutional provision, comment upon the evidence as a whole or upon the testimony or credibility of any witness *477 providing its comment is temperately and fairly made and is not argumentative or contentious to a degree which makes it characteristically an act of advocacy. Its comment is not confined to a colorless recital, by way of summing up the facts. Such a conclusion would destroy and render ineffectual the very purpose of the constitutional amendment. It is impossible to set down a hard and fast rule, each case must necessarily turn upon its own peculiar circumstances. Trial courts should, of course, be cautious in their exercise of this power with a view to protecting the rights of defendants. An examination of the Federal cases on the subject indicates that while the trial court may not direct a verdict of guilty, either directly or indirectly, it may analyze the evidence and comment and express its views with regard to the testimony of the witnesses, leaving the ultimate determination of the issues of fact fairly to the jury. The authorities are collected in a note in 95 A.L.R. 785. In People v. Talkington, 8 Cal.App.2d 75 [47 PaCal.2d 368], "the comment" of the trial court was obviously contentious in character and for all practical purposes directed the return of a verdict of guilty. The comment of the court below in the present case did not in our opinion, violate any of the defendant's rights and was fair and warranted by the evidence and the constitutional provision above quoted.
The judgment and order are, and each is, affirmed.
Seawell, J., Thompson, J., Shenk, J., Curtis, J., and Langdon, J., concurred.
|
603 P.2d 1103 (1979)
93 N.M. 646
Douglas ARAGON and Robert Aragon, Plaintiffs-Appellants,
v.
Ronald BROWN and Marion Brown, Defendants-Appellees.
No. 3965.
Court of Appeals of New Mexico.
November 1, 1979.
Stephen A. Hubert, Martin, Martin, Lutz & Cresswell, P.A., Las Cruces, for plaintiffs-appellants.
Edward E. Triviz and John L. Campbell, Las Cruces, for defendants-appellees.
OPINION
WALTERS, Judge.
Douglas Aragon, age 17, was bitten by defendants' St. Bernard dog while visiting *1104 at their home. The injury required 320-375 sutures to close the wound. Suit was brought to recover damages of $100,000 for personal injuries to Douglas and for $4000 in medical expenses incurred by his father. The jury returned a verdict for defendants. Plaintiffs appeal on grounds that the jury was improperly instructed; defendants cross-appeal contesting the trial court's denial of their motions for directed verdict, and the court's refusal of their tendered jury instruction regarding unlawful use of liquor by a minor.
The Aragons contend the district court erred by giving instructions on negligence, contributory negligence, and trespass. They argue that the only proper instruction was UJI No. 5.3, which states:
UJI Civ. 5.3 Liability of owner or keeper of dog.
In order for the owner of a dog to be liable to a person injured, the burden of proof is on the plaintiff to establish that the dog was vicious or had a natural inclination or tendency to be dangerous and that the owner had knowledge thereof.
In determining the character of the dog, you may consider evidence of the general reputation of the dog, as well as evidence of any prior acts and conduct of the dog.
In determining the knowledge of the owner, you may consider evidence of the manner in which the owner maintained the dog, his knowledge of prior acts and conduct of the dog, and any previous warnings issued to others by the owner.
("The owner of such a dog is not liable to the person injured if the injured person has knowledge of the character of the dog and wantonly excites it or voluntarily and unnecessarily puts himself in the way of the dog.")
N.M.R.Civ.P. 51D, N.M.S.A. 1978 (Special Supp. 1979), formerly N.M.R.Civ.P. 51(1)(c), N.M.S.A. 1978, makes use of UJI 5.3 mandatory. The instruction states the entire law of liability and relief from liability in connection with dog-bite injuries, instructing the jury that it must first find the dog to be dangerous and that the owner knew it. The instruction allows the jury to determine the nature of the dog, good or bad, from its general reputation and from evidence of other acts or conduct. Means of determining the knowledge of the owner are set out, and any defenses available to the owner are provided in the last paragraph. UJI 5.3 encompasses all the necessary elements of determining liability or non-liability in dog-bite cases. Thus, it was error for the district court to give jury instructions on the issues of negligence and contributory negligence. False issues were injected, and the erroneous instructions could only have confused the jury. State ex rel. State Highway Comm'n v. Atchison, T. & S.F. Ry. Co., 76 N.M. 587, 417 P.2d 68 (1966).
The court's instruction on the issue of trespass was also erroneous. There was insufficient evidence to establish a trespass situation. Douglas had been invited to the Brown premises, and his entry into the back yard from the Brown residence would not constitute a trespass in absence of any express limitation of his visit to a specific area of the Brown residence or grounds. This instruction raised an additional false issue. Kight v. Butscher, 90 N.M. 386, 564 P.2d 189 (Ct.App. 1977).
Appellee asked for an instruction on the unlawfulness of giving beer to a minor. There was no evidence that Douglas's possession or consumption of beer at the Brown residence, in violation of § 60-10-16, N.M.S.A. 1978, was in any way the proximate cause of his injuries. Moreover, an instruction on violation of the liquor statute could only have gone to the issue of contributory negligence and we have already ruled that no contributory negligence instructions shall supplement UJI 5.3 in dog-bite cases. Appellee's argument on the Court's refusal to so instruct the jury is without merit.
Because this case is reversed for a new trial, we address plaintiff's objection to the limitation on recoverable damages declared by the trial court.
*1105 The district court ruled that if plaintiff prevailed, defendants would be entitled to a credit of $1000 already paid by their insurance company under the medical payments provision of their policy, against any damages awarded. "Compensation received from a collateral source does not operate to reduce damages recoverable from a wrongdoer." Trujillo v. Chavez, 76 N.M. 703, 708, 417 P.2d 893, 897 (1966). This rule has been applied where an injured plaintiff received reimbursement from her own insurer for medical expenses, Selgado v. Commercial Warehouse Company, 86 N.M. 633, 526 P.2d 430 (Ct.App. 1974); where a plaintiff received sick leave pay from her employer, Trujillo, supra. Martinez v. Knowlton, 88 N.M. 42, 536 P.2d 1098 (Ct.App. 1975); where the injured party received public assistance, Mobley v. Garcia, 54 N.M. 175, 217 P.2d 256 (1950); and where an injured passenger received compensation under the medical payments provision of her driver's (co-plaintiff's) insurance policy, Bailey v. Jeffries-Eaves, Inc., 76 N.M. 278, 414 P.2d 503 (1966). But whether the collateral source rule applies to payments made to a plaintiff under the medical payments provisions of defendant's insurance policy is a question of first impression in this jurisdiction.
It is the well-reasoned and majority rule that where the benefits derive from the defendant himself or a source identified with him, he is entitled to credit for it, since there is no collateral source but only funds provided by the defendant. E.g., Overturff v. Hart, 531 P.2d 1035 (Okl. 1975); Yarrington v. Thornburg, 58 Del. 152, 205 A.2d 1 (1964); Feeley v. United States, 337 F.2d 924 (3d Cir.1964); Restatement of Torts, 2d § 902(A); Dobbs, Law of Remedies (1973), 185, 583-584. The trial court was correct, and if plaintiffs recover when this case is retried, any damages awarded shall be reduced by insurance payments already received from defendant's insurer.
This case is reversed and remanded for a new trial consistent with this opinion.
IT IS SO ORDERED.
HENDLEY and ANDREWS, JJ., concur.
|
People v McEachern (2017 NY Slip Op 02134)
People v McEachern
2017 NY Slip Op 02134
Decided on March 23, 2017
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 23, 2017
Tom, J.P., Friedman, Mazzarelli, Kapnick, Kahn, JJ.
3469 640/14
[*1]The People of the State of New York, Respondent,
vRobert McEachern, Defendant-Appellant.
Green & Willstatter, White Plains (Theodore S. Green of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Noah J. Chamoy of counsel), for respondent.
Judgment, Supreme Court, Bronx County (April A. Newbauer, J.), rendered July 7, 2016, convicting defendant, after a jury trial, of reckless endangerment in the second degree and prohibited use of weapons (eight counts), and sentencing him to a conditional discharge for a period of one year, with a $1,000 fine and community service, unanimously affirmed.
Defendant's legal sufficiency claim relating to his reckless endangerment conviction is unpreserved (see People v Hines, 97 NY2d 56, 61 [2001]), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence with regard to any of the charges (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determination that shots were fired by defendant, and not the driver of the car in which defendant was riding. Defendant's creation of a risk of, at least, serious physical injury was abundantly established by evidence that, while in an intoxicated state, he fired a pistol out of the window of a moving car eight times while in a densely populated area. The record fails to support defendant's assertion that the shots were fired in a manner that was unlikely to injure anyone.
The court providently exercised its discretion in admitting a sufficiently authenticated video recording showing footage obtained from two surveillance cameras (see generally People v Patterson, 93 NY2d 80, 84-85 [1999]). The driver testified that he was able to recognize his own car in the video, and the totality of the evidence provided by the driver and the police lieutenant who obtained the videotape supported the inference that it was taken at the relevant time and place. The court's instructions provided the jury with suitable guidance regarding the videotape, and, in the circumstances presented, the alleged uncertainty about whether the videotape depicted the events at issue went to the weight to be accorded the evidence rather than its admissibility. In any event, we find that any error in admitting the video, stills therefrom, and related testimony was harmless (see People v Crimmins, 36 NY2d 230 [1975]).
Defendant contends that, in summation, the prosecutor mischaracterized testimony about whether defendant and his friend, the man driving the car at the time of the shooting, were "horsing around" when defendant fell into some trash cans shortly before the incident, or whether the friend flung defendant into the trash cans. Defendant further contends that the prosecutor's argument that the friend would not have had time in which to fire shots out of his window while driving the car was unsupported by evidence. However, we find that these comments were supported by the testimony, and that any impropriety was not so egregious as to deprive defendant of his right to a fair trial (see People v D'Alessandro, 184 AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).
Defendant did not preserve his remaining challenges to the prosecutor's summation, or his challenges to evidence regarding the police patrol guide and related disciplinary procedures, [*2]and to the court's charge, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 23, 2017
CLERK
|
242 F.2d 1
Rayford J. WRIGHT and National Surety Corporation, Intervenor, Appellants,v.LUMBERMEN'S MUTUAL CASUALTY COMPANY, Appellee.
No. 16066.
United States Court of Appeals Fifth Circuit.
February 27, 1957.
Rehearing Denied April 12, 1957.
Edward Dubuisson, Dubuisson & Dubuisson, Opelousas, La., for plaintiff-appellant.
A. V. Pavy, Opelousas, La., for National Surety Corporation, intervenor-appellant.
H. L. Hammett, New Orleans, La., Hammett & Bertel, New Orleans, La., for appellee.
Before BORAH, TUTTLE and CAMERON, Circuit Judges.
BORAH, Circuit Judge.
1
The question involved on this appeal is whether the District Court committed error in dismissing the action for want of prosecution. For a clear understanding of the problem at hand, it would appear in order that we set forth in brief the events leading up to the judgment of dismissal.
2
This action was brought in the District Court for the Western District of Louisiana solely on the grounds of diversity of citizenship. Rayford J. Wright, on March 25, 1948, instituted it there when he filed suit under the Louisiana Direct Action Statute, LSA-R.S. 22:655, against the New Amsterdam Casualty Company, the insurer of Pierson Construction Company, to recover damages for personal injuries sustained by him as a result of the insured's alleged negligence. Following the institution of suit, National Surety Corporation, the workmen's compensation insurance carrier for plaintiff's employer, intervened to assert its subrogation claim for recovery of an amount which it had paid to plaintiff. The defendant filed its answer to the complaint on June 2, 1948, and to the intervention on September 13, 1948, but no further steps were taken in the prosecution of the suit for almost six years. On July 8, 1954, the district judge entered the following order: "This action having been filed on March 25, 1948, no forward steps in its prosecution having been taken for more than three years; and in order to clear the docket of this Court; it is ordered, adjudged and decreed that this action be and it is hereby dismissed. If good cause be shown, within ten (10) days from this date, this action may be reinstated upon the docket of this Court."1 Thereafter and on July 16, the Court by letter-order to the Clerk reinstated the cause on the docket and recalled its previous order of dismissal. Approximately eight months after the case had been reinstated on the docket, the defendant filed a supplemental answer and a motion to dismiss, alleging in both pleadings the common ground that plaintiff's cause of action and demand were prescribed under the laws of Louisiana, and more particularly under LSA-Civil Code Articles 3519 and 3536, inasmuch as more than five years had elapsed without any steps having been taken in the prosecution of the demand. The motion was granted and judgment entered dismissing the action without prejudice on the ground that the Court was bound, under Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, to apply Article 3519 of the LSA-Civil Code, and to strike the case from the docket since five years had elapsed without the plaintiff's having taken any steps in the prosecution of the cause.2 This appeal followed.
3
Appellant rightly concedes that the court would have had the discretionary power to dismiss the suit for failure to prosecute either under its inherent powers which the court may exercise on its own motion, or pursuant to a motion filed under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. but vigorously insists that the court erred in refusing to exercise its discretionary powers and in holding that it was bound to dismiss under state law.
4
This argument, we think, is predicated in part upon appellant's assumption that the motion invoked the exercise of the court's discretion, whereas, and as the trial court correctly found, all that was presented for the court's decision was whether the court was bound to apply the applicable law of Louisiana which declares that a suit must be considered as abandoned if no steps in the prosecution thereof are taken for five years. However, we do agree with appellant that the court erred as a matter of law in granting the motion on the ground that the governing principles enuniciated in Guaranty Trust Co. of New York v. York, supra, required the application of Article 3519, "an integral part of the statute of limitations," by a federal court sitting in Louisiana. We do not think that the Guaranty Trust case or Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520, on which the District Court also relied, either required or contemplated this result. All that was held in Guaranty Trust was that a federal court adjudicating a state-created right in a diversity case cannot afford recovery if a state statute of limitations would have barred recovery had the suit been brought in a court of the state. In the Ragan case, the state statute invoked by the defendant was clearly an "integral part of the statute of limitations" in that it required actual service of summons on the defendant within the prescriptive period to effectuate a legal interruption of prescription. And the Supreme Court, following Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and Guaranty Trust Co. of New York v. York, supra, there pointed out that inasmuch as the cause of action sued upon was created by local law, it accrues and comes to an end when local law so declares, and that consequently in a diversity case a federal court "must follow suit." Accordingly, the court held that recovery must be denied since service had not been made in the federal suit prior to the running of the limitation period.
5
While in the instant case it is true that Articles 3516 through 3520 of the LSA-Civil Code, which treat "Of The Causes Which Interrupt Prescription," must be read in pari materia, it by no means follows that Article 3519 affects the cause of action or that it is "an integral part of the state statute of limitations" within the meaning of the Guaranty Trust and Ragan cases. And we think this conclusion is fully warranted, for the Louisiana decisions interpreting the article clearly hold that a dismissal for want of prosecution does not affect the cause of action and constitutes no bar to a subsequent suit on the same cause of action. Charbonnet v. State Realty Company, 155 La. 1044, 99 So. 865; Losch v. Greco, 173 La. 223, 136 So. 572; Seligman v. G. A. Scott & Bro., 17 La.App. 486, 134 So. 771. In other words and as was stated in Losch v. Greco, supra [173 La. 223, 136 So. 573], "the abandonment which results as a legal consequence of a plaintiff's failure to take any action in his suit during a period of five years merely bars his right to continue with the prosecution of that suit. It does not prevent his bringing another suit for the same cause of action; but, if he brings another suit for the same cause of action, the question whether his right of action is barred by prescription must be determined as if no suit had been theretofore brought."
6
In the light of the foregoing, it follows that the District Court erred in dismissing the action.
7
Reversed.
Notes:
1
In its memorandum opinion, the Court stated that after entry of the July 8, 1954 order dismissing the suit, plaintiff's attorney wrote a letter to the Court requesting that the case be reinstated, but that letter does not appear in the record on this appeal
2
The District Court's opinion is reported in 134 F.Supp. 715, 717
|
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2433
PETER J. KAUFFMAN,
Plaintiff-Appellant,
v.
FEDERAL EXPRESS CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02-4068—Michael M. Mihm, Judge.
____________
ARGUED FEBRUARY 7, 2005—DECIDED OCTOBER 18, 2005
____________
Before ROVNER, WILLIAMS, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Peter Kauffman came down with
bronchitis and missed three days of work. When he re-
turned to his job and asked that his absence be excused
under the Family and Medical Leave Act of 1993 (FMLA),
29 U.S.C. §§ 2601-54, his employer, Federal Express
Corporation (FedEx), denied the request and then fired him
because the lost days pulled his overall attendance record
below company standards. Kauffman sued, claiming that
FedEx, by terminating him, interfered with his substantive
rights and entitlements under the FMLA and violated the
Act’s anti-discrimination (or anti-retaliation) provisions.
The district court granted summary judgment for FedEx.
2 No. 04-2433
We vacate and remand. In short, this case turns on whether
Kauffman was entitled to FMLA leave on the missed days
and whether, in deciding that question, the district court
misread a medical certification Kauffman submitted to
FedEx to establish his entitlement.
I.
The essential facts are undisputed. For nearly 18 years
Kauffman delivered packages for FedEx in East Moline,
Illinois. By the end of December 2001 he had accumulated
two recent disciplinary “strikes,” one for unprofessional
conduct and the other for violating the company’s vehicle
accident policy. FedEx policy allows management to ter-
minate an employee who incurs three strikes in a 12-month
period.
Then, on January 2, 3, and 4, 2002, Kauffman called in
sick. Because he was not scheduled to work on January 5 or
6, he returned to work on January 7. That morning before
his shift began, Kauffman encountered his immediate
supervisor, Tim Crownover. He gave the supervisor a note
dated January 2 from his physician, David Seitz. The note
stated that Kauffman “may return to work/school on: 1-3-
02.” After receiving the note, Crownover recommended that
Kauffman apply for FMLA leave and gave Kauffman what
the supervisor said were the forms necessary to submit a
FMLA request, which Crownover told Kauffman had to be
done within 15 days. Later that same day, Crownover
realized that the paperwork he handed Kauffman was
incorrect, and so he slipped the right forms into Kauffman’s
office mailbox. Kauffman received those forms at six o’clock
the evening of January 7. Qualifying for FMLA leave was
critical to Kauffman under FedEx’s “no fault” attendance
policy; unless his three missed days were excused, he would
earn a third strike for letting his attendance rate dip below
No. 04-2433 3
the 96.9% minimum during a 12-month period.
The next day, January 8, Kauffman kept a scheduled
appointment with Dr. Seitz and asked him to complete the
form “Certification of Health Care Provider” created by
FedEx for FMLA requests. The form, similar to the model
form WH-380 promulgated by the Department of Labor, see
29 C.F.R. § 825.306(a) & (b), directs the provider to catego-
rize the employee’s condition by choosing among a series of
check boxes. The doctor, however, did not check any box but
instead wrote “bronchitis” on a line next to the box corre-
sponding to the following generic description: “Incapacity of
more than three (3) days due to a serious health condition
that also involves treatment two or more times by a health
care provider (HCP) or treatment by a HCP on one occasion
which results in a regimen of continuing treatment.” The
doctor also noted that a second appointment had been
necessary on January 8, that Kauffman could not work at
all, and that leave was required for Kauffman’s absences.
Finally, in response to a form question directing the
provider to state both the “date the condition commenced”
and “the probable duration of the condition,” Dr. Seitz wrote
simply “1-1-2002.” Kauffman placed the completed form on
his supervisor’s desk.
On the morning of January 22, the fifteenth day after
giving Kauffman the FMLA paperwork, Crownover asked
Kauffman for the completed “Certification of Health Care
Provider.” Kauffman replied that he “turned it in” earlier
and offered to go home and get the supervisor another
copy or have the doctor fax one, but Crownover refused to
wait and instead fired Kauffman on the spot. Crownover
told Kauffman that his FMLA leave request was being
denied as untimely because he did not have the certification
in hand, and that as a consequence of the unexcused
absence Kauffman would incur a third strike, this time
for poor attendance. Crownover then handed Kauffman two
letters dated that day, one confirming the third strike based
4 No. 04-2433
on Kauffman’s attendance falling below the minimum, and
the second terminating his employment because he now had
three strikes within a 12-month period.
Kauffman appealed his termination through FedEx’s in-
ternal procedures. During this process FedEx abandoned its
position that Kauffman’s certification was untimely. Now,
however, the company asserted that the certification was
inadequate and thus upheld the denial of FMLA leave and
consequently the third strike and termination. Kauffman
replied to the new basis for dismissal with an addendum
from Dr. Seitz clarifying that his illness continued from
January 2 through January 8 and required his absence
from work. FedEx refused to consider the addendum.
Having lost his appeal, Kauffman filed suit alleging that
FedEx interfered with his rights under the FMLA by firing
him instead of granting leave due. Kauffman also alleged
“discrimination,” asserting that FedEx fired him “because
he exercised his right to seek FMLA leave.”
FedEx moved for summary judgment. Despite having
admitted in the internal appeal that Kauffman’s FMLA
paperwork was not untimely, FedEx argued in its summary
judgment motion that it gave Kauffman 15 days to submit
his paperwork but he failed to meet the deadline. Without
record citation, FedEx explained that its policy implement-
ing the 15-day rule was to require the return of forms no
more than 360 hours (15 multiplied by 24 hours) after they
were given to the employee. Crownover gave the paperwork
to Kauffman at 7:30 on the morning of January 7, so the
company expected the forms back by the same time on
January 22. FedEx argued alternatively that the certifica-
tion Kauffman submitted was inadequate to qualify him for
FMLA leave. The company insisted that Kauffman pro-
duced no evidence of discrimination or retaliatory dis-
charge.
In response to FedEx’s motion, Kauffman submitted his
No. 04-2433 5
own testimony that he left the paperwork in Crownover’s
office on January 10, and he also produced verification that
his lawyer sent a copy of the required paperwork
via facsimile a little after five o’clock on January 22.
More to the point, Kauffman adduced evidence that
FedEx itself determined that he was on time with his
paperwork. For example, a document prepared by a FedEx
human resources employee, James A. Mika, summarizes
Kauffman’s internal appeal and concludes that “the decision
to terminate Peter was based incorrectly on the time frame
in which Peter had to submit the certificate of health care
provider form.” Another e-mail distributed among FedEx
managers states that FedEx considered reinstating
Kauffman before deciding to uphold the termination on
alternate grounds.
Additionally, Kauffman submitted other e-mails ex-
changed between station managers that show he was
disliked and that managers conspired to use his absence
as an excuse to fire him. As to the first point, one e-mail
characterized Kauffman as an argumentative employee
with a propensity for “nitpicking, badgering & finger
pointing . . . and for making non-factual, false, malicious,
slanderous statements.” As to the second, correspondence
showed that when Kauffman turned up missing for work,
managers agreed to provide him with paperwork to ap-
ply for FMLA leave. But they anticipated that he would
be late with the paperwork and planned to terminate him
should that occur. The managers discussed the importance
of following the FMLA strictly by “dotting their i’s and
crossing their t’s” to ensure that the firing would stick.
When granting summary judgment for FedEx, the district
court focused on the document that lies at the heart of the
case, the health-care provider’s certification that Kauffman
provided to FedEx to establish his entitlement to FMLA
leave. The court reasoned that the certification establishes
that Kauffman did not have a serious health condition
6 No. 04-2433
qualifying him for leave. According to the court,
Dr. Seitz—by replying with just the single date “1-1-02” to
the form’s compound instruction to “[s]tate the approximate
date the condition commenced and the probable duration of
the condition”—was certifying that Kauffman had been
incapacitated for only one day, not the more than three days
required by the statute. Any other reading, the court
explained, would be inconsistent with the note from the
doctor’s office stating that Kauffman could return to work
on January 3. Moreover, the district court refused to
consider the amended certificate from Dr. Seitz that
Kauffman submitted because FedEx did not have it when
making its employment decision. And although acknowledg-
ing that it was bound to find that Kauffman had timely
submitted his paperwork, the court reasoned that any error
FedEx made in this regard was harmless since Kauffman
did not qualify for leave under the FMLA.
Next, the court decided that the e-mails by Kauffman’s
superiors, although revealing an intent to fire him should
he fail to submit FMLA forms, could not prove discrim-
inatory animus for taking FMLA leave. The court explained
that the e-mails evidenced dislike for Kauffman, but there
was no indication that the dislike was on account of opposi-
tion to the company’s FMLA practices or because of taking
leave. The court concluded that there was nothing wrong
with an employer firing an employee for absences if the
employee is not entitled to FMLA leave, so the “real ques-
tion” in the case was simply whether Kauffman was entitled
to that leave. Since in the court’s view he was not, that was
the end of the matter.
No. 04-2433 7
II.
On appeal Kauffman once again maintains that, by ter-
minating him, FedEx interfered with his substantive rights
under the FMLA and discriminated against him
for exercising those rights. Under the FMLA, eligible
employees are entitled to 12 weeks unpaid leave per year
for various reasons, including a “serious health condition”
rendering the employee unable to perform his or her job. 29
U.S.C. § 2612(a)(1)(D); Byrne v. Avon Prods., Inc., 328 F.3d
379, 381 (7th Cir. 2003); Stoops v. One Call Commc’ns, Inc.,
141 F.3d 309, 312 (7th Cir. 1998). To ensure this entitle-
ment, the Act makes it “unlawful for any employer to
interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided,” 29 U.S.C.
§ 2615(a)(1); Nev. Dep’t of Human Res. v. Hibbs, 538 U.S.
721, 724-25 (2003); Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 87 (2002); King v. Preferred Tech. Group, 166
F.3d 887, 891 (7th Cir. 1999), including the right to rein-
statement upon return from leave, 29 U.S.C. § 2614(a);
King, 166 F.3d at 891. In addition to these substantive
provisions, the FMLA makes it “unlawful for any employer
to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by
this subchapter.” 29 U.S.C. § 2615(a)(2). Similarly, the Act
makes it unlawful for any employer to “discharge” or
“discriminate” against anyone for taking part in proceedings
or inquiries under FMLA. Id. § 2615(b). We have construed
these last provisions to create a cause of action for retalia-
tion. See id. § 2615(a)(1), (2); Buie v. Quad/Graphics, Inc.,
366 F.3d 496, 503 (7th Cir. 2004); King, 166 F.3d at 891.
With these rules in mind, we first clarify that Kauffman’s
case is really about interference with his substantive rights,
not discrimination or retaliation. A claim under the FMLA
for wrongful termination can be brought under either a
discrimination/retaliation or interference/entitlement
theory; the difference is that the first type of claim requires
8 No. 04-2433
proof of discriminatory or retaliatory intent while the latter
requires only proof that the employer denied the employee
his or her entitlements under the Act. Smith v. Diffee Ford-
Lincoln-Mercury, Inc., 298 F.3d 955, 960-61 (10th Cir.
2002); Bachelder v. Am. West. Airlines, 259 F.3d 1112, 1122-
26 (9th Cir. 2001); King, 166 F.3d at 891; Diaz v. Fort
Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997).
Here, Kauffman points to no evidence of discriminatory or
retaliatory animus. Viewing the record in the light most
favorable to Kauffman, the nonmoving party, FedEx
managers wanted to get rid of him because they thought he
was argumentative and a troublemaker, so they pounced on
a chance to fire him. But they did so in spite of his rights
under the FMLA, not because he asserted those rights. In
other words, they did not seek to punish him for exercising
rights or opposing an unlawful procedure; they did not even
treat him differently than someone not entitled to FMLA
leave. Cf. Diaz, 131 F.3d at 713. But whether Kauffman
produced evidence of discriminatory or retaliatory animus
is “not fatal” to his case. See Diffee Ford-Lincoln-Mercury,
Inc., 298 F.3d at 960-61; Diaz, 131 F.3d at 713. What is at
stake here is a claim for wrongful discharge, and Kauffman
may recover damages or equitable relief for that claim
under 29 U.S.C. § 26171 on either an
interference/entitlement or a discrimination/retaliation
theory. See Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d at
960-61.
Indeed, when we focus on the proper inquiry in this case,
i.e., whether FedEx “respected” Kauffman’s “entitlements,”
1
Damages and relief under § 2617 for violations of section § 2615
include: lost wages, other compensatory damages, interest,
liquidated damages, equitable relief such as reinstatement, and
in some cases, attorneys’ fees. 29 U.S.C. § 2617(a)(1), (3). Section
2617 draws no distinction between interference/ entitlement and
discrimination/retaliation claims.
No. 04-2433 9
see Diaz, 131 F.3d at 713, we conclude that Kauffman
produced enough evidence to press forward with his case
and win it. Here, FedEx concedes that it fired Kauffman for
missing work in January. Since it is undisputed that FedEx
fired Kauffman because he was absent, the outcome turns
on the narrow question of Kauffman’s entitlement to FMLA
leave. See Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1018
(7th Cir. 2000). Furthermore, both parties agree that
entitlement here—since there is no question that FedEx is
a covered employer or Kauffman an eligible
employee—depends only on the adequacy of Kauffman’s
certification of a serious health condition qualifying for
leave, that is, whether he turned his paperwork in on time
and whether that paperwork was sufficient to certify a
serious health condition qualifying for FMLA leave.
As to the first point, FedEx inexplicably has persisted
throughout this litigation in arguing that Kauffman did not
turn his paperwork in on time. Yet the argument is frivo-
lous. Because Kauffman claimed an unforeseeable, serious
health condition, he had “15 calendar days after the em-
ployer’s request” to submit certification from his physician.
See 29 C.F.R. § 825.305(b); Rager v. Dade Behring, Inc., 210
F.3d 776, 777 (7th Cir. 2000) (explaining that an employer
may require certification, but if the health condition was
“unforeseeable,” the employee must have “at least 15
calendar days in which to submit it”). Indeed, FedEx itself
determined during the internal appeal that Kauffman had
submitted the paperwork in that time frame. For his part
Kauffman testified that he turned in the paperwork on
January 10, which is not seriously in dispute and in any
event is enough to survive summary judgment. But what
seals the matter is that FedEx admits that Crownover
refused to accept another form on January 22 before firing
Kauffman and concedes that Kauffman’s lawyer faxed a
copy of the certification to Crownover just after five that
afternoon. The regulation states that Kauffman was
10 No. 04-2433
entitled to “15 calendar days after the employer’s request,”
29 C.F.R. § 825.305(b), so he had the full day of January 22
to submit the paperwork. Even if we were to accept FedEx’s
rule that he had just 360 hours after receiving the forms,
Kauffman did not receive the correct form until six o’clock
on January 7 and thus had until six o’clock on January 22.
Since Crownover was the one who demanded the form, he
was unquestionably the correct recipient.
Thus, we turn to the central issue in this case, whether
Kauffman’s doctor’s certification was adequate to estab-
lish his entitlement to FMLA leave. Here, Kauffman argues
that the district court erred in reading the certification
because the doctor did certify an incapacity lasting more
than three days owing to a serious health condition requir-
ing at least two treatments. Even if the certification was
incomplete, Kauffman argues, FedEx was required by
regulations to give him an opportunity to cure it.
A “serious health condition” includes an illness resulting
in more than three days of incapacity and requiring treat-
ment at least two times by a health-care provider. 29 U.S.C.
§ 2611(11); 29 C.F.R. § 825.114(a)(2)(i)(A); Price v. City of
Fort Wayne, 117 F.3d 1022, 1024 (7th Cir. 1997). Therefore,
when an employee requests leave for such a condition, the
employer may request certification by the employee’s
health-care provider. 29 U.S.C. § 2613(a); Rager, 210 F.3d
at 777. That certification is sufficient if it provides the date
the serious health condition began, its probable duration,
relevant medical facts, and a statement that the employee
is unable to work. 29 U.S.C. § 2613(b); 29 C.F.R. § 825.306.
Under the regulations, if the employer “finds a certification
incomplete,” it must “provide the employee a reasonable
opportunity to cure any such deficiency.” 29 C.F.R.
§ 825.305(d); Sorrell v. Rinker Materials Corp., 395 F.3d
332, 337-38 (6th Cir. 2005); Miller v. AT & T Corp., 250
F.3d 820, 836 (4th Cir. 2001).
No. 04-2433 11
Here, we cannot agree with the district court that
Kauffman’s papers amounted to a “negative certification,”
that is, an affirmative statement by Dr. Seitz that
Kauffman’s incapacity lasted less than three days. Although
Dr. Seitz did not put a checkmark in any of the boxes to
categorize Kauffman’s condition, he did write the word
“bronchitis” next to the box for “incapacity of more than
three (3) days due to a serious health condition that also
involves treatment two or more times by a health care
provider (HCP).” We will not split hairs over the obvious.
Writing “bronchitis” next to the box was the equivalent
of checking it. Therefore, the doctor did certify that
Kauffman had bronchitis resulting in an incapacity of more
than three days, requiring at least two doctor’s visits. As for
the doctor’s response, “1-1-2002,” to the question about
when the condition began and how long it would probably
last, the only logical conclusion is that the doctor answered
when the condition commenced but omitted its duration. In
fact, contrary to the district court’s view, this reading is the
only one consistent with the note that Kauffman gave
Crownover on his return. As mentioned above, that note
was dated January 2 and stated that Kauffman could
return to work on January 3, so the doctor cannot have
meant that the condition began and ended on January 1.
Moreover, if the condition began and ended on January 1,
which FedEx admitted at oral argument was a holiday
when Kauffman did not have to work, why even fill out the
form? In any event the district court was wrong to conclude
that FedEx could rely on the note—written prior to the
certification form—as a “negative certification” to FedEx
that the condition did not last at least three days. The
doctor wrote that note without the advantage of a few more
days’ knowledge of the course of the illness. So his later,
fully informed certification that the incapacity lasted for
more than three calendar days obviates any seeming
conflict between the two documents. After all, “nothing in
the Act or regulations limits the employee’s ability to
12 No. 04-2433
produce a medical opinion that contradicts a prior negative
certification originally provided by the employee.” Stoops,
141 F.3d at 313. Considering that Crownover himself
suggested Kauffman apply for FMLA leave upon receiving
the January 2 note, FedEx could hardly turn around and
say that it had relied on the note as a “negative certifica-
tion.”
More to the point, the doctor’s certification provides
enough information to satisfy the statute. That form tells us
that Kauffman had bronchitis that started on January 1,
incapacitated him for more than three calendar days,
required two doctor’s visits, and kept him from being able
to work. No matter what form is used, this information is
the only information required for a sufficient certification.
See 29 U.S.C. § 2613(b); 29 C.F.R. § 825.306(b). True, we do
not know the incapacity’s exact duration, at least not until
we look at the doctor’s addendum that Kauffman submitted
and FedEx refused during his appeal. But all we really need
to know is that the incapacity, bronchitis, lasted for more
than three calendar days. In any event, a failure to include
duration in this case means at best that the form was
incomplete. FedEx could not win its case by arguing that
the form was incomplete; in that event, FedEx would have
been required to, but did not, notify Kauffman and give him
the opportunity to cure the deficiency, see 29 C.F.R.
§ 825.305(d); Sorrell, 395 F.3d at 336-37; Miller, 250 F.3d at
836. Indeed, when FedEx belatedly challenged Kauffman’s
certification, it refused to accept his addendum, so any
argument by FedEx that the certification was incomplete
would simply spotlight an even clearer case of liability.
Accordingly, we vacate the judgment of the district court
and remand for proceedings consistent with this opinion. It
is for the district court to determine what material issues,
if any, remain for trial.
VACATED AND REMANDED.
No. 04-2433 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-18-05
|
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0311n.06
Case No. 18-3721
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 19, 2019
SUSANA NOEMI LOPEZ-ARIAS; KELLY )
DEBORAH S. HUNT, Clerk
BERENICE MOLINA-LOPEZ; TANNIA )
MARCELA MOLINA-LOPEZ; MARTA )
ALICIA LOPEZ DE BORJA; MASSIEL )
BORJA-LOPEZ, )
) ON PETITION FOR REVIEW
Petitioners, ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
v. ) APPEALS
)
WILLIAM P. BARR, Attorney General, )
)
Respondent. )
BEFORE: SUTTON, BUSH, and LARSEN, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Susana Lopez-Arias, Kelly Molina-Lopez, Tannia
Molina-Lopez, Marta Lopez de Borja, and Massiel Borja-Lopez (collectively “Petitioners” or “the
Lopez Family”)1 petition for review the order of the Board of Immigration Appeals (“Board” or
“BIA”) denying their applications for asylum and withholding of removal. Because the Board
committed no error of law and its determination is supported by substantial evidence in the
administrative record, we DENY the petition for review.
1
Petitioners refer to themselves by their first names when referring to facts unique to each person, and so we will do
the same.
Case No. 18-3721, Lopez-Arias v. Barr
I. BACKGROUND
The Lopez Family are citizens and nationals of El Salvador and arrived in the United States
at various times: Tannia, on September 25, 2015; and Susana, Kelly, Marta, and Massiel, on May
2, 2016. Shortly after arrival, each was placed in removal proceedings with the Department of
Homeland of Security (“DHS”). The DHS charged Susana, Kelly, Marta, and Massiel with
inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i)(I) and charged Tannia with inadmissibility
under 8 U.S.C. § 1182(a)(6)(A)(i). Petitioners conceded their respective removal charges and
subsequently filed an application for asylum, for withholding of removal, and for withholding of
removal under the Convention Against Torture (“CAT”).
The immigration judge (“IJ”) heard testimony and received evidence on April 13, 2017,
and on June 28, 2017, issued an order denying Petitioners their requested relief. Petitioners sought
asylum and withholding of removal “based on their membership in a particular social group,
defined as ‘members of the Lopez-Arias Family in El Salvador.’” A.R. at 99. According to
Petitioners, they were persecuted by a local gang in El Salvador, Barrio 18, after the family opened
a local seafood restaurant. Members of Barrio 18 demanded money and free meals, and would
make death threats if the Lopez Family did not comply with their demands. The gang made it
clear that they knew where the family lived and their daily schedules. Tannia tried reporting these
threats to the local police, but she was told not to expect much of a response. After these threats
continued for some time, the family sold the restaurant, and Tannia went to the United States in
the early fall of 2015. Susana, Kelly, Marta, and Massiel, however, remained in El Salvador.
Even though the family sold the restaurant, the threats did not cease. Members of the gang
MS-13 threatened the remaining members of the Lopez Family in belief that the family could
receive money from their relatives in the United States. As an example, Susana was told to pay
2
Case No. 18-3721, Lopez-Arias v. Barr
“$700.00 in exchange for her life and the lives of her sister and their children.” A.R. at 99. After
the Lopez Family was unable to pay, MS-13 then expanded their threats by contacting a brother
of Petitioners living in the United States and sending him photos of his nieces and nephews in El
Salvador. No member of the family reported the MS-13 threats to the El Salvadoran police, and
in early March 2016, they left El Salvador to journey to the United States.
Upon review of the evidence, the IJ concluded that Petitioners were not entitled to asylum
because the threats and extortion demands did not amount to persecution, there was no evidence
of a nexus between their claimed social group and the harm they feared, Petitioners did not
demonstrate that the El Salvadoran government was unable or unwilling to control Barrio 18 or
MS-13, and Petitioners did not meet their burden to show that there is a pattern or practice of
persecution in El Salvador against their claimed social group. The IJ further held that Petitioners
were not entitled to withholding of removal because they failed to demonstrate a well-founded fear
of persecution based on a protected ground and that Petitioners were not entitled to relief under
the CAT because they did not show it was more likely than not that the El Salvadoran government
would ignore or acquiesce to torture.
Petitioners appealed the IJ’s determination, and on July 3, 2018, the Board affirmed the
IJ’s judgment. The Board concluded that the IJ “permissibly determined that the harm the
respondents suffered and fear lacks a nexus to their claimed particular social group,” even
assuming “that it was (or will be) severe enough to qualify as ‘persecution.’” A.R. at 5. The Board
found “no clear error” in the determination that the Lopez Family’s identity “was at most incidental
or tangential to the ‘central reason’ that motivated the criminals to extort and threaten them, i.e.,
their perceived wealth, either as business owners or as relatives of persons visiting from the United
States.” Id. Because the nexus determination was fatal to Petitioners’ request for asylum, the
3
Case No. 18-3721, Lopez-Arias v. Barr
Board also concluded that it was fatal to Petitioners’ request for withholding of removal. And
lastly, regarding Petitioners’ application for relief under the CAT, the Board concluded that
Petitioners forfeited their challenge to that aspect of the IJ’s decision.
This timely petition followed.
II. DISCUSSION
“Where the BIA reviews the immigration judge’s decision and issues a separate opinion,
rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision
as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citation
omitted). “To the extent the BIA adopted the immigration judge’s reasoning, however, [we] also
review[] the immigration judge’s decision.” Id. (citation omitted). We review questions of law
de novo, “but substantial deference is given to the BIA’s interpretation of the [Immigration and
Nationality Act] and accompanying regulations.” Id. (citing Morgan v. Keisler, 507 F.3d 1053,
1057 (6th Cir. 2007)). The IJ’s and the Board’s factual findings, by contrast, are reviewed under
the substantial evidence standard. Ben Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir. 2007).
Thus, the IJ’s and the Board’s factual findings “are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
To be eligible for asylum, the applicant bears the burden of proof to show that she is a
“refugee.” 8 U.S.C. § 1158(b)(1)(B)(i). To qualify as a refugee under the statute, “the applicant
must establish that race, religion, nationality, membership in a particular social group, or political
opinion was or will be at least one central reason for persecuting the applicant.” Id.; accord
Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010). The “motivation of the
persecutors involves questions of fact,” and we review those determinations under the substantial
4
Case No. 18-3721, Lopez-Arias v. Barr
evidence standard. In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007); see also Lin v.
Holder, 565 F.3d 971, 977–78 (6th Cir. 2009).
Asylum applicants who establish that their “persecutors were motivated by more than one
reason” are also protected under the act provided “they can show a nexus to a protected ground”
and the motivation was or will be a central reason for the persecution. In re J-B-N- & S-M-, 24 I.
& N. Dec. at 213; see also Al-Ghorbani v. Holder, 585 F.3d 980, 997 (6th Cir. 2009). In other
words, even though a persecutor might be motivated by the applicant’s claimed social group, that
motivation “cannot be incidental, tangential, superficial, or subordinate to another reason for
harm.” In re J-B-N- & S-M-, 24 I. & N. Dec. at 214. Indeed, an applicant is not entitled to relief
under the asylum statute where “the protected ground [played] a minor role in the alien’s past
mistreatment or fears of future mistreatment.” Id.; see also Bentacourt-Aplicano v. Sessions, 747
F. App’x 279, 284 (6th Cir. 2018).
Petitioners argue that the Board “should have analyzed this matter as one involving mixed
motives.” Pet’rs Br. at 15. According to Petitioners, the Board committed two errors. First, the
Board erred when it failed to recognize that an asylum applicant may be entitled to relief when the
persecutor is motivated by more than one reason. Second, Petitioners argue that there was
substantial evidence in the record to compel the factfinder to conclude that there was a secondary
motivation for Barrio 18 and MS-13’s alleged persecution: here, the Lopez Family’s familial ties.2
We discern no legal error in the Board’s analysis. The Board correctly acknowledged that
the asylum applicant must show that the claimed social group “was or will be at least one central
reason” for the claimed persecution. A.R. at 5. Further, the Board correctly determined that a
secondary motivation that is “at most incidental or tangential to the ‘central reason’ that motivated
2
Petitioners acknowledge that they “did not challenge the IJ’s denial of relief under the [CAT] and the Board
considered this issue waived” and are not challenging that decision “in this petition for review.” Pet’rs Br. at 3 n.1.
5
Case No. 18-3721, Lopez-Arias v. Barr
the criminals to extort and threaten them” does not entitle Petitioners to asylum. Id. Petitioners’
assertion that the Board and IJ “did not seem to contemplate” that “two motives can co-exist” is
misplaced. Pet’rs Br. at 18. Here, the Board noted that there were at least two motivations in
Petitioners’ claim but that it could not award asylum relief to Petitioners because the motivation
based on the claimed protected group was not a “central reason” for the claimed persecution as
required by the statute. Accordingly, we find that the Board did not commit legal error in its
decision.
We also find that the Board’s factual determination that Petitioners’ family identity was at
most incidental or tangential to the central reason for their claimed persecution is supported by
substantial evidence in the record. Indeed, substantial evidence in the record indicates that the
gangs targeted members of the Lopez Family as a means to access their wealth from the restaurant
or from relatives living in the United States. This finding supports a conclusion that the gangs’
motivation to extort Petitioners based on their family identity was at most incidental or tangential
to the central reason for their motivation. See Bentacourt-Aplicano, 747 F. App’x at 284 (holding
that substantial evidence existed to support finding of no nexus because mentions of family’s name
were made only in connection with robbers’ demands for money); Matter of L-E-A-, 27 I. & N.
Dec. 40, 46–47 (BIA 2017) (holding that where threats against family members are “a means to
achieve the [gang’s] objective to increase its [finances],” there is no nexus).
Petitioners concede this key point: “[T]here is substantial evidence in the record that the
MS-13 and Barrio 18 regularly employ this strategy of targeting whole families when a single
member resists their demands for money, support, or fealty.” Pet’rs Br. at 18. Thus, we find no
error in the Board’s conclusion in light of the Petitioners’ statement and the testimony from Susana
and Tannia. Susana testified: “When [Tannia] lived with her dad, he used to have a business on
6
Case No. 18-3721, Lopez-Arias v. Barr
the coast. And because of that business, [Barrio 18 members] were requesting money. . . . And
they threatened with death my daughter Tannia.” A.R. at 197. Tannia testified that she and her
father were a target because “[the gangs] assume that [by being a businessman], you can get more
earnings and more income.” A.R. at 183. In light of this testimony it would be plausible for the
factfinder to read the evidence and conclude that the persecutors targeted the Lopez Family only
to gain access to their wealth, and the record does not compel a contrary finding. Therefore,
substantial evidence in the record supports the Board’s conclusion that the gangs’ central reason
for targeting Petitioners was the family’s perceived wealth and that the gangs only incidentally
targeted Petitioners based on their family identity.
Lastly, we hold that Petitioners are not entitled to withholding of removal. “Because an
alien must meet a higher burden in establishing a right to withholding of removal than in
demonstrating asylum eligibility, an alien who fails to qualify for asylum necessarily does not
qualify for withholding of removal.” Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005) (citation
omitted).
III. CONCLUSION
For all these reasons, we DENY Petitioners’ petition for review.
7
|
67 F.3d 306
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.Frederick W. EVERTS, Plaintiff-Appellant,v.John COCHRAN, PhD, individually and in his official capacityas program consultant for the Probationary Sex OffenderTreatment Program at the Oregon State Hospital; RichardYates, individually and in his official capacity as therapysupervisor for the Probationary Sex Offender TreatmentProgram at the Oregon State Hospital; Stanley F.Mazur-Hart, PhD, individually and in his official capacityas superintendant of the Oregon State Hospital; StaceyHeyworth, individually and in her official capacity asdeputy district attorney for the County of Multnomah,Defendants-Appellees.
No. 94-36134.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 18, 1995.*Decided Sept. 22, 1995.
Before: GOODWIN, WIGGINS, and O'SCANNLAIN, Circuit Judges.
1
MEMORANDUM**
2
Frederick W. Everts, an Oregon state prisoner, appeals pro se the district court's 28 U.S.C. Sec. 1915(d) dismissal without prejudice of his 42 U.S.C. Sec. 1983 action challenging the termination of his treatment at the Oregon State Hospital and consequent revocation of his probation.
3
We review for abuse of discretion a district court's dismissal prior to service of process. Denton v. Hernandez, 504 U.S. 25, 33 (1992). We affirm the for the reasons set forth by the district court in its November 8, 1994 order dismissing the complaint.
4
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
|
In the
Missouri Court of Appeals
Western District
LESLIE RIGGS, )
)
Appellant, ) WD77363
)
v. ) OPINION FILED: August 18, 2015
)
STATE OF MISSOURI )
DEPARTMENT OF SOCIAL )
SERVICES, ET AL., )
)
Respondent. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Jack R. Grate, Judge
Before Division One: Cynthia L. Martin, Presiding Judge, Joseph M. Ellis, Judge and
James E. Welsh, Judge
Leslie Riggs ("Riggs") appeals from a trial court judgment entered in favor of the
State of Missouri Department of Social Services ("Social Services") following a trial on
her claims for disability discrimination and retaliation. Riggs also appeals from a trial
court order taxing costs against her. Riggs argues that the trial court erred: (1) in
awarding and taxing costs incurred by Social Services against her; and (2) in making
statements during voir dire and trial that demonstrated prejudice and bias against Riggs,
depriving her of a fair trial. The trial court's judgment is affirmed. Riggs's appeal of the
trial court's order taxing costs is dismissed as premature.
Factual and Procedural Background1
Beginning in August 2004, Riggs worked as a litigation attorney for Social
Services in its Independence office. Riggs was required to attend a meeting with her
supervisors in Jefferson City on October 23, 2008, to discuss her work performance.
During that meeting, her immediate supervisor unexpectedly collapsed. Riggs's
immediate supervisor was transported to the hospital and died a short time later.
Riggs was subsequently diagnosed with post-traumatic stress disorder and other
emotional disorders by a counselor. Riggs applied for extended medical leave under the
Family Medical Leave Act.2 Social Services granted her request on or about
December 12, 2008. Before her extended medical leave expired, Riggs requested
accommodations that would permit her to return to work, but she was never able to reach
an agreement regarding accommodations with Social Services and did not return to work.
Social Services ultimately dismissed Riggs from employment on April 1, 2009.
Riggs filed suit against Social Services. Her third amended petition3 alleged three
counts against Social Services: (1) disability discrimination in violation of the Missouri
Human Rights Act ("MHRA")4; (2) retaliation under the MHRA; and (3) violations of the
1
We view the facts in the light most favorable to the jury's verdict. Hayes v. Price, 313 S.W.3d 645, 648
(Mo. banc 2010).
2
29 U.S.C.A. section 2601 et seq. (West, Westlaw through P.L. 114-25).
3
The petition, first amended petition, and second amended petition do not appear in the legal file.
4
Section 213.010 et seq. All statutory references are to RSMo 2000 as supplemented unless otherwise
indicated.
2
Missouri Constitution Article I, sections 8,5 14,6 and 22(a).7 Partial summary judgment
was granted in favor of Social Services on Riggs's constitutional violation claims
approximately one month prior to trial. Trial proceeded on Riggs's MHRA claims.8
The jury returned a verdict in favor of Social Services on Riggs's MHRA claims.
The trial court entered a judgment ("Judgment") dated November 26, 2013, in favor of
Social Services in accordance with the jury's verdict. The Judgment awarded costs in
favor of Social Services and against Riggs.
On December 11, 2013, Social Services filed a memorandum of costs, attaching
various court reporter and special process server invoices and requesting that costs in the
amount of $4,539.73 be taxed against Riggs. On December 21, 2013, Riggs filed a
pleading titled "Motion for the Court to Remedy Its Judgment Assessing Court Costs
Against the Plaintiff," arguing that the Judgment's award of costs to Social Services was
prohibited by law. On December 24, 2013, Riggs filed a motion for new trial which
argued that the trial court demonstrated prejudice and bias against her during trial. The
trial court entered an order ("Order") dated March 4, 2014, taxing costs against Riggs in
the amount of $4,539.73 and denying Riggs's post-trial motions.
Riggs appeals. Additional facts are discussed in the analysis portion of this
opinion as necessary.
5
Article I, section 8 provides for freedom of speech.
6
Article I, section 14 provides for open courts.
7
Article I, section 22(a) provides for right of trial by jury.
8
Neither the motion for summary judgment nor the trial court's order granting summary judgment appear in
the record on appeal. Instead, we only have the trial court's docket sheet for reference. The docket sheet indicates
that Social Services moved for summary judgment on April 2, 2013, and the trial court sustained that motion in part
and denied it in part on October 18, 2013. Social Services asserts that the trial court's entry of partial summary
judgment concerned Riggs's third count. Riggs does not dispute that characterization.
3
Analysis
Riggs asserts that the trial court erred in two respects: (1) in awarding and taxing
costs in the amount of $4,539.73 against Riggs; and (2) in making prejudicial and biased
statements against Riggs during voir dire and the trial.
Point One: The Award and Taxation of Costs
Riggs's first point on appeal complains that the trial court erred in taxing costs
against her in the amount of $4,539.73. Riggs argues that section 213.111.2 prohibits the
award of costs to the prevailing party in an MHRA case if the prevailing party is a state
agency. Riggs alternatively argues that even if costs could have been awarded, the cost
of her video deposition was not recoverable pursuant to Rule 57.03(c)(6) because the
expense of a video deposition is to be borne by the party utilizing it in the absence of a
contrary stipulation.9
Riggs's first point on appeal implicates two trial court actions and two distinct
issues: (1) the trial court's legal authority to include a general award or assessment of
costs in favor of Social Services in the Judgment;10 and (2) the trial court's later
calculation and taxation of costs in the Order. We review these disparate claims
separately.
9
Social Services conceded in its Brief that it is not entitled to recover as a cost the amount attributable to
the video deposition, $1755.
10
While Riggs's motion for new trial was constrained to her complaints about the alleged prejudice and bias
exhibited by the trial court, Riggs also filed a post-trial pleading titled "Motion for the Court to Remedy Its
Judgment Assessing Court Costs Against the Plaintiff." In that motion, Riggs asked the trial court to set aside its
Judgment or acknowledge that the Judgment was void because it awarded costs to Social Services contrary to
section 213.111.2. While not titled a motion for new trial, the allegations within this pleading reflect Riggs's intent
to challenge the Judgment's award of costs as in excess of the trial court's legal authority. "Missouri law requires the
[trial] court to treat motions based upon the allegations contained in the motion regardless of the motion's style or
form." Payne v. Markeson, 414 S.W.3d 530, 538 (Mo. App. W.D. 2013). We thus view Riggs's motion challenging
the Judgment's general award of costs as an authorized post-trial motion which preserved this issue for appellate
review.
4
The Judgment's General Award of Costs
"Awarding costs and expenses is within the sound discretion of the trial court and
should not be reversed absent a showing that the trial court abused its discretion."
Trimble v. Pracna, 167 S.W.3d 706, 716 (Mo. banc 2005). In other words, the trial court
possesses the discretion to award (or to refuse to award) costs in a judgment. A trial
court abuses its discretion if an award of costs in a judgment "was against the logic of the
circumstances and so arbitrary and unreasonable as to shock one's sense of justice."
Sasnett v. Jons, 400 S.W.3d 429, 441 (Mo. App. W.D. 2013). If a judgment awards costs
or expressly refuses to award costs in a manner that is inconsistent with the law, it is
axiomatic that the trial court has abused its discretion.
Here, the Judgment generally awarded costs to Social Services and against Riggs.
Section 514.060 provides: "In all civil actions, or proceedings of any kind, the party
prevailing shall recover his costs against the other party, except in those cases in which a
different provision is made by law." See also Rule 77.01 ("In civil actions, the party
prevailing shall recover his costs against the other party, unless otherwise provided in
these rules or by law."). Social Services was the prevailing party at trial, suggesting that
the Judgment's award of costs comported with the law. However, section 514.060
prevents the entry of an award of costs in a judgment if a "different provision is made by
law." Section 213.111.2 prohibits "a [prevailing] state agency or commission" from
being awarded court costs and reasonable attorney fees in an MHRA case. Social
Services is a state agency, suggesting that the Judgment's award of costs following a trial
on Riggs's MHRA claims was contrary to the law.
5
While only Riggs's MHRA claims were tried, count three of Riggs's third amended
petition was resolved in Social Services' favor by the grant of summary judgment just
prior to trial.11 Count three did not assert an MHRA claim and instead alleged numerous
violations of the Missouri Constitution. No provision of the law prohibits Social Services
from recovering costs if it is the prevailing party on a claim alleging state constitutional
violations. Section 514.060 provides that the prevailing party in a civil action shall
recover costs except as prohibited by law. Section 514.060 does not dictate an "all or
nothing" approach to the recovery of costs and thus does not bar the recovery of costs by
a prevailing party merely because some of the claims as to which the party prevailed are
subject to a legal restriction prohibiting the recovery of costs.
This construction of section 514.060 is consistent with section 514.090, which
provides that "[w]here there are several counts in any petition, and any one of them be
adjudged insufficient, or a verdict, or any issue joined thereon, shall be found for the
defendant, costs shall be awarded at the discretion of the court." This statute affords the
trial court discretion to apportion an award of costs in favor of a defendant who prevails
on some but not all claims asserted by a plaintiff. See, e.g., Kopp v. Franks, 792 S.W.2d
413, 423 (Mo. App. S.D. 1990). The Legislature's intent was "to provide for judicial
discretion in the apportionment of costs, both when substantial issues are found against a
party, as well as when he fails on a cause of action pleaded by him." Schumacher v.
11
The entry of summary judgment determines the prevailing party as a matter of law. See ITT Commercial
Fin. Corp. v. Mid.-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
6
Mehlberg, 70 S.W. 910, 911 (Mo. App. 1902) (citing section 1550, RSMo 1899, a statute
identical to section 514.090). The Schumacher court continued:
The object the statute[] seek[s] in leaving the costs to be taxed in the
instances named according to the discretion of the court is to prevent a
party from stating false or immaterial allegations, or setting up
unmeritorious causes of action, the trial of which will entail costs, such as
witness fees and fees of court officers, and throwing the burden on his
opponent merely by the judgment going against the latter.
Id.
No reported decision has compared the logical underpinning of section 514.090 to
section 514.060 where a defendant prevails on all claims asserted by a plaintiff though
some of the claims are subject to a statutory prohibition against the award of costs. We
conclude, however, that there is no basis for distinction. It would be incongruent to
permit a defendant to recover costs where the defendant has prevailed on some but not all
claims asserted, but to deny a defendant the recovery of costs where the defendant has
prevailed on all claims but is not entitled to recover costs as a matter of law with respect
to some of the claims. Affording a trial court the discretion to award costs to a prevailing
defendant in both circumstances is consistent with legislative intent. Thus, the
Judgment's award of costs to Social Services was not an abuse of the trial court's
discretion because Social Services prevailed on count three of Riggs's third amended
petition.12 The Judgment's award of costs is affirmed
12
Riggs has not argued that the Judgment should have awarded costs only as to her non-MHRA cause of
action, which the trial court could have done in the exercise of its discretion to apportion costs. We express no
opinion on this unpreserved issue but note that the costs awarded in this case were incurred while Riggs's claim for
violations of the Missouri Constitution remained pending. The claim for violations of the Missouri Constitution was
not disposed until approximately one month prior to trial.
7
The Judgment's award of costs is, however, a matter altogether separate from the
subsequent calculation or taxation of costs. As we explain, infra, there is a fundamental
distinction between a trial court's exercise of discretion in determining whether to award
costs in a judgment and the later taxation of costs, a ministerial function to be performed
by the circuit clerk.
The Order Taxing Court Costs
Riggs's first point on appeal alternatively argues that if the Judgment's award of
costs was not legally erroneous, the Order's taxation of costs was erroneous because it
included $1,775 for the cost of a video deposition in violation of Rule 57.03(c)(6). As
Riggs's correctly notes, "only those costs granted by virtue of express statutory authority"
can be taxed. Lorenzini v. Short, 312 S.W.3d 467, 472 (Mo. E.D. 2010) (internal
quotation marks omitted).
We cannot and do not reach this issue. Prior to oral argument, Social Services
filed a motion to dismiss Riggs's appeal insofar as it challenged the award of costs.
Social Services' motion argued that Riggs's challenge to the calculation of costs "is
premature because the clerk has not yet taxed costs in this case, and the trial court's
[Order] awarding costs to [Social Services] is not a final, appealable order."13 We agree.
Montoya v. A-1 Mufflers, Inc. involved a nearly identical situation. 331 S.W.3d
702 (Mo. App. W.D. 2011). There, the trial court issued a judgment in favor of the
13
Social Services' motion to dismiss also argued that Riggs's appeal of the Judgment's award of costs should
be dismissed as premature. We disagree, for reasons explained, supra. A judgment's treatment of costs, in the
general sense, is subject to appeal just as any other matter addressed in the judgment because the decision to award,
or to not award, costs is subject to the trial court's discretion. Once that discretion is expressed in the judgment, the
calculation and the specific amount of costs to be taxed (i.e., a bill of costs) becomes the ministerial duty of the
circuit clerk as we explain, infra.
8
plaintiff and assessed costs against the defendant.14 Id. at 703. The plaintiff submitted a
proposed bill of costs that itemized the costs incurred, and the defendant filed objections
to the proposed bill of costs. Id. The plaintiff then filed an amended bill of costs, which
deleted some of items to which the defendant had objected. Id. In response to the
plaintiff's amended bill of costs, the defendant filed a motion to strike the original and
amended bills of costs. Id. The trial court entered an order denying the motion to strike
the bill of costs, and the defendant appealed that order. Id. at 704. While the appeal was
pending, the plaintiff filed a motion to dismiss the appeal, arguing that because the circuit
clerk had not yet taxed costs, review of the trial court's order denying the motion to strike
the bill of costs was premature. Id.
We observed that section 514.260 imposes the mandatory duty on the circuit clerk,
not the trial court, to tax statutory court costs.15 Id. Before the circuit clerk taxes
statutory court costs, a party's bill of costs "is merely an unsolicited gratuitous proposal."
Id. After the circuit clerk taxes costs, "any party may file, in the court in which the action
or proceeding was heard, a motion to retax costs so that the court can review the clerk's
bill of costs." Id. (citing section 514.270; Rule 77.05).16 "If the court denies the party's
motion to retax costs, the party can appeal such denial . . . because the denial of a Rule
77.05 motion to retax costs is an appealable order." Id. Because the circuit clerk had not
yet taxed costs against the defendant and the trial court had not had a chance to retax
14
Unlike the circumstances in the case before us, the defendant in Montoya did not challenge the judgment's
general award of costs as an abuse of the trial court's discretion.
15
Section 514.260 provides, in pertinent part: "The clerk shall tax and subscribe all bills of costs arising in
any cause or proceedings instituted or adjudged in the court in which he is the clerk . . . ."
16
Rule 77.05 provides: "Any party, on motion, may have a bill of costs reviewed by the court in which the
civil action was heard."
9
costs pursuant to Rule 77.05, there was nothing before us to review, and we dismissed the
defendant's appeal. Id.
The circumstances before us are indistinguishable from Montoya. The
memorandum of costs filed by Social Services on December 11, 2013, was, at best, a
pleading which sought to add documents to the trial record relevant to the circuit clerk's
preparation of a bill of costs17 and was, at worst, "an unsolicited gratuitous proposal"
improvidently asking the trial court to enter an order taxing statutory court costs. The
memorandum of costs presented nothing for the trial court to decide because the circuit
clerk had not yet issued a bill of costs. Until the circuit clerk taxes costs in this case, no
party is in a position to file a Rule 77.05 motion asking the trial court to retax costs.
Thus, as was the case in Montoya, the trial court's Order, to the extent it purports to tax
costs, has no legal effect, and is not a final, appealable order. Cf. Landreth v. Gan, 647
S.W.2d 932, 935 (Mo. App. S.D. 1983) (holding that a trial court order retaxing costs
after a challenge is filed to oppose a circuit clerk's bill of costs is an appealable special
order pursuant to section 512.020(5)).
Riggs's appeal is dismissed as premature insofar as Riggs's first point on appeal
challenges the taxation of costs in the trial court's March 4, 2014 Order. Riggs's first
point on appeal is denied insofar as it challenges the Judgment's general award of costs.
17
The memorandum attached various court reporting and special process server invoices. We express no
opinion about a party's right to supplement the record after trial (and thus after the record has closed) to include
documents relevant to the circuit clerk's generation of a bill of costs. The best practice, however, to avoid any issue
would be to ensure that all documents essential to the circuit clerk's calculation of a bill of costs have been deposited
in the record prior to trial.
10
Point Two: Statements Made by the Trial Court
Riggs's second point on appeal argues that the trial court erred in "making several
prejudicial and biased statements against the Appellant and in showing favor to the
Respondent that deprived the claimant of a fair trial and then by denying Appellant's after
trial motions for a new trial as a remedy." [Appellant's Brief p. 33] In particular, Riggs
challenges the trial court's comment during voir dire that the State of Missouri was
"broke" and about "State agencies [being] squeezed." Riggs also argues that the trial
court should not have admonished Riggs in the jury's presence. Riggs asserts that, as a
result of these inflammatory and improper statements by the trial court, Riggs was
subjected to prejudicial bias so that she should receive a new trial.18
Before considering the merits of Riggs's second point on appeal, we must first
consider whether the issue is preserved for our review. Mansfield v. Horner, 443 S.W.3d
627, 638 (Mo. App. W.D. 2014). "[P]rejudicial remarks made by the court must be
seasonably objected to or the question will not be ordinarily reviewed on appeal." Libby
v. Hill, 687 S.W.2d 264, 267 (Mo. App. W.D. 1985). While Riggs included these alleged
errors in her motion for new trial, Riggs did not object to either the trial court's comments
during voir dire about the financial state of the State of Missouri and its agencies or to the
18
Riggs also asserts that the attorney representing Social Services made comments during closing argument
that were "prejudicial and misrepresented that courts have a duty to accommodate people with disability, including
mental impairment." [Appellant's Brief pp. 38-39] In particular, Riggs argues that, by reminding the jury that the
trial court did not grant Riggs's request for a brief break to tend to pain resulting from her finger becoming stuck in a
binder clip, the attorney representing Social Services improperly suggested that, as a matter of law, an
accommodation would have been improper in the workplace. Riggs did not object to this argument but asserts on
appeal that the trial court had a duty to correct the closing argument. Riggs has not captured this argument in her
points on appeal. Instead, she simply inserted this assertion of error into the Argument section of her brief. Thus,
this argument is not preserved for our review, as it exceeds the scope of the points relied on, and we decline to
address it. CB3 Enters., LLC v. Damas, 415 S.W.3d 163, 169 n.3 (Mo. App. W.D. 2013); Rule 84.04(e).
11
trial court's admonishment of Riggs in front of the jury. The failure to raise these alleged
errors during trial renders them unpreserved for our review. See Williams v. Jacobs, 972
S.W.2d 334, 346 (Mo. App. W.D. 1998).
Nonetheless, we may choose to review unpreserved claims for plain error. Snellen
ex rel. Snellen v. Capital Region Med. Ctr., 422 S.W.3d 343, 357 (Mo. App. W.D. 2013).
Plain error review is "limited to a determination of whether there is plain error affecting
substantial rights resulting in manifest injustice or a miscarriage of justice." Williams,
972 S.W.3d at 346. We use a two-step process when conducting plain error review.
Hammett v. Atcheson, 438 S.W.3d 452, 463 (Mo. App. W.D. 2014). "We first determine
whether or not the error is plain, and second, we determine whether or not manifest
injustice or miscarriage of justice would result if the error is left uncorrected." Id.
(internal quotation marks omitted). "'We will reverse for plain error in civil cases only in
those situations when the injustice of the error is so egregious as to weaken the very
foundation of the process and seriously undermine confidence in the outcome of the
case.'" Snellen, 422 S.W.3d at 357 (quoting Sasnett, 400 S.W.3d at 437-38). We must
consider the trial court's comments during voir dire and admonishment of Riggs
separately to determine whether either amounted to plain error resulting in manifest
injustice or a miscarriage of justice if left uncorrected.
Before questioning of the venire began, the trial court stressed the importance of
candor in answering the attorneys' questions. The trial court stated:
When you answer questions, please take time, search your memory, think
back into the past, as your answers are supposed to be accurate and
12
complete. I feel like I'm drifting into repetition here, but it's important that
you answer accurately and completely.
Let me illustrate the point this way. There is interest on all of us in your
prior litigation history. How have you previously participated in our legal
system? And so there's going to be several questions about that topic. And
I want you to understand, number one, what a lawsuit is. I've had people
say, well, yes, I got served on my porch by my landlord but I never went to
court. I just moved and so I didn't think I was sued. Yes, you were. If you
were served, you were sued. And if you authorized your lawyer to file a
suit and paid a filing fee, then you probably initiated a lawsuit. So kind of
think as far as the broad effects.
....
So what are they interested in? They're interested in plaintiffs and
defendants in civil lawsuits that certainly involved employment or involved
torts, civil wrongs that are not contractual wrongs. And they'll talk a little
bit more about that. They do want to know about criminal defendants,
people who were convicted of a crime. Of course, I already know that none
of you were convicted of a felony or you wouldn't be allowed to sit on a
jury.
If, upon further reflection, you're thinking, oh boy, I was convicted of a
felony in Iowa or someplace, then at some point raise your hand and
mention that you would like to speak with the Court privately and we'll go
back over that ground. I can't have a convicted felon sit. It's an absolute
certainty that there would be a mistrial and I'd have to do the whole thing
again.
And your State is broke just like all the rest of us. There's just not enough
money to go around. And the State agencies are squeezed a little bit. We
don't have time to do cases twice if we can help it. We hardly have the
horsepower to do every case once. As a matter of fact, if 95 percent of
cases didn't settle, I don't know how we'd get everything done.
So, make sure that you're candid with us, particular about the lawsuits and
particularly about your criminal convictions, if any.
When read in context, the trial court's comments regarding the State of Missouri being
"broke" and "State agencies [being] squeezed" were made to emphasize the importance
13
of candor during voir dire. Through its statements, the trial court was attempting to
impress upon the jury that their candor was necessary for judicial efficiency.
Thus, in making these statements during voir dire, the trial court was simply
attempting to carry out "one of the highest duties of the courts in administering justice, to
select a fair and impartial jury to hear each case." Adkins v. Hontz, 337 S.W.3d 711, 717
(Mo. App. W.D. 2011). While it would have been preferable for the trial court to avoid
reference to the State's financial circumstances during voir dire for this purpose in this
particular case because a state agency was the defendant, the trial court's comments do
not rise to the level of an "'error . . . so egregious as to weaken the very foundation of the
process and seriously undermine confidence in the outcome of the case.'" Snellen, 422
S.W.3d at 357 (quoting Sasnett, 400 S.W.3d at 437-38). We find no plain error.
Riggs also complains about the trial court's admonishment of her in the presence
of the jury. Throughout her cross-examination, both the attorney for Social Services and
the trial court directed Riggs to limit her responses to the questions asked. Nevertheless,
Riggs repeatedly gave evasive answers and injected extraneous information not called for
by the questions. During the middle of her cross-examination, the trial court deemed that
a short recess would be appropriate. Before it released the jury and the witness, the trial
court stated in front of the jury:
Okay, folks, it's about time for us to take a break. I am going to admonish
the witness. I think you've entered into a pattern to not responding to the
question. You seem to have your own agenda of saying whatever the hell
is on your mind as opposed to answering the question directly. I think I've
told you several times and I know that the lawyer has asked you dozens of
times, just listen to the question, respond to it.
14
Cross-examination is not the time for you to retell your story and spit out
everything that you want to say. Cross-examination is your opportunity to
listen to the question and answer it in one word, if one word will work.
What I'm going to do is take a break. What I'm also going to do when we
come back after you give a heart-to-heart talk with your lawyers, if you are
incapable of answering the question directly without dancing all over,
trying to confuse the issue, trying to repeat the question your pattern of
evasiveness is annoying me in the extreme.
Now you can mend your ways and we can continue with this hearing. If
you don't answer the question directly the sanctions can be very harsh.
Riggs argues that the trial court should not have admonished her in the presence of the
jury and argues that, instead, it should have stricken her unresponsive testimony or
admonished her outside of the jury's hearing.
"'A judge presiding at trial should maintain an impartial attitude in conduct and
demeanor, and should exercise a high degree of patience and forbearance with counsel
and witnesses.'" Snellen, 422 S.W.3d at 357-58 (quoting Hawkins v. Compo, 781 S.W.2d
128, 131 (Mo. App. W.D. 1989). However, a trial judge is not expected to be a "stone
statue[]." Id. at 358. A trial judge may intervene to prevent waste of judicial resources
and restrain improper conduct. Hawkins, 781 S.W.2d at 131.
The trial court admonished Riggs in the presence of the jury only after she failed
to follow numerous directives from the attorney for Social Services and the trial court to
restrain her answers to the questions being asked. While the trial court's choice to
admonish Riggs in the jury's presence may not have been ideal, we will not find plain
error when the record supports the conclusion that earlier efforts by the trial court to
restrain Riggs's improper conduct were unavailing.
15
Riggs's second point on appeal is denied.
Conclusion
We dismiss Riggs's appeal insofar as it concerns the trial court's March 4, 2014
Order. The trial court's Judgment is affirmed.
__________________________________
Cynthia L. Martin, Judge
All concur
16
|
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30045
Plaintiff-Appellee, D.C. No.
3:17-cr-00145-TMB-1
v.
COLTER WAYNE ODELL, AKA Colter MEMORANDUM*
W. O'Dell,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, Chief District Judge, Presiding
Submitted August 10, 2020**
Anchorage, Alaska
Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges.
Colter Wayne O’Dell pled guilty to one count of being a felon in possession
in violation of 18 U.S.C. § 922(g)(1). O’Dell’s conditional plea reserved the right
to appeal the district court’s denial of his motion to suppress evidence and request
*
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).
for a hearing under Franks v. Delaware, 438 U.S. 154 (1978).
On appeal, O’Dell argues that the search giving rise to his arrest violated the
Fourth Amendment because the officer who requested the search warrant
intentionally and recklessly omitted material information critical to assessing the
credibility of four confidential witnesses (“CWs”). Specifically, O’Dell claims the
officer omitted that the CWs were drug users, three of the CWs had been convicted
of crimes of dishonesty, one of the CW was “dope sick” when that CW gave their
statement, and all of the CWs hoped to receive benefits for their cooperation. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review a denial of a motion to suppress and the denial of a Franks
hearing de novo. United States v. Perkins, 850 F.3d 1109, 1115 (9th Cir. 2017).
The district court’s underlying findings of fact are reviewed for clear error. United
States v. Gorman, 859 F.3d 706, 714 (9th Cir. 2017).
1. The affidavit of the officer who requested the search warrant clearly
explained how each of the CWs had criminal backgrounds, ties to the criminal
white supremacist 14/88 gang, and were involved in one way or another with the
homicide of Michael Staton, for which O’Dell was also a suspect. If anything, the
CWs’ statements are reliable as statements against their penal interest. See United
States v. Roberts, 747 F.2d 537, 544 (9th Cir. 1984); United States v. Estrada, 733
F.2d 683, 686 (9th Cir. 1984). Accordingly, the district court did not err in finding
2
that their testimony was sufficiently credible to support probable cause to search
O’Dell’s Jeep for evidence of Staton’s homicide.
2. All four of the CWs testified that the victim was Michael Staton, that
the assault and homicide was committed by the same individual members of the
14/88 gang, that the purpose of the assault and murder was to “de-patch”1 Staton,
and that the assault took place at one of the co-conspirator’s
residence. Additionally, at least two of the CWs testified that Staton’s body was
transported in a red Tahoe, that the assault included heating up a knife to remove
Staton’s “patch,” and that the perpetrators burned their clothes after the
attack. Id. This highly detailed and consistent testimony is sufficient to support
probable cause. See United States v. Hernandez-Escarsega, 886 F.2d 1560, 1566
(9th Cir. 1989).
3. The officer also supported the search warrant request with non-
testimonial evidence corroborating the CWs’ statements. For example, the request
included physical evidence that blood had been cleaned up inside the apartment
where the CWs said the homicide allegedly took place, cellphone location data
showing that O’Dell’s cellphone was at the alleged crime scene while it was taking
place, and the victim’s skeletal remains with evidence of gunshot wounds and
broken bones, which was consistent with how the CWs described the homicide was
1
“De-patching” refers to the process of removing a gang tattoo.
3
carried out. This corroborating evidence provides further support for the district
court’s finding of probable cause. See United States v. Fixen, 780 F.2d 1434,
1437–38 (9th Cir. 1986); United States v. Freitas, 716 F.2d 1216, 1222 (9th Cir.
1983).
4. Finally, there is no evidence in the record that the CWs were offered
favorable treatment in exchange for their testimony. Even assuming that they
were, that would only serve to corroborate the reliability of the CWs’ testimony
because they would not obtain favorable treatment if they testified falsely. See
United States v. Patayan Soriano, 361 F.3d 494, 505 (9th Cir. 2004).
AFFIRMED.
4
|
424 F.2d 1281
Robert RICHARDS, Jr., a minor by his father and next friendRobert Richards, Plaintiff, Appellee,v.Roger THURSTON, as Principal of Marlboro High School,Defendant, Appellant.
No. 7455.
United States Court of Appeals, First Circuit.
Heard March 2, 1970.Decided April 28, 1970.
David G. Hanrahan, Boston, Mass., with whom William J. Brennan, City Solicitor, George A. McLaughlin, Jr., and The McLaughlin Brothers, Boston, Mass., were on brief, for appellant.
Henry P. Monaghan, Boston, Mass., with whom Daniel D. Levenson, Spencer Neth and John H. Henn, Boston, Mass., were on brief, for appellee.
Gerard F. Doherty, Boston, Mass., on brief for Massachusetts Secondary School Principals Association, amicus curiae.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
1
Plaintiff, a seventeen year old boy, was suspended from school at the beginning of his senior year because he refused to cut his hair, which a local newspaper story introduced into evidence described as 'falling loosely about the shoulders'. Defendant, the principal of the high school in Marlboro, Massachusetts, admits that there was no written school regulation governing hair length or style but contends that students and parents were aware that 'unusually long hair' was not permitted.
2
On these sparse facts the parties submitted the case posed by plaintiff's request for injunctive relief against the deprivation of his rights under 42 U.S.C. 1983. Each relied on the failure of the other to sustain his burden of proof, plaintiff claiming that he should prevail in the absence of evidence that his appearance had caused any disciplinary problems, and defendant maintaining that plaintiff had failed to carry his burden of showing either that a fundamental right had been infringed or that defendant had not been motivated by a legitimate school concern. The district court granted plaintiff's request for a permanent injunction and ordered plaintiff reinstated. Richards v. Thurston, 304 F.Supp. 449 (D.Mass.1969).
3
Defendant, apart from his argument on the merits, insists that the district court erred in not abstaining pending consideration by the courts of the Commonwealth of Massachusetts. We are in entire sympathy with the proposition that questions involving school board authority ought to be resolved whenever possible on a nonconstitutional basis.1 In this case, however, we agree with the district court that Leonard v. School Committee of Attleboro, 349 Mass. 704, 212 N.E.2d 468 (1965), a case containing similar facts, forecloses that nonconstitutional approach and clearly suggests that the courts of Massachusetts would have ruled against plaintiff on these facts.2
4
Plaintiff, too, advances a narrow argument for prevailing-- the lack of any specific regulation authorizing suspension for unusual hair styles. We do not accept the opportunity. We take as given defendant's allegation in his answer that parents and students-- including plaintiff-- were aware that unusually long hair was not permitted. Moreover, we would not wish to see school officials unable to take appropriate action in facing a problem of discipline or distraction simply because there was no preexisting rule on the books.
5
Coming to the merits, we are aware of a thicket of recent cases concerning a student's wearing of long hair in a public high school.3 While several of the decisions holding against the student have relied on the prior occurrence of disruptions caused by unusual hair styles,4 we think it fair to say hair many of those courts would hold against the student on a barren record such as ours, on the grounds that the student had not demonstrated the importance of the right he asserts. On the other hand, in few of the cases holding for the student was there any evidence of prior disruptions caused by hair styles. Despite the obvious disagreement over the proper analytical framework, each of the 'pro-hair' courts held explicitly or implicitly that the school authorities failed to carry their burden of justifying the regulation against long hair.
6
What appears superficially as a dispute over which side has the burden of persuasion is, however, a very fundamental dispute over the extent to which the Constitution protects such uniquely personal aspects of one's life as the length of his hair, for the view one takes of the constitutional basis-- if any-- for the right asserted may foreshadow both the placement and weight of the evidentiary burden which he imposes on the parties before him. For this reason, we resist the understandable temptation, when one is not the final arbiter of so basic a constitutional issue, to proceed directly to an application of the constitutional doctrine without attempting to ascertain its source as precisely as possible.
7
It is perhaps an easier task to say what theories we think do not apply here. We recognize that there may be an element of expression and speech involved in one's choice of hair length and style, if only the expression of disdain for conventionality. However, we reject the notion that plaintiff's hair length is of a sufficiently communicative character to warrant the full protection of the First Amendment. United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 507-508, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); see Cowgill v. California, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970), Harlan, J. concurring; cf. Close v. Lederle, 424 F.2d 988 (1st Cir. 1970), filed this date. That protection extends to a broad panoply of methods of expression, but as the non-verbal message becomes less distinct, the justification for the substantial protections of the First Amendment becomes more remote. Nor do we see the logic of expanding the right of marital privacy identified in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), into a right to go public as one pleases.5
8
Our rejection of those constitutionalOur rejection of those constitutional protections in this case is not intended to denigrate the understandable desire of people to be let alone in the governance of those activities which may be deemed uniquely personal. As we discuss below, we believe that the Due Process Clause of the Fourteenth Amendment establishes a sphere of personal liberty for every individual, subject to reasonable intrusions by the state in furtherance of legitimate state interests.6
9
The idea that there are substantive rights protected by the 'liberty' assurance of the Due Process Clause is almost too well established to require discussion. Many of the cases have involved rights expressly guaranteed by one or more of the first eight Amendments.7 But it is clear that the enumeration of certain rights in the Bill of Rights has not been construed by the Court to preclude the existence of other substantive rights implicit in the 'liberty' assurance of the Due Process Clause. In the 1920's the Court held that such 'liberty' includes the right of parents to send their children to private schools as well as public schools and to have their children taught the German language. Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). In 1958, the Court held that 'the right to travel (to a foreign country) is a party of the 'liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment.' Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958); followed in Aptheker v. Secretary of State, 378 U.S. 500, 505-506, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). More recently, the Court, without specifically ascribing its source, established the right to travel interstate as a right fundamental to our Federal Union despite the absence of any specific mention thereof in the Constitution. United States v. Guest, 383 U.S. 745, 757, 759, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); Shapiro v. Thompson, 394 U.S. 618, 629-631, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Such a right of interstate travel being more inherent in and essential to a Federal Union than the right to travel abroad established in Kent and Aptheker,8 we can only conclude that such right must a fortiori be an aspect of the 'liberty' assured by the Due Process Clause.
10
We do not say that the governance of the length and style of one's hair is necessarily so fundamental as those substantive rights already found implicit in the 'liberty' assurance of the Due Process Clause, requiring a 'compelling' showing by the state before it may be impaired. Yet 'liberty' seems to us an incomplete protection if it encompasses only the right to do momentous acts, leaving the state free to interfere with those personal aspects of our lives which have no direct bearing on the ability of others to enjoy their liberty. As the court stated in Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891):
11
'No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, 'The right to one's person may be said to be a right of complete immunity: to be let alone."9
12
Indeed, a narrower view of liberty in a free society might, among other things, allow a state to require a conventional coiffure of all its citizens, a governmental power not unknown in European history.10
13
We think the Founding Fathers understood themselves to have limited the government's power to intrude into this sphere of personal liberty, by reserving some powers to the people.11 The debate concerning the First Amendment is illuminating. The specification of the right of assembly was deemed mere surplusage by some, on the grounds that the government had no more power to restrict assembly than it did to tell a man to wear a hat or when to get up in the morning. The response by Page of Virginia pointed out that even those 'trivial' rights had been known to have been impaired-- to the Colonists' consternation-- but that the right of assembly ought to be specified since it was so basic to other rights.12 The Founding Fathers wrote an amendment for speech and assembly; even they did not deem it necessary to write an amendment for personal appearance.13 We conclude that within the commodious concept of liberty, embracing freedoms great and small, is the right to wear one's hair as he wishes.
14
Determining that a personal liberty is involved answers only the first of two questions. The second is whether there is an outweighing state interest justifying the intrusion. The answer to this question must take into account the nature of the liberty asserted, the context in which it is asserted, and the extent to which the intrusion is confined to the legitimate public interest to be served. For example, the right to appear au naturel at home is relinquished when one sets foot on a public sidewalk. Equally obvious, the very nature of public school education requires limitations on one's personal liberty in order for the learning process to proceed. Finally, a school rule which forbids skirts shorter than a certain length while on school grounds would require less justification than one requiring hair to be cut, which affects the student twenty-four hours a day, seven days a week, nine months a year. See Westley v. Rossi, 305 F.Supp. at 713-714.
15
Once the personal liberty is shown, the countervailing interest must either be self-evident or be affirmatively shown. We see no inherent reason why decency, decorum, or good conduct requires a boy to wear his hair short. Certainly eccentric hair styling is no longer a reliable signal of perverse behavior. We do not believe that mere unattractiveness in the eyes of some parents, teachers, or students, short of uncleanliness, can justify the proscription. Nor, finally, does such compelled conformity to conventional standards of appearance seem a justifiable part of the educational process.
16
In the absence of an inherent, self-evident justification on the face of the rule, we conclude that the burden was on the defendant. Since he offered no justification, the judgment of the district court must be affirmed.
17
Affirmed.
1
For a thoughtful discussion, see Goldstein, The Scope and Sources of School Board Authority to Regulate Student Conduct and Status: A Nonconstitutional Analysis, 117 U.Pa.L.Rev. 373 (1969)
2
See Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); McNeese v. Board of Education, 373 U.S. 668, 671-674, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963)
3
Decisions holding against the student include the following: Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir. 1968), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968); Davis v. Firment, 269 F.Supp. 524 (E.D.La.1967), aff'd, 408 F.2d 1085 (5th Cir. 1969); Crews v. Cloncs, 303 F.Supp. 1370 (S.D.Ind.1969); Brick v. Board of Education, 305 F.Supp. 1316 (D.Colo.1969); Stevenson v. Wheeler County Board of Education, 306 F.Supp. 97 (S.D.Ga.1969) (mustaches); Akin v. Board of Education, 262 Cal.App.2d 161, 68 Cal.Rptr. 557 (1968); Neuhaus v. Torrey, 310 F.Supp. 192 (N.D.Cal., March 10, 1970); and Leonard v. School Committee of Attleboro, supra. Several decisions gave considerable weight to the evidence of prior disruptions of the school atmosphere caused by unusual hair styles. E. g., Ferrell, Davis, Brick. The Crews decision relied on the fact of prior disruptions concerning the particular plaintiff there involved
Ranged against these authorities are the following cases holding for the student: Finot v. Pasadena City Board of Education, 250 Cal.App.2d 189, 58 Cal.Rptr. 520 (1967) (First Amendment); Meyers v. Arcata Union High School District, 269 Cal.App.2d 549, 75 Cal.Rptr. 68, 72-73 (1969) (First Amendment); Sims v. Colfax Community School District, 307 F.Supp. 485 (S.D.Iowa 1970) (Due Process Clause protects female student's long hair); Breen v. Kahl. 296 F.Supp. 702 (W.D.Wis.1969) (Due Process Clause), aff'd, 419 F.2d 1034 (7th Cir. 1969) ('penumbra' of First Amendment or Ninth Amendment); Calbillo v. San Jacinto Junior College, 305 F.Supp. 857 (S.D.Tex.1969) (Equal Protection Clause in a junior college context); Zachry v. Brown, 299 F.Supp. 1360 (N.D.Ala.1967) (Equal Protection Clause); Griffin v. Tatum, 300 F.Supp. 60 (M.D.Ala.1969) (Equal Protection Clause and Due Process Clause); Westley v. Rossi, 305 F.Supp. 706 (D.Minn.1969) (same).
In Farrell v. Smith, 310 F.Supp. 732 (D.Me.1970), the court explicitly accepted the proposition that the right to wear one's hair at any length is an aspect of personal liberty protected by the Due Process Clause of the Fourteenth Amendment, following the 'pro-hair' cases cited above. However, the court on the facts before it held that the state vocational school had met its substantial burden of justification by a showing that neatness of appearance enhanced the employment opportunities of its students.
4
See also two Fifth Circuit 'freedom button' cases expressly differentiated because of the disruptive response to the plaintiffs in the latter case which had not occurred in the former: Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966), and Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (5th Cir. 1966)
5
That 'privacy' has not been generally understood in the latter sense is indicated by the definition of privacy given by Alan F. Westin in his wide- ranging book Privacy and Freedom, (1967), at p. 7: 'Privacy is the claim of individuals, groups or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.'
6
The fact that the 'liberty' protected by the Due Process Clause includes such a sphere of personal liberty does not require the state to provide a special forum for the exercise of such personal liberty. Moreover, having provided a forum, the state may revoke it when the exercise of personal liberty becomes inimical to the societal interests affected by such use of the state's forum. Cf., Close v. Lederle, supra. Of course, when the activity takes on the coloration of a First Amendment right, only a more compelling interest will justify a limitation on such activity. United States v. O'Brien, supra, 391 U.S. at 376-377, 88 S.Ct. 1673
7
See e.g., Schneider v. New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Cantwell v. Connecticut, 310 U.S. 296, 303-305, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964)
8
See discussion in Guest, supra, and Shapiro, supra, and see Stewart, J. concurring in Shapiro, 394 U.S. at 642-643, 89 S.Ct. 1322
9
In more recent cases, the Court has weighed this right to the control over one's own person against the state interest underlying the state's intrusion. Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952); Breithaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957); cf. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)
10
See W. and A. Durant, The Story of Civilization: Part VIII, The Age of Louis XIV, 396-410 (1963) (account of Peter the Great's proscription of beards)
11
Redlich, 'Are There 'Certain Rights . . . Retained By The People'? ', 37 N.Y.U.L.Rev. 787, 804-812 (1963)
12
This exchange is reported and discussed in Irving Brant's The Bill of Rights, 53-67 (1965). As the author there points out, the reference to the wearing of hats had considerable meaning to the participants of the debates, recalling William Penn's trial for disturbing the peace. Upon entering the courtroom bareheaded, Penn was directed by a court officer to don his hat, after which he was fined by the court for not doffing his hat
13
Remarks of James Madison, reported and discussed in Redlich article cited in n. 10 supra
|
551 F.2d 62
Thompson Gordon HERRON, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 76-4208Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
April 22, 1977.
William C. Erbecker, Indianapolis, Ind., for petitioner-appellant.
Ira DeMent, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Alabama.
Before GOLDBERG, CLARK and FAY, Circuit Judges.
PER CURIAM:
1
The district court denied the motion to vacate sentence pursuant to 28 U.S.C. § 2255 filed by Herron, a federal prisoner. We affirm.
2
Appellant represented by counsel, was sentenced on December 6, 1974, to a five year term of imprisonment and a $10,000 fine for the use of a fraudulently obtained credit card in violation of 18 U.S.C. § 2314. In his § 2255 motion, he contends that the maximum sentence was imposed because the court erroneously relied upon a prior conviction as a felony when actually it was a misdemeanor. Appellant relies upon Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1947), in which the Supreme Court held that an uncounselled defendant was denied due process of law where sentence was imposed upon the basis of assumptions concerning his criminal record which were materially untrue, and upon United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 92 (1972), which held that where a judge, in assessing sentence, gave explicit consideration to a prior conviction, which was subsequently determined to be invalid, the defendant was entitled to be resentenced without consideration of that invalid conviction.
3
Appellant's issue has been raised in two prior motions for reduction of sentence, Rule 35 F.R.Cr.P., before the sentencing court. Said motions led to a hearing with opportunity for oral argument. Relief was denied in both instances.
4
The record indicates that the district court did, in fact, make reference to a prior fraud conviction, but nowhere did the court define it as a "felony." Regardless of the definition of the offense, the operative facts of the charges and the elements of the offense may be considered by the district court during the imposition of sentence, Rule 32(c), F.R.Cr.P. The prior conviction in question was a 1966 guilty plea entered upon South Carolina charges of uttering, drawing, and presenting a fraudulent check in the amount of $3,700. Consideration of such previous fraudulent conduct is germane to a determination of sentence for a violation of 18 U.S.C. § 2314.
5
The record fails to disclose that the sentencing judge gave explicit consideration to a felony/misdemeanor distinction. The district court's actions in denying a total of three motions raising this same issue indicate that no misconception was in the mind of the sentencing judge during the proceedings, or, alternatively, that despite such a misconception at the time of sentencing, the sentence is felt to be appropriate without defining the 1966 conviction as a "felony."
6
Resentencing is required wherever a sentence has been based "in part upon misinformation of a constitutional magnitude." United States v. Tucker, supra at 447. However, Tucker violations may constitute harmless error. See Barnes v. Estelle, 5 Cir. 1975, 518 F.2d 182; Thomas v. Savage, 5 Cir. 1975, 513 F.2d 536. Assuming arguendo that the sentencing judge incorrectly considered the 1966 conviction to be a felony, error, if any, is harmless in light of the facts presented in the record i. e. "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
7
The severity of a sentence imposed within the statutory limits will not be reviewed. United States v. Cavazos, 5 Cir. 1976, 530 F.2d 4, 5. Review is limited to careful scrutiny of the judicial process by which the particular punishment was determined. United States v. Hartford, 5 Cir. 1974,489 F.2d 652, 654. See United States v. Espinoza, 5 Cir. 1973, 481 F.2d 553. The appellant has failed to show any defect in the procedure by which he was sentenced.
8
AFFIRMED.
*
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I
|
THE THIRTEENTH COURT OF APPEALS
13-14-00015-CV
Creative Artists Agency, LLC, Twisted Roads Touring, LLC, 4FINI, Inc., Brett Saliba,
Sarah Siquieros F/K/A Sarah Baer, and Kevin Lyman
v.
Las Palmas Race Park, LLC Las Palmas Downs, Inc. and Front Porch Entertainment
On Appeal from the
93rd District Court of Hidalgo County, Texas
Trial Cause No. C-3927-13-B
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court
orders the judgment of the trial court AFFIRMED. Costs of the appeal are adjudged
against appellant.
We further order this decision certified below for observance.
October 29, 2015
|
388 B.R. 885 (2008)
In re Earl L. SMITH and Vicky L. Smith, Debtors.
No. 07-82462.
United States Bankruptcy Court, CD. Illinois.
June 20, 2008.
*886 Charles E. Covey, Peoria, IL, for Debtors.
Gary T. Rafool, Peoria, IL, Trustee.
OPINION
THOMAS L. PERKINS, Chief Judge.
This matter is before the Court on the Motion by the United States Trustee ("UST") to Dismiss the Chapter 7 case filed by the Debtors, Earl (EARL) and Vicky Smith (together the "DEBTORS"). The Motion seeks dismissal pursuant to Sections 707(b)(1) and (b)(2) of the Bankruptcy Code. The issue is whether a 401(k) loan is a secured debt or a "special circumstance" so as to defeat the presumption of abuse that otherwise arises.
Before filing with his wife the joint Chapter 7 petition on November 1, 2007, EARL obtained two loans from his Coulter Companies Profit Sharing and Retirement Savings Plan. On October 19, 2005, he borrowed the sum of $15,000, which he agreed to repay with interest in sixty monthly payments of $295.25. On March 28, 2006, he borrowed an additional $15,000, which he agreed to repay with *887 interest in sixty monthly payments of $300.57.
With each loan, he was given a Truth-in-Lending Disclosure Statement that disclosed the terms of the loan including the following: "You are giving a security interest in your vested accrued benefit under the Company Plan." Likewise, with each loan EARL signed a "Loan Application & Agreement," by which he agreed that the loan payments would be made by payroll deduction and which provided for the collateral assignment and pledge of his vested account balance not to exceed 50% of its value.
On Line 42 of their Amended Official Form 22A, the line for deducting future payments on secured claims, the DEBTORS deducted $210.40 as the 60-month average payment for 401(k) Loan # 1 and $177.15 for 401(k) Loan #2. If those amounts are allowed, either as a Line 42 deduction or a "special circumstance," the DEBTORS prevail and the UST's Motion must be denied. If disallowed, their monthly disposable income would exceed the Section 707(b)(2)(A)(i) threshold, abuse would be presumed and the Motion should be granted.
As provided in Section 707(b)(2)(A)(iii), for purposes of means testing, a debtor may reduce his current monthly income by his "average monthly payments on account of secured debts" calculated in part, with reference to the "amounts scheduled as contractually due to secured creditors" in the five years after filing. 11 U.S.C. § 707(b)(2)(A)(iii)(I). Neither "secured debt" nor "secured creditor" are defined terms in the Bankruptcy Code. The term "creditor" is defined, generally, as an "entity that has a claim against the debtor." 11 U.S.C. § 101(10). The term "claim" means "right to payment" and the term "debt" means "liability on a claim." 11 U.S.C. § 101(5) and (12).
Semantics complexities aside, the real difficulty that the DEBTORS face in attempting to frame a 401 (k) loan as a secured debt owed to a secured creditor, is that a 401(k) participant who borrows from his own account, is borrowing from himself. There is no separate entity to whom the debt is owed. The district court in Eisen v. Thompson, 370 B.R. 762 (N.D.Ohio 2007), explained it as follows:
Retirement plan loans are qualitatively different than secured debts such as home mortgages and car loans. The retirement plan administrator does not loan the plan participant the administrator's money. It simply deducts the requested loan amount from the participant's own account, and credits the loan payments and interest back to the participant's account. If the participant defaults on the loan, the plan administrator deducts the amount owed from the vested account balance, and repays the loan with this deduction. The participant must treat this deduction as a distribution which is taxable as income to the participant in the default year. The participant may also be subject to an early withdrawal penalty. But, the plan administrator has no right to payment under the Bankruptcy Code.
370 B.R. at 768, n. 10.
Granted, the loans are documented like secured transactions with a TILA Disclosure Statement and a Loan Application & Agreement that contains a collateral pledge of 50% of the value of EARL'S vested account. Yet the Agreement reflects that the loan is from EARL'S retirement plan account. The form of the documentation cannot get around the substance of the transaction, that EARL borrowed his own money.
Moreover, a retirement plan borrower has the right not to repay the loan. *888 Nonpayment comes with liability for income taxes and penalties, but nonpayment is a valid, lawful alternative. As such, EARL'S retirement plan trustee or administrator has no claim against EARL or the bankruptcy estate.[1] Without a claim, a 401(k) plan loan is not a "debt" for bankruptcy purposes. Eisen, 370 B.R. at 768. With no debt, the loans are not "secured debts" and cannot be deducted under Section 707(b)(2)(A)(iii).[2]
Where a presumption of abuse arises, a debtor may rebut the presumption by demonstrating "special circumstances," such as a serious medical condition or a call or order to active duty in the Armed Forces, to the extent such special circumstances justify additional expenses or adjustments of current monthly income for which there is no reasonable alternative. 11 U.S.C. § 707(b)(2)(B)(i).
As a general rule, only circumstances that are similar in nature to a "serious medical condition" or "a call or order to active duty in the Armed Forces" should be considered sufficient to rebut the presumption of abuse. In re Hanks, 362 B.R. 494, 501-02 (Bankr.D.Utah 2007); In re Johns, 342 B.R. 626, 629 (Bankr. E.D.Okla.2006). The similarity in nature of the two examples is that they are life circumstances that directly and unavoidably affect one's earning capacity or give rise to necessary, additional expenses.
As indicated above, EARL is not obligated to repay the 401(k) loans. Certainly he desires to replenish the fund balance in his retirement account, a wise and laudable goal. But the fact that he borrowed from those retirement funds and now wishes to pay the loans back is not a life altering circumstance of the kind referenced in the statute. It is simply the consequence of a prior financial decision. Without more, the DEBTORS have failed to establish the presence of "special circumstances" sufficient to rebut the presumption of abuse.[3]See, Eisen, 370 B.R. at 773 (repayment of loan from retirement funds not a "special circumstance").
The DEBTORS also argue that if forced into a Chapter 13 case, their retirement plan contribution and loan repayments are permitted deductions, which would result in unsecured creditors receiving only about $2,500, a 3.4% distribution under a 5-year plan. The DEBTORS characterize this distribution as not meaningful. They rely on In re Skvorecz, 369 B.R. 638 (Bankr.D.Colo.2007) for the proposition that an above-median debtor's Chapter 7 case should not be dismissed, even where the presumption of abuse arises, unless unsecured creditors would *889 receive a meaningful distribution in Chapter 13.
The Court is not persuaded that the potential payout to unsecured creditors in Chapter 13 is an appropriate consideration. The DEBTORS filed under Chapter 7 and the presumption of abuse has arisen under the applicable rules. There is no indication in the statute that Congress intended a lack of a meaningful payment in Chapter 13 to be a defense to dismissal. See Johns, 342 B.R. at 629 (potential payback of 0% to unsecured creditors in Chapter 13 not a "special circumstance").
The presumption of abuse arises in this case and has not been rebutted. Accordingly, the UST's Motion should be granted and the case dismissed unless the DEBTORS elect to convert to Chapter 13.
This Opinion constitutes this Court's findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. A separate Order will be entered.
IT IS SO ORDERED.
ORDER
For the reasons stated in an Opinion entered this day, IT IS HEREBY ORDERED that the Motion to Dismiss filed by the United States Trustee is GRANTED; the Debtors are given fourteen (14) days to convert to Chapter 13 or an order dismissing the case will be entered.
NOTES
[1] The trustee or administrator "pays" the loan by performing an accounting function that simply reduces the value of the account by the unpaid balance of the loan.
[2] In addition, as noted in Eisen, 370 B.R. at 769-72, most pre-BAPCPA courts held that an individual debtor's retirement plan loan does not give rise to a debt or a secured or unsecured claim under the Bankruptcy Code. Presumably aware of these decisions, by not directing courts to treat 401(k) loans as secured debts for purposes of the means test, Congress chose to leave the pre-BAPCPA common law unchanged. Strong support for this position is evidenced by Section 1322(f), which provides that amounts which a Chapter 13 debtor is required to pay on retirement loans during the pendency of a plan does not constitute disposable income for purposes of Section 1325. If loans from retirement plans are properly treated as secured debts there would be no need for this provision, because disposable income is what remains after payment of those debts.
[3] The DEBTORS do not argue, for example, that they are on the verge of retirement and that repayment of the 401(k) loans is necessary to preserve a minimal post-retirement standard of living.
|
333 F.Supp.2d 418 (2004)
MARKETING PRODUCTS MANAGEMENT, LLC and Chris Lundin, Plaintiffs,
v.
HEALTHANDBEAUTYDIRECT.COM, INC., Venture Cycle, LLC, VI Holdings, Inc., DMSG Holdings, Inc., Venture Media Limited Partnership, Ventech, Inc., and Brian Fraidin, Defendants.
Civ. No. AMD 03-3064.
United States District Court, D. Maryland.
September 7, 2004.
*419 JoAnne Zawitoski, Alexander M. Giles, Robert Leigh Hebb, Semmes Bowen and Semmes PC, Baltimore, MD, for Plaintiffs.
Lisa Crowley DeLessio, William C. Davis, III, Shulman Rogers Gandal Pordy and Ecker PA, Rockville, MD, for Defendants.
T. Christine Pham, Rosenberg Martin Funk Greenberg LLP, Baltimore, MD, for Consolidated Counter-Claimants.
MEMORANDUM OPINION
DAVIS, District Judge.
Plaintiffs, Marketing Products Management, LLC ("MPM") and Christopher Lundin, have instituted two federal claims and numerous state law claims against Brian Fraidin and several of the entities Fraidin controls: Healthandbeautydirect.com, Inc. ("HBD"), Venture Cycle, LLC ("Venture Cycle"), VI Holdings, Inc., DMSG Holdings, Inc. ("DMSG"), Venture Media Limited Partnership ("Venture Media"), and Ventech, Inc. ("Ventech"). Complete diversity of citizenship is absent. The two federal claims alleged by plaintiffs are said to arise under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"), and section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). All of plaintiffs' claims grow out of disputes over an agreement entered into by HealthandBeautyDirect, Inc. (a predecessor of defendant Healthandbeautydirect.com, Inc.), and MPM to market the LandRider, a bicycle with patented technology allowing the bike's gears to shift automatically.
Now before the court are defendants' motions to dismiss. The motions have been fully briefed and a hearing has been held. For the reasons stated herein, the motions shall be granted as to the two federal claims, and the state law claims shall be dismissed for lack of jurisdiction.
I.
The applicable standard for the review of a complaint challenged by a motion to *420 dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is well settled:
A Rule 12(b)(6) motion should only be granted if, after accepting all well-pleaded allegations in the plaintiff's complaint as true, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief. See Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). Furthermore, the "Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Rather, Rule 8(a)(2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
Migdal v. Rowe Price-Fleming Int'l, Inc., 248 F.3d 321, 325-26 (4th Cir.2001). It is also important to be mindful, however, that the defendants are entitled to have the legal sufficiency of the complaint fully examined and that, although the truth of all facts is assumed, consistent with the complaint's allegations, see Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), the court need not accept the legal conclusions drawn from the facts, see Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991), or unwarranted inferences, unreasonable conclusions, or arguments. See generally 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §§ 1357 (2d ed.1990 & 2004 Supp.).
II.
The following events state the basis of plaintiffs' claims. Of course, the factual allegations of the amended complaint are viewed (and any inferences from them are drawn) in the light most favorable to plaintiffs.
The Parties
Plaintiff MPM is a Delaware limited liability company with its principal place of business in Maryland. Am. Compl. (Hereinafter "Compl.") ¶ 2. Plaintiff Chris Lundin, the sole managing member of MPM, resides in Delaware. Id. Defendants HBD, Venture Cycle, VI Holdings, DMSG, and Ventech are Delaware corporations with principal places of business in Maryland. Id. ¶¶ 3-8. Venture Media is a Maryland limited partnership with its principal place of business in Maryland. Id. ¶ 7.
HBD, VI Holdings, DMSG, and Venture Media were engaged in the business of marketing products through "direct response advertising." Id. ¶¶ 3, 5-7. Fraidin created Venture Cycle in consequence of his dealings with plaintiffs to develop a parent brand name for the LandRider, limit HBD's liability for potential product liability claims from LandRider sales, accept LandRider sales revenues and facilitate LandRider accounting. Id. ¶ 4. Ventech was the largest shareholder in HBD. Id. ¶ 8. Fraidin controls each of these entities. Id. ¶ 9.
MPM was in the business of acquiring products and, like the defendants, marketing them through "infomercials." Id. ¶ 12.[1] In or about June 2000, Lundin acquired *421 the exclusive rights to make and sell the LandRider. Id. ¶ 13. Lundin worked with the inventor to design and to obtain patents for the product. He spent $150,000 and 18 months in uncompensated time on development of the LandRider. Id.
The Agreement
In October 2000, Fraidin, acting on behalf of HBD, responded to MPM's search for a joint venture partner to market and sell the LandRider on a world-wide basis. Id. ¶ 14. During the negotiations over an agreement, HBD, through Fraidin, made the following allegedly false representations by telephone, electronic mail and facsimile transmission:
. HBD was partnered with major national and international media outlets enabling HBD to advertise products via television and print ads at deeply discounted rates;
. Sinclair Broadcasting Group was an investor in HBD, providing HBD with the necessary financial backing to market the LandRider nationally and internationally; and
. John Schulberg, a well-known infomercial producer, was a member of HBD's management team.
Id. ¶ 16.
Effective as of January 1, 2001, MPM and HBD entered into a so-called "Consulting Agreement" (hereinafter, "the Agreement"). Pursuant to the Agreement, MPM agreed to assign its right to source, manufacture, market, and sell the LandRider, and to provide consulting services to HBD in connection with product sourcing, development, production, and marketing of the LandRider. Id. ¶ 18. In consideration for the assignment and MPM's consulting services, HBD agreed to pay compensation to MPM during the terms of the Agreement, to include: (1) specific monthly fees; (2) expense reimbursement; (3) 20% of direct operating profit; and (4) 20% of net purchase proceeds in the event of sale of all or substantially all of the assets, stock, or ownership in the LandRider. Id. ¶¶ 20-21. In accordance with these terms, HBD would provide MPM with a quarterly accounting of LandRider sales. Id. ¶ 33.[2]
The initial nine-month term of the Agreement expired on September 30, 2001; a subsequent three-month term expired on December 31, 2001. Id. ¶ 24. Meanwhile, on or about October 31, 2001, HBD and Fraidin advised MPM and Lundin that HBD would renew the Agreement for a third term only if Lundin agreed either to accept part-time employment with HBD in exchange for a sharply reduced monthly compensation, or, alternatively, only if MPM agreed to reduce its 20% equity participation.[3]Id. ¶ 25. Ultimately, the Agreement terminated. Id. ¶ 27. MPM received no additional profit participation or quarterly accountings. Id. ¶ 28.
The Infomercial
In or about January 2001, Lundin participated in the creation of, and appeared in, a LandRider infomercial. Id. ¶ 43. After the termination of the Agreement, HBD produced another infomercial, apparently an edited version of the original.[4]*422 The infomercial identifies Lundin as a "member of the Design team" for Venture Cycle and depicts him wearing a Venture Cycle t-shirt. Id. There were no separate negotiations over Lundin's appearance in the infomercial, and he signed no writing governing his appearance in the infomercial or HBD's future use of the infomercial. Nevertheless, Lundin alleges that his "reasonable expectation was that his likeness would only be used as long as he was employed and compensated as a [HBD consultant] pursuant to the Agreement." Id. Once the Agreement terminated, Lundin repeatedly and unsuccessfully requested that HBD and Fraidin edit Lundin out of the infomercial. Id. ¶ 45. The infomercial was still being broadcast at the time the amended complaint was filed. Id.
Predicate Acts
In purporting to allege a RICO claim, plaintiffs have included in the amended complaint the following description of alleged "fraudulent misrepresentations" made by Fraidin to non-parties to this case:
(1) The Schulberg Matter
In or around November 1, 1999, Fraidin induced Jon Schulberg, the principal of Schulberg Media Works, Inc. (collectively, "Schulberg"), to produce infomercials for Fraidin's businesses at or below cost and to provide marketing to HBD in exchange for a position on HBD's management team and stock options in HBD. He also represented that HBD would soon become a publicly traded company. Id. ¶ 47. Fraidin also told Schulberg that HBD had partnered with Sinclair Broadcasting Group, Inc., and that Sinclair had agreed to give HBD preferential rates for the airing of all infomercials, which would result in greater profit distribution to Schulberg. Id. MPM alleges that these statements were false and misleading when made and were intended to induce Schulberg to rely on them to his detriment. Id. ¶ 48. Schulberg produced infomercials, including a LandRider infomercial, but Fraidin did not compensate him. Id. ¶ 50. MPM alleges that Fraidin then "marketed" industry leaders Schulberg and Nick Cirmo to Lundin and others as shareholders and members of HBD so that Fraidin could trade on Schulberg's industry status when in fact Schulberg had no affiliation with HBD. Id. ¶ 49.[5]
(2) The MRSG Holdings/Quantum Companies Matter
In 2001, Fraidin, through VI Holdings, purchased the assets of a bankrupt direct marketing company, E4L, Inc. Id. ¶ 51. The purchased assets included equity in a group of marketing companies in the Asian Pacific Rim (hereinafter the "Quantum Companies"). The Quantum Companies held the rights to sell and distribute valuable product lines. In order to obtain the necessary support of the Quantum Companies management team and, in turn, the *423 bankruptcy court's approval of the purchase, Fraidin represented to the Quantum Companies that he would, inter alia, (1) keep the Quantum management team intact; (2) provide/facilitate a line of credit to the Quantum Companies to finance inventory purchasing; and (3) give the management team a 20% ownership interest in VI Holdings, legal title of which would be held in the name of a newly-formed entity, MRSG Holdings, Inc. Id. Fraidin also told the management team that Sinclair was a partner and investor in Fraidin's companies, and that this would give the Quantum Companies financial strength and market acceptance, and that Schulberg and Lundin were partners and members of MRSG Holdings' senior management group. Id.
These representations allegedly led the Quantum Companies management team to support the proposed stock purchase to their detriment. Id. ¶ 53. Once the stock purchase was approved, Fraidin forwarded $4.8 million of the Quantum Companies' funds to VI Holdings, of which only $2.5 million was used to pay debt service on the loan used to buy the Quantum Companies stock. The loan is now in default. Id. ¶ 54.
Fraidin used the Quantum Companies' resources to obtain foreign distribution rights for, and to market, the LandRider in Asia. In November 2002, Fraidin directed a Quantum Companies representative to issue revised purchase orders for the LandRider to make it appear that the cost of the bikes was $125 per bike instead of the actual per bike price of $110. Id. ¶ 55. In May 2003, Fraidin removed two directors and officers from the Quantum Companies board and ultimately forced them to resign because "they refused to execute a Quantum Companies guaranty to an amendment to the [loan used to purchase Quantum Companies stock], unless Fraidin produced the entire proposed amendment." Id. ¶ 56.
(3) The MotorUp Matter
MotorUp Corporation, a Pennsylvania corporation, is engaged in the sale, promotion, marketing, and distribution of a new and original engine oil additive known as MotorUp. Id. ¶ 57. Plaintiffs allege that MotorUp Corporation alleges that it entered into an exclusive distributorship arrangement with E4L, Inc., in 1999, to which Fraidin obtained rights when he acquired the Quantum Companies.[6] Plaintiffs further allege, "on information and belief," that MotorUp terminated the agreement in November 2001. Id. ¶ 60. Nonetheless, Fraidin caused MotorUp products to be sold in Japan. Id. ¶ 61. Revenues from these sales were used to fund HBD, Venture Media and Ventech, Inc. Id. ¶ 62.
III.
The issue presented is whether the allegations summarized above are sufficient, drawing all reasonable inferences in favor of plaintiffs, to state cognizable claims under RICO and the Lanham Act. I address each statutory claim in turn.
RICO
Manifestly, plaintiffs have failed to state a cognizable RICO claim against Brian Fraidin the only defendant named in the RICO count. Specifically, the amended complaint does not allege facts that would if true establish that Fraidin engaged in a "pattern of racketeering activity" comprised *424 of mail and wire fraud violations, as required under RICO.
Under RICO, a party may bring a civil cause of action when "injured in his business or property by reason of violation of section 1962." 18 U.S.C. § 1964(c). Section 1962 makes it unlawful for "any person employed by or associated with any enterprise engaged in, ... interstate or foreign commerce to conduct or participate in ... a pattern of racketeering activity." 18 U.S.C. § 1962(c). "Racketeering activities" are statutorily defined offenses, including mail and wire fraud. 18 U.S.C. § 1961(1). See also Beck v. Prupis, 529 U.S. 494, 497 n. 2, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000). A "pattern of racketeering activity" requires "at least two acts of racketeering activity, one of which occurred [after the adoption of the provision], and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering." 18 U.S.C. § 1961(5) (emphasis added). RICO's requirement that the predicate acts constitute a pattern
ensure[s] that RICO's extraordinary remedy does not threaten the ordinary run of commercial damages; that treble damage suits are not brought against isolated offenders for their harassment and settlement value; and that the multiple state and federal laws bearing on transactions ... are not eclipsed or preempted.
Menasco, Inc. v. Wasserman, 886 F.2d 681, 683 (4th Cir.1989).
Thus, while two acts are necessary to give rise to a civil action, something "beyond simply the number of predicate acts is involved." H.J., Inc. v. Northwestern Bell Tel. Company, 492 U.S. 229, 238, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989); see also id. at 237, 109 S.Ct. 2893 ("In our view, Congress had a more natural and commonsense approach to RICO's pattern element in mind, intending a more stringent requirement than proof simply of two predicates, but also envisioning a concept of sufficient breadth that it might encompass multiple predicates within a single scheme that were related and that amounted to, or threatened the likelihood of, continued criminal activity.").
In short, facts indicative of both "relatedness" among the predicate acts said to constitute the "pattern of racketeering activity" and the "continuity" of such acts must appear in a complaint asserting a cognizable RICO claim under 18 U.S.C. § 1964(c): "[A] plaintiff must allege a continuing pattern and a relationship among the defendant's activities by showing they had the same or similar purposes." Anderson v. Foundation for Advancement, Education and Employment of American Indians, 155 F.3d 500, 505 (4th Cir.1998) (citing H.J., Inc.).
In the Fourth Circuit, "relatedness" is a fact-based inquiry and is evidenced where acts "have the same or similar purposes, results, participants, victims or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." See id. at 505-06. Significantly, where the predicate acts involved are mail and wire fraud, courts are to be especially cautious and are to look for more than just two or more acts as "it will be the unusual fraud that does not enlist the mails and wires in its service at least twice." Id. at 506 (citing International Data Bank, Ltd. v. Zepkin, 812 F.2d 149, 155 (4th Cir.1987)).
More recently, Judge Harvey comprehensively summed up the controlling principles in this area of the law, with special emphasis on RICO claims based, as here, on allegations of mail and wire fraud, as follows:
*425 For many years, the Fourth Circuit has taken a somewhat restrictive view of RICO actions based on ordinary claims of fraud. What constitutes a RICO pattern of racketeering has been held by the Fourth Circuit to be a matter of criminal dimension and degree. International Data Bank Ltd. v. Zepkin, 812 F.2d 149, 155 (4th Cir.1987). The Fourth Circuit has pointed out that it was Congress' intent that RICO "serve as a weapon against ongoing unlawful activities whose scope and persistence pose a special threat to social well-being." Id. In HMK Corp. v. Walsey, 828 F.2d 1071, 1074 (4th Cir.1987), the Fourth Circuit emphasized that the heightened civil penalties of RICO "are reserved for schemes whose scope and persistence set them above the routine."
In providing a remedy of treble damages for injury caused by a violation of RICO's substantive provisions, Congress contemplated that "only a party engaging in widespread fraud would be subject to such serious consequences." Menasco, Inc. v. Wasserman, 886 F.2d 681, 683 (4th Cir.1989). The pattern requirement in § 1961(5) acts to insure that RICO's extraordinary remedy does not threaten the ordinary run of commercial transactions. Id. Treble damage suits therefore may not be brought against isolated offenders for their harassment and settlement value. Id. Multiple state laws bearing on commercial transactions are not to be eclipsed or preempted by RICO. Id.
The Fourth Circuit has been particularly cautious "about basing a RICO claim on predicate acts of mail and wire fraud ..." Al-Abood v. El-Shamari, 217 F.3d 225, 238 (4th Cir.2000). Quoting Anderson v. Foundation for Advancement, Educ. and Employment of Am. Indians, 155 F.3d 500, 506 (4th Cir.1998), the Fourth Circuit in Al-Abood stated that "it will be the unusual fraud that does not enlist the mails and wires in its service at least twice." Id. at 238. The Court emphasized that its caution in such cases "is designed to preserve a distinction between ordinary or garden variety fraud claims better prosecuted under state law and cases involving a more serious scope of activity." Id. Citing Menasco, the Court in Al-Abood reiterated that it had reserved RICO liability for ongoing, unlawful activities whose scope and persistence pose a special threat to social well-being. Id.
Very recently, Chief Judge Smalkin of this Court relied on Menasco and Al-Abood in dismissing a RICO claim. Lowry's Reports, Inc. v. Legg Mason, Inc., 186 F.Supp.2d 592, 593 (D.Md.2002). Citing GE Inv. Private Placement Partners v. Parker, 247 F.3d 543, 549 (4th Cir.2001), Chief Judge Smalkin held that the fact that an alleged RICO scheme based on mail or wire fraud will usually involve a number of separate uses of means of interstate commerce does not alone establish the requisite pattern of racketeering activity. Id. at 593. Relying on Fourth Circuit pronouncements which require district courts to take "a common sense approach to the scope of RICO," the RICO claim asserted by plaintiff in Lowry's Reports was dismissed. Id. at 594. See also Howard Oaks, Inc. v. Md. Nat'l Bank, 810 F.Supp. 674, 678 (D.Md.1993).
Maryland-National Capital Park and Planning Com'n. v. Boyle, 203 F.Supp.2d 468, 476 (D.Md.2002), aff'd, 63 Fed.Appx. 98 (4th Cir.2003).
Conscientious application of the above principles to the facts alleged in the amended complaint yields only one result. The ostensible predicate acts alleged by plaintiffs here are not sufficiently related to satisfy the pleading requirements of a *426 claim under RICO, and especially is this so considering that the underlying predicate acts are limited to wire fraud and mail fraud.
Although Fraidin was involved in all of the alleged predicate acts, and although he may have used one or more of his companies in carrying out one or more of the alleged acts, the acts and transactions alleged here simply are not otherwise connected. Plaintiffs accuse Fraidin of employing a "similar and related confidence scheme" to defraud several victims (i.e., MPM, Schulberg, the Quantum Companies, and MotorUp) of "intellectual property rights, money, the `intangible right to honest services,' and other valuable property rights" in connection with his overarching aim, which was "to further his ... scheme to acquire complete control over the technology, marketing, distribution and sale of the LandRider Bike." See Pl. Supp. Opp'n to Mot. to Dismiss at 6, 11.
But plaintiffs paint with too broad a brush. In giving the meaning of "pattern of racketeering activity" what plaintiffs describe as a "broad" interpretation, the Supreme Court did not set out to untether RICO from Congress' animating concerns. It must be recalled that the Court's specific holding in H.J., Inc. was to reject the Eighth Circuit's narrow rule "that predicate acts of racketeering may form a pattern only when they are part of separate illegal schemes." 492 U.S. at 236, 109 S.Ct. 2893. Indeed, in H.J., Inc., in a closely related context, Justice Brennan wisely warned courts away from an approach to the interpretation of RICO elements at too high a "level of generality:"
Nor does the multiple scheme approach to identifying continuing criminal conduct have the advantage of lessening the uncertainty inherent in RICO's pattern component, for "`scheme' is hardly a self-defining term." Barticheck v. Fidelity Union Bank/First National State, 832 F.2d, at 39. A "scheme" is in the eye of the beholder, since whether a scheme exists depends on the level of generality at which criminal activity is viewed. For example, petitioners' allegation that Northwestern Bell attempted to subvert public utility commissioners who would be voting on the company's rates might be described as a single scheme to obtain a favorable rate, or as multiple schemes to obtain favorable votes from individual commissioners on the ratemaking decision. Similarly, though interference with ratemaking spanning several ratemaking decisions might be thought of as a single scheme with advantageous rates as its objective, each ratemaking decision might equally plausibly be regarded as distinct and the object of its own "scheme." There is no obviously "correct" level of generality for courts to use in describing the criminal activity alleged in RICO litigation. Because of this problem of generalizability, the Eighth Circuit's "scheme" concept is highly elastic. Though the definitional problems that arise in interpreting RICO's pattern requirement inevitably lead to uncertainty regarding the statute's scope whatever approach is adopted we prefer to confront these problems directly, not "by introducing a new and perhaps more amorphous concept into the analysis" that has no basis in text or legislative history.
Id. at 241 n. 3, 109 S.Ct. 2893.
Accordingly, viewed through the prism of the Supreme Court's reasoning in H.J., Inc., plaintiffs' expansive characterization of the discrete acts comprising Fraidin's transactions with the alleged victims identified here as part of a "confidence scheme" whose purpose was to enable Fraidin to arrogate to himself the international *427 market for LandRider bikes is more an exercise in "labeling" than a forthright and substantive analysis of the facts alleged in the amended complaint and an application of law to the alleged facts. Undeniably, the amended complaint describes virtually every instance of modern commercial fraud, involving as they must the use of interstate wire and mail communications. Such "garden variety" commercial fraud is hardly described accurately as a "modus operandi." Rather, even as elaborately alleged in the amended complaint, the described predicate acts are, fundamentally, no more than sketches of unrelated, or only tenuously-related, commercial disputes arising out of Fraidin's international marketing businesses. That is, in every meaningful sense, they are "routine" allegations of "fraud in the inducement," a longstanding fount of state tort law beyond the intended scope of RICO. See Boyle, 203 F.Supp.2d at 475-76 ("[T]he heightened civil penalties of RICO `are reserved for schemes whose scope and persistence set them above the routine.'") (quoting HMK Corp. v. Walsey, 828 F.2d 1071, 1074 (4th Cir.1987)).
The foregoing analysis is borne out by plaintiffs' inability to marshal any case law support for their novel application of RICO to the allegations made in the amended complaint. For example, plaintiffs cite ePlus Technology, Inc. v. Aboud, 313 F.3d 166 (4th Cir.2002), for the proposition that the "pattern" requirement is satisfied as long as a RICO plaintiff alleges that defendants used similar fraudulent schemes to defraud "other" victims. Aboud is patently dissimilar to the case at bar, however.
Aboud involved a series of so-called "bust-out" schemes. "In a typical bust-out scheme, promoters form a seemingly legitimate corporation. At the outset of the scheme, the corporation's bills are paid, and its creditors are lured into extending larger and larger lines of credit. The schemers then use these inflated credit lines to obtain merchandise from suppliers, sell the merchandise at fire sale prices, and loot the corporation of its assets. Ultimately, the debtor corporation files for bankruptcy, and creditors can lose millions from unpaid and uncollectible debts. See United States v. Crockett, 534 F.2d 589, 592 (5th Cir.1976) (describing typical bust-out scheme)." Id. at 170-71. The Court noted in Aboud that "a bust-out scheme does not easily support RICO liability because it has a built-in ending. For such a scheme to succeed, the corporation must go bankrupt." See GE Inv., 247 F.3d at 549 ("Where the fraudulent conduct is part of the sale of a single enterprise, the fraud has a built-in ending point, and the case does not present the necessary threat of long-term, continued criminal activity.")." Id. at 182.
Ultimately, the Court sustained the judgment in favor of plaintiff under RICO on the ground that the trial evidence had demonstrated that the defendant had engaged in at least three bust-out schemes, each involving the same modis operandi, each involving numerous victims, and each concluding with an abandoned, asset-less corporate shell left behind by the schemers. Id. at 182-84.
Aboud provides no help to plaintiffs here. In particular, although Fraidin made allegedly false representations to Schulberg to induce him to produce infomercials for HBD, those false representations are not in any relevant way related to Lundin's claim of fraud in the inducement, based on alleged misrepresentations made well after any misrepresentations had been made to Schulberg. Compl. ¶¶ 47-49. The only common element of these two "confidence schemes" is that in each instance, Fraidin allegedly lied to *428 Schulberg and Lundin about the identity of his partners and his wealth in an effort to induce them to enter into agreements with one or more of his companies. If relationships this thin between discrete frauds were sufficient to satisfy RICO's pattern requirement, every state law fraud claim would be converted into a RICO cause of action, a result forbidden by longstanding Fourth Circuit precedent. E.g., HMK Corp. v. Walsey, 828 F.2d 1071, 1074 (4th Cir.1987).
The other "predicate acts" are even more tenuously related to Lundin's dispute with Fraidin or to Fraidin's dispute with Schulberg and are plainly insufficient to establish a "pattern of racketeering activity" under RICO. The amended complaint alleges that the Quantum Companies were fraudulently acquired by Fraidin and used as vehicles to conceal profits earned from the LandRider bicycle sales. Compl. ¶ 54. Again, however, there is no allegation that the Quantum Companies were acquired for the purpose of defrauding plaintiffs or that their acquisition or use in any way was connected to any injury suffered by the plaintiffs in consequence of the alleged breach of the Agreement, which is the core issue presented in this case.
Finally, plaintiffs do not even attempt to connect the MotorUp matter to the LandRider claims, other than to assert, at the highest level of generality imaginable, that in each instance, Fraidin attempted to defraud "victims out of money, intellectual property rights and assets." See Pl. Opp'n to Mot. to Dismiss at 13. In fact, the MotorUp allegations do not even involve a "confidence scheme," but, as Judge Titus noted recently in dismissing RICO claims brought by Schulberg against Fraidin, "while the MotorUp matter may constitute commercial fraud, it does not support a `pattern of racketeering activity.'" Healthandbeautydirect.com, Inc. v. Jon Schulberg, Civil Action No. RWT 03-3665, 2004 WL 2005783, Slip Op. at 7 (D.Md. Sept. 1, 2004).
None of the other principal cases on which plaintiffs rely for their expansive conception of a RICO "pattern of racketeering activity" lend support to plaintiffs. In Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130 (4th Cir.1993), the Court reversed the dismissal of a RICO claim based on allegations of bribery. The Court specifically declined to consider whether the mail and wire fraud claims were sufficient to state a claim under RICO. Id. at 1136-37. Thus, Mylan Laboratories is not relevant to the determination of whether the mail fraud and wire fraud "predicate acts" alleged in the amended complaint are sufficient to support the existence of a "pattern of racketeering activity" here.
Plaintiffs' reliance on Superior Bank v. Tandem National Mortgage, Inc., 197 F.Supp.2d 298 (D.Md.2000), is similarly misplaced. In Superior Bank, numerous defendants involved in the real estate industry (including mortgage brokers, title companies, and property appraisers) allegedly engaged in a scheme to induce the plaintiff to purchase 23 mortgage loans at fraudulently inflated prices on the secondary market. Id. at 307. In denying motions to dismiss, Judge Garbis reasoned that the "relatedness" requirement was satisfied because, drawing all inferences in favor of the plaintiff's allegations, the defendants' actions were aimed at a single victim with the express purpose of inducing the victim (and perhaps other mortgage loan purchasers) to buy the loans, and that the schemer/mortgage brokers, which were in privity with the plaintiff purchaser, used the same title companies and property appraisers, each of whom employed the same means (e.g., falsely-made documents and inflated appraisals) *429 to effectuate the fraud. Id. at 323-24. In contrast, here, the amended complaint alleges three different series of fraudulent representations, that injured three different non-parties, for three different express purposes. Although, viewed expansively, two of the acts the Schulberg matter and the MPM matter were connected to the LandRider bike, unlike the scheme in Superior Bank, the acts here did not involve a singular purpose. Reliance on a "similarity of purpose" at the level of generality urged by plaintiffs, e.g., simply to "get rich quick," or "to corner the market" in some product, would denigrate the pointed efforts of the Supreme Court and the Fourth Circuit to harmonize RICO claims with "routine" cases of fraud. See, e.g., Menasco, 886 F.2d at 683.
Finally, Toucheque v. Price Brothers Co., 5 F.Supp.2d 341 (D.Md.1998), does not support a ruling in favor of plaintiffs. In Toucheque, Judge Young denied the motion to dismiss the RICO claim and concluded that the "relatedness" requirement was met because the predicate acts were directed at the "same individual by the same defendants using the same extortionate methods continuously for three years." Id. at 346 (emphasis added). Clearly, as discussed supra, that level of "relatedness" does not remotely exist in this case.
"Congress did not intend for RICO to be a stalking-horse for the punishment of every wrongful act." Id. Accordingly, because plaintiffs have failed to allege facts that if established by evidence would support a RICO claim, count one shall be dismissed with prejudice.
Lanham Act
Defendants Fraidin, Venture Cycle, and HBD have moved to dismiss count six of the amended complaint, which alleges a claim for violation of section 43(a) of the Lanham Act.[7] The Lanham Act claim is based on defendants' broadcast of an infomercial that is allegedly "literally false and/or misleading in that it misrepresents as fact that ... Lundin is still affiliated with Venture Cycle in a management capacity and that he still endorses, sponsors or approves of the LandRider Bicycle." Compl. ¶ 99 (emphases added). In particular (and more accurately), the infomercial describes Lundin as a member of Venture Cycle's "Design Team" for the LandRider bike and depicts him "touting" the LandRider technology. Plaintiffs contend that this depiction is literally false because at the time of the broadcast, HBD had terminated the Agreement. In the alternative, plaintiffs contend that the infomercial is "literally true but misleading" because Lundin endorses the LandRider bike in the infomercial, and the present broadcast of a past endorsement is allegedly "likely *430 to confuse customers" as to Lundin's continued endorsement of the LandRider.[8]
In this respect, plaintiffs assert a Lanham Act "false endorsement" claim.[9] Judge Messitte recently summarized the elements of such a claim as follows:
Courts have recognized a § 43(a) injury "where the plaintiffs' voices, uniforms, likenesses, published words, or names were used in such a way as to deceive the public into believing that they endorsed, sponsored, or approved of the defendant's product." Advanced Res. Int'l, Inc. v. Tri-Star Petroleum Co., 4 F.3d 327, 334 (4th Cir.1993). In an action for false endorsement, the plaintiff must prove the likelihood of consumer confusion as to the origin, approval or endorsement of the product. See Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1110 n. 9 (9th Cir.1992).
Comins v. Discovery Communications, Inc., 200 F.Supp.2d 512, 522 (D.Md.2002). A contested statement or representation violates section 43(a) of the Lanham Act where it is either "false on its face or, although literally true, likely to mislead and to confuse customers given the merchandising context." Mylan Labs., Inc., 7 F.3d at 1138.
Plaintiffs' claim that the infomercial is false on its face is without merit. The allegedly false statement that Lundin was a "member of the Design Team," is in fact true. The amended complaint states: "Lundin spent ... approximately 1.5 years in uncompensated time in assisting the inventor in developing LandRider Technology...". Compl. ¶ 13. Thus, it is clear that whether or not Lundin was employed by or consulting with Fraidin and his companies when the infomercial was created, edited or broadcast, he was part of the LandRider Design Team.
Furthermore, the continued use of the infomercial, either in its original or edited form, is neither misleading nor "likely to confuse" consumers in any manner relevant to plaintiffs' Lanham Act false endorsement claim. The only "impression" that the infomercial leaves on the viewer is that Lundin was part of the LandRider Design Team and that he believes the Land Rider is a desirable product for biking enthusiasts. Both assertions were and are true. As stated, supra, Lundin funded and assisted in the development of the LandRider technology and worked on obtaining the patent. Importantly, he also participated in the creation of an infomercial in which he allowed himself to be filmed wearing a Venture Cycle t-shirt. Although Lundin did not execute a written consent to appear in the infomercial and alleges that his reasonable expectation was that his likeness would only be used while he was employed by HBD pursuant to the Agreement, there are no facts *431 alleged that would show that HBD's use of Lundin's image "misleads" or "confuses" the public, or is likely to do so. Instead, the facts alleged demonstrate that the infomercial identifies Lundin's actual association with and assessment of the LandRider technology.
Tellingly, at the hearing on the motion to dismiss, plaintiffs did not dispute my assertion that the only reason plaintiffs wish now to "withdraw" Lundin's endorsement of the LandRider is because Fraidin has cut them out of the revenue presently being generated by LandRider sales, allegedly in breach of the terms of the Agreement. But, as a matter of law, Lundin may not be heard to claim a "likelihood of confusion" to the bicycle-consuming public on this basis. It is surely true that, apart from issues of national or global environmental impacts or the payment of living wages to workers, "the public" is wholly unconcerned with the niceties of the complex commercial agreements which underlie the marketing of this country's vast array of trademarked consumer goods. "Confusion" as to whether Lundin is getting paid does not count.
Manifestly, this case bears no resemblance to those leading cases in which courts upheld false endorsement claims. In those cases, the facts generally involved depictions of or statements attributed to well-known individuals who in fact were in no way associated with the defendant's product. See, e.g., Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 (2d Cir.1979) (recognizing claim under section 43(a) where uniform worn by star of X-rated movie was confusingly similar to plaintiff Dallas Cowboy Cheerleaders' trademark uniforms, falsely creating the impression that plaintiffs "sponsored or otherwise approved the use" of the uniform); Allen v. Men's World Outlet, Inc., 679 F.Supp. 360, 368 (S.D.N.Y.1988) (celebrity stated a claim under section 43(a) by showing that advertisement featuring photograph of a look-alike falsely represented that advertised products were associated with him); Chicago Lawyer, Ltd. v. Forty-Sixth Ward Regular Democratic Organization, 220 U.S.P.Q. 511, 1982 WL 1283 (N.D.Ill. Sept. 17, 1982) (plaintiff publisher had cause of action under Lanham Act where the defendant, a democratic precinct captain, reprinted excerpts from plaintiff's publication so as to falsely imply plaintiff's endorsement and sponsorship of defendant's candidates); Better Business Bureau of Metropolitan Houston, Inc. v. Medical Directors, Inc., 681 F.2d 397 (5th Cir.1982) (Better Business Bureau had Lanham Act claim when weight reduction center used its name in its advertising, falsely implying that its program was endorsed by the Better Business Bureau).
During oral argument, plaintiffs drew attention to Ryan v. Volpone Stamp Co., Inc., 107 F.Supp.2d 369 (S.D.N.Y.2000), as supportive of their Lanham Act claim. In Ryan, former Major League Baseball pitcher Nolan Ryan brought suit against a former licensee, Volpone Stamp Co., Inc., for its continuing sale of stamps, coins, autographed items, and other memorabilia utilizing his name, signature, and likeness. Ryan alleged that Volpone improperly sold such products after he had terminated the licensing agreements pursuant to which he had authorized the marketing of such products. Id. at 375.
In opposing Ryan's motion for a preliminary injunction, Volpone argued that there was no "likelihood of confusion" or actual confusion under section 43(a) of the Lanham Act because, inter alia, production of the goods had occurred during the existence of the licensing agreements, was therefore authorized, and, consequently, the goods were "genuine," and also because *432 a former licensee is entitled to dispose of its inventory under the circumstances extant in that case. Id. at 383. The court rejected the former licensee's defenses and concluded that Ryan had stated a viable Lanham Act false endorsement claim, notwithstanding the fact that he had indeed authorized the manufacture of the products prior to the termination of the licensing agreement, and notwithstanding the fact that Ryan was accused of breach of contract. Id. at 386 ("Defendant contracted for the right, the license, to use Nolan Ryan's name, signature and likeness in exchange for royalties. Alleging a breach by Ryan, Volpone chose to stop paying royalties, which it had the right to do. However, having made that choice, it did not have the right to also continue enjoying the license.") (emphasis added).
This result is unsurprising. Just as a franchisor or similar licensor of trademarked goods and services has a federally-protected, enforceable right to impose conditions on the use of its marks, and to withdraw its permission for the continued use of its marks, in interstate commerce so as to avoid a "likelihood of confusion," i.e., to protect its rights in maintaining the purity, quality, or soundness of its licensed goods and services, so too, does a "personality" have a Lanham Act right to impose conditions on, and to withdraw his consent to, the continuing use of his "mark." Cf. ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915, 926 (6th Cir.2003)(observing that in a "false endorsement" claim under the Lanham Act, the "`mark' at issue is the plaintiff's identity").
Ryan has no application to the case at bar. In Ryan, the court was faced with a claim for unauthorized merchandising, i.e., in express violation of the terms of the grant of authority, of Ryan's "personality," indeed, products with the plaintiff's actual name and autograph on them. Those facts bear no resemblance to the facts here, where the claim is based on the broadcast of an infomercial that is in no sense a misrepresentation of Lundin's association with the LandRider bike technology, and is in no sense a violation of the authority granted by plaintiffs to the defendants to use Lundin's likeness. Thus, Ryan does not preclude a ruling in favor of Fraidin on the motion to dismiss.
Indeed, plaintiffs' reliance on Ryan exposes the true nature of their claim. In essence, plaintiffs seek to have the court imply under the Lanham Act a cause of action that would permit one who donated his image for commercial purposes in electronic media without an agreement containing conditions or limitations as to such use, to have the court create or impose such an agreement where one does not exist, regulating the truthful use by a defendant of the plaintiff's donated image which defendant preserved in such electronic media. In other words, plaintiffs' Lanham Act claim rests entirely on the extraordinary assertion that Lundin had a "reasonable expectation [which, although he did not protect it by contract, he is entitled to have the courts protect as a matter of federal law] that his likeness would only be used as long as he was employed and compensated as an [HBD consultant] pursuant to the Agreement." Comp. ¶ 47 (alterations added). I can discern no basis in law for implying such a cause of action, however. To the contrary, in respect to a sale of trademarked goods, federal law is precisely to the contrary. Shell Oil Co. v. Commercial Petroleum, Inc., 928 F.2d 104, 107 (4th Cir.1991)("As a general rule, trademark law does not apply to the sale of genuine goods bearing a true mark, even if the sale is without the mark owner's consent. NEC Electronics v. CAL Circuit Abco, 810 F.2d 1506 (9th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987)."); see also John Paul *433 Mitchell Systems v. Pete-N-Larry's, Inc., 862 F.Supp. 1020, 1023 (W.D.N.Y.1994)("Of course, the mere fact that the sale is unauthorized that is, without consent does not give rise to an infringement claim when the marked goods are genuine. See H.L. Hayden Co. of N.Y. v. Siemens Medical Systems, 879 F.2d 1005, 1023 (2d Cir.1989) (`the unauthorized sale of a trademarked article does not, without more, constitute a Lanham Act violation').").
State law claims of invasion of privacy(right to publicity)/ misappropriation and/or unjust enrichment may provide a remedy for such a "wrong" as that plaintiffs allege here, but plaintiffs have not demonstrated that federal law provides a remedy. "Although publicity rights are related to laws preventing false endorsement, they offer substantially broader protection." Cardtoons, L.C. v. Major League Baseball Players Assoc., 95 F.3d 959, 967 (10th Cir.1996). Accordingly, the ostensible Lanham Act "false endorsement" claim, based on Lundin's withdrawal of consent to the continued use in the infomercial for the LandRider bike of his donated image, shall be dismissed with prejudice.
IV.
For the reasons stated above, I conclude that plaintiffs have failed to state a claim upon which relief can be granted under RICO or the Lanham Act. In the absence of complete diversity of citizenship, I shall decline to exercise supplemental jurisdiction and shall dismiss without prejudice the remaining, state law claims. 28 U.S.C. § 1367(c)(3); see generally Andrews v. Anne Arundel County, Md., 931 F.Supp. 1255, 1267-68 (D.Md.1996), aff'd, 114 F.3d 1175 (4th Cir.)(table), cert. denied, 522 U.S. 1015, 118 S.Ct. 600, 139 L.Ed.2d 489 (1997). An order follows.
NOTES
[1] Judge Haight has described an "infomercial" as follows:
An "infomercial" is a half-hour long television program which starts out looking like a real program, but is in effect an extended commercial for a product or product line. These presentations contain no info and a great deal of mercial. A steady diet of infomercials is equivalent to life in the Fifth Ring of Hell.
Home Shopping Club, Inc. v. Charles of the Ritz Group, Inc., 820 F.Supp. 763, 772 (S.D.N.Y.1993).
[2] The Agreement also provided that if HBD terminated the Agreement for any reason other than cause or declined to renew it at the end of any term or breach, then MPM's profit participation would survive the termination. Compl. ¶ 26.
[3] "Equity Compensation ... is defined as a percentage of net purchase proceeds in the event of a sale of all or substantially all of the assets of, or a majority interest in the stock or equity ownership of the Bike Product." Comp. ¶ 25.
[4] During the hearing, plaintiffs clarified that two infomercials were produced prior to the termination of the Agreement and a third was produced after the Agreement terminated, apparently employing edited material depicting Lundin's appearance in the earlier infomercials. It is this third, later-produced infomercial on which plaintiffs rely as the basis of their claim under the Lanham Act. My analysis of the Lanham Act claim does not hinge on the date of production of any of the infomercials. See infra pp. 20-28.
[5] In Healthandbeautydirect.com, Inc. v. Jon Schulberg, Civil Action No. RWT 03-3665 (D.Md.), Fraidin and Schulberg are in litigation over some of the issues which plaintiffs seek to import into this case. In a Memorandum Opinion and Order filed on September 1, 2004, Judge Titus granted Fraidin's motion to dismiss under Fed.R.Civ.P. 12(b)(6) and dismissed the RICO claim Schulberg had asserted as a part of his counterclaim in that case.
[6] While plaintiffs seem to acknowledge that they have no standing to assert as a ground for relief wrongs done by Fraidin to others, it is nevertheless remarkable that, even under the encompassing scope of a genuine RICO claim, they boldly allege the allegations of others as a basis for their claims.
[7] Defendants' principally argued in support of their motion to dismiss that plaintiffs' Lanham Act claim fails because Lundin lacks the "celebrity" status they say is essential to a cognizable "false endorsement" claim. See, e.g., ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915, 925-26 (6th Cir.2003)("False endorsement occurs when a celebrity's identity is connected with a product or service in such a way that consumers are likely to be misled about the celebrity's sponsorship or approval of the product or service.")(emphasis added). I reject this contention; it cannot be said at this stage, as a matter of law, that Lundin's persona so lacks commercial value as to fall without the scope of Lanham Act protection. To the contrary, if, drawing all inferences in favor of plaintiffs, Lundin could indeed allege facts which, if proven, would support a finding of a "likelihood of confusion among the public" in respect to his "endorsement" of the LandRider bike, I would deny the motion to dismiss. As discussed in text, however, I am not persuaded that, even drawing all inferences in favor of Lundin, the allegations of the amended complaint would support a finding of a "likelihood of confusion."
[8] Plaintiffs attached a copy of the infomercial to the amended complaint. I have viewed the infomercial in its entirety, although Lundin actually appears in less than two minutes of the 30 minute infomercial.
[9] As relevant here, section 43(a) of the Lanham Act provides:
(a) Civil action
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person ... shall be liable in a civil action.
15 U.S.C. § 1125(a)(1)(A).
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2365
LAURENCE W. SCHWARTZ,
Plaintiff – Appellant,
v.
FIRST UNITED BANK & TRUST,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:08-
cv-02019-AMD)
Submitted: August 27, 2009 Decided: September 11, 2009
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Griffin Vann Canada, Jr., James Andrew Sullivan, Jr., MILES &
STOCKBRIDGE, P.C., Rockville, Maryland, for Appellant. Roger
Schlossberg, Hagerstown, Maryland; John J. Coyle, Jr.,
Cumberland, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Laurence W. Schwartz appeals the district court’s
order dismissing his declaratory judgment action. We have
reviewed the record and find no reversible error. Accordingly,
we affirm for the reasons stated by the district court.
Schwartz v. First United Bank & Trust, No. 1:08-cv-02019-AMD
(D. Md. Nov. 24, 2008). We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
2
|
373 F.Supp.2d 1230 (2005)
UNITED STATES of America, Plaintiff,
v.
Brandon CLARK, Defendant.
No. CR 05-914 JB.
United States District Court, D. New Mexico.
June 2, 2005.
David C. Iglesias, United States Attorney for the District of New Mexico, Stan Whitaker, Assistant United States Attorney, Albuquerque, NM, for Plaintiff.
Whitney Johnson, Albuquerque, NM, for Defendant.
MEMORANDUM OPINION AND ORDER
BROWNING, District Judge.
THIS MATTER comes before the Court on the Defendant's Motion to Withdraw and for Appointment of New Counsel, filed May 31, 2005 (Doc. 20). The Court held a hearing on this motion on June 1, 2005.[1] The primary issue is whether the Court should allow Defendant Brandon Clark's attorney, Whitney Johnson, to withdraw. The Court will grant Clark's motion and appoint new counsel.
PROCEDURAL BACKGROUND
Clark is in custody. In his motion, Clark indicates that he does not want Whitney Johnson to represent him. He requests that the Court allow Johnson to withdraw as his counsel and that the Court appoint new counsel to represent him. Clark has advised Johnson that he sent two letters to the Court requesting that the Court appoint a different lawyer. See Letter from Brandon Clark to James Browning, postmarked May 25, 2005 (Doc. 21). Clark believes that Mr. Johnson has not communicated sufficiently with him and has not taken sufficient actions to represent him.
Clark's parents likewise do not want Mr. Johnson to represent Clark. Clark and his parents are not satisfied with Mr. Johnson's representation and advice. Mr. Johnson believes that Clark and his parents *1231 do not trust him and do not believe that he is providing good representation to Clark. The parents have sought the services of another attorney, although as of late May, 2005, they had not retained that attorney.
The parents' concerns are relevant because they and their children and relatives are witnesses to the events at issue in this case. Their cooperation with Clark's defense attorney is important. Clark represents that communication between Clark, Mr. Johnson, and the witnesses is strained and ineffective, and that Mr. Johnson has been unable to interview some of the family witnesses by telephone at the family residence concerning the facts of the case.
Clark has asked Mr. Johnson to request that the Court allow Mr. Johnson to withdraw and that the Court appoint new counsel. Mr. Johnson joins that request. The United States does not oppose Clark's request. See Transcript at 7:20 8:11.
Mr. Johnson advised Clark that, if the Court appoints new counsel, the Court would continue the trial currently on the docket for June 6, 2005, and would probably not reset the trial until July or August. Clark stated that such a continuance was acceptable and that he would waive his speedy trial right to have new counsel appointed. At the hearing, the Court explained to Clark that the trial set for June 6, 2005, would have to be vacated if the Court appointed new counsel. See Transcript at 6:7-11. Clark indicated that he understood that he had rights to a speedy trial and he waived those rights. See id. at 6:12-19.
ANALYSIS
As a result of the lack of trust that Clark and his parents have in Mr. Johnson, and because they do not perceive that Mr. Johnson is providing good representation for Clark, the attorney-client relationship is such that Mr. Johnson cannot adequately represent Clark. The Court will therefore grant Clark's motion to allow Mr. Johnson to withdraw and will appoint new counsel. Because of Clark's request for new counsel, and because of the ongoing investigation and discovery matters, additional time to prepare this case for trial would allow both parties to better present the matter to the jury and to the Court. The Court will vacate the trial set for June 6, 2005. The Court believes that the ends of justice served by granting Clark's motion and vacating his trial outweigh the interests of the public and Clark in a speedy trial.
IT IS ORDERED that the Defendant's Motion to Withdraw and for Appointment of New Counsel is granted. The trial set for June 6, 2005 is vacated. The Court extends the time for filing motions, notices and all other required actions until thirty days after appointment of new counsel.
NOTES
[1] At the hearing on this motion, the United States appeared telephonically. Clark did not object to the telephonic appearance. See Transcript of Hearing at 3:1-6, June 1, 2005 (hereinafter "Transcript").
The Court's citations to the transcript of the hearing refer to the Court Reporter's original, unedited version. Any finalized transcript may contain slightly different page and/or line numbers.
|
366 P.2d 369 (1961)
Lee CORDER, Plaintiff in Error,
v.
William C. LAWS, Lida Z. Laws, Robert R. Laws and John F. Pierce, as Administrator of the Estate of Florence Laws Pierce, Deceased, Defendants in Error.
No. 19543.
Supreme Court of Colorado. En Banc.
November 6, 1961.
Rehearing Denied December 4, 1961.
*370 Bentley M. McMullin, Aurora, Albert H. Jewell, Denver, for plaintiff in error.
Fred L. Schwartz, Robert Meer, Denver, for defendants in error.
McWILLIAMS, Justice.
On or about December 30, 1957, William C. Laws, acting for himself and also for Lida Z. Laws, Robert R. Laws and Florence Laws Pierce, purchased from Lee Corder commercial property situate on South Broadway in Englewood, the purchase price for the property being $46,000. The present controversy stems from the events leading up to this transfer of real property.
The Laws subsequently brought an action against Corder charging him with fraud and deceit which allegedly induced them to purchase the subject property to their resultant damage. Corder admitted the sale of the property, but denied that he had in any way deceived the Laws.
Upon trial to a jury the trial court at the conclusion of all the evidence, after appropriate motion, directed the jury to return a verdict in favor of the Laws and submitted to the jury for its determination the one issue of damages. The jury assessed the damages in the amount of $5,200. By writ of error Corder here seeks reversal of the judgment entered on this verdict.
In his motion for a new trial, Corder suggests that the trial court committed error in some forty different ways, which may conveniently be grouped as follows: the trial court (1) erred in directing a verdict for the Laws; (2) erroneously instructed the jury on the measure of damages; and (3) erroneously excluded evidence sought to be introduced by Corder, and erroneously admitted evidence offered by the Laws.
The evidence adduced upon trial was not in conflict as to the material facts. In October, 1957, Corder determined to sell the property which is the subject of this litigation and he deputized one DeCamp to be his agent in the transaction. DeCamp in a comparatively short time succeeded in interesting the Laws in the property, which interest eventually ripened into their purchase of the property on December 30, 1957 for $46,000.
It is undisputed that Corder told DeCamp that the entire property was then under lease, and that the total monthly rental income was $725. Also, it was definitely established that Corder specifically advised DeCamp that the entire second floor was then under lease to a fraternal lodge at a monthly rental of $200, and that this lease, which was entered into on May 13, 1957, was for a term of five years. DeCamp relayed this information to William C. Laws, who handled this transaction for the Laws family.
Prior to the actual transfer of the property the Laws asked to see all leases on the various units of the property for the purpose *371 of submitting them to their attorney for examination. Corder delivered all existing leases to William C. Laws, including the lease with the fraternal lodge which covered the entire second floor, called for monthly rent in the amount of $200, and by its terms was to run until May 13, 1962.
It was admitted by Corder that contrary to the terms of his written lease with the fraternal lodge, which lease he had exhibited "without comment" to William C. Laws, he had a "private understanding" with the lodge that it need pay no rent for the first six months of their tenancy. In this connection it was the intention of the lodge to remodel the second floor so as to better serve its fraternal purpose. However, this remodeling was never fully completed and in October, 1957, the officers of the lodge officially advised Corder that they were financially unable to go through with their transaction. No money rentals were ever paid Corder by the lodge. Notwithstanding the admitted knowledge of Corder that the lodge did not intend to occupy the second floor of the building and that it could not live up to its lease, he nevertheless, through his agent, advised William C. Laws that the total monthly rental income from the property was $725, which included $200 for rental of the second floor to the lodge, and thereafter upon request had his agent deliver to the Laws the five year lease with the fraternal lodge. The evidence strongly suggests that Corder not only permitted, but actually encouraged the lodge not to move out immediately, so that there would be no intimation to would-be purchasers that the second floor was in fact unoccupied.
The Laws had no knowledge of the true nature of the relationship between Corder and the lodge, and relied upon the written lease as fully and accurately reflecting the true state of affairs.
Soon after the Laws acquired the property the fraternal lodge moved out what belongings it had in the building, and thereafter, for nearly two years the Laws tried without success to rent the second floor, but finally rented it for $160 per month.
Upon discovery that they had been deceived as to the rental status of the entire second floor of the building which they had just purchased, the Laws elected to affirm the transaction and thereafter promptly brought their action in fraud. In their complaint the Laws generally charged Corder with misrepresenting the monthly rental income of the subject property, and specifically alleged that Corder falsely represented that he had been and was receiving $200 per month for the rental of the second floor of the building, and finally that under all the circumstances, the written lease between Corder and the lodge was a "sham."
Such being the state of the record, the trial court committed no error in directing a verdict for the Laws on the issue of liability. 37 C.J.S. Fraud§ 123, p. 448 states:
"The general rule that questions of fact are to be determined by the jury and questions of law by the court applies in an action for fraud. Thus, if there is proof as to all the essential elements of fraud, and the evidence is conflicting, the question of fraud is one of fact for the jury * * *. On the other hand, the issue of fraud should not be submitted to the jury where the facts are undisputed and are susceptible of only one reasonable conclusion. * * Generally, where the evidence is such that reasonable men can reach but one conclusion, the court may direct a verdict * * *." (Emphasis supplied.)
In the instant case all of the essential elements of fraud, as enumerated in Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458, 71 P.2d 154 for example, are established by the undisputed and uncontroverted facts. Such being the situation, the trial court quite properly directed a verdict in favor of the Laws.
In Cahill v. Readon, 85 Colo. 9, 273 P. 653, 655, a factual situation was presented which is strikingly parallel to that of the instant case. There the seller of commercial property falsely represented that he (the seller) had "persons ready to rent it" at the rate of $100 per month. The trial court as the trier of the facts found for *372 the seller, but on review this judgment was reversed and the trial court was directed as a matter of law to find for the purchaser, who had relied on the seller's representation that he had persons "standing in line" to rent the property. In so holding, the Court said:
"The gist of a fraudulent misrepresentation is the producing of a false impression upon the mind of the other party * * * the means of accomplishing it are immaterial."
In the instant case Corder by his actions produced a "false impression upon the mind" of Laws to the effect that there was a lease covering the second floor of this building which was of value, when in truth it was of little or no value. Corder testified that he caused this five year lease to be exhibited to the Laws "without comment". Under the circumstances he had a duty to "comment" and inform the Laws of the exact nature of the then existing relationship between himself and the lodge. See Cohen v. Vivian, 141 Colo. 443, 349 P.2d 366, involving an analogous but different factual situation.
Corder next urges that the trial court erroneously instructed the jury as to the measure of damages. The jury was instructed that the measure of damages is the difference between the actual value of the property and what its value would have been had Corder's representations been true. Corder concedes that this instruction is proper under Otis & Co. v. Grimes, 97 Colo. 219, 48 P.2d 788, but urges that we overrule that decision. Stare decisis suggests, however, that instead of overruling that decision we adhere to it. Recognizing that there was a split of authority, the Court in Otis & Co. v. Grimes, knowingly adopted the "benefit of the bargain" rule, and the fact that the Laws, some years later, sold the subject property at a profit is of no legal significance. See, also, Herfort v. Cramer, 7 Colo. 483, 4 P. 896; Peppers v. Metzler, 71 Colo. 234, 205 P. 945 and Sposato v. Heggs, 123 Colo. 553, 233 P.2d 385.
As to the claim of error based on the reception and rejection of evidence, careful examination of the record convinces us that the trial court did not commit reversible error in any of its numerous rulings on the propriety of questions sought to be propounded and the materiality of the answers thereto.
In short, the trial court correctly analyzed the situation and instead of shifting its responsibility to the jury it quite properly directed a verdict for the Laws. In this connection, the following language of the U. S. Supreme Court in Patton v. Texas and Pacific Railway Co., 179 U.S. 658, 21 S.Ct. 275, 276, 45 L.Ed. 361, is deemed appropriate:
"Hence it is that seldom an appellate court reverses the action of a trial court in declining to give a peremptory instruction for a verdict one way or the other. At the same time, the judge is primarily responsible for the just outcome of the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determination, nor simply ruling on the admissibility of testimony, but one who in our jurisprudence stands charged with full responsibility. He has the same opportunity that jurors have for seeing the witnesses, for nothing all those matters in a trial not capable of record, and when in his deliberate opinion there is no excuse for a verdict save in favor of one party, and he so rules by instructions to that effect, an appellate court will pay large respect to his judgment."
Thereafter, the jury acting under a proper instruction as to the measure of damages determined the Laws' damage to be $5,200, and there being competent evidence to support the verdict, the judgment must be affirmed.
DAY, J., dissents.
FRANTZ and PRINGLE, JJ., not participating.
|
Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1371
MARITIMES & NORTHEAST PIPELINE, L.L.C.,
Plaintiff, Appellee,
v.
NICHOLAS J. DECOULOS, as Trustee of Willowdale Realty Trust,
Defendant, Appellant,
1.55 ACRES OF LAND, MORE OR LESS, IN PEABODY, MASSACHUSETTS;
DANVERS SAVINGS BANK; MATTRESS GIANT CORPORATION;
CELLCO PARTNERSHIP, d/b/a VERIZON WIRELESS,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Barbadoro,* District Judge.
Nicholas J. Decoulos, for appellant.
James T. Finnigan, with whom Rich May, P.C., was on brief, for
appellee.
August 16, 2005
*
Of the District of New Hampshire, sitting by designation.
Per Curiam. This appeal arises out of an action for
condemnation of land pursuant to the Natural Gas Act ("NGA"), 15
U.S.C. § 717f(h). The NGA grants private natural gas companies the
federal power of eminent domain in the event that they hold a
Certificate of Public Convenience and Necessity ("CPCN") from the
Federal Energy Regulatory Commission ("FERC") and either cannot
acquire property by contract, or are unable to agree with the owner
of the property on the amount of compensation to be paid for a
necessary right of way for the transportation of gas. Id.
Appellee Maritimes & Northeast Pipeline, L.L.C.
("Maritimes"), a natural gas company as defined in the NGA, 15
U.S.C. § 717a(6), and the holder of a CPCN authorizing the building
and operation of a 25-mile, 30-inch gas pipeline from Methuen to
Salem, Massachusetts, filed the present action to take temporary
and permanent easements on 1.55 acres of land located in Peabody,
Massachusetts. The purpose of the easements is to construct and
operate an underground natural gas pipeline along the approved
alignment of the CPCN. The temporary easement requires
approximately 0.14 acres of the property, while the permanent
easement needs 0.25 acres. The land is owned by Willowdale Realty
Trust, of which appellant Nicholas J. Decoulos is the trustee. A
building on the trust land is leased to the Mattress Giant
Corporation and Celico Partnership d/b/a Verizon Wireless.
-2-
Maritimes attempted to purchase the easement rights over
the course of several months of negotiations and discussions,
during which time an agent of Maritimes met with or attempted to
meet with Decoulos on several occasions. Having failed to reach an
agreement, Maritimes dispatched a "final offer letter" on May 20,
2002, in which Maritimes made its final bid based on an appraisal
performed by an independent, licenced Massachusetts real estate
appraiser. According to this communication, the easement was
appraised at $93,894. Nevertheless, Maritimes made a final offer
of $237,400. Upon rejection of this offer by Decoulos, Maritimes
proceeded to file this suit.
Thereafter, Maritimes filed a motion for partial summary
judgment and/or immediate entry, seeking an order from the district
court to gain easement title to the required property by eminent
domain. Notwithstanding Decoulos' opposition, the motion was
granted, allowing Maritimes to enter the property to install the
pipeline. On April 9, 2003, the district court entered an
additional order authorizing Maritimes to take the requested
permanent right of way and easement. The matter then proceeded to
trial for the purpose of determining the damages to be paid by
Maritimes for the takings in question.
The case was tried before a jury, which entered a verdict
determining the value of the permanent easement to be the amount of
$68,063. This appeal followed, in which Decoulos raises four
-3-
issues: (1) whether the district court erred in allowing Maritimes
to proceed based on a complaint which allegedly failed to identify
"the interest to be taken" as required by Fed. R. Civ. P.
71A(c)(2), (2) whether Maritimes was required to conduct its
negotiations with Decoulos in "good faith," (3) whether Maritimes'
actions deprive appellant of due process under the Fifth Amendment,
and (4) whether the district court erred in refusing to give an
instruction requested by Decoulos regarding an alleged element of
damages. We discuss these seriatim and find them without legal
merit.
Decoulos argues that Fed. R. Civ. P. 71A(c)(2)'s language
to the effect that "[t]he complaint shall contain a short and plain
statement . . . [of] the interests to be acquired," made defective
Maritimes' complaint because it was "devoid of any statement as to
the interest to be acquired," and thus appellant "was subjected to
the conundrum of speculating the extent of the servitude."
This court has held that Rule 71A(c)(2) "is consistent
with the notice theory of pleading embodied in the Federal Rules,"
id., under which we "do not require a claimant to set out in detail
the facts upon which he bases his claim . . . [because of] the
liberal opportunity for discovery and the other pretrial procedures
. . . to disclose more precisely the basis of both claim and
defense and to define more narrowly the disputed facts and issues,"
id. (quoting Conley v. Gibson, 355 U.S. 41, 47-48 (1957)). The
-4-
complaint at issue more than sufficiently notified Decoulos of the
substance of the action sought by Maritimes. See Southern Natural
Gas Co. v. Land, Cullman County, 197 F.3d 1368, 1375 (11th Cir.
1999); East Tenn. Natural Gas Co. v. Sage, 361 F.3d 808, 830 (4th
Cir. 2004).
After deciding the partial summary judgment in favor of
Maritimes, and before trial, the district court also decided
Maritimes' motion in limine to the effect that Decoulos would not
be allowed to introduce any evidence of Maritimes' alleged bad
faith negotiations because, as ruled upon by the court, bad faith
was irrelevant to the issue of just compensation.
It is unclear to what Decoulos anchors his claim that
good faith negotiations must precede the filing of the condemnation
action, as the NGA contains no specific language to this effect.
See Lamie v. United States Trustee, 540 U.S. 526, 534-35 (2004)
(inquiry begins with the statutory text, and ends there as well if
the text is unambiguous). The relevant section of the NGA
provides:
When any holder of a certificate of public
convenience and necessity cannot acquire by
contract, or is unable to agree with the owner
of property to the compensation to be paid
for, the necessary right-of-way to construct,
operate, and maintain a pipe line or pipe
lines for the transportation of natural gas,
and the necessary land or other property, in
addition to right-of-way, . . . it may
acquire the same by the exercise of the right
of eminent domain in the district court of the
United States for the district in which such
-5-
property may be located, or in the State
courts.
15 U.S.C. § 717f(h).
Once a CPCN is issued by the FERC, and the gas company is
unable to acquire the needed land by contract or agreement with the
owner, the only issue before the district court in the ensuing
eminent domain proceeding is the amount to be paid to the property
owner as just compensation for the taking. See Guardian Pipeline,
L.L.C. v. 329.42 Acres of Land, 210 F. Supp. 2d 971, 974 (N.D. Ill.
2002); Tennessee Gas Pipeline Co. v. Mass. Bay Transp. Auth., 2 F.
Supp. 2d 106, 110 (D. Mass. 1998). Absent any credible authority
making good faith negotiation a requirement precedent to the
condemnation action, see Kansas Pipeline Co. v. 200 Foot by 250
Foot Piece of Land, 210 F. Supp. 2d 1253, 1257 (D. Kan. 2002) ("The
plain language of the NGA does not impose an obligation on a holder
of a FERC certificate to negotiate in good faith before acquiring
land by exercise of eminent domain . . . ."), cf. National R.R.
Passenger Corp, v. Boston and Maine Corp., 503 U.S. 407, 423 (1992)
(refusing to interpret statutory language referring to parties
being "unable to agree" to require Amtrak to engage in good faith
negotiations before it could invoke its condemnation powers under
the Rail Passenger Service Act), but see USG Pipeline Co. v. 174
Acres, 1 F. Supp. 2d 816, 822 (E.D. Tenn. 1998) (noting that
"[c]ourts . . . have imposed a requirement that the holder of the
FERC Certificate negotiate in good faith with the owners to acquire
-6-
the property"), we decline the invitation to create one in this
case. Furthermore, we do not imply that the negotiations at issue
here were not in good faith.
Appellant's due process argument is intermingled with his
"good faith" issue, and results in a similar outcome. Decoulos
claims that "Maritimes, by acting in bad faith and arbitrarily
. . . deprived The Trust of its property rights." The district
court rejected an offer of proof by appellant to the effect that
there was lack of uniformity in Maritimes' exercise of the power of
condemnation as between the various property owners. The district
court was undoubtedly correct in ruling that this matter was
outside the scope of the only triable issue: the value of the
property condemned.
The last question raised by appellant regards a claimed
error by the district court in its failure to give a requested
instruction dealing with severance and stigma damages. There are
several reasons why this contention should not prosper. First,
Decoulos failed to properly preserve this claim in accordance with
Rule 51(c). Fed. R. Civ. P. 51(c). A party who objects to the
court's failure to give a requested instruction must do so on the
record before the jury retires to deliberate. See, e.g., Faigin v.
Kelly, 184 F.3d 67, 87 (1st Cir. 1999). Second, Decoulos points to
nothing in the record that justifies an instruction for severance
or stigma damages. See, e.g., United States v. 760.807 Acres of
-7-
Land, 731 F. 2d 1443, 1448 (9th Cir. 1984) ("Severance damages are
compensable only if the landowner incurs a direct loss reflected in
the marketplace that results from the taking. Since the landowner
has the burden of proof in establishing severance damages, the
landowner must demonstrate that the taking caused the severance
damages.") (internal quotations and citations omitted).
Nevertheless, the district court gave an appropriate instruction
("you may add any damages, including stigma damages, as to the
remainder of the property, the part that was not taken, but which
may have been damaged by the taking and that is called severance
damages"), and Decoulos fails to explain why this instruction was
inappropriate.
We have considered all other arguments and issues raised
by appellant and find them as frivolous and lacking in merit as the
rest of this appeal.
Affirmed. Appellant is granted 10 days within which to
show cause why double costs should not be imposed against him.
-8-
|
392 F.2d 184
Elgie ADKINS, Appellant,v.John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.
No. 11625.
United States Court of Appeals Fourth Circuit.
Argued January 11, 1968.
Decided March 6, 1968.
E. Carl Meadows, Jr., Beckley, W. Va. (Clay S. Crouse, Beckley, W. Va., on brief), for appellant.
Charles M. Love, III, Asst. U. S. Atty. (Milton J. Ferguson, U. S. Atty., and W. Warren Upton, Asst. U. S. Atty., on brief), for appellee.
Before SOBELOFF and CRAVEN, Circuit Judges, and MERHIGE, District Judge.
PER CURIAM:
1
That this is a marginal social security case, difficult to resolve, is attested by its history. Twice the district judge reversed the Secretary and directed the entry of an award for claimant. Twice the Secretary moved for remand to consider further evidence, and on each occasion again denied disability compensation. Finally, on March 15, 1967, the district court vacated its prior orders and granted the Secretary's motion for summary judgment. In doing so, we think the court erred.
2
Claimant Elgie Adkins, nearly 58 years old, was born March 27, 1910, and worked in the West Virginia coal mines from the age of 15 until August 15, 1960. He finished the third grade and is substantially illiterate. He has serious back trouble, suffering constant pain in his back, emphysema, silicosis, and unquestionably a nervous or personality defect, at one time diagnosed as a psychiatric condition including severe anxiety. For the reasons stated in the district court's unpublished letter opinions of August 16, 1965, and October 11, 1966, in addition to the narration of claimant's disabilities, briefly set out hereinabove, we think the district court on those occasions correctly decided that claimant could no longer engage in any substantial gainful employment. That claimant worked to some extent during 1964, does not, we think, constitute substantial evidence to the contrary. During that year claimant was hired by Burns Mining Company to do "gang" work. It appears from the record kept by the Secretary that persons engaged in "gang" coal mining are not paid either by the day or the hour, but that the "gang" is paid so much per car of coal dug out and loaded. It is piecework with the difference that the unit is obtained not by the work of the individual but by the work of the gang. The record is replete with testimony that claimant Adkins could not, and did not, carry his share of the gang work and was "carried" by other members of the gang connected to him by family ties. One of his co-workers testified that the claimant did only about one-third of the work that he should have done in the gang and that in doing so he constantly complained of his back, breathing and various ailments. Claimant's employer testified that he did not believe the claimant was "able to work at all but was just forcing himself to do what he actually did." When the claimant could not stand the gang work any longer, he worked briefly as the operator of a motor with the assistance of a helper who coupled and uncoupled the cars. Even in doing this job, which was apparently sedentary, with the help of the assistant, he had great difficulty with his back in getting in and out of the motor. We think these brief work experiences, both terminating in inability to continue, were themselves insufficient to invalidate the district court's prior valid conclusions that on the record viewed as a whole the claimant was incapacitated to perform substantial gainful employment. See Leftwich v. Gardner, 377 F.2d 287 (4th Cir. 1967).
3
On remand, the district court will enter an appropriate order.
4
Reversed.
|
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 12, 2016
Plaintiff-Appellee,
v No. 315080
Ingham County Circuit Court
RICHARD ANTHONY STRONG, LC No. 12-000403-FC
Defendant-Appellant.
Before: STEPHENS, P.J., and HOEKSTRA and METER, JJ.
PER CURIAM.
Defendant appeals by right of his convictions, following a jury trial, of first-degree
murder, MCL 750.316(C); possession of a firearm by a felon, MCL 750.224(F); and possession
of a firearm with intent to commit a firearm (felony firearm), MCL 750.227. We affirm.
I. BACKGROUND
This conviction arises out of the shooting and death of Ygnacio Bermudez Jr. (the victim)
outside of the Loft nightclub (the bar) in Lansing, Michigan. The crucial issue at trial was the
correct identity of the shooter. An altercation occurred between the victim and defendant at a
bar. When the victim later left the bar, he was shot multiple times outside the bar by a man,
identified by witnesses as defendant, and died at the scene. The prosecution presented testimony
of multiple witnesses who identified defendant as the shooter. Evidence was also introduced
concerning the defendant’s access to a handgun and cartridges of the type used in the shooting.
Other testimony was presented concerning defendant and Pierce’s flight to North Carolina, and
defendant’s attempt to hide himself by posing as Pierce’s ex-husband. Defendant was
apprehended while living with Pierce in North Carolina.
II. INEFFECTIVE ASSISTANCE
Defendant raises a number of claims of ineffective assistance of counsel. We remanded
this case to the trial court for an evidentiary hearing to address defendant’s ineffective assistance
claims.1 The trial court held the evidentiary hearing and found that defendant’s trial counsel was
effective. After a review of the hearing transcript, we agree.
1
People v Strong, unpublished order of the Court of Appeals, entered June 3, 2014 (Docket No.
315080).
-1-
In order to support a claim of ineffective assistance of counsel, a defendant must establish
that counsel’s performance was deficient and that the deficient performance was prejudicial.
Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). In order for
a defendant to show deficient performance, a defendant must show that counsel’s performance
was outside the wide range of professionally competent assistance as secured under the Sixth
Amendment of the United States Constitution. Id. at 689. To satisfy the prejudice prong, a
defendant must show that there is a reasonable probability that, but for counsel’s performance,
the result of the proceeding would have been different. Id. at 693-694. A reasonable probability
is a probability sufficient to undermine confidence in the outcome. Id. at 694. In reviewing this
issue, defense counsel is afforded wide latitude on matters of trial strategy. People v Unger, 278
Mich App 210, 242-243; 749 NW2d 272 (2008). If a defendant wishes to advance claims that
depend on facts not on the record, a defendant can seek at the trial court an evidentiary hearing to
establish evidence on the record that is a precondition for the process of the appellate courts.
Ginther, 390 Mich at 443-444.
Defendant first faults trial counsel for not properly investigating or calling two witnesses
to testify on his behalf. “Failure to make a reasonable investigation can constitute ineffective
assistance of counsel.” People v McGhee, 268 Mich App 600, 626; 709 NW2d 595 (2005).
Failure to interview witnesses does not by itself serve to establish inadequate preparation.
People v Caballero, 184 Mich App 636, 642; 459 NW2d 80 (1990). “It must be shown that the
failure resulted in counsel’s ignorance of valuable evidence which would have substantially
benefited the accused.” Id. “[D]ecisions regarding what evidence to present and whether to call
or question witnesses are presumed to be matters of trial strategy . . . [and] . . . the failure to call
witnesses only constitutes ineffective assistance of counsel if it deprives the defendant of a
substantial defense.” People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (internal
citations omitted). “A difference of opinion regarding trial tactics does not amount to ineffective
assistance of counsel.” People v Stubli, 163 Mich App 376, 381; 413 NW2d 804 (1987).
Defendant cannot show that counsel was unreasonable in his investigation of the case, or
the decision to call or question witnesses. Defendant wanted Bryant Easter, a person who
provided a statement to the police at the scene to be called as a witness for identification because
Easter told law enforcement that he saw someone in a black pea coat run away from the scene
right after the shooting. At the evidentiary hearing, defendant’s trial counsel testified to his
reasons for not calling Easter. He explained that outside of the pea coat, Easter provided law
enforcement with an otherwise close physical and clothing description to that of his client. Trial
counsel did not want to risk Easter positively identifying defendant in court, nor providing the
additional testimony that defendant fled the scene. Therefore, the decision not to call Easter was
strategic and would not have advanced defendant’s mistaken identity defense. Defendant also
faults counsel for not interviewing witness Brian French after the preliminary examination,
before trial begun. French testified at defendant’s preliminary examination and trial that he
clearly saw defendant exit the bar after the victim and shoot the victim in the back of the head.
While trial counsel had little memory of French’s testimony and did not recall if he ever
interviewed him, the record demonstrates that he had the benefit of the preliminary examination
testimony and vigorously cross-examined French at the trial. He, also, argued the
inconsistencies in all witness testimony in closing. From this record, defendant cannot establish
that not interviewing French in between the preliminary examination and trial was objectively
unreasonable or even necessary.
-2-
Defendant next argues counsel was ineffective for failing to arrange a polygraph
examination when the prosecution stated that it would agree to such an exam. After the
evidentiary hearing, it is now more evident that the prosecution was indifferent to, rather than in
agreement with defendant taking a polygraph exam. Trial counsel testified that the prosecution
told him it would continue to pursue first-degree murder charges even if defendant passed a
polygraph. Defendant passing a polygraph exam was also of no consequence when the results
are inadmissible. People v Terry, 489 Mich 907, 907; 796 NW2d 469 (2011). Trial counsel
cannot be faulted for failing to arrange a polygraph examination when an exam would not have
had any impact on defendant’s case with the prosecution or the jury. Accordingly, we fail to find
any outcome-determinative error.
Defendant further claims trial counsel was ineffective for failing to present an alternative
substantive defense. We find that differing opinions between counsel and defendant, as to the
merit of offering an alternative theory that the victim was shot for being a drug dealer, did not
constitute an invalid or unreasonable trial strategy. The choice of which theories to pursue is a
matter of professional judgment entrusted to counsel. People v Traylor, 245 Mich App 460, 463;
628 NW2d 120 (2001). Nevertheless, defendant was not deprived of an alternative substantive
defense because he testified, and therefore the jury heard, that the victim was a known drug
dealer. Defendant’s alternative theory was the weaker of the two submitted to the jury, with no
facts on the record, other than defendant’s own testimony, to show the victim was shot as a result
of drug dealing or by someone related to the victim’s drug dealing. Given the facts, we also find
this claim of ineffective assistance to be without merit.
Defendant also failed to prove that counsel was ineffective in advising defendant on his
right to testify. The decision whether to testify is ultimately the defendant’s personal decision to
make and counsel must respect that decision. See Rock v Arkansas, 483 US 44, 52; 107 S Ct
2704; 97 L Ed 2d 37 (1987). Here, the record indicates that counsel advised defendant not to
testify.
Defendant’s assertion that counsel was ineffective due to his failure to address an issue of
juror misconduct fails, also. Defendant is unable to show that counsel was unreasonable or that
the conduct of trial counsel prejudiced him. To establish that extrinsic influence resulted in an
error requiring reversal a defendant must prove two points: (1) that the jury was exposed to
extraneous influences and (2) that these extraneous influences created a real and substantial
possibility that they could have affected the jury’s verdict. People v Budzyn, 456 Mich 77, 88-
89, 566 NW2d 229 (1997). There is no proof of such exposure. The factual record has not
changed since the evidentiary hearing. The witness was subpoenaed for the evidentiary hearing,
but did not appear. Defendant no longer had the letter from the witness. Trial counsel did not
have the letter in defendant’s file. The cell phone, which allegedly recorded the jury foreman’s
discussions, was either lost or broken. Defendant presents no proof of juror misconduct and has
not established that an extrinsic influence affected the jury’s verdict.
Defendant also asserts that trial counsel was ineffective for failing to address an issue of
witness intimidation involving his ex-wife, Lisa Pierce. This assertion is without support. The
trial court acknowledged at the evidentiary hearing that it was aware of Ms. Pierce’s fear of the
victim’s family. However, Ms. Pierce, who was involved in defendant’s flight, made an
informed decision with advice of counsel not to testify. She invoked her Fifth Amendment rights
-3-
at trial and had no recollection of ever mentioning fear or intimidation as a basis for that
invocation. It is most probable that it was fear of prosecution and conviction that weighed most
heavily in Ms. Pierce’s decision not to testify. Defendant himself indicates that she was not
present at the scene. Considering her credibility issues, it is highly unlikely that even had she
testified, it would have positively affected the outcome of the trial.
Defendant last claims counsel was ineffective due to conflicts of interest on the part of
the judge and trial counsel. A party claiming judicial bias has a heavy burden to overcome the
presumption of judicial neutrality. In re Forfeiture of $1,159,420, 194 Mich App 134, 151; 486
NW2d 326 (1992). The party must prove either actual bias or prejudice. Cain v Dep’t of
Corrections, 451 Mich 470, 503; 548 NW2d 210 (1996). MCR 2.003 governs when a judge
must disqualify him or herself for bias and includes when “[t]he judge is biased or prejudiced for
or against a party or attorney.” MCR 2.003(C)(1)(a).
As to counsel, a defendant has the burden of demonstrating that an actual conflict of
interest existed and adversely affected the adequacy of representation. Cuyler v Sullivan, 446 US
335, 348-350; 100 S Ct 1708; 64 LEd2d 333 (1980); People v Smith, 456 Mich 543, 556-557;
581 NW2d 654 (1998). In order to demonstrate an actual conflict of interest, a defendant has the
burden to show that counsel actively represented conflicting interests and that this actual conflict
of interest adversely affected counsel’s performance. Smith, 456 Mich at 557. Prejudice is
presumed if an actual conflict of interest exists that adversely impacts the counsel’s performance.
Id. at 556-557.
With respect to the first alleged conflict of interest, defendant personally brought up the
question of trial court bias on the fifth day of trial. The trial judge refused to disqualify himself
on the ground that his wife was friends with defendant’s mother and the trial judge was familiar
with his step-father. Defendant fails to show that counsel’s failure to bring this matter up before
defendant did was either unreasonable or outcome-determinative. The trial judge stated that he
did not know defendant, which defendant acknowledged, and was not biased by the acquaintance
with defendant’s step-father. The trial judge maintained this position at the evidentiary hearing.
Trial counsel testified at the evidentiary hearing that he and defendant even discussed how the
association may have resulted in a favorable verdict for defendant. Given this, and the fact that
the trial judge did not disqualify himself, defendant cannot show that he is entitled to relief on
this claim of ineffective assistance.
With respect to the second conflict alleged by defendant, trial counsel testified at the
evidentiary hearing that he made defendant aware, before defendant’s preliminary examination,
that he was previously counsel for one of the prosecution’s witnesses in an unrelated criminal
case that was dismissed during preliminary examination. Trial counsel testified that his contact
with the witness regarding that case lasted about an hour. Despite the disclosure, defendant
never asked for a new attorney. The witness hugged defense counsel when she saw him during
defendant’s trial. Defendant argues the hug evidenced a conflict of interest. This issue was not
presented in the record below. In fact, trial counsel testified at the evidentiary hearing that he
was not aware that the hug upset defendant until after the jury verdict. The trial and evidentiary
hearing records do not show that trial counsel had a personal relationship, or anything to gain
from the witness or the victim’s family. Defendant fails to offer any evidence as to how the prior
dealings adversely effected the representation beyond an acknowledgment that the relationship
-4-
exists. We find that defendant has not shown that interest in this case would disqualify counsel
from representing defendant. We also note that counsel zealously represented defendant.
Defendant is not entitled to relief on this issue.
Moreover, counsel’s representation overall indicates that he provided effective assistance.
He argued that the prosecution could not establish the shooter’s identity beyond a reasonable
doubt, that the police did an incomplete investigation of suspects, that there were no fingerprints
or gunshot residue to show defendant as the shooter, that another man may have been the
shooter, that the gun and ammunition used was common, and that defendant had proffered an
alibi. Furthermore, the evidence against defendant was considerable, including eyewitness
identifications, ballistic evidence linking defendant to the type of gun used in the shooting, and
defendant’s actions in fleeing the scene and state.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Joel P. Hoekstra
/s/ Patrick M. Meter
-5-
|
14 N.Y.3d 704 (2010)
MATTER OF DEANS.
Motion No. 2010-63
Court of Appeals of New York.
Decided March 25, 2010.
Motion for leave to appeal denied.
|
218 Cal.App.3d 596 (1990)
267 Cal. Rptr. 105
In re CRYSTAL J. et al., Persons Coming Under the Juvenile Court Law.
COUNTY OF LOS ANGELES, Plaintiff and Respondent,
v.
JULIE J., Defendant and Appellant.
Docket No. B022063.
Court of Appeals of California, Second District, Division Seven.
March 1, 1990.
*598 COUNSEL
Tony L. Cogliandro, under appointment by the Court of Appeal, for Defendant and Appellant.
De Witt W. Clinton, County Counsel, Sterling Honea and Joe Ben Hudgens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
JOHNSON, J.
Julie J. appeals from the order declaring her children Crystal and Marshall dependents of the juvenile court. We conclude none of the issues raised are meritorious and affirm the judgment.
STATEMENT OF FACTS AND PROCEEDINGS BELOW
On October 15, 1984, the director of the day care center attended by Marshall (also known as Jaime and so referred to in the remainder of this opinion) discovered six wounds on Jaime's back. The director suspected child abuse and commenced an investigation. The head of county juvenile medical facilities, Dr. Alleyne, examined Jaime and concluded the wounds resulted from intentionally inflicted cigarette burns.
On February 13, 1985, respondent filed petitions seeking to have Crystal and Jaime declared dependents of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (d).[1] Respondent *599 alleged Jaime suffered burns intentionally inflicted upon his body. Respondent further alleged the children were exposed to a violent altercation between Julie and her live-in companion, Jerry Koch. Respondent stated the children were subjected to physical abuse and neglect by Koch and neglect and cruelty by Julie and the children were previously declared dependents of the juvenile court in 1982.
On the hearing concerning Jaime, the parties stipulated Dr. Alleyne, if called to testify, would qualify as a medical expert and would testify she witnessed five circular marks on Jaime's spine which she considered were burns of a nonaccidental nature. The stipulation did not preclude Julie from introducing contrary medical evidence. The parties also stipulated Crystal and Jaime were previously declared dependents of the juvenile court and their father could not be located.
Julie admitted telling Crystal to call the police during an argument she had with Koch. Both children were home during that argument. Julie also acknowledged Koch grabbed her by the hair during that argument.
The trial court concluded the allegations concerning Jaime's burns were true. The trial court also found the children were subject to a violent altercation between Julie and Koch, their father could not be located and they were previously dependents of the juvenile court.
On the hearing concerning Crystal, the social worker assigned to the case, Ann Ach, testified Julie could not recognize child abuse and would not be in a position to protect her children in the future. Ms. Ach also testified the maternal grandmother was not an appropriate guardian because she believes in physical discipline and does not believe the children have been abused. The trial court also took judicial notice of the criminal case against Julie and Koch for child endangerment which resulted in a conviction and jail sentence for both defendants.
Julie's mother testified she would be willing to care for the children although she believed it would be best if Crystal and Jaime remained with their foster parents for the remainder of the school year.
The children informed the trial court they preferred to live in the foster home than with their mother. Jaime also told the court his mother hit him with a belt.
*600 DISCUSSION
I. There Was Sufficient Evidence to Sustain the Juvenile Court's Jurisdiction.
(1) Julie argues there is no evidence to support the trial court's exercise of jurisdiction under section 300, subdivision (d).[2] This argument is meritless. The petition was filed in February 1985. The order from which Julie's appeals was entered on April 22, 1986. Throughout this period, section 300, subdivision (d) provided the juvenile court had jurisdiction where the home was unfit for the juvenile "by reason of neglect, cruelty, depravity, or physical abuse of either of his parents, or of his guardian or other person in whose custody or care he is." (Stats. 1982, ch. 977, § 2.5, p. 3503.) Julie does not argue, nor can she, there is insufficient evidence to find jurisdiction under this section.
Instead, Julie ignores the governing statute and relies upon section 300 as it was amended in 1987 to argue insufficiency of the evidence. The amended statute provides for jurisdiction under subdivision (d) where the "minor has been sexually abused, or there is a substantial risk that the minor will be sexually abused, ... by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the minor from sexual abuse when the parent or guardian knew or reasonably should have known that the minor was in danger of sexual abuse." (Stats. 1987, ch. 1485, § 4.)
This amendment did not become operative until January 1, 1989. (Stats. 1987, ch. 1485, § 51, p. 49.) Accordingly, it has no application here. (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209 [246 Cal. Rptr. 629, 753 P.2d 585].)
II. Any Error in Sustaining Certain Hearsay Objections Was Nonprejudicial.
(2) Julie argues the trial court erroneously sustained hearsay objections to statements made by Jaime to certain witnesses. Julie does not identify the specific hearsay objections nor does she argue any resulting prejudice.
Respondent identifies four hearsay objections concerning statements made by Jaime to a witness. Of those four, the trial court overruled one of the objections. The three remaining objections concerned similar questions *601 regarding how Jaime was injured. The objections were sustained but the question was subsequently permitted because the statement by Jaime qualified as an excited utterance.
Absent a showing of prejudice, any error in sustaining the hearsay objections is not reversible. Since Julie failed to show prejudice here, nor did our independent review of the record disclose any prejudice, this argument is meritless. (See Inouye v. McCall (1939) 35 Cal. App.2d 634, 637 [96 P.2d 886].)
III. The Trial Court Did Not Abuse Its Discretion in Holding Jaime Was Incompetent to Testify.
(3) Julie argues the trial court abused its discretion in holding Jaime was incompetent to testify. We disagree.
Generally, every person is qualified to be a witness, regardless of his age, provided he is competent to testify. (Evid. Code, § 700; Adamson v. Department of Social Services (1988) 207 Cal. App.3d 14, 20 [254 Cal. Rptr. 667].) A witness is not competent to testify if he is incapable of expressing himself concerning the matter to be understood or if he is incapable of understanding a witness's duty to testify truthfully. (Evid. Code, § 701; Adamson v. Department of Social Services, supra, 207 Cal. App.3d at p. 20; see 2 Witkin, Cal. Evidence (3d ed. 1986) Witnesses, § 1052, p. 999; 1 Johnson, Cal. Trial Guide (Matthew Bender 1989) Admissibility of Evidence: Rules, § 22.01[2], pp. 22-23.)
In determining whether a witness understands his duty to testify truthfully, it is unnecessary that the witness entertain a religious belief or have detailed knowledge of the oath. (People v. Berry (1968) 260 Cal. App.2d 649, 652 [67 Cal. Rptr. 312].) It is sufficient the witness understands "that some earthly evil will befall if the truth is not disclosed." (Ibid.) A trial court's determination concerning a witness's competency will not be reversed on appeal absent an abuse of discretion. (Adamson v. Department of Social Services, supra, 207 Cal. App.3d at p. 20; People v. Willard (1983) 155 Cal. App.3d 237, 239 [202 Cal. Rptr. 100].)
The trial court did not abuse its discretion here. Jaime, who was seven at the time of trial, repeatedly stated he did not know the difference between the truth and a lie.
Julie contends the trial court specifically found Jaime was testifying truthfully. This is not entirely correct. The trial court stated Jaime told the truth "as far as he told it, I don't think that is all there is."
*602 Regardless, the test is not whether the witness is testifying truthfully, but whether the witness has the capacity to understand his duty to testify truthfully. (See In re Katrina L. (1988) 200 Cal. App.3d 1288, 1299 [247 Cal. Rptr. 754]; Adamson v. Department of Social Services, supra, 207 Cal. App.3d at p. 20; People v. Hall (1984) 157 Cal. App.3d 538, 545 [223 Cal. Rptr. 267].) Since there was evidence Jaime did not understand this duty, the trial court did not abuse its discretion in finding he was incompetent to testify.
IV. The Trial Court Made the Requisite Finding That Returning Jaime and Crystal to Julie Would Be to Their Detriment.
(4) Julie argues the trial court failed to expressly find it would be detrimental to Crystal and Jaime if they were returned to Julie. This argument is meritless.
In the April 22 order declaring Jaime and Crystal dependents of the juvenile court, the trial court found: "Welfare of the minor requires that custody be taken from the parents guardians.... It would be detrimental for the minor to remain in the custody of the parents/guardians and no reasonable means exists to protect the minor's physical/emotional health without awarding physical custody to a nonparent/nonguardian."
DISPOSITION
The judgment is affirmed.
Lillie, P.J., and Woods (Fred), J., concurred.
NOTES
[1] All future statutory references are to the Welfare and Institutions Code unless we specify otherwise.
[2] Julie does not discuss the fact jurisdiction was also based upon section 300, subdivision (a).
|
21 So.3d 808 (2008)
EX PARTE DAVID BYRD, JR.
No. CR-07-0651.
Court of Criminal Appeals of Alabama.
February 26, 2008.
Decision of the Alabama Court of Criminal Appeals Without Published Opinion Mandamus petition dismissed.
|
703 N.W.2d 471 (2005)
PEOPLE v. HARRIS.
No. 125762.
Supreme Court of Michigan.
September 21, 2005.
Application for Leave to Appeal
SC: 125762. COA: 253152.
In an order dated June 28, 2005, Harris v. Michigan, ___ U.S. ___, 125 S.Ct. 2989, ___ L.Ed.2d ___ (2005), the Supreme Court of the United States remanded this matter to this Court for further consideration in light of Halbert v. Michigan, 545 U.S. ___, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). After further consideration, we VACATE this Court's order of June 25, 2004, 470 Mich. 882, 681 N.W.2d 653 (2004), and REMAND this case to the Kent Circuit Court for a determination of whether defendant is indigent and, if so, for the appointment of appellate counsel, in light of Halbert, supra. Appointed counsel may file an application for leave to appeal with the Court of Appeals, and/or any appropriate post-conviction motions in the trial court, within twelve months of the date of the circuit court's order appointing counsel, in accord with the deadlines in effect at the time defendant was denied counsel.
We do not retain jurisdiction.
|
Filed 12/1/16
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S033901
v. )
)
CATHERINE THOMPSON, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. SA004363
____________________________________)
A jury in Los Angeles County Superior Court convicted defendant
Catherine Thompson on September 15, 1992, of both conspiracy to murder and the
first degree murder of her husband, Melvin ―Tom‖ Thompson. (Pen. Code,
§§ 182, 187; all further statutory references are to this code unless otherwise
indicated). The jury also sustained a special circumstance allegation that
defendant committed the murder for financial gain. (§ 190.2, subd. (a)(1).) On
September 28, 1992, after weighing the aggravating and mitigating evidence
presented by the parties, the jury set the penalty at death under the 1978 death
penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) We
affirm the judgment in its entirety.
1
I. GUILT PHASE
A. Facts
1. Financial Dealings Before the Murder
Melvin Thompson (Melvin) owned and operated Kayser Service and
Community Brake (hereafter Kayser Service), an auto repair shop in Santa
Monica, since 1982. Initially, he controlled the finances of his business. He had
separated from his wife, Mellie Thompson, in 1978, and they eventually divorced;
their marital dissolution agreement specified that Mellie could live in their jointly
owned home on South Sycamore Avenue until 1988, when their youngest child
would turn 18 years old, at which time either Melvin or Mellie would buy the
other out, or the house would be sold and they would split the proceeds.
Melvin and defendant married sometime after his divorce from Mellie, and
they bought a house together on Hillary Drive. Defendant eventually began
handling the finances of the Kayser Service business. From 1986 to 1988,
however, while working as an office manager at a business called Edith Ann‘s
Answering Service (hereafter Edith Ann), defendant incurred a debt to her
employer of more than $33,000.1 Defendant agreed to repay the amount and gave
Edith Ann a deed of trust on the Hillary Drive home on which she had forged her
husband‘s signature. Defendant did not tell him about the matter.
After paying $7,500 on the note she had given to Edith Ann, defendant
ceased payment and the house on Hillary Drive went into foreclosure in
September 1989. Tony DeGreef of BID Properties purchased the home and began
1 In fact, defendant had embezzled the money from Edith Ann, but defendant
avoided criminal prosecution by agreeing to repay the embezzled funds. The trial
court initially ruled evidence of the embezzlement inadmissible at the guilt phase,
but later admitted the evidence to show a motive for the murder, a decision
defendant challenges on appeal. (See, post, pt. I.B.8.)
2
eviction proceedings. One of defendant‘s friends, Isabelle Sanders (Isabelle),
contacted DeGreef to discuss whether defendant could repurchase the home.
During these negotiations, defendant falsely told DeGreef that Isabelle was her
mother, and that defendant‘s husband was very ill and thus unavailable to
participate in the negotiations. In fact, defendant had instructed DeGreef not to
inform her husband about the foreclosure. Defendant told DeGreef she wanted to
buy back the house in her maiden name, Catherine Bazar, because of her bad
credit history. When DeGreef expressed concern that defendant did not have
sufficient funds to repurchase the home, she falsely told him she would be
receiving money from a trust and a life insurance policy. DeGreef agreed to rent
the home to defendant for $4,500 per month while they negotiated the terms of the
repurchase.
While this was occurring, Mellie Thompson was trying to purchase her ex-
husband Melvin‘s ownership interest in the South Sycamore Avenue house. At
the same time, in November 1989, defendant embarked on a fraudulent scheme to
obtain a loan using Mellie‘s South Sycamore Avenue home as collateral. To
facilitate the fraud, defendant obtained a temporary driver‘s license in Mellie
Thompson‘s name, and Isabelle‘s son, codefendant Phillip Sanders (hereafter
sometimes Phillip), obtained a temporary driver‘s license to pose as Melvin
Thompson. The two, along with Isabelle, met with Dorothy Reik, a mortgage
broker, and negotiated a refinancing of the South Sycamore Avenue house. Reik
testified that Isabelle appeared to be in charge of the negotiations and that she
introduced defendant and Phillip as ―Mellie and Melvin Thompson.‖ When Reik
noticed the temporary licenses, which had no photos, had been procured that very
day and that the listed weight for ―Melvin‖ was inconsistent with Phillip‘s
appearance, she was told the Thompsons recently lost their permanent licenses in a
robbery, and that ―Melvin‖ had been ill and lost some weight. When Reik
3
attempted to confirm this story by calling Kayser Service, a woman named ―Rene‖
answered the telephone and confirmed the robbery story. (Defendant‘s good
friend Rene Griffin testified, denying she ever told a loan representative the
Thompsons had been robbed, lost their identifications, or that Melvin had recently
lost weight.) Because they lacked photo identifications, Reik required
independent witnesses to verify the Thompsons‘ identity. This was provided by
Isabelle, her daughter, Carolyn Moore, and Isabelle‘s daughter-in-law, Carolyn
Sanders (Phillip‘s wife). Reik was satisfied, and defendant and Phillip, posing as
Mellie and Melvin Thompson, signed the loan papers in Reik‘s presence. Reik
later described the loan as a ―hard money‖ loan, based on the value of the South
Sycamore Avenue home and not the borrowers‘ creditworthiness.
Defendant and Phillip received $25,000 before escrow closed, and an
additional $27,822 thereafter. (The remainder of the $98,000 loan paid off the
first deed of trust and accrued property taxes on the South Sycamore Avenue
home.)
Around this same time, Isabelle approached Bruce Blum, an attorney, and
asked him whether he could help her ―daughter,‖ who allegedly had lost her house
in a foreclosure. Blum began working for defendant in December 1989 to help her
re-acquire the home on Hillary Drive. Defendant gave him a check for $20,000,
drawn on the Kayser Service account, to pay the rent on the home through April
1990. Defendant‘s poor credit prevented her from obtaining financing, so Blum
attempted to negotiate the sale in Isabelle‘s name. When that proved ineffective,
defendant obtained a driver‘s license and Social Security card in her maiden name,
Catherine Bazar, and attempted to obtain financing that way. 2
2 Blum testified he did not attempt to deceive BID Properties, and that
defendant did not ask him to do so.
4
In March 1990, defendant (who introduced herself as Catherine Bazar),
along with Isabelle, met with mortgage broker David Yourist. Defendant told him
she wished to repurchase the Hillary Drive house, was married to a man who
operated an auto repair business, but that she would be taking title to the house in
her own name. On the application for the loan, she listed her bank as ―Community
Bank,‖ but the address and telephone number of the bank was, in fact, the address
and telephone number of Kayser Service. Yourist sent a request for verification of
deposit to a ―bank‖ at that address and received back confirmation that defendant
had money on deposit.
Yourist thereafter referred the matter to Jane Rogers, an escrow officer, to
prepare the paperwork for the sale. The terms of the loan required defendant to
put $42,500 down, with the remaining $412,500 to be financed by the bank and a
second mortgage carried by the seller. In lieu of defendant‘s payment, Rogers
received a copy of an assignment of proceeds from a life insurance policy to
Catherine Bazar, but Rogers never received any actual money and the sale did not
go through. Yourist later learned from the newspaper that the person he knew as
―Catherine Bazar‖ was, in fact, defendant Catherine Thompson. Rene Griffin later
denied representing herself to be the operations vice president of ―Community
Bank‖ and denied signing a verification of deposit for defendant in that capacity.
In December 1989, Mellie Thompson learned that her home on South
Sycamore Avenue had been refinanced without her knowledge or consent. She
sued her ex-husband, Melvin, defendant, and others for fraud.
2. Conspiracy to Commit Murder
Phillip Sanders lived in Sylmar with his wife, Carolyn Sanders (Carolyn).
Christine Kuretich met Carolyn in 1988 and the two became close friends. In mid-
May 1990, Kuretich moved in with the Sanderses and rented a room in their
5
house. From that time until the murder on June 14, 1990, Kuretich overheard
Phillip and Carolyn Sanders engage in several conversations concerning Melvin
Thompson‘s murder. Most of those conversations concerned killing him to obtain
proceeds of a life insurance policy. For example, Kuretich heard her housemates
say that defendant wanted her husband dead and would pay the Sanderses to
facilitate his murder. In addition, Carolyn told Kuretich that someone named
―Catherine‖ would pay the Sanderses ―thousands and thousands‖ of dollars to
have someone kill her husband, and asked Kuretich if she knew anyone who
would do the job. In June 1990, Kuretich took five or six telephone messages
from someone named Cathy, asking to speak to Phillip.
Shortly before June 14, 1990 (the day of the murder), Kuretich heard the
Sanderses say that Phillip himself was going to commit the murder because they
had already received—and spent—money intended as a down payment for the
killing, and they could not find anyone else to do the job. Carolyn Sanders‘s son,
Robert Jones, lived next door to them, and was present for some of these
conversations concerning the planned murder. According to Kuretich, Carolyn
asked Jones if he could procure a gun to do the job, and a few days before the
murder he told her he had done so.
Phillip worked at Barish Chrysler-Plymouth as a car salesman. Between
May 1 and June 13, 1990 (the day before the murder), the switchboard operator
there took several telephone messages for Phillip from ―Cathy‖ or ―Mrs.
Thompson.‖ The caller never asked to speak with anyone else.
3. The Murder
Charlotte Wark lived in a condominium next door to Kayser Service. On
June 14, 1990, she arrived home around 6:40 p.m. and, as she turned into her
garage, she stopped and chatted with Melvin, who was standing inside the gate to
6
his business. He seemed nervous. Wark parked her car but was still in her garage
a few minutes later when she heard four or five gunshots, which at the time she
thought were firecrackers.
Around 6:30 that evening, Michael Lutz was in a gas station across the
street from Kayser Service. He noticed two African-American males in a white
Plymouth Acclaim double-parked in the alley next to the car repair shop. Lutz
watched as the passenger exited and the car drove away. Shortly thereafter, Lutz
heard two loud ―bangs,‖ saw the passenger reemerge from the alley, and then saw
the white Acclaim return and pick the passenger up. The passenger held his arm
across his chest, as if he was concealing something under his jacket. As the white
Acclaim left the scene, Lutz wrote down the car‘s license plate number. Lutz then
saw defendant, who appeared distraught, emerge from the alley and use the pay
phone at the gas station. Lutz found another telephone and called 911. He later
identified Phillip as the passenger and Robert Jones as the driver.
Detective Kurt Wachter responded to the 911 call and found the victim,
Melvin Thompson, in the bathroom at Kayser Service suffering from three
gunshot wounds. He later died in the hospital. The victim was fully clothed and
had on his person a wallet with credit cards and over $1,300 in cash. When
searching the premises, police found a letter indicating that ownership of Kayser
Service had been transferred to someone named ―Catherine Jacquet.‖ City records
confirmed ownership of the business had been transferred to defendant eight days
earlier. The last name of defendant‘s previous husband was Jacquet, and
defendant sometimes went by the name Catherine Jacquet.
Detective Wachter proceeded to the hospital where he interviewed
defendant. She appeared calm and said she left Kayser Service around 5:45 p.m.
to recycle some cans. When she returned 45 or 60 minutes later, she thought she
heard gunshots and claimed she saw an unfamiliar African-American man about
7
30 years old walking away from the repair shop. She did not say the man she saw
was Phillip Sanders, and later denied to friends that he was the person she saw.
She also reported her husband had a Rolex watch that he kept either on his wrist or
in a desk drawer at Kayser Service. When Detective Wachter searched the
premises of Kayser Service, he failed to find the Rolex watch, although he noticed
two large bags of empty aluminum cans.
Police traced the license plate number provided by Lutz and discovered it
was a car Phillip had recently rented. Police went to Phillip‘s Sylmar home
around midnight on the night of the murder and found the car parked in the
carport, its hood still warm. Phillip‘s wife, Carolyn, admitted police into the
house; Phillip was sitting on the couch. Detective Wachter noticed a set of car
keys in plain sight on the kitchen table bearing a Thrifty Rent-A-Car tag, and
obtained Phillip‘s consent to search the car. Phillip denied he had driven the car
after 6:00 p.m. or had been in West Los Angeles that evening. Near the keys,
Wachter also observed a piece of paper with defendant‘s telephone number on it.
After confirming the keys fit the Acclaim, police arrested Phillip. In a subsequent
interview with police, Phillip continued to claim he had not used the car that
evening and also claimed he did not know who killed Melvin Thompson. He
would later testify that these assertions were untrue.
After Phillip‘s arrest, Carolyn Sanders immediately called Kuretich around
1:00 a.m. and asked her to return home. Carolyn was very upset and told Kuretich
what had happened. Gregory Jones, Phillip‘s brother-in-law, came over and
discussed the murder with Carolyn. After he left, Carolyn told Kuretich that she
believed Gregory Jones had provided police with information implicating Phillip
in the murder, and if asked by police Kuretich should place the blame for the
murder on Gregory Jones. Kuretich thereafter repeatedly told police Gregory
Jones was responsible for the murder, until police suggested she take a lie detector
8
test, at which point she changed her story and implicated defendant as well as
Phillip and Carolyn Sanders. Kuretich left the state after the preliminary hearing
but was later located in Kansas and returned to California.
Defendant‘s friend, Nancy Rankin, testified that after the murder she was
driving home from the hospital with defendant and Rene Griffin when she heard
defendant exclaim, to no one in particular, ―it wasn‘t supposed to happen this
way,‖ or ―I didn‘t mean for it to happen this way.‖
Rankin was under the impression the victim was killed for his Rolex watch.
Defendant told her two men had been arrested in San Francisco in possession of
the victim‘s watch. Although defendant told Rene Griffin the victim had brought
his Rolex watch to work, intending to take it to a jeweler for repairs, and that
someone had been arrested in San Francisco with the watch, police had no
information about anyone having been arrested in San Francisco in possession of
the victim‘s watch.
Carolyn Walsko, who worked for Prudential Insurance, testified the victim
was the subject of two life insurance policies, one for $100,000 (issued in 1988)
and a second one for $150,000 (issued in 1990, the year of the murder). The latter
policy had a double indemnity clause for accidental death, which included
homicide, making it potentially worth $300,000. A Prudential Insurance sales
agent testified that Melvin‘s insurance premiums were high (about $1,145 per
month) but not unreasonable given Melvin‘s reported income (about $250,000 per
year) and his lack of retirement savings. Shortly after the murder, defendant
submitted a claim on Melvin‘s life insurance policies and assigned the rights to the
policies to Tony DeGreef of BID Properties to enable her to repurchase the Hillary
Drive house.
On June 18, 1990, four days after the murder, police arrested defendant,
informing her she was being arrested for hiring someone to kill her husband. She
9
blurted out: ―I didn‘t know Phil at all. I only met him once and that was about the
sale of a car.‖ According to the arresting officers, they had not mentioned Phillip
Sanders or ―Phil‖ to defendant. She was released from custody a few days later.
Melvin Thompson‘s funeral occurred while defendant was in custody. She
instructed Rene Griffin to collect all of the jewelry from the victim‘s body after
the funeral and return the items to defendant. Defendant later pawned the jewelry
and used the money to go on a gambling vacation in Laughlin, Nevada. Rankin
and Griffin said the trip was their idea.
The victim‘s son, Tommy Thompson, Jr., worked at Kayser Service with
his father and continued to work there after the murder. After Melvin married
defendant, she took over managing the auto shop as well as other parts of his life.
When Tommy told Melvin his concerns about defendant‘s intrusiveness in the
business, he became angry. According to Tommy, defendant‘s friends Isabelle
Sanders, Rene Griffin, and Patricia Ceaser often hung out with defendant at
Kayser Service. In addition, Tommy had seen both Phillip Sanders and Robert
Jones at the shop in the weeks before the murder. After Melvin was murdered,
defendant had Rene Griffin come by the shop on a daily basis and collect the day‘s
cash. Tommy later learned that the rent on the business had not been paid and
confronted defendant about it. She falsely told him she had paid the rent and
promised to take care of the matter. Tommy eventually stopped allowing Griffin
to collect the receipts for defendant and began handling the financial aspects of the
business himself.
Tommy Thompson turned over to police several documents found in the
Kayser Service office. One was a letter written by someone named ―Katrina
Brazarre‖ on letterhead stationary from an institution named ―Guaranty Bank and
Trust Co.‖ Tommy also found some rub-on stencils that could be used to create
that letterhead, and a letter under the blotter on the desk where defendant usually
10
sat that contained a precise physical description of his father, as well as his exact
work schedule.
4. Phillip Sanders’s Evidence
Codefendant Phillip Sanders testified he met defendant though his mother,
Isabelle Sanders. Phillip admitted he obtained a driver‘s license in victim Melvin
Thompson‘s name, posed as Melvin, and helped defendant obtain a loan by
forging Melvin‘s signature 11 times on loan documents. His wife, Carolyn, and
sister, Carolyn Moore, were also in the real estate office when he posed as Melvin.
His mother asked him to do this to help her friend avoid losing her house. For
their trouble, Isabelle gave Phillip and Carolyn each $100. Phillip claimed not to
know how much money changed hands in the transaction, although he was
impeached by evidence showing he forged the victim‘s name on a $25,000 check.
When he later became worried about the fraudulent nature of the transaction,
Isabelle told him not to worry because ―it was not a problem‖ and ―it was going to
help her friend save her house and everybody was fine with the situation.‖
Phillip testified that defendant came to the car dealership where he worked
to inquire about purchasing a car for her son, Girard Jacquet. When a credit check
revealed neither defendant or Girard would be able to finance a car, defendant
asked him whether he knew anyone she could hire to kill her stepson, Tommy
Thompson, suggesting she would benefit financially should Tommy die.3 Phillip
told her he was unaware of anyone who would do such a thing, but later discussed
the conversation with his wife, Carolyn. Carolyn later mentioned the murder-for-
3 Defendant‘s husband, Melvin Thompson, was also known as Tom
Thompson. Phillip was quite clear in his testimony, however, that defendant had
solicited him to kill her stepson, Tommy Thompson. Tommy Thompson later
testified on rebuttal that he had no insurance on his life in 1990.
11
hire issue to her housemate, Christine Kuretich. A week later, defendant again
asked Phillip about killing her stepson for ―a couple of grand,‖ but he repeated that
he did not know anyone who could help her. Phillip denied Kuretich‘s account
that the Sanderses discussed killing defendant‘s husband, testifying, ―Those
conversations did not take place.‖
Records showed that in the six weeks prior to the murder, defendant and
Phillip were in constant telephone contact. Records showed numerous calls
between Phillip‘s home and Kayser Service, and between Barish Chrysler-
Plymouth, where Phillip worked, and defendant‘s home. Phillip admitted he
spoke to defendant several times in the weeks leading up to the murder, but
claimed the conversations involved a possible car purchase for defendant‘s son,
Girard. The prosecution showed this to be unlikely, as Girard had purchased a car
from a Ford dealership in February 1990.
Phillip testified that he had a cash flow problem and asked if defendant
could loan him $1,500. She agreed, and Carolyn Sanders received the money on
June 11, 1990. On the day of the murder, June 14, Phillip said he made
arrangements to have the terms of the loan reduced to writing so as to avoid any
disagreements. This was to be done that evening at Kayser Service. As he had
consumed between one and two 20-ounce cans of malt liquor and taken a pain
killer and a muscle relaxant, he had his stepson, Robert Jones, drive him in the
white Plymouth Acclaim to Santa Monica to meet defendant. Phillip said he
walked in the front gate and when he saw defendant inside, she waved him in but
motioned to him to be quiet. When he joined her inside the repair shop, the
bathroom door opened and, without warning, defendant produced a gun and fired
two shots at the person inside the bathroom. The victim, a man with whom Phillip
was unfamiliar, fell to the floor. According to Phillip, defendant (holding the
barrel of the pistol) handed him the weapon, told him to dispose of it, and that he
12
would be ―taken care of.‖ He took that to mean defendant was promising to pay
him money. Detective Wachter later testified on rebuttal that the barrel of the
weapon would have been uncomfortably hot to the touch after firing. Wachter
also offered the opinion that Phillip would not have been able to see inside the
bathroom if the door had been opened as he described it.
Phillip testified he walked back to the car and threw the gun into some ivy.
When he told Robert Jones what he had observed and that he had discarded the
gun, Jones told him to retrieve the gun, so he did. Once back home, Phillip gave
the gun to Jones and told him to destroy it. Police arrested Phillip later that night.
While in pretrial detention, Phillip received several unsigned letters which,
from their content, he assumed were from defendant, who was also in jail awaiting
trial. The letters urged him not to trust his lawyers and to change his account of
the murder, vaguely suggesting it would be financially advantageous for him to do
so. The letters suggested exactly what he should tell police. Phillip turned these
letters over to his attorneys, and at their suggestion wrote defendant back, hoping
she would continue the correspondence. Jennifer Lee testified she was a jail
inmate with defendant. Lee said she had acceded to defendant‘s request to copy,
in her own handwriting, letters that defendant had drafted. (Defendant‘s challenge
to the admission of these letters is discussed, post, part I.B.3.)
B. Discussion
1. Wainwright v. Witt
During the jury selection proceedings known as ―death qualification‖
(People v. Mills (2010) 48 Cal.4th 158, 170–171), the prosecutor challenged seven
prospective jurors for cause on the ground their views concerning capital
punishment rendered them unfit to serve on the jury. Defendant contends the
prospective jurors were not excludable for cause under the standard set forth by
13
the United States Supreme Court in Wainwright v. Witt (1985) 469 U.S. 412
(Witt), and that by excusing the seven prospective jurors, the trial court violated
her state and federal constitutional rights to due process of law, an impartial jury,
and a fair capital sentencing hearing. (U.S. Const., 5th, 6th, 8th & 14th Amends.;
Cal. Const., art. I, §§ 7, 5, 16 & 17.) We conclude the trial court did not err.
The law is settled. As the high court has explained, ―the systematic
removal of those in the venire opposed to the death penalty [can lead] to a jury
‗uncommonly willing to condemn a man to die,‘ [citation], and thus ‗woefully
short of that impartiality to which the petitioner was entitled under the Sixth and
Fourteenth Amendments.‘ ‖ (Uttecht v. Brown (2007) 551 U.S. 1, 6 (Uttecht),
quoting Witherspoon v. Illinois (1968) 391 U.S. 510, 518, 521; see also Uttecht,
supra, at p. 9 [―a criminal defendant has the right to an impartial jury drawn from
a venire that has not been tilted in favor of capital punishment by selective
prosecutorial challenges for cause‖].) The high court set forth the applicable test
in Witt, supra, 469 U.S. 412, and we have explained and applied the Witt test in
many subsequent decisions. Thus: ―To achieve the constitutional imperative of
impartiality, the law permits a prospective juror to be challenged for cause only if
his or her views in favor of or against capital punishment ‗would ―prevent or
substantially impair the performance of his [or her] duties as a juror‖ ‘ in
accordance with the court‘s instructions and the juror‘s oath.‖ (People v. Blair
(2005) 36 Cal.4th 686, 741, citing Witt, supra, at p. 424, and Adams v. Texas
(1980) 448 U.S. 38, 45.) ― ‗ ―[A] prospective juror who would invariably vote
either for or against the death penalty because of one or more circumstances likely
to be present in the case being tried, without regard to the strength of aggravating
and mitigating circumstances, is . . . subject to challenge for cause . . . .‖ ‘ ‖
(People v. Jones (2013) 57 Cal.4th 899, 915.) Even if the prospective juror would
not invariably vote one way or another, ―[a] prospective juror can properly be
14
excused for cause if he or she is unable to conscientiously consider all of the
sentencing alternatives, including the death penalty where appropriate.‖ (People
v. McWhorter (2009) 47 Cal.4th 318, 340.)
The degree of a prospective juror‘s impairment—that is, his or her inability
or unwillingness to perform the duties of a juror and follow the law—must be
substantial. ―[A] juror who is substantially impaired in his or her ability to impose
the death penalty under the state-law framework can be excused for cause; but if
the juror is not substantially impaired, removal for cause is impermissible.‖
(Uttecht, supra, 551 U.S. at p. 9.)
Both this court and the United States Supreme Court have cautioned that
mere personal opposition to capital punishment is an insufficient basis on which to
justify dismissal of a juror during jury selection. ― ‗[N]ot all who oppose the death
penalty are subject to removal for cause in capital cases; those who firmly believe
that the death penalty is unjust may nevertheless serve as jurors in capital cases so
long as they state clearly that they are willing to temporarily set aside their own
beliefs in deference to the rule of law.‘ ‖ (People v. Jones, supra, 57 Cal.4th at
p. 915, quoting Lockhart v. McCree (1986) 476 U.S. 162, 176.) ―Because ‗[a]
man who opposes the death penalty, no less than one who favors it, can make the
discretionary judgment entrusted to him by the State,‘ [citation], . . . ‗a sentence
of death cannot be carried out if the jury that imposed or recommended it was
chosen by excluding veniremen for cause simply because they voiced general
objections to the death penalty . . . .‘ ‖ (Uttecht, supra, 551 U.S. at p. 6.)
The critical issue is whether a life-leaning prospective juror—that is, one
generally (but not invariably) favoring life in prison instead of the death penalty as
an appropriate punishment—can set aside his or her personal views about capital
punishment and follow the law as the trial judge instructs. ― ‗A prospective juror
personally opposed to the death penalty may nonetheless be capable of following
15
his oath and the law. A juror whose personal opposition toward the death penalty
may predispose him to assign greater than average weight to the mitigating factors
presented at the penalty phase may not be excluded, unless that predilection would
actually preclude him from engaging in the weighing process and returning a
capital verdict.‘ ‖ (People v. Stewart (2004) 33 Cal.4th 425, 446, italics omitted,
quoting People v. Kaurish (1990) 52 Cal.3d 648, 699.)
That prospective jurors are not always clear in articulating their beliefs (or
accurately assessing their ability to set aside those beliefs) is a difficulty trial and
appellate courts frequently encounter in capital cases. Accordingly, although we
have cautioned that, ―[b]efore granting a challenge for cause, the ‗court must have
sufficient information regarding the prospective juror‘s state of mind to permit a
reliable determination as to whether the juror‘s views would ― ‗prevent or
substantially impair‘ ‖ ‘ performance as a capital juror‖ (People v. Leon (2015) 61
Cal.4th 569, 592, quoting People v. Stewart, supra, 33 Cal.4th at p. 445), we have
also recognized that, ― ‗ ―[i]n many cases, a prospective juror‘s responses to
questions on voir dire will be halting, equivocal, or even conflicting. Given the
juror‘s probable unfamiliarity with the complexity of the law, coupled with the
stress and anxiety of being a prospective juror in a capital case, such equivocation
should be expected.‖ ‘ ‖ (People v. Abilez (2007) 41 Cal.4th 472, 497.)
Thus, both this court and the United States Supreme Court have recognized
that ― ‗ ―many veniremen simply cannot be asked enough questions to reach the
point where their bias has been made ‗unmistakably clear‘; these veniremen may
not know how they will react when faced with imposing the death sentence, or
may be unable to articulate, or may wish to hide their true feelings.‖ [Citation.]
Thus, when there is ambiguity in the prospective juror‘s statements, ―the trial
court, aided as it undoubtedly [is] by its assessment of [the venireman‘s]
16
demeanor, [is] entitled to resolve it in favor of the State.‖ ‘ ‖ (People v. Jones
(2012) 54 Cal.4th 1, 41, quoting Uttecht, supra, 551 U.S. at p. 7.)
In light of the inherent ambiguities associated with the death qualification
of juries, two rules have emerged. First, a prospective juror‘s bias against the
death penalty, or the juror‘s inability to set aside his or her personal views and
follow the law, need not be demonstrated with unmistakable clarity. (People v.
Whalen (2013) 56 Cal.4th 1, 25; People v. Abilez, supra, 41 Cal.4th at pp. 497–
498.) Instead, after examining the available evidence, which typically includes the
juror‘s written responses in a jury questionnaire and answers during voir dire, the
trial court need only be left with a definite impression that the prospective juror is
unable or unwilling to faithfully and impartially follow the law. (Whalen, supra,
at pp. 25–26; Abilez, supra, at pp. 497–498.)
Second, in assessing a prospective juror‘s true state of mind, the trial court
occupies a superior position vis-à-vis an appellate court, for the former court is
able to consider and evaluate a juror‘s demeanor during voir dire. (People v.
Whalen, supra, 56 Cal.4th at p. 26; People v. Jones, supra, 54 Cal.4th at p. 41.)
― ‗ ―[A]ppellate courts recognize that a trial judge who observes and speaks with a
prospective juror and hears that person‘s responses (noting, among other things,
the person‘s tone of voice, apparent level of confidence, and demeanor) . . . gleans
valuable information that simply does not appear on the record.‖ ‘ [Citations.]‖
(People v. Scott (2015) 61 Cal.4th 363, 378.) Accordingly, the trial court‘s ruling
regarding the juror‘s true state of mind is entitled to deference on appeal if
supported by substantial evidence. (People v. Leon, supra, 61 Cal.4th at p. 593;
People v. Duff (2014) 58 Cal.4th 527, 541.) As the high court has explained,
―[t]he judgment as to ‗whether a venireman is biased . . . is based upon
determinations of demeanor and credibility that are peculiarly within a trial
judge‘s province. Such determinations [are] entitled to deference . . . .‘ ‖
17
(Uttecht, supra, 551 U.S. at p. 7.) With these precepts in mind, we examine the
juror questionnaires and voir dire of seven prospective jurors that defendant claims
were improperly excused because of their views on capital punishment.
a. Peter B.
According to his written answers in the jury questionnaire, Prospective
Juror Peter B. was 65 years old and had spent much of his life serving in the
military. He explained he was generally in favor of the death penalty, having
―actively supported‖ the 1978 initiative to reinstate the death penalty and opposed
the confirmation of Chief Justice Rose Bird based on his assessment of her views
on capital punishment. Asked what purpose was served by capital punishment,
Peter B. answered: ―It removes from society a very bad person who is a danger to
all.‖ But asked whether a person who intentionally kills should either always, or
never, receive the death penalty, he indicated that he ―disagreed somewhat‖ with
both propositions, noting that it ―depends.‖ His feelings about the death penalty
were not so strong that he would vote one way or the other in every case.
He elaborated on his views during voir dire, telling the trial court ―there are
certain cases where a crime is so vicious that I believe [the death penalty] would
fit the crime.‖ He would not vote against a conviction or a special circumstance
allegation in order to avoid facing the penalty question and, asked to place himself
on a spectrum of persons who would either always or never impose the death
penalty, he located himself in the center, a five on a scale of 10. He would have
no problem voting for death in a case involving a vicious, multiple killing, but he
did not know whether he would vote for the death penalty for a murder with a
single victim.
When the trial court asked whether he could vote for the death penalty for
an intentional murder for financial gain, Peter B. initially replied he would ―favor
life imprisonment,‖ but then amended that view, saying he would ―always‖ vote
18
for life imprisonment in that situation. In follow-up questioning, he explained that
sentencing someone to death would be ―awfully difficult,‖ but that ―I wouldn‘t say
never; I wouldn‘t use the word never. The potential is there.‖ In response to the
prosecutor‘s questioning, the juror further stated he had ―some really strong
feelings against killing people‖ due to his training and experiences in the military
and in the Vietnam War. He continued: ―I‘ve seen slaughters in Vietnam. I never
killed anybody. I never came close to being killed, but the danger was always
there. [¶] You see all these pictures, and training is brutal in the Armed Forces.
The things they show you, the things you go through, the public doesn‘t see. And
I come back, and I don‘t like that any more. [¶] And I see people that are being
sentenced to death, and I sort of sympathize with them. [¶] I understand some of
them deserve it, and I said that they got what they should have, but overall the
thought of people being put to death sometimes doesn‘t go well with me. It would
have to be [a] very vicious crime for me to [vote for the death penalty].‖ He
would vote for the death penalty for mass killings, like if ―somebody . . . went into
a dormitory, and killed seven nurses,‖ ―but I don‘t know if I would put a person to
death for killing one on one, you know, in a one-on-one situation.‖ Asked by the
prosecutor to place himself on a scale of one to 100 for one-on-one murders, with
one representing someone who would never vote for the death penalty and 100 as
someone who would always do so, he said he was in the ―bottom 10.‖
The prosecutor challenged Peter B. for cause and the trial court sustained
the challenge, saying: ―With the exception of where he put himself at a 5, and I
don‘t reconcile that with the rest of his answers, other than he seems to be a man
who wants to answer his own questions, rather than questions that are put to him, I
find he is substantially impaired. [¶] Again, the scale I don‘t think is a total
litmus test, but he sure puts himself in the 1 to 10 down at the—I think every one
19
of his answers, but for the 5—that‘s a conflict with his scale of one to 100. [¶] I
find he‘s substantially impaired.‖
Defendant first contends Prospective Juror Peter B.‘s views on the death
penalty were less objectionable than two jurors the United States Supreme Court
found were improperly dismissed in Adams v. Texas, supra, 448 U.S. 38. In
Adams, the high court articulated for the first time what has become known as the
Witt standard, i.e., ―a juror may not be challenged for cause based on his views
about capital punishment unless those views would prevent or substantially impair
the performance of his duties as a juror in accordance with his instructions and his
oath.‖ (Adams, supra, at p. 45.) Citing two of the jurors in Adams—Juror Mahon
and Juror Coyle—defendant gleans their voir dire responses from the appendix in
the high court‘s Adams opinion and compares them to the voir dire for Peter B.
But using Adams as a reference point for evaluating the excusal of Peter B.
is inapt because Adams concerned the particular statutory scheme in Texas,
whereby ― ‗[p]rospective jurors shall be informed that a sentence of life
imprisonment or death is mandatory on conviction of a capital felony. A
prospective juror shall be disqualified from serving as a juror unless he states
under oath that the mandatory penalty of death or imprisonment for life will not
affect his deliberations on any issue of fact.‘ ‖ (Adams v. Texas, supra, 448 U.S.
at p. 42, quoting Tex. Pen. Code, § 12.31(b), italics added.) As the Adams court
explained, the statutory scheme is inconsistent with the standard demanded by the
federal Constitution because ―neither nervousness, emotional involvement, nor
inability to deny or confirm any effect whatsoever is equivalent to an
unwillingness or an inability on the part of the jurors to follow the court‘s
instructions and obey their oaths, regardless of their feelings about the death
penalty.‖ (Adams, supra, at p. 50.) Those concerns are not pertinent to the
excusal of Peter B. Moreover, the individual responses by the two jurors in Adams
20
played little or no part in the Adams court‘s decision to reverse the conviction in
that case. The high court‘s reasoning was more global, explaining that the Texas
statute permitted the excusal of jurors who would otherwise be qualified under
federal constitutional principles, and thus ―the Constitution disentitles the State to
execute a sentence of death imposed by a jury from which such prospective jurors
have been excluded.‖ (Adams, supra, at p. 51.) Accordingly, Adams does not
require reversal here.4
Defendant further contends the trial court‘s suggestion that Peter B.‘s
responses were inconsistent—first ranking himself as a five on a scale of 10, and
then in the ―bottom 10‖ on a scale of 100—is inaccurate. We agree the trial court
may have been mistaken on this particular point, for the two metrics concerned
different questions. Peter B. described himself as a five on a scale of 10 on the
death penalty generally, but in the ―bottom 10‖ out of 100 of those willing to
impose the death penalty in the particular circumstance of a criminal having killed
a single victim for financial gain. But the juror equivocated when he first said he
would always vote for life in a case of a single murder victim killed for financial
gain but then said he would not use the word ―never‖ and the ―potential is there‖
for imposing the death penalty in that circumstance. Defendant argues the juror
merely experienced ―a moment of confusion,‖ but that is not the only possible
explanation, and the trial court was entitled to resolve the ambiguity concerning
the juror‘s true state of mind in favor of dismissal.
4 Defendant makes the same comparison to the jurors in Adams v. Texas,
supra, 448 U.S. 38, in arguing the trial court erroneously excused Prospective
Jurors Nancy N., Maria G., Brenda M., Kusum P., Betty F., and Yolanda N.,
because of their views on the death penalty. We reject those arguments for the
same reason, i.e., that the comparisons to Adams, which concerned a very different
Texas statute, are inapt.
21
More importantly, in resolving the larger question—whether the juror‘s
views would substantially impair his ability to be fair and impartial—the court‘s
ruling is substantially supported by the record. Noting that the scales were not the
―total litmus test‖ and considering the totality of the circumstances, it appeared to
the court the juror was so unlikely to vote for death in a single killing committed
for financial gain—in the ―bottom 10‖ out of 100—that he was substantially
impaired within the meaning of Witt, supra, 469 U.S. 412. As noted, ante, a
prospective juror‘s inability to fairly weigh the facts and apply the law need not be
demonstrated with unmistakable clarity. (People v. Whalen, supra, 56 Cal.4th at
pp. 25–26.) We conclude substantial evidence supports the trial court‘s decision
that Prospective Juror Peter B.‘s views permitted his dismissal from the venire.
b. Nancy N.
Prospective Juror Nancy N. was 54 years old, African-American, a
librarian, and a Republican. Her questionnaire answers revealed a person who was
generally ―opposed to capital punishment‖ because the likelihood of ―human error
seems to indicate that the jurors may convict an innocent person,‖ and that she had
voted against the 1978 initiative measure to reinstate the death penalty. Where the
questionnaire asked what types of crimes warranted the death penalty, she
answered: ―None.‖ Asked what purpose the death penalty served, she answered:
―Very little—persons who would kill aren‘t concerned with society‘s approval.‖
She indicated she would ―always‖ vote against sentencing an offender to death,
but disagreed only ―somewhat‖ with the statement that those who kill intentionally
should always receive the death penalty.
Nancy N. attempted to clarify her views during voir dire. She admittedly
disfavored capital punishment in general and, asked whether there could ―ever‖ be
22
a case in which she would vote for the death penalty, answered: ―No, I don‘t think
so.‖ Asked about the notorious serial killer and cannibal Jeffrey Dahmer,5 she
said the death penalty ―could be appropriate‖ and that, in an appropriate case, she
could personally vote to impose the death penalty, but estimated only 1 out of 100
cases would fall into that category.
Nancy N. would not decline to vote guilty just to avoid a penalty phase, and
she affirmed that although sitting on the jury would make her ―extremely
uncomfortable,‖ she would consider all the aggravating and mitigating factors
before making a penalty decision. The prosecutor challenged Nancy N. for cause
and the trial court granted the motion, finding Nancy N. ―substantially impaired,‖
adding: ―I don‘t think she even comes close.‖
Defendant contends the record shows Nancy N. ―was a life-leaning juror,
but that she was willing to consider and weigh those factors that might support the
death penalty.‖ Defendant also emphasizes the juror averred that, ―in an
appropriate case, she could vote for the death penalty.‖ But although the juror
indeed made such assertions, she also said there were no crimes for which she
would vote for death, and would always vote against the death penalty. Given
these contradictory answers, it was for the trial court to discern the juror‘s true
state of mind. Because she gave some answers suggesting she would not fairly
consider death as a penalty in an appropriate case, and would leave open the
possibility of capital punishment only in a rare and extreme case, we conclude
5 Jeffrey Dahmer was a serial killer who was convicted of the murder of 15
men and boys between 1978 and 1991. His crimes often involved
dismemberment, retention of body parts and, in some instances, necrophilia and
cannibalism. <http://time.com/4412621/jeffrey-dahmer-cannibal-murderer-25th-
anniversary-arrest/ [as of Dec 1, 2016]> He was beaten to death in prison by
another inmate in 1994. <http://www.nytimes.com/1994/11/29/us/jeffrey-dahmer-
multiple-killer-is-bludgeoned-to-death-in-prison.html [as of Dec. 1, 2016]>
23
substantial evidence supports the trial court‘s assessment of the juror‘s true state of
mind, and we defer to its decision to excuse the juror. (People v. Gonzales and
Soliz (2011) 52 Cal.4th 254, 316.)
c. Maria G.
Prospective Juror Maria G. was a 36-year-old secretary who wrote in her
questionnaire that her views about the death penalty were ―50/50‖ because
imposition of it ―would depend on the circumstances,‖ and that the penalty would
be appropriate in extreme cases like for serial killer Jeffrey Dahmer. She
―disagreed somewhat‖ that anyone who kills intentionally, or kills more than one
victim, should always (or never) get the death penalty, and her feelings about the
death penalty were not so strong that she would always vote for, or against, a
guilty verdict, a special circumstance allegation, or to impose the penalty itself.
Although she was a Catholic, she was ―not in total agreement with the church.‖
(Underscoring in original.)
During voir dire, she stated that, as a general matter, she believed the death
penalty had a place in society and she thought she could impose the death penalty
in an appropriate case, but when asked about a murder for financial gain, she said
she ―would favor life without possibility of parole‖ and that it would be ―a
difficult decision on my part‖ to vote for the death penalty. She admitted she
might, depending on the facts, ―possibly‖ vote for death under those
circumstances, but rated herself only a 2.5 on a 10-point scale of those who, faced
with a financial gain murder, would impose the death penalty.
Under the prosecutor‘s questioning, Maria G. said she rated herself low on
the 10-point scale because there were extreme cases such as that of Jeffrey
Dahmer for which she would vote for death. In addition she said she believed
cases involving the rape or murder of a child warranted the ultimate penalty.
Asked by the prosecutor whether there were other kinds of murders in which she
24
could see herself voting for the death penalty, she replied: ―No.‖ Asked directly
what kind of evidence would convince her to vote for death in a case involving
financial gain, she said the possibility she would vote for death in a financial gain
situation was a ―slim‖ one, and that ―it‘s unlikely‖ she would vote for death in that
situation. The trial court then sustained the prosecution‘s challenge for cause,
explaining that ―the words ‗slim‘ and ‗it‘s unlikely‘ ‖ showed her to be
substantially impaired under Witt, supra, 469 U.S. 412.
Defendant argues Prospective Juror Maria G. was unequivocal about her
ability to impose the death penalty, that she stated ―unambiguously that she would
be able to vote for death in certain circumstances, and specified that she could
consider the death penalty in rape and murder situations.‖ But when questioned
about her willingness to consider the death penalty in situations other than those
involving a serial killer or the rape and murder of a child, she offered no other
situations in which she would consider death an appropriate penalty. She then
equivocated slightly, saying there was a ―slim,‖ but ―unlikely,‖ possibility she
would vote for death where a murder for financial gain was involved. This
evidence suggests that, although the juror‘s views would not wholly prevent her
from fulfilling her duties as a juror, they would ―substantially impair‖ her from
doing so. The trial court apparently found that she was willing to fairly consider
the death penalty only in two narrow circumstances (a serial killer or one who
rapes and kills a child) and was not willing to fairly and impartially consider the
appropriateness of the death penalty in other types of murders, including the type
(financial gain killing) in this case. Although defendant argues this juror did not
completely close the door to capital punishment for a person who killed for
financial gain, emphasizing she said there was a ―slim‖ although ―unlikely‖
possibility, the Witt standard does not require a prospective juror‘s inability or
unwillingness to fulfill her duties as a juror be proved to an unreasonably high
25
degree. Instead, the evidence must simply show the juror‘s views ― ‗substantially
impair the performance of [her] duties as a juror.‘ ‖ (Witt, supra, 469 U.S. at
p. 424, italics added.) On this record, substantial evidence supports the trial
court‘s assessment of Maria G.‘s state of mind, and we defer to its decision to
excuse her. (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 316.)
d. Brenda M.
Prospective Juror Brenda M. was a 30-year-old administrative analyst
working in the psychology department at the University of California, Los
Angeles. She felt the death penalty ―is right in a few cases—a very few.‖ For
emphasis, she underlined the phrase ―a very few‖ four times. Her views stemmed
from the fact that ―[i]f a verdict is wrong there is no way of righting the wrong.‖
She ―disagreed somewhat‖ with the statement that ―[a]nyone who intentionally
kills another person should always get the death penalty,‖ explaining: ―There are
circumstances that are not always known.‖ She ―agreed somewhat‖ with the
statement that ―[a]nyone who intentionally kills more than one person should
always get the death penalty,‖ explaining: ―There could be mental problems that
need to be reviewed.‖
Brenda M. reiterated and expanded on her views during voir dire. She
repeated that she felt there were ―very few cases that I would go for [the] death
penalty,‖ and when asked whether there were any circumstances in which she
would vote for death, she replied: ―I can‘t say for sure right now, but I would
think that I would have a very hard time voting for it.‖ But when asked by
codefendant Sanders‘s attorney whether she would set aside her personal opinions
and follow the law if instructed to do so, she replied in the affirmative, later
adding she had no doubt that she could do so. She affirmed she could follow the
court‘s instruction to consider the two penalties (life in prison without parole or
death) should defendant be convicted.
26
Questioned by the prosecutor, the prospective juror affirmed that the
irreversibility of the death penalty was a concern to her, but she would have less
concern if the accused admitted his guilt. If a defendant contested his guilt,
however, she agreed she would not want to participate in the life-or-death
decision. ―I‘m just saying that I—just in the small amount that I know about the
case, I don‘t think I would go for the death penalty, even not knowing anything—
any evidence or even knowing what they did.‖ ―I‘m trying to think of a case that I
would say the death penalty is appropriate. I can’t offhand think of any.‖ (Italics
added.)
The trial court then attempted to clarify the juror‘s feelings, asking her
whether, where a defendant contests her guilt, but the jury finds her guilty beyond
a reasonable doubt, the juror would nonetheless refuse to ―impose the death
penalty because [the accused] never admitted to full complicity in the crime?‖
She answered in the negative, explaining that a person‘s admission of guilt would
simply make the life-or-death decision ―a little bit easier because of the point that
there‘s no slight bit of percentage that they could be innocent.‖
Asked about different criminal scenarios, Brenda M. replied: ―I honestly
don‘t want to make a decision on someone‘s life or death, and I‘m—it‘s hard to
say, but almost in any case, I would probably go for life without possibility of
parole just because I can‘t do that. Okay?‖ The trial court then asked her: ―Do
you feel you could personally impose the death penalty yourself in the appropriate
case?‖ She answered: ―I don’t think so. No.‖ (Italics added.) She later
elaborated: ―You need to deliberate with the jury, and if somebody could give me
a good enough reason why I would have to change my own personal feelings on
the case, maybe, maybe I could go for the death penalty. [¶] But like I said, I very
much doubt it.‖ (Italics added.)
27
The prosecutor then challenged Brenda M. for cause, arguing that she was
impaired under Witt, supra, 469 U.S. 412. Defense counsel countered by
highlighting the many times the juror said she could impose the death penalty and
set aside her personal feelings of reluctance. The trial court excused Brenda M.,
explaining: ―My feeling is if there ever was a situation that is [Witt], this is it.
The woman is tortured. Both sides attempting to drag her from one side of the line
to the other. [¶] I feel there‘s substantial impairment.‖ The court continued: ―I
really do feel that she is close to the line. I don‘t even think she got dragged over
the line.‖
As the trial court observed, whether Brenda M.‘s written and oral responses
demonstrated that her views about capital punishment would have ― ‗prevent[ed]
or substantially impair[ed] the performance of [her] duties as a juror‘ ‖ (Witt,
supra, 469 U.S. at p. 424), was a close call. Although she acknowledged that the
life-or-death decision would be a difficult one for her, she was open about her
views and at times seemed willing to fairly consider both sides. On the other
hand, she admitted she could conceive of very few situations in which she would
find the death penalty an appropriate punishment (signaling that she might be
unable to fairly consider both sides of the question), and eventually stated she did
not think she could vote for the death penalty (―I don‘t think so. No‖). Under the
circumstances, given that the trial court was able to observe her demeanor (noting,
―[t]he woman is tortured‖), ―[t]o the extent [the juror] gave conflicting answers,
the trial court reasonably resolved those conflicts in determining her true state of
mind. Because the trial court‘s determination is fairly supported by the record, we
defer to it.‖ (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 316.)
28
e. Kusum P.
Prospective Juror Kusum P. was a 34-year-old Indian-American who
worked as a maintenance administrator for Pacific Bell. Regarding her views on
the death penalty, she stated: ―I don‘t believe that [the] death penalty is good. I
won‘t go for that,‖ and would ―instead give some punishment that will change
other people.‖ She held that opinion, ―[b]ecause if one [person] got [the] death
penalty, it‘s not going to change other people[] committing crimes,‖ and ―[i]t‘s not
going to teach [a] lesson.‖ In response to another question, she opined that the
death penalty served no purpose. When asked whether someone who intentionally
kills more than one person should always, or never, receive the death penalty, she
answered paradoxically that she ―[a]gree[d] somewhat‖ to both questions.
During follow-up voir dire, Kusum P. stated she felt the death penalty had
no place in our society, that she could not personally vote for it ―in any kind of
case,‖ and she could not personally ―send somebody to the gas chamber and
execute them.‖ Pressed on the point, she admitted she did not know whether she
could vote for death in the ―most heinous, brutal type of killing,‖ and that ―maybe‖
she could in a case in which ―five small children were tortured to death.‖ She
would not vote not guilty just to avoid a penalty trial, or vote for a special
circumstance just to get to a penalty trial. She would not always vote for death or
for life without regard for the facts of the case. She reiterated the views expressed
in her questionnaire, saying the death penalty does not deter others from
committing crimes. Asked by the prosecutor if she could personally send
someone to their death, she first said ―no,‖ then said: ―It depends. When I go to
after all the facts [sic], like what happened and everything, then I might change my
mind, but it‘s like it depends on what happened and what were the
circumstance[s].‖ But then asked whether, ―if the circumstances were really
29
terrible, could you actually look at this individual, and say it‘s my decision that
you should die?‖ she answered, ―No.‖
The prosecutor challenged Kusum P. for cause and the trial court granted it,
explaining: ―The court finds based on the answers to the questionnaire, answers in
court, she‘s substantially impaired.‖ As the record demonstrates, Prospective
Juror Kusum P. had generally strong feelings against the death penalty. Although
she was never asked expressly whether she could set them aside and follow the
law, her answers provided substantial evidence that she could not fairly consider
both sides. (People v. Merriman (2014) 60 Cal.4th 1, 53.) That she gave
contradictory answers at times illustrates the high court‘s observation that ―many
veniremen simply cannot be asked enough questions to reach the point where their
bias has been made ‗unmistakably clear‘; these veniremen may not know how they
will react when faced with imposing the death sentence, or may be unable to
articulate, or may wish to hide their true feelings. Despite this lack of clarity in
the printed record, however, there will be situations where the trial judge is left
with the definite impression that a prospective juror would be unable to faithfully
and impartially apply the law.‖ (Witt, supra, 469 U.S. at pp. 424–426, fn.
omitted.) As with the other challenged jurors, the trial court fairly determined
Kusum P.‘s true state of mind and, as it is supported by substantial evidence, we
defer to that decision. (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 316.)
f. Betty F.
Prospective Juror Betty F. was a 54-year-old African-American who
worked for a federal defense contractor. She was generally in favor of the death
penalty, writing: ―I feel [the death penalty] is necessary to deter the increase in
[the] unnecessary killing of . . . innocent people.‖ Asked in what type of crime the
death penalty should be imposed, she suggested the death penalty was appropriate
30
for crimes that victimized the mentally ill and children. She ―strongly disagreed‖
with the propositions that an offender should ―always,‖ or ―never,‖ receive a
sentence of either life or death, opining that the circumstances of individual cases
must be reviewed.
Betty F.‘s voir dire began with her largely confirming her written
responses. Although she initially expressed reluctance when asked whether she
could ―personally vote to have somebody executed,‖ she affirmed she could vote
for death in some unspecified circumstances. She would not change her vote to
avoid a penalty phase nor would she do so in order to get to a penalty phase so she
could sentence someone to death. She initially stated that in a case of murder for
financial gain, she would not always vote for either life or death, but then admitted
she ―would prefer life imprisonment‖ to the death penalty in such cases. Asked to
elaborate, Betty F. said she would not prefer life imprisonment ―in every situation‖
or ―no matter what the facts [were],‖ but on a scale of one to 10, with one being
someone who would always impose a life sentence, the juror put herself at two on
the scale. Questioned by defense counsel, Betty F. agreed she thought the death
penalty was appropriate for ―horrible‖ murders such as for those who tortured and
killed children. Questioned by the prosecutor, the juror explained her initial
answer to the court suggesting she would be reluctant to vote for the death penalty:
―I wasn‘t really prepared to—I didn‘t think I was going to be able to explain why I
felt I could go for the death penalty, but with him I did explain whether or not kind
of—what had to be a horrible [crime], and I could in those instances, that I could
separate from some of them.‖ But she placed herself as a two on the scale because
she ―would have a hard time voting for death if all of the circumstances led me to
believe it wasn‘t horrible, horrible.‖ She agreed with the prosecutor that, for a
murder that was not ―horrible‖ or ―gross,‖ such as involving children, sexual
31
brutalization or dismemberment, it would be extremely unlikely she would vote
for death.
At this point the trial court intervened to clarify the juror‘s views.
―THE COURT: Let me—Here you are not dealing with a child and
dismemberment, and you are not dealing with a situation of torture, you are not
dealing with a number of murders. One murder that‘s deliberately done,
intentionally done for the purpose of getting money.
―Can you see yourself imposing the death penalty in that type of case?
―PROSPECTIVE JUROR [Betty F.]: No.
―THE COURT: No matter what the facts were? It‘s not as gruesome as
what you were talking about.
―Would you always vote for life in prison?
―PROSPECTIVE JUROR [Betty F.]: Yes.‖ (Italics added.)
Thereafter the trial court excused her for cause, explaining: ―I find she‘s
substantially impaired,‖ and ―I think she‘s honest. I think this is the difficulty we
have with a lot of these people. They just don‘t comprehend the subject.‖
Although initial indications suggested Betty F. could fulfill the duties of a juror in
a capital case, her later elaboration of her views made clear she would never vote
for the death penalty in a case of murder for financial gain. It was for the trial
court to resolve these ambiguities regarding her true state of mind, and because
substantial evidence supports the trial court‘s determination that she was impaired
within the meaning of Witt (Witt, supra, 469 U.S. at p. 424), we defer to the
court‘s decision to sustain the prosecution‘s challenge for cause. (People v.
Gonzales and Soliz, supra, 52 Cal.4th at p. 316).
32
g. Yolanda N.
Prospective Juror Yolanda N. was a 54-year-old Latina who worked for the
Los Angeles County Sheriff‘s Department in an unspecified capacity. She was
generally reticent about the prospect of putting people to death for their crimes,
writing: ―Although rapist[s] and child molesters . . . are the worst crimes, still I
don‘t know if all deserve the death penalty.‖ Asked the purpose of the death
penalty, she wrote that it would serve as an example to other criminals. Asked
what type of crime deserved the death penalty, she offered: ―Child molesters and
rapists.‖ She ―agreed somewhat‖ with the proposition that someone who killed
intentionally, or killed more than one person, should ―always‖ receive the death
penalty, and ―disagreed somewhat‖ that such persons should ―never‖ be sentenced
to death. She affirmed that she would not vote one way or the other ―regardless of
the evidence presented‖ in order to reach a certain result.
During voir dire, Prospective Juror Yolanda N. stated that if she thought
defendant was guilty, she would not vote to acquit in order to avoid a penalty
phase trial, nor would she vote to convict (or sustain a special circumstance
allegation) despite entertaining a reasonable doubt simply to ensure that defendant
would face a penalty trial. She was then asked whether, ―without knowing
anything about how or why [a murder] was carried out, without knowing anything
about the defendant, would you always vote to impose the death penalty [or,
alternatively, life in prison] just because of the type of murder it was?‖ She
replied in the negative, agreeing with the court that she would want to know more
about the case before making such a decision. But when later asked by the
prosecutor whether she would consider life and death ―on an equal basis,‖ she
replied that she thought she would lean heavily in favor of life in prison,
explaining that, being a religious person, she believed ―[a] person should be given
a chance to repent.‖ Pressed on the point by the prosecutor, the juror said she did
33
not believe in the Old Testament teaching calling for ―an eye for an eye,‖ saying
that giving someone the death penalty would be ―very much‖ against her personal
beliefs.
The following colloquy then occurred:
―[THE PROSECUTOR]: So if we asked you then whether or not personally
you could ever vote for the death penalty, could you ever personally vote for the
death penalty?
―PROSPECTIVE JUROR [Yolanda N.]: In which case?
―[THE PROSECUTOR]: In any case of murder?
―PROSPECTIVE JUROR [Yolanda N.]: 99.9 percent, no.‖ (Italics added.)
The trial court then sought to clarify the juror‘s views, asking whether,
without knowing anything else, if an adult victim was intentionally, and with
premeditation, murdered for purposes of financial gain, ―do you feel you could
ever see yourself voting for the imposition of the death penalty if you felt the facts
surrounding the crime or the facts surrounding the defendant would call for it?‖
She replied: ―Very hard that I would vote for death.‖ The court then asked: ―You
said that you would 99.9 percent [of the time] never vote for the death penalty,‖ to
which she replied, ―Yes.‖
The trial court thereafter excused Prospective Juror Yolanda N. without
much elaboration, saying: ―The fact that a juror [such a Yolanda N.] favors in the
abstract one [penalty] or the other doesn‘t disqualify [her].‖ The important
consideration, the court said, was whether the juror‘s views regarding the death
penalty would ―substantially impair[]‖ her in performing the duties of a juror, and
the court concluded she demonstrated such impairment when she said she would
impose life imprisonment instead of death in 99.9 percent of possible cases of
murder for financial gain.
34
As with several other prospective jurors excluded from the jury, although
initial indications suggested Yolanda N. could fulfill the duties of a juror in a
capital case, more in-depth questioning revealed she would almost never vote for
the death penalty in a case of murder for financial gain. It was for the trial court to
resolve these ambiguities regarding her true state of mind. Because substantial
evidence—in the form of the juror‘s own statements—supported the trial court‘s
finding that Yolanda N. was substantially impaired within the meaning of Witt,
supra, 469 U.S. at page 424, we defer to the court‘s assessment (People v.
Gonzales and Soliz, supra, 52 Cal.4th at p. 316).
In sum, although defendant challenges the excusal of seven prospective
jurors due to their views on the death penalty, we find the trial court‘s
determinations that they were all substantially impaired within the meaning of
Witt, supra, 469 U.S. at page 424, adequately supported by the record. We thus
reject the claims.
2. Denial of Severance
a. Introduction
Defendant, along with Phillip Sanders, Carolyn Sanders, and Robert Jones,
were jointly charged by felony complaint on August 30, 1990, with conspiracy to
commit murder, and murder with the special circumstance that it was committed
for financial gain. (§§ 182, 187, 190.2, subd. (a)(1).) When the information was
filed several months later on February 19, 1991, all four codefendants were still
jointly charged with all counts. Thereafter Phillip Sanders moved to sever his trial
from that of his wife, Carolyn, and Jones moved to sever his trial from the others.
The motions were partially granted, leaving defendant and Phillip Sanders in one
joint trial and Carolyn Sanders and Robert Jones paired in a second joint trial.
Defendant and Phillip‘s trial proceeded first.
35
Thereafter defendant moved multiple times—before, during, and after
trial—to sever her trial from that of her codefendant, Phillip Sanders. Many of her
severance motions were accompanied by motions for a mistrial or for dual juries.
Her motions were all denied, first by Judge Jacqueline Weisberg, and then by
Judge George Trammell when he took over the case.
b. Applicable Law
Authorization to hold a joint trial of two or more defendants is provided by
section 1098, which states in pertinent part that ―[w]hen two or more defendants
are jointly charged with any public offense, whether felony or misdemeanor, they
must be tried jointly, unless the court order separate trials.‖ (Italics added.) This
law thus establishes a legislative preference for joint trials, subject to a trial court‘s
broad discretion to order severance. In People v. Hardy (1992) 2 Cal.4th 86, we
described the guiding principles a trial court should follow when exercising such
discretion: ― ‗The court should separate the trial of codefendants ―in the face of an
incriminating confession, prejudicial association with codefendants, likely
confusion resulting from evidence on multiple counts, conflicting defenses, or the
possibility that at a separate trial a codefendant would give exonerating
testimony.‖ ‘ ‖ (Id. at p. 167.) We review a trial court‘s denial of severance for
abuse of discretion (People v. Cleveland (2004) 32 Cal.4th 704, 726; People v.
Alvarez (1996) 14 Cal.4th 155, 189), based on ―the facts known to the court at the
time of the ruling‖ (People v. Box (2000) 23 Cal.4th 1153, 1195).
Even were a reviewing court to find a trial court abused its discretion in
failing to grant a defendant‘s motion to sever, the defendant would not be entitled
to relief on appeal unless she could also demonstrate, to a reasonable probability,
that she ―would have received a more favorable result in a separate trial.‖ (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 41.) Conversely, even if a trial court
36
acted within its discretion in denying severance, ― ‗the reviewing court may
nevertheless reverse a conviction where, because of the consolidation, a gross
unfairness has occurred such as to deprive the defendant of a fair trial or due
process of law.‘ ‖ (People v. Cleveland, supra, 32 Cal.4th at p. 726.)
c. The First Motion to Sever (April 3, 1992)
Following the successful severance motions of Carolyn Sanders and Robert
Jones, defendant faced a joint trial with her codefendant, Phillip Sanders. On
April 3, 1992, defendant made her first motion to sever her trial from that of
Phillip Sanders, raising three arguments in support: (1) Phillip‘s confession to a
jail visitor, Juanita Williams, would not be admissible against defendant were she
and Phillip tried separately;6 (2) Defendant would be prejudiced in a joint trial
with Phillip because the evidence of Phillip‘s guilt was much stronger than the
evidence against her; and (3) she anticipated that her defense and Phillip‘s defense
would be mutually antagonistic. In court to argue the motion, the parties engaged
in a protracted discussion concerning whether Juanita Williams‘s statement could
be effectively redacted to eliminate any specific mention of defendant in order to
preserve defendant‘s confrontation rights. (See People v. Aranda (1965) 63
Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.) Eventually, the
prosecution asserted it would rather forgo using Williams‘s statement than hold
separate trials. In light of that assertion, the trial court suggested the question of
redaction might be moot and so turned to the question of inconsistent defenses.
6 Juanita Williams reported to police that she met Phillip Sanders when she
visited her son at the jail. During these visits, according to Williams, Phillip
confessed to her his part in the murder of Melvin Thompson and referred to the
wife of the victim as being involved in the crime.
37
After defendant‘s attorneys made an offer of proof in chambers to describe
their intended defense, the court announced: ―I‘m not convinced. I heard the offer
of proof as to these allegedly inconsistent defenses, and these problems arise
always when you have a joint trial. I don‘t see anything here that is any different
from what happens in many situations, and nothing that would preclude Catherine
Thompson from having a fair trial with the cases joined as it is, and it‘s thoroughly
within the court‘s discretion, and I am exercising my discretion in denying the
motion to sever on that basis.‖ The prosecution eventually decided not to have
Williams testify.
Defendant first argues reversal is required because Judge Weisberg ―failed
to exercise her discretion under a correct view of the law‖ because she ―did not
regard the existence of conflicting defenses as a potential reason to sever.‖
Further, she claims the judge ―did not appreciate that the defenses in this case
were not merely inconsistent but particularly antagonistic and mutually exclusive.‖
The record belies this claim. After hearing defendant‘s lawyers describe their
expected defense strategy in camera, Judge Weisberg found the claimed conflicts
with Phillip‘s expected defense to be nothing unusual. The expected defenses
were indeed conflicting, but not in any manner in which the jury would necessarily
conclude that both defendants were guilty, or—given the copious evidence of a
conspiracy—that acceptance of one party‘s defense necessarily meant the other
was guilty. ―Severance is not required simply because one defendant in a joint
trial points the finger of blame at another.‖ (People v. Homick (2012) 55 Cal.4th
816, 850.) The record thus demonstrates that Judge Weisberg exercised her
discretion to deny the motion, and that she was aware that the degree to which the
codefendants‘ expected defenses conflicted was a factor to consider.
Nor does the mere existence of conflicting defenses demonstrate Judge
Weisberg abused her broad discretion. ―Although there was some evidence before
38
the trial court that defendants would present different and possibly conflicting
defenses, a joint trial under such conditions is not necessarily unfair. [Citation.]
‗Although several California decisions have stated that the existence of conflicting
defenses may compel severance of codefendants‘ trials, none has found an abuse
of discretion or reversed a conviction on this basis.‘ [Citation.] If the fact of
conflicting or antagonistic defenses alone required separate trials, it would negate
the legislative preference for joint trials and separate trials ‗would appear to be
mandatory in almost every case.‘ ‖ (People v. Hardy, supra, 2 Cal.4th at p. 168,
second italics omitted, quoted with approval in People v. Coffman and Marlow,
supra, 34 Cal.4th at p. 41.)
― ‗Thus, ―[a]ntagonistic defenses do not per se require severance, even if
the defendants are hostile or attempt to cast the blame on each other.‖ [Citation.]
―Rather, to obtain severance on the ground of conflicting defenses, it must be
demonstrated that the conflict is so prejudicial that [the] defenses are
irreconcilable, and the jury will unjustifiably infer that this conflict alone
demonstrates that both are guilty.‖ ‘ [Citation.] When, however, there exists
sufficient independent evidence against the moving defendant, it is not the conflict
alone that demonstrates his or her guilt, and antagonistic defenses do not compel
severance.‖ (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.)
Defendant argues the existence of antagonistic defenses between
codefendants should weigh more heavily in favor of severance than our cases have
suggested, citing several lower federal court decisions that she claims require
severance whenever jointly tried defendants present antagonistic defenses. (See
U.S. v. Tootick (9th Cir. 1991) 952 F.2d 1078, 1081–1082; U.S. v. Romanello (5th
Cir. 1984) 726 F.2d 173, 177; U.S. v. Ziperstein (7th Cir. 1979) 601 F.2d 281,
285.) Defendant‘s cited authorities all predate the United States Supreme Court‘s
decision in Zafiro v. United States (1993) 506 U.S. 534, where the high court
39
explained that ―[m]utually antagonistic defenses are not prejudicial per se.
Moreover, Rule 14 [Fed. Rules Crim. Proc., 18 U.S.C.] does not require severance
even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted,
if any, to the district court‘s sound discretion.‖ (Id. at pp. 538–539.) Proceeding
with a joint trial despite the existence of inconsistent or mutually antagonistic
defenses is thus consistent with constitutional guarantees, at least in the absence of
some greater showing of prejudice or an unfair trial, as we recently held. (People
v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 380 [―the federal
Constitution [does not] compel severance when codefendants present conflicting
defenses‖].)
We also reject defendant‘s argument that reversal is required because Judge
Weisberg failed to appreciate that heightened scrutiny of joinder was required
because this was a capital case. We have held severance motions in capital cases
should generally receive heightened scrutiny for potential prejudice (People v.
Hajek and Vo (2014) 58 Cal.4th 1144, 1173; People v. Coffman and Marlow,
supra, 34 Cal.4th at p. 44), but Judge Weisberg undoubtedly knew this was a
capital case, and her assessment that the inconsistencies between the anticipated
defenses were routine and commonplace was not an abuse of discretion.
Moreover, ample evidence—all of which would have been admissible in a
separate trial—shows any error was harmless. Such evidence includes the web of
evidence demonstrating that defendant participated in a conspiracy with Phillip
and Carolyn Sanders and Robert Jones to kill the victim for financial gain,
including defendant‘s many refinancing and insurance frauds, the evidence of
many telephone calls between her and Phillip in the days leading up to the murder,
her lies about recycling cans the day of the murder and about the allegedly stolen
Rolex watch, her lie about having seen a tall unidentified man leave the scene of
the crime (when other witnesses identified Phillip Sanders and Robert Jones
40
leaving the scene), her blurted-out statement upon leaving the hospital that she
―didn‘t mean for it to happen this way,‖ and her blurted-out statement upon her
arrest that she ―didn‘t know Phil at all. I only met him once and that was about the
sale of a car.‖
Under the circumstances, defendant fails to show Judge Weisberg abused
her discretion in denying defendant‘s pretrial motion to sever (People v. Coffman
and Marlow, supra, 34 Cal.4th at p. 41), or that denial of severance resulted in
such gross unfairness as to deprive defendant of a fair trial or due process of law
(People v. Cleveland, supra, 32 Cal.4th at p. 726).
d. The First Renewed Motion to Sever (May 11, 1992)
Defendant renewed her motion to sever before Judge Weisberg on May 11,
1992, arguing that since the time Judge Weisberg denied the first severance
motion, the defense had learned of new evidence in the form of a recorded
polygraph examination and interview with Phillip in which he stated he went to
the victim‘s workplace in hopes of obtaining a loan; there he found the victim and
defendant, defendant suddenly produced a gun and killed her husband, and then
asked Phillip to dispose of the weapon. In light of the new evidence, defense
counsel argued the case fell within ―the paradigm definition of antagonistic and
mutually incompatible defenses where each defendant is accusing the other and
lessens the prosecution‘s burden.‖ Further, according to counsel, ―the problem is
that the two defendants find themselves in a position where to acquit one of them
the jury must necessarily convict the other.‖
Judge Weisberg denied the renewed motion, explaining: ―[A]s I stated
before, it is within the court‘s discretion, and I considered the matter of
inconsistent defenses, and I am exercising my discretion and denying the motion
to sever.‖ Although defendant does not provide any argument independently
41
challenging the denial of this renewed motion, we perceive no abuse of discretion;
the new evidence does not materially change the adversarial nature of the
codefendants‘ anticipated defenses, and the trial court was already aware that each
would attempt to blame the other as the person who pulled the trigger.
e. The Renewed Motion to Sever Before Judge Trammell (June 8,
1992)
Defendant renewed her motion to sever once again after the case was
transferred to Judge Trammell. Judge Trammell reviewed the previous written
motions, which had leaned heavily on the argument that defendant and Phillip
Sanders would present antagonistic defenses, and then heard argument on the
renewed motion. Defense counsel again argued that severance was required
because defendant and Phillip Sanders were expected to present antagonistic
defenses. But when the prosecutor argued the defense could not identify ―one
piece of evidence . . . that is going to be admitted in a joint trial that would be
inadmissible in a separate trial,‖ defense counsel had no answer.
Judge Trammell denied the renewed severance motion. He acknowledged
he had discretion to reconsider the matter, suggested Judge Weisberg would not
have abused her discretion had she granted severance and, indeed, said he likely
would have granted the original motion, but explained: ―I feel it‘s discretionary
and I choose to allow the prior rulings to remain.‖ Asked by defense counsel
whether it would be helpful for the defense to file additional briefing on the
court‘s authority to reconsider a ruling by a previous, different judge, Judge
Trammell replied, ―I don‘t feel that . . . what I have before me is sufficient to
cause me to override [Judge Weisberg‘s] decisions,‖ and that Judge Weisberg‘s
decision denying severance was not an abuse of discretion.
Defendant argues Judge Trammell misapprehended the scope of his
discretion, arguing that no statute precluded reconsideration, and the judge had
42
jurisdiction for all purposes. Further, defendant points to Judge Trammell‘s use of
the word ―override‖ to suggest the judge gave inappropriate deference to Judge
Weisberg‘s initial ruling. The contention cannot be sustained. The record makes
clear Judge Trammell understood he had discretion to reconsider the matter. For
example, the judge stated specifically that he understood he was not sitting as an
appellate court, and that a ―motion for renewed consideration per change in
circumstance can always be made.‖ He simply found the evidence presented by
the defense insufficiently substantial to convince him a change was justified.
Indeed, the evidence of inconsistent or antagonistic defenses was only a little
changed since the time Judge Weisberg had first denied severance. The decision
to deny the renewed motion for severance was thus not arbitrary and capricious.
There being no abuse of discretion, we will sustain it on appeal. (People v.
Cleveland, supra, 32 Cal.4th at p. 726.) We also conclude Judge Trammell‘s
denial of the renewed severance motion did not result in such gross unfairness as
to deprive defendant of a fair trial or due process of law. (Ibid.)
f. The Fourth Pretrial Severance Motion (June 24, 1992)
During jury selection on June 24, 1992, defendant once again moved to
sever her case from that of codefendant Phillip Sanders. Defense counsel
explained that he had become aware that on June 9, 1992, counsel for Phillip made
an ex parte presentation to the trial court and that the evidence presented there
―might impact the court‘s decision on the issue of either separate juries for the two
defendants or for severance.‖ Although counsel did not know the substance of the
ex parte presentation, he cited this new development as the reason for his renewed
motion for severance. In the alternative, he moved for the empanelment of dual
juries. The trial court denied both motions, saying: ―I see no reason for either a
severance or two juries to hear the case at the same time. In other words, nothing
43
was revealed in that [ex parte hearing] that would cause me to believe it would be
necessary to do that.‖
As we explain in more detail, post, part I.B.3, Phillip‘s attorneys made an
ex parte showing in chambers regarding letters he received from defendant while
both were in pretrial detention. The letters urged Phillip to recant his story
blaming defendant for the shooting in exchange for promised financial benefits.
The prosecution agreed not to press for timely discovery of the letters (and of the
authenticating witness, Jennifer Lee), thereby permitting Phillip and the
prosecution to delay disclosing the letters to defendant. The trial court was aware
of the content of the letters and expressly referred to them (i.e., ―nothing was
revealed in that [ex parte hearing] that would cause me to believe‖ severance was
required) when denying the renewed severance motion.
We find no abuse of discretion. Subject to authentication, the letters would
have been admissible against defendant whether or not she was tried jointly with
Phillip. Although defendant suggests her lack of formal notice of the letters (and
Lee‘s role in authenticating them) violated her right to due process, the letters
could not have taken defendant by surprise because, having written them (and
convinced Lee to recopy some of them), defendant was undoubtedly aware of their
existence and contents. She has, moreover, not suggested how earlier disclosure
of the letters would have made any difference to her defense. She claims the joint
trial risked compromising a specific trial right, but does not identify what right that
was. In short, the letters, although not considered by Judge Trammell when he
denied the previous severance motion, did not much change the calculus of
whether severance was necessary, as he so held. Even were we to find Judge
Trammell abused his discretion, no prejudice could have occurred, as defendant
was already aware of the letters.
44
When, much later in the trial, the existence of the letters was finally
revealed, defendant moved for a continuance, renewed her motion for severance,
and then moved for a mistrial, but all three motions were denied. To the extent
she now contends the trial court should have granted severance at that time, we
reject the claim for the same reason: the trial court acted within its broad
discretion because the letters would have been admissible in a separate trial, and
defendant was not prejudiced by their belated disclosure.
g. Motion for Dual Juries (June 24, 1992)
Defendant also claims Judge Trammell should have granted her alternative
motion for the empanelment of dual juries based on Phillip‘s counsel‘s ex parte
presentation to the court. This claim requires a somewhat different analysis. We
know Judge Trammell was aware of the possibility of using dual juries as an
alternative to separate trials because, when denying the prosecution‘s motion to
reconsolidate trial of all four defendants, he stated: ―I don‘t like dual juries. I
don‘t think anyone does, but I think in the interest of judicial economy there are
times you have to use them.‖ But when he later denied defendant‘s motion for
dual juries, Judge Trammell explained that ―nothing was revealed in that [ex parte
hearing] that would cause me to believe it would be necessary to [order dual
juries].‖
The law is settled. ―[W]e have upheld the use of separate juries for jointly
tried defendants, as an alternative to outright severance. (People v. Cummings
(1993) 4 Cal.4th 1233, 1287 . . . .) Cummings explained, however, that the
decision to use dual juries is largely a discretionary one, and that ‗[w]hen the trial
court‘s denial of severance and impanelment of dual juries is urged as error on
appeal . . . the error is not a basis for reversal of the judgment in the absence of
identifiable prejudice or ―gross unfairness . . . such as to deprive the defendant of a
45
fair trial or due process of law.‖ [Citations.]‘ (People v. Cummings, supra, 4
Cal.4th at p. 1287. . . .)‖ (People v. Taylor (2001) 26 Cal.4th 1155, 1173–1174.)
Defendant fails to demonstrate such gross unfairness. Although she
contends ―[t]he record contains no evidence that Judge Trammell in fact exercised
his discretion, ‗guided by legal principles and policies appropriate to the matter at
issue,‘ ‖ we disagree. Defendant‘s oral motion was based on the revelation that
Phillip‘s counsel and the prosecution conducted an ex parte hearing, excluding
defendant and her lawyers. Although defense counsel‘s motion was somewhat
handicapped because he was not privy to the contents of that hearing, Judge
Trammell presided over the hearing and expressly ruled that nothing revealed
therein justified using dual juries. That ruling was well within the court‘s
discretion and in the absence of a showing of identifiable prejudice or gross
unfairness, the denial of separate juries did not deprive defendant of a fair trial or
due process of law. (People v. Cummings, supra, 4 Cal.4th at p. 1287.)
h. The Renewed Severance Motion (July 21, 1992)
Just prior to the prosecution‘s opening statements on July 21, 1992,
defendant moved to have the trial court exercise its discretion and order
codefendant Phillip Sanders to present his defense first, i.e., after the prosecution
rested its case. Counsel argued that if defendant were forced to put on her defense
first, she would ―be caught between two prosecutors,‖ anticipating Phillip‘s
defense would be that defendant was the actual shooter. Phillip‘s counsel
objected, arguing that disadvantage would exist for whoever went first, and also
citing the interest in ensuring the safety of witnesses. (The trial court undoubtedly
understood that this was a reference to Jennifer Lee, Phillip‘s anticipated witness
who would authenticate the letters defendant sent Phillip, and who felt threatened
46
by defendant.) The trial court denied the motion and directed defendant to present
her defense before Phillip.
In his opening statement, the prosecutor argued the evidence would show
that Phillip Sanders was ―the shooter in this case. The person that actually carried
out the assassination.‖ By contrast, Phillip‘s counsel argued that defendant was
the shooter and had set up the murder so that Phillip was ―present when she does
in fact shoot Melvin Thompson three times.‖ After Phillip‘s counsel concluded
his opening statement but before defendant‘s counsel made his opening statement,
defendant renewed her motion for severance, arguing that although the unfairness
of the joint trial was previously just a theoretical matter, ―now that [Phillip] is on
record in front of the jury [as] setting forth a theory untenable even by the
prosecution, [defendant] is in the unenviable position [of] defending against not
only the prosecution, but against her codefendant.‖ ―She simply cannot defend
against these twin evils.‖ In the alternative, she asked for the empanelment of dual
juries. The trial court denied both motions without comment.
The trial court‘s denial of the renewed severance motion was not an abuse
of discretion. The same motion had been denied several times before, and the
assertions made during the opening statements added little, if anything, to what
was previously known. Absent some critical new evidence, the trial court‘s
decision to stand on its previous ruling was well within its discretion.
Nor did the court abuse its discretion by denying defendant‘s motion to
change the order of proof. ―[T]he order of proof in a criminal case rests in the
sound discretion of the trial court‖ (People v. McDermand (1984) 162 Cal.App.3d
770, 792; see § 1093 [specifying the order of proof but providing the trial court
retains discretion to alter it]), and the court‘s concern for the safety of witness Lee
provides ample support for its exercise of discretion. In any event, we see little
that could be gained by forcing Phillip to present his evidence first because
47
defendant, having written the letters, must have been aware of their existence and
contents.
i. Additional Motions for Severance During the Guilt Phase
Defendant unsuccessfully renewed her motion for severance three more
times during the guilt phase of trial. Defendant did so first on August 7, 1992,
during the prosecution‘s case-in-chief against Phillip Sanders, after the trial court
sustained Phillip‘s claim of marital privilege (to keep his wife, Carolyn, from
testifying that he had confessed he shot the victim). Defendant argues the court‘s
ruling deprived her of the benefit of Carolyn‘s statements, which would have
provided direct evidence that defendant was not the actual shooter, a key issue
when the jury was to weigh the appropriateness of the death penalty at the penalty
phase of the trial. Phillip‘s counsel said he would ―absolutely‖ claim the marital
privilege whether or not defendant and Phillip were tried separately. Carolyn
Sanders‘s attorney said he would advise her not to testify in a separate trial against
defendant, citing her right against compelled self-incrimination, although
defendant‘s attorney argued that because Carolyn had already waived her rights
and given some testimony, she was no longer entitled to invoke her Fifth
Amendment rights. Defense counsel then reiterated that ―we‘re entitled to
severance to present this very important evidence [i.e., Carolyn‘s testimony that
Phillip admitted being the shooter].‖ Although the trial court expressed concern
about the complexity of the case and ensuring defendant‘s right to a fair trial, it
ultimately denied severance.
Second, on August 14, 1992, codefendant Phillip Sanders disclosed the four
letters he had received from defendant. Defendant‘s counsel made clear he had
just received the letters for the first time that morning at 8:15 a.m. Counsel moved
for a mistrial and renewed his motion for severance, ―because it seems clear to me
48
that we are being asked to defend against material we have never seen and has not
been provided to us,‖ and claimed the failure to earlier disclose the evidence
violated defendant‘s right to due process of law. The court denied the motions.
Later, however, when the court and attorneys discussed whether
defendant‘s constitutional right to a fair trial might override Phillip‘s marital
communications evidentiary privilege, Phillip moved for severance, apparently
thinking he might still be able to assert his marital communication privilege in a
separate trial. Given the complexities of the situation, the trial court admitted, ―I
am now seriously considering severance and mistrial,‖ ―I don‘t think I‘ve any
other choice. To [e]nsure Mrs. Thompson a fair trial, I don‘t have any other
choice,‖ and ―I‘m leaning strongly toward a severance.‖ But despite voicing these
misgivings, the court did not issue a ruling at that time.
Next, on August 17, 1992, the court again took up the question of
severance. Defense counsel argued that if defendant was unable to impeach
Phillip with the statements he made to his wife, then ―the only alternative for the
court is to grant severance.‖7 The prosecutor argued that severance was premature
because it was not yet clear defendant would call Carolyn Sanders to the stand.
After much back and forth, the trial court denied the renewed severance motion as
premature.
7 The premise of the argument was that, were defendant tried separately, she
could call Carolyn Sanders to the stand and have her repeat her evidence that
Phillip told her he personally shot the victim. That premise is doubtful, as
Evidence Code section 980, the statutory privilege for marital communications,
provides that a ―spouse . . . whether or not a party, has a privilege . . . to prevent
another from disclosing [a confidential marital communication].‖ (Italics added.)
Thus, Phillip could prevent Carolyn from testifying even if he were not jointly
tried with defendant.
49
After a 15-minute break, in what the court described as an ―unbelievable‖
twist, counsel for Phillip announced they had reached an agreement with the
prosecution to waive the marital communication privilege (thereby permitting
Carolyn Sanders to testify) in exchange for the prosecution‘s promise not to urge
the jury to vote for the death penalty. The prosecution clarified that it intended to
proceed to a penalty phase for both defendants, but that the prosecution would
simply not urge a death verdict for Phillip.
Defendant made her third midtrial severance motion on August 18, 1992.
On that day, Phillip Sanders testified that he had received some letters from
defendant and wrote back to her on the advice of his attorneys, who suggested that
if he responded she might write more letters and further incriminate herself.
Citing that testimony, defense counsel again moved for severance, arguing that he
would like to call Phillip‘s attorneys as rebuttal witnesses but they would likely
invoke attorney-client privilege. ―Therefore, I believe we have another instance of
the inability of [defendant] to confront and cross-examine witnesses against [her].‖
The court denied the motion with no comment.
Ultimately, Phillip testified he did not tell his wife, Carolyn, that he
personally shot the victim. The prosecution declined to impeach him with his
wife‘s testimony, so defendant called her to the stand in rebuttal, where she
testified that on the night in question, Phillip came home and told her he shot
someone at a transmission shop.
Defendant does not argue the individual merits of the trial court‘s denials of
her three midtrial severance motions, but argues that together those rulings
deprived her of her constitutional rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution, as well as article I,
50
section 15 of the California Constitution.8 Although defendant reprises her earlier
claims that the repeated denials of severance were an abuse of discretion, her
specific constitutional claims are that failure to sever her trial from Phillip‘s
deprived her of a fair trial and a reliable penalty determination because Phillip and
his counsel acted as an extra prosecutor. This allowed Phillip, for example, to
delay disclosure of defendant‘s prison letters and the existence of Jennifer Lee, the
authenticating witness. Defendant also suggests that had she been granted a
separate trial, Phillip would never have reached a deal with the prosecution, and so
would not have testified at her separate trial due to concerns of self-incrimination,
which in turn would have eliminated the need for her to call Carolyn Sanders to
the stand to impeach him. In a separate trial, she suggests, if Phillip chose to
testify, his credibility would have been compromised by having to admit he was an
accomplice as a matter of law.
None of these arguments convinces us that any of the trial court‘s rulings
denying severance, either alone or in combination, resulted in a violation of
defendant‘s state or federal constitutional rights. With regard to the delayed
disclosure of the jail letters and Jennifer Lee‘s testimony, we have already
explained that no harm came from the delay because defendant was undoubtedly
aware of evidence of letters she herself had composed, despite the absence of
formal discovery. Further, the trial court offered to recall Lee to the stand should
defendant wish to conduct a further cross-examination of her, but defendant did
not take advantage of this opportunity, suggesting that advance warning of Lee‘s
8 As pertinent here, article I, section 15 of the California Constitution states:
―The defendant in a criminal case has the right to . . . be confronted with the
witnesses against the defendant,‖ and that ―[p]ersons may not . . . be deprived of
life, liberty, or property without due process of law.‖
51
testimony would have made little or no difference to defendant‘s approach to the
trial.
Defendant suggests she was disadvantaged when the prosecution chose not
to call Carolyn Sanders to testify because that decision forced defendant to call her
to the stand to rebut Phillip‘s testimony that defendant shot the victim. Defendant
exaggerates the deleterious effect of that decision because no matter who called
Carolyn to the stand, her testimony provided strong evidence that Phillip, not
defendant, was the actual killer. Moreover, although defendant suggests a
severance would have better protected her rights, she would have fared no better
had severance been granted. Even in a hypothetical separate trial, she would have
attempted to shift the blame for the murder to Phillip and to this end would have
tried to call Carolyn Sanders to testify. Had Phillip never reached a deal with the
prosecution to waive his marital communication privilege, he could have
prevented Carolyn from taking the stand in a hypothetical separate trial. But in
that case, the prosecution would also never have agreed to refrain from calling
Juanita Williams to the stand, something it did in order to preserve a joint trial.
Williams would then have repeated Phillip‘s incriminating statements to her,
statements which were clearly against his penal interests and thus admissible
despite the hearsay rule. We thus cannot say defendant was disadvantaged by the
denial of her severance motion. In any event, ―[s]imply because the prosecution‘s
case will be stronger if defendants are tried together, or that one defense
undermines another, does not render a joint trial unfair.‖ (People v. Bryant, Smith
and Wheeler, supra, 60 Cal.4th at p. 379.)
Regarding defendant‘s contention that failure to sever violated her right to a
fair trial because joinder allowed Phillip to act as a second prosecutor, we have
recently rejected that precise argument, reasoning that ―important concerns of
public policy are served if a single jury is given a full and fair overview of the
52
defendants‘ joint conduct and the assertions they make to defend against ensuing
charges.‖ (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 379.)
Although the prosecution‘s cooperation with Phillip and his counsel was unusual,
none of the agreements reached by the prosecution to maintain a joint trial
rendered defendant‘s trial so unfair that we could conclude defendant‘s
confrontation or fair trial rights were violated.
j. Conclusion
We thus conclude the denials of defendant‘s many severance motions, both
alone and in combination, fell within the court‘s discretion and did not deprive
defendant of a fair trial. Moreover, even were we to conclude the trial court
abused its discretion in denying severance, the evidence of defendant‘s guilt was
overwhelming, including her many financial frauds indicating her motive, her lies
about recycling and about the Rolex watch, her many telephone calls to Phillip
leading up to the murder, her blurted-out statements indicating guilt (i.e., that she
―didn‘t mean for it to happen this way,‖ and that she ―didn‘t know Phil at all‖),
and especially Christine Kuretich‘s testimony concerning the planning of the
crime. Consequently, those rulings did not prejudice defendant or otherwise result
in an unfair trial.
3. Denial of Reciprocal Discovery
Defendant argues the trial court‘s failure to order discovery from her
codefendant, Phillip Sanders, violated her state and federal constitutional rights to
a fair trial, to due process, to present a defense, to confront the witnesses against
her, and to a reliable death penalty verdict (U.S. Const., 5th, 6th, 8th & 14th
Amends.; Cal. Const., art. I, § 15), as well as her rights under section 1054
governing discovery in criminal cases. As explained below, we reach the
following three conclusions: Section 1054 does not require a court to order one
53
codefendant to provide discovery to another codefendant; the trial court‘s failure
to order such discovery did not violate defendant‘s state or federal constitutional
rights; and; assuming error occurred, it was harmless.
a. Facts
After defendant rested her defense, codefendant Phillip Sanders was
scheduled to begin his defense to the charges. As part of his defense, he intended
to introduce letters, sent to him by defendant while both were in pretrial custody,
urging him not to trust his lawyer and promising financial rewards were he to
change his story blaming her for the murder. (One letter was handwritten by
defendant herself, but the others were copied by her cellmate from letters
defendant provided.) Around this time (i.e., midtrial), the prosecution for the first
time formally received copies of the letters from Phillip‘s counsel and thereafter
disclosed them to defendant‘s attorney, who protested the belated disclosure of the
evidence.
In fact, the prosecution had learned much earlier both that Phillip possessed
the letters and that he intended to introduce them as evidence. Two months
earlier, on June 9, 1992, Phillip‘s two attorneys, Cary Weiss and David Wesley,
along with the prosecutor, held an ex parte meeting before Judge Trammell, during
which the attorneys revealed the existence of the letters and informed the
prosecutor they had located a witness (defendant‘s former cellmate, Jennifer Lee)
who could authenticate them. Weiss and Wesley asserted they did not want to
formally disclose the evidence to the prosecutor because that would trigger the
latter‘s obligation under applicable discovery rules to disclose the evidence to
defendant. Wesley acknowledged he would have to provide discovery to the
prosecution at some point but, as a strategic matter, wished to wait until after
defendant had presented her defense and ―locked herself into a position.‖ Wesley
54
explained that Lee, the authenticating witness, was afraid defendant would
retaliate violently against her should she discover Lee had cooperated with the
prosecution. Wesley echoed Lee‘s concern that Lee‘s safety in jail would be
compromised if defendant had advance knowledge that Phillip intended to use the
letters. The prosecution agreed not to press for disclosure at that time. The trial
court agreed that Phillip‘s attorneys would not have to disclose Lee‘s existence
until after defendant testified.
At a later ex parte hearing on July 27, 1992, the trial court approved
Phillip‘s agreement with the prosecution not to disclose the evidence until trial.
The prosecution, in effect, declined to insist on its right to pretrial discovery.
Indeed, the agreement between Phillip and the prosecution went so far as to permit
Phillip‘s counsel to submit the letters to the Los Angeles Police Department‘s
handwriting expert to permit analysis, with a court order directing the expert not to
disclose the letters without the court‘s permission. When the codefendant‘s
possession of the letters was finally revealed, defendant moved for a continuance,
renewed her motion for severance, and then moved for a mistrial, but all three
motions were denied. The trial court ordered the prosecution to disclose to
defendant‘s attorneys the copies they had in their possession.
Phillip‘s defense began on August 17, 1992. Although defendant would
later stipulate that she wrote one of the letters, she objected to the introduction of
the letters not in her own handwriting, arguing they had not been properly
authenticated. The trial court ruled that Phillip could not discuss the content of
those letters until they were authenticated, but later denied defendant‘s further
motion for production of the actual letters as well as her request for a list of the
witnesses Phillip intended to call, explaining, ―I don‘t believe I have the right to
order that because it‘s a codefendant and the discovery statute doesn‘t address that
issue.‖ Phillip later testified and admitted receiving the letters but denied
55
accepting any financial benefits from defendant in exchange for changing his
testimony. Instead, Phillip said he turned the letters over to his lawyers. Jennifer
Lee testified and authenticated the letters, explaining that she copied the letters as
a favor to defendant. Lee also testified that defendant and Phillip‘s wife, Carolyn,
were friends at county jail, that defendant told her she was on a cruise when her
husband was killed, and that she (defendant) had a lot of money, owned a yacht,
and lived in Calabasas. Outside the presence of the jury, defendant unsuccessfully
renewed her motion for a mistrial due to the failure to provide discovery.
In closing argument, both the prosecution and Phillip relied on the letters.
The prosecutor emphasized the letters were powerful evidence that defendant and
Phillip were working together, noting that the letters showed they discussed their
common defenses and strategies, that they ―clearly show a conspiracy,‖ and that
―[i]t‘s obvious there is no animosity between any of these people‖ and Phillip‘s
counsel, in turn, argued the letters were ―the best evidence of what is really going
on in somebody‘s mind‖ and they show that defendant was ―afraid that [Phillip] is
going to admit to getting rid of this gun and tell everything that happened.‖
According to Phillip‘s counsel, another letter showed that Carolyn Sanders and
defendant had decided Phillip should take the blame for the killing and ―lays out a
story for him to tell‖ that would allow the two women to avoid prison. In return
for Phillip presenting such evidence exculpating Carolyn and defendant, according
to the letter, defendant promised ―to take care of him and [Carolyn] for the rest of
your lives.‖
b. Section 1054
Discovery in criminal cases is governed by section 1054, which was added
to the Penal Code by Proposition 115 in 1990. ― ‗Proposition 115 added both
constitutional and statutory language authorizing reciprocal discovery in criminal
56
cases.‘ The new constitutional provision, article I, section 30, subdivision (c) of
the California Constitution, declares that ‗[i]n order to provide for fair and speedy
trials, discovery in criminal cases shall be reciprocal in nature, as prescribed by the
Legislature or by the People through the initiative process.‘ ‖ (Verdin v. Superior
Court (2008) 43 Cal.4th 1096, 1102, superseded by statute on another ground, as
stated in People v. Banks (2014) 59 Cal.4th 1113, 1193.) ―The same proposition
also added chapter 10 to part 2, title 6 of the Penal Code, commencing with
section 1054 . . . , establishing the procedures for, and limitations on, discovery in
criminal cases. Section 1054 sets forth the purposes of this new chapter, including
that ‗no discovery shall occur in criminal cases except as provided by this chapter,
other express statutory provisions, or as mandated by the Constitution of the
United States.‘ (Id., subd. (e).) We have emphasized this statutory exclusivity,
noting that ‗all court-ordered discovery is governed exclusively by—and is barred
except as provided by—the discovery chapter newly enacted by Proposition 115.‘
(In re Littlefield (1993) 5 Cal.4th 122, 129.)‖ (Verdin, supra, at pp. 1102–1103.)9
9 Section 1054, in full, states: ―This chapter shall be interpreted to give
effect to all of the following purposes:
― (a) To promote the ascertainment of truth in trials by requiring timely
pretrial discovery.
― (b) To save court time by requiring that discovery be conducted
informally between and among the parties before judicial enforcement is
requested.
― (c) To save court time in trial and avoid the necessity for frequent
interruptions and postponements.
― (d) To protect victims and witnesses from danger, harassment, and undue
delay of the proceedings.
― (e) To provide that no discovery shall occur in criminal cases except as
provided by this chapter, other express statutory provisions, or as mandated by the
Constitution of the United States.‖
57
As defendant acknowledges, and the trial court held, no provision in the
statutory scheme governing criminal discovery explicitly or even impliedly
requires one codefendant to disclose any evidence to another codefendant. Thus,
section 1054.1 states that ―[t]he prosecuting attorney shall disclose to the
defendant or his or her attorney all of the following materials and information
. . . .‖ (Italics added.) Similarly, section 1054.3, subdivision (a) requires a
―defendant and his or her attorney [to] disclose to the prosecuting attorney‖
certain materials. (Italics added.) Nothing in the language of these two provisions
requires one codefendant to provide discovery to another codefendant. We have
adhered strictly to this language; for example, we held in People v. Ervin (2000)
22 Cal.4th 48, that although reciprocal discovery of penalty phase evidence
between a defendant and the prosecution is generally required by section 1054,
―no statutory basis exists for the discovery of codefendants‘ penalty phase
witnesses‖ (Ervin, supra, at p. 101).
Despite the absence of express authority requiring discovery among
codefendants, defendant argues that, having decided early on to have Jennifer Lee
testify to authenticate the letters, Phillip was required to provide discovery of that
fact to the prosecution, which would in turn have required the prosecution to
disclose that information to defendant. But the prosecution, made aware of the
evidence, expressly acquiesced in Phillip‘s proposal to delay disclosure. Nothing
in the statutory scheme prohibits the prosecution from doing so.
Noting that section 1054.7 provides that discovery ―shall be made at least
30 days prior to the trial, unless good cause is shown why a disclosure should be
denied, restricted, or deferred‖ (italics added), defendant further argues the trial
court abused its discretion by permitting deferral of disclosure without first
making a finding of good cause. But the quoted language, read in context, clearly
addresses the trial court‘s discretion in cases where discovery is otherwise
58
required. Because we find the statutory scheme beginning with section 1054 does
not require discovery between codefendants, the good cause provision is beside
the point. But even if a showing of good cause were required to defer discovery,
such cause was shown by Lee‘s expressed fear of retaliation should defendant
learn of Lee‘s cooperation with the prosecution. (§ 1054.7 [good cause includes
evidence of ―threats or possible danger to the safety of a . . . witness‖].)
Defendant does not, even now, suggest these concerns over Lee‘s safety were
fabricated or exaggerated.
Defendant also contends language in section 1054, subdivision (b) can be
read to require mandatory discovery between codefendants. That section sets forth
the general purposes of the criminal discovery scheme and states in part that
discovery is required ―[t]o save court time by requiring that discovery be
conducted informally between and among the parties before judicial enforcement
is requested.‖ (Italics added.) According to defendant, by using the words
―between‖ and ―among‖ in this passage, the drafters of the statute ―make[] clear
they intended the reciprocal discovery rules to apply to all those involved in a
criminal case as ‗parties.‘ ‖ While defendant‘s reading is plausible as a general
matter, inferences drawn from the definitions of the words ―between‖ and
―among‖ cannot overcome the more specific provisions in sections 1054.1 and
1054.3 that speak in terms of discovery flowing specifically from the ―prosecuting
attorney‖ to the ―defendant‖ (or his or her attorney), and vice versa. Moreover, as
is clear from the context of section 1054, subdivision (b), that provision merely
expresses the Legislature‘s general intent that parties first attempt to obtain
discovery informally, ―before judicial enforcement is requested.‖ We cannot
reasonably infer from either the language or the context of this passage that the
Legislature intended to authorize reciprocal discovery between codefendants being
jointly tried.
59
c. Constitutional Considerations
Having concluded no statutory basis exists for requiring a criminal
defendant to provide discovery to a codefendant in a joint trial, we now turn to
whether defendant was entitled to discovery of the letters as a constitutional
matter. Although section 1054, subdivision (e) sets forth a strict rule limiting the
availability of discovery in criminal cases (―no discovery shall occur in criminal
cases except as provided by this chapter‖), it also acknowledges two key
exceptions: discovery is available if required by ―other express statutory
provisions, or as mandated by the Constitution of the United States.‖ We have
previously recognized that discovery in criminal cases is sometimes compelled by
constitutional guarantees to ensure an accused receives a fair trial. (See, e.g.,
People v. Superior Court (Johnson) (2015) 61 Cal.4th 696 [requiring disclosure of
potentially impeaching material contained in a law enforcement officer‘s
personnel file]; People v. Gonzalez (2006) 38 Cal.4th 932 [requiring disclosure of
the prosecution‘s rebuttal witnesses at the penalty phase of a capital trial];
Alvarado v. Superior Court (2000) 23 Cal.4th 1121 [requiring disclosure of the
identities of crucial prosecution witnesses].) In such cases, we have ―reaffirmed
that a criminal defendant‘s right to discovery is based on the fundamental
proposition that the accused is entitled to a fair trial and the opportunity to present
an intelligent defense in light of all relevant and reasonably accessible
information.‖ (People v. Hobbs (1994) 7 Cal.4th 948, 965.)
Defendant argues Phillip‘s failure to disclose the letters and Lee‘s identity
as an authenticating witness, as well as the failure to disclose the prosecution‘s
agreement to forgo insisting on its statutory right to discovery of the material,
violated her constitutional rights under both the Sixth Amendment (to confront the
witnesses against her) and the Fourteenth Amendment (her due process right to a
fair trial and to a meaningful opportunity to present a defense). But although
60
defendant, as one accused of serious crimes, was unquestionably entitled to the
right to confrontation and to a fair trial, she does not explain how her
codefendant‘s failure to provide her with pretrial disclosure of the letters and of
Lee‘s expected testimony denied her the rights guaranteed by the United States
Constitution.10 Defendant presumably knew the content of the letters (because she
wrote them) and knew of Lee‘s participation as well, so she could not have been
caught off guard to such an extent that we might conclude she was unable to
prepare a meaningful defense and thereby denied her due process right to a fair
trial. She was, moreover, able to cross-examine Phillip and Lee about the letters,
thereby satisfying her right to confrontation. Under the circumstances, we
conclude the trial court‘s decision to permit Phillip to pursue a trial strategy
disadvantageous to defendant Thompson did not violate her constitutional rights.
To the extent defendant asserts the decision to hold a joint trial and the
denial of her many motions for severance deprived her of notice and the timely
discovery of evidence she would have otherwise received in a separate trial, she
fails to establish the failure to provide her with discovery of the letters before trial
violated her constitutional rights. As we explained in People v. Bryant, Smith and
Wheeler, supra, 60 Cal.4th at page 379, ―[s]imply because the prosecution‘s case
will be stronger if defendants are tried together, or that one defense undermines
another, does not render a joint trial unfair. [Citation.] Indeed, important
concerns of public policy are served if a single jury is given a full and fair
overview of the defendants‘ joint conduct and the assertions they make to defend
against ensuing charges.‖ Accordingly, the mere possibility she would have
10 Although defendant‘s opening brief also contends the denial of discovery
denied her state constitutional rights under article I, section 15 of the California
Constitution, she provides no separate discussion or analysis of that provision.
61
obtained discovery of the letters earlier had she been tried separately is insufficient
to demonstrate a violation of her constitutional rights to a fair trial and to confront
the witnesses against her. Although defendant is correct that we strive to interpret
statutes (such as § 1054) so as to avoid constitutional problems (see In re
Marriage Cases (2008) 43 Cal.4th 757, 800), because we find defendant had no
constitutional right to discovery from her codefendant, we have no occasion to
reinterpret section 1054 to require reciprocal discovery among codefendants.
d. Prejudice
Finally, even were we to find defendant was entitled, either by statutory or
constitutional compulsion, to earlier discovery of the letters and of Lee‘s identity,
we would conclude any error was harmless under any standard. Because
defendant wrote the letters, and personally asked Jennifer Lee to copy them in her
own handwriting before sending them to Phillip, defendant was undoubtedly
aware of both the existence of the evidence and its potential significance, and she
had sufficient opportunity to fairly meet the evidence when it was presented to the
jury. For example, defendant failed to take advantage of the trial court‘s offer to
have Lee return to the stand to allow defendant to cross-examine her on the
circumstances of her purported authentication of the letters. Under the
circumstances, defendant could not have suffered any prejudice from her inability
to obtain discovery at an earlier time from her codefendant.
4. Ex Parte Hearings
Related to her claim that she was entitled to pretrial discovery from her
codefendant, Phillip Sanders, of evidence concerning the jail letters, defendant
also contends she was entitled to be present at the hearings in which Phillip‘s
attorneys, the prosecutor and the trial court discussed the discovery issue. Her
exclusion from these hearings, she claims, violated her constitutional rights to
62
counsel and to due process of law under the state and federal Constitutions. (U.S.
Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) She also contends her
exclusion from these hearings violated her statutory right to be present at all
critical stages of her criminal trial (§§ 977, 1043), and that holding an ex parte
hearing was unauthorized by section 1054.7, violated the California Code of
Judicial Ethics (hereafter Code of Judicial Ethics), and deprived her of the
effective assistance of counsel. For the reasons that follow, we reject these
claims.11
a. The Constitutional Right to Be Present
― ‗Under the Sixth Amendment, a defendant has the right to be personally
present at any proceeding in which his appearance is necessary to prevent
―interference with [his] opportunity for effective cross-examination.‖ [Citations.]
Due process guarantees the right to be present at any ―stage . . . that is critical to
[the] outcome‖ and where the defendant‘s ―presence would contribute to the
fairness of the procedure.‖ ‘ [Citation.] The state constitutional right to be present
at trial, which is guaranteed by article I of the California Constitution, ‗ ―is
generally coextensive with the federal due process right.‖ ‘ ‖ (People v.
11 Defendant also mentions, but provides no independent argument regarding,
an ex parte hearing held early in the pretrial period for the purpose of appointing
separate counsel for witness Christine Kuretich, a housemate of Phillip and
Carolyn Sanders, who was expected to be called as a prosecution witness.
Defendant makes just a bare mention that an ex parte hearing was held concerning
Kuretich, does not describe what happened in the hearing, and then devotes her
entire briefing on the question of ex parte hearings to the set of hearings involving
Phillip‘s desire not to provide discovery to defendant. The Attorney General does
not mention the Kuretich hearing at all. On appeal, we assume a judgment is
correct and the defendant bears the burden of demonstrating otherwise. (People v.
Garza (2005) 35 Cal.4th 866, 881; People v. Cardenas (2015) 239 Cal.App.4th
220, 227.) Under the circumstances, we find defendant has not met her burden of
showing statutory or constitutional error with regard to the Kuretich hearing.
63
Cunningham (2015) 61 Cal.4th 609, 633.) Defendant contends that her right to
due process and a fair trial required the trial court to have given her notice and an
opportunity to be heard on the questions of her alleged right to discovery from
Phillip. In short, she claims the trial court should not have held the hearings
without her.
―Proceedings held in chambers and outside the presence of a party are
generally disfavored.‖ (People v. Carasi (2008) 44 Cal.4th 1263, 1299.)
Nevertheless, as a general rule, a trial court has discretion to conduct a proceeding
in a defendant‘s absence ―to protect an overriding interest that favors
confidentiality.‖ (Ibid.; see People v. Valdez (2012) 55 Cal.4th 82, 125 [―ex parte
proceedings are permissible if ‗compelling reasons justify them‘ ‖].) Unlike most
instances in which a criminal defendant complains of being excluded from a
hearing, the ex parte hearing in this case excluded both defendant and her
attorneys. We need not decide whether the same rules apply in that situation,
however, because we conclude any constitutional error was harmless. As
explained, ante, the subject of the ex parte hearings now challenged concerned the
letters defendant sent to Phillip Sanders in jail, and Jennifer Lee‘s ability to
authenticate those letters. Defendant could not have been taken by surprise by the
contents of the letters because she wrote them. She was, moreover, afforded
sufficient opportunity to cross-examine Lee regarding her role as defendant‘s
amanuensis. Accordingly, the exclusion of defendant and her attorneys from the
hearing in question could not have prejudiced her under any standard.
b. The Statutory Right to Be Present
Defendant also argues her exclusion from the hearing on Phillip Sanders‘s
discovery obligations violated her statutory rights. With exceptions not relevant
here, at the time of defendant‘s trial section 977 provided in pertinent part: ―In all
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cases in which a felony is charged, the accused [shall be personally] present at the
arraignment, at the time of plea, during the preliminary hearing, during those
portions of the trial when evidence is taken before the trier of fact, and at the time
of the imposition of sentence. The accused must be present at all other
proceedings unless he shall, with leave of court, execute in open court, a written
waiver of his right to be personally present, approved by his counsel, which
waiver must then be filed with the court . . . .‖ (Former § 977, subd. (b), as
amended by Stats. 1968, ch. 1064, § 1, p. 2064.) The present version of the
statute, section 977, subdivision (b)(1), is essentially the same. (See Stats. 2014,
ch. 167, § 1.)
Section 1043 is also relevant. It provides that a felony defendant ―shall be
personally present at the trial‖ (id., subd. (a)), provides for removal of disruptive
defendants (id., subd. (b)(1)), and when read together with section 977, provides
that ―a capital defendant cannot voluntarily waive his right to be present during the
proceedings listed in section 977.‖ (People v. Cunningham, supra, 61 Cal.4th at
p. 635.) In other words, section 1043 when read in conjunction with section 977,
permits a capital defendant to be absent only in very limited circumstances
(People v. Brown (2014) 59 Cal.4th 86, 117–118).
Like the constitutional imperative, the statutory requirement that a
criminally accused be personally present in court applies to all proceedings where
his presence bears a ― ‗ ―reasonable, substantial relation to his opportunity to
defend the charges against him.‖ ‘ ‖ (People v. Carrasco (2014) 59 Cal.4th 924,
959, quoting People v. Lynch (2010) 50 Cal.4th 693, 745–746.) But as with the
constitutional claim, we need not decide whether the ex parte hearing now
challenged satisfies the ―reasonable, substantial relation test,‖ because no
prejudice could have resulted from the exclusion of defendant and her attorneys
from the hearing. Again, as defendant was undoubtedly aware of the existence
65
and contents of the letters, as well as Jennifer Lee‘s part in copying them,
defendant‘s exclusion from the hearing could not have negatively affected her trial
or trial strategy in any meaningful way.
c. Subsidiary Claims
Defendant makes three subsidiary claims. First, she argues that by holding
an ex parte hearing concerning Phillip‘s discovery obligations the trial court erred
under state law, because section 1054.7 does not authorize ex parte hearings. We
find no violation of the statute. Section 1054.7 contains no express prohibition on
ex parte hearings, and defendant acknowledges that ―the trial court may hold an ex
parte hearing on a discovery matter‖ so long as ―the hearing . . . comport[s] with
the general principles of due process.‖ (Cf. People v. Bryant, Smith and Wheeler,
supra, 60 Cal.4th at p. 466 [―In general, a court ‗has inherent discretion to conduct
in camera hearings to determine objections to disclosure based on asserted
privileges.‘ ‖].) As defendant had no due process right to pretrial discovery from a
jointly tried codefendant, the trial court‘s decision to hold an ex parte hearing was
permissible. Nor does City of Alhambra v. Superior Court (1988) 205 Cal.App.3d
1118, which defendant cites in support, alter our conclusion. The propriety of the
ex parte hearing in that case concerned the defendant‘s request for discovery from
the prosecution. By contrast, the discovery matter at issue here was between the
prosecution and Phillip, so the case is inapposite. In any event, the court in City of
Alhambra acknowledged that ―ex parte hearings may be necessary to protect a
defendant‘s rights‖ (id. at p. 1130); here, the fair trial rights to be protected
belonged to codefendant Phillip Sanders.
Second, defendant argues she is entitled to relief because, by holding an ex
parte hearing on Phillip‘s discovery issue, the trial judge violated the Code of
Judicial Ethics. The Code of Judicial Ethics sets forth ethical rules applicable to
66
judges, and one of them addresses ex parte communications: ―A judge shall not
initiate, permit, or consider ex parte communications, that is, communications to
or from the judge outside the presence of the parties concerning a pending . . .
proceeding . . . except [listing situations inapplicable here].‖ (Code Jud. Ethics,
canon 3B(7).) Further, ―[i]f a judge receives an unauthorized ex parte
communication, the judge shall make provision promptly to notify the parties of
the substance of the communication and provide the parties with an opportunity to
respond.‖ (Id., canon 3B(7)(d) (canon 3B(7)(d)).)
Defendant contends the trial court‘s ex parte hearing in her case violated
this canon, requiring reversal of her convictions. Misconduct by a trial judge may,
of course, be grounds for reversal of a judgment, but even were we to assume the
trial court was in violation of an ethical rule, reversal would not be required on
these facts. As respondent observes, no case authority holds that a violation of a
judicial ethical rule, per se, automatically requires reversal of the ensuing
judgment. Defendant cites two cases in support, but neither justifies reversal here.
In Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, the trial court
viewed the defendant corporation‘s training video without plaintiff‘s counsel
being present, an apparent violation of canon 3B(7)(d), convincing the appellate
court to reverse the resulting judgment. But the Haluck court also explained that
the procedure was improper because it created an appearance of impropriety, and
its decision to reverse was due to a combination of the trial court‘s multiple
ethically questionable acts, not just a single violation of the Code of Judicial
Ethics. By contrast, the ex parte hearing in this case was designed to address
Phillip‘s discovery obligations, and only tangentially and minimally affected
defendant‘s rights.
Similarly, in People v. Bradford (2007) 154 Cal.App.4th 1390, which
defendant also cites in support, the court reversed a conviction due to the trial
67
court‘s ex parte communications with a deliberating jury. Although such
misconduct violates the Code of Judicial Ethics, the Bradford court reversed the
judgment because the ex parte contacts violated the defendant‘s constitutional
right to a fair trial. By contrast, defendant does not show the ex parte hearing in
this case violated her constitutional rights.
In any event, as we have concluded the trial court acted properly in
excluding defendant and her attorneys from the hearing in which the prosecution
and attorneys for codefendant Phillip Sanders discussed his discovery obligations,
defendant was not a ―person who [had] a legal interest in the proceeding‖ within
the meaning of canon 3B(7)(d).
Finally, defendant argues that deciding Phillip‘s discovery matter in an ex
parte hearing violated her right to the effective assistance of counsel as guaranteed
under the Sixth Amendment to the United States Constitution. The claim fails
because she does not demonstrate she had a right to be represented by counsel at a
hearing concerning Phillip‘s discovery obligations. Even if she did, no prejudice
is apparent, as she could not have been unaware of the contents of the letters under
discussion. (See People v. Lucas (2014) 60 Cal.4th 153, 305 [―If petitioner fails to
show prejudice, a reviewing court may reject the claim [of ineffective assistance
of counsel] without determining whether counsel‘s performance was adequate‖].)
5. Alleged Prosecutorial Failure to Comply with Discovery
Defendant next contends the prosecution failed to disclose before trial four
pieces of evidence, thereby violating the statutory scheme governing prosecutorial
discovery (§1054.1 et seq.), as well as her constitutional rights to confrontation,
effective counsel, and a reliable penalty determination under the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. As we explain, we find
no reversible error.
68
a. The Applicable Law
As noted, ante, the rules governing discovery in criminal trials underwent a
major change on June 5, 1990, by the adoption of Proposition 115, titled the
―Crime Victims Justice Reform Act.‖ (See Izazaga v. Superior Court (1991) 54
Cal.3d 356.) As defendant‘s trial was held in 1992, these new rules applied to her
trial. Pursuant to those rules, ―[i]n criminal proceedings, under the reciprocal
discovery provisions of section 1054 et seq., all court-ordered discovery is
governed exclusively by—and is barred except as provided by—the discovery
chapter newly enacted by Proposition 115 [§§ 1054–1054.7].).‖ (In re Littlefield,
supra, 5 Cal.4th at p. 129.)
Section 1054.1 provides: ―The prosecuting attorney shall disclose to the
defendant or his or her attorney all of the following materials and information, if it
is in the possession of the prosecuting attorney or if the prosecuting attorney
knows it to be in the possession of the investigating agencies: [¶] . . . [¶] ―(f)
Relevant written or recorded statements of witnesses or reports of the statements
of witnesses whom the prosecutor intends to call at the trial, including any reports
or statements of experts made in conjunction with the case . . . .‖ Such disclosures
must ―be made at least 30 days prior to the trial, unless good cause is shown why a
disclosure should be denied, restricted, or deferred.‖ (§ 1054.7.) ― ‗Good cause‘
is limited to threats or possible danger to the safety of a victim or witness, possible
loss or destruction of evidence, or possible compromise of other investigations by
law enforcement.‖ (Ibid.)
Although section 1054.1, subdivision (f) states expressly that the
prosecution must disclose ―written or recorded statements of witnesses,‖ at least
one appellate court has interpreted this language to apply to oral statements as
well. (Roland v. Superior Court (2004) 124 Cal.App.4th 154.) We previously
have had no occasion to decide whether section 1054.1‘s disclosure obligation
69
applies to oral statements in addition to written ones. (See People v. Verdugo
(2010) 50 Cal.4th 263, 283.)
b. Analysis
Carolyn Thompson Jones (Carolyn Jones), the victim‘s eldest child,
testified she worked for the United States Department of Defense as an
investigator and had had four weeks of training on subjects such as ―observing a
person‘s body language, their tone of voice, facial expressions and things like
that.‖ She was at the hospital after her father was shot and observed defendant
there. Jones testified that defendant ―appeared to be very calm at times and then
there were other times where she would . . . scream or let out a yell like she was
really grieving my father‘s death; but there were never any tears and she only did
that when someone was watching her or looking at her but she was never crying,
actually crying, like the rest of us were.‖ This evidence tended to bolster the
prosecution‘s assertion that defendant‘s expressions of grief were feigned, thus
indicating a guilty state of mind.
Defendant objected to Carolyn Jones‘s testimony on the ground that the
prosecution failed to disclose that it intended to call Jones as an expert witness, but
the court overruled the objection. Defendant now contends the failure to provide
pretrial discovery of Jones‘s testimony as required by statute violated her
constitutional rights entitling her to reversal of her conviction. Respondent notes
that defendant‘s true argument seems more aimed at whether the prosecution gave
sufficient notice that Jones would testify as an expert, but setting that aside, for
two reasons we conclude that, even assuming for argument‘s sake a statutory
discovery violation occurred, reversal is unjustified.
First, when allegedly first confronted with Carolyn Jones‘s testimony at
trial with no previous pretrial discovery, defendant failed to request a continuance
70
to meet the new evidence. This omission is fatal to her contention on appeal. ―It
is defendant‘s burden to show that the failure to timely comply with any discovery
order is prejudicial, and that a continuance would not have cured the harm.‖
(People v. Pinholster (1992) 1 Cal.4th 865, 941; see People v. Carpenter (1997)
15 Cal.4th 312, 386–387 [quoting Pinholster with approval].) Even now she fails
to assert how earlier disclosure of Jones‘s testimony would have made any
difference to her defense strategy. Second, any error was harmless, for Jones was
not the only one to notice defendant‘s lack of true grief. Tommy Thompson,
another of the victim‘s children, testified that when he saw defendant at the
hospital, ―she didn‘t show any emotions at all‖ and ―didn‘t cry at all.‖ According
to Tommy, defendant was more grief stricken when her pet cat died. And Nancy
Rankin testified that when she rode home from the hospital with defendant, she
heard defendant say, ―it wasn‘t supposed to happen this way.‖ Accordingly, any
discovery violation with regard to Jones‘s testimony was harmless under any
standard.
Defendant also contends reversal is required because she received no
pretrial discovery of Tony DeGreef‘s testimony. DeGreef testified he met with
defendant and Isabelle Sanders when negotiating to sell the Hillary Drive house
back to defendant, and that defendant told him that her husband ―was very ill to
the point of being bedridden in some cases, and it would be much better that I did
not speak with him because she did not want to get him more upset in regards to
the matter.‖ In short, defendant ―indicated that she did not want [the victim] to
know‖ about the negotiations to buy back the house. Defense counsel objected
and moved for a mistrial, arguing, ―we have absolutely no discovery‖ of
DeGreef‘s statements. The prosecutor confirmed for the trial court that
―everything that has been reduced to writing with respect to this witness [had]
been turned over‖ to the defense, and that defendant had known all along the
71
prosecution intended to prove the victim was ignorant of the foreclosure on the
Hillary Drive house. Further, said the prosecutor, ―We can‘t [provide pretrial
discovery for] each and every sentence that the witness is testifying to.‖ The trial
court denied the mistrial motion.
Even assuming for the sake of argument that some of DeGreef‘s oral
statements that were never reduced to writing were nevertheless subject to pretrial
disclosure under sections 1054.1 et seq., defendant‘s failure to request a
continuance defeats her present claim. (People v. Pinholster, supra, 1 Cal.4th at
p. 941.) As with Carolyn Jones‘s testimony, defendant does not explain how
earlier disclosure of DeGreef‘s oral statements would have made any difference to
her defense strategy. Second, any error was harmless, for the enormous web of
circumstantial evidence of defendant‘s financial dealings, including forging the
victim‘s signature on a deed of trust, failing to make payments and allowing the
Hillary Drive house to fall into foreclosure, negotiating to rent the house back
from BID Properties and then to buy the house back, all strongly suggest the
victim was unaware he no longer owned his own home. Accordingly, any
discovery violation with regard to DeGreef‘s testimony was harmless under any
standard.
Defendant‘s final two instances of alleged discovery violations require less
comment. Defendant objected that she had no pretrial disclosure that Tommy
Thompson, the victim‘s son, would testify and describe her apparent grief over the
death of her pet cat. The prosecutor explained she had just learned that
information from a witness during trial, and ―I don‘t think it‘s fair to require us to
run to [the defense] every time we hear a sentence.‖ The trial court denied the
implied motion for discovery sanctions, explaining: ―The sanction of not letting it
in, I‘m not going to exercise my discretion at this point because I don‘t think that a
72
half hour or hour lapse had affected [the] trial or [the defense] preparation.‖ We
perceive no error.
Finally, defendant complains she had no pretrial discovery regarding
Jennifer Lee, who authenticated letters defendant sent to Phillip Sanders while in
pretrial detention awaiting trial. Lee was not a prosecution witness, but was called
to the stand by Phillip Sanders. As we explain in more detail, ante, parts I.B.3 and
4, no discovery obligation exists as between codefendants being jointly tried.
Having found no reversible error for any of the four alleged discovery violations,
we have no occasion to decide whether section 1054.1 et seq. apply to oral
statements (see People v. Verdugo, supra, 50 Cal.4th at p. 283), and also reject the
associated claims of constitutional error.
6. Failure to Compel Discovery of Christine Kuretich’s Address
Defendant contends the trial court committed prejudicial error under the
applicable statutory rules (§ 1054 et seq.) by denying her motion to compel
discovery of witness Christine Kuretich‘s address. Defendant also contends the
court‘s ruling violated her federal constitutional rights to confront and cross-
examine Kuretich, to the effective assistance of counsel, and to a reliable penalty
determination. (U.S. Const., 6th, 8th & 14th Amends.) We reject these
arguments.
That Kuretich was expected to be a key prosecution witness is undisputed.
Section 1054.1 provides that ―[t]he prosecuting attorney shall disclose to the
defendant or his or her attorney all of the following materials and information . . .
[¶] (a) The names and addresses of persons the prosecutor intends to call as
witnesses at trial.‖ That discovery obligation is qualified, however, by section
1054.7, which authorizes a trial court to deny, restrict or defer such disclosure on a
showing of good cause. (Alvarado v. Superior Court, supra, 23 Cal.4th at
73
p. 1134.) ―We generally review a trial court‘s ruling on matters regarding
discovery under an abuse of discretion standard.‖ (People v. Ayala (2000) 23
Cal.4th 225, 299; see People v. Curl (2009) 46 Cal.4th 339, 357 [quoting Ayala
with approval].) The proper exercise of a trial court‘s discretion under section
1054.7 does not violate a criminal defendant‘s confrontation or due process rights.
(Alvarado, supra, at pp. 1134–1135.)
Christine Kuretich testified at the preliminary hearing that she lived with
Phillip and Carolyn Sanders around the time of the murder and that she overheard
them, along with Robert Jones, make incriminating statements suggesting they
were in a conspiracy with defendant to kill the victim. For example, she testified
that Carolyn asked her if she knew anyone who would kill someone for money,
that the intended victim was defendant‘s husband, that the motive was to obtain
life insurance proceeds, that Phillip would shoot the victim, and that Robert Jones
would obtain the gun and drive Phillip to the victim‘s shop. After testifying at the
preliminary hearing, Kuretich left the jurisdiction. The prosecution eventually
located her in Kansas, where she had turned her life around. She had stopped
doing drugs and drinking, was married and pregnant, and had made plans to buy
some land and start a business with her husband. She was brought back to Los
Angeles on a material witness warrant and then released to the custody of her
parents. The trial court ordered the prosecution to disclose Kuretich‘s address in
Kansas to defendant‘s attorneys, subject to a protection order that the address not
be revealed to defendant. Defense counsel also sought disclosure of Kuretich‘s
current location, i.e., her parents‘ address. Counsel argued he wanted to
investigate whether the witness‘s claim of newfound sobriety was true. The
prosecution objected that intrusive inquiries by the defense might cause Kuretich
to again flee the jurisdiction.
74
The trial court suggested a compromise, asking whether it would satisfy the
defense if Kuretich was ―made available in your office for an interview.‖ Defense
counsel Wager replied, ―Certainly,‖ adding that he would also like to interview
Kuretich‘s parents. The prosecution had no objection to this arrangement, so the
trial court ordered the prosecution to make Kuretich and her parents available for
an interview. There was no further defense objection.
Because defense counsel accepted the trial court‘s compromise, the court
did not abuse its discretion when it declined to order disclosure of Kuretich‘s
parents‘ address. We thus find no statutory or constitutional error. To the extent
defendant argues the trial court‘s ruling compromised her ability to obtain the
effective assistance of counsel under the Sixth and Fourteenth Amendments to the
United States Constitution, we reject that claim as well, because defense counsel‘s
decision to accept the trial court‘s compromise appears on this record to be a
reasonable tactical decision that did not fall below prevailing professional norms.
(Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Gamache (2010)
48 Cal.4th 347, 391.)
7. Coconspirator Exception to the Hearsay Rule
Christine Kuretich testified at trial that she had overheard Phillip and
Carolyn Sanders and Robert Jones make several inculpatory statements. Prior to
trial, defendant had moved to exclude the evidence as inadmissible hearsay but the
trial court partially denied the motion, ruling most of the evidence was admissible
under the hearsay exception for admissions by coconspirators. (Evid. Code,
§ 1223.) Defendant now contends the trial court erred prejudicially because the
prosecution failed to present sufficient evidence the statements were made during
a time when the conspiracy was ongoing, and the evidence therefore did not
qualify under the exception for statements by coconspirators. In addition to
75
violating Evidence Code section 1223, defendant also contends the error violated
her federal right to due process of law (Hicks v. Oklahoma (1980) 447 U.S. 343,
346). We reject these arguments because the record demonstrates the prosecution
presented sufficient evidence of an ongoing conspiracy.
a. Facts
Prior to trial, defendant moved in limine to exclude Kuretich‘s anticipated
testimony that she overheard statements—both before and after the murder—
uttered by Phillip and Carolyn Sanders and Robert Jones, linking them to both the
charged conspiracy and the murder. Defendant made four contentions in her
motion: (1) admission of the hearsay statements violated her federal constitutional
right to confrontation; (2) the prosecution failed to present sufficient independent
evidence a conspiracy to kill existed; (3) assuming there was sufficient evidence of
a conspiracy to kill, the evidence was still insufficient to show a conspiracy to
collect insurance proceeds; and (4) assuming there was evidence of a continuing
conspiracy, ―no evidence exists to show that any of the post-crime statements . . .
[was] in ‗furtherance‘ of the conspiracy as required by law.‖ The prosecution
opposed the motion by listing several facts they alleged they could prove to
demonstrate the existence of an ongoing conspiracy.
Defendant‘s motion for a hearing pursuant to Evidence Code section 402 to
establish the preliminary fact of a conspiracy was initially denied, but the trial
court later changed its mind, explaining that it was concerned that not all of the
statements were made during a time of an ongoing conspiracy. The court
explained that ―[i]n order for you to be able to get those statements in and have
them apply to both defendants, you are going to have to show there was the
existence of a conspiracy and both of these defendants were part of this conspiracy
at the time the statements were made.‖ The court was reluctant to allow the
76
prosecution to make an offer of proof and decided that Kuretich would be the last
of the prosecution‘s witnesses to testify, ―after [the prosecution has] presented
before the jury all the evidence you feel shows the existence of the conspiracy at
the time the statements were made.
The prosecution, in its offer of proof, organized Kuretich‘s intended
statements into four categories: (1) Carolyn Sanders‘s question to Kuretich
whether she could find someone willing to kill for insurance money; (2) a group of
conversations between Phillip and Carolyn Sanders discussing whether they could
find someone to commit the murder, the details of the planned killing, their
inability to find a suitable hit man, and their decision that Phillip should commit
the murder himself because they had already received and spent a partial payment
for the killing; (3) conversations between Phillip and Carolyn Sanders and Robert
Jones discussing the murder, the agreement that Phillip would commit the
shooting and that Jones would drive and provide the gun, and Jones‘s later
statement that he had obtained a gun; and (4) Jones‘s statements, after the murder,
that he had destroyed the gun by melting it at his uncle‘s truck yard.
After the prosecution had presented most of its case-in-chief, the trial court
ruled the prosecution had presented sufficient evidence of a conspiracy to permit
the admission of statements in categories No. 2 and No. 3, but that the statements
in categories No. 1 and No. 4 would be excluded. According to the trial court, the
evidence did not show that at the time Carolyn asked Kuretich whether she knew
of someone willing to kill for money, the Sanderses were already participating in a
conspiracy with defendant to kill the victim. The court also ruled that Jones‘s
statement about melting the gun occurred after the victim was dead and thus was
not in furtherance of the conspiracy. (See People v. Zamora (1976) 18 Cal.3d 538,
560 [―acts committed by conspirators subsequent to the completion of the crime
which is the primary object of a conspiracy cannot be deemed to be overt acts in
77
furtherance of that conspiracy‖].) Kuretich then testified and related for the jury
the incriminatory conversations she overheard while living with Phillip and
Carolyn Sanders.
b. Discussion
―Hearsay evidence is of course generally inadmissible. (Evid. Code,
§ 1200.) Hearsay statements by coconspirators, however, may nevertheless be
admitted against a party if, at the threshold, the offering party presents
‗independent evidence to establish prima facie the existence of . . . [a]
conspiracy.‘ ‖ (People v. Hardy, supra, 2 Cal.4th at p. 139.) Pursuant to Evidence
Code section 1223,12 ―[o]nce independent proof of a conspiracy has been shown,
three preliminary facts must be established: ‗(1) that the declarant was
participating in a conspiracy at the time of the declaration; (2) that the declaration
was in furtherance of the objective of that conspiracy; and (3) that at the time of
the declaration the party against whom the evidence is offered was participating or
would later participate in the conspiracy.‘ ‖ (Hardy, supra, at p. 139, quoting
People v. Leach (1975) 15 Cal.3d 419, 430–431, fn. 10.) ―[T]he admission of
evidence is generally tested by the abuse of discretion standard‖ (People v.
Seumanu (2015) 61 Cal.4th 1293, 1311), and we have applied this deferential
12 Evidence Code section 1223 sets forth the coconspirator exception and
provides: ―Evidence of a statement offered against a party is not made
inadmissible by the hearsay rule if:
―(a) The statement was made by the declarant while participating in a
conspiracy to commit a crime or civil wrong and in furtherance of the objective of
that conspiracy;
―(b) The statement was made prior to or during the time that the party was
participating in that conspiracy; and
―(c) The evidence is offered either after admission of evidence sufficient to
sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court‘s
discretion as to the order of proof, subject to the admission of such evidence.‖
78
standard to a trial court‘s decision to admit or deny evidence under the
coconspirator exception to the hearsay rule (People v. Sanders (1995) 11 Cal.4th
475, 516).
At the threshold, we reject respondent‘s argument that defendant forfeited
this issue by failing to object to Kuretich‘s testimony at trial. Respondent relies on
―[t]he general rule . . . that ‗when an in limine ruling that evidence is admissible
has been made, the party seeking exclusion must object at such time as the
evidence is actually offered to preserve the issue for appeal . . . .‘ ‖ (People v.
Brown (2003) 31 Cal.4th 518, 547; see People v. Letner and Tobin (2010) 50
Cal.4th 99, 159, quoting Brown with approval.) But we immediately qualified that
statement in Brown by recognizing that ―a sufficiently definite and express ruling
on a motion in limine may also serve to preserve a claim . . . .‖ (Brown, supra, at
p. 547.) This latter exception is well established (see People v. Ramos (1997) 15
Cal.4th 1133, 1171; see generally People v. Morris (1991) 53 Cal.3d 152, 188–
190 [discussing the circumstances in which a pretrial motion in limine adequately
preserves an evidentiary claim for appeal], disapproved on other grounds in
People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1), and applies here because
defendant raised a sufficiently specific in limine motion and raised the same issue
on appeal, the motion was aimed at a specific body of evidence (i.e., Kuretich‘s
evidence of statements made by Phillip and Carolyn Sanders and Robert Jones),
and the trial court ruled on the motion at a time when it could ―determine the
evidentiary question in its appropriate context.‖ (Morris, supra, at p. 190.)
Although the better practice is to renew the objection at trial, when the context of
the evidence may be clearer, we conclude defendant did not forfeit this issue by
failing to object at trial to Kuretich‘s testimony.
Turning to the merits, we conclude that because the prosecution presented
sufficient evidence that the hearsay statements in categories No. 2 and No. 3 were
79
made by coconspirators during an ongoing conspiracy to murder Melvin
Thompson, the trial court did not abuse its discretion in ruling the evidence was
admissible pursuant to Evidence Code section 1223. The evidence presented by
the prosecution showed the following:
(1) On June 14, 1990, eyewitness Michael Lutz observed two men he later
identified as Phillip Sanders and Robert Jones drive up in a Plymouth Acclaim and
saw Phillip go down the alley next to the victim‘s business, Kayser Service. Lutz
then heard gunshots and saw Phillip return to the car and leave.
(2) Because Lutz recorded the car‘s license plate number, police were able
to trace the car to Phillip and Carolyn Sanders‘s home in Sylmar. Once inside the
home, police found circumstantial evidence suggesting a conspiracy: car keys to
the Acclaim (linking them to the murder) and a piece of paper with defendant‘s
phone number on it (linking Phillip and Carolyn to defendant). From this
evidence, the trial court could reasonably have concluded that Phillip Sanders and
Robert Jones were personally involved in the murder, that Carolyn Sanders was
aware of and probably participated in the scheme, and that defendant—who stood
to gain the most financially—was also involved.
(3) Shortly after police arrested Phillip, Carolyn Sanders called Christine
Kuretich and asked her to immediately come home. Because Kuretich was aware
of the plot to kill the victim, it is reasonable to infer that Carolyn wanted to discuss
with Kuretich how they might prevent discovery of the murder conspiracy.
(4) Evidence of telephone records provided evidence of the criminal
conspiracy. In the approximately six weeks preceding the murder (May 4, 1990,
to June 14, 1990), those records revealed that numerous calls had been placed
between Phillip Sanders‘s Sylmar home and Kayser Service, the repair shop where
defendant and the victim worked. During this six-week period, the same records
also showed several calls between defendant‘s home and Phillip‘s place of
80
employment, Barish Chrysler-Plymouth. The evidence of nearly constant
communication between Phillip and defendant in the weeks leading up to the
murder suggests an ongoing enterprise between them.
(5) When defendant was arrested for murder, she blurted out: ―I hardly
knew Phil at all. I only met him once and that was about the sale of a car.‖ But
because police had not yet revealed any evidence of Phillip Sanders‘s
involvement, defendant‘s volunteered exclamation tended to show she was
untruthful about her lack of familiarity or contact with Phillip Sanders, and
suggested she was trying to conceal some other, deeper connection.
(6) A search of the victim‘s repair shop revealed a letter in defendant‘s
handwriting describing the victim‘s appearance and work schedule. Because
defendant would have had no need for such information, the trial court could
reasonably have viewed this evidence as intended for an accomplice or
coconspirator.
(7) The prosecution also presented evidence that Phillip Sanders, and to a
lesser extent, Carolyn Sanders, had participated in a 1989 financial fraud with
defendant. Defendant and Isabelle Sanders presented themselves to Dorothy Reik,
a mortgage broker. Defendant and Phillip posed as Mellie and Melvin Thompson
in order to refinance the home on South Sycamore Avenue, which was jointly
owned by the victim and his ex-wife, Mellie Thompson. When Reik became
suspicious of their temporary driver‘s licenses and asked for someone to
personally vouch for their identities, Isabelle‘s daughter, Carolyn Moore, did so,
claiming Phillip and defendant were Melvin and Mellie Thompson. Phillip was
paid several thousand dollars for his part in the fraud. This evidence suggested
Phillip and Carolyn Sanders were engaged in a long-running conspiracy with
defendant to fleece the victim, defendant‘s husband, of his assets. Such evidence
provided evidence of motive for the murder and insurance fraud.
81
(8) Shortly after the murder, defendant assigned the proceeds of the
victim‘s life insurance policy to Tony DeGreef of BID Properties so she could
repurchase the Hillary Drive home. This evidence, along with evidence of the
fraud in refinancing the South Sycamore Avenue home and the murder, suggest
defendant was desperate to regain ownership of the house on Hillary Drive.
The prosecution, as the proponent of the evidence, was required to lay an
evidentiary foundation that the challenged hearsay statements were uttered during
an ongoing conspiracy. ―In order for a declaration to be admissible under the
coconspirator exception to the hearsay rule, the proponent must proffer sufficient
evidence to allow the trier of fact to determine that the conspiracy exists by a
preponderance of the evidence. A prima facie showing of a conspiracy for the
purposes of admissibility of a coconspirator‘s statement under Evidence Code
section 1223 simply means that a reasonable jury could find it more likely than not
that the conspiracy existed at the time the statement was made.‖ (People v.
Herrera (2000) 83 Cal.App.4th 46, 63.) Applying this test, we conclude the
prosecution provided sufficient evidence, independent of the statements
themselves, from which the trial court could have found a prima facie case that the
statements were uttered by coconspirators engaged in an ongoing conspiracy with
defendant to kill Melvin Thompson in order to collect on his life insurance
policies.
Defendant argues against this conclusion. While conceding the prosecution
may rely on circumstantial evidence, and that proof of a physical meeting by the
coconspirators is unnecessary, she contends the prosecution‘s evidence failed to
demonstrate a conspiratorial meeting of the minds. But the trial court could find
such intent by drawing reasonable inferences from the evidence. ―Evidence is
sufficient to prove a conspiracy to commit a crime ‗if it supports an inference that
the parties positively or tacitly came to a mutual understanding to commit a crime.
82
[Citation.] The existence of a conspiracy may be inferred from the conduct,
relationship, interests, and activities of the alleged conspirators before and during
the alleged conspiracy.‘ ‖ (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135,
italics added.) ― ‗The agreement in a conspiracy may be shown by . . . conduct of
the defendants in mutually carrying out an activity which constitutes a crime.‘ ‖
(People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1417, disapproved on another
ground in People v. Arias (2008) 45 Cal.4th 169, 182.) Contrary to defendant‘s
further argument, reliance on the hearsay statements themselves was unnecessary
to draw a reasonable inference that Phillip Sanders, Carolyn Sanders, Robert Jones
and defendant were engaged in a criminal conspiracy to murder the victim for his
life insurance proceeds.
Defendant may be understood to argue the evidence showing the existence
of a conspiracy did not show she was a participating member of that conspiracy at
the time the challenged statements were uttered. We reject the argument; given
the evidence of intense telephone traffic between defendant and the Sanderses in
the weeks leading up to the murder, defendant‘s strong financial incentive to kill
the victim, the dearth of evidence defendant had withdrawn from the plan, her
quick use of the insurance money after the victim was killed, and her blurted-out
statement when arrested that she did not know ―Phil,‖ the trial court could
reasonably have inferred that defendant was participating in the conspiracy at the
time the challenged hearsay statements were made. Although defendant would
explain her blurted-out exclamation as referring to her previous fraudulent
refinancing of the South Sycamore Avenue home, a scheme in which both Phillip
and Carolyn Sanders participated, that explanation was not the only possible one,
and the trial court was entitled to draw a different inference: that defendant‘s
exclamation revealed her knowledge that Phillip had murdered her husband.
83
We thus conclude the trial court did not abuse its discretion in admitting the
hearsay evidence in categories No. 2 and No. 3 (see ante, at p. 77) pursuant to
Evidence Code section 1223. Finding no state law error, we also reject
defendant‘s contention that failure to accord her relief will deprive her of her
federal right to due process of law because the state has withheld a
nonconstitutional right or benefit guaranteed by state law within the meaning of
Hicks v. Oklahoma, supra, 447 U.S. 343. (People v. Webster (1991) 54 Cal.3d
411, 439.)
We also find any possible error was harmless. Both codefendant Phillip
Sanders and Carolyn Sanders testified and were subjected to cross-examination.
Moreover, the jury was instructed not to consider the out-of-court statements
unless it found, from independent evidence, that a conspiracy existed. (See People
v. Hinton (2006) 37 Cal.4th 839, 895.) Under the circumstances, any error was
harmless.
8. Admission of Other Crimes and Bad Acts Evidence
Defendant contends the trial court erred by admitting evidence of her prior
financial misconduct to show her motive for committing the charged crimes. She
further contends the court erred by admitting other evidence of her prior conduct
which tended to portray her as an uncaring wife and dishonest person. Not only
was this evidence inadmissible under Evidence Code sections 1101 and 352, she
claims, the admission of this evidence violated her federal and state constitutional
rights to due process, a fair trial, and a reliable penalty determination under the
Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and
state Constitution analogs. As we explain, the trial court did not abuse its
discretion under state evidentiary law, and no constitutional error is apparent.
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a. Facts
The prosecution sought to introduce evidence of defendant‘s many previous
incidents of financial fraud and shady dealings. The first incident concerns her
embezzlement of $33,325 from Edith Ann, her former employer. Then, after she
agreed to repay the money, defendant—without her husband‘s knowledge—forged
his signature on a deed of trust on the home they jointly owned on Hillary Drive
and used some of the money to start repaying the debt to Edith Ann. Third, when
defendant stopped making payments on the note, the Hillary Drive house went
into foreclosure, was purchased by BID Properties, and defendant secretly
negotiated with the buyer to rent back the house. Fourth, she entered into
negotiations with Tony DeGreef, the co-owner of BID Properties, to repurchase
the Hillary Drive home by using Isabelle Sanders to pose as her mother, and
falsely communicated to DeGreef that her husband was ill and that she expected to
receive money from a (nonexistent) trust that would enable her to buy back the
property.
Fifth, she obtained false identification to impersonate her husband‘s ex-
wife, Mellie Thompson, and (along with Phillip Sanders impersonating murder
victim Melvin Thompson) was successful in refinancing Mellie‘s home on South
Sycamore Avenue, a property defendant did not legally own. Defendant used
some of the $98,000 she obtained to pay her rent on the Hillary Drive house.
Sixth, defendant attempted to repurchase the Hillary Drive home in her maiden
name (again without her husband‘s knowledge) and tried to obtain a loan for
$475,000 by claiming he had money deposited with ―Community Bank,‖ a
nonexistent financial institution.
Defendant objected to the introduction of this evidence under Evidence
Code sections 1101 and 352. The trial court excluded evidence of her
embezzlement from Edith Ann (but not the fact of the debt), but ruled the balance
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of the evidence was admissible under Evidence Code section 1101 to show motive
and possibly even ―scheme and design.‖ The court also denied the Evidence Code
section 352 motion, concluding the probative value of the evidence outweighed
any potential prejudice.
The prosecution also sought to introduce evidence that defendant had a
friend remove all the jewelry from her husband‘s body shortly after the funeral,
and that defendant pawned the jewelry the day after the funeral and spent the
money two days later gambling in Laughlin, Nevada. The prosecution also called
to the stand Tommy Thompson, the victim‘s son, who, over objection, testified
that defendant did not seem very upset after the murder, and was much more upset
when her cat died. The trial court overruled defendant‘s objections, ruling the
evidence was admissible to rebut defendant‘s proffered evidence that she and her
husband had a loving relationship. Further, the court ruled the probative value of
the evidence outweighed any prejudice.
b. Discussion
The admission of evidence of prior conduct is controlled by Evidence Code
section 1101. Subdivision (a) of that section provides, with exceptions not
applicable here: ―[E]vidence of a person‘s character or a trait of his or her
character (whether in the form of an opinion, evidence of reputation, or evidence
of specific instances of his or her conduct) is inadmissible when offered to prove
his or her conduct on a specified occasion.‖ (Italics added.) The admission of
such evidence may also be limited by Evidence Code section 352, which
authorizes a trial court, in its discretion, to ―exclude evidence if its probative value
is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.‖
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Here, the prosecution sought to admit the evidence of defendant‘s prior
financial misdeeds to prove her likely motivation for murdering her husband. As
we recently explained: ― ‗Evidence that a defendant committed crimes other than
those for which [she] is on trial is admissible when it is logically, naturally, and by
reasonable inference relevant to prove some fact at issue, such as motive, intent,
preparation or identity. [Citations.] The trial court judge has the discretion to
admit such evidence after weighing the probative value against the prejudicial
effect. [Citation.] When reviewing the admission of evidence of other offenses, a
court must consider: (1) the materiality of the fact to be proved or disproved,
(2) the probative value of the other crime evidence to prove or disprove the fact,
and (3) the existence of any rule or policy requiring exclusion even if the evidence
is relevant. [Citation.] Because this type of evidence can be so damaging, ―[i]f
the connection between the uncharged offense and the ultimate fact in dispute is
not clear, the evidence should be excluded.‖ [Citation.]‘ [Citation.] ‗ ―We review
for abuse of discretion a trial court‘s rulings on relevance and admission or
exclusion of evidence under Evidence Code sections 1101 and 352.‖ ‘ ‖ (People
v. Fuiava (2012) 53 Cal.4th 622, 667–668.)
Setting aside whether the prior financial crimes were sufficiently similar to
the conspiracy and murder involved in the instant case so as to constitute a
common plan or scheme within the meaning of Evidence Code section 1101 (see
People v. Ewoldt (1994) 7 Cal.4th 380, 402–403), the trial court was on firm
ground in concluding the evidence was admissible on the issue of motive. Of
course, ―uncharged conduct may be relevant to establish . . . motive.‖ (Id. at
p. 402, fn. 6.) ―As long as there is a direct relationship between the prior offense
and an element of the charged offense, introduction of that evidence is proper.‖
(People v. Daniels (1991) 52 Cal.3d 815, 857.) Although motive is not an element
of either of the charged offenses, it was an intermediate fact that was probative of
87
defendant‘s intent, and ― ‗the intermediate fact of motive‘ may be established by
evidence of ‗prior dissimilar crimes.‘ (People v. Thompson [(1980)] 27 Cal.3d
303, 319, fn. 23.) ‗Similarity of offenses [is] not necessary to establish this theory
of relevance‘ for the evident reason that the motive for the charged crime arises
simply from the commission of the prior offense. (Ibid.) The existence of a
motive requires a nexus between the prior crime and the current one, but such
linkage is not dependent on comparison and weighing of the similar and dissimilar
characteristics of the past and present crimes.‖ (People v. Scheer (1998) 68
Cal.App.4th 1009, 1018.) The evidence was relevant to defendant‘s motive and
was thus admissible despite the limits set forth in Evidence Code section 1101.
People v. Edelbacher (1989) 47 Cal.3d 983 illustrates the point. In that
case, the defendant and the victim dissolved their three-year marriage, but he still
owed her $700 in child support arrearages and several thousand dollars in a
division of their community property. In a trial for his ex-wife‘s murder, the
prosecution presented evidence of his precarious financial situation. On the
defendant‘s appeal following his conviction, we rejected his challenge to the
admission of this financial evidence, explaining that while evidence of poverty is
generally inadmissible to prove a motive for robbery or theft, ―[o]nce the debtor-
creditor relationship had been established between defendant and the victim,
evidence that defendant had a number of other debts, some of which were in
arrears, had substantial relevance to show the motive for the murder of
defendant‘s creditor, and this relevance clearly outweighed the risk of undue
prejudice.‖ (Id. at p. 1024, italics added; see People v. Cummings, supra, 4
Cal.4th at p. 1289 [evidence that defendant‘s motive was to avoid capture was
relevant to proving murder was intentional and premeditated]; People v. Barnett
(1998) 17 Cal.4th 1044, 1119 [admission of evidence murder was motivated by
revenge did not violate Evid. Code, § 1101, subd. (b)].)
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Defendant argues no direct connection existed between the prior financial
frauds and the present murder and conspiracy, that the forged deed of trust she
gave Edith Ann served only to show her poverty and indebtedness, and that her
attempts to buy back the Hillary Drive house conveyed to the jury her dishonesty
but lacked any relevance to the murder. The trial court, however, did not abuse its
discretion in concluding that evidence of defendant‘s prior financial misdeeds was
relevant to showing her motive for killing, and conspiring to kill, her husband in
order to collect on his life insurance policies. Although the trial court exercised its
discretion to exclude defendant‘s embezzlement from her prior employer, the
balance of the evidence was relevant to show how defendant became more and
more desperate to regain ownership of the Hillary Drive home, especially after
Mellie Thompson became aware of the fraudulent refinancing of the South
Sycamore Avenue house. The jury could infer from this evidence that defendant‘s
financial house of cards was about to collapse, leading her to believe she had one
last option to make a large financial score: killing her husband. That Phillip
Sanders assisted her in some of these financial frauds was an additional link
between the past acts and present crimes, and further supports our conclusion the
trial court‘s ruling was not an abuse of discretion under either Evidence Code
section 1101 or Evidence Code section 352.
The evidence concerning retrieval of the victim‘s jewelry after the funeral,
that defendant pawned it to finance a gambling vacation in Nevada, and that she
was more upset when her cat died than when her husband was murdered, was
admissible for a different reason. Defendant presented evidence that she and the
victim were in a loving relationship. For example, Patricia Ceaser testified that
the couple appeared happy and were never seen fighting, and Rene Griffin
testified defendant and the victim got along well. Charlotte Wark testified
defendant and the victim were a nice couple who never fought or bickered, and
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defendant appeared ―very distraught‖ and ―visibly upset‖ following her husband‘s
murder. The prosecution was entitled to rebut that evidence with its own evidence
suggesting that defendant showed no tenderness towards her husband, and that she
was not particularly upset after the crime. In other words, to the extent defendant
offered evidence of her good character (or lack of motive) in the form of her
alleged loving relationship with her husband and her apparent distress at his
murder, this evidence opened the door to allow the prosecution to present evidence
of her bad character (and motive to kill him). (People v. Banks, supra, 59 Cal.4th
at p. 1197, disapproved on another point in People v. Scott, supra, 61 Cal.4th at
p. 391, fn. 3; see also People v. Jones (1998) 17 Cal.4th 279, 307 [a defendant‘s
testimony ―that he felt remorse during the interrogations that took place the day
after committing the crimes‖ entitled the People to present a rebuttal witness who
―testified that he saw no sense of remorse at that time‖].)
We conclude the trial court did not abuse its discretion, under either
Evidence Code section 1101 or Evidence Code section 352, in admitting the
challenged evidence. We also reject defendant‘s associated constitutional claims.
― ‗The ―routine application of state evidentiary law does not implicate [a]
defendant‘s constitutional rights.‖ [Citation.] As defendant provides no
elaboration or separate argument for these constitutional claims, we decline to
address further these boilerplate contentions.‘ ‖ (People v. Mills, supra, 48
Cal.4th at p. 194.)
9. Alleged Griffin Error
Defense attorney Takakjian announced defendant had chosen not to testify,
as was her right. The trial court sought to ensure defendant understood the
implications of her decision, noting that it would be irrevocable once the
prosecution began presenting its case against codefendant Phillip Sanders because
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―they are committing themselves based on her election,‖ and that although she
presumably could testify on rebuttal, the scope of such testimony would be
necessarily limited. (See People v. Valdez, supra, 55 Cal.4th at p. 169 [―The
scope of proper rebuttal depends on ‗the breadth and generality of the direct
evidence‘ ‖].) Moreover, if Phillip suddenly rested his case without presenting a
defense, ―that‘s it.‖ Counsel affirmed that defendant understood the risks. Later,
the following colloquy occurred:
―MR. WAGER [Defense counsel]: Is the record clear to the court, we‘ve
had a discussion with Ms. Thompson about her right to testify?
―We discussed it with her and she‘s exercising her right not to testify and
she understands it‘s her right?
―THE COURT: Is that correct, Mrs. Thompson?
―DEFENDANT THOMPSON: Yes, it is.
―THE COURT: Okay. [¶] I don‘t know how much clearer it can be.‖
After defendant‘s final witness had finished his testimony, and still in the
jury‘s presence, Mr. Takakjian stated: ―Except for the remaining witnesses we
discussed, we rest.‖ The trial court then asked: ―You are resting without calling
your client?‖ (Italics added.) Mr. Takakjian replied: ―Yes, sir.‖ At sidebar,
counsel moved for a mistrial, claiming the court made a prohibited comment on
defendant‘s right to remain silent. The court denied the motion.
The Fifth Amendment to the United States Constitution provides that ―[n]o
person . . . shall be compelled in any criminal case to be a witness against
himself,‖ and the high court has interpreted this provision to ―forbid[] either
comment by the prosecution on the accused‘s silence or instructions by the court
that such silence is evidence of guilt.‖ (Griffin v. California (1965) 380 U.S. 609,
615.) The constitutional prohibition against compelled self-incrimination is a right
that has been incorporated to apply against the states (Malloy v. Hogan (1964) 378
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U.S. 1, 8; see People v. Boyette (2002) 29 Cal.4th 381, 415, fn. 4), and we have
accordingly held ― ‗a prosecutor is prohibited from commenting directly or
indirectly on an accused‘s invocation of the constitutional right to silence‘ ‖
(People v. Tafoya (2007) 42 Cal.4th 147, 184). We have also extended Griffin to
prohibit comment on a defendant‘s silence by the trial judge. (People v. Morris
(1988) 46 Cal.3d 1, 35 [―Under the rule in Griffin, error is committed whenever
the prosecutor or the court comments, either directly or indirectly, upon
defendant‘s failure to testify.‖ (italics added)];13 People v. Medina (1995) 11
Cal.4th 694, 755 [same].)
The trial court‘s utterance in front of the jury—―You are resting without
calling your client?‖—was unquestionably imprudent. We may surmise the court
merely wished to impress upon defense counsel that the trial had reached the point
of no return for defendant‘s decision whether or not to testify. But by expressing
surprise at defendant‘s silence, the court‘s comment—which we assume was
audible to the jury—may have inadvertently communicated to the jury that it
should (or may) consider defendant‘s silence as evidence of her guilt. Such a
message would have trenched on defendant‘s constitutional right to remain silent.
In previous cases, when faced with a prosecutor‘s utterance of comments of
this type (i.e., short, isolated statements not clearly calling for improper
consideration of a defendant‘s silence), we have generally found such comments
harmless. ― ‗ ―[I]ndirect, brief and mild references to a defendant‘s failure to
testify, without any suggestion that an inference of guilt be drawn therefrom, are
uniformly held to constitute harmless error.‖ ‘ ‖ (People v. Boyette, supra, 29
Cal.4th at pp. 455–456; see People v. Turner (2004) 34 Cal.4th 406, 419–420.) In
13 People v. Morris, supra, 46 Cal.3d 1, was disapproved on another ground
in In re Sassounian (1995) 9 Cal.4th 535, 543, footnote 5.
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this case, however, the comment came from the trial judge, and it stands to reason
that jurors would assign more weight to a judge‘s remark than that of a prosecutor.
But even appreciating that difference, we find, for several reasons, the court‘s
comment was harmless in these circumstances. First, the trial court‘s comment
consisted of just a single short query. Second, the court‘s comment did not
directly suggest the jury should draw an inference of guilt from defendant‘s
decision not to testify. Third, the jury was instructed that ―[a] defendant in a
criminal trial has a constitutional right not to be compelled to testify. You must
not draw any inference from the fact a defendant does not testify.‖ We assume the
jury followed this instruction. (People v. Seumanu, supra, 61 Cal.4th at p. 1336.)
Considering these circumstances, we conclude that any Griffin error
flowing from the trial court‘s comment was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18.) 14
10. Alleged Violation of Evidence Code section 351.1 (Concerning
Polygraph Evidence)
a. Facts
On direct examination by the prosecutor, Christine Kuretich testified she
had previously lied to police on several occasions by falsely placing the blame for
the murder on Gregory Jones, but she eventually told the truth and implicated
Phillip and Carolyn Sanders and defendant. On cross-examination, in response to
defense counsel‘s question asking her why she changed her story, Kuretich
answered: ―I was nervous. It was just time I told the truth, and [police
investigators] mentioned a lie detector so I knew they would know anyway.‖
14 We reject defendant‘s further claim that Griffin error should not be subject
to the harmless error test set forth in Chapman, but should instead be
automatically reversible. Indeed, Chapman itself involved Griffin error.
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Kuretich explained that her conscience and fear of a polygraph examination
prompted her to change her story, and that when she did so she told the detective
she did not want to take the polygraph examination. In response to further defense
questioning, Kuretich acknowledged she never took the polygraph examination.
The prosecution did not object to any of this evidence. On redirect examination,
the prosecutor asked Kuretich if she would be willing to take a polygraph test that
day. Before the witness answered, defense counsel successfully interposed an
objection. Defense counsel also moved for a mistrial, which the trial court denied.
After Kuretich finished her testimony, the trial court, over defendant‘s
objection, instructed the jury: ―At the very end of [defense counsel‘s] cross-
examination of the witness, he asked her whether or not she had ever taken a
polygraph examination. [¶] [The prosecutor] has countered with a question that
she just asked a minute ago. [¶] Both of these questions are improper.‖ The court
further instructed: ―[Polygraph evidence is] not admissible in a court of law in
California and you shouldn‘t take that into consideration at all, whether someone
takes a polygraph or they don‘t.‖ The court‘s instruction concluded, ―whether or
not this witness has ever taken a polygraph or wouldn‘t take a polygraph is totally
irrelevant. You should put that out of your mind.‖
From this relatively brief interplay, defendant makes a series of legal
claims. First, citing Evidence Code section 351.1, she argues: (1) defense
counsel‘s questions referencing the polygraph examination constituted permissible
questioning, (2) the prosecutor‘s question whether Kuretich would be willing to
take a polygraph examination was improper, (3) the trial court‘s instruction to the
jury failed to cure the prosecutorial error and improperly undermined defense
counsel‘s allegedly permissible impeachment of Kuretich, and (4) these errors
were prejudicial and require reversal under state law. Second, defendant contends
these associated errors violated her constitutional rights under the Sixth and
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Fourteenth Amendments15 because the trial court improperly undermined defense
counsel‘s ability to effectively cross-examine Kuretich, and placed information
before the jury that defendant had no opportunity to confront or rebut.
b. Discussion
Evidence Code section 351.1, subdivision (a), addresses the admission of
polygraph-related evidence and states in pertinent part: ―[T]he results of a
polygraph examination, the opinion of a polygraph examiner, or any reference to
an offer to take, failure to take, or taking of a polygraph examination, shall not be
admitted into evidence in any criminal proceeding, . . . unless all parties stipulate
to the admission of such results.‖ By extension, Evidence Code section 351.1 also
prohibits any reference to the willingness or unwillingness to take a polygraph
examination (People v. Espinoza (1992) 3 Cal.4th 806, 817; People v. Thornton
(1974) 11 Cal.3d 738, 763–764); we have described Evidence Code section
351.1‘s restriction on the admissibility of polygraph evidence as a ― ‗ ―rational and
proportional means of advancing the legitimate interest in barring unreliable
evidence‖ ‘ ‖ (People v. Hinton, supra, 37 Cal.4th at p. 890). The exclusion of
polygraph-related evidence, absent a stipulation by the parties, ―has been
uniformly enforced by this court and the Court of Appeal. ‖ (People v. McKinnon
(2011) 52 Cal.4th 610, 663.)
As a general matter, we apply ―the abuse of discretion standard of review to
any ruling by a trial court on the admissibility of evidence‖ (People v. Waidla
(2000) 22 Cal.4th 690, 717), and no reason appears why a different standard
15 For this claim, defendant does not mention, and thus apparently does not
rely on, the California Constitution.
95
should apply to questions involving the admission of polygraph-related evidence.
Applying this deferential standard here, we find no basis for reversal.
The first mention of a polygraph test was during cross-examination of
Kuretich when defense counsel asked her why she changed her story to police.
She replied: ―It was just time I told the truth, and [police investigators] mentioned
a lie detector so I knew they would know anyway.‖ Kuretich explained that her
conscience and fear of a polygraph examination prompted her to change her story.
The prosecutor did not object to this evidence nor was it later stricken or included
in the trial court‘s admonition. We observe that this testimony did not constitute
―an offer to take, [a] failure to take, or [the] taking of a polygraph examination.‖
(Evid. Code, § 351.1.) Kuretich may have expressed fear of, or anxiety about,
taking the test but did not say she was unwilling to do so. In any event, the
evidence was admitted without objection so we have no occasion to question its
admissibility.
The second reference to a polygraph test presents a different situation. In
response to defense questioning, Kuretich testified she never did take a polygraph
test. Defense counsel likely elicited this testimony in an attempt to undermine
Kuretich‘s testimony implicating defendant and the Sanderses in the murder plot.
That is, because Kuretich never actually took a polygraph test, counsel sought to
suggest to the jury that Kuretich‘s story was inaccurate or untrue. But whatever
counsel‘s tactical reason for eliciting the testimony, the evidence was inadmissible
under Evidence Code section 351.1 because it constituted evidence of a ―failure to
take . . . a polygraph examination.‖ The trial court thus acted within its discretion
by striking the evidence and instructing the jury to disregard it.
The third reference to a polygraph test was on redirect examination, when
the prosecutor asked Kuretich whether she would be willing to take a polygraph
examination ―today.‖ Although she never answered the question due to a timely
96
objection, the question sought evidence of the witness‘s willingness to take a
polygraph test and was thus improper. (People v. Espinoza, supra, 3 Cal.4th at
p. 817.) The trial court thus acted within its discretion by striking the question and
instructing the jury to disregard it.
Defendant argues the curative instruction was both inadequate to redress
the erroneous admission of polygraph-related evidence, and also unfairly
undermined her legitimate effort to impeach the witness‘s reasons for changing
her story. The latter point is meritless, as defendant was able to have Kuretich
acknowledge to the jury that she changed her story because of her fear of having
to take a polygraph test, and that testimony remained for the jury‘s consideration
when weighing the witness‘s credibility. The trial court‘s admonition was directed
only to Kuretich‘s additional statement that she never took the threatened test,
evidence that was directly barred by Evidence Code section 351.1. We perceive
no interference with defendant‘s ability to cross-examine and impeach Kuretich,
or to otherwise present a defense.
Regarding the efficacy of the trial court‘s admonition, the reason that
defendant believes it was inadequate is unclear. Where polygraph evidence has
been erroneously introduced, this court has held that ―a trial court‘s timely
admonition, which the jury is presumed to have followed, cures prejudice resulting
from the admission of such evidence.‖ (People v. Cox (2003) 30 Cal.4th 916,
953.) Defendant cites three cases she claims demonstrates the ineffectual nature
of the court‘s instruction, but none compels a contrary conclusion in this case. In
People v. Basuta (2001) 94 Cal.App.4th 370, the prosecutor violated a preexisting
court order not to mention that the main witness had taken a polygraph test. The
appellate court held the error, in combination with another more serious error by
the trial court, was prejudicial because both errors ―substantially affected the
crucial issue in the case—[the main witness‘s] credibility.‖ (Id. at p. 391.) But
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unlike in Basuta, Kuretich was not the prosecution‘s main witness and no other
serious evidentiary errors occurred. Basuta thus does not support a conclusion
that the trial court‘s instruction was ineffective to address the admission of
improper polygraph-related evidence.
People v. Parrella (1958) 158 Cal.App.2d 140, on which defendant also
relies, is similarly inapposite. In Parella, the appellate court found the error in
admitting polygraph evidence was not prejudicial because the trial court had
―carefully, correctly and fully warned the jury‖ not to consider any evidence about
the polygraph examination. (Id. at p. 148.) Although defendant contends the
court here did not issue such a careful instruction, instead giving a ―confusing and
rambling instruction,‖ she fails to explain specifically in what way the instruction
was flawed. Her further complaint the court did not ―immediately‖ admonish the
jury but did so only ―at a later point,‖ cannot be sustained, for the record shows
that, immediately after the polygraph evidence was admitted, the court and parties
had a brief discussion in chambers, after which the trial court admonished the jury
regarding the evidence.
The same reasoning applies to People v. Cox, supra, 30 Cal.4th 916. In
Cox, this court held the trial court cured the prejudice resulting from the admission
of polygraph evidence because ―there was one improper question that was
immediately struck, and the jury was given a strong admonition.‖ (Id. at p. 954.)
Again, although characterizing the instant trial court‘s admonition as ―confusing
and contradictory,‖ defendant does not explain in what way the warning was
deficient.
We conclude the trial court did not abuse its discretion under Evidence
Code section 351.1 in striking part of Kuretich‘s testimony and admonishing the
jury. There being no reversible error under state law, we also reject defendant‘s
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contention the polygraph-related evidence violated her federal constitutional
rights. (See People v. Mendoza (2011) 52 Cal.4th 1056, 1094.)
11. The Instruction on Motive
Defendant argues the instruction read to the jury concerning motive,
patterned after CALJIC No. 2.51, violated her state and federal constitutional
rights to a fair trial, due process, and a reliable verdict in a capital case. (See U.S.
Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7 & 15.) That instruction,
as read to the jury, stated: ―Motive is not an element of the crime charged and
need not be shown. However, you may consider motive or lack of motive as a
circumstance in this case. [¶] Presence of motive may tend to establish guilt.
Absence of motive may tend to establish innocence. [¶] You will therefore give
its presence or absence, as the case may be, the weight to which you find it is
entitled. ‖ Defendant asserts this instruction unconstitutionally (1) allowed the
jury to determine guilt on motive alone; (2) reduced the prosecution‘s burden of
proof by suggesting the terms ―motive‖ and ―intent‖ were interchangeable; and (3)
shifted the burden of proof to imply that defendant bore the burden to prove her
innocence. None of these arguments has merit.
We considered and rejected defendant‘s first contention in People v. Snow
(2003) 30 Cal.4th 43. There we explained that ―[i]f the challenged instruction
somehow suggested that motive alone was sufficient to establish guilt, defendant‘s
point might have merit. But in fact the instruction tells the jury that motive is not
an element of the crime charged (murder) and need not be shown, which leaves
little conceptual room for the idea that motive could establish all the elements of
murder.‖ (Id. at pp. 97–98, italics omitted.) Thus, ―[w]hen CALJIC No. 2.51 is
taken together with the instruction on the concurrence of act and specific intent
(CALJIC No. 3.31) and the instruction outlining the elements of murder and
99
requiring each of them to be proved in order to prove the crime (CALJIC No.
8.10) [both of which were given here], there is no reasonable likelihood [citation]
it would be read as suggesting that proof of motive alone may establish guilt of
murder.‖ (Id. at p. 98; see People v. Riggs (2008) 44 Cal.4th 248, 314 [citing
Snow with approval].)
We also reject defendant‘s argument the standard instruction on motive
given in her case would lead the jury inevitably to confuse ―motive‖ with ―intent.‖
Motive is not an element of a crime; rather, ―[m]otive describes the reason a
person chooses to commit a crime,‖ which ―is different from a required mental
state such as intent or malice.‖ (People v. Hillhouse (2002) 27 Cal.4th 469, 504.)
As relevant here, the jury was instructed that a conspiracy to commit murder
required the specific intent to agree to commit the murder. Thus, ―the instructions
here as a whole did not refer to motive and intent interchangeably, and there was
no reasonable likelihood the jury understood the terms to be synonymous.‖
(People v. Wilson (2008) 43 Cal.4th 1, 22.)
Finally, we reject defendant‘s argument that CALJIC No. 2.51
impermissibly shifted the burden of proof by implying that defendant had the
burden of establishing her innocence. As we explained in People v. Prieto (2003)
30 Cal.4th 226, the instruction uses the word ―innocence‖ ― ‗as a direction signal
or compass. It does not tell the jurors they must find innocence, nor does it lighten
the prosecution‘s burden of proof, upon which the jury received full and complete
instructions.‘ ‖ (Id. at p. 254; see People v. Dement (2011) 53 Cal.4th 1, 54–55
[CALJIC No. 2.51 ―does not shift the burden of proof to the defendant to show an
alternative motive to that advanced by the prosecution‖].) Accordingly, ―no
reasonable juror would misconstrue CALJIC No. 2.51 as ‗a standard of proof
instruction apart from the reasonable doubt standard set forth clearly in CALJIC
No. 2.90.‘ ‖ (Prieto, supra, at p. 254.)
100
Having found no error under state law, we also reject defendant‘s claim the
instruction deprived her of her federal constitutional rights to a fair trial, due
process, or a reliable verdict in a capital case.
II. PENALTY PHASE
A. Facts
The parties stipulated that defendant had been convicted of felony forgery
(§ 470) in both 1974 and 1975. Carolyn Jones, the victim‘s daughter, testified for
the prosecution, saying she last saw her father on Christmas Day, 1989, but was
thereafter instructed by her lawyer to have no contact with him because she and
her mother had sued him (and defendant) over the fraudulent refinancing of Mellie
Thompson‘s house. She later discovered her father knew nothing of the fraud, and
she was heartbroken that she never got the chance to speak to him before he was
murdered. She and her father had always spent time together on their birthdays, if
only on the telephone, and she missed him very much. She felt as if she had lost a
good friend.
In mitigation, defendant called Lelia Miotzek and Karen Brudney, both of
whom worked as chaplains at the Sybil Brand Institute, the women‘s jail where
defendant spent two years in pretrial detention. Both witnesses described
defendant as a faithful and reliable person who came to church every Sunday and
attended Bible study every week. They both attested to defendant‘s helpfulness
and compassion for others. Brudney stated defendant diligently attended Bible
study classes, helped out other inmates, and was ―so reliable [that] I really count
on her.‖
Defendant‘s son, Girard Jacquet, also provided mitigating evidence.
Jacquet testified he considered the victim, Melvin Thompson, to be his father,
although he was not Jacquet‘s biological father. The victim‘s death affected the
101
witness ―tremendously.‖ He had been close to his mother until the time of the
murder. She instilled in him ―values of loving and caring for people‖ and
―encourage[d] [him] to live as an honorable person.‖ He planned to continue
seeing his mother because he loves her.
B. Discussion
1. Admission of Other Crimes and Bad Acts Evidence
Defendant contends the trial court abused its discretion by permitting the
prosecution to cross-examine penalty phase witnesses Chaplain Lelia Miotzek by
asking her whether she was aware of defendant‘s many financial misdeeds and
whether those past crimes changed her opinion of defendant‘s character. The
applicable law is settled: ―In general, the prosecution may not present evidence of
a defendant‘s bad character during its penalty phase case unless the evidence is
admissible as one of the aggravating factors listed in section 190.3.‖ (People v.
Bacigalupo (1991) 1 Cal.4th 103, 141.) ― ‗[W]hen the defense presents mitigating
evidence of a defendant‘s good character, it has put the defendant‘s character in
issue, thus opening the door to prosecution evidence tending to rebut that ―specific
asserted aspect of [the defendant‘s] personality.‖ [Citation.] Such rebuttal
evidence, however, must be specific and ―must relate directly to a particular
incident or character trait defendant offers in his own behalf.‖ ‘ ‖ (People v. Raley
(1992) 2 Cal.4th 870, 912.) ―The admission of rebuttal evidence is a matter for the
sound discretion of the trial court.‖ (Ibid.)
Asked to describe defendant‘s character, Chaplain Miotzek testified that
defendant ―is a person who I could trust to be consistent in Bible study, in church,
in any type of activity that I might assign to her. She would be consistent in doing
a Bible study or completing that.‖ In addition, the witness opined: ―There‘s
commitment. There‘s a hunger within [defendant] to know the Lord of God and to
102
let God‘s word administer to her heart and her life.‖ Over a defense objection that
it was beyond the scope of the direct testimony, the prosecutor asked Miotzek
whether she had heard that when defendant worked for Aetna Sheet Metal
Company in 1972, she stole money from her employer, did the same thing in 1973
when she worked for Franklin Sales Company, and in 1986 embezzled more than
$33,000 from her employer, Edith Ann. The prosecutor also asked Miotzek
whether she had heard defendant forged her husband‘s name on a deed of trust,
that she represented herself to be the victim‘s former wife to obtain a loan,
obtained a driver‘s license and Social Security card in a different name in 1990
and used them to create a new identity for herself, falsified a letter from a fictitious
trust company to obtain a loan, falsely changed the title on a Rolls Royce that
belonged to someone else and sold it, and wrote a letter in 1974 to the court,
seeking lenient treatment by falsely claiming she had had a kidney removed and
needed dialysis. Miotzek said these incidents did not change her opinion of
defendant.
We perceive no abuse of discretion. Defense counsel asked the witness to
describe defendant‘s character, and the evidence of her good character thereby
opened the door to legitimate cross-examination about her bad character.
Defendant argues the prosecutor‘s questioning went beyond the scope of the direct
testimony because the witness had not testified as to defendant‘s honesty, but
addressed only her dependability and reliability. (See People v. Mitcham (1992) 1
Cal.4th 1027, 1072 [―Generally, the scope of bad character evidence offered in
rebuttal must relate directly to the particular character trait concerning which the
defendant has presented evidence.‖].) In support of her argument, defendant
contends that ―[t]rustworthiness and reliability, while somewhat synonymous,
identify distinctly different characteristics.‖ We cannot say the trial court abused
its discretion—that is, acted in an ― ‗ ―arbitrary, capricious, or patently absurd
103
manner‖ ‘ ‖ (People v. Lucas, supra, 60 Cal.4th at p. 240)—in concluding the
defense opened the door to bad character evidence by eliciting ―an opinion from
[the witness] that [defendant] would be a good, trustworthy, rule-abiding prisoner
should she be confined to the state prison for the rest of her life.‖ Having found
no abuse of discretion, we reject defendant‘s argument the court erred by
admitting evidence of her past crimes to impeach Chaplain Miotzek.
2. Alleged Instructional Error at the Penalty Phase
a. Manner of Execution
Defendant sought to introduce evidence about how a person would die in
the gas chamber. In discussing the question of admissibility of the evidence, the
trial court noted a new law would soon go into effect, allowing a condemned
person to opt for lethal injection. The prosecution objected to defendant‘s
proposed evidence, asserting that if defendant were allowed to present such
evidence, it intended to introduce evidence concerning the conditions of
confinement for a life prisoner. The trial court ruled that if the parties stipulated to
each other‘s evidence, it would not intervene, but it would otherwise sustain the
prosecutor‘s objection.16 The parties did not stipulate and the evidence about the
gas chamber was excluded.
Thereafter, in closing argument, the prosecutor addressed testimony
defendant had presented from the two jail chaplains, both of whom suggested
defendant was a compassionate person. The prosecutor argued defendant was like
a Nazi soldier who worked in the crematoriums and gas chambers during the day
16 The trial court‘s ruling was correct. ―Our cases make clear that information
about administration of the death penalty does not aid the jury in making an
individualized determination of the appropriate penalty in a particular case.‖
(People v. Pride (1992) 3 Cal.4th 195, 260.)
104
but otherwise led an apparently normal and unexceptional life. In rebuttal, defense
counsel replied: ―I found it exceptionally ironic that [the prosecutor] talks about
an analogy of Cathy Thompson and Nazis who gas Jews in World War II since
that is precisely what they want to do with Cathy Thompson is death by lethal
gas.‖ Defense counsel continued: ―I leave for your consideration and thought
[that] even in . . . the Gulf War where the task is to kill your enemy. The one thing
that we think of as unconscionable is the use of lethal gas.‖ Defense counsel
mentioned lethal gas once more, saying: ―Perhaps it‘s beneficial to ask yourself if
you vote for death, would you travel to San Quentin to witness the execution? If
you vote for death, would you have the guts to push the button to drop the cyanide
pellets?‖
Following the close of argument, the prosecutor argued that because
defense counsel had raised the issue of execution by lethal gas in her closing
argument, the trial court should instruct the jury that, should it vote for death,
defendant would be able to elect lethal injection instead of gas as a method of
execution. The trial court agreed, and over defense objection, instructed the jury:
―During the defense argument reference was made to the death penalty being
carried out by lethal gas. Effective the 1st of January, 1993, the law will change
allowing the condemned to select between lethal gas or lethal injection.‖ The trial
court thereafter denied defendant‘s motion for a mistrial.
Defendant contends the trial court‘s instruction violated her right to be free
of cruel and unusual punishment under the Eighth Amendment to the United
States Constitution. Citing Caldwell v. Mississippi (1985) 472 U.S. 320 in
support, she argues that by informing the jury that she would be entitled to elect an
alternative to lethal gas as a method of execution, the instruction diminished the
jury‘s sense of responsibility for its sentencing decision. In Caldwell, the high
court reversed a Mississippi death sentence because the prosecutor had argued to
105
the jury that it should not view its verdict as the final word because an appellate
court would review the jury‘s decision for correctness. In reversing the judgment,
the high court explained that ―it is constitutionally impermissible [under the
Eighth Amendment] to rest a death sentence on a determination made by a
sentencer who has been led to believe that the responsibility for determining the
appropriateness of the defendant‘s death rests elsewhere.‖ (Caldwell, supra, at
pp. 328–329.) As we explained in People v. Ledesma (2006) 39 Cal.4th 641, later
high court cases have suggested that Caldwell should not be given an expansive
reading: ―Caldwell simply requires that the jury not be mis[led] into believing that
the responsibility for the sentencing decision lies elsewhere.‖ (Ledesma, supra, at
p. 733, discussing Romano v. Oklahoma (1994) 512 U.S. 1.)
To determine whether the jury was misled, we must ask how a reasonable
juror would have understood the challenged instruction. (People v. Pearson
(2013) 56 Cal.4th 393, 476; see Estelle v. McGuire (1991) 502 U.S. 62, 72 [―in
reviewing an ambiguous instruction . . . , we inquire ‗whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way‘ that
violates the Constitution‖].) We find the trial court‘s instruction regarding the
method of execution could not reasonably have misled the jury into believing
ultimate responsibility for its penalty decision lay elsewhere. The court truthfully
informed the jury that execution by lethal gas was no longer the only option
because a new law would enable defendant to elect an alternative method of
execution. Nothing about that information suggested responsibility for the jury‘s
life-or-death decision lay anywhere other than with the 12 jurors. Although the
instruction communicated to the jury that the method of execution would, to some
degree, be defendant‘s choice, such information is not equivalent to informing the
jury that it should consider its role in any way diminished. We thus reject as
unreasonable defendant‘s claim the instruction told ―the jurors that the final
106
decision on [defendant‘s] execution rested with [her] . . . thus diminishing their
sense of responsibility for their penalty decision.‖ Accordingly, we find the
instruction did not violate defendant‘s rights under the Eighth Amendment.
b. CALJIC No. 8.88
Defendant contends CALJIC No. 8.88 was constitutionally flawed because
it ―did not adequately convey several critical deliberative principles, and was
misleading and vague in crucial respects.‖ We have considered and rejected these
precise claims many times before, and defendant presents no persuasive reason
why we should reconsider our precedents. (See, e.g., People v. Souza (2012) 54
Cal.4th 90, 141 [―We repeatedly have held that the standard version of CALJIC
No. 8.88 is adequate and correct.‖].) Thus:
• The instruction‘s use of the phrase ―so substantial‖ is not
unconstitutionally vague under the Eighth and Fourteenth Amendments. (People
v. Casares (2016) 62 Cal.4th 808, 854.)
• CALJIC No. 8.88 does not ―impermissibly fail to inform the jury that it
must find death was an appropriate, not just an authorized, penalty.‖ (People v.
Jones, supra, 57 Cal.4th at p. 980.)
• CALJIC No. 8.88 does not impermissibly fail to define the meaning of
aggravation or mitigation. (People v. Bivert (2011) 52 Cal.4th 96, 124 [― ‗ ―There
is no need to instruct the jury . . . regarding the meaning of the term
‗mitigation‘ ‖ ‘ ‖]; People v. Samayoa (1997) 15 Cal.4th 795, 862.)
• The instruction is not constitutionally defective despite failing to inform
jurors they could impose a life sentence even if they concluded that aggravation
outweighed mitigation. (People v. Bivert, supra, 52 Cal.4th at p. 124.)
107
• CALJIC No. 8.88 does not impermissibly fail to inform the jury that
neither party bears the burden of persuasion regarding the appropriateness of the
death penalty. (People v. Abel (2012) 53 Cal.4th 891, 943.)
3. Challenges to California’s Death Penalty Law
Defendant contends section 190.3, the statute setting forth the death penalty
in this state, is, for several reasons, constitutionally defective. We have considered
and rejected these precise claims many times before, and defendant presents no
persuasive reason why we should reconsider settled law. Thus:
• ― ‗Section 190.3, factor (a), which permits the jury to consider the
circumstances of the crime in deciding whether to impose the death penalty, does
not license the arbitrary and capricious imposition of the death penalty.‘ ‖ (People
v. Seumanu, supra, 61 Cal.4th at p. 1376 (Seumanu).)
• Neither the state nor federal Constitution requires the prosecution to bear
the burden of proof or persuasion at the penalty phase of a capital trial, or requires
the jury to find beyond a reasonable doubt that the aggravating factors have been
proved, the aggravating factors outweigh the mitigating factors, or death is the
appropriate sentence. ―Moreover, none of the United States Supreme Court‘s
recent decisions interpreting the Sixth Amendment‘s jury trial guarantee
(Cunningham v. California (2007) 549 U.S. 270; United States v. Booker (2005)
543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002)
536 U.S. 584; Apprendi v. New Jersey (2000) 530 U.S. 466) require a different
result [citation].‖ (Seumanu, supra, 61 Cal.4th at p. 1376.)
• Section 190.3 is constitutional despite failing to require the jury to find the
truth of aggravating circumstances by unanimous vote. (People v. Romero and
Self (2015) 62 Cal.4th 1, 56.)
108
• ―Neither ‗the Sixth, Eighth, or Fourteenth Amendment require[s] written
findings or other specific findings by the jury regarding the aggravating factors.‘ ‖
(Seumanu, supra, 61 Cal.4th at p. 1376.)
• ― ‗The federal constitutional guarantees of due process and equal
protection, and against cruel and unusual punishment (U.S. Const., 6th, 8th, 14th
Amends.), do not require intercase proportionality review on appeal.‘ ‖ (Seumanu,
supra, 61 Cal.4th at p. 1376.)
• ― ‗The jury may properly consider evidence of unadjudicated criminal
activity under section 190.3, factor (b)‘ [citation], and need not first decide the
prior criminal activity was true beyond a reasonable doubt by unanimous vote
[citation]. Further, permitting the jury to consider prior unadjudicated criminal
activity as aggravating evidence did not unconstitutionally allow it to impose the
death penalty on unreliable, undiscussed, or undebated evidence, especially
because the jury was instructed that no juror could consider such evidence unless
he or she found beyond a reasonable doubt that defendant had committed the
crime or crimes.‖ (People v. Jones, supra, 57 Cal.4th at p. 980.)
• ―Assertedly denying some procedural protections to capital defendants
that would apply to noncapital defendants,‖ such as disparate sentence review,
requiring written findings, and requiring unanimity on aggravating factors does
not violate equal protection. (People v. Jones, supra, 57 Cal.4th at p. 981.)
4. International Law
Defendant contends the ―California death penalty procedure violates the
provisions of international treaties and the fundamental precepts of international
human rights,‖ citing, specifically, article VII of the International Covenant on
Civil and Political Rights (ICCPR). We have rejected this exact claim many times
in previous cases. (See, e.g., People v. Capistrano (2014) 59 Cal.4th 830, 881;
109
People v. Abel, supra, 53 Cal.4th at p. 942.) As we have explained, ―[a]lthough
the United States is a signatory [to the ICCPR], it signed the treaty on the express
condition ‗[t]hat the United States reserves the right, subject to its Constitutional
constraints, to impose capital punishment on any person (other than a pregnant
woman) duly convicted under existing or future laws permitting the imposition of
capital punishment . . . .‘ ‖ (People v. Brown (2004) 33 Cal.4th 382, 403–404.)
Defendant does not persuade us we should reconsider these decisions.
5. Cumulative Prejudice
Finally, defendant contends that ―[e]ven assuming that none of the errors
identified . . . are prejudicial by themselves, the cumulative effect of these errors
undermines the confidence in the integrity of the guilt phase proceedings.‖ As
explained, we have found all of defendant‘s claims of error lack substantive merit,
save two: (1) Regarding her claim the trial court committed Griffin error by
commenting on her failure to take the stand and testify (Griffin v. California,
supra, 380 U.S. 609), we reject the claim without reaching its merits because no
prejudice resulted from the trial court‘s comment; and (2) Regarding her claim the
trial court violated her constitutional rights by excluding her (and her attorneys)
from the hearing to discuss Phillip Sanders‘s discovery obligations concerning the
jail letters, we similarly decline to reach the merits of the claim because no
prejudice resulted from the absence of the defense team from the hearing. As each
of those claims was individually harmless, we conclude their aggregate effect was
also harmless. Accordingly, we reject defendant‘s claim of cumulative prejudice.
110
III. CONCLUSION
The guilt and penalty judgments are affirmed in their entirety.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
111
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Thompson
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S033901
Date Filed: December 1, 2016
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: George W. Trammell, III
__________________________________________________________________________________
Counsel:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Denise Kendall and
Gail R. Weinheimer, Deputy State Public Defenders, for Defendant and Appellant.
Bill Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Robert R Anderson and
Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General,
Keith H. Borjon, John R. Gorey and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Denise Kendall
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607-4139
(510) 267-3300
A. Scott Hayward
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2370
|
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO SANDOVAL-GOMEZ, AKA No. 10-73448
Milton Alvarado-Sandine,
Petitioner, Agency No.
A092-563-965
v.
ERIC H. HOLDER, JR., Attorney ORDER
General,
Respondent.
Filed October 24, 2014
Before: Ronald M. Gould and N. Randy Smith, Circuit
Judges, and Morrison C. England, Chief District Judge.*
ORDER
The opinion filed on September 22, 2014, and published
at ___ F.3d ____, 2014 WL 4668962, is VACATED. It may
not be cited as precedent by or to this court or any district
court of the Ninth Circuit. The panel withdraws submission
of the case pending resolution of Almanza-Arenas v. Holder,
No. 09-71415.
*
The Honorable Morrison C. England, Jr., Chief District Judge for the
U.S. District Court for the Eastern District of California, sitting by
designation.
|
149 Ill. App.3d 684 (1986)
500 N.E.2d 1074
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
PATRICIA BERNARD, Defendant-Appellant.
No. 5-84-0403.
Illinois Appellate Court Fifth District.
Opinion filed November 18, 1986.
*685 *686 Randy E. Blue and Steven E. Wiltgen, both of State Appellate Defender's Office, of Mt. Vernon, for appellant.
John Baricevic, State's Attorney, of Belleville (Kenneth R. Boyle and Stephen E. Norris, both of State's Attorneys Appellate Service Commission, and Eleesha Pastor O'Neill, of counsel), for the People.
Judgment affirmed.
PRESIDING JUSTICE KASSERMAN delivered the opinion of the court:
The defendant, Patricia Bernard, along with Joseph Galatioto, *687 was charged in a two-count indictment with the offense of aggravated battery of Andrew and Vanessa Bernard, children under the age of 13 years. After a jury trial, the defendant was found guilty and sentenced to concurrent terms of seven and five years' imprisonment.
The following evidence was adduced at trial. Gary Boyer indicated that he met defendant in the first part of November 1983. At that time he lived in the U.S. 40 Motel in Fairmont City, and defendant lived with her two children, Andrew and Vanessa Bernard, and Joseph Galatioto in a neighboring unit. In about mid-November, Boyer could not pay his rent so he moved in with the defendant. Boyer stated that neither he nor the defendant ever struck Andrew or Vanessa Bernard. Beginning about the second week in November, he observed Galatioto strike Andrew Bernard in the chest with his fist while Andrew was lying on a bed. He also observed Galatioto strike Andrew with his fist on another occasion. He saw Galatioto slap Vanessa Bernard in the face and throw her into a wall. On one occasion he observed Galatioto kick Vanessa in the buttocks. Boyer testified that the defendant was present during most of these incidents. Her reaction, according to Boyer, was one of amusement. Galatioto also struck the defendant on one occasion. Boyer also testified that on one occasion defendant suggested that Vanessa be taken to a hospital but that Galatioto rejected the idea.
Although Boyer was in the company of defendant, away from the motel and Galatioto, on numerous occasions seeking employment, defendant did not ask Boyer to help her with the children. Boyer himself never did anything to stop Galatioto. Boyer testified that Galatioto, a former bouncer, was 6 feet 3 inches tall and weighed 225 pounds. Boyer testified that the defendant was not present on some occasions when Galatioto struck Andrew and Vanessa. Throughout the day defendant would be away from the motel either looking for work or working at a local bakery. Boyer admitted that he had two prior theft convictions. He left the U.S. 40 Motel on November 26, 1983, and, at the time of trial, he was incarcerated in the Madison County jail for theft.
A part-time maid at the U.S. 40 Motel, Betty Byrd, testified that during November and the early part of December she saw the defendant every day when the defendant came to pick up towels. Byrd had been instructed by the defendant and Galatioto not to clean the defendant's room. The defendant asked to borrow money from Byrd to get food for her children. In early December, the defendant asked Byrd to give her and Andrew a ride to the Rosemont Bakery, where the defendant was employed. According to Byrd, from there the *688 defendant planned to get a ride to the hospital.
Dr. Norma Jean Maxvold, a resident physician at Cardinal-Glennon Hospital in St. Louis, identified the defendant and testified that the defendant had brought Andrew Bernard to the hospital in early December. Dr. Maxvold testified that her examination of Andrew revealed a contused right ear, blood in both external auditory canals, a perforated left eardrum, blood in the right ear, multiple bruises to the face, a torn frenulum (the lining inside the upper lip which attaches to the gum line of the teeth), bruising behind the ears, and callous formation on several ribs, the clavicle, and the scapula. In addition, Dr. Maxvold noted bruises to Andrew's lower extremities, including unusual bruises on the dorsum of the feet, the upper surface of the feet, the ribs in the anterior chest, the abdomen and groin area, and the back and buttocks. His liver was enlarged significantly, he was suffering from serious bleeding internally, and had developed meningitis. The meningitis was traumatically induced. He was further diagnosed as having a basilar skull fracture and hearing loss in both ears, with significantly more loss in the left ear. Defendant explained Andrew's injuries to Dr. Maxvold as having occurred during falls, stating that Andrew fell quite easily and would sustain bruises. Defendant explained that she brought Andrew to the hospital because he was vomiting, and she expressed concern that because of her lack of funds, he was not receiving the proper amount of vitamins.
Jo Ann Sanders, a resident physician in pediatrics, testified that she examined Vanessa Bernard for injuries in the emergency room at Cardinal-Glennon Memorial Hospital. Vanessa's body showed multiple bruises in various stages of resolution over her body, a hymenal tear in her genital area, and a perforated eardrum. When Dr. Sanders asked Vanessa how the bruises occurred, she said that Joe had kicked her.
Dr. Armand Brodure, a pediatric radiologist, examined X rays taken of Andrew Bernard on December 5, 1983. He identified fractured seventh, eighth, and ninth ribs. The child's 10th rib had suffered a fracture near where the rib joins the spine. According to Dr. Brodure, the location of this fracture was very uncommon and occurs only as a result of a severe injury. The injury, judging from the healing, occurred weeks earlier. Dr. Brodure identified a broken scapula, or shoulder blade, and a broken collarbone. The collarbone fracture had occurred very recently, within no longer than two weeks. The fracture of the scapula had occurred at about the same time as those of the ribs, four to six weeks earlier. In addition, the child's ulna and radius of the left forearm showed healing as a result of a fracture. *689 The healing indicated that the injury had occurred at about the same time as that to the collarbone, i.e., within two weeks. The child's right ulna showed the same healing. According to Dr. Brodure, these injuries were not consistent with falling to the floor. Based on his examination, Dr. Brodure was of the opinion that the child's physical reaction to the injury would have been immediate and vocal and would have been obvious because he would have been in great pain.
The parties stipulated that the defendant was 32 years of age, that Andrew Bernard was 23 months old and Vanessa Bernard was 5 years of age. Joseph Galatioto was 34 years of age. Following deliberations, the jury found defendant guilty of aggravated battery of Vanessa and Andrew Bernard. The court entered judgments on the verdict and set sentencing for April 19, 1984.
On April 24, 1984, a hearing was held in the circuit court of St. Clair County at which time the State moved to continue sentencing for 30 days. In support thereof, the State indicated that the State of Oregon sought the defendant's testimony in a grand jury proceeding. The court granted the motion and entered an order surrendering custody of the defendant to the custody of the Oregon authorities. Sentencing was continued until May 4, 1984.
On May 4, 1984, the People and the defense jointly filed a motion to continue the sentencing so that the defendant could give a statement to Oregon authorities regarding a criminal investigation there that concerned another of defendant's children, Victor A.R. Bernard. In return for the defendant's cooperation in giving the statement, which both the State and the defendant agreed was to be verified through a polygraph examination, the State would request an order granting defendant use immunity regarding the information in the statement and would recommend a period of probation for the defendant and six months' incarceration in the St. Clair County jail.
An order granting defendant use immunity concerning the events surrounding the current condition of Victor A.R. Bernard was entered on May 4, 1984. On May 7, 1984, the State moved to revoke the grant of immunity and to continue with the sentencing because defendant had failed to cooperate in the taking of the polygraph. The matter was continued for hearing on the State's motion to revoke the use immunity. The hearing was held on May 17 and 18. After hearing the testimony from the polygraph examiner and defendant and the arguments of counsel, the court granted the State's motion to withdraw the use immunity.
A sentencing hearing was held with defendant's assent subsequent to the hearing on the withdrawal of the use immunity. The *690 State argued at sentencing that defendant was not a fit candidate for probation and requested that the defendant be sentenced to terms of 14 and 7 years. The court sentenced the defendant to a term of imprisonment of seven years for the conviction of aggravated battery of Andrew Bernard and a term of five years for the battery of Vanessa Bernard, the terms to be served concurrently.
1 Defendant's first contention on appeal is that she was not proved guilty of the two counts of aggravated battery of a child beyond a reasonable doubt because the evidence did not show her striking her minor children nor did she have the intent to commit or aid in the battery of the children. Defendant argues that to sustain a conviction upon an accountability theory, the State must prove beyond a reasonable doubt that before or during the commission of the offense, and with the specific intent to promote or facilitate such commission, the defendant solicits, aids, abets, or agrees or attempts to aid the principal. (Ill. Rev. Stat. 1985, ch. 38, par. 5-2(c).) The State maintains that the defendant was proved guilty of the two counts of aggravated battery of a child on the theory of accountability beyond a reasonable doubt.
At the outset we note that while mere presence at the scene of a crime or negative acquiescence in another's actions is insufficient to make a defendant accountable, one may aid and abet without actively participating in an over act. (People v. Ray (1979), 80 Ill. App.3d 151, 156, 399 N.E.2d 977, 981.) In the case at bar, the jury found the defendant legally accountable for the acts of the defendant's live-in boyfriend. A review of the evidence shows that defendant's 23-month-old son, Andrew, had bruises of various stages of healing over his entire body when he was brought to the hospital on December 5, 1983. Medical testimony revealed that these bruises were so extensive that they could not have occurred by accident. In addition, X rays showed that Andrew suffered from six fractured ribs, a broken shoulder blade, a fractured clavicle, hemorrhaging of two bones of the left forearm (the radius and ulna), periosteal hemorrhaging of the right ulna, and an abnormally enlarged right ear. Dr. Maxvold testified that her examination of Andrew revealed a contused right ear, blood in both external auditory canals, a perforated left eardrum, blood in the right ear, multiple bruises to the face, a torn frenulum, bruising behind the ears, and callous formation on several ribs, the clavicle, and the scapula. In addition, Dr. Maxvold noted bruises to Andrew's lower extremities, including unusual bruises on the dorsum of the feet, the upper surfaces of the feet, the ribs in the anterior chest, the abdomen and groin area, and the back and buttocks. His liver was enlarged significantly, *691 he was suffering from serious bleeding internally, and had developed meningitis which was traumatically induced. He was further diagnosed as having a basilar skull fracture and hearing loss in both ears, with significantly more loss in the left ear.
Defendant explained these injuries to the examining physician as having occurred during falls, stating that Andrew fell quite easily and would sustain bruises. She explained that she brought the child to the hospital because he was vomiting, and she expressed concern that because of her limited finances he was not receiving the proper amount of vitamins. She did not alert the hospital personnel to the fact that her 6 feet 3 inches, 225-pound boyfriend had repeatedly struck the 23-month-old baby on numerous occasions. Nor did she inform the hospital personnel upon their subsequent examination of her five-year-old daughter, Vanessa, that the multiple bruises of various ages over her body, the hymenal tear in her genital area, and her perforated eardrum were caused by the defendant's boyfriend. Rather, the defendant remained silent as to the true source of the injuries to her children. It was the five-year-old who told the doctor that defendant's live-in boyfriend had kicked her.
2 The evidence further indicated that the defendant was not ignorant of the injuries or the cause of the injuries. Gary Boyer, who lived with the defendant and her boyfriend in the defendant's motel room for approximately two weeks, testified that defendant was present during several occasions when Boyer observed defendant's boyfriend strike Andrew and kick Vanessa. Mr. Boyer further testified that the defendant's reaction to the beatings was "a look of amusement I guess you would call it." Even though she was present while her baby and five-year-old were beaten with fists and feet, defendant did not intervene and only once did she suggest to her boyfriend that they should "take the kid to the doctor." The defendant did not ask Mr. Boyer to aid her in protecting her children, in spite of the fact that she was alone with him on a number of occasions. Defendant's assistance in the batteries inflicted on her children can therefore be inferred from her failure to oppose them. (Cf. People v. Crutcher (1979), 72 Ill. App.3d 239, 244, 390 N.E.2d 571, 575.) Defendant's employer, whom she saw daily, the owner of the motel where the defendant lived, and the motel maid, who saw defendant everyday, all testified that defendant never confided that her children were being beaten by her boyfriend or asked for help to prevent the continued injury to the children. If the evidence establishes that the defendant was present at the commission of the battery to the minor children without disapproving or opposing it, the trier of fact may properly *692 consider this conduct in connection with other circumstances and reach the conclusion that the defendant assented to the commission of the crime, lent to it her countenance and approval, and was thereby aiding and abetting it. (People v. Cole (1977), 50 Ill. App.3d 133, 142, 365 N.E.2d 133, 140.) These factors, along with the failure to report the incidents or confide in anyone about them and her close association with the perpetrator of the abuse, were properly considered by the jury in establishing her accountability. People v. Ray (1979), 80 Ill. App.3d 151, 156, 399 N.E.2d 977, 981; People v. Watson (1982), 106 Ill. App.3d 315, 317, 436 N.E.2d 7, 8.
3 Defendant contends that the fact that she took Andrew to the hospital mitigates against her involvement in the abuse of her children. Defendant's own explanation to the examining physician at the hospital belies this contention. The defendant's concern was that her son was vomiting and might have a vitamin deficiency. She did not intervene in the repeated beatings of either Andrew or Vanessa, at which she was present. Further, she continued to leave her children with her boyfriend for long periods of the day despite her knowledge of the abuse he was inflicting on them. Additionally, the medical evidence showed that defendant could not have been unaware of the pain Andrew had been suffering in the weeks prior to the time she took him to the hospital. As Dr. Brodure noted in his testimony, the broken collarbone appeared to be two weeks old, the same age as the broken bones in both of the child's arms. He indicated that Andrew's reaction to these injuries would have been immediate, vocal, and obvious, and he would have refrained from using the broken limb. In addition, Andrew was suffering from older injuries the broken ribs and broken scapula which were estimated to be four to six weeks old. Again Dr. Brodure testified that the child would have been in great pain and the injuries would have been obvious. Despite the fact that the pain and the loss of use of his limb would have been obvious to defendant for weeks, she did not bring the child to the hospital until he began vomiting. Defendant sought medical treatment for what she thought was an illness, neglecting any report of the beatings which she had witnessed.
4 Defendant's contention that her conviction must be vacated because there was no proof of a common design with the perpetrator of the batteries is contradicted by her own actions. Proof of a common design need not be supported by words or agreement but can be drawn from the circumstances surrounding the commission of the act, and proof that the defendant was present at the commission of a crime without disapproving or opposing it may be considered with *693 other circumstances. (People v. Hunter (1979), 69 Ill. App.3d 732, 734, 387 N.E.2d 1018, 1020.) The jury in the case at bar was not required to search out various potential explanations compatible with innocence and raise them to the status of a reasonable doubt. The jury's determination that the defendant is legally accountable for the criminal act of another will not be set aside unless the evidence is so improbable, unsatisfactory, or unreasonable as to warrant a reasonable doubt of the accused's guilt. (People v. Grice (1980), 87 Ill. App.3d 718, 726, 410 N.E.2d 209, 216, cert. denied (1981), 450 U.S. 1003, 68 L.Ed.2d 207, 101 S.Ct. 1714.) Defendant's conduct, including her continued association with her boyfriend, her failure to report to authorities any of the incidents of abuse of her children, and her failure to attempt to prevent or oppose the abuse is not consistent with that of an innocent person similarly situated and is sufficient to support an inference that a common understanding or design to abuse the children over a long period of time existed. (People v. Ray (1979), 80 Ill. App.3d 151, 157, 399 N.E.2d 977, 981.) We accordingly find that the jury's finding of guilt was not so improbable, unsatisfactory, or unreasonable as to warrant reversal of defendant's conviction.
5 Defendant next contends that the trial court committed reversible error in giving the jury Illinois Pattern Jury Instruction, Criminal, No. 4.14 (2d ed. 1981) (hereinafter IPI Criminal 2d), which provides:
"A material element of every crime is a voluntary act, which includes an omission to perform a duty which the law imposes on the offender and which he is physically capable of performing."
Defendant contends that this instruction confused the jury because it did not include a definition of the phrase "duty which the law imposes." Without a definition of the "duty which the law imposes" upon the defendant, defendant argues that the jury was given no guidance as to what omissions constituted an act. Defendant contends that the jury was able to arrive at its own concept of "duty" and thereafter find a violation of it. In support of her position, defendant relies on People v. Weeks (1983), 115 Ill. App.3d 524, 450 N.E.2d 1351. However, rather than reversing defendant's conviction because of that portion of IPI Criminal 2d No. 4.14 relating to the "duty which the law imposes," the court in Weeks implicitly approved the language, stating that while neither the State nor the defendant discussed the nature and extent of the duty the law imposes, it assumed a legal duty did exist. It was not the duty aspect of the instruction which the court found to be erroneous. Rather, the court held that the *694 State in Weeks was required to establish beyond a reasonable doubt that the defendant, who was weak with loss of blood and who lost consciousness before her newborn child died, was capable of performing the duty the law imposed on the mother to protect her child. 115 Ill. App.3d 524, 528, 450 N.E.2d 1351, 1354.
Unlike the defendant in Weeks, the defendant in the case at bar had numerous opportunities to seek assistance for her abused children but never did. A number of witnesses who saw the defendant on a daily basis or regularly outside the presence of her boyfriend testified that the defendant never requested aid in protecting her children from further abuse, nor did she report the abuse to them. She did not report the abuse to the authorities or intervene or seek to prevent further injury to her children but rather stood by with a "look of amusement" while the children were struck, kicked, and thrown against the wall of their motel room at various times. These events occurred during the period of two weeks witnessed by Gary Boyer. Defendant does not contend that she was under no duty to act. In fact, defendant acknowledges that the caretaker or parent of a child has a duty to protect the child from harm, citing People v. Watson (1982), 103 Ill. App.3d 992, 998, 431 N.E.2d 1350, 1355. Instead, defendant argues that the absence of an instruction containing a clarifying definition of duty permitted the jury to declare its own standard of criminal liability. Defendant, however, did not offer such an instruction to the court. Having failed to offer the instruction she now complains of, defendant has waived this objection (People v. Lee (1980), 84 Ill. App.3d 441, 445, 405 N.E.2d 860, 863), and the trial court is not under any duty to give an additional instruction on its own motion (People v. Koch (1978), 64 Ill. App.3d 537, 546, 381 N.E.2d 377, 383).
6 We note that the jury was instructed as to the legal responsibility or duty of the defendant with the accountability instruction, which provided:
"A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, she knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense." (IPI Criminal 2d No. 5.03.)
Inasmuch as defendant was charged under the theory of accountability, the omission to perform the duty to protect her children from harm was an integral element of the offense with which she was charged. As we have indicated earlier, defendant was properly found to have aided and abetted in the battery of her two children. Thus *695 even if further clarification of the duty of the defendant was needed, as defendant contends, given the violation of her duty to protect the children from harm, we find that any failure to give the definitional instruction which defendant contends was needed was not a substantial defect. (Cf. People v. Lee (1980), 84 Ill. App.3d 441, 445, 405 N.E.2d 860, 863.) As a reviewing court, we will assume that the jury followed the instructions given. People v. Platter (1980), 89 Ill. App.3d 803, 820, 412 N.E.2d 181, 194.
7 Defendant's third contention on appeal is that she was denied a fair trial when the trial court allowed Dr. James Monteleone, a pediatrician in charge of the child-abuse clinic at Cardinal-Glennon Hospital in St. Louis, to testify regarding his diagnosis that defendant's children had suffered child abuse.
Dr. Monteleone testified that he was a pediatrician and head of the child-abuse unit at Cardinal-Glennon Hospital in St. Louis and had been involved in the child-abuse unit since 1962. He gave a general explanation of the term "child abuse" as used in his medical speciality. This general definition included Dr. Monteleone's opinion that "another aspect is failure to protect" and that a parent who fails to protect a child "[is] as guilty of abuse as a person who actually physically strikes them." Defendant objects to the inclusion of this part of the doctor's explanation of the term "child abuse" as: (1) an infringement on the jury's role in determining defendant's guilt on the battery charges, (2) a prohibited statement of the cause of the injuries, and (3) a misstatement of law. From our review of the record, we find that at no time did Dr. Monteleone connect this part of his general definition of the term "child abuse" with the defendant in order to give an opinion regarding the charges on which defendant was being tried.
Dr. Monteleone testified further that child abuse does not always involve physical abuse but entails "emotional and nutritional abuse" or "maternal abuse." In explaining his diagnosis of child abuse of the defendant's son, Andrew, Dr. Monteleone noted that in addition to his injuries, Andrew suffered the classic appearance that goes with maternal and emotional abuse the lost look, the wanton look, the blank stare. The defendant contends this testimony was prejudicial and erroneously admitted because it was tantamount to expert testimony on the ultimate issue of the defendant's culpability. Defendant contends that the doctor's diagnosis stated that the defendant was the cause of the injuries. However, the record indicates that after noting that Andrew suffered the classical appearance that goes with maternal and emotional abuse, Dr. Monteleone then described the physical injuries his examination revealed which led to his diagnosis of the injuries being *696 caused by child abuse. After telling of the extensive bruising over Andrew's body, the multiple fractures in various stages of healing, the injury to his spleen and liver, and the blood and spinal fluid coming from the child's ear, the doctor stated:
"He had bruises in every area of his body. Just impossible to happen by accident, had to be child abuse inflicted by a person."
Dr. Monteleone then testified that defendant's other child, five-year-old Vanessa, also suffered from child abuse. This opinion was based on the fact that her injuries were "in atypical areas, genital area, on her inner calves, on her buttocks and on her side, just accidental injuries do not happen like that in children." While confirming that the injuries of the children could have resulted only from child abuse, the doctor did not testify, as defendant contends, that defendant caused the injuries. In fact, he emphatically stated, "Oh, no, I can't tell who administered them, but I can tell you that they were, you know, oh, no, I can't tell you who administered."
8 As the courts in Illinois have held, there is no reason to prohibit a qualified physician from giving an expert opinion that a child suffered from child abuse. (People v. Platter (1980), 89 Ill. App.3d 803, 819, 412 N.E.2d 181, 193.) Admission of such testimony is permissible as long as the trial court is satisfied that the witness was qualified to give an opinion on the subject. (People v. Ward (1983), 112 Ill. App.3d 547, 556, 445 N.E.2d 883, 890, rev'd on other grounds (1984), 101 Ill.2d 443, 463 N.E.2d 696.) Since the doctor's diagnosis in the case at bar did not state that the defendant battered the children, there was no inconsistency with defendant's defense that the injuries were caused by another person. (People v. De Jesus (1979), 71 Ill. App.3d 235, 237, 389 N.E.2d 260, 261.) Accordingly, we find that the doctor's expert opinion was properly allowed by the trial court.
9 Defendant's final contention on appeal is that she is entitled to a reduction of her sentence or a new sentencing hearing because the court heard improper evidence regarding her sentencing. In particular, defendant contends that the court heard evidence of a polygraph test in connection with her application for probation.
On May 4, 1984, the date originally set for the sentencing of the defendant, the State and the defense jointly filed a motion to continue the sentencing so that defendant could give a statement to Oregon authorities regarding a criminal investigation there concerning another of defendant's children, Victor A.R. Bernard. In return for the defendant's cooperation in giving the statement, which both the State and defendant agreed was to be verified through a polygraph examination, *697 the State would request an order granting defendant use immunity regarding the information in the statement and would recommend a period of probation for the defendant and six months' incarceration in the St. Clair County jail. An order granting defendant use immunity concerning the events surrounding the current condition of Victor Alfred Bernard was entered on May 4, 1984. The order provided:
"This immunity is conditioned on the defendant providing a statement to law enforcement officials as to her knowledge of the condition of Victor A.R. Benard [sic] prior to Victor A.R. Benard [sic] leaving Oregon and that she pass a polygraph indicating her truthfullness [sic] to that statement. Further condition is that defendant agrees to cooperate with all law enforcement agencies concerning the prosecution of any criminal offense arising out of said statement."
No order regarding the sentence of defendant was entered at that time nor did the court indicate that it would accept the State's recommendation of the proposed sentence of defendant.
On May 7, 1984, the State moved to revoke the grant of immunity and to continue with the sentencing because defendant had failed to cooperate in the taking of the polygraph. The matter was continued for hearing on the State's motion to revoke the use immunity. The hearing was held on May 17 and 18. Robert Baldwin testified at the hearing that he was a polygraph examiner for the Belleville police department. He testified that the defendant was a good subject for examination, the apparatus was applied, and that the defendant answered three questions in the negative. Baldwin testified, however, that the defendant did not complete the test because she did not submit to a second "chart." In regard to the results, Baldwin contended that there was no pattern of deception to the first question but that there was a "pattern of deceptive tracing" on the second and third questions. The defendant testified that she answered the questions while the apparatus was applied. Baldwin then stated that an additional test would be required, and since defendant believed that she completed the test, defendant declined and asked to speak to her lawyer. The State thereupon argued that the evidence revealed that the defendant had not completed the test and that the defendant lied on two of the three questions. It urged that immunity should be withdrawn, and that the court should continue with sentencing. Defense counsel argued that the defendant had complied with the agreement and, although there were no plea negotiations per se, the "interweaving of this Oregon investigation" had been at the State's insistence. *698 Defense counsel urged that the State should comply with its sentencing recommendation. The court set aside its order granting immunity, concluding that the defendant did not pass a polygraph indicating her truthfulness. With defendant's assent, the court then proceeded with the sentencing hearing. The sentencing hearing consisted of argument on aggravation and mitigation, a statement by the defendant, and an examination of defendant's presentence investigation report.
Our review of the record reveals that the issue surrounding defendant's breach of her agreement with the State's Attorney to take the polygraph was limited to the State's motion to withdraw the use immunity conditionally granted to the defendant. It did not involve the sentencing hearing, which was held separately and subsequent to the hearing on the motion and was not part of the sentencing considerations relied upon by the trial court. In reviewing the record, we find that the events surrounding the polygraph itself were not argued or considered at the sentencing hearing. The trial court noted that based upon its independent assessment of the factors in aggravation and mitigation, the statements relative to sentencing, and defendant's own statement, it determined that probation should be denied given the nature and circumstances of the offense and the history, character, and condition of the offender. The court found that imprisonment of the defendant was necessary for the protection of the public and that probation would deprecate the seriousness of defendant's conduct. In aggravation, the court found that, in committing the felony, the defendant inflicted, by accountability, serious bodily injury to another and that defendant had a history of prior delinquency and criminal activity. The court found that a sentence was necessary to deter others from committing the same crime and that the defendant committed a heinous crime for which an extended term of imprisonment could be imposed. The court additionally found no factors in mitigation. Defendant was then sentenced to a term of imprisonment of seven years on the conviction of aggravated battery of Andrew Bernard and a term of five years for the battery of Vanessa Bernard, the terms to be served concurrently.
10 From our review of the record, we find that the court's sentences were not an abuse of discretion and that it was not an abuse of the court's discretion to determine that the defendant should be sentenced to more than the minimum sentence provided. (People v. La Pointe (1982), 88 Ill.2d 482, 431 N.E.2d 344.) We find that the record shows that the trial court properly considered factors in both aggravation and mitigation, giving its reasons for the sentences imposed. We cannot substitute our judgment for that of the trial court merely *699 because we would have imposed a different sentence because it is not the function of a reviewing court to reweigh the evidence and substitute its judgment for that of the trial judge. (People v. Hefley (1982), 109 Ill. App.3d 74, 78, 440 N.E.2d 173, 177.) Accordingly, we find that defendant's sentences should be affirmed.
For the foregoing reasons, we affirm defendant's convictions and sentences.
Affirmed.
KARNS and WELCH, JJ., concur.
|
873 S.W.2d 200 (1994)
Jed K. DETERS, Appellant,
v.
JUDICIAL RETIREMENT AND REMOVAL COMMISSION, Appellee.
No. 93-SC-076-RR.
Supreme Court of Kentucky.
March 24, 1994.
*201 Thomas Wesley Bosse, Deters, Benzinger & Lavelle, P.S.C., Covington, for appellant.
Jeffrey A. Darling, Lyon, Golibersuch & Darling, P.S.C., James D. Lawson, Executive Secretary, Judicial Retirement and Removal Com'n, Lexington, for appellee.
SPAIN, Justice.
Appellant was found by the Judicial Retirement and Removal Commission (Commission) to have twice violated Supreme Court Rule 4.020(1)(b)(v) and Canon 7 B(1)(c) of The Code of Judicial Conduct, Rule 4.300, on November 3 and 4, 1991, while he was a candidate for election as district judge, for which he was publicly censured. He appeals as a matter of right. We affirm.
It was stipulated before the Commission that on the above dates, campaign officials for Mr. Deters, with his knowledge and approval, caused political advertisements to be run in The Messenger, a Catholic newspaper, and in The Kentucky Post, a newspaper of general circulation in Northern Kentucky, which contained in bold print the statement: "Jed Deters is a Pro-Life Candidate." Mr. Deters was one of seven candidates in the November 5, 1991, special election for the remainder of an unexpired term for a judgeship in the 16th Judicial District, comprising Kenton County.
In the same campaign, Mr. Deters had earlier appeared before the Commission on October 11, 1991, to participate in an informal conference concerning a complaint that he had distributed other campaign materials in which he identified himself to be a member of a particular political party, in violation of Canon 7 A(2) of The Code of Judicial Conduct. Following that conference, Mr. Deters agreed to accept a public reprimand without formal proof, and on October 25, 1991, the Commission issued an Order of Public Censure against him.
*202 The subsequent charges regarding the newspaper advertisements were the result of a complaint filed on November 11, 1991, after Mr. Deters lost the district judge's race on November 5. Following the filing of formal charges and Mr. Deters' filing of an Answer in July 1992, the Commission held a full hearing on September 23, 1992, at which he appeared with counsel, testified, and offered other evidence.
Canon 7 B(1)(c) states that a candidate for a judicial office:
should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or misrepresent his identity, qualifications, present position, or other facts.
The Commission entered its Findings of Fact, Conclusions of Law and Final Order of public censure of Mr. Deters on February 1, 1993. It concluded that, based upon clear and convincing evidence, it was proved that Mr. Deters:
publicly announced his view on the abortion issue for the admitted purpose of obtaining support from voters interested in that issue. In doing so, he attempted to obtain an unwarranted and illegal advantage in the election over his opponents. In so acting, he violated Canon 7 B(1)(c) by making statements that commit or appear to commit the candidate to a position with respect to cases, controversies or issues that are likely to come before the court.
On this appeal, Mr. Deters raises four issues; first, that the Commission was without jurisdiction to sanction him; second, that the abortion issue was not likely to come before the Kenton County District Court; third, that he had a constitutionally protected right to discuss abortion in the public forum; and last, that the State has no compelling interest in prohibiting "all forms of a candidate's speech."
I.
Although Mr. Deters concedes that the Commission had jurisdiction over his conduct during the period of his candidacy for judicial office, he argues that once his candidacy terminated (by his defeat), so did the jurisdiction of the Commission over him. He cites the language of SCR 4.020 that:
(1) Commission shall have authority:
. . . . .
(b) to impose the sanctions [of admonition, private reprimand, public reprimand or censure] upon any judge ... or lawyer while a candidate for judicial office... (emphasis added).
In addition, he cites SCR 4.000:
This Part IV of these rules applies to all proceedings before the Judicial Retirement and Removal Commission involving the discipline, retirement or removal of ... [judges] ..., as well as the disciplining of lawyers seeking judicial office who during their candidacy shall be deemed subject to the jurisdiction and discipline of the Commission. (Emphasis added.)
While it is true that these sections of the rule focus on the period of time during which the lawyer is actually a candidate, this is clearly for the purpose of defining the time during which the proscribed conduct falls under the commission's purview. Nothing therein attempts to limit the jurisdiction of the Commission thereafter to deal with such conduct. The present case dramatically illustrates the reason for this to be so. Mr. Deters' questionable advertisements were published two days and one day before the election. Could it be seriously contended that the Commission, in order to act legally, had to investigate, give notice of charges, allow time for response, hold a hearing, make findings, and impose any sanctions against Mr. Deters, all within twenty-four to forty-eight hours?
In further support of this argument, appellant cites Kentucky Bar Association v. Hardesty, Ky., 775 S.W.2d 87 (1989), in which he says:
this Court explicitly divested the Commission of all power to sanction attorneys, *203 holding that the Commission's exercise of these powers over attorneys was unconstitutional under Kentucky Constitution Section 121. In accordance with the Hardesty decision, Rule 4.050 was rewritten to require the Commission to refer disciplinary matters concerning attorneys over to the Bar Association.
Appellant's reading of Hardesty is far too broad. Its holding was simply that the former SCR 4.020(1)(b) erroneously gave to the Commission jurisdiction to impose sanctions relating to an individual's right to practice law; i.e., by providing for suspension or disbarment from the practice. Only those sanctions were held to require action by the Kentucky Bar Association as being beyond the scope of the Commission under Section 121 of the Constitution, and only those sanctions are now required by the rewritten SCR 4.020(1)(d) to be referred to the KBA as to judge or lawyer. In the present case, the only sanction levied by the Commission against Mr. Deters was a public censure, and such is clearly within the Commission's authority.
II.
Mr. Deters next argues that his advertisements did not violate Canon 7 B(1)(c), as the abortion issue or controversy is not one "likely to come before the court." He specifically points to the fact that there have been no abortion-related cases that have come before the Kenton County District Court for over a decade, that the only two hospitals in the county are Catholic and do not perform abortions, and that there are no licensed abortion clinics in the county. He concedes that a physician could possibly perform an abortion in a private office, but opines that this is unlikely in view of the lack of hospital backup. Finally, he points to "the strong Catholic heritage of the populace, and the easy availability of abortion services less than fifteen minutes away, in Cincinnati" as to rendering "virtually nil" the chances of an abortion clinic opening in Kenton County.
The Commission nevertheless found that the issue of abortion was one that will likely come before the Kenton District Court. It cites KRS 311.732, which authorizes a minor to petition a district court for an order permitting an abortion. It also refers to the possibility of misdemeanor cases which could come before the district court involving abortion protests, including trespass, disorderly conduct, or assault. Furthermore, the Commission notes that district judges are often asked to serve as special judges in other counties where numerous abortion-related issues are pending before the court.
Although not specifically mentioned in the Commission's Order, the transcript of evidence of the hearing of September 23, 1992, also reflects that two Commission members observed that the "pro-life" movement is not limited to abortions but also deals with living wills and controversies involving removing tubes or respirators, which are "big issue(s) right now, something that might come before a Judge."
We agree with the Commission's finding that Mr. Deters' political advertisements were a public announcement of his views on the abortion issue and we are further of the opinion that his claim of being "a pro-life candidate" appeared to commit him to a position not only on abortion matters, but also on other controversies, and that any or all of such issues and controversies are likely to come before the court. Moreover, there can be no doubt of Mr. Deters' motivation, as he freely testified that "any good Catholic is pro-life," that Kenton County has a high percentage of Catholic voters, and that his statement of being a "pro-life candidate" would "hopefully" give him "a distinct edge in a race," since "you're in it to win. You do what it takes."
III and IV
The appellant's third and fourth issues are, in effect, both challenges to the constitutionality of Canon 7 B(1)(c), of The Code of Judicial Conduct, and consequently, they will be discussed together. It is contended, first, that Mr. Deters had a constitutionally protected right to discuss abortion in the public forum, and second, that the state has no compelling interest in so restricting his right of free speech.
*204 Numerous cases are cited from the U.S. Supreme Court and other courts for their holdings that the election process enjoys the strongest possible protection under the First Amendment of the U.S. Constitution because it is during elections that freedom of speech is most urgently needed. It is said that if the electorate is to make informed decisions, then the information for that decision-making must be freely available. Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971). Thus, the state must not interfere with a candidate's rights to "engage in the discussion of public issues and vigorously and tirelessly advocate for his own election ... and make his views known so that the electorate may intelligently evaluate the candidates' personal qualities and their views on vital public issues before choosing them on election day." Buckley v. Valeo, 424 U.S. 1, 52-53, 96 S.Ct. 612, 651, 46 L.Ed.2d 659 (1976); Brown v. Hartlage, 456 U.S. 45, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982).
It is emphasized by appellant that such First Amendment jurisprudence also extends these strong protections to judicial elections, citing this Court's decision in J.C.J.D. v. R.J.C.R., Ky., 803 S.W.2d 953 (1991). As a matter of fact, it was the decision of the seven special justices sitting in that case which struck down Canon 7 B(1) of The Code of Judicial Conduct as it then existed, giving rise to the promulgation of the new canon which is now under attack in the instant case. The former language condemned by the decision prohibited a candidate for judicial office from announcing his views on all "disputed legal or political issues," whereas the present canon only prohibits "statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court...."
The appellant also cites the recent decision of the U.S. Court of Appeals for the Seventh Circuit in Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (1993), wherein that court considered the same language as was contained in the former canon struck down by this Court in J.C.J.D. v. R.J.C.R., supra. The Seventh Circuit also found the Illinois canon unconstitutionally overbroad. We do not agree with the appellant, however, in his assertion that Buckley holds that the provision contained in our present canon referring to "cases, controversies or issues likely to come before the court" is also unconstitutionally overbroad. Rather, we understand the decision to hold that the Federal District Judge whose decision was appealed had erroneously upheld the canon by "rewriting" it so as to make it narrower, using the "likely" test. The Court's additional comment concerning the "likely" test appears to be merely dictum.
The language of our present Canon 7 B(1)(c) has, however, been specifically upheld by a Federal Court as having been "sufficiently and closely drawn so as to avoid unnecessary abridgement of a judicial candidate's right of free speech during the campaign." Ackerson v. Kentucky Jud. Ret. & Removal Com'n, 776 F.Supp. 309 (W.D.Ky. 1991). The opinion recognized that, while candidates for elective judicial office are not without the protection of the First Amendment, their campaign conduct has nevertheless been regulated to a greater degree than non-judicial candidates. As stated by the U.S. Court of Appeals for the Fifth Circuit in Morial v. Judiciary Comm'n, 565 F.2d 295, 305 (5th Cir.1977):
Because the judicial office is different in key respects from other offices, the state may regulate its judges with the differences in mind. For example the contours of the judicial function make inappropriate the same kind of particularized pledges of conduct in office that are the very stuff of campaigns for most non-judicial offices. A candidate for the mayoralty can and often should announce his determination to effect some program, to reach a particular result on some question of city policy, or to advance the interests of a particular group. It is expected that his decisions in office may be predetermined by campaign commitment. Not so the candidate for judicial office. He cannot, consistent with the proper exercise of his judicial powers, bind himself to decide particular cases in order to achieve a given programmatic result.
The district court in Ackerson, supra, further found that the language with respect to *205 issues which are "likely to come before the court" is not impermissibly vague, stating at page 315:
The canon does not prohibit all speech by a judicial candidate on legal issues. A candidate may fully discuss, debate, and commit himself with respect to legal issues which are unlikely to come before the court. A candidate may also fully discuss and debate legal issues which are likely to come before the court. It is only with respect to the latter that the candidate is prohibited from making direct or indirect commitments.
Finally, the Ackerson opinion holds, as do we, that there is a compelling state interest in so limiting a judicial candidate's speech, because the making of campaign commitments on issues likely to come before the court tends to undermine the fundamental fairness and impartiality of the legal system.
All of us undoubtedly accumulate some preferences, opinions, biases, and prejudices as we live through our individual life experiences. It is the task of a judge, nevertheless, to make a conscious effort to be as objective as humanly possible in answering the call to be fair and impartial. Justice can hardly be blind if the judge has made a pre-election commitment or prejudgment which causes him or her to apply the blindfold only as to one side of an issue.
The Findings of Fact, Conclusions of Law and Final Order of the Judicial Retirement and Removal Commission publicly censuring Hon. Jed K. Deters is affirmed.
STEPHENS, C.J., and LEIBSON, REYNOLDS and STUMBO, JJ., concur.
WINTERSHEIMER, J., concurs in part and dissents in part by separate opinion in which LAMBERT, J., joins.
WINTERSHEIMER, Justice, concurring in part and dissenting in part.
I concur with that part of the opinion which determines that the Judicial Retirement and Removal Commission has jurisdiction to sanction a defeated judicial candidate after the election. However, I believe that the facts of this case present a serious constitutional question which has been improperly decided.
Deters was one of seven candidates for the office of district judge of Kenton County in the November, 1991 election. He finished fifth. Two newspaper advertisements were placed stating that "Jed K. Deters is a Pro-Life Candidate." One ad was placed in the Catholic Messenger, a weekly newspaper, and the other in the Kentucky Post, a daily newspaper of general circulation in Northern Kentucky.
Zeal for the cause of judicial integrity is understandable and commendable. However, there must always be a careful balance between the need for impartiality of judges and the right of political free speech in response to an inquiry by the electorate. The right to disseminate information must be considered in regard to all the likely circumstances in a practical setting. The right of the public to know and the right to inform in regard to the question of elections are part of this complex mixture of political free speech.
Political free speech is primary as the cornerstone of a responsible representative democracy because it relates directly to the function of government in a free society. An informed electorate is the foundation of true liberty. The judiciary is no exception and is subject only to limitations which must be carefully and narrowly drawn. Recusal is a full guarantee for any appearance of impropriety. The requirement of the appearance of impartiality can easily be satisfied by recusal, voluntary or involuntary, of the judge thought to be offending. The best antidote for the misbehaving candidate is the voice of a truly informed electorate.
Practically, there is little likelihood that the issue involved in this case will occur. The advertisements in question were not a violation of the Judicial Canons of Ethics because the abortion issue is not likely to come before the Kenton District Court.
The record indicates there was no factual evidence presented by the commission on this question and that the candidate was obliged to present all the facts. The evidence as stipulated before the commission *206 indicated that the sitting district judges in Kenton County were willing to testify that they had never heard an abortion related issue, that none were pending and that they did not anticipate any arising in the future. There are no hospitals in Kenton County which perform abortions, and there are no licensed abortion clinics in the county.
The ethical rule in question is more narrow than the issue denounced by this Court in J.C.J.D. v. R.J.C.R., Ky., 803 S.W.2d 953 (1991). There is a distinct difference between the standard of "likely" to come before the court and the criteria of "could possibly" come before the court. An abortion related issue is not likely to come before the Kenton County District Court.
A larger issue is the right of a candidate to discuss a public issue in the public forum, including a newspaper advertisement. There is a fundamental right of the people to know any candidate's views and to obtain the information that is relevant to them in making their final electoral choices. Any restriction on a candidate's right to engage in legitimate political discussion restricts the electoral process by not allowing the voters to obtain the necessary information.
Two principles are in conflict and must to the extent possible be reconciled. Candidates for public office should be free to express their views on all matters of interest to the voters. Judges, as candidates for public office, are in that category. However, judges in the performance of their duty must decide cases before them in accordance with the law rather than with any implied promises that may have been made to campaign supporters or to others. See Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir. 1993).
The need and right of the voter to have information should be unchallenged and should be paramount in this consideration. Cf. Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971). This Court, in J.C.J.D., supra, indicated that a broad rule prohibiting judicial candidates from speaking on disputed issues serves only to turn the judicial election into a popularity contest. The U.S. Supreme Court has repeatedly endorsed protection for the electoral process and the necessary first amendment rights related thereto. Cf. Brown v. Hartlage, 456 U.S. 45, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982).
There could be a variety of issues that may be important to the voters in a particular election. The response of candidates for judicial office can easily reveal their general view and philosophy as a public officeholder. In responding to such general and specific questions through a paid newspaper advertisement, a candidate should be considered as disseminating information so requested. The activity of response and information should be protected.
In regard to the right of political free speech, any state regulation must be subject to strict scrutiny and will be struck down unless it serves a compelling state interest and is narrowly drawn to serve that compelling state interest. Brown v. Hartlage, supra. When a regulation of free speech can result in disciplinary action against the speaker, the regulation will be subject to even greater scrutiny. In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978). The canon challenged here cannot meet such a test of compelling interest and strict scrutiny.
The rationalization for Canon 7 B(1) is that it protects the integrity and impartiality of the judiciary. Impartiality of the judiciary is safeguarded by the fact that SCR 4.300 Canon 3(C) requires a judge to recuse when any personal viewpoint obstructs the ability to render a fair and impartial decision.
This Court in J.C.J.D. v. R.J.C.R., supra, held that a very similar rule violated the First Amendment right of free speech. There are other decisions on analogous issues which reach a similar conclusion. See Buckley v. Illinois Judicial Inquiry Bd., supra. J.C.J.D. held that freedom of speech extends to all candidates for public office, including judicial candidates, and that where state regulations extend so far as to completely outlaw speech because of subject matter, there is a strong presumption of unconstitutionality.
The principle of impartial justice under law is strong enough to entitle the government to *207 restrict the freedom of speech of those participating in the judicial process or election, but it is not so strong as to place that process completely above the scope of the constitutional guaranty of free speech. Buckley. The cardinal principle in balancing the tension between free speech and judicial propriety must remain that state laws which restrict free speech and that can result in disciplinary action against the speaker are subject to very strict scrutiny. The question must be whether the regulation has been so narrowly designed and strictly applied that a compelling state interest is served without unnecessarily burdening the exercise of free speech.
In my view that strict standard has no been met in this case.
LAMBERT, J., concurs in this opinion.
|
Case: 05-40774 Document: 00511206680 Page: 1 Date Filed: 08/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 17, 2010
No. 05-40774
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GREGORY D LEWIS,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:04-CR-19-1
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Gregory D. Lewis has
moved for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). Lewis has filed a response. To the extent that
Lewis has raised a claim of ineffective assistance of counsel, the record is
insufficiently developed to allow consideration at this time of his claim; such
claims generally “cannot be resolved on direct appeal when [they have] not been
raised before the district court since no opportunity existed to develop the record
*
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: 05-40774 Document: 00511206680 Page: 2 Date Filed: 08/17/2010
No. 05-40774
on the merits of the allegations.” United States v. Cantwell, 470 F.3d 1087, 1091
(5th Cir. 2006) (internal quotation marks and citation omitted). Our
independent review of the record, counsel’s brief, and Lewis’s response discloses
no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to
withdraw is GRANTED, counsel is excused from further responsibilities herein,
and the APPEAL IS DISMISSED. See 5 TH C IR. R. 42.2. Lewis’s motion to
substitute counsel is DENIED.
2
|
312 So.2d 883 (1975)
Ruth Elizabeth John HOLLADAY
v.
FIDELITY NATIONAL BANK OF BATON ROUGE and W. Leroy Ward, Jr., et al.
No. 10241.
Court of Appeal of Louisiana, First Circuit.
May 19, 1975.
*885 Karl W. Cavanaugh, Denham Springs, Charles M. Bass, Jr., Robert H. Abbott, III, Baton Rouge, for appellant.
Victor A. Sachse, Breazeale, Sachse & Wilson, Baton Rouge, for Fidelity Nat. Bank, W. Leroy Ward, Jr., and Frank S. Craig.
Ashton L. Stewart, Baton Rouge, for Wm. Tait Baynard, Jr., Alfred Scott John Baynard and G. Dupre Litton.
Before LANDRY, BLANCHE and YELVERTON, JJ.
BLANCHE, Judge.
Plaintiff-appellant, Ruth Elizabeth John Holladay, hereinafter referred to as settlor, created and established two trusts, (hereinafter referred to as the Louisiana trust and the Texas trust) of which she is the sole income beneficiary. The trusts further provided that in the event of her death, the corpus of the trusts and accumlated income, if any, would be paid to her nephews, William Tait Baynard, Jr. and Alfred Scott John Baynard,[1] in equal proportions. The Louisiana trust was established on April 14, 1966 and named the Fidelity National Bank of Baton Rouge, defendant-appellee, as trustee. The Texas trust was established on the same day and named W. Leroy Ward, Jr., defendant-appellee, and Edward H. Sutter, as trustees. These defendants were president and trust officer of the Fidelity National Bank. After Sutter terminated his employment with the bank, settlor named Frank S. Craig, Jr., defendant-appellee, also an officer of the bank, as trustee. G. Dupre Litton, defendant-appellee, was appointed by settlor as attorney to represent the trustee, or any successor trustee.
The settlor commenced this proceeding against the above-named defendant-appellees to have them removed as trustees and trust attorney of the two trusts and to modify the two trust instruments in certain respects. Relief was sought on the grounds that the trustees had breached their duties to settlor in the following respects: (1) failure to maintain confidentiality of the trust affairs; (2) by placing non-income producing property originally owned by trustee Ward in the income producing Louisiana trust; (3) failure to record the Louisiana trust instruments as required by law; (4) failure to administer the Louisiana trust as reasonable and prudent men; (5) failure to furnish information to plaintiff-appellant; and (6) improper delegation of trustee duties. The trial court refused to remove the defendant-appellees as trustees and trust attorney of the respective trusts. The court did, however, modify the trust instrument in certain respects, the principal one, for the purposes of this decision, being the revocation of an agency agreement of defendant-appellees, Ward and Craig, as trustees of the Texas trust, with defendant-appellee, Fidelity Bank of Baton Rouge. The defendant-appellees, Fidelity Bank, Craig and Ward, have answered the appeal, complaining of the judgment insofar as it abrogated the agency agreement between the parties Ward and Craig as trustees with the Fidelity Bank.
Settlor relies on several articles of the Louisiana Trust Code as the statutory authority for removal of the trustees. Principally, her argument centers around the relationship between the trustee and beneficiary of the trust, as expressed in R.S. 9:1731. This article establishes a fiduciary relationship between the trustee and beneficiary and consequently subjects the fiduciary to the highest degree of fidelity *886 and undivided loyalty unto the beneficiary with regard to their administration of the trust for the benefit of settlor. Also relied upon are R.S. 9:2082, providing that "a trustee shall administer the trust solely in the interest of the beneficiary" and R.S. 9:2081, which states that "a violation by a trustee of a duty he owes to a beneficiary as trustee is a breach of trust." R.S. 9:1789 provides that "a trustee may be removed in accordance with the provisions of the trust instrument or by the proper court for sufficient cause shown,".
In short, the trust instruments do not provide for the removal of the trustees, and on the trial of the case, no cause was shown for removal. We affirm.
CONFIDENTIALITY
The duty of a trustee to treat with confidentiality matters pertaining to his administration of the trust is implicit in the trust relationship which mandates that he shall administer the same solely in the interest of the beneficiary, L.S.A. R.S. 9:2082. Whether a breach of confidentiality conflicts with this interest or adversely affects that relationship is a question of fact. The trial court found settlor's complaints in this regard to be without substance, and with this finding, we are in complete agreement.
Settlor complained that appellee Sutter, the Fidelity Bank trust officer, had furnished W. T. Baynard, Jr., in January of 1967, a statement of all income received by the bank under an agency agreement made by settlor with the bank before the trust was established, and under the trust after it was established, for the year 1966. The trial judge found that settlor had relied upon Mr. Baynard, her brother-in-law and confidant, in many instances, and that the information was purely for her tax return for that year and used for that purpose. Additionally, settlor received a copy of the letter, and no complaint was made by her to that letter for a number of years.
Settlor also complained that the attorney for the trust, G. Dupre Litton, had given information to her brother-in-law, William T. Baynard, Jr., of the fact that she had written the Fidelity Bank requesting the resignation of the trustees. Shortly after Baynard was so informed, he called settlor protesting this action. The trial judge found that because of the relationship of Mr. Litton, Mr. Baynard and settlor's family, the foregoing would not amount to any great breach of confidentiality. He stated in his oral reasons for judgment, "These people had been dealing with each other as members of a family, as counsel, as client, and in a business sense. All of them were involved and the disclosure would not, in the opinion of this Court, cause any great concern. Of course, Mr. Craig, Mr. Ward and Fidelity National Bank were not a part of that disclosure in any event, and insofar as it being a cause for removal, it would relate only to Mr. Litton as attorney for the respective trusts."
The third breach of trust relates to settlor's having heard the status of her trust account discussed in the restroom at the Fidelity National Bank of Baton Rouge, apparently by employees of the bank. Settlor did not know the employees but pointed them out to Mr. Sutter.
We do not regard restroom discussions of settlor's business affairs by employees of the bank as proper, but in the instant case do not regard such discussions as having adversely affected the best interests of the beneficiary.
Considering the close nature of the relationships between the parties, the triviality of the charges, and the length of time before any complaint was made concerning them, we are not inclined to view them as acts which in any way affected the settlor's interests.
*887 FAILURE TO FURNISH INFORMATION TO SETTLOR
The Louisiana Trust Code at R.S. 9:2089 makes the trustee's duty to furnish information to the beneficiary mandatory.[2] In this connection relator stated that she requested in December of 1971 that she be furnished with a copy of the Louisiana trust instrument to which defendant-appellee Fidelity never responded. She also complains of other requests which were not honored. The trial court's finding in this regard is expressed as follows:
"To the contrary, a preponderance of the evidence shows that Mrs. Holladay [settlor] was annually furnished an accounting of the respective trusts. At one point, she complained that she had not been supplied with a copy of the trust instrument and then later Mrs. Holladay [settlor] acknowledged that she did, in fact, have a copy but simply misplaced it."
SELF-DEALING
Settlor has complained that the purchase of a home by her from defendant-appellee Ward and the subsequent placing of that home in the Louisiana trust constituted an act of self-dealing which would be sufficient cause for the removal of the trustees. Appellee Ward was named in the Texas trust agreement as a trustee of the Texas trust, and being an officer of the Fidelity Bank, which is the trustee of the Louisiana trust, it is alleged that he was in some manner dealing with himself in permitting this home to be purchased by settlor with funds other than trust funds and thereafter placed by her into the Louisiana trust. The transaction was in the form of cash sale from the defendant-appellee Ward and his wife, Naomi Ward, to settlor, and thereafter a donation by settlor of the property to the Louisiana trust.
The evidence shows that no part of the trust corpus was used for the purpose of buying this home. When settlor first entertained the idea of purchasing the Ward home she prevailed upon the trustees to have the Louisiana trust provide for the purchase price. Appellees Ward and the Fidelity Bank declined to allow settlor to purchase the home with funds from this trust for fear that such a transaction would indirectly constitute self-dealing in violation of R.S. 9:2085.
R.S. 9:2085 expressly prohibits acts of self-dealing with a trust by trustee in the following language:
"A corporate trustee shall not directly or indirectly buy or sell property for the trust from or to itself or an affiliate, or from or to a director, an officer, or an employee of itself or an affiliate, unless the trust instrument provides otherwise."
To overcome the obstacle of the trustees' refusal to purchase a home for settlor with trust funds, settlor's brother-in-law, William T. Baynard, Jr., who had been helping her select a home, went to settlor's mother, Mrs. Cornelia Cross John, and prevailed upon her to make a donation to her daughter in a sum sufficient to enable settlor to purchase the home. After this donation, settlor purchased the house and placed it in trust for the same reason that the rest of her separate properties had been placed in trust, i.e., for her own financial security.
We find it unusual that settlor would complain that the trustees committed a breach of their fiduciary relationship with her after trustees had refused to permit the purchase of the house by the trust for the very reasons of which she now complains. Surely, the trustees could have no control over settlor's mother with regard to *888 the donation to her daughter or, for that matter, over settlor with regard to the purchase of her home with her own private funds. Settlor argues that because of the status of appellee Ward as trustee of the Louisiana trust and an officer of the Fidelity Bank, that the Louisiana trust could not validly acquire the property. A refusal by the trustee to accept the property from settlor after its purchase would have been ridiculous and in our opinion a refusal to act in settlor's interests.
We reject the argument that the foregoing transaction constituted self-dealing as proscribed by R.S. 9:2085.
FAILURE TO RECORD THE TRUST INSTRUMENT
R.S. 9:2092 provides that if at any time the trust property includes immovable property, the title to which must be recorded in order to affect third parties, a trustee shall file the trust instrument for record in each parish in which the property is located. Initially, the trust instrument was not recorded, and even after the acquisition of settlor's home, the trustee did not record the sale. Defendant-appellee Fidelity offers the argument that there was, in fact, no reason to record this particular trust instrument. The trial court, in commenting on this failure, stated:
"At one point in the deposition of Mrs. Holladay [settlor], she stated that it was not her desire that it be recorded at the time but that after she understood other things she felt that since the law required it, it should be done. We understand that this recordation has now taken place. The reason. it was not recorded seems to this Court to be a logical one. There were testamentary beneficiaries named and while Mrs. Holladay [settlor] has now decided that she wants it recorded and it has been recorded, it would seem that the bank was in good faith in attempting to act in her best interest prior to the acquisition of the property and thereafter by not recording the entire trust instrument. The act by which the house was placed in trust was recorded and this certainly put all third parties on notice that there was a trust involved and that it had received title to the subject property."
ADMINISTRATION AS A PRUDENT MAN
R.S. 9:2090 provides that, "A trustee in administering a trust shall exercise such skill and care as a man of ordinary prudence would exercise in dealing with his own property." Settlor complains of the investment policy of the bank in retaining low yield municipal bonds in the trust for two or three years after settlor's income from the Texas trust had declined; and to the acceptance of settlor's home as a nonincome producing asset. These acts are regarded as a lack of skill in administering the trust.
The charges are without merit. The production of income is not the sole purpose of the trust. The financial security occasioned by the placing of settlor's home in the trust is a valid objective of the trust and was the consequence of settlor's own desire.
With regard to the substitution of high yield securities when the income from the Texas trust declined, we find, as suggested by counsel for appellees, that the test is not that the trustee must always have his judgment vindicated by the market, but that he exercise such skill and care as a man of ordinary prudence would exercise in dealing with his own property.
The evidence convinces us that the investment practices of the trustee, the constant review of the trust portfolio by the directors, are sound and comply with the above statutory provision.
IMPROPER DELEGATION OF TRUSTEE DUTIES
This charge relates to the action of appellees Ward and Craig, who individually are trustees of the Texas trust, in entering *889 into an agency agreement with appellee, Fidelity Bank, whereby the bank was appointed as an agent to perform ministerial duties in connection with the Texas trust. The trial judge found that even though the trust agreement provided for the appointment of an agent to assist in the affairs of the Texas trust, the net effect of such an appointment was to circumvent Texas law and to do indirectly that which could not be done directly. Texas law prohibited corporations such as the bank from serving as trustees of any trust containing Texas property unless the corporation is licensed to do business in Texas or unless the state in which the corporation is domiciled has a reciprocal agreement with Texas, Article 105A of the Texas Probate Code, V.A.T.S.
The Fidelity Bank is not qualified to do business in Texas, and Louisiana has not passed any reciprocal legislation to allow Texas banks or trust companies to serve in a like fiduciary capacity in Louisiana without qualifying to do business under our laws.
The evidence leaves no doubt but that the Fidelity Bank is in fact settlor's true trustee and the only reasons for the appointment of the bank officers as trustees of the Texas trust was to avoid the expense of qualifying to do business in the state of Texas.
No doubt the foregoing was inspired for settlor's benefit and in accordance with the provisions of the trust agreement, but we are unable to give our approval to the practice, notwithstanding the fact that Texas has not complained.
For the above reasons, the decision of the Nineteenth Judicial District Court in refusing to remove the trustees and the attorney for the trusts is correct, and the decision is in all respects affirmed. All costs are to be paid by plaintiff-appellant from the trust funds established by her.
Affirmed.
NOTES
[1] The nephews were later made parties to the suit as a result of an exception claiming that they were indispensable parties, but no action was sought as against them by settlor.
[2] R.S. 2089. A trustee shall give to a beneficiary upon his request at reasonable times complete and accurate information as to the nature and amount of the trust property, and permit him, or a person duly authorized by him, to inspect the subject matter of the trust, and the accounts, vouchers, and other documents relating to the trust.
|
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 23, 2008
No. 07-60043
Summary Calendar Charles R. Fulbruge III
Clerk
MONDRIC BRADLEY
Plaintiff-Appellant
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS; CHRISTOPHER EPPS,
Commissioner; LAWRENCE KELLY, Superintendent of the Classification
Department; ROY ROGERS, Warden, Area II; MAXENE LENCH; PAMELA
ROBINSON; EMMITT L SPARKMAN, Deputy Commissioner; UNKNOWN
LEWIS; A TAYLOR, Lieutenant
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:06-CV-205
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Mondric Bradley, Mississippi prisoner # 46406, appeals from the district
court’s dismissal of his civil-rights lawsuit, filed pursuant to 42 U.S.C. § 1983,
for failure to state a claim upon which relief may be granted. Bradley has filed
a motion to proceed in forma pauperis (IFP) on appeal, challenging the district
*
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. 07-60043
court’s certification that his appeal was not taken in good faith pursuant to
Baugh v. Taylor, 117 F.3d 197, 199-202 (5th Cir. 1997).
Bradley argues that (1) he was assigned to a prison housing facility that
is not appropriate for prisoners with his medical disabilities, thereby violating
his due process rights, and (2) his prison housing assignment was the result of
retaliation for filing a prior lawsuit. Because Bradley does not have a liberty
interest in his housing classification, he has failed to state a valid due process
claim on this basis. See Wilkerson v. Stalder, 329 F.3d 431, 435-36 (5th Cir.
2003); Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988). Moreover, his
conclusional allegations of retaliation are insufficient to state a claim. See
Moody, 857 F.2d at 258.
The district court’s certification that Bradley’s appeal is not taken in good
faith is upheld, Bradley’s motion for IFP on appeal is denied, and this appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
Bradley is hereby informed that the dismissal of this appeal as frivolous counts
as a strike for purposes of 28 U.S.C. § 1915(g), in addition to the strike for the
district court’s dismissal. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Bradley also earned a strike in Bradley v. Thompson, No. 4:98-cv-
00171-GHD (N.D. Miss. May 19, 1999). As Bradley now has accumulated at
least three strikes, he is barred from proceeding IFP in any civil action or appeal
filed while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; 28
U.S.C. § 1915(g) BAR IMPOSED.
2
|
112 F.Supp.2d 602 (2000)
BOARD OF TRUSTEES OF THE TOTAL COMMUNITY ACTION INC. EMPLOYEES' RETIREMENT PLAN AND TRUST
v.
PAN AMERICAN LIFE INSURANCE COMPANY
No. CIV. A. 00-1597.
United States District Court, E.D. Louisiana.
September 20, 2000.
*603 *604 Richard Anthony Goins, Goins & Aaron, New Orleans, LA, for Plaintiff.
Darryl J. Foster, Lemle & Kelleher, LLP, New Orleans, LA, for Defendant.
ORDER AND REASONS
LEMELLE, District Judge.
This matter is before the Court on the motion of the plaintiff, Board of Trustees of the Total Community Action Inc. Employee's Retirement Plan and Trust ("TCA"), to remand this case to the Civil District Court for the Parish of Orleans. In addition, the plaintiff seeks attorney's fees on the basis that defense counsel was aware that removal was improper. For the reasons that follow, the plaintiff's Motion to Remand is GRANTED and the case is REMANDED to the Civil District Court for the Parish of Orleans. In addition, the Motion for Attorney's Fees is DENIED.
On May 31, 2000 the defendants, Pan-American Life Insurance Company("Pan American"), filed a notice of removal with the Court. The Notice of Removal asserts that the Court has federal question jurisdiction over the instant case because TCA's lawsuit seeks benefits allegedly due under the Total Community Action Employee's Retirement Plan and Trust and as such is preempted by the Employee Retirement Income Security Act of 1974 ("ERISA").
On June 30, 2000, TCA filed a Motion to Remand the case to the Civil District Court for Orleans Parish. In TCA's memorandum in support of its motion, it contends that its state-based claims are not preempted because their petition seeks damages for breach of a group annuity contract and not benefits pursuant to the terms of an ERISA plan and therefore, removal is improper. On this basis, the Board maintains that remand is required because this Court lacks subject matter jurisdiction.
In response to TCA's motion to remand, Pan American argues that removal is grounded on the basis that the plan in question is an ERISA plan and that TCA funded the plan in whole or in part by purchase of the annuity contract at issue.
I. ERISA PREEMPTION
This Court agrees that the defendant has failed to satisfy its burden to avoid remand. Pursuant to statute, removal is generally available to the defendant in "any civil action brought in a State court of which the district courts of the United States have original jurisdiction" founded on the existence of a claim or right "arising under" federal law. 28 U.S.C. § 1441(a) and (b).
The Fifth Circuit has recognized that most errors regarding ERISA preemption stem from a failure to clearly distinguish between the concepts of "ordinary" and "complete preemption." The Court attempted to clarify the distinction in Hubbard v. Blue Cross & Blue Shield Association, 42 F.3d 942 (5th Cir.1995).
In Hubbard, the Fifth Circuit explained that, "... preemption of state law by federal law is a defense to a plaintiff's state law claim, and therefore cannot support federal removal jurisdiction under the `well-pleaded complaint' rule. `Complete preemption,' in contrast, exists when the federal law occupies an entire field, rendering any claim a plaintiff may raise necessarily federal in character." Id. at 945 n. 5(citing Franchise Tax Board v. Construction *605 Laborers Vacation Trust For Southern California, 463 U.S. 1,24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)).
Section 514 (a) of ERISA provides in relevant part:
... [t]he provisions of this subchapter ... shall supercede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title...
29 U.S.C. § 1144(a)(West 1999).
Section 514(a) provides for the ordinary preemption of "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" regulated by that statute. Preemption pursuant to section 514(a), however, merely results in the displacement of state law. Because ordinary preemption almost invariably arises as a defense, and thus does not appear on the face of the plaintiff's well-pleaded complaint, section 514(a) preemption typically cannot serve as the basis for removal jurisdiction. As the Supreme Court stated in Metropolitan Life Ins. Co. v. Taylor, "ERISA pre-emption, without more, does not convert a state claim into an action arising under federal law." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987).[1]
Thus, if a state law relates to an employee benefit plan, it is preempted by ERISA.[2] In this case, the Court addresses the scope of § 514(a) of ERISA which speaks expressly to the question of preemption. The issue is whether plaintiff's suit for breach of an annuity contract relates to an employee benefit plan within the meaning of § 514(a), and if so, whether any exception in ERISA saves it from preemption. Here, it is unnecessary to decide whether any provision saves plaintiff from ERISA because the plaintiff's claim does not relate to an employee benefit plan.
The question of whether a certain state action is preempted by federal law is one of congressional intent. Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1293 (5th Cir.1989)(citing Allis-Chalmers Corp., v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)). The Supreme Court has observed that the express preemption provisions of ERISA are deliberately expansive and designed to "establish pension plan regulation as exclusively a federal concern." Pilot v. Dedeaux, 481 U.S. 41, 46, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). A law relates to an employee benefit plan, in the normal sense of the phrase. Shaw v. Delta Air Lines, Inc., 463 U.S. 85 at 96-7, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983).[3]
*606 As broad as ERISA's preemptive scope has been stated to be, however, it has its limits. Hook v. Morrison Milling Co., 38 F.3d 776, 781 (5th Cir.1994). The Supreme Court noted in Shaw that "some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law relates to the plan." Hook, 38 F.3d at 781.(citing Shaw at 463 U.S. at 100, 103 S.Ct. 2890). The Court's warning in Shaw on the limits of ERISA preemption stem from the Court's view that ERISA's scope, though comprehensive, remains subject to the traditional principle of federalism. Hook, 38 F.3d at 781.
The Fifth Circuit has held that § 514(a) preempts a state law claim if that claim addresses an area of exclusive federal concern, such as the right to receive benefits under the terms of an ERISA plan. In addition, the claim must directly affect the relationship between traditional ERISA entities. Though the Fifth Circuit has not dealt specifically with the issue of whether a breach of an annuity contract used to fund a plan is preempted, the Court has held that ERISA preempts state law claims of fraud, breach of contract or negligent misrepresentation that have the effect of orally modifying the express terms of an ERISA plan and increasing plan benefits for participants or beneficiaries who claim to have been misled. See Corcoran v. United HealthCare Inc., 965 F.2d 1321, 1334 (5th Cir.1992).
In Pension Plan Employees of Battenfeld Grease & Oil Co. v. Principal Mutual Life Insurance Co., 62 F.Supp.2d 1055, 1055-56 (W.D.N.Y.1999), plaintiff brought claims alleging breach of fiduciary duty and breach of two annuity contracts which funded the ERISA plan. From the inception of the plan, all monies deposited pursuant to the contract were invested in a General Asset Fund, sometimes referred to as the General Account. Id. at 1057. The plaintiff sued on the basis of the termination options of the annuity contracts which were altered during the course of the contract. Id. at 1058. The plaintiff argued that ERISA does not preempt its state law contract claim since, "the breach of contract claim ... at issue has no connection to any question of plan structure or administration ... [the plaintiffs'] claim against Principal arises under a private contract, and not under the terms of an employee benefit plan." Id. at 1059.
The district court in Principal Mutual Life held that the breach of contract claim was not preempted by ERISA. They stated that "[A]lthough at first blush the breach of contract claim may appear to be an alternate enforcement mechanism, that claim is not dependant on the ERISA pension plan, but merely on the existence of the contracts at issue ..." Id. at 1060.
Thus, though ERISA's preemptive scope may be broad, it does not reach claims that do not involve the administration of plans, even though the plan may be a party to the suit or the claim relies on the details of the plan. Hook v. Morrison Milling Co., 38 F.3d 776, 784 (5th Cir. 1994).[4]
As in Principal Mutual Life, this Court's research shows that those cases which have preempted breach of contract claims did so in conjunction with suits alleging state-law causes of action for *607 breach of fiduciary duty, negligence, equitable estoppel, breach of contract, or fraud in regard to the determination of benefits. See McNeil v. Time Insurance Company, 205 F.3d 179 (5th Cir.2000); see also Transitional Hospitals Corp. v. Blue Cross and Blue Shield of Texas, 164 F.3d 952 (5th Cir.1999); see also Hubbard v. Blue Cross and Blue Shield Assoc., 42 F.3d 942, 946 (5th Cir.1995); see also Clancy v. Employers Health Ins. Co., 82 F.Supp.2d 589 (1999). The defendants have cited a number of cases which further illustrate this point.
In Pilot Life Ins. Co., v. Dedeaux, 481 U.S. 41, 43, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987), the Court held that ERISA preempts state law contract actions which asserted improper processing of a claim for benefits under an insured employee benefit plan. In Harris Trust and Savings Bank v. Salomon Smith Barney, Inc., ___ U.S. ___, ___, 120 S.Ct. 2180, 2187, 147 L.Ed.2d 187 (2000), the Court's holding applied to alleged violations of ERISA or of an ERISA plan.
Further, the defendant incorrectly asserts that the district court decision in Stonewall Jackson Memorial does not apply, while the brethren district court is not controlling, it is definitely persuasive. In Stonewall, the parties effectuated an agreement under which plan assets were invested through an annuity contract. Stonewall v. American United Life Ins., 963 F.Supp. 553, 556 (N.D.W.V.1997). The plaintiff brought suit in state court because the defendant amended the contract in derogation of the annuity contract's original terms. The court remanded the case to state court on the grounds that it was procedurally defective. They further stated that even if the defendants had followed the proper removal procedure, remand would still be appropriate because of lack of original jurisdiction. Id. at 559. The court stated:
The claims presently before the Court do not involve the attempted recovery of benefits by plan participants or beneficiaries under the terms of an ERISA plan and, therefore, do not fall directly within the ambit of Metropolitan Life, whose holding was expressly confined to benefit recovery claims.
Stonewall, 963 F.Supp. at 561. The court in Stonewall concluded that the claims within the plaintiff's complaint were not within the preemptive scope of ERISA.
In the present case, TCA seeks damages due to a breach of a group annuity contract. According to the contract, funds in a Deposit Account[5] "shall be and remain a part of the general funds of Pan-American." Plaintiff's Memorandum in Support of Motion to Remand. As in Principal Life and Stonewall, the breach of contract claim has no connection to any question of plan structure or administration. This lawsuit revolves around the issue of market value adjustments applied to a private group annuity contract and not under the terms of an employee benefit plan.
TCA's claim does not address a right to receive benefits under the terms of an ERISA plan or that Pan-Am improperly processed its claim for benefits. They seek damages only for the Board's alleged breach of the annuity contract. Further, the defendant has not shown that a finding for either party on the breach of the contract claim will affect the obligations owed to the others under the provisions of the ERISA plan.
In Pan Am's Opposition, it asserts for the first time that this Court has jurisdiction under § 502(a)(3). Section 502(a)(3) provides that a civil action under ERISA may be brought:
*608 (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan or (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provisions of this subchapter or the terms of the plan.
29 U.S.C. § 1132(a)(3)(West 1999).
The Supreme Court has provided that Congress clearly manifested an intent to make causes of action within the scope of the civil enforcement provisions of § 502(a) removable to federal court. Taylor, 481 U.S. at 65, 107 S.Ct. 1542. A prerequisite to this exercise of complete preemption jurisdiction, however, is that the state law claims are actually preempted by ERISA. Hartle v. Packard Electric, 877 F.2d 354, 355 (5th Cir.1989). The court must determine whether the substance of the claims falls within the scope of the federal statute. Stonewall, 963 F.Supp. at 560.
Defendant's claim under § 502(a)(3) does not avoid remand for the same reasons that it cannot survive § 514. The language of § 502(a)(3) applies to violations of an ERISA plan or enforcement as to the terms of a plan. Neither of these claims is present in the plaintiff's case.
Applying the above statutory enactments, congressional intent, and judicial precedents, this Court finds that plaintiff's state law contract action does not "relate to" an employee benefit plan and does not fall within the preemptive scope of § 514(a) or § 502(a).
II. ATTORNEY'S FEES
Plaintiff argues that attorney's fees should be granted in light of the defendant's "improvident" attempt to remove this case to federal court. The plaintiff contends that the defendant knew that removal was improper on the basis of the pleadings, the prior history of the case and the fact that Pan-Am had two counsel who unsuccessfully sought removal on these grounds in prior cases.
Defendant contends that it had a reasonable basis for removal, particularly its second claim under § 502(a)(3). They argue that the complexity of the law should be considered in determining whether attorney's fees should be granted. Section 1147(c) provides, in pertinent part:
An order remanding [a] case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.
28 U.S.C. § 1147(c)(West 1994).
The determination of whether attorney's fees should be granted is left to the court's discretion to be exercised based on the nature of the removal and the nature of the remand. Miranti v. Lee, 3 F.3d 925, 928 (5th Cir.1993). To determine whether removal jurisdiction existed, defense counsel had only to consider the complaint at the time the petition for removal was filed. Id. A court's discretion to award attorney's fees under § 1447(c) is triggered only if the court first finds that the defendant's decision to remove was legally improper. Id. at 929.
This Court agrees with the defendant in that, given the complexity of the law of federal preemption in ERISA cases as recognized by the Fifth Circuit, it had a reasonable basis to remove this matter to this Court. The prior cases the plaintiff cites regarding Pan-Am's knowledge of ERISA preemption are distinguishable from the instant case. Accordingly,
IT IS ORDERED that Plaintiff, Total Community Action Inc. Employee's Retirement Plan and Trust's Motion to Remand this case is GRANTED.
IT IS FURTHER ORDERED that Civil Action No. 00-1597 shall be remanded to the Civil District Court for the Parish of Orleans, State of Louisiana, the state court from which Civil Action No. 00-1597 originated.
*609 IT IS FURTHER ORDERED that Plaintiff's Request for Attorney's Fees is DENIED.
NOTES
[1] In contrast, complete preemption not only displaces substantive state law, but also "recharacterizes" preempted state law claims as "arising under" federal law for the purposes of determining federal question jurisdiction, typically making removal available to the defendant. Thus, complete preemption principally determines not whether state or federal law governs a particular claim, but rather whether that claim will, irrespective of how it is characterized by the complainant, be treated as "arising under" federal law. In sum, complete preemption "converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule," generally rendering the entire case removable to federal court at the discretion of the defendant. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987).
[2] The jurisprudence provides that ERISA preempts state law causes of action as they relate to employee benefit plans even though the cause of action arises under a "general" state law which in and of itself has no impact on employee benefit plans. Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1292 (5th Cir. 1989).
[3] The Supreme Court in Shaw v. Delta Air Lines, provided, "the bill that became ERISA originally contained a limited preemption clause, applicable only to state laws relating to the specific subjects covered by ERISA. The Conference Committee rejected these provisions in favor of the present language, and indicated that the section's preemptive scope was as broad as its language." Shaw v. Delta Air Lines, 463 U.S. 85, 98, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). The bill's legislative history clearly shows that Congress intended the ERISA preemption clause to have an expansive reach. Id.
[4] See also Hartle v. Packard Elec., 877 F.2d 354 (5th Cir.1989). In Hartle, an employee who sued his former employer for various tort claims arising out of his termination. He alleged that he had a fixed-term employment contract and therefore could not be fired at will. To prove his case, he relied on certain details in the employer's ERISA plan, to which he had contributed. The Fifth Circuit concluded that the employee's claim "does not in any manner implicate the federal regulation of employee benefit plans" because the employee neither sought benefits nor alleged improper processing. Id. at 356. Though an ERISA plan was at issue, the employee's claim was only "peripherally connected to the concerns addressed by ERISA." Id.
[5] A bank and its depositor have a creditor/debtor relationship. A deposit account is a credit maintained by the bank in favor of the depositor. In Re Housecraft Industries, USA, Inc., 155 B.R. 79, 86 (1993); see also, D. Greene, Deposit Accounts As Bank Loan Collateral Beyond Setoff to PerfectionThe Common Law Is Alive and Well, 39 Drake L.Rev. 259, n. 24-26 (1990).
|
189 Ga. App. 387 (1988)
375 S.E.2d 878
DENNY et al.
v.
NUTT.
76454.
Court of Appeals of Georgia.
Decided November 14, 1988.
Rehearing Denied November 28, 1988.
Gary C. Harris, for appellants.
King, Taylor & Stovall, James F. Stovall III, for appellee.
BENHAM, Judge.
We granted this interlocutory appeal to review the trial court's grant of partial summary judgment to appellee, which prevents appellants *388 from pursuing their claim for money damages in their real estate sales contract action.
Appellants Mr. and Mrs. Denny contracted to buy a home in Rockdale County from appellee Nutt. The sales contract provided that the Dennys would procure financing at 9 percent per annum, and they did procure a commitment for such financing. However, Nutt refused to consummate the sale, and the Dennys sued him for specific performance and for money damages for breach of contract. The breach of contract damages they seek to recover are fees paid to the mortgage company to procure the loan commitment, lost time from work, moving expenses, and the amount they would have to pay in excess of the 9 percent interest rate when and if the loan closes. The trial court granted partial judgment to appellee as to those items, and this interlocutory appeal followed.
1. Appellants contend that the trial court erred in disallowing damages for loan application costs, moving expenses, and loss of time from work. "It has long been the rule that the measure of damages for breach of a contract to sell land is the difference between the contract price and the fair market value of the land at the time of the breach. [Cits.]" Quigley v. Jones, 255 Ga. 33 (334 SE2d 664) (1985), affirming Quigley v. Jones, 174 Ga. App. 787 (332 SE2d 7) (1985). In Quigley, the trial court specifically denied recovery for utility bills, insurance coverage, ad valorem taxes, repair and maintenance costs, and loss of use of net sales proceeds, and both appellate courts upheld that ruling. The items of damage appellants seek to recover, while not identical to those sought and rejected in Quigley, are of the same kind and character, and so we hold that "in the absence of a clause in the parties' contract expressly authorizing such recovery," there can be no recovery of those damages for breach of a real estate sales contract. Quigley, 255 Ga. at 34. See also Dept. of Transp. v. Arapaho Constr. Co., 180 Ga. App. 341 (5) (349 SE2d 196) (1986).
2. Appellants also enumerate as error the trial court's grant of summary judgment to Nutt on the issue of increased interest costs, relying on this court's decision in Executive Constr. v. Geduldig, 170 Ga. App. 560 (317 SE2d 564) (1984), wherein the plaintiff was allowed to recover for increased interest costs he was required to pay due to the builder's failure to complete construction within the time specified in the contract. Appellants' brief cites numerous cases from foreign jurisdictions which also favor the granting of damages for increased interest rates. We do not find the cited authorities to be persuasive. The general rule applicable here is that "[d]amages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach [i.e., general damages] and such as the parties contemplated, when the contract was made, as the probable result of its breach [i.e., consequential damages]. *389 [Cits.]" Quigley v. Jones, supra, 255 Ga. 33. Executive Constr., supra, was decided in accordance with the general rule but is distinguished from the case before us, inasmuch as in Executive Constr., the plaintiff "produced evidence that the interest rate for loans in July when the contract should have been completed was one-half percentage point lower than in October when the loan was closed ... [and showed that it] would result in an increased cost of more than $16,000. There was also evidence from [the plaintiff] showing that his concern regarding rising interest rates was communicated to [the defendants] during the negotiation of the contract. It appears, therefore, that ... such damages were within the contemplation of the parties at the time the contract was made." Id., Division 1. In other words, the plaintiff showed that the damages he sought to recover were consequential damages contemplated by the parties when the contract was made. We have no such evidence in the record before us to support appellants' contention that they should be allowed to recover damages for the increase between the 9 percent interest rate specified in the contract and "the rate they will ultimately have to pay if the trial court grants specific performance." The contract here does make reference to the fact that appellants were to obtain a 9 percent loan, but there is no showing that the parties intended for damages to be awarded if the contract did not close and appellants were therefore required to obtain another loan at a higher interest rate. Although appellants claim in their brief that "the evidence will show that appellee was warned before appellants' commitment expired that his refusal to close would mean greatly increased interest rates for appellants," they either failed to produce such evidence below or failed to include it in the record on appeal, since we do not have it before us. It is the duty of the party asserting error to show it by the record, and assertions of evidence in briefs cannot satisfy this duty. York v. Miller, 168 Ga. App. 849 (310 SE2d 577) (1983). Since appellants have not satisfied their duty here, we must affirm the trial court's decision. Id.
Judgment affirmed. McMurray, P. J., and Pope, J., concur.
|
343 F.3d 552
Santos DE AZA-PAEZ, Petitioner, Appellant,v.UNITED STATES, Respondent, Appellee.
No. 02-2300.
United States Court of Appeals, First Circuit.
Submitted June 23, 2003.
Decided September 15, 2003.
Santos De Aza-Paez on brief pro se.
H.S. Garcia, United States Attorney, Sonia I. Torres, Assistant United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, on brief for appellee.
Before BOUDIN, Chief Judge, LYNCH and HOWARD, Circuit Judges.
PER CURIAM.
1
Defendant-appellant Santos de Aza-Paez (Santos) appeals from the denial of his petition pursuant to 28 U.S.C. § 2255. The district court denied the petition as untimely. We vacate and remand for the following reasons.
2
The undisputed facts are that Santos directed the president of a paralegal service to file his habeas petition, which arrived within the one-year deadline following the denial of his petition for certiorari. The petition was unsigned and accompanied by a memo from the paralegal service stating that Santos had requested that the agency forward his petition, the circumstances preventing Santos from sending the petition, and an averment that a signed petition would follow. The district court returned the petition to the paralegal service with notification that it was unsigned. Upon completion of his transfer between prisons, Santos filed the same petition and signed it. However, the filing date for this signed petition was one month after the one-year deadline. The district court determined that this petition was untimely.
3
Title 28 U.S.C. § 1654 provides that, in all courts of the United States, "the parties may plead and conduct their own cases personally or by counsel...." In addition, Rule 11(a) of the Federal Rules of Civil Procedure requires that all pleadings and motions be signed by the party or by the party's attorney. However, Rule 11(a) provides that an unsigned paper will not be stricken for lack of signature if it is corrected promptly.
4
Admittedly, until quite recently this court like a number of others took the view that an unsigned document such as a notice of appeal was a legal nullity, Rivera v. Riley, 209 F.3d 24, 27 (1st Cir.2000), and the district court's disposition accorded with that view. However, recent case law has viewed lack of signature as a technical error. See e.g., Becker v. Montgomery, 532 U.S. 757, 768, 121 S.Ct. 1801, 149 L.Ed.2d 983 (2001) (omission of signature on timely filed notice of appeal is a curable error which does not constitute a jurisdictional bar to pursuit of appeal); Casanova v. Dubois, 289 F.3d 142, 146 (1st Cir.2002) (omission of co-plaintiffs' signatures on notice of appeal is curable in light of Becker and the court's obligation to read pro se complaints generously).
5
In the instant case, the timely habeas petition was not signed by a pro se plaintiff or his attorney. However, there was no doubt about who was filing or what judgment was attacked. Furthermore, the initial filing, together with the signed petition, demonstrate the assent of Santos to the petition. As a result, the signed copy of the same petition, received a month after the deadline for a habeas filing had passed, cured the timely, but unsigned petition.
6
For these reasons, we conclude that Santos's petition pursuant to 28 U.S.C. § 2255 is timely. We therefore remand to the district court for consideration of the underlying claims in Santos's § 2255 petition.
7
Reversed and remanded.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7049
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANIF CHRISTOPHER WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. James P. Jones,
District Judge. (3:93-cr-00010-JPJ-2; 3:14-cv-80737-JPJ)
Submitted: November 18, 2014 Decided: November 21, 2014
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Anif Christopher Williams, Appellant Pro Se. Jennie L.M.
Waering, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anif Christopher Williams seeks to appeal the district
court’s order denying as successive his 28 U.S.C. § 2255 (2012)
motion. 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 Williams 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
2
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
3
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