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113 S.W.3d 9 (2000)
The STATE of Texas, Appellant,
v.
Jonathan R. CAMPBELL, Appellee.
No. 12-99-00335-CR.
Court of Appeals of Texas, Tyler.
March 31, 2000.
Discretionary Review Refused July 26, 2000.
*10 Dick Deguerin, Houston, for Appellant.
Alan Keith Curry, Houston, for Appellee.
*11 Panel consisted of RAMEY, Jr., C.J., HADDEN, J., and WORTHEN, J.
RAMEY, Chief Justice.
The State of Texas brings this appeal to challenge the granting of a motion to quash the indictment which charged Appellee, Jonathan Campbell, with the offense of abuse of official capacity. Appellant claims the trial court abused its discretion in dismissing the indictment for lack of specificity in its allegations and for failure to state an offense. We will affirm.
BACKGROUND
The Harris County grand jury indicted Appellee for the misdemeanor offense of abuse of official capacity. The indictment alleges in relevant part as follows:
[O]n or about and between January 7, 1999 and January 18, 1999, (the appellee) did then and there unlawfully, while a public servant, namely a police officer for the City of Houston, and with intent to obtain a benefit and harm and defraud another, intentionally and knowingly violate a law relating to his office and employment, namely Houston Police Department General Order No. 200-08(# 5) [Attention to Duty: Employees will be attentive to their duties at all times. Employees will perform all duties assigned to them.], as authorized pursuant to section 34-23 Code of Ordinances, City of Houston, namely, the defendant did fail to appear for work to perform his duties on Sunday, January 10, 1999, on Monday, January 11, 1999, and on Sunday, January 17th, 1999.
Appellee filed a motion to quash the indictment alleging that it failed to give him proper notice of the charges against him in that it did "not explain specifically how Defendant Campbell benefitted from his alleged absence on three separate days, or how he harmed and defrauded another as a result of his absence." Appellee then alleged that, if the State failed to clarify this ambiguity, Appellee could not adequately prepare a defense. At the hearing on the motion to quash, Appellee expanded his argument, without objection from the State, to include a contention that the indictment failed to charge a crime, claiming that violation of a general order of the police department was not included within the definition of a law as contained in the Penal Code. The State responded to this argument at the hearing and argues on appeal that a general order as alleged is a law as defined in Chapter 39 of the Penal Code.
DISCUSSION
1. Definitions.
A person commits the offense of abuse of official capacity if, as a public servant and with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly violates a law relating to the public servant's office or employment. See TEX. PEN. CODE ANN. § 39.02(a)(1) (Vernon 1999). "Law" in this context means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly imposes a duty on the public servant or governs the conduct of the public servant. TEX. PEN. CODE ANN. § 39.01(I)(A)(B) (Vernon 1999). "Law" is further defined as "the constitution or a statute of this State or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute." TEX. PEN. CODE ANN. § 1.07(a)(30) (Vernon 1999). "`Public servant' means a person, elected, selected, appointed, employed, or otherwise designated as ... an officer, employee, or agent of government." TEX. *12 PEN. CODE ANN. § 1.07(a)(41)(A) (Vernon 1999). "Harm" is defined as "anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested." TEX. PEN. CODE ANN. § 1.07(a)(25) (Vernon 1999). "Defraud" is not defined in the Penal Code.
2. The Standard of Review.
We review the trial court's ruling on the motion to quash under an abuse of discretion standard. Thomas v. State, 621 S.W.2d 158, 163 (Tex.Cr.App.1981). An abuse of discretion occurs when a trial court's decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree, Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App. 1990), and when the trial court's acts are arbitrary and unreasonable without reference to any guiding rules or principles. Id. at 380.
3. Lack of Notice.
Appellee contends that the indictment is insufficient for failure to allege how he was to receive a benefit or harm or defraud another. The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense. TEX. CODE CRIM. PROC. ANN. art. 21.04 (Vernon 1999). An indictment is deemed sufficient when it charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment. See TEX. CODE CRIM. PROC. ANN. art. 21.11 (Vernon 1999).
The law presumes a defendant to be innocent, which in turn mandates that the accused be presented an indictment from which he may fully ascertain the matters charged. Slayton v. State, 633 S.W.2d 934, 936 (Tex.App.-Fort Worth 1982, no pet.). To presume that an accused is guilty and therefore knows the details of his offense, and can thus prepare his defense, despite a vague indictment, is contrary to all proper principles of justice. Id. Further, an indictment which fails to allege criminal conduct is subject to being quashed. State v. Williams, 780 S.W.2d 891, 894 (Tex.App.-San Antonio 1989, no pet.).
If the manner or means by which an act is done makes an otherwise innocent act a criminal offense, it is necessary to allege the fact showing the manner or means which makes the act a criminal offense. Ex parte Holbrook, 609 S.W.2d 541, 543 (Tex.Cr.App.1980); see also Posey v. State, 545 S.W.2d 162, 163 (Tex.Cr.App. 1977). The defendant, upon timely exception, may be entitled to a specific allegation of the manner or means utilized in commission of the offense in order to bar subsequent prosecution for the same offense and give him precise notice of the offense with which he was charged. Castillo v. State, 689 S.W.2d 443, 449 (Tex.Cr. App.1985) (failure to allege the manner and means used to start a fire in an arson case); Doyle v. State, 661 S.W.2d 726, 730 (Tex.Cr.App.1984) (failure to allege the manner and means used to communicate the threat in a retaliation case); Miller v. State, 647 S.W.2d 266, 267 (Tex.Cr.App. 1983) (failure to more specifically allege "damage and destroy" in criminal mischief case); Cruise v. State, 587 S.W.2d 403, 405 (Tex.Cr.App.1979) (failure to allege manner and means of causing bodily injury in an aggravated robbery); Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978) (failure *13 to allege more specifically the manner and means of "torture" in cruelty to animals allegation).
Generally, pleading in the language of the statute which creates and defines the offense charged is sufficient. Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App. 1981); see also Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1979). If the statutory language is completely descriptive of the offense so as to inform the accused of the charge against them, tracking the statutory language would be sufficient; however, if the statutory language is not completely descriptive so that greater particularity is required, then merely tracking the statute would be insufficient. See Haecker; Doyle; see also Amaya v. State, 551 S.W.2d 385 (Tex.Cr.App.1977); Miller v. State, 677 S.W.2d 737, 741-42 (Tex.App.-Corpus Christi 1984, no pet.).
Lindsay v. State, 588 S.W.2d 570 (Tex. Cr.App.1979) is instructive in the case before us. Citing Amaya and Haecker, the Court of Criminal Appeals held an indictment alleging conspiracy to commit capital murder to be insufficient and that the accused was entitled to know the specific acts constituting the basis of her agreement to "engage in conduct that would constitute [conspiracy]." 588 S.W.2d at 572. The Court further held that the language "capital murder for remuneration and the promise of remuneration" was not factually sufficient to apprise the accused of what her role was or her specific involvement. Id.
In the case before us, failing to go to work is not inherently criminal and it is the failure to do so with intent to obtain a benefit or harm or defraud another which raises such an act to a criminal level. The State cites us to Neal v. State, 689 S.W.2d 420 (Tex.Cr.App.1984) for the proposition that evidentiary matters need not be pled in the indictment. Neal is inapposite in this case because it construed the old Section 39.01 of the Penal Code which made misapplication of state property a crime. See TEX. PEN. CODE ANN. § 39.01(a)(2) (Vernon 1983). In Neal, the defendant was accused of misapplication of a treasury warrant belonging to the State of Texas. 689 S.W.2d at 423. Under the facts of that case, the harm was apparent from the face of the indictment, which was sufficient to allege an offense. Id. A similar distinction appears in Fisher v. State, 803 S.W.2d 828 (Tex.App.-Dallas 1991, pet. ref'd), a case involving securing execution of a document by deception. As in Neal, the harm was apparent from the face of the indictment. Id. at 832.
However, in the case before us, the harm of taking a day off from work is not apparent from the face of the indictment. The manner and means by which someone was harmed is essential to permit Appellee to prepare a defense. Such allegations should be contained within the charging instrument and not left to the speculation of the defendant. Because the indictment leaves open to speculation how Appellee is alleged to have harmed another, the allegations are not "factually sufficient to apprise the accused of what [he was required to defend against]." Lindsay; Haecker; Amaya. "The facts constituting an offense denounced by [Section 39.02 are not] alleged so that the conclusion of law [as to harm or fraud] may be arrived at from the facts stated." Posey v. State, 545 S.W.2d at 163.
Based on all of the foregoing, we hold that the trial court did not abuse its discretion in granting the motion to quash. Appellant's issue is overruled.[1]
*14 The judgment of the trial court is affirmed.
NOTES
[1] Because of our disposition on the issue of notice, we do not reach the issue of whether the failure to follow a general order of the Houston police chief is a violation of a "law" as contemplated by the statute.
|
Case: 09-60333 Document: 00511084713 Page: 1 Date Filed: 04/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 19, 2010
No. 09-60333
Summary Calendar Lyle W. Cayce
Clerk
LORENA JANNETTE DERAS-ALVAREZ,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 787 304
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Lorena Jannette Deras-Alvarez (Deras) has filed a petition for review from
the denial by Board of Immigration Appeals (BIA) of her request for asylum,
withholding of removal, and derivative asylum for her two minor daughters,
Katheryne Graciela Vasquez-Deras and Erika Yaneth Vasquez-Deras. Deras
and her daughters are natives and citizens of El Salvador who illegally entered
the United States in 2006. They admitted removability, and Deras sought
asylum and withholding of removal.
*
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: 09-60333 Document: 00511084713 Page: 2 Date Filed: 04/19/2010
No. 09-60333
Deras based her claims on two incidents of harassment by the Mara
Salvatrucha gang (MS or maras) who were attempting to force Deras’s babysitter
to rejoin the gang. In one incident the babysitter was allegedly beaten and one
of Deras’s daughters was knocked to the ground. In the second incident, maras
allegedly invaded and vandalized Deras’s house and threatened her and her
children. The BIA held that Deras failed to demonstrate that any alleged
persecution was on account of her membership in a particular, recognized social
group, as required to establish the availability of asylum.
On a petition for review, we review legal issues de novo but will otherwise
reverse a BIA’s decision “only when the evidence is so compelling that no
reasonable fact finder could fail to find in favor of the petitioner. Kane v. Holder,
581 F.3d 231, 236 (5th Cir. 2009) (internal quotation marks and citation
omitted); Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). To obtain
asylum, Deras was required to show a nexus between likely persecution and a
statutory ground for relief, such as race, religion, or membership in a particular
social group. See Tamara-Gomez v. Gonzales, 447 F.3d 343, 350-51 (5th Cir.
2006). To establish membership in a particular social group, Deras was required
to show that she “was a member of a group of persons that share a common
characteristic that they either cannot change or should not be required to change
because it is fundamental to their individual identities or consciences.”
Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 352 (5th Cir. 2002).
The maras’ threats against Deras and her children were incidental to their
harassment of the babysitter. Deras’s relationship with the babysitter was
terminated and is thus not an immutable characteristic. In addition, an
antagonistic relationship with gangs or the harboring of anti-gang values does
not establish a particular social group. Further, Deras and her daughters do not
even belong to the putative social group identified in her brief as “the young
males of Central America who must be seen as a target group for gang
recruiters.”
2
Case: 09-60333 Document: 00511084713 Page: 3 Date Filed: 04/19/2010
No. 09-60333
Deras has failed to show legal error or any evidence so compelling that this
court must render a decision in her favor. See Kane, 581 F.3d at 236. Deras
does not discuss withholding of removal. In any event, any claim for withholding
of removal fails because Deras cannot show a “clear probability” that she would
be persecuted based on a protected ground, such as membership in a particular
social group. See Kane, 581 F.3d at 238-39.
The petition for review is DENIED.
3
|
[Cite as Rogers v. Credit Acceptance Corp., 2013-Ohio-1097.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
TONJA V. ROGERS C.A. No. 11CA010141
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CREDIT ACCEPTANCE CORP, et al. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 07CV154056
DECISION AND JOURNAL ENTRY
Dated: March 25, 2013
BELFANCE, Presiding Judge.
{¶1} Credit Acceptance Corporation appeals the trial court’s denial of its motion to
stay proceedings pending arbitration and to compel arbitration. For the reasons set forth below,
we reverse.
I.
{¶2} On December 10, 2007, Tonja Rogers filed a complaint against Credit
Acceptance, alleging violations of the Ohio Retail Installment Sales Act and Consumer Sales
Practice Act and seeking to be a class representative in the suit against Credit Acceptance.1 The
case was removed to federal court but was subsequently remanded. Following the remand,
Credit Acceptance filed a “Motion to Dismiss or in the Alternative to Compel Arbitration and
Stay All Proceedings Against [It]” (“Motion to Arbitrate”). The trial court ordered the parties to
conduct discovery in relation to the arbitration agreement and set a briefing schedule. During
1
Ms. Rogers’ complaint also named two other defendants, but she voluntarily dismissed
them prior to this appeal.
2
discovery, Credit Acceptance produced an account log documenting the history of Ms. Rogers’
account. However, Credit Acceptance failed to provide explanations for the many acronyms
used in the log, making it difficult to understand. Twelve days before Ms. Rogers’ brief in
response to the Motion to Arbitrate was due, she filed a motion to set a new briefing schedule
and to reschedule the hearing on the Motion to Arbitrate, explaining that she was still waiting for
Credit Acceptance to provide translations of the acronyms.
{¶3} The case had no activity for two years before the trial court granted Ms. Rogers’
motion. On September 7, 2011, it issued a journal entry ordering Credit Acceptance to
“promptly provide to [Ms. Rogers’] counsel an understandable and comprehensive translation of
[the log.]” Fifty days after the trial court issued its order, Credit Acceptance had not provided
the translation. Accordingly, Ms. Rogers moved for the trial court to sanction Credit Acceptance
for failing to promptly provide the translation. In her motion, Ms. Rogers asked the trial court to
deny Credit Acceptance’s Motion to Arbitrate as a sanction. After Ms. Rogers moved for
sanctions, Credit Acceptance submitted a translation of the log. The trial court ruled on Ms.
Rogers’ motion and found that Credit Acceptance had failed to comply with its order to promptly
provide the translation. It determined that a proportionate sanction would be to grant Ms.
Rogers’ motion and deny the Motion to Arbitrate.
{¶4} Credit Acceptance has appealed, raising a single assignment of error for review.
II.
JURISDICTION
{¶5} We initially address Ms. Rogers’ challenge to this Court’s jurisdiction. She
argues, that, while the trial court denied Credit Acceptance’s Motion to Arbitrate, which would
typically render the order final and appealable pursuant to R.C. 2711.02(C), it did so as a
3
discovery sanction and, therefore, Credit Acceptance has not appealed from a final, appealable
order.
{¶6} R.C. 2711.02 provides, in pertinent part:
(B) If any action is brought upon any issue referable to arbitration under an
agreement in writing for arbitration, the court in which the action is pending, upon
being satisfied that the issue involved in the action is referable to arbitration under
an agreement in writing for arbitration, shall on application of one of the parties
stay the trial of the action until the arbitration of the issue has been had in
accordance with the agreement, provided the applicant for the stay is not in
default in proceeding with arbitration.
(C) * * * an order under division (B) of this section that grants or denies a stay of
a trial of any action pending arbitration, including, but not limited to, an order that
is based upon a determination of the court that a party has waived arbitration
under the arbitration agreement, is a final order and may be reviewed, affirmed,
modified, or reversed on appeal pursuant to the Rules of Appellate Procedure and,
to the extent not in conflict with those rules, Chapter 2505. of the Revised Code.
R.C. 2711.02(C) requires the order to be “an order under [R.C. 2711.02(B)] that grants or denies
a stay of a trial of any action pending arbitration[]” before becoming final. The issue before us is
whether the trial court’s order, which in effect denied Credit Acceptance’s motion to stay, albeit
as a sanction, falls within the purview of the statute. In examining the language employed by the
General Assembly, it is evident that the reference to “including, but not limited to[]” is designed
to make the provision inclusive rather than limited. See R.C. 2711.02(C). Here, Ms. Rogers
filed a motion styled as “PLAINTIFF’S MOTION FOR AN ORDER DENYING
DEFENDANTS’ ARBITRATION MOTION[.]” In its order, the trial court indicated that
“Plaintiff’s motion is hereby GRANTED.” In other words, it granted Ms. Rogers request to deny
Credit Acceptance’s Motion for Arbitration, and, thus, when it granted Ms. Rogers motion, it in
effect denied Credit Acceptance’s Motion for Arbitration. It is evident the trial court’s reason for
granting Ms. Rogers’ motion was to sanction Credit Acceptance’s failure to timely provide
information relative to the issue of enforceability of the arbitration clause. However, we are not
4
convinced that the trial court’s basis for granting the request to deny the motion for arbitration
alters the result. Given the inclusive nature of R.C. 2711.02(C), we conclude that the trial
court’s order is a final, appealable order under the statute because it effectively denied Credit
Acceptance’s motion to arbitrate when it granted Ms. Rogers’ motion to deny Credit
Acceptance’s Motion for Arbitration. Accordingly, we conclude that we have jurisdiction of this
appeal pursuant to R.C. 2711.02(C).
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY DENYING DEFENDANTS’ ARBITRATION
MOTION AS A SANCTION FOR CREDIT ACCEPTANCE’S ALLEGED
DELAY IN PRODUCING THE TRANSLATED ACCOUNT LOG
“PROMPTLY” AS REQUIRED BY PRIOR DISCOVERY ORDER.
{¶7} Credit Acceptance argues that the trial court erred in denying its motion to compel
arbitration as a discovery sanction because it had complied with the court’s order. It also argues
that, even if its behavior violated the court’s order, the sanction was disproportionate to the
violation.
{¶8} This Court reviews a trial court’s decision to impose sanctions for an abuse of
discretion. Fuline v. Green, 9th Dist. Nos. 25704 & 25936, 2012-Ohio-2749, ¶ 6. An abuse of
discretion implies that the trial court’s decision is arbitrary, unreasonable, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). We will not “disturb the judgment of
the trial court unless the degree of the sanction is disproportionate to the seriousness of the
infraction under the facts of the case.” (Internal quotations and citations omitted.) Morgan
Adhesives Co. Inc. v. Datchuk, 9th Dist. No. 19920, 2001 WL 7383, *3 (Jan. 3, 2001). Factors to
consider when determining whether a sanction is proportionate to the seriousness of the
infraction include the following:
5
the history of the case; all the facts and circumstances surrounding the
noncompliance, including the number of opportunities and the length of time
within which the faulting party had to comply with the discovery or the order to
comply; what efforts, if any, were made to comply; the ability or inability of the
faulting party to comply; and such other factors as may be appropriate.
(Internal quotations and citations omitted.) Id.
{¶9} We initially note that it is not clear that the trial court can refuse to enforce an
arbitration clause as a sanction for a discovery violation although there is statutory language that
arguably allows for such action. See R.C. 2711.02(B) (“* * * provided the applicant for the stay
is not in default in proceeding with arbitration”). Neither party has directed this Court to any
authority on this point, nor has our own research uncovered any in Ohio. But see Georgia Cash
Am., Inc. v. Strong, 286 Ga.App. 405, 405 (2007) (upholding a trial court’s decision to strike the
defendants’ arbitration defenses as a sanction for a discovery violation). However, we do not
need to resolve this question because we conclude that, even assuming the trial court could issue
such a sanction, the sanction was inappropriate in this case absent further inquiry as to all the
facts and circumstances.2
{¶10} Before a court may sanction a party for a discovery violation, the court must have
issued an order to compel discovery, and, thus, we begin by looking at the trial court’s order.
See Powell v. Wisener, 9th Dist. No. 22023, 2004-Ohio-4459, ¶ 7 (“[A]s no motion to compel
discovery was filed in the trial court and no order compelling discovery was ever entered, the
2
Ideally, in the face of an ambiguous order, the trial court would hold a hearing to allow
the party allegedly in violation to set forth its interpretation of the language of the order as well
as facts and circumstances that would have been unknown to the court affecting the party’s
ability to comply with the order. A hearing would also allow the trial court to assess credibility
and to properly determine whether a party’s noncompliance was a result of willfulness or bad
faith.
6
trial court lacked the authority to impose the sanctions contained in Civ.R. 37(B).”). On
September 7, 2011, more than two years after Ms. Rogers filed her “Motion to Reset Briefing
Schedule and Hearing[,]” the trial court granted her motion and also ordered that “[Credit
Acceptance] shall promptly provide to [Ms. Rogers’] counsel an understandable and
comprehensive translation of Defendants’ documents * * *.” The trial court also ordered Ms.
Rogers to inform the court when she received the translation, required Ms. Rogers file a response
to Credit Acceptance’s motion to stay proceedings and compel arbitration five weeks after
receiving the translation, and declared that it would set a date for a hearing after the time for
Credit Acceptance to file a reply brief had expired. Notably absent from the trial court’s order is
a specific deadline for Credit Acceptance to complete the translation. Furthermore, every
deadline in the order was contingent on whatever date Ms. Rogers received the translation. As
such, no hearing date was set for the Motion to Arbitrate. The only indication in the order of
when the translation needed to be completed and provided to Ms. Rogers was the word
“promptly[.]”
{¶11} We acknowledge that a trial court has broad discretion in managing discovery
issues and determining appropriate sanctions. Nevertheless, a court must look at many factors
when determining whether a certain sanction is appropriate. See Datchuk, 2001 WL 7383, at *3.
In light of the unique trajectory of this case, we cannot say that the trial court’s imposition of
sanctions absent a hearing or some further inquiry into all of the facts and circumstances was
reasonable. First, the matter had been pending in the court for several years, when the trial court
issued its order on September 7, 2011. Up to that point, Ms. Rogers had merely sought an order
extending the deadline for submission of a brief in opposition. Credit Acceptance opposed Ms.
Rogers’ motion, arguing that the log was irrelevant. Upon issuing the September 7, 2011 order,
7
the trial court did not provide a date certain for compliance but rather directed Credit Acceptance
to “promptly” provide the log. Unfortunately, the absence of a date certain created inherent
ambiguity in the order. Moreover, the trial court’s entry did not employ language indicating
some urgency for immediate compliance. In fact, the order did not set any specific deadlines;
rather, it made every deadline relative to the date Credit Acceptance furnished the translation to
Ms. Rogers. In essence, absent a specific compliance date, or use of stronger language such as
“immediately,” the word “promptly” was in the eye of the beholder.
{¶12} In addition, prior to the trial court’s issuance of its September 7, 2011 order, a
motion to compel had not been filed. Instead, as noted above, Ms. Rogers merely requested the
court reset the briefing schedule and the hearing on Credit Acceptance’s motion to compel
arbitration. By its very nature, a motion to compel acts as notice to the nonmoving party that
sanctions could result, and a trial court’s order granting a motion to compel would contain some
indication that consequences will follow if the discovery is not provided. However, in this case,
Credit Acceptance did not have that preliminary warning. Instead, the September 7, 2011 order
forming the basis of the sanction was the trial court’s ruling upon a motion to extend time for
briefing. This order was more akin to a pretrial order than an order to compel. Noticeably
absent was any warning of the potential consequences of failing to “promptly” provide the
translation log. Thus, when Ms. Rogers complained after 50 days that the log had not been
provided, given the circumstances and the inherent ambiguity in the order, the trial court should
have conducted further inquiry prior to imposing sanctions. In so doing, the trial court could
have been fully apprised of all of the facts and circumstances leading up to Credit Acceptance’s
eventual provision of the log. We emphasize that we express no opinion as to the propriety or
extent of sanctions that may be imposed upon further inquiry by the trial court; rather, we hold
8
that, prior to imposing any sanctions under the circumstances presented in this case, the trial
court must conduct a full inquiry.
{¶13} Accordingly, for the reasons set forth above, Credit Acceptance’s assignment of
error is sustained.
III.
{¶14} Credit Acceptance’s assignment of error is sustained. The judgment of the Lorain
County Court of Common Pleas is reversed, and the matter is remanded for further proceedings
consistent with this opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
EVE V. BELFANCE
FOR THE COURT
9
WHITMORE, J.
CONCURS.
CARR, J.
DISSENTING.
{¶151} I respectfully dissent. I disagree with the majority that the matter must be
remanded to the trial court for further inquiry into the issue of sanctions. I would merely reverse
the trial court’s judgment which effectively denied Credit Acceptance Corporation’s motion to
stay proceedings and compel arbitration. Moreover, I do not agree with the majority opinion that
the statutory language may arguably authorize such a sanction.
APPEARANCES:
JAMES OH, RUSSELL KORNBLUT, and GREGGORY ELZEY, Attorneys at Law, for
Appellant.
THOMAS THEADO, Attorney at Law, for Appellee.
JACK MALICKI, Attorney at Law, for Appellee.
DUSTIN L. LEWIS, Attorney at Law, for Appellee.
|
Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
6-14-2002
Grayson v. Mayview State Hosp
Precedential or Non-Precedential: Precedential
Docket No. 99-3980
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
Recommended Citation
"Grayson v. Mayview State Hosp" (2002). 2002 Decisions. Paper 360.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/360
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
No. 99-3980
_______________
NORMAN GRAYSON,
Appellant
v.
MAYVIEW STATE HOSPITAL; ALLEGHENY COUNTY JAIL; CAMP HILL
PRISON
*United States of America,
Intervenor
*(Pursuant to Court Order dated 4/4/01)
________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 99-479)
District Judge: Honorable Gary L. Lancaster
________________
Argued: April 6, 2001
Before: SCIRICA, AMBRO and GIBSON, Circuit Judges**
(Filed: June 7, 2002)
ORDER AMENDING SLIP OPINION
AMBRO, Circuit Judge
It is now ordered that the Slip Opinion in the above case filed June 7, 2002,
be amended as follows:
On Page 6, paragraph 2, line 11, replace the word "Oklahoma" with the
word "Brown", so that the full cite reads: See Bd. Of County Comm’rs of Bryan County v.
Brown, 520 U.S. 397, 404 (1997);
and,
On page 14, footnote 16, line 7, delete "S14408-01, *" so that the cite
reads: Lopez, 203 F.3d at 1130 n.11 (citing 141 Cong. Rec. S14414 (1995) (emphasis
added)).
By the Court,
/s/ Thomas L. Ambro
Circuit Judge
Dated: June 14, 2002
|
Affirmed and Memorandum Opinion filed August 31, 2010.
In The
Fourteenth Court of
Appeals
___________________
NO. 14-09-01031-CV
___________________
Osaka Japanese Restaurant, Inc.,
Appellant
V.
Osaka Steakhouse Corporation and Yu Qing Weng,
Appellees
On
Appeal from the 61st District Court
Harris County,
Texas
Trial Court Cause No. 2009-68840
MEMORANDUM OPINION
In this accelerated interlocutory appeal, appellant,
Osaka Japanese Restaurant, Inc., challenges the trial court’s denial of its
application for a temporary injunction.[1]
We affirm.
Factual and Procedural
Background
Appellant
operates two restaurants under the name Osaka Japanese Restaurant. Appellant’s
original location opened in 2001. That same year appellant filed its assumed
name record with both Harris County and the Texas Secretary of State. Other
than the name, which suggests appellant’s restaurants feature Japanese cuisine,
the only thing the record on appeal reveals about the food and décor of appellant’s
restaurants is that at least one of appellant’s locations has a sushi bar and
tables. The appellate record also reveals that both of appellant’s restaurants
are located in inner Houston, inside the 610 Loop.
In
October 2009, one of appellees, Osaka Steakhouse Corporation (“Osaka
Steakhouse”), opened a restaurant named Osaka Japanese Steak and Sushi, at
15242 Wallisville Road in northeast Harris County, near the Beltway 8 Loop, at
least twenty miles from either of appellant’s restaurants. The appellate
record reveals little about the nature of the restaurant beyond its name and
the fact the waitstaff wears custom-designed uniforms.
Once
appellant discovered that Osaka Japanese Steak and Sushi had opened, appellant
filed suit asserting that appellees were engaging in unfair competition and
fraudulent behavior by operating a restaurant using the word “Osaka” in its
name. According to appellant, due to its longtime use of the word “Osaka” in
its restaurant’s name, it had a protected property interest in it, which
appellees were violating. In its lawsuit, appellant sought both injunctive
relief and damages.
On November 6, 2009, the
trial court heard appellant’s request for a temporary injunction. Xue Yi Li,
appellant’s owner, testified regarding appellant’s alleged damages. The only
thing Li mentioned during her testimony was a loss of customers, which she
attributed to the opening of Osaka Steakhouse’s restaurant. However, while Li
blamed Osaka Steakhouse’s restaurant for her loss of business, she testified
that, in her discussions with her customers, they made reference to the opening
of a Japanese steakhouse at a Bellaire location, not one located on Wallisville
Road. On November 13, 2009, the trial court signed an order denying
appellant’s request for a temporary injunction. The trial court concluded that
appellant did not establish (1) the existence of a likelihood of confusion
among the names of the parties’ restaurants; or (2) that it would suffer
irreparable harm without injunctive relief. This interlocutory appeal
followed.
Discussion
While appellant raises
three issues on appeal, in all of them appellant generally challenges the trial
court’s denial of its request for a temporary injunction and we therefore
address them together.
I. The
standard of review and applicable law.
A
trial court has broad discretion in deciding whether to deny a temporary
injunction. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).
We review the denial of a temporary injunction for a clear abuse of discretion
without addressing the merits of the underlying case. Walling v. Metcalfe,
863 S.W.2d 56, 58 (Tex. 1993). We will uphold the trial court’s determination
against issuing injunctive relief unless the trial court’s action was so
arbitrary that it exceeded the bounds of reasonable discretion. Butnaru,
84 S.W.3d at 204. In reviewing the trial court’s exercise of discretion, the
appellate court must draw all legitimate inferences from the evidence in the
light most favorable to the trial court’s decision. EMS USA, Inc. v. Shary,
309 S.W.3d 653, 657 (Tex. App.—Houston [14th Dist.] 2010, no pet.). When, as
here, no findings of fact or conclusions of law are filed, the trial court’s
determination of whether to grant or deny a temporary injunction must be upheld
on any legal theory supported by the record. Id.
An
applicant for a temporary injunction seeks extraordinary relief. In re Tex.
Natural Res. Conservation Comm’n, 85 S.W.3d 201, 204 (Tex. 2002). The sole
issue before the trial court in a temporary injunction hearing is whether the
applicant may preserve the status quo of the litigation’s subject matter
pending trial on the merits. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.
1978). The status quo is the last actual, peaceable, noncontested status which
preceded the pending controversy. RP & R, Inc. v. Territo, 32
S.W.3d 396, 402 (Tex. App.—Houston [14th Dist.] 2000, no pet.) To obtain a
temporary injunction, the applicant must plead a cause of action against the defendant
and show both a probable right to recover on that cause of action and a
probable, imminent, and irreparable injury in the interim. EMS USA, Inc.,
309 S.W.3d at 657 (citing Butnaru, 84 S.W.3d at 204). To show a
probable right of recovery, the applicant must plead and present evidence to
sustain the pleaded cause of action. Id. An injury is irreparable when
the injured party cannot be adequately compensated in damages or if damages
cannot be measured by any certain pecuniary standard. Id. An existing
legal remedy is adequate if it is as complete, practical, and efficient to the
ends of justice and its prompt administration as is equitable relief. Hilb,
Rogal & Hamilton Co. of Texas v. Wurzman, 861 S.W.2d 30, 32 (Tex.
App.—Dallas 1993, no writ.). There is no adequate remedy at law if damages are
incapable of calculation or if a defendant is incapable of responding in
damages. Id. The party applying for a temporary injunction has the
burden of production, which is the burden of offering some evidence that
establishes a probable right to recover and a probable interim injury. Dallas
Anesthesiology Associates, P.A. v. Texas Anesthesia Group, P.A., 190 S.W.3d
891, 897 (Tex. App.—Dallas 2006, no pet.). If an applicant does not discharge
its burden, it is not entitled to injunctive relief. Id.
II. Appellant did not
establish that the trial court abused its discretion when it denied appellant’s
request for a temporary injunction.
As already mentioned,
the applicant for a temporary injunction bears the burden to present evidence
to the trial court sufficient to demonstrate a probable, imminent, and
irreparable injury. Here, the only evidence on appellant’s alleged damages was
Li’s testimony that her restaurant had experienced a decline in business.
While Li blames the opening of Osaka Steakhouse’s restaurant for that alleged
loss of business, she also testified that her customers mentioned a Japanese
steakhouse at a location different from Osaka Steakhouse’s restaurant located
on Wallisville Road. Based on this testimony, the trial court, as the
factfinder, could have determined that any loss of business experienced by
appellant was not caused by the opening of the Osaka Steakouse restaurant. See
EMS USA, Inc, 309 S.W.3d at 657. In addition, based on Li’s testimony
regarding appellant’s alleged loss of business, the trial court could have
concluded that monetary damages constituted an adequate legal remedy if the
appellant prevailed at trial. See Daily Int’l Sales Corp. v. Eastman
Whipstock, Inc., 662 S.W.2d 60, 64 (Tex. App.—Houston [1st Dist.] 1983, no
writ).[2]
Possibly suspecting that the trial court might conclude monetary damages were
an adequate remedy for appellant’s alleged lost business, appellant’s counsel
argued that since appellees’ restaurant was a new business, it might be
incapable of responding in damages. However, appellant offered no evidence on
appellees’ financial status to support that contention. While an applicant for
a temporary injunction need not prove that it will win upon a final trial on
the merits, it still has the burden to show a probable right to final recovery
and an irreparable injury. Hilb, Rogal & Hamilton Co. of Texas, 861
S.W.2d at 32–33. In addition, a trial court possesses broad discretion to
determine whether the applicant has met that burden. Id. at 33. We
conclude that, when viewed in the light most favorable to the trial court’s
order, the evidence supports the trial court’s refusal to grant appellant
injunctive relief. Therefore, we conclude the trial court did not abuse its
discretion when it denied appellant’s application for a temporary injunction. We
overrule appellant’s issues on appeal.[3]
III. Appellees’
Motion for Sanctions on Appeal
Appellees
included in their appellate brief a motion for sanctions arguing that
appellant’s appeal is frivolous and that appellant should be sanctioned
pursuant to Rule 45 of the Texas Rules of Appellate Procedure. In determining
whether an appeal is frivolous, we review the record from the appellant’s
perspective and decide whether the appellant had reasonable grounds to believe
that the trial court’s order could be reversed. Smith v. Brown, 51
S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Whether to
grant sanctions for a frivolous appeal is a matter of discretion that an
appellate court exercises with prudence and caution and only after careful
deliberation in truly egregious circumstances. Goss v. Houston Cmty.
Newspapers, 252 S.W.3d 652, 657 (Tex. App.—Houston [14th Dist.] 2008, no
pet.).
When
dealing with a motion for sanctions for the filing of a frivolous appeal, we
consider whether: (1) appellant failed to present a complete record; (2)
appellant raised issues for the first time on appeal, even though preservation
of error was required in the trial court; (3) appellant failed to file a
response to a request for appellate sanctions; and (4) appellant filed an
inadequate brief. Tate v. E.I. Du Pont de Nemours & Co., 954 S.W.2d
872, 875 (Tex. App.—Houston [14th Dist.] 1997, no pet.). This court has
determined that in order to assess sanctions, we must find the appeal to be
both objectively frivolous and subjectively brought in bad faith or for the
purpose of delay. See Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 66
(Tex. App.—Houston [14th Dist.] 1998, no pet.). Even though appellant did not
file a response to appellees’ motion for sanctions and we overruled appellant’s
issues on appeal, it does not appear from the record that appellant’s appeal
was objectively frivolous or that appellant subjectively filed the appeal in
bad faith or for purposes of delay.[4]
Accordingly, appellees’ motion for sanctions is denied.
Conclusion
Having overruled
appellant’s issues on appeal, we affirm the trial court’s order denying
appellant’s request for a temporary injunction.
/s/ John
S. Anderson
Justice
Panel consists of Justices
Anderson, Frost, and Seymore.
[1] Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (Vernon 2008).
[2] In support of its
contention that the trial court erred in its determination that appellant did
not establish irreparable harm, appellant cites the case of Thompson v.
Thompson Air Conditioning and Heating, Inc., 884 S.W.2d 555 (Tex.
App.—Texarkana 1994, no writ). We conclude Thompson is distinguishable
in part because, in that case, the trial court granted the applicant injunctive
relief while the trial court here denied it.
[3] We need not address
appellant’s contention on appeal that its use of the word “Osaka” is entitled
to protection because, even if it is, appellant still must establish that it
suffered irreparable harm as a result of appellees’ use of “Osaka” to be
entitled to injunctive relief. See Beauty Elite Group, Inc. v. Palchick,
14-07-00058-CV, 2008 WL 706601 *2 (Tex. App.—Houston [14th Dist.] March 18,
2008, no pet.) (mem. op.) (“Proving a wrongful act, standing alone, is
insufficient to obtain injunctive relief; each of the remaining elements must
be established.”).
[4] Since filing an appeal
for the purpose of delay is a factor to be considered when resolving a motion
for sanctions for filing a frivolous appeal, we note that appellant, on July
30, 2010, submitted a letter to this court asking “[c]ould you please tell us
the results of the accelerated appeal in the matter of Cause No. 14-09-01031-CV
& 2009-68840; Osaka Japanese Restaurant vs. Osaka Steak House Corporation
and Yu Qing Weng[?]” While this letter serves as some indication that
appellant is not interested in delay but a timely and efficient resolution of
its dispute, we observe that “the most expeditious way to obviate the hardship
and discomfiture of an unfavorable temporary injunction order is to try the
case on the merits and secure a hearing wherein the case may be fully developed
and the courts, both trial and appellate, may render judgments finally
disposing of controversies.” Sharma v. Vinmar Int’l, Ltd., 231 S.W.3d
405, 429 n.16 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing Sw.
Weather Research, Inc. v. Jones, 160 Tex. 104, 111, 327 S.W.2d 417, 422
(1959)).
|
770 F.Supp. 282 (1991)
Frank M. SOUPART, Plaintiff,
v.
HOUEI KOGYO COMPANY, LTD., Defendant.
Civ. A. No. 91-93J.
United States District Court, W.D. Pennsylvania.
August 21, 1991.
*283 James L. Jubelirer, State College, Pa., for plaintiff.
James M. Frey, Pittsburgh, Pa., for defendant.
MEMORANDUM ORDER
D. BROOKS SMITH, District Judge.
Before the Court at this time are plaintiff's motion to strike defendant's petition for removal, and defendant's motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(5), challenging this Court's personal jurisdiction over the defendant and plaintiff's service of the complaint.
Plaintiff Frank M. Soupart sustained serious crushing injuries to his left forearm at his place of employment on May 13, 1987, when his hand was caught in a mixing/chopping machine. The machine was designed and manufactured by Houei Kogyo Company, Ltd., a Japanese corporation, and was sold through several intermediaries to TYK Refractories Company, Soupart's employer. TYK Refractories and Houei Kogyo are both subsidiaries of Tokyo Kogyo, a Japanese corporation which is the defendant in the companion case to this one, Soupart v. Tokyo Kogyo, C.A. No. 91-92J.
Plaintiff's attorney filed a praecipe for a writ of summons in the Court of Common Pleas of Clearfield County on May 2, 1989, shortly before the statute of limitations expired. Plaintiff mailed a copy of the writ of summons in English by registered mail to Houei Kogyo's corporate offices in Gifu, Japan. Current defense counsel entered an appearance in the Clearfield County action, but no pleadings were filed until March, 1991, when Soupart filed a complaint against Houei Kogyo seeking in excess of $10,000 damages. Defendant, averring through counsel that the amount in controversy exceeded $50,000, removed the matter to this Court in April, 1991.
Plaintiff moves to strike the notice of removal for alleged procedural irregularities. The motion to strike is meritless and is denied.[1]
Defendant moves to dismiss the complaint against it for lack of personal jurisdiction. Plaintiff alleges that defendant's product was shipped through a series of inter-subsidiary transactions from one subsidiary of Tokyo Kogyo, defendant Houei Kogyo, to another subsidiary, TYK Refractories. Plaintiff claims that jurisdiction exists under Pennsylvania's long-arm statute, 42 Pa.C.S. § 5322(b), which permits the assertion of jurisdiction "to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States."
Plaintiff Soupart acknowledges, as he must, that he bears the burden of proving jurisdiction (or at this stage of alleging facts which would tend to prove jurisdiction) over the defendant. Motion to Dismiss, ¶ 8, and Plaintiff's Answer to Defendant's Motion to Dismiss, ¶ 8. Plaintiff Soupart alleges in his complaint only that Houei Kogyo placed the mixer/chopper which injured Soupart "into the stream of commerce." See e.g. Complaint, ¶ 16. Plaintiff Soupart in his Answer to Defendant's Motion to Dismiss does not add any allegations, but only denies on the basis of insufficient information Houei Kogyo's allegations that it is entirely located within Japan and does no business in Pennsylvania, *284 that it sold the mixer/chopper which injured Soupart to another Japanese corporation in Japan, and that it has never sold or shipped any products directly into Pennsylvania. Plaintiff Soupart makes affirmative allegations only through the argument in his memorandum in opposition to defendants' motion to dismiss, which yields the following:
Tokyo Kogyo is the parent corporation of three subsidiaries: Houei Kogyo, the defendant; Mizuno Refractory Company, a nonparty to this matter; and TYK Refractories Company, plaintiff Soupart's employer. Houei Kogyo designed and manufactured the mixer/chopper, sold it at some point to Mizuno, repurchased it after some time from Mizuno, and then sold it to Tokyo Kogyo. Tokyo Kogyo thereafter sold the machine to TYK Refractories. Houei Kogyo is in the business of manufacturing mixer/chopper machines which are used to crush and mix aggregates. TYK Refractories uses this kind of machine in its business. Plaintiff's Memorandum, 1-2.
Defendant does not contest these allegations; in fact, defendant's memorandum is the source for plaintiff's information. Plaintiff further alleges
It is impossible to determine whether Houei Kogyo and its sister-subsidiary, TYK, and its parent company, Tokyo Kogyo, intentionally created the corporate fabric to supply TYK with equipment and hence avoid the jurisdiction of Pennsylvania or whether it was unintentional.
Plaintiff's Memorandum, 6. Plaintiff does not allege that Houei Kogyo sold the product at issue to Tokyo Kogyo intending it to be resold to TYK Refractories in Pennsylvania, nor, despite a disparaging reference to "a foreign corporate `shell game'", Id., 7, that Houei Kogyo sold the mixer/chopper by means of a sham transaction with Tokyo Kogyo to TYK Refractories. Plaintiff Soupart rests his entire argument on the fact that TYK Refractory and defendant Houei Kogyo are subsidiaries of the same parent, which he contends satisfies the "foreseeability" test allegedly established by Kenny v. Alexson Equipment Co., 495 Pa. 107, 432 A.2d 974 (1981). Plaintiff's Memorandum, 7.
To determine whether personal jurisdiction exists where, as here, the litigation involves plaintiff's injuries that are alleged to arise out of the design and manufacture of the mixing/chopping machine by Houei Kogyo,[2] the due process clause of the Fourteenth Amendment is satisfied if Houei Kogyo has "purposefully directed" its activities at residents within Pennsylvania. See Burger King v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174, 2181-82, 85 L.Ed.2d 528 (1985). The conduct of Houei Kogyo itself, not the action of Tokyo Kogyo in selling the machine to TYK Refractories, must be looked to. See id., 471 U.S. at 475, 105 S.Ct. at 2183 ("contacts proximately result from actions by the defendant himself which create a `substantial connection' with the forum state") (emphasis in original).
The mere placement of a product into the stream of commerce does not constitute purposefully directing that product toward a particular forum. Asahi Metal Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). Plaintiff does not allege that Houei Kogyo knowingly and purposefully transferred the mixing/chopping machine in question through a series of sham transactions to TYK Refractories. If, as defendant contends, Houei Kogyo merely sold the device to Tokyo Kogyo without control over its disposition or intent that it be shipped to TYK Refractories, then there is no jurisdiction in this Court over Houei Kogyo. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295-96, 100 S.Ct. 559, 566-67, 62 L.Ed.2d 490 (1980) (the mere foreseeability that product will be present in forum is not sufficient to support personal jurisdiction); see also Security Pacific Int'l Bank v. National Bank of Western Pennsylvania, C.A. No. 89-117J, slip opinion at 7-8 (W.D.Pa. March 21, 1991) *285 (jurisdiction over corporate parent cannot be based merely on actions of corporate subsidiary).
Plaintiff's reliance on Kenny v. Alexson Equipment Co. is misplaced. The Pennsylvania Supreme Court in Kenny, in the course of dismissing an action for lack of personal jurisdiction, stated by negative implication that a corporation's "purposeful participation ... in a continuous distributive chain" might meet the minimum contacts requirement of the due process clause. 432 A.2d at 984. However, as Kenny recognized, and as the Third Circuit Court of Appeals held in its analysis of the participation in the stream of commerce theory of jurisdiction:
Such participation, however, cannot itself yield jurisdiction in the absence of some indicia of purposeful affiliation with the forum state.
Max Daetwyler Corp. v. R. Meyer Corp., 762 F.2d 290, 300 (3d Cir.1985).[3]
Because plaintiff makes no allegations that Houei Kogyo sold the mixer/chopper with the purpose of transmitting it to Pennsylvania, the assertion of personal jurisdiction under Pennsylvania's long-arm statute, 42 Pa.C.S. § 5322(b), is constitutionally impermissible. Cf. Snyder International, Inc. v. Tap Equipment Co., 770 F.Supp. 279 (W.D.Pa.1991). The complaint is dismissed for lack of personal jurisdiction. The Clerk shall mark this matter closed.[4]
NOTES
[1] Plaintiff makes the two patently frivolous arguments that defendant's notice of removal violated this Court's Local Rule 4, relative to service of motions, because (1) it did not contain a proposed form of order and (2) because it did not contain a provision for acceptance of service. Obviously a notice of removal is not a motion subject to Local Rule 4, because removal is accomplished without an order of court. See 28 U.S.C. § 1446(b); compare § 1446(c), removal of criminal actions, which requires an order of the court. Second, the text of Local Rule 4(a)(2), which plaintiff's counsel misreads, does not make any motion subject to striking for failure to include a provision for acceptance of service. A motion may be stricken under Local Rule 4(a)(2) for failure to include a proof of service. Defendant admittedly served the notice of removal in this case.
[2] Plaintiff asserts specific jurisdiction rather than general jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 104 S.Ct. 1868, 1872 n. 9, 80 L.Ed.2d 404 (1984). In fact, plaintiff bases jurisdiction on the defendant's single act of selling the machine which injured him. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 n. 18, 105 S.Ct. 2174, 2184 n. 18, 85 L.Ed.2d 528 (1985).
[3] The stream of commerce analysis of Max Daetwyler Corp., 762 F.2d at 299-300, was approved of by four of the justices in the majority in Asahi Metal Co., see 480 U.S. at 111-112, 107 S.Ct. at 1031-1032.
[4] Defendant also moves to dismiss plaintiff's complaint for failure to properly serve Houei Kogyo under the Hague Convention. If it were necessary to reach this motion, it would be granted. Mailing a writ of summons in English to a Japanese corporation by registered mail does not comply with the Hague Convention. The better reasoned cases interpreting Article 10(a) of the Convention hold that permissibly "sending judicial documents" through postal channels does not permit service of process by mail where the receiving nation does not consent thereto. See Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir.1989). Sandoval v. Honda Motor Co., 364 Pa.Super. 136, 527 A.2d 564 (1987), which holds that service by mail is permissible, is simply wrong.
As a remedy, however, the Court would quash service but not dismiss the complaint as requested by defendant, because no showing is made that plaintiff would be unlikely to effect proper service under the Hague Convention. See 5A Wright and Miller Federal Practice and Procedure: Civil 2d § 1354; see also Service of Process Abroad, 122 F.R.D. 63, 76 n. 72 (1988).
|
DISMISSED and Opinion Filed April 14, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00023-CV
MILTON ALFARO, Appellant
V.
FLOORPLAN XPRESS LLC.-OK, Appellee
On Appeal from the 471st Judicial District Court
Collin County, Texas
Trial Court Cause No. 471-03422-2019
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Reichek
Opinion by Justice Reichek
The clerk’s record in this case is past due. By letter dated February 7, 2020,
we informed appellant the clerk’s record had not been filed because appellant had
not paid for the clerk’s record. We directed appellant to provide, within ten days,
(1) verification of payment or arrangements to pay for the clerk’s record, or (2)
written documentation that appellant had been found entitled to proceed without
payment of costs. We cautioned appellant that failure to do so would result in the
dismissal of this appeal without further notice. By order dated February 24, 2020,
we ordered appellant to provide the Court with written verification he had paid for
or made arrangements to pay for the clerk’s record by March 2, 2020.1 We again
cautioned appellant that failure to do so would result in the dismissal of this appeal
without further notice. To date, appellant has not provided the required
documentation and the clerk’s record has not been filed.
Accordingly, we dismiss this appeal. See TEX. R. APP. P. 37.3(b); 42.3(b),
(c).
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
200023F.P05
1
In the order we noted that although appellant filed a letter on February 10, 2020 stating he was paying
for the clerk’s record, the enclosed check was for the appellate filing fee, not for the clerk’s record.
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MILTON ALFARO, Appellant On Appeal from the 471st Judicial
District Court, Collin County, Texas
No. 05-20-00023-CV V. Trial Court Cause No. 471-03422-
2019.
FLOORPLAN XPRESS LLC.-OK, Opinion delivered by Justice
Appellee Reichek. Justices Myers and Partida-
Kipness participating.
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
It is ORDERED that appellee FLOORPLAN XPRESS LLC.-OK recover its
costs of this appeal from appellant MILTON ALFARO.
Judgment entered April 14, 2020
–3–
|
970 F.Supp. 668 (1997)
Cassandra BURNEY, Dorothy J. Kelsey, and Gregory A. Stevenson, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
THORN AMERICAS, INC., a Delaware corporation; Thorn EMI North America Holdings Inc., a Delaware corporation, Defendants.
Civil Action No. 94-C-1162.
United States District Court, E.D. Wisconsin.
June 27, 1997.
*669 *670 William P. Dixon, Sarah E. Siskind, Davis, Miner, Branhill & Galland, Madison, WI, Seymour J. Mansfield, Mansfield & Tanick, Minneapolis, MN, Stephen E. Meili, Madison, WI, David Ramp, Mid-Minnesota Legal Assistance, Minneapolis, MN, for Plaintiffs.
Stephen L. Morgan, Catherine Furay, Murphy & Desmond, Madison, WI, John C. Dods, Dennis Dow, Shannon Spangler, Shook, Hardy & Bacon, Kansas City, MO, Matthew J. Flynn, Katherine H. Grebe, Quarles & Brady, Milwaukee, WI, Janice M. Symchych, Dorsey & Whitney, Minneapolis, MN, for Defendants.
DECISION AND ORDER GRANTING MOTION TO RECONSIDER IN PART
REYNOLDS, District Judge.
In this consumer class action, Rent-a-Center (which is owned by Thorn Americas, Inc.) allegedly uses rent-to-own agreements that violate the Wisconsin Consumer Act, Wis. Chs. 421-427, the Federal Truth in Lending Act, and Wis. Stat. § 138.04. This order assumes familiarity with the court's prior orders. See December 17, 1995 Decision and Order; March 8, 1996 Decision and Order; October 9, 1996 Decision and Order; and October 29, 1996 Decision and Order (944 F.Supp. 762 (E.D.Wis.1996)).
On October 29, 1996, the court modified the class and granted partial summary judgment in favor of the plaintiffs on the following grounds: (1) the rent-to-own transactions were consumer credit sales under the Wisconsin Consumer Act; (2) the reinstatement fee was a delinquency fee as defined by Wis. Stat. § 422.203(1); (3) Thorn Americas, Inc. ("Rent-a-Center") violated the Wisconsin Consumer Act; (4) the measure of actual damages is the difference between the actual finance charge and the 5% per annum rate allowed by § 138.04; and (5) the amount financed is equal to the retail price.
Neither party moved for summary judgment on the federal Truth-in-Lending Act claim, and the court had denied, without prejudice, Rent-a-Center's motion for summary judgment on the § 138.04 Wisconsin claim. (See Mar. 8, 1996 Decision and Order.) Therefore, those two liability issues remained.
In the October 29, 1996 Decision and Order, the court asked the parties to submit status reports. In addition to the reports, the parties also filed a slew of motions. Rent-a-Center moved for reconsideration, to stay issuance of an injunction, for summary judgment on the federal Truth-in-Lending Act claim, for class decertification, and for an order denying a Rule 23 damages class. On December 3, 1996, Rent-a-Center moved for class communications. The plaintiffs moved for injunctive relief and for partial summary judgment on class damages.
In the motion for reconsideration, Rent-a-Center makes multiple arguments with multiple subparts. Given the extraordinary standards for reconsideration, most of these arguments are nothing more than static, obfuscating the one legitimate issue Rent-a-Center has raised. In the October 29, 1996 Order, the court misunderstood the implications of a customer's decision to choose to pay the option price in installments. Therefore, the court now vacates its ruling that, as a matter of law, the rent-to-own transactions are consumer credit transactions under the Wisconsin Consumer Act. The court also vacates its ruling that Rent-a-Center has violated the Wisconsin Consumer Act. In all other respects, the court denies the motion to reconsider.
*671 Because the court has granted the motion to reconsider, most of the other pending motions are no longer ripe. The court, however, denies the motion for communications with potential class members.
I. MOTION TO RECONSIDER
Motions to reconsider serve a limited purpose; generally, the appellate court fixes the trial court's errors. A trial court should grant a motion to reconsider only if there is newly discovered evidence or a manifest error of law. Caisse Nationale De Credit Agricole v. CBI Indus. Inc., 90 F.3d 1264, 1269 (7th Cir.1996). Evidence is newly discovered if the party did not know about the evidence and could not have known about it even if it had exercised due diligence. Id. at 1270. Parties who forgot to present evidence or who belatedly realize that evidence is important have failed in their responsibility, and a motion to reconsider provides no relief. Parties who intentionally withhold evidence are sandbagging and must live with the original decision. Id.
A manifest error of law is similarly narrow, applying only to egregious legal errors. Appeal, not reconsideration, is the time to deal with the majority of legal errors; therefore, a party may not reargue what the court has already rejected. Id. Similarly, summary judgment, not reconsideration, is the time for a party's best legal argument; therefore, a party may not make arguments that it could have raised in the original summary judgment motion. Id. In other words, manifest legal error is the narrow path between the Skylla of arguments already raised and the Kharybdis of arguments that could have been made. See Homer, The Odyssey, book 12, 11. 75-140 (Robert Fitzgerald trans. 1961).
Manifest errors are errors so obvious that no additional explanation is needed or possible. For example, if a court on summary judgment refused to draw a reasonable inference in favor of a nonmoving party, the court's error would be manifest: no explanation of the error would be necessary or possible (besides stating that the court violated the rules of summary judgment).
A. The Court's Interpretation of "Pays"
Most of Rent-a-Center's arguments satisfy neither the newly discovered evidence standard nor the manifest error of law standard. For the Wisconsin Consumer Act claim, the central issue is whether the rent-to-own transactions are consumer credit sales under Wis. Stat. § 421.301(9). A Wisconsin Appellate court has held that a transaction may be a consumer credit sale even if the customer is not obliged to make payments. Palacios v. ABC TV & Stereo Rental, 123 Wis.2d 79, 89, 365 N.W.2d 882, 887 (Ct.App.), rev. denied, 122 Wis.2d 783, 367 N.W.2d 223 (1985). In the October ruling, this court followed Palacios. On reconsideration, Rent-a-Center argues that the court's interpretation of the Wisconsin Consumer Act is unconstitutional. If this court's interpretation is unconstitutional, Palacios's interpretation was unconstitutional, and Rent-a-Center should have raised the argument in its original summary judgment motion. Rent-a-Center has waived the argument.[1]
Rent-a-Center also rehashes the arguments it originally raised for rejecting Palacios, arguments the court examined at length. (Compare Defs.' Br. for Reconsideration at 13-14 and 15-16 with Oct. 29, 1996 Decision and Order at 10-16.) Rent-a-Center argues that the court misunderstood its interpretation of the word "pays." In Rent-a-Center's view, a down payment is separate from the agreement to pay, and "pays" covers the down payment and "agreement to pay" covers the rest of the transaction. Rent-a-Center's view requires an unreasonable interpretation of "agreement to pay." Therefore, the court rejects this argument as well.
B. Court's Interpretation of the Safe-Harbor Provision
Rent-a-Center also argues that this court's interpretation of the safe-harbor provision violates the constitutional prohibition *672 against ex post facto laws. In the court's view, it interpreted the plain meaning of the statute. Moreover, the safe-harbor provision is relevant only if Rent-a-Center's option price is an actual option price. If the option price is a sham, Rent-a-Center has not complied with the Banking Commissioner's letter.
C. Court's Damage Formula
On the damage measure, the court decided that Rent-a-Center had failed to produce evidence on market rate and, therefore, the measure of damages was the actual interest rate less the 5% allowed by § 138.04. Rent-a-Center is correct that the court misconstrued the scope of the motion; the plaintiffs asked only for a damage formula. Nevertheless, based on the Court's March 8, 1996 Decision and Order, and the reasoning in the October 29, 1996 Decision and Order, the court holds that the appropriate damage measure is the actual finance charge minus the 5% allowed by § 138.04.
Rent-a-Center also claims that the Truth-in-Lending Act preempts the WCA's definition of damages. Rent-a-Center should have made this argument in the initial motion. Rent-a-Center knew that the plaintiffs were relying on the damage measures and definitions in the WCA. The court adopted those measures; therefore, Rent-a-Center waived its right to raise the preemption argument.
D. Whether the Option Price is Real or a Sham
1. Court's Decision
To be a consumer credit sale, the customer must pay or agree to pay an amount equal to (or greater than) the value of the goods and have the chance to become owner for no (or a nominal) additional consideration. The no or nominal additional consideration requirement is called the option price. The court ruled that Rent-a-Center's option price was a sham because nothing changed between the time before and after the customer exercised the option. Before the customer exercised the option, the customer paid weekly (or bi-weekly or monthly) payments for the use of the goods. If the customer decided to exercise the option, the customer could pay the option price in its entirety, continue making the same periodic payments, or make a series of payments larger than the periodic payments the customer had been making. In the court's understanding, the customer, even after exercising the option to own, had no obligation to pay, which I now believe to be wrong as the customer who chooses to pay the option price in installments has a legal obligation, to pay the entire amount.
2. Rent-a-Center's Objection
Rent-a-Center argues that the court was mistaken about the customer's lack of obligation. After exercising the option to own, the customer has an obligation to pay the option price, whether in a lump sum or in installments. Rent-a-Center correctly concludes that the court mistakenly held that the option price is, as a matter of law, a sham.
3. Implication of Rent-a-Center's Argument
A substantial option price combined with the obligation to pay that price distinguishes a true rental agreement from a disguised sale. If the customer becomes obliged to pay after exercising the option and if the option price is large, the payments before the option date are just rent payments for the use of the goods. For example, a person rents an apartment on a month-to-month lease of $1,000. For ten years, the renter pays the rent; then, the owner decides to sell the units as condominiums. The renter can purchase the condominium for $70,000, its fair market value. Although the renter has paid $120,000 in rent, those payments do not change the choice the renter is now facing: either (1) become obliged to pay $70,000 for ownership or (2) terminate the transaction. Similarly, if a customer has made weekly installments whose total is double the item's original price and if the option price is twice the fair market value, the customer can have no expectation that the payments prior to the option date were anything but rent payments.
*673 By contrast, if terminability remains during the option period, the option price is meaningless. The customer can keep making payments and eventually own the item. Rather than marking a change in the transaction, exercising the option just marks a period of time within a transaction. There is no reason for the customer to end the transaction. In other words, if there is obligation after the customer exercises the option, the transaction is really two transactions: a rental transaction until the customer exercises the option and a sale after the customer exercises the option.
4. Rent-a-Center Motion to Reconsider and the Summary Judgment Record
How did the court miss a fact clearly, central to its analysis and Rent-a-Center's argument? The summary judgment factual record precluded such a finding, and Rent-a-Center never argued that obligation differentiated the rental period from the option period. In the court's decision, it stated: "The customer has no legal obligation to continue making the payments; rather, the customer can stop making payments and return the item." (Oct. 29, 1996 Decision and Order at 5.) Within the same paragraph, the court further stated: "If the customer does not make rental payments, the transaction is terminated, whether the customer is making rental payments or payments on the option price." (Id.) The court made this finding based on plaintiffs' December 8, 1995[2] proposed finding of fact # 42: "It [Rent-a-Center] also treated the return of merchandise during the option period in the same way as it had treated merchandise returns during the rental period." Rent-a-Center did not dispute the fact, although it pointed out that returns during the option period were rare. (Defs.' Jan. 25, 1996 Resp. to Pls.' Prop. Findings of Fact ¶ 42). If Rent-a-Center treated returns during the option period the same as returns during the rental period, customers must not have been obliged to make the option payments; rather, they could just return the item. Nor did Rent-a-Center's additional facts include any mention of a customer's having a legal obligation to make the installment option payments.
Rent-a-Center's citation in its motion for reconsideration exemplifies this problem. It cites its summary judgment appendix, not proposed findings or responses. (See Defs.' Br. for Recons. at 18.) The trial court, however, has no obligation to search through a party's submission, culling facts, the party neither emphasized nor mentioned. Northwestern Nat'l Ins. Co. v. Baltes, 15 F.3d 660, 662 (7th Cir.1994). Furthermore, the cited reference itself is far from clear: "You're not required to make this payment [the option price] unless you choose to buy the property. You may allow the agreement to expire at the end of any weekly or monthly term." (Defs.' Summ. J. App. Ex. 9 ¶ 12.) The sentence says nothing about the customer being able to pay the option price in installments, but Rent-a-Center admits that it allows customers to pay the option price in installments, and it tells the customers that they can pay the option price in installments when the transaction begins (when the customer signs the rental agreement). (See Oct. 29, 1996 Decision and Order at 5.) If a customer may allow the agreement to terminate at the end of any weekly term and if the customer may pay the option price in weekly terms, ¶ 12 does not necessarily mean that a customer paying the option price in installments is legally obligated to make the payments. The court has examined ¶ 12 here only to show that, in the context of the summary judgment record, ¶ 12 did not explicitly say that the customer was obliged to make payments after exercising the option.
If the creation of an obligation to pay was the critical difference between the rental and option periods, one would have expected Rent-a-Center to have raised the argument in its brief. In 11 pages of argument, however, Rent-a-Center never says that exercising the option to own, triggers an obligation to pay. What makes the omission more surprising is that the plaintiffs were arguing that the option price was a "sham"; legal obligation would be a direct refutation of the *674 plaintiffs' argument. For some reason, Rent-a-Center failed to include this information in its proposed findings and failed to explicitly argue the distinction it now says is "the most fundamental difference" between the option period and the rental period.
Based on the summary judgment record, especially Rent-a-Center's admission to the plaintiffs' proposed finding # 42 and its failure to raise the argument, the court would be fully within its power to deny the motion to reconsider. When parties choose to litigate every possible issue and then fail to adequately present a major argument, they should live with the consequences. If this was a purely private suit, Rent-a-Center would have to live with these consequences. This action, however, is a class action that seeks injunctive relief that will change the marketplace. Before the court will order a party to take certain market-wide actions (or refrain from other actions), it must make sure it understands what is actually happening-in the marketplace. Therefore, the court will vacate the October 29, 1996 Decision and Order only on the issue of whether Rent-a-Center's option prices are nominal.
5. Implications of Granting the Motion to Reconsider
On the record before the court, it can grant summary judgment to neither party. On the one hand, Rent-a-Center argues that the option prices are real because the customer becomes obliged to make payments. What began as a rental agreement becomes a sales agreement. The change, assuming the option price itself is substantial,[3] forces the customer to make a choice: whether to continue renting (without buying), to become obliged to pay and eventually own the item (by lump sum or installments), or to end the transaction. Purchasing with the responsibility of obligation is a new choice; therefore, the option price is not a sham.
Even if the option is not a sham, the rent-to-own transaction could still be a consumer credit sale if the option price is nominal. This determination is fact-specific and may preclude a class action. Based on Wisconsin law, the court determines nominality by comparing the option prices to the fair market value, the retail price, and the total payments. In addition, the court must determine whether the customer has any real alternatives to exercising the option. Rent-a-Center uses a formula for the retail price, the option price, and the total payments. Fair market value, however, cannot be determined on a class-wide basis. Different items depreciate at different rates, and the customer's wear-and-tear on an individual item may make it depreciate faster or slower than the item generally does. Moreover, to examine whether the customer has alternatives, the court has to know about the resale market for the product; the availability of similarly used merchandise, in all likelihood, differs from product to product.
The plaintiffs continue to argue that the court can resolve the issue in their favor on the current record. In their view, the existence of legal obligation is a red herring because Rent-a-Center never uses it; instead, Rent-a-Center treats returns during the option period like any other return. At the least, this is a factual dispute that the court cannot resolve. Nor is summary judgment in Rent-a-Center's favor appropriate because Rent-a-Center has never moved for summary judgment on the WCA claim (except for a motion dealing with the safe-harbor provisions).
Second, neither party has addressed a relevant legal issue: whether, as a matter of law, the obligation is enforceable. As Rent-a-Center admits, once the customer decides to exercise the option payment, the installment sales agreement is a consumer credit sale under the WCA. Under the WCA, a customer may voluntarily surrender the item, § 425.204(1). If the amount due is less than $1,000 and if the merchant has repossessed the item or accepted voluntary surrender, the merchant may not collect the balance due at the time of default. § 425.209. Apparently, the WCA gives customers the terminability that Rent-a-Center claims does not exist in their installment sales agreements. Because neither party has discussed this issue and *675 because the court has an insufficient factual record to decide whether the option prices are always less than $1,000, it cannot resolve this issue at this time.
II. Other Motions
Based on the status of the case, most of the other pending motions are no longer ripe. Issues about decertification, injunctions, and damages can wait. The court denies those motions without prejudice.
III. Motion for Class Communication
Rent-a-Center's motion for class communication is disturbing because it represents a shift in the tenor of this litigation from aggressive advocacy to abusive litigation. On December 3, 1996, Rent-a-Center made an expedited motion to contact class members. Local Rule 6.07 controls expedited motions and requires the moving party to submit an affidavit showing that a good faith attempt was made to resolve the dispute. Because Rent-a-Center did not comply with Local Rule 6.07, the court treated it as a routine motion.
Rent-a-Center has two reasons for wanting to contact class members. First, one of the plaintiff's attorneys told the media that 16,000 Rent-a-Center customers would receive over $20 million. Further, he said he was disappointed that Rent-a-Center would consider appealing the judgment. In Rent-a-Center's view, the attorney's comments inappropriately encouraged eligible customers to join the class. Second, Rent-a-Center claimed that plaintiffs' attorneys were contacting class members and telling them not to pay their installments and to keep the item. Rent-a-Center wants the court to require parties to contact class members only, in writing, and to have the court approve those communications.
As to the statements to the press, they are a non-issue. First, the court doubts whether the proposed order would cover them. Second, the attorney's statement is no different than Rent-a-Center's statement that it expects to win the appeal. Third, the problem is Rent-a-Center's wish to avoid giving notice to putative class members. If notice had been sent earlier in the action, potential class members would have either opted-out of the class or joined it already. If the parties had sent out notice when the court certified the class, this issue would not have occurred.
As to the second argument, Rent-a-Center has not met its burden. It relies on double hearsay for its attacks on the ethics and integrity of another lawyer. Apparently, it did not confront the attorney first, nor did it ask the court for the limited opportunity to investigate the allegations. Even in an adversarial system, the parties and especially their attorneys must respect each other; to disparage an attorney's ethics based on double hearsay is close to frivolous.
IV. STATUS OF THE CASE
Throughout this case, the parties have largely ignored the Truth-in-Lending Act claim. Finally, after the Court's October 29, 1996 Decision and Order, Rent-a-Center moved for summary judgment, which was nearly a year after the dispositive motion deadline.
The plaintiffs have 30 days from the date of this order to respond to Rent-a-Center's motion for summary judgment on the federal Truth-in-Lending Act claim.
Until the court decides the summary judgment motion on the federal claim, neither party shall file any motions relating to any of the state claims.
V. CONCLUSION
The court grants the motion to reconsider only as follows. The court vacates its ruling that the option prices are a sham, that the transactions, as a matter of law, are consumer credit sales under the Wisconsin Consumer Act, and that Thorn Americas, Inc., violated the Wisconsin Consumer Act.
As to all other issues, the court denies the motion to reconsider.
The court accepts all briefs that have been filed as timely.
The plaintiffs have 30 days to file a response to Thorn Americas, Inc.'s summary judgment motion on the Truth-in-Lending Act claim. Thorn Americas, Inc., will have *676 15 days from the date of service to file its reply brief.
The court denies all other motions without prejudice.
The parties will make no motions regarding any state law claims until the court decides the summary judgment motion involving the Truth-in-Lending Act claim.
The court denies the motion for communication with class members.
The court dismisses Thorn EMI North America Holdings, Inc., because there are no remaining claims against it.
NOTES
[1] By finding that Rent-a-Center waived this argument, the court in no way is questioning the constitutionality of Palacios.
[2] The court has included the date of the submission because Rent-a-Center moved for summary judgment on the plaintiffs' racketeering allegation, which the court granted. (See Oct. 9, 1996 Decision and Order Granting Summ. J. in Part.)
[3] To avoid application of the WCA, the option price must not be nominal. Rather than use a double negative, the court uses the phrase substantial to mean not nominal.
|
301 F.2d 532
112 U.S.App.D.C. 208
George F. BENNETT, Appellant,v.Stewart UDALL, Secretary of the Interior, et al., Appellees.
No. 16580.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 20, 1961.Decided Feb. 8, 1962, Petition for Rehearing Denied March 2, 1962.
Mr. Claude L. Dawson, Washington, D.C., for appellant.
Mr. William H. Collins, Jr., Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., Nathan J. Paulson, and Harold D. Rhynedance, Jr., Asst. U.S. Attys., were on the brief, for appellee. Messrs. Charles T. Duncan, Principal Asst. U.S. Atty., and John R. Schmertz, Jr., Asst. U.S. Atty., also entered appearances for appellee.
Before EDGERTON, FAHY and DANAHER, Circuit Judges.
DANAHER, Circuit Judge.
1
Appellant for some months had been employed as an architect by the National Park Service. As of November 28, 1958, he was separated from service. After vainly seeking administrative relief, he asked the District Court for declaratory judgment and a mandatory injunction requiring his reinstatement. Summary judgment was entered for the appellees, and appellant's complaint was dismissed.
2
On appeal the sole question is whether or not appellant was a classified civil service employee. If so, he was entitled to the procedural protections of the Lloyd-La Follette Act,1 which were not accorded to him.
3
The record shows that the Civil Service Commission on July 11, 1957, granted authority to effect a temporary appointment for the post of architect GS-11, with duty status at Philadelphia, 'in the absence of presently available eligibles * * *.'2 Effective July 15, 1957, the National Park Service notified the appellant he had been granted a 'temporary appointment'3 with headquarters at Philadelphia and duty status at Yorktown, Virginia. The notice specified that the 'action is subject to all applicable laws, rules, and regulations * * *.'
4
Pertinent is a regulation entitled 'Procedure in Separating Temporary Employees' which provides:
5
'(a) An employee serving under a temporary appointment may be separated at any time upon notice in writing from the appointing officer.'4
6
Pursuant thereto, on November 12, 1958, appellant's superior gave the prescribed written notice that, effective November 28, 1958, appellant was to be separated from the service on various specifications of inadequate work performance. Intra-agency importunities having proved unavailing, appellant, as noted, sought relief in the District Court which withheld final action on the appellees' motion for summary judgment and directed a reference to the Civil Service Commission for its review of appellant's claims. The Commission's report to the District Court now of record before us demonstrates careful and detailed consideration of the problem. The Commission concluded that appellant had at all pertinent times been merely a temporary employee, his separation was in accordance with the governing law and applicable regulations, and no procedural rights had been denied. Summary judgment followed.
7
Appellant urges that the Commission's conclusions are erroneous in that he had acquired classified civil service status because (1) the position of architect GS-11 had been classified, and (2) the notice of temporary appointment was accompanied by a memorandum dated July 15, 1957, which recited he was 'being given an appointment without a time limitation.'
8
We find no merit in appellant's claims. Specification of certain duties, job requirements and qualifications for graded positions, in this case, the post known as 'architect GS-11,' is simply part of a process of classification. An employee gains no status merely as the incumbent of a classified position. He still must qualify.5 Had there been a register of eligibles, there could have been no temporary appointment outside the register. Just how long a period might be involved in making up a register might turn on may intangibles, including the number of possibly qualified applicants, the duration of the prospective employment, the need for a continuing register, and various other factors. The memorandum upon which appellant relies meant no more than that his original appointment, expressly stated to be a 'temporary appointment,'6 was 'without a time limitation,' in the sense that it was subject to whether a register be compiled within a year, or a longer or a shorter period, or not at all.
9
The Commission in its Report of Reconsideration so construed its regulations, an interpretation which is not only reasonable but entirely in keeping with the statutes and regulations applicable on the facts here. We are pointed to no authority reposed in any personnel officer to act contrary to or in extension of such provisions. Moreover, the form granting original authority specifically noted limitations upon the agencies and called for their adherence to prescribed standards.
10
Finding no denial of rights accorded either by statute or applicable regulations,7 we conclude the District Court correctly entered judgment for the appellees.
11
Affirmed.
1
See 5 U.S.C.A. 652 (1958)
2
5 C.F.R. 2.302(a) (1961) authorizes temporary appointments outside the register if insufficient eligibles are available
3
Pursuant to 5 C.F.R. 2.302(a) (1961)
4
5 C.F.R. 9.104 (1961)
5
Cf. 5 U.S.C.A. 631b, 638 (1958)
6
The Commission's Form 50, 'Notification of Personnel Action,' expressly referred to the 'Temporary Appointment' ascribing as the source of the Department's authority 'C.S.Reg. 2.302(A).' 5 C.F.R. 2.302 (1957 Supp.) in subsection (a) makes provision for filling a continuing position, one that will last longer than a year, but such 'appointment shall continue only for such period as may be necessary to make appointment through certification.' Subsection (b) provides, when there are insufficient eligibles available for temporary employment which will not last more than a year, 'the Commission may authorize the agency to fill the vacancy by temporary appointment outside the register for job employment.'
7
And see generally Exec. Order No. 10577, as amended, following 5 U.S.C.A. 631 (1958), Rule I, 1.2 (appearing also as 5 C.F.R. 01.2 (1961)), 1.3(d) (appearing also as 5 C.F.R. 01.3(d) (1961)); 5 U.S.C.A. 631a, 631b(a), 658 (1958); Bailey v. Richardson, 86 U.S.App.D.C. 248, 254-56, 182 F.2d 46, 52-54 (1950), aff'd, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352 (1951)
Appellant argues that the text as found in 5 U.S.C. 658 (1958) does not appear in the United States Code Annotated, 1950, 'The Cumulative Pocket Part compiled in the year 1960,' or in other publications where he expected to find it. But see 679, 5 U.S.C.A. (1950); 5 U.S.C.A. 658 (Supp.1960); 5 U.S.C.A. 658 (Supp.1961); 5 U.S.C. 679 (1946); 5 U.S.C. 658 (1952); 5 U.S.C. 658 (1958).
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J-S60028-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
NICOLI ANTONIO SANTANA
Appellant No. 341 MDA 2019
Appeal from the Judgment of Sentence Entered January 30, 2019
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0004819-2017
BEFORE: SHOGAN, STABILE, and PELLEGRINI,* JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 21, 2020
Appellant Nicoli Antonio Santana appeals from the January 30, ,2019
judgment of sentence entered in the Court of Common Pleas of Berks County
(“trial court”), following his jury convictions for murder in the first degree,
three counts of aggravated assault, possessing instruments of crime, and
three counts of recklessly endangering another person (“REAP”).1 Upon
review, we affirm.
The facts and procedural history of this case are undisputed. As
recounted by the trial court:
On February 28, 2017, [Appellant] entered DeCarlo’s Bar &
Grill (“DeCarlo’s”) at around 8:50 p.m. [A] [f]ew hours later, on
March 1, 2017 at around 1 a.m., Ian Moore (“Moore”), Miguel
Colon (“Colon”), and Johnny Corchado (“Corchado”) met up at
DeCarlo’s. As soon as Moore, Colon, and Corchado entered
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(a), 2702(a)(1), (4), 907(a), and 2705, respectively.
J-S60028-19
DeCarlo’s, [Appellant] immediately stood up and walked to the
back corner portion of DeCarlo’s. At approximately 1:10 a.m.
when Moore went to the bathroom and came back to order a drink
at the front of the bar, Appellant moved to the other side of the
bar close to the front door and waited leaning against the wall. In
the almost five-hour term that Appellant was at DeCarlo’s,
Appellant consumed three drinks total; two bottles of Guinness
Extra Stout and a small glass of mixed alcohol drink. Moore,
Colon, and Corchado had drinks and talked briefly at the bar and
left DeCarlo’s through the front door at around 1:30 a.m.
A few seconds after Moore, Colon, and Corchado left the bar,
Appellant followed them and lingered in the vestibule of the bar,
leaning in and out of the doorway observing Moore, Colon, and
Corchado walking through the parking lot. Appellant then went
down the steps and walked through the stone lot and approached
Moore, Colon, and Corchado stalking the trio while hugging the
side of the building. When Appellant was about 15 feet from
Moore, Colon, and Corchado, Appellant pulled a handgun out and
fired multiple shots at Moore.
Corchado fled in the direction of DeCarlo’s while Moore and
Colon fled in the direction of Cherry Street. One of the shots hit
Colon on his left thigh and one of the shots hit Moore on his arm.
Colon at that point fled toward his car while Moore fled toward S
3rd Street. Appellant did not chase Colon but chased Moore onto
zero hundred block of S 3rd Street.
Appellant eventually caught up with Moore. At close range,
Appellant fired multiple shots at Moore[, who] tumbled down to
the ground. Appellant shot a total of ten rounds at Moore in the
parking lot and in the vicinity of zero hundred block of S 3rd
Street, and as a result, Moore suffered three gunshot wounds.
Two of them were in the chest and abdomen area.
Appellant started walking away from Moore, but then went
back and pistol-whipped Moore, who was already on the ground.
Appellant left the scene, went back to his parked ear on the 200
block of Cherry Street and drove off. Officers responded to radio
dispatch for shots fired and arrived at the zero hundred block of S
3rd Street. Officer Babbit and Officer White arrived at the scene
and found Moore lying on the ground. Officers asked Moore some
questions, but Moore was not able to give any answer as he was
having a hard time breathing. Moore died as a result of the
gunshot wounds to his chest and abdomen area.
Trial Court Opinion, 5/1/19 at 1-2 (unpaginated) (record citations omitted).
Following a jury trial, Appellant was convicted of the foregoing crimes. On
January 30, 2019, the trial court sentenced Appellant to, inter alia, life
-2-
J-S60028-19
imprisonment. Appellant did not file any post-sentence motions. Appellant
timely appealed. Both Appellant and the trial court complied with Pa.R.A.P.
1925.
On appeal, Appellant raises a single issue for our review: “Was the
evidence insufficient to sustain Appellant’s conviction for murder in the first
degree.”2 Appellant’s Brief at 1. At the core, Appellant argues only that the
evidence adduced at trial is insufficient to establish that he possessed the
specific intent to kill Moore.3 In support, he claims that he intended only to
“scare” Moore, and not kill him. Appellant’s Brief at 7.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
____________________________________________
2 Appellant fails to state with specificity the element or elements of first-
degree murder upon which he alleges the evidence is insufficient. We,
nonetheless, proceed to the merits of this appeal because we are able to
discern his arguments.
3 To the extent Appellant raises a diminished capacity defense argument in his
reply brief, such argument is waived because it was neither contained in his
nor the Commonwealth’s brief. The Pennsylvania Rules of Appellate Procedure
make clear that an “appellant may file a brief in reply to matters raised by
appellee's brief or in any amicus curiae brief and not previously addressed in
appellant’s brief. Pa.R.A.P. 2113(a). Appellant, therefore, is prohibited from
raising new issues. See Commonwealth v. Fahy, 737 A.2d 214, 218 n.8
(Pa. 1999) (discussing a prior version of Rule 2113(a) that did not address
amicus briefs). Additionally, “a reply brief cannot be a vehicle to argue issues
raised but inadequately developed in appellant’s original brief. When an
appellant uses a reply brief to raise new issues or remedy deficient discussions
in an initial brief, the appellate court may suppress the non-complying
portions.” Id.
-3-
J-S60028-19
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014).
The Crimes Code defines first-degree murder as follows:
§ 2502. Murder
(a) Murder of the first degree.—A criminal homicide
constitutes murder of the first degree when it is committed by an
intentional killing.
18 Pa.C.S.A. § 2502(a). We recently explained in Commonwealth v. Baker,
201 A.3d 791 (Pa. Super. 2018), appeal denied, 215 A.3d 963 (Pa. 2019):
An individual commits first-degree murder when he intentionally
kills another human being; an intentional killing is defined as a
willful, deliberate and premeditated killing. To sustain a conviction
for first-degree murder, the Commonwealth must prove that: (1)
a human being was unlawfully killed; (2) the accused was
responsible for the killing; and (3) the accused acted with malice
and a specific intent to kill.
Baker, 201 A.3d at 795 (citations and quotation marks omitted). “A jury may
infer the intent to kill based on the accused’s use of a deadly weapon on a
vital part of the victim’s body.” Id. at 795-96 (citation omitted); see
Commonwealth v. Nichols, 692 A.2d 181, 184-85 (Pa. Super. 1997) (“[I]t
-4-
J-S60028-19
is well settled that the use of a deadly weapon on a vital part of the body is
sufficient to establish a specific intent to kill.”).
Instantly, based upon the evidence presented at trial, as detailed
above and viewed in a light most favorable to the Commonwealth, we agree
with the trial court’s conclusion that the Commonwealth proved beyond a
reasonable doubt that Appellant committed murder in the first degree. The
trial court explained:
Evidence, including Appellant’s own testimony, established that
after Appellant saw Moore in DeCarlo’s, Appellant waited at
DeCarlo’s for at least twenty minutes until Moore left DeCarlo’s;
Appellant never approached nor spoke to Moore while in the bar,
and in fact furtively avoided being seen by him. Appellant then
followed him to the parking lot where Appellant started to shoot
multiple rounds at Moore. Of the three who fled from the
shooting, Appellant specifically chose to chase Moore; and
thereupon when Appellant caught up with Moore; engaged in a
struggle and shot multiple shots in the abdomen and chest area
and killed Moore. This sequence of events established by the
record clearly supports that the killing was a classic murder by
lying in wait. Moreover, the record shows Appellant shot at Moore
and inflicted deadly wounds on vital parts, abdomen and chest, of
his body which supports an inference to specific intent to kill.[4]
Trial Court Opinion, 5/1/19 at 4 (unpaginated). Thus, in light of the foregoing,
especially his fatally shooting Moore in the chest and abdomen, we conclude
that Appellant indeed possessed the requisite and necessary intent to kill
Moore. Accordingly, we affirm the trial court’s judgment of sentence.
____________________________________________
4 See Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008) (noting
that the chest is a vital part of the body); see also Commonwealth v.
Sepulveda, 855 A.2d 783, 788 (Pa. 2004) (noting that abdomen is a vital
part of the human body).
-5-
J-S60028-19
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/2020
-6-
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2100
PATRICIA BALL,
Plaintiff - Appellant,
versus
NCRIC, INCORPORATED, a/k/a National Capital
Reciprocal Insurance Company,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr, District Judge.
(CA-00-832-AW)
Argued: October 29, 2004 Decided: January 27, 2005
Before WILKINS, Chief Judge, and TRAXLER and GREGORY, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Gregory Charles Mitchell, Washington, D.C., for Appellant.
Lee Thomas Ellis, Jr., BAKER & HOSTETLER, L.L.P., Washington, D.C.,
for Appellee. ON BRIEF: Stephen C. Leckar, BUTERA & ANDREWS,
Washington, D.C., for Appellant. Amy M. Henson, BAKER & HOSTETLER,
L.L.P., Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Patricia Ball brought this action against NCRIC, Incorporated,
seeking satisfaction of a judgment she obtained against a doctor
insured by NCRIC. The district court granted summary judgment in
favor of NCRIC, and Ball appeals. We affirm.
I.
From April to November 1987, Dr. George Daniel provided in-
home treatment to Ball for migraine headaches and depression.
During these visits, Daniel injected Ball with various drugs to
which Ball became addicted. The drugs put Ball into a state of
stupor, during which time Daniel sexually assaulted her. Daniel
was arrested in November 1987 on unrelated federal charges of
selling prescriptions to undercover agents. Daniel agreed to plead
guilty to the charges in February 1988. Daniel, however, did not
appear for the plea proceeding, and he remained a fugitive until
1991.
Daniel was insured under a “claims made” medical malpractice
insurance policy issued by NCRIC that was in effect from March 19,
1987, until January 1, 1988. Ball brought a malpractice action
against Daniel, notifying NCRIC of her claim against Daniel in
December 1987. Her action was largely stalled during the time that
Daniel remained a fugitive.
2
In April 1992, Ball filed a notice of claim against Daniel
with the Maryland Health Claims Arbitration Office, in accordance
with Maryland law governing medical malpractice claims. Ball
served Daniel (then in federal prison) with notice of her claim and
also provided NCRIC with a copy of the arbitration claim. NCRIC
took the position that Ball’s claims against Daniel did not fall
within the scope of the policy issued by NCRIC. In February 1996,
the Health Claims Arbitration panel rendered a decision in favor of
Ball on her claims against Daniel and awarded $310,000 in damages.
Final judgment in that amount was entered in Maryland state court
on September 1996.
In February 2000, Ball filed an action in Maryland state court
seeking to recover the amount of the judgment through the insurance
policy issued by NCRIC. See Washington Metro. Area Transit Auth.
v. Queen, 597 A.2d 423, 425-26 (Md. 1991) (“[A] tort claimant may
not maintain a direct action against the defendant tortfeasor’s
liability insurer until there has been a determination of the
insured’s liability in the tort action. Once there is a verdict or
judgment in the tort action, a direct action may be maintained
against the liability insurer.”). NCRIC removed the case to
federal court on the basis of diversity of citizenship.
After cross-motions for summary judgment, the district court
ruled in favor of NCRIC, concluding that Daniel’s failure to
cooperate with NCRIC’s investigation of Ball’s claim relieved NCRIC
3
of any obligation under its policy. Ball appealed, and this court
reversed and remanded. We concluded that NCRIC failed to prove
that it was prejudiced by Daniel’s lack of cooperation and that
section 19-110 of the Maryland Insurance Code therefore prevented
NCRIC from denying coverage because of Daniel’s lack of
cooperation. We also rejected NCRIC’s alternative argument that
coverage could be denied on the basis of Daniel’s failure to notify
NCRIC of Ball’s claim, as required by the policy. We concluded
that because Ball’s attorney notified NCRIC of the claim, NCRIC was
not prejudiced by Daniel’s failure to give notice, and section 19-
110 therefore prevented NCRIC from denying coverage on that basis.
See Ball v. NCRIC, Inc., No. 01-1716, 2002 WL 1473355, at *2-3 (4th
Cir. July 10, 2002) (unpublished).
After the case was remanded to the district court, the parties
again filed cross-motions for summary judgment. The district court
granted summary judgment in favor of NCRIC on several alternate
grounds. The district court concluded that the notice of the claim
provided by Ball’s attorney to NCRIC did not comply with the
requirements of the policy and was therefore insufficient. The
district court also concluded that Daniel’s actions did not involve
the provision of “professional medical services” as covered by the
policy. Finally, the district court concluded that Daniel knew or
should have known about Ball’s potential claim against him when the
4
policy was issued, and that Ball’s claim therefore fell within a
policy exclusion.
II.
A.
NCRIC’s policy requires that the insurer be given written
notice of any claims made against the insured, and the policy
specifies that the notice contain “particulars sufficient to
identify the insured and also reasonably obtainable information
with respect to the time, place and circumstances thereof, and the
names and addresses of the injured and of available witnesses.”
Ball’s attorney notified NCRIC of her claim against Daniel by
letter dated December 15, 1987. Because the letter did not satisfy
all of the policy requirements, the district court concluded that
NCRIC could deny coverage on that basis.
On appeal, NCRIC recognizes that our decision in the prior
appeal precludes any argument that the insufficient notice caused
it to suffer “actual prejudice” within the meaning of section 19-
110. NCRIC, however, contends that the sufficiency-of-the-notice
question is simply a question of contract law that is unaffected by
section 19-110. That is, NCRIC contends that if the notice
provided by Ball’s attorney did not meet the requirements set forth
in the policy, then it is entitled as a contractual matter to
5
disclaim coverage, whether or not it suffered prejudice under
section 19-110. We disagree.
Section 19-110 states:
An insurer may disclaim coverage on a liability insurance
policy on the ground that the insured or a person
claiming the benefits of the policy through the insured
has breached the policy by failing to cooperate with the
insurer or by not giving the insurer required notice only
if the insurer establishes by a preponderance of the
evidence that the lack of cooperation or notice has
resulted in actual prejudice to the insurer.
Md. Code Ann. Ins. § 19-110 (emphasis added). The statute thus
applies to a claim that an insured breached the policy by failing
to provide the “required notice,” which is precisely the claim
NCRIC is making when it argues that Ball’s notice did not satisfy
the requirements of the policy.
NCRIC’s claim regarding the sufficiency of the notice thus
falls within the scope of section 19-110 and is precluded by our
conclusion in the prior appeal that NCRIC failed to establish
actual prejudice. The district court erred by granting summary
judgment to NCRIC on that basis.
B.
The policy at issue insured Daniel against claims “caused by
a medical incident which occurs . . . in the practice of the
insured’s profession as a physician or surgeon.” J.A. 71. The
policy defines “medical incident” as “any act or omission in the
furnishing of professional medical services to any person.” J.A.
75. “Professional medical services” is not defined by the policy.
6
The district court noted that “the scope of professional
services does not include all forms of Dr. Daniel’s conduct simply
because he is a doctor.” J.A. 660 (emphasis omitted). The court
concluded that Daniel’s actions with regard to Ball “were solely
for the satisfaction of his own prurient interests,” and that his
actions “in no way involved the application of any specialized
learning or skills.” J.A. 660 (internal quotation marks and
alteration omitted). The court concluded that Ball’s claims
against Daniel did not spring from Daniel’s furnishing of medical
services to Ball and that NCRIC therefore had no duty to cover the
judgment entered against Daniel.
There are no Maryland cases interpreting the precise language
used in NCRIC’s policy. When making their arguments, however, the
parties rely on cases involving Maryland’s Health Care Malpractice
Claims Arbitration Act. In general, the Act requires that claims
“against a health care provider for medical injury” must be
submitted to arbitration conducted through the Health Claims
Arbitration Office before an action can be commenced in circuit
court. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02(a)(1). The
Health Claims Arbitration Office has authority only over cases that
fall within the scope of the Act. See, e.g., Watts v. King, 794
A.2d 723, 733 (Md. Ct. Spec. App. 2002) (“It is true that, although
CJ § 3-2A-02(a) requires that all claims shall be submitted to the
HCAO for arbitration, intentional torts may be excluded from the
7
Act’s jurisdiction.” (internal quotation marks and alteration
omitted)).
The Act defines “medical injury” as “injury arising or
resulting from the rendering or failure to render health care.”
Md. Code Ann., Cts. & Jud. Proc. § 3-2A-01(f). The Maryland courts
have set forth standards for determining which claims meet this
definition and thus fall within the scope of the Act:
[T]he Act covers only those claims for damages arising
from the rendering or failure to render health care where
there has been a breach by the defendant, in his
professional capacity, of his duty to exercise his
professional expertise or skill. Those claims for
damages arising from a professional’s failure to exercise
due care in non-professional situations such as premises
liability, slander, assault, etc., were not intended to
be covered under the Act and should proceed in the usual
tort claim manner.
Cannon v. McKen, 459 A.2d 196, 201 (Md. 1983) (emphasis added).
Where a plaintiff alleges that he or she was injured by
a health care provider during the rendering of medical
treatment or services, the Act is implicated, regardless
of whether the claim sounds in negligence or intentional
tort. When confronted with such a claim, the trial court
must determine if the plaintiff’s factual allegations
remove the claim from the Act’s coverage. If the
complaint sets forth facts showing that the claimed
injury was not inflicted during the rendering of medical
services, or that the injury resulted from conduct
completely lacking in medical validity in relation to the
medical care rendered, the Act is inapplicable . . . .
Goicochea v. Langworthy, 694 A.2d 474, 479 (Md. 1997) (emphasis
added).
The language in NCRIC’s policy obviously is not identical to
the language of the Maryland statute or the standard used by
8
Maryland courts to apply that statutory language. Nonetheless, we
agree with the parties that there is sufficient similarity such
that the cases discussing the scope of the Act provide guidance on
the issue before us. The question, then, is whether Daniel’s
conduct was so completely lacking in medical validity that it
cannot be considered the “furnishing of professional medical
services” as covered by the policy.
If the only conduct at issue in this case were Daniel’s sexual
assaults, then we might agree with NCRIC and the district court
that Daniel’s actions did not arise from the furnishing of medical
services. Professional malpractice insurance does not protect
against all negligence of a person who happens to be a
professional; it is intended to protect against negligence that
occurs during the course of the professional’s exercise of his
special skills and training. Although Maryland does not appear to
have directly addressed this question, many courts have concluded
that, except in cases involving psychiatrists or other therapists,
sexual misconduct by a doctor is not covered by a professional
malpractice insurance policy. See, e.g., Niedzielski v. St. Paul
Fire & Marine Ins. Co., 589 A.2d 130 (N.H. 1991); St. Paul Fire &
Marine Ins. Co. v. Mori, 486 N.W.2d 803 (Minn. Ct. App. 1992).
Sexual assault is typically viewed as being so far beyond the
bounds of professional medical treatment and so disconnected from
an exercise of the doctor’s professional skills and training that
9
courts have concluded a sexual assault by a doctor does not amount
to medical malpractice.
In this case, however, Ball’s complaint is not based only on
Daniel’s sexual misconduct. Daniel advertised himself as providing
in-house medical treatment, and Ball sought him out for treatment
of migraines and depression. Daniel came to her house and
purported to treat those problems by injecting Ball with various
drugs, including Demerol, Vistaril, Valium, and Fiorinal. Ball’s
claim against Daniel is based, in large part, on her contention
that Daniel failed to properly administer these drugs by giving
them to her in amounts that caused her to become addicted. At
least some of the drugs given to Ball by Daniel are commonly used
to treat the problems from which Ball suffered. See, e.g., Baker
v. Apfel, 159 F.3d 1140, 1143 (8th Cir. 1998) (noting that “[t]he
only effective pain medication for the migraines is an injection of
Demerol”); Beckley v. Apfel, 152 F.3d 1056, 1058 (8th Cir. 1998)
(noting that claimant took Fiorinal to treat migraine headaches).
Under these circumstances, we cannot say that Daniel’s actions in
administering the drugs were completely lacking in medical
validity. Ball’s claim with regard to Daniel’s misuse of the drugs
therefore falls within the scope of the risk covered by NCRIC’s
policy.
NCRIC, however, contends that Daniel did not give Ball these
drugs for the purpose of treating her migraines and depression, but
10
instead gave her the drugs to carry out his scheme to addict her
and render her incapable of rejecting his sexual advances. NCRIC
bases this argument on Ball’s deposition testimony, during which
she stated that she believed that Daniel was trying to get her
addicted to drugs. Ball also stated in her deposition that she
agreed with her attorney who argued before the Health Claims
Arbitration Panel that Daniel purposefully and maliciously gave her
drugs to get her addicted. Based on these statements, NCRIC
contends that the “undisputed facts” are that Daniel never
undertook to treat Ball’s ailments. See Brief of Respondent at 20
n.7. Thus, NCRIC argues that Daniel’s administering of the drugs
was completely lacking in medical validity and does not fall within
the scope of the policy coverage.1 We disagree.
Ball’s subjective beliefs about what Daniel’s intentions may
have been simply are not determinative of the coverage question.
What matters is the actual nature of the claim, not the label that
the plaintiff attaches to the claim. See Jewell v. Malamet, 587
A.2d 474, 479 (Md. 1991) (“[T]he determination of jurisdiction in
cases involving an intentional tort of a professional nature lies
1
NCRIC also suggests that the injection of drugs requires no
specialized learning or skills, so that Daniel’s administering of
the drugs to Ball cannot be viewed as the provision of professional
medical services. NCRIC claims that to conclude otherwise “would
be to equate a street heroin addict with a doctor of more worthy
morals.” Brief of Respondent at 23. This argument is without
merit. While it may be true that shots can be given by those who
are not doctors, that does not mean that a doctor is not using his
professional skills when giving a shot.
11
not in the label given to the tort, but on the factual context in
which the tort was allegedly committed.” (internal quotation marks
and alterations omitted)); see also Goicochea, 694 A.2d at 479
(rejecting plaintiff’s attempt to turn medical malpractice case
into an intentional tort case by alleging that the doctor acted
maliciously).
As previously discussed, Ball’s claim falls within the scope
of the policy because it springs from Daniel’s furnishing of
professional medical services, services that were not completely
lacking in medical validity. Ball’s personal beliefs about why
Daniel acted as he did does not change this conclusion.
C.
Finally, we turn to the district court’s conclusion that NCRIC
was not obligated to provide coverage for Ball’s claim because
Daniel knew or should have known about her claim when the policy
was issued.
The policy issued by NCRIC states that coverage “is limited to
liability for only those claims which arise from incidents
occurring subsequent to the retroactive date stated in the
declarations and schedule page and which are first made against the
insured while the policy is in force.” J.A. 69. The retroactive
date of the NCRIC policy was March 19, 1987. Daniel began treating
Ball in April 1987, and we decided in the previous appeal that Ball
12
provided timely notice to NCRIC of her claim. Thus, Ball’s claim
seems to fall within the coverage period of the policy.
The policy, however, also contains an exclusion (“Exclusion
(f)”), which excludes coverage for liability “for any potential
claim against the insured of which the insured is aware, or
reasonably should have been aware, as of the date this policy is
issued, regardless of whether or not such claim has yet been made
or reported to any insurer.” J.A. 72 (emphasis added). Although
the policy’s retroactive date is March 19, 1987, the policy was
formally issued on May 21, 1987. The district court concluded that
by the time the policy was issued in May 1987, Daniel reasonably
should have known of Ball’s potential claim against him. The
district court therefore concluded that Exclusion (f) operated to
remove Ball’s claim from coverage under the policy.
On appeal, Ball contends that the policy is ambiguous because
it states that it covers claims arising after the retroactive date,
but then excludes claims about which Daniel should have been aware
on the issuance date, without defining issuance date. And because
the policy is ambiguous, Ball argues, we should construe it in her
favor. See, e.g., Mamsi Life & Health Ins. Co. v. Callaway, 825
A.2d 995, 1005-06 (Md. 2003) (“Although Maryland law does not
construe insurance policies as a matter of course against the
insurer, when a term in an insurance policy is found to be
ambiguous, the court will construe that term against the drafter of
13
the contract which is usually the insurer.” (citation omitted)).
We disagree with Ball’s argument.
Although the policy states that it covers claims for incidents
occurring after the retroactive date, the policy also makes clear
that the grant of coverage is subject to the other terms of the
policy, which of course includes the policy exclusions. And
contrary to Ball’s suggestion, the policy cannot be considered
ambiguous simply because it includes provisions that operate to
preclude coverage that would otherwise be granted. That is exactly
what exclusions are intended to do.
Nor can we conclude that Exclusion (f) is ambiguous because
the policy does not define date of issuance. The declarations page
of the policy expressly identifies May 21, 1987 as the policy’s
issue date. See J.A. 642. While no provision in the policy
explains the time frame under which the policy would be issued,
that omission does not make the exclusion ambiguous.
A contract term is determined to be ambiguous if a
reasonably prudent person would understand the term as
susceptible to more than one possible meaning. The
determination of whether language is susceptible to more
than one meaning includes consideration of the character
of the contract, its purpose, and the facts and
circumstances of the parties at the time of execution.
Id. at 1005 (citation and internal quotation marks omitted).
“Unless there is an indication that the parties intended to use
words in the policy in a technical sense, the terms of the contract
are accorded their customary, ordinary, and accepted meanings.”
14
Walk v. Hartford Cas. Ins. Co., 852 A.2d 98, 106 (Md. 2004). When
the policy is read as a whole, it is clear that the policy was
issued for purposes of Exclusion (f) when it was compiled and
delivered to Daniel, a date identified in the policy as May 21,
1987. That the date of issuance is different from the retroactive
date simply does not make the exclusion ambiguous.
The question, then, is whether Exclusion (f) operates to
remove Ball’s claim from the coverage provided by NCRIC’s policy.
We are constrained to answer that question in the affirmative.
The record establishes that by the time the policy was issued
on May 21, 1987, Daniel had visited Ball multiple times,
administering drugs each time, and had sexually assaulted her at
least once. Daniel had by that time told Ball that she was
addicted to the narcotics he had been giving her, and (again,
before the date of the policy issuance), Ball had checked herself
into a hospital seeking treatment for the addiction. Given these
facts, a reasonable person would have known before the policy was
issued that Ball had a claim against Daniel. While Ball had not
sued Daniel or even made a complaint against him by the time the
policy was issued, Exclusion (f) by its terms applies to potential
claims of which the insured “reasonably should have been aware,”
whether or not the claim has actually been made. Accordingly, we
agree with the district court that, by virtue of Exclusion (f),
15
Ball’s claim against Daniel is excluded from the policy issued by
NCRIC.
Ball, however, contends that because Daniel continued to treat
her after the policy was issued, Exclusion (f) does not preclude
coverage for her claim. In support of this argument, Ball relies
on Mutual Fire, Marine & Inland Insurance Co. v. Vollmer, 508 A.2d
130 (Md. 1986).
In Vollmer, a malpractice insurance policy issued to a doctor
provided coverage for malpractice committed after the policy’s
retroactive date and excluded coverage for malpractice occurring
before the retroactive date. The plaintiff’s complaint alleged a
related series of acts of malpractice, some of which occurred
before the retroactive date and some of which occurred after the
retroactive date. The Vollmer court concluded that the policy was
ambiguous because “[t]he policy is silent on its application where
malpractice is alleged to have been committed both before and after
the retroactive date.” Id. at 134. The court therefore
“resolve[d] the ambiguity against the drafter of the policy and in
favor of coverage.” Id.
The specific language of NCRIC’s policy, however, makes Ball’s
“continuing treatment” analysis inapplicable and her reliance on
Vollmer unavailing. The policy provides coverage for claims
“caused by a medical incident.” J.A. 71. As to “medical
incident,” the policy states that “[a]ny such act or omission
16
together with all related acts or omissions in the furnishing of
such services to any one person shall be considered one medical
incident.” J.A. 75. Under this provision, Daniel’s actions that
occurred before the policy issuance date were clearly related to
the actions that occurred after the issuance date. Thus, there was
only one medical incident, one that Daniel reasonably should have
known about before the policy issued. Unlike the policy at issue
in Vollmer, the NCRIC policy is not ambiguous. By treating related
actions as a single medical incident and excluding coverage for
medical incidents about which Daniel should have known by the
issuance date, the policy simply forecloses Ball’s continuing-
treatment argument.
We therefore agree with the district court that Exclusion (f)
applies so as to take outside the scope of the policy’s coverage
the claims asserted against Daniel by Ball. Although we have
concluded that the district court erred in its analysis of the
other issues in this case, our conclusion with regard to Exclusion
(f), standing alone, is sufficient to support the district court’s
judgment.2 Accordingly, for the foregoing reasons, the district
2
At oral argument, counsel for NCRIC suggested that Exclusion
(f) operates to bar coverage only as to Daniel’s actions occurring
before the policy was issued, and that coverage is barred for
actions occurring after the policy was issued because Daniel’s
conduct did not involve the provision of professional services. In
its appellate brief, however, NCRIC made it clear that each of the
district court’s bases for ruling in favor of NCRIC were
independently sufficient to support the district court’s decision.
Thus, the statement at oral argument suggesting that Exclusion (f)
17
court’s decision granting summary judgment in favor of NCRIC is
hereby affirmed.
AFFIRMED
alone would not completely preclude recovery under the policy was
likely an inadvertent misstatement. In any event, because the
relevant provisions of the NCRIC policy are unambiguous, the
meaning of the policy is a question of law to be resolved by this
court. See, e.g., Vizzini v. Insurance Co. of North Am., 273 A.2d
137, 140 (Md. 1971) (“[T]he interpretation of an unambiguous
insurance contract is a question of law for the court. . . .”).
The statement by NCRIC’s attorney, inadvertent or not, is therefore
not binding on this court. See New Amsterdam Cas. Co. v. Waller,
323 F.2d 20, 24-25 (4th Cir. 1963) (“The doctrine of judicial
admissions has never been applied to counsel's statement of his
conception of the legal theory of the case. When counsel speaks of
legal principles, as he conceives them and which he thinks
applicable, he makes no judicial admission and sets up no estoppel
which would prevent the court from applying to the facts disclosed
by the proof, the proper legal principles as the Court understands
them. . . . [A] party’s misconception of the legal theory of his
case does not work a forfeiture of his legal rights.”).
18
|
405 So.2d 202 (1981)
NORTH AMERICAN PHILIPS CORPORATION, INC., Appellant,
v.
Bryan G. BOLES, Appellee.
No. 79-1519.
District Court of Appeal of Florida, Fourth District.
September 30, 1981.
Rehearing Denied November 10, 1981.
L. Louis Mrachek of Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, for appellant.
Donald J. Freeman of Beverly & Freeman, West Palm Beach, for appellee.
*203 HURLEY, Judge.
The suit below was an action to enforce a stock option agreement. After a bench trial, the court ruled for the plaintiff, finding that "Boles properly exercised his stock option ... by complying with all conditions precedent ..., or the conditions precedent were waived... ." Appellant/defendant contends that the trial was infected with reversible error when the court overruled appellant's objection and admitted testimony relating to waiver of the conditions precedent, an issue which appellant suggests was not framed by the pleadings. We agree and, consequently, reverse.
Boles filed a two count complaint asking for damages or specific performance of the stock option agreement. The defendant answered and asserted three affirmative defenses, one of which was that Boles had not fulfilled certain conditions precedent. Boles, in turn, filed a pleading styled, "Reply to Affirmative Defenses," which denied the affirmative defenses.
At trial, Boles introduced a letter from his attorney addressed to defendant's predecessor-corporation wherein he sought to exercise the stock option agreement. Unquestionably, the letter does not satisfy all of the conditions precedent required by the agreement, however, Boles took the position that strict compliance had been waived due to certain action by the defendant corporation. Defense counsel objected to this line of testimony on the ground that it was irrelevant to the issues framed by the pleadings. The court overruled the objection and ultimately entered a verdict for the plaintiff.
Rule 1.100(a), Fla.R.Civ.P., provides in pertinent part:
If an answer ... contains an affirmative defense and the opposing party seeks to avoid it, he shall file a reply containing the avoidance. (Emphasis supplied.)
The Supreme Court traced the evolution of Rule 1.100(a), Fla.R.Civ.P., in Moore Meats, Inc. v. Strawn, 313 So.2d 660 (Fla. 1975), and, after an extensive review of a commentary by one of the draftsmen, the court held that matters constituting an avoidance of an affirmative defense "must be set forth in a reply pleading... ." Id. at 661. The rationale for this requirement is that "[t]his is necessary in order to lay a predicate for such proofs so that the parties may prepare accordingly." Id. Indeed, the committee note to the 1972 amendment which added the provision in question to Rule 1.100(a) explains that "[t]he change makes a reply mandatory when a party seeks to avoid an affirmative defense... ." 30 Fla. Stat. Ann. 29 (Supp. 1981). See American Salvage and Jobbing Co., Inc. v. Salomon, 295 So.2d 710 (Fla.3d DCA 1974).
Long ago we abandoned rigid pleading requirements in favor of simplified rules which comport with due process. The case at bar, however, illustrates the fatal danger of not satisfying the rule's minimal requirements. By failing to specially plead avoidance and by only interposing a denial, the plaintiff allowed pre-trial preparation to center on the stock option agreement and those steps which the plaintiff took to seek its enforcement. Yet, with the introduction of the testimony at issue, the focus of the trial suddenly shifted to the conduct of the defendant ... what it had said or done to excuse plaintiff's performance of the conditions precedent. In truth, this was a blind issue which veered into the midst of the trial without warning and without an opportunity to negate. Its prejudice to the defendant is evident since it formed the basis of the court's verdict. Thus, we hold that the admission of this testimony over objection is so antithetical to basic notions of fairness as to constitute reversible error.
Since the foregoing is dispositive of the case, we do not reach the issue of the competency of the plaintiff's testimony regarding a Mrs. Gunderson. Though the court initially sustained defense counsel's objection, it receded from its ruling with the following remarks:
Well, now, we will be here for about two weeks if we don't get down to the point. Your objection is I think technically correct. I don't think it is important. His understanding why he didn't get his option exercised is what the answer obviously *204 will be. I think he is entitled to say what it is.
(Tr.17). It is now clear that the objected-to testimony is crucial to the case and, at retrial, it will be incumbent upon the court to make an initial determination as to its competency.
Accordingly, the cause is reversed and remanded for a new trial.
MOORE and BERANEK, JJ., concur.
|
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
SAMUEL STATEN, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-5650
STATE OF FLORIDA,
Appellee.
______________________/
Opinion filed July 2, 2014.
An appeal from the Circuit Court for Leon County.
Jackie L. Fulford, Judge.
Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
PADOVANO, WETHERELL, and MAKAR, JJ., CONCUR.
|
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2352
___________
Mindy Reaves, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Missouri Department of Elementary *
and Secondary Education; Missouri *
Division of Vocational Rehabilitation; *
D. Kent King, *
*
Appellees. *
___________
Submitted: April 14, 2005
Filed: September 2, 2005
___________
Before MELLOY, COLLOTON, and GRUENDER, Circuit Judges.
___________
COLLOTON, Circuit Judge.
Mindy Reaves appeals the district court’s1 order granting summary judgment
for the Missouri Department of Elementary and Secondary Education (“Department”),
the Missouri Division of Vocational Rehabilitation (“Division”), and D. Kent King
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
in Reaves’s action under the Rehabilitation Act of 1973 (“Act”), 29 U.S.C.§§ 701-
796l. We affirm.
I.
Reaves is a disabled person and a client of the Division. The Division, as
Missouri’s “designated State agency,” 29 U.S.C. § 721(a)(2)(A), is charged with
providing vocational rehabilitation services for individuals with disabilities in the
State. 29 U.S.C. §§ 720, 721-723. The Division is organized as part of the
Department, of which King is the appointed Commissioner.
In 1998, Reaves requested support from the Division in her pursuit of a career
as what is known as an “electro-acupuncture according to Voll” (“E.A.V.”)
technician. In particular, she sought financial support to allow her to purchase an
“electro-dermal” device known as the bio-energetic stress testing (“B.E.S.T.”) system,
which she would use to detect stress levels in human and animal patients. Reaves had
past personal experience with the B.E.S.T. system, and credited it with diagnosing the
cause of symptoms from which she suffered after a car accident.
At the Division’s request, Reaves attended an assessment and consultation
clinic in July 1999 at the University of Missouri-Columbia and began work on a
business plan. Later that year, the director of field operations at the Division noted
that Reaves’s business plan was not adequately developed and suggested that she
attend the Southwest Missouri State University’s small business program. The
Division also provided private assistance for Reaves in formulating her business plan.
Eventually, Reaves submitted a business and financial plan proposing a sole
proprietorship and estimating her total sales revenue for the first year of her business
at $172,800. The plan called for revenue of $112,800 from examinations using the
B.E.S.T. system and $60,000 from the sale of homeopathic medicines. After
-2-
subtracting costs and operating expenses, Reaves’s projected net income before taxes
was $138,734. Reaves’s revenue estimates were derived from her expectation of
treating sixteen patients per week with the B.E.S.T. system, 40 percent human at $150
per exam, 30 percent canine at $70 per exam, and 30 percent equine at $200 per
exam. She also expected to sell an average of $75 in homeopathic products per exam.
At a meeting with Reaves and her parents, Melissa Steele-Lufcy, the supervisor
of the Division office with which Reaves was working, denied Reaves’s business plan
proposal. A letter confirming the denial dated April 19, 2002, cited the following
factors as reasons for the denial:
1. Reaves’s limited concentration abilities, her difficulty with
impulsivity, and her decreased higher-level organizational skills;
2. Reaves’s “difficulty with decision making and problem
evaluation/solving skills,” resulting in frequent confusion when facing
complex choices;
3. Reaves’s anxiety in response to stress, which, the Division believed,
could impair decision-making abilities;
4. Reaves’s “passive/aggressive tendencies,” which, according to the
Division, could interfere with her judgment and her decision-making
abilities;
5. Reaves’s slowness in responding to requests for “business plan
items” and in completing tasks associated with her business plan; and
6. The “extremely limited” number of practitioners in the Midwest area
who had demonstrated financial success with the “B.E.S.T.” system.
-3-
The letter also stated that in the course of Steele-Lufcy’s decision-making process,
“the business plan . . . was reviewed with other Vocational Rehabilitation
colleagues.”
After Reaves requested a review of Steele-Lufcy’s decision, a meeting was held
among Reaves, her father, and Tony Logan, the Division’s Regional Manager, at
which Reaves’s situation was discussed. Logan agreed to review Reaves’s business
plan and her Division file. After his review, Logan issued a letter again denying
Reaves’s request. Logan’s letter did not mention the disabilities cited by Steele-
Lufcy, but instead noted that “[t]he Best System is not recognized by the American
Medical Association, nor is the procedure accepted as a billable service by insurance
companies.” (J.A. at 249). It further noted that “the service has not been approved
by Medicaid or Medicare,” and that “[i]n the context of health management and
interventions, it appears necessary to possess credentials and expertise in a field
recognized by the A.M.A.” (Id.). Reaves’s request for funding to purchase the
B.E.S.T. System was therefore denied.
Following a failed attempt at mediation, Reaves requested a due process
hearing to which she was entitled by statute. 29 U.S.C. § 722(c)(5)(A). Reaves
sought to have the scope of the hearing confined to Logan’s denial letter, but the
hearing officer denied her request and considered “all evidence relating to the denial
of the vocational goal referred to in Mr. Logan’s letter.” (J.A. at 22). Evidence
considered by the hearing officer over Reaves’s objection included Steele-Lufcy’s
letter and the evidence on which it was based, a press release from the State of
Oregon’s Department of Justice regarding the Oregon Attorney General’s lawsuit
against a healthcare company using electro-dermal testing, and two Internet reports
on electro-diagnostic testing and homeopathic medicine by Stephen Barett, M.D.,
posted at “www.quackwatch.com.” The hearing officer also considered two Missouri
statutes, one proscribing the illegal practice of medicine, Mo. Rev. Stat. § 334.010,
-4-
and another barring the illegal practice of veterinary medicine, Mo. Rev. Stat.
§ 340.216. The hearing officer upheld the Division’s denial of funding in a decision
issued May 29, 2003.
On June 10, 2003, Reaves requested administrative review of the hearing
officer’s ruling by Commissioner King, pursuant to federal and state regulations. See
34 C.F.R. § 361.57(g); Mo. Code Regs. Ann. tit. 5, § 90-4.420. She sought a copy
of the hearing transcript as well as an opportunity to brief and argue her position. On
June 11, 2003, an assistant attorney general recommended to Commissioner King that
Reaves be given a transcript and be permitted to brief her position within five
business days of receiving the transcript, but that her request for oral argument be
denied. On June 12, 2003, Reaves replied with a proposal that she have ten business
days to prepare her brief and additional evidence after receipt of the transcript.
A copy of the hearing transcript was delivered to Reaves on June 30, 2003,
along with a letter requesting a response by July 7, 2003. Reaves sought an extension
of the deadline, but was denied. After receiving additional materials from Reaves,
the Commissioner upheld the decision of the hearing officer, finding that “there were
sufficient grounds for the finding of the hearing officer in this matter.” (J.A. at 407).
The Commissioner continued, “it is my decision that the findings of the impartial
hearing officer to deny financial assistance with the B.E.S.T. system should be
sustained.” (Id.).
Reaves then sought review of the due process hearing and Commissioner
King’s decision in the Western District of Missouri pursuant to 29 U.S.C.
§ 722(c)(5)(J). The district court, applying by analogy the standard of review
applicable under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§§ 1400-1482, made “‘an independent decision of the issues based on a
preponderance of the evidence, giving “due weight” to the state administrative
proceedings,’” (Add. at 2) (quoting Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607,
-5-
610 (8th Cir. 1997)), and ruled that neither Reaves’s due process nor statutory rights
were violated during the state review process.
II.
Title I of the Rehabilitation Act, 29 U.S.C.§§ 720-751, authorizes grants “to
assist States in operating statewide . . . programs . . . [d]esigned to assess, plan,
develop, and provide vocational rehabilitation services for individuals with
disabilities, consistent with their strengths, resources, priorities, concerns, abilities,
capabilities, interests, and informed choice,” with the goal of preparing and enabling
such individuals to “engage in gainful employment.” 34 C.F.R. § 361.1. To be
eligible for these grants, States must submit plans that comply with 29 U.S.C. § 721.
29 U.S.C. § 721(a). The state plans under § 721 must provide for the development
and implementation of “individualized plans for employment” for certain disabled
individuals. See id. § 721(a)(9); 34 C.F.R. § 361.45. An individualized plan for
employment is required to contain, among other things, “a description of the specific
employment outcome that is chosen by the eligible individual, consistent with the
[individual’s] unique strengths, resources, priorities, concerns, abilities, capabilities,
interests, and informed choice.” 29 U.S.C. § 722(b)(3)(A); accord 34 C.F.R.
§ 361.46(a). Whether an employment outcome is “consistent” with the listed
attributes ultimately is subject to the State’s determination: the choice of the
individual must be “approved and signed by a qualified vocational rehabilitation
counselor employed by the designated State unit.” 29 U.S.C. § 722(b)(2)(C)(ii).
Section 102(c) of the Act, codified at 29 U.S.C. § 722, requires participating
States to establish procedures for mediation and review of “determinations made by
personnel of the designated State unit that affect the provision of vocational
rehabilitation services to applicants or eligible individuals.” 29 U.S.C. § 722(c)(1).
One of the procedures States are required to use is a “due process hearing,” 29 U.S.C.
§ 722(c)(1), conducted by “an impartial hearing officer” who is to review such
-6-
determinations. The Act further provides for judicial review of the hearing officer’s
decision. Section 722(c)(5)(J) provides that “[a]ny party aggrieved by [a final
decision of a hearing officer after a due process hearing pursuant to § 722(c)(2) or of
a state reviewing official pursuant to § 722(c)(5)(D)] may bring a civil action for
review of such decision,” and it is under this section that Reaves proceeds.
A.
Reaves challenges the district court’s determination that a preponderance of the
evidence supported the Division’s denial of funding for the B.E.S.T. system. As a
preliminary matter, the parties dispute the standard of review to be applied by a
district court under § 722(c)(5)(J). The parties agree that the district court properly
considered cases applying the IDEA for guidance in interpreting the Rehabilitation
Act’s standard of review, but they differ over what these cases require. Reaves
contends that the district court’s review should be limited to whether the hearing
officer and Commissioner King’s findings of fact rely on substantial and competent
evidence. The appellees suggest that the district court is required to give “due
weight” to the state proceedings.
We agree that the district court was correct to look to cases interpreting the
IDEA for guidance regarding the appropriate standard of review under § 722(c)(5)
of the Rehabilitation Act, given that the text and structure of the statutes are virtually
identical. Section 615(i)(2)(B) of the IDEA provides as follows:
In any action brought under this paragraph, the court . . . (i) shall receive
the records of the administrative proceedings; (ii) shall hear additional
evidence at the request of a party; and (iii) basing its decision on the
preponderance of the evidence, shall grant such relief as the court
determines is appropriate.
-7-
In Board of Education v. Rowley, 458 U.S. 176 (1982), the Supreme Court interpreted
this language to prohibit reviewing courts from “substitut[ing] their own notions of
sound educational policy for those of the school authorities which they review.” Id.
at 206. According to the Court, the requirement that the reviewing court “‘receive the
records of the [state] administrative proceedings’ carries with it the implied
requirement that due weight shall be given to these proceedings.” Id. (alteration in
original).
Like the IDEA, the Rehabilitation Act requires a reviewing court to receive the
records of the state proceedings, before hearing additional evidence and basing its
decision on a preponderance of the evidence:
[T]he court . . . (I) shall receive the records relating to the [due process]
hearing . . . and the records relating to the State review . . . (II) shall hear
additional evidence at the request of a party to the action; and (III)
basing the decision of the court on the preponderance of the evidence,
shall grant such relief as the court determines to be appropriate.
29 U.S.C. § 722(c)(5)(J)(ii). We conclude, therefore, that as under the IDEA, the
reviewing court should determine whether the agency’s decision is supported by a
preponderance of the evidence, while giving “due weight” to the conclusions reached
in the State’s due process hearing. This “rather unusual statutory standard,” see
Indep. Sch. Dist. No. 283 v. J.D. ex rel. S.D., 88 F.3d 556, 561 (8th Cir. 1996), is
more deferential than de novo review, and requires the district court to refrain from
substituting its own notions of sound policy for those of the state authorities. Cf.
Rowley, 458 U.S. at 206. Neither party has proposed an appellate standard of review
of the district court’s determination, but at least where the district court received no
new evidence and made no independent factual findings, we conclude that de novo
review of the district court is appropriate. Cf. Neosho R-V School Dist. v. Clark, 315
F.3d 1022, 1027 (2003); Clynes, 119 F.3d at 611; Reid ex rel. Reid v. District of
Columbia, 401 F.3d 516, 521-22 (D.C. Cir. 2005).
-8-
Applying these standards of review to the present case, we believe that the
district court correctly concluded that the determinations of the hearing officer and
Commissioner King upholding the Division’s refusal to approve Reaves’s
employment choice were supported by a preponderance of the evidence. The hearing
officer and Commissioner King considered evidence that the position of E.A.V.
technician required medical credentials and expertise that Reaves did not possess, and
that the B.E.S.T. System was not recognized by the AMA, Medicaid, Medicare, or by
insurance companies. They also considered testimony that Reaves was not well
suited to a position, such as ownership of a service-industry business, that required
concentration, organization, and a high level of responsibility – factors that were
outlined in Steele-Lufcy’s denial letter. Reaves presented no contradictory evidence
at the due process hearing regarding these grounds for the Division’s decision. The
outcome of the state proceedings, therefore, was supported by a preponderance of the
evidence.
B.
Reaves next advances two arguments why she was deprived of liberty or
property without due process of law. First, she contends that the hearing officer’s
consideration of evidence other than Logan’s denial letter deprived her of due
process. Reaves argues that she could “reasonably expect” that the proceeding before
the hearing officer would be limited to the statements made in the Logan letter and
the information relied upon by Logan in reaching his decision. She asserts that the
hearing officer’s unexpected consideration of other evidence deprived her of a right
to “notice adequate to permit an opportunity to defend against the allegations and
present conflicting evidence.” (Appellant’s Br. at 27). This deprivation, she
contends, violated the Due Process Clause.
“Due process is flexible and calls for such procedural protections as the
particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976)
-9-
(internal quotation and alteration omitted). At its essence, however, “[t]he
fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Id. at 333 (internal quotation omitted).
The district court observed that the State never raised the question whether Reaves
had a constitutionally-protected liberty or property interest at stake, such that the Due
Process Clause is even implicated here. We follow the same course as the district
court by assuming the existence of such an interest for purposes of analysis.
We conclude that the hearing officer’s consideration of evidence beyond that
cited in the Logan denial letter did not deprive Reaves of due process. Reaves’s
contention is premised on a misunderstanding of the review process under the
Rehabilitation Act. The hearing officer’s review is to be of the “determinations made
by personnel of the designated State unit,” 29 U.S.C. § 722(c)(1), but the statute does
not require that the review be limited to information or evidence cited by one
decisionmaker in the unit. The regulations governing impartial due process hearings
explicitly contemplate that the applicant may present new evidence during the
hearing, 34 C.F.R. § 361.57(e)(2); Mo. Code Regs. Ann. tit. 5, § 90-4.420(6), and
nothing in the regulations precludes the State from presenting evidence as well. Both
parties also may present evidence before the Commissioner as part of his
administrative review of the hearing officer’s decision. 34 C.F.R. § 361.57(g)(3)(i).
Any assumption by Reaves, therefore, that the record would remain static, and that
the hearing officer (or the Commissioner) would limit his consideration of evidence
to that mentioned in the Logan denial letter, was not reasonable.
Nor do we believe that the conduct of the hearing in this case was inconsistent
with constitutional principles of due process. Some of the evidence that Reaves says
were “new reasons” justifying the Division’s denial of services were not new at all
– Steele-Lufcy’s letter discussed a number of these points, and that letter was sent to
Reaves well before the hearing. Reaves also had a meaningful opportunity to be
heard on the evidence. She cross-examined Steele-Lufcy at the hearing on the bases
-10-
for her denial letter and its contents, questioned the reliability of the Oregon press
release and the “www.quackwatch.com” reports, and testified to the effectiveness of
electro-dermal devices in her own experience. She was also free to present any
additional evidence before Commissioner King that she believed would rebut the
evidence considered by the hearing officer. Thus, assuming that Reaves had a
cognizable liberty or property interest at stake, the State’s procedures afforded due
process of law.2
Reaves also contends that her due process rights were violated by the
Commissioner’s refusal to grant her a requested extension of time. As described
above, Reaves sought review of the hearing officer’s determination by Commissioner
King on June 10, 2003. See 29 U.S.C. § 722(c)(5)(D); 34 C.F.R. § 361.57(g); Mo.
Code Regs. Ann. tit. 5, § 90-4.420. Review was granted on June 11, 2003, and the
Division proposed giving Reaves five days to submit additional evidence and to
respond after receiving a transcript of the due process hearing. Reaves countered
with a request for at least ten days in which to respond after receiving a transcript.
Her request was not granted, and she received a transcript of the due process hearing
on June 30 along with a request for a response by July 7. Reaves submitted
additional information before July 7, and on July 10, Commissioner King rendered
his decision.
2
Even assuming, however, that the hearing officer was permitted to consider
only Logan’s denial letter, the letter alone would have supported the hearing officer’s
decision. As discussed above, the denial letter recited that the AMA, Medicaid, and
Medicare did not approve use of the B.E.S.T. system, and that insurance companies
refused to accept the B.E.S.T. system as a billable service. In the context of a
business plan involving the provision of medical services, these are good reasons to
deny funding. The hearing officer’s decision upholding the Division’s determination
that Reaves’s business plan did not contemplate a viable “employment outcome,”
within the meaning of 34 C.F.R. § 361.5(b)(16), was thus supported by a
preponderance of the evidence, even considering only Logan’s denial letter.
-11-
In denying Reaves’s extension request, Commissioner King cited 34 C.F.R.
§ 361.57, which requires that any administrative review procedures established by the
States result in “an independent, final decision” provided in writing to the eligible
individual and to the State unit “within 30 days of the request for administrative
review.” 34 C.F.R. § 361.57(g)(3)(iii). Reaves requested review on June 10, 2003,
making Commissioner King’s decision due by July 10, 2003. Reaves argues that
because the 30-day time limit for review exists for the benefit of the eligible
individual, she should have been able to waive it. Reaves cites no authority for the
waivability of the time limit, and it seems to us that the 30-day time limit also benefits
the State by ensuring timely decisions.
Even if the time limit had been waivable by Reaves, moreover, the denial of her
request for an extension of time did not deprive her of due process. Seven days’
response time was a reasonable compromise between Reaves’s request for ten days
and the State’s initial proposal of five days. In addition, Reaves had 27 days between
Commissioner King’s decision on June 11 to grant administrative review and the July
7 deadline in which to prepare her response. Reaves was able to submit additional
materials after receiving the transcript, suggesting that seven days was sufficient
response time. (Add. at 8). In light of these facts, we agree with the district court that
Reaves received “the opportunity to be heard at a meaningful time and in a
meaningful manner.” Mathews, 424 U.S. at 333 (internal quotation omitted).
For the foregoing reasons, the judgment of the district court is affirmed.
______________________________
-12-
|
882 F.Supp. 1524 (1995)
Karol R. STADLER and Richard E. Grossberg, individually and on behalf of all others similarly situated, Plaintiffs,
v.
A. Donald McCULLOCH, Jr., Reef C. Ivey II, Albert J. DiMarco and John E. Sylvester, Defendants.
No. 93-CV-3093.
United States District Court, E.D. Pennsylvania.
April 24, 1995.
*1525 Patricia D. Gugin, Alan M. Sandals, Sherrie R. Savett, Berger & Montague, P.C., Philadelphia, PA, Robert A. Rovner, Rovner, Allen, Rovner, Zimmerman & Kats, Feasterville, PA, Joshua P. Rubinsky, Brodie & Rubinsky, Philadelphia, PA, for plaintiffs.
Ellen Rosen Rogoff, Jonathan Bloom, Bolger, Picker, Hankin & Tannenbaum, Philadelphia, PA, for defendant McCulloch.
Barry E. Ungar, Carol J. Sulcoski, Mann, Ungar & Spector, Philadelphia, PA, for defendant Ivey.
Anthony C.H. Vale, Pepper, Hamilton & Scheetz, Philadelphia, PA, for defendant DiMarco.
Thomas A. Masterson, Thomas P. Hogan, Jr., Joseph B.G. Fay, Morgan, Lewis & Bockius, Philadelphia, PA, for defendant Sylvester.
MEMORANDUM AND ORDER
JOYNER, District Judge.
I. BACKGROUND
This Memorandum and Order addresses four outstanding motions in this dispute, all filed in the aftermath of this Court's Memorandum and Order of January 17, 1995. See Killian v. McCulloch, 873 F.Supp. 938 (E.D.Pa.1995). The defendants in this action, A. Donald McCulloch, Jr., Reef C. Ivey, II, Albert J. DiMarco and John Sylvester, are former officers of Nutri/System, Inc., a Pennsylvania company that was placed in involuntary bankruptcy in May of 1993. In March of 1989, Nutri/System's board of directors adopted the Partnership Profit Sharing Plan ("the PPSP"), pursuant to which the company was to provide a percentage of its profits to key employees. Due to its precarious financial state, however, Nutri/System failed to fulfill the PPSP's obligations.
This lawsuit ensued. On May 11, 1994, Plaintiffs Catherine Killian and Richard Grossberg, former Nutri/System employees, filed their second amended class action complaint. The plaintiffs subsequently submitted a motion seeking to have the action certified and maintained as a class action. The *1526 defendants not only opposed the class certification motion, but also filed a motion seeking summary judgment as to all of the claims brought by Ms. Killian and three of the claims brought by Mr. Grossberg. In our January 17 ruling, we first held that the scope of Pennsylvania's Wage Payment and Collection Law, 43 Pa.Stat.Ann. §§ 260.1-260.12 ("WPCL"), extends only to those employees based in Pennsylvania. Accordingly, we awarded summary judgment to the defendants as to the claims brought under the WPCL by the named plaintiffs, both of whom were based out of state. Id. at 942. In addition, we held that the release executed by Ms. Killian precluded her from bringing any claims related to the PPSP. Thus, we granted summary judgment to the defendants as to all of the claims brought by Ms. Killian. Id. at 943-44. We then denied the plaintiffs' motion for class certification, reasoning that since neither named plaintiff could bring WPCL claims, and since all of Ms. Killian's claims were barred by her execution of the release, neither Ms. Killian nor Ms. Grossberg were suitable representatives of the putative class. Id. at 945. We did, however, allow the plaintiffs to amend their complaint and to submit a new motion for class certification. Id.
The plaintiffs filed their third amended class action complaint on February 15, 1995, which named Mr. Grossberg and Karol R. Stadler as plaintiffs. The third amended complaint contains eight counts, three of which have been brought against Mr. Sylvester. These claims, including breach of an implied covenant of good faith, fraudulent misrepresentation and negligent misrepresentation, each arise under state law. Indeed, the only federal claim contained in the third amended complaint, Count VI, has not been brought against Mr. Sylvester. In Count VI, the plaintiffs allege that the three other defendants failed to reimburse medical expenses to which the plaintiffs were entitled, in violation of ERISA.
On February 21, 1995, the plaintiffs filed an amended motion for class certification. Two days later, on February 23, Plaintiff Killian filed a motion for direction of final judgment pursuant to Fed.R.Civ.P. 54(b). Meanwhile, on March 2, 1995, Defendant Sylvester filed a motion to dismiss the third amended complaint as it applies to him, pursuant to Rule 12(b)(1). Mr. Sylvester's motion includes a request for oral argument. Defendants McCulloch, Ivey and DiMarco submitted a response to Ms. Killian's Rule 54(b) motion and the amended motion for class certification on March 7, in which they acquiesce to the granting of the Rule 54(b) motion as long as this action is stayed pending the resolution of Ms. Killian's appeal of our January 17 ruling. Moreover, these defendants argue that the motion for class certification should be denied. Defendant Sylvester joins the response of the other defendants, but argues that the stay, if granted, should not delay the resolution of his Rule 12(b)(1) motion. The plaintiffs oppose the motion to stay. This memorandum will thus address: (1) Plaintiff Killian's Rule 54(b) motion, (2) Defendants' motion to stay, (3) the plaintiffs' motion for class certification, and (4) Defendant Sylvester's Rule 12(b)(1) motion.
II. DISCUSSION
A. Rule 54(b) Motion
Rule 54(b) allows the district court to enter a final ruling as to one of the parties in a multiple claim or multiple party action if there is no just reason for delay. The rule provides, in pertinent part, as follows:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
Fed.R.Civ.P. 54(b). The United States Supreme Court set forth the steps to guide a district court's Rule 54(b) analysis in Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). Accordingly, when deciding whether to exercise its discretion under Rule 54(b), the "district court must first determine it is dealing with a `final judgment.'" Id. at 7, 100 S.Ct. *1527 at 1464. A final judgment is one that terminates the litigation on the merits, leaving nothing for the court to do but enter judgment. eds Adjusters, Inc. v. Computer Sciences Corp., 149 F.R.D. 86, 89 (E.D.Pa.1993) (citing 28 U.S.C. § 1291). If the court determines that the judgment is final, it must then determine whether there is just cause for delay of the appeal. Curtiss-Wright, 446 U.S. at 7-8, 100 S.Ct. at 1464-65. In making this determination, the court is to consider both the interest in judicial economy and the equities involved. Thus, the court should examine factors such as whether the claims to be appealed are separable from the remaining claims and whether the appellate court would likely revisit an issue if there were subsequent appeals. Id. at 8, 100 S.Ct. at 1464-65.
Turning to the matter at hand, it appears that Rule 54(b) certification is warranted. First, the parties agree that our January 17 Order terminated Ms. Killian's claims and was therefore a final judgment as to her. Further, the parties acknowledge that the issues presented by Ms. Killian's appeal, including whether the protections contained in the WPCL extend to those workers based outside of Pennsylvania and whether the release signed by Ms. Killian precludes her from asserting claims based upon the PPSP, are separable from the remaining issues in the case. Thus, the appellate court is unlikely to revisit these issues in a subsequent appeal because resolution of the former issue would likely govern all potential plaintiffs and members of the putative class, while the latter issue concerns only Ms. Killian. Finally, we conclude that the equities favor granting Ms. Killian's Rule 54(b) motion. Were we to deny her motion, the final resolution of her claims would be delayed needlessly. Accordingly, we will grant Ms. Killian's Rule 54(b) motion.
B. Motion to Stay
The district court possesses the inherent power to stay any proceeding in order to promote its fair and efficient adjudication. United States v. Breyer, 41 F.3d 884, 893 (3d Cir.1994) (citing Gold v. Johns-Manville Sales Corp., 723 F.2d 1068, 1077 (3d Cir. 1983)). Since the stay is an "extraordinary measure," the onus is on the movant to offer some "compelling reasons" demonstrating that a stay is warranted. Id.; Remington Arms Co. v. Liberty Mut. Ins. Co., 748 F.Supp. 1057, 1062 (D.Del.1990). Courts must consider the time and effort of counsel and the litigants with a view toward a policy of avoiding piecemeal litigation. Landis v. North Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 165-66, 81 L.Ed. 153 (1936).
Upon review of these considerations and the arguments presented by the parties, we conclude that the instant proceeding warrants a stay. As we noted in our January 17 Memorandum and Order, the potential class of plaintiffs contains over two hundred members. The effect of our decision was to limit the class members to those who were based in Pennsylvania and did not freely release their claims. Thus, any appellate ruling reversing our decision would dramatically impact the size of the class and the scope of the litigation. If the action were to progress, the Third Circuit's ruling might cause the parties to retrace a number of their steps, and could render meaningless much of the work completed in the interim. Further, the uncertainty created by Ms. Killian's appeal makes it impossible to assess with any accuracy the extent to which the defendants may be liable, thus hampering settlement efforts.
The plaintiffs object to the motion to stay. Specifically, the plaintiffs argue that we should not delay in addressing the merits of their motion for class certification. The plaintiffs urge the Court to certify the class now and entertain requests to decertify, narrow, or expand the class later, as the circumstances dictate. While we recognize that this action was commenced almost two years ago and are anxious to achieve its resolution, we simply do not see the point in addressing the merits of the class certification motion now only to revisit the issue after the Third Circuit issues its decision with respect to Ms. Killian's appeal. Nor can we identify any prejudice that will befall the plaintiffs as a result of our decision to stay the matter. We think it more sensible to await the Third Circuit's decision and proceed accordingly, rather than charging forward, possibly to *1528 trial, knowing that we may be compelled to return to this point and begin anew. Accordingly, we will grant the defendants' motion to stay the proceedings pending the outcome of Ms. Killian's appeal. Further, we will deny the plaintiffs' motion for class certification without prejudice, opting instead to entertain, at a later date, a class certification motion that reflects the Third Circuit's resolution of Ms. Killian's appeal.
C. Defendant Sylvester's Motion to Dismiss
As we noted above, Defendant Sylvester has submitted a motion to dismiss the third amended complaint pursuant to Rule 12(b)(1). Mr. Sylvester bases his Rule 12(b)(1) motion upon his contention that the Court lacks supplemental jurisdiction over the claims asserted against him. Prior to our January 17 ruling, the Court exercised subject matter jurisdiction over the claims asserted against Mr. Sylvester by virtue of its diversity jurisdiction, since Ms. Killian, Mr. Grossberg and the defendants are all of diverse citizenship. See 28 U.S.C. § 1332. Ms. Stadler, however, is a Pennsylvania resident, as are Defendants McCulloch and DiMarco. Thus, the Court cannot exercise diversity jurisdiction over the claims set forth in the third amended complaint. See Stanley v. Exxon Corp., 824 F.Supp. 52, 53 (E.D.Pa. 1993) (for court to exercise diversity jurisdiction, there must be "complete diversity;" that is, all plaintiffs must be of citizenship different than all defendants).
Since the issue of diversity jurisdiction appears to hinge on Ms. Killian's viability in this case, therefore, we are inclined to defer consideration of Mr. Sylvester's motion to dismiss until the appeal is resolved. Should Ms. Killian prevail before the Third Circuit, the court would have subject matter jurisdiction over the claims asserted against Mr. Sylvester by virtue of its diversity jurisdiction; and Mr. Sylvester's 12(b)(1) motion would be rendered moot. To consider the motion at this juncture and conclude that we could not exercise supplemental jurisdiction over the claims relating to the PPSP would indeed be a meaningless exercise if Ms. Killian were reinstated as a plaintiff. Thus, we conclude that interests in judicial economy favor the inclusion of the 12(b)(1) motion within the bounds of the stay order.
Mr. Sylvester, however, urges us to address his motion now. Indeed, Mr. Sylvester contends that the Federal Rules of Civil Procedure compel us to consider his motion irrespective of any stay order. In support of this argument, Mr. Sylvester points to Rule 12(h)(3) and cases that have addressed it. The rule provides as follows: "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3). Generally, this language has been interpreted to require courts to dismiss an action "if it becomes apparent at any time that [subject matter] jurisdiction is lacking." Lake v. First Nationwide Bank, 156 F.R.D. 615, 621 (E.D.Pa. 1994); see TM Marketing, Inc. v. Art & Antiques Assocs., 803 F.Supp. 994, 997 (D.N.J.1992) ("When it becomes apparent that subject matter jurisdiction is lacking, the court must dismiss the action regardless of the stage of the litigation.").
However, in In re School Asbestos Litigation, 921 F.2d 1310 (3d Cir.1990), cert. denied, 499 U.S. 976, 111 S.Ct. 1623, 113 L.Ed.2d 720 (1991), our Court of Appeals recognized that in light of Rule 12(d), Rule 12(h)(3) does not compel the immediate consideration of a Rule 12(b)(1) motion. Id. at 1315. Rule 12(d) provides, in relevant part, that a Rule 12(b)(1) motion "shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until trial." Thus, Rule 12(d) empowers the court to postpone a decision on a 12(b)(1) motion. In ruling that the district court could defer, until trial, consideration of the issue of whether class members could each satisfy the jurisdictional amount in the diversity context, the Third Circuit held that while "Rule 12(h)(3) invests the district court with the power to dismiss the action ... Rule 12(d) discloses when this power may be exercised." Asbestos Litigation, 921 F.2d at 1310.
We draw the same conclusion with respect to the case at hand. While we are compelled *1529 to address a 12(b)(1) motion if it appears that jurisdiction is lacking, Rule 12(d) requires only that we consider it "before trial" and explicitly empowers us to postpone consideration until trial. Rule 12(d). Thus, we are acting within our discretion when we elect to postpone consideration of the 12(b)(1) motion until the stay is lifted. Further, as we noted above, we believe that by declining to address the issue now, we reduce the chance of expending judicial resources resolving an issue that may be rendered academic. The Federal Rules require us to consider the issue of jurisdiction before proceeding to the merits. Trent Realty Assocs. v. First Federal Sav. & Loan Assoc., 657 F.2d 29, 36 (3d Cir.1981); Carlsberg Resources Corp. v. Cambria Sav. & Loan Assoc., 554 F.2d 1254, 1256 (3d Cir.1977). Our action today respects that requirement. Accordingly, we will deny Mr. Sylvester's Rule 12(b)(1) motion without prejudice and allow him to raise the issue again once the stay is lifted, if he should so choose.
III. CONCLUSION
For the reasons stated above, the Court will grant Plaintiff Catherine Killian's Motion for Direction of Final Judgment filed pursuant to Fed.R.Civ.P. 54(b) as well as Defendants' Motion to Stay the Proceedings. Moreover, the Court will deny without prejudice both Plaintiffs' Motion for Class Certification and Defendant John Sylvester's Rule 12(b)(1) Motion to Dismiss.
An appropriate order follows.
ORDER
AND NOW, this 24th day of April, 1995,
1. Upon consideration of Plaintiff Catherine Killian's Motion for Direction of Final Judgment filed pursuant to Fed.R.Civ.P. 54(b), and the response thereto, it is hereby ORDERED, for the reasons set forth in the preceding memorandum, that said Motion is GRANTED. Judgment is hereby entered in favor of Defendants as to all claims brought by Plaintiff Killian.
2. Upon consideration of Defendants' Motion to Stay the Proceedings, and the response thereto, it is hereby ORDERED, for the reasons set forth in the preceding memorandum, that said Motion is GRANTED. The above-captioned action is hereby STAYED pending the resolution of Plaintiff Killian's appeal of this Court's Memorandum and Order of January 17, 1995 to the Third Circuit Court of Appeals.
3. Upon consideration of Plaintiffs' Motion for Class Certification, and the response thereto, it is hereby ORDERED, for the reasons set forth in the preceding memorandum, that said Motion is DENIED without PREJUDICE.
4. Upon consideration of Defendant John Sylvester's Motion to Dismiss filed pursuant to Fed.R.Civ.P. 12(b)(1), and the response thereto, it is hereby ORDERED, for the reasons set forth in the preceding memorandum, that said Motion is DENIED without PREJUDICE.
|
80 F.2d 73 (1935)
VICK CHEMICAL CO.
v.
THOMAS KERFOOT & CO., Limited.
Patent Appeal No. 3532.
Court of Customs and Patent Appeals.
November 27, 1935.
Edward S. Rogers, James F. Hoge, and L.B. Stoughton, all of New York City, and Francis L. Browne and Thomas L. Mead, Jr., both of Washington, D. C., for appellant.
Asher Blum, Hugo Mock, and Walter L. Post, all of New York City (Charles R. Allen, of Washington, D. C., of counsel), for appellee.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
LENROOT, Associate Judge.
This is an appeal from a decision of the Commissioner of Patents, affirming a decision of the Examiner of Interferences which dismissed appellant's petition to cancel trade-mark registration No. 181,259, dated March 18, 1924, issued to appellee, for the word "Vapex." The said mark was registered for use upon an "inhalant for the relief of cold in the head and the like." The proceeding is under section 13 of the Trade-Mark Act of February 20, 1905 (15 U.S.C.A. § 93), which section reads as follows: "Sec. 13. That whenever any person shall deem himself injured by the registration of a trade-mark in the Patent Office he may at any time apply to the Commissioner of Patents to cancel the registration thereof. The commissioner shall refer such application to the examiner in charge of interferences, who is empowered to hear and determine this question and who shall give notice thereof to the registrant. If it appear after a hearing before the examiner that the registrant was not entitled to the use of the mark at the date of his application for registration thereof, or that the mark is not used by the registrant, or has been abandoned, and the examiner shall so decide, the commissioner shall cancel the registration. Appeal may be taken to the commissioner in person from the decision of examiner of interferences."
Appellant in its petition for cancellation alleges: that since prior to 1894, it has used the word "Vicks" as a trade-mark applied to various medicinal, pharmaceutical, and chemical preparations, naming a number of such preparations, including "salve," and that "at the present time the trade-mark Vicks is applied to liver pills, cough drops, nose and throat drops, and a rubifacient salve used in the treatment of colds * * *"; that said mark was duly registered on November 19, 1918, registration No. 123,667; that since about 1911 petitioner (appellant) has also used as a trade-mark for said salve the word "Vaporub," and that said last-named mark, together with the mark "Vicks," has since 1911 been conspicuously applied to packages containing said salve; that the said mark "Vaporub" was registered on April *74 6, 1915, registration No. 103,601. Petitioner alleges that the goods upon which its marks are used and the goods upon which the said mark "Vapex" is used are of the same descriptive properties; that the word "Vapex" so nearly resembles both of petitioner's registered marks, "Vicks" and "Vaporub," as to be likely to cause confusion in the minds of the public and to deceive purchasers, and that said mark "Vapex" has in fact caused such confusion.
The petition for cancellation further alleges that said mark "Vapex" "is not now used, and for several years preceding this time has not been used in inter-state commerce in the United States by the Registrant, Thos. Kerfoot & Co., Limited, but is used by some firm or person other than said Registrant."
The petition further sets out the usual allegations of injury and damage.
The answer of appellee denies that the goods to which the mark "Vapex" is applied are of the same descriptive properties as are the goods to which appellant's marks are applied; denies the allegation of the petition with regard to the similarity of the respective marks; and alleges that there never has been any confusion in the mind of the public growing out of the use of the said marks by the respective parties; denies that it was not using or had not used the said mark "Vapex" for several years preceding the filing of appellant's petition; alleges that it is the present owner of said mark; and denies petitioner's allegations of injury and damage.
Both sides took voluminous testimony. Appellee objected to certain letters offered by appellant as incompetent and hearsay and not duly authenticated, to which reference will be made hereinafter. Appellee also objected to certain rebuttal testimony offered by appellant upon the ground that such testimony should have been part of appellant's case in chief, and was not proper rebuttal. This also we shall advert to later herein.
Most of the testimony offered by appellant was in support of its claim of actual confusion in the mind of the public respecting the marks "Vapex," "Vicks," and "Vaporub," and most of the testimony offered by appellee was in support of its contention that no such confusion existed.
The Examiner of Interferences held that, from an inspection of the marks as a whole, confusion in trade was not likely, and that the evidence in the case, apparently including the letters to which appellee had objected as aforesaid, did not possess sufficient probative force to change or vary his conclusion arrived at from an inspection of the marks. The Examiner of Interferences declined to consider the evidence produced by appellant in rebuttal relating to confusion in trade, holding that such evidence was a part of the case in chief for appellant.
It appears also that it was contended before the Examiner of Interferences that the question of confusion was res adjudicata by reason of a previous opposition proceeding in the Patent Office between the parties hereto, wherein appellee sought the registration of the word "Vapex" inclosed within a triangle, which application for registration was opposed by appellant, setting up the marks "Vicks" and "Vaporub" and a triangle. In said proceeding the opposition of appellant was sustained and the application of appellee for said registration refused. The Examiner of Interferences held that the decision in said proceeding was not res adjudicata upon the question here involved for the reason that the marks there involved were not the same as are the marks in issue here.
Appellant apparently did not press this contention before the Commissioner, and in this court makes no claim that the decision in said former proceeding is res adjudicata of the issue here involved.
Upon appeal to the commissioner, the decision of the Examiner of Interferences was affirmed, whereupon appellant took the appeal now before us.
The Commissioner in his decision, while holding that the letters hereinbefore referred to were not competent evidence, and affirming the holding of the Examiner that appellant's evidence in rebuttal was improper, stated that, even considering all the foregoing as proper evidence, and all the other evidence in the record, he was of the opinion that confusing similarity between the marks of the respective parties had not been established. He also held that appellant's contention that appellee was not using the mark "Vapex" had not been established, stating that the statute is "not susceptible to the narrow interpretation contended for."
Before us appellant makes two contentions, as follows:
(1) That the record establishes that the mark "Vapex" is confusingly similar to the marks "Vicks" and "Vaporub," when applied to the goods of the respective *75 parties, or at least there is such doubt upon this question that, under the familiar rule, it should be resolved against the new-comer.
(2) That the record establishes that the mark "Vapex" was not used by appellee at the time this proceeding was initiated.
That the goods of the respective parties are of the same descriptive properties, and that appellant's use of the marks "Vicks" and "Vaporub" and registration of the same were prior to the use and registration of the mark "Vapex" by appellee, is conceded.
It appears from the testimony that appellant's goods to which the marks "Vicks" and "Vaporub" are applied are widely distributed throughout the entire United States. The vice president of appellant testified that, during the 5-year period from 1927 to 1932, an annual average of between 15 and 20 million families in the United States had been purchasers of "Vicks Vaporub," and that in 1932 over 26 million jars of this article were sold.
Likewise, sales of goods to which the mark "Vapex" is applied are extensive; the testimony showing that such sales amount to approximately 1,500,000 bottles annually.
Appellant relies not only upon the claim of confusing similarity between its marks "Vicks" and "Vaporub" and appellee's mark "Vapex," which it claims is apparent from an inspection of the marks, but it contends that the evidence produced by it establishes actual confusion in commerce in the use of said marks by the respective parties, particularly as relating to the origin of the goods to which the marks are applied.
We are in agreement with the views of the Commissioner and the Examiner of Interferences that an inspection of the marks themselves fails to reveal a confusing similarity between the mark "Vapex" and either of the marks "Vicks" and "Vaporub." As observed by the Commissioner, "`Vicks' and `Vapex' have only the initial letter in common, and while the spoken words terminate with the same sound, even then they are clearly distinguishable in that the first has only one syllable while the latter has two." We do not think that the ordinary purchaser would be likely to be confused or mistaken either as to goods or origin by the slight similarity between the marks "Vapex" and "Vicks."
With respect to the similarity between the marks "Vapex" and "Vaporub," the Commissioner in his decision said: * * * As between "Vaporub" and "Vapex" the only similarity, either when written or spoken, is the first syllable, "Vap"; and in view of the obvious differences it is difficult to comprehend how this one syllable in common could result in confusion. * * *
We would also observe in this connection that it is the well-settled rule that, in determining the question of confusing similarity between marks, such marks must not be dissected, but must be considered as a whole. Vick Chemical Co. v. Maurice E. Cordry, 54 F.(2d) 428, 19 C.C.P.A.(Patents) 828.
We are clear that an inspection of the marks in issue does not reveal a confusing similarity between the mark "Vapex" and appellant's marks "Vicks" and "Vaporub."
However, appellant's counsel contends that actual confusion between said marks has been established to such an extent that it should be held that the use of the word "Vapex" upon the goods to which it is applied so nearly resembles appellant's marks as to be likely to cause confusion or mistake in the mind of the public. In support of this contention appellant introduced the testimony of 19 witnesses, and certain documents and letters. Appellee, in support of its contention that there was no confusing similarity between said marks, introduced the testimony of 69 witnesses, and certain documents.
The Examiner of Interferences considered all of the evidence in the record, except the testimony offered by appellant in rebuttal, which he declined to consider upon the ground that such testimony was not proper rebuttal, but related only to appellant's case in chief. With respect to the evidence considered by the Examiner, as aforesaid, we find the following in his decision: "The testimony of both parties has been carefully considered by the examiner. It is believed that the testimony of the petitioner, for reasons that will more fully hereinafter appear, possesses much less probative force than is claimed for it by the petitioner. No attempt is made herein to determine its value relative to that offered by the respondent. It suffices to state that, giving the maximum probative force to which the testimony of the petitioner is believed to be entitled, it does not change or vary, substantially, the conclusion which the examiner has reached from *76 an inspection of the marks themselves considered as a whole and which the parties actually use in trade. This conclusion is that confusion in trade is not likely. Otherwise stated, the examiner is not willing to here surrender his own judgment on this matter by reason of the testimony produced by the petitioner. * * *"
The Commissioner in his decision, after analyzing certain of the testimony offered in behalf of appellant, stated as follows:
"In determining the weight and effect to be given the evidence just referred to, and similar testimony of other witnesses, I have necessarily been influenced to some extent by the enormous volume of petitioner's sales. Its vice-president, Mr. Allen T. Preyer, testified that during the five year period from 1927 to 1932, an annual average of between fifteen and twenty million families in the United States had been purchasers of `Vicks Vaporub'; and the record discloses that of this item alone over 26,000,000 jars were sold in 1932. It is not surprising, therefore, if occasional instances of confusion occurred; for as observed by the Court in the case of Parfumerie Roger & Gallet v. M. C. M. Co. (C.C.A.2dCir.) 24 F.(2d) 698, 699, `Some buyers will be confused by the most remote similarities.'
"Petitioner also offered in evidence about 30 letters, post cards, and other communications claimed to have been received by it from various unidentified firms and individuals, which would tend to indicate that the purported senders had confused `Vapex' with one or another of petitioner's products, or believed it was manufactured by petitioner. No foundation was laid for the introduction of any of these communications, save that of Mrs. Patrenelis, whose testimony has already been referred to; and I am therefore clearly of the opinion that they are not competent evidence. Subject to certain exceptions which have no application here the rule is fundamental that before any document may properly be received in evidence there must be some proof of its authenticity. Consolidated Grocery Co. v. Hammond (C.C.A.5thCir.) 175 F. 641; Varley Co. v. Ostheimer (C.C.A.2dCir.) 159 F. 655; Jones v. Mencik (C.C.A.3d Cir.) 286 F. 890; Henry Romeike, Inc., v. Albert Romeike & Co., Inc., 179 App. Div. [712] 718, 167 N.Y.S. 235, (affirmed 227 N.Y. 561 [124 N.E. 898]).
"Petitioner insists that the communications referred to were admissible, without authentication, to show confusion in the public mind, and cites as authority for this proposition the case of Parfumerie Roger & Gallet v. M. C. M. Co., Inc., supra. It was there held that certain letters received by plaintiff had been improperly excluded `on the ground that they were self-serving declarations.' The Court said: `That, of course, they were not, and, moreover, they seem to us, all things considered, to have been enough authenticated to be competent.' Here, however, the ground of objection was that the proffered exhibits were `incompetent and hearsay,' and they were read into the record without any pretense of authentication, so that obviously the case cited can have no application.
"But even if all these communications were properly before me I would be unable to find from the whole record that the claimed confusion had been established. Throughout the period covered by this correspondence petitioner was receiving in excess of five hundred pieces of mail per day. And as may readily be expected this large mass of correspondence included references not only to `Vapex' but to such utterly dissimilar marks and names as Musterole, Mentholatum and Luden's Cough Drops. Mr. W. A. Smith, an employe of petitioner, stated in his testimony:
"`We received mail for Vapex. We received mail for Strohmeier's Cough Drops, and others too numerous to remember.'"
"In view of the large amount of mail received errors of this kind were bound to and did occur, regardless of whether petitioner's marks were or were not similar to those of other manufacturers. Under such circumstances evidence of this character is unimpressive. Standard Accident Insurance Co. v. Standard Surety & Casualty Co. (D.C.) 53 F.(2d) 119."
With respect to the testimony offered by appellant in rebuttal, the Commissioner stated: "Complaint is made because the examiner of interferences declined to consider certain evidence introduced by petitioner on rebuttal. Without going into detail it is sufficient to say that all this evidence, in so far as it is competent for any purpose, is merely cumulative of petitioner's evidence in chief, and the examiner of interferences was therefore fully justified in the ruling complained of. In *77 reaching the conclusions above outlined, however, I have given this evidence the same consideration as that offered in chief."
It will be observed from the foregoing that the Commissioner held that certain evidence offered by appellant was inadmissible for the reasons stated by him, but that, assuming the same to be admissible, it would not change his conclusion that the confusion claimed by appellant had not been established.
We do not find it necessary to pass upon the admissibility of the evidence referred to by the Commissioner because, assuming that it was admissible, and giving to it all the weight to which it is entitled, we are in agreement with the Commissioner that the record fails to establish that the mark "Vapex," as used by appellee, so nearly resembles the marks "Vicks" and "Vaporub," as used by appellant, as to be likely to cause confusion or mistake in the mind of the public.
We think the views expressed in the case of P. Lorillard Co. v. Peper (C.C.A.) 86 F. 956, 960, are applicable to the facts in the case at bar. The court there said: "It may well be that, where many sales were made, some individuals, not particularly attentive, may have purchased the defendant's, supposing they were purchasing the plaintiff's, package. Such things will happen in the ordinary course of business, no matter how great the differences; and the fact that they do happen, while it is not to be ignored, is not to outweigh the evidence which comes from a personal inspection of the packages and labels."
We do not deem it necessary to analyze the voluminous testimony in the record, and content ourselves with stating that, assuming, without deciding, that all of the evidence offered by appellant was admissible, it does not outweigh the evidence which comes from an inspection of the respective marks in issue. We are clearly of the opinion, from such inspection, that there is no confusing similarity between them.
Appellant makes another contention, viz., that it is shown by the record that the mark "Vapex" was not used by appellee at the time appellant filed its petition for cancellation of the mark. It is not necessary for us to set out the facts upon which appellant bases this contention, because, even if such contention were established, appellant would not be entitled to a cancellation of appellee's registration of the mark "Vapex," for the reason that, since said mark is not confusingly similar to appellant's marks here involved, it, appellant, could not be damaged by the registration of the mark "Vapex" by appellee.
It is well established that in cancellation proceedings damage must be shown in order to sustain the cancellation of a mark. American Cyanamid Co. v. Synthetic Nitrogen Products Corp., 58 F.(2d) 834, 19 C.C.P.A.(Patents) 1235; Model Brassiere Co., Inc., v. Bromley-Shepard Co., Inc., 49 F.(2d) 482, 486, 18 C.C.P.A. (Patents) 1294. In the last-cited case we said: "He [the petitioner for cancellation] would have no right to complain about the registration of the offending mark if, at the time he filed his petition, he was not injured by it."
In the case of United Shoe Machinery Corp. v. Compo Shoe Machinery Corp., 56 F.(2d) 292, 295, 19 C.C.P.A.(Patents) 1009, we said: "The statute gives any person who believes he would be damaged the right to oppose, and any person who shall deem himself injured the right to petition for cancellation. These provisions are very broad, and should be broadly construed. Of course, Congress did not mean to grant these rights to a mere intermeddler, to one who had no interest in the use of the term, and thereby authorize such a person to interfere in the affairs of others and in the business of the Patent Office. Certainly the person seeking to cancel a registration or oppose an application for registration must have a greater interest than a member of the general public who by such registration suffers no invasion of his rights and privileges. It is well understood in the application of equitable remedies that one who seeks such application is bound to show an interest in a suit personal to himself and not such an interest as he has only by virtue of being a citizen. Tyler v. Judges of the Court of Registration, 179 U.S. 405, 406, 21 S.Ct. 206, 45 L.Ed. 252; Massachusetts v. Mellon, 262 U.S. 447, 448, 43 S.Ct. 597, 67 L.Ed. 1078. We know of no reason why this rule does not apply here."
Inasmuch as we have held that the marks here in issue are not confusingly similar, appellant could not be damaged by the registration of the mark "Vapex" by appellee, within the meaning of section 13 of said Trade-mark Act of February 20, 1905.
*78 It appears that, after the original certification of the transcript of record by the Commissioner of Patents, appellee suggested a diminution of the record and proceedings in said cause, whereupon this court issued a writ of certiorari, pursuant to which certain additions to the record were certified to the court by the Commissioner of Patents and printed. The court, in issuing the writ, ruled that the assessment of costs for the printing of such additions to the record should await the final determination of the case. We find that the matters certified, pursuant to our order, should have been originally included in the record by appellant. Therefore, the costs of printing such additions to the record, which are found on pages 920, 921, 922, and 923 of the record, are assessed against the appellant.
For the reasons stated herein, the decision of the Commissioner of Patents is affirmed.
Affirmed.
|
767 F.2d 905
Fuentesv.Lane
85-1065
United States Court of Appeals,First Circuit.
6/17/85
1
D.R.I.
AFFIRMED
|
889 F.Supp. 706 (1995)
John YURCIK, Plaintiff,
v.
SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION and Metal Workers' National Pension Fund, Defendants.
No. 94 Civ. 9113 (BDP).
United States District Court, S.D. New York.
April 5, 1995.
Edward Benson, New York City, for plaintiff.
Robert W. Piken, Piken & Piken, New York City, for defendants.
MEMORANDUM AND ORDER
PARKER, District Judge.
This action was originally filed in Supreme Court, Rockland County, on December 9, 1994. In his complaint, John Yurcik ("plaintiff") alleges that the Sheet Metal Workers' National Pension Fund ("defendant") wrongfully withheld payment for early retirement and disability options under its pension plan.
On December 21, 1994, defendant removed the action to this Court, alleging that the suit "arose" pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1381, and *707 thus federal jurisdiction exists.[1] On February 7, 1995, plaintiff moved to remand on the ground that removal was improper.
29 U.S.C. § 1132(e)(1) provides that state courts of competent jurisdiction and district courts of the United States have concurrent jurisdiction over actions to recover retirement benefits. 28 U.S.C. § 1441(a) authorizes removal if original jurisdiction exists in the District Court. According to plaintiff, concurrent jurisdiction is not congruent with original jurisdiction, and thus removal was improper.[2] We disagree.
At the outset, we note that section 1441(a) allows removal except "as otherwise expressly provided." Neither 29 U.S.C. § 1132(a)(1) nor (e)(1) expressly prohibits removal. The general rule is that "absent an express provision to the contrary, the removal right should be respected when there is concurrent jurisdiction." Wright, Miller & Cooper, Federal Practice and Procedure § 3739 (1985 and Supp.1990); see Chilton v. Savannah Foods & Industries, 814 F.2d 620 (11th Cir.1987); Mercy Hospital Association v. Miccio, 604 F.Supp. 1177 (E.D.N.Y.1985).
Plaintiff contends that its right to pursue its claims in state court only is fixed by the provision in the pension plan handbook which provides that suits to recover plan benefits could be filed under state or federal court. Because federal law requires all employers to provide information similar to the one contained in plaintiff's employee handbook (see 29 C.F.R. § 2520.102-3(t)(2) (1984)), virtually every ERISA suit would, upon removal, be remanded to state court. See The Clorox Company v. The United States District Court for the Northern District of California, 779 F.2d 517 (9th Cir. 1985). In any event, this provision does not eviscerate the right of removal otherwise conferred by 28 U.S.C. § 1441(a).
CONCLUSION
The removal of this action to this Court was proper, and jurisdiction is properly predicated on 28 U.S.C. § 1441(a), 29 U.S.C. § 1132(a), (e). Plaintiff's motion to remand is denied.
SO ORDERED.
NOTES
[1] Plaintiff's complaint acknowledges that Defendant's pension plan complies with ERISA. Nevertheless, plaintiff contends that this is not an ERISA action because he asserted only state contract claims. ERISA creates a federal cause of action, with concurrent state and federal jurisdiction, over claims by an employee "to recover benefits due to him under terms of his plan, to enforce his rights under the terms of a plan, or to clarify his rights to future benefits under the terms of a plan." 29 U.S.C. 1132(a)(1). The Supreme Court has held that ERISA preempts state claims involving improper handling of claims for employee benefits and thus provides a sufficient basis for removal. Metropolitan Life Ins. v. Taylor, 481 U.S. 58, 65-67, 107 S.Ct. 1542, 1547-48, 95 L.Ed.2d 55 (1987).
[2] Plaintiff incorrectly relies on two state court decisions which hold that state courts may hear ERISA claims. Imler v. Southwestern Bell, 8 Kan.App.2d 71, 650 P.2d 712 (1982) and General Dynamics Corp. v. Harris, 581 S.W.2d 300 (Tex. Civ.App.1979). Because these cases do not address the issue of the propriety of removal to a federal court, they are not dispositive.
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169 So.2d 762 (1964)
Reese H. HARDIN
v.
Mary G. HARDIN.
7 Div. 632.
Supreme Court of Alabama.
December 10, 1964.
J. Richard Carr, Gadsden, for appellant.
Lusk, Swann & Burns, Gadsden, for appellee.
PER CURIAM.
Appellee filed her suit in the circuit court of Etowah County, in equity, seeking (a) divorce (from appellant) a vinculo matrimonii on the ground of cruelty; (b) alimony and attorney's fee; (c) custody of two minor children born to her marriage with appellant; (d) support for the children. The complaint contained a jurisdictional averment of appellee's residence in Alabama.
A few days following the filing of the petition for divorce, appellee caused to be *763 filed in the same proceeding a petition for a temporary writ of injunction to remove appellant from her house and to restrain him from going on said premises and to cease disturbing and interrupting complainant and her two children.
After answering and denying that complainant is entitled to a divorce, custody of the children, support for them, and an injunction, respondent filed a cross-bill, which, as last amended, sought an adjudication of his rights or interest in several corporations in which he claimed to be a stockholder, and also of his right or interest in several tracts of land. The cross-bill was in the nature of a bill for discovery of assets belonging to him and alleged to be in the name of or in the possession of complainant. The complaint, as to his interest in the real property and in the corporate entities, contained many allegations with potentialities of extended litigation.
The trial court, after several observations of factual findings, and judicial utterances classic in their nature, rendered a decree granting complainant (1) a divorce a vinculo; (2) awarding custody of the children to the mother with right of visitation by the father after notice to the mother of the intended visit. No alimony or support for the children was decreed.
The cross-bill, as last amended (adding sections 8-A (1-4) and 8-B), specifically alleges that cross-complainant and his wife jointly and severally own large amounts of real and personal property, including capital stock in several (listed) corporations; also, in various real estate holdings to which reference was made; that they own joint interest in real estate mortgages of value in excess of $100,000.00; jointly own a large amount of cash money in various safes and safety deposit boxes at places known to cross-respondent and secreted and concealed by her from cross-complainant; also, he asked for discovery of the assets which he contends belong to him in whole or in part. Cross-complainant also prayed for a reference to ascertain what portion of the real and personal property, money and other assets are owned by him, and for an order to the cross-respondent to convey and turn over to him such of said property as may be revealed by said reference to be owing to him. Also, cross-complainant prayed for general relief.
Cross-respondent addressed a demurrer to the two paragraphs (8-A(1-4) and 8-B), a ground of which was that the cross-complaint, as particularized by these two paragraphs, was not germane to the original bill. The trial court overruled the demurrer. Appellee contends here by appropriate assignment of error that the ruling on the demurrer was error to reverse.
The trial judge, as a property settlement between the parties, decreed:
"FOURTH: As a property settlement between the parties the Court orders to-wit:
"a. The Plaintiff shall pay all unpaid installments due in the Federal Court settlement of the Pacific Indemnity Company arising from the Glencoe Paving Company transactions, to-wit: $50,000 of which approximately $35,000 is unpaid; and Plaintiff is to pay the Defendant $400.00 per month beginning August 1, 1963, and $400.00 the 1st day of each month thereafter until the further orders of this Court.
"b. All title to the jointly owned personal property, to-wit: household furniture and goods, bonds payable to bearer, and cash left in the possession of the Plaintiff or her father is hereby divested out of Defendant and vested into the Plaintiff.
"FIFTH: The Defendant is restrained and enjoined from molesting or interfering in any way or manner with the Plaintiff, her father, any officer, agent or employee in and about the operation of any business venture Plaintiff has a financial interest in.
"SIXTH: Defendant is restrained and enjoined from molesting or interfering *764 with Plaintiff, her parents, or the children of Plaintiff and Defendant, at any and all places and particularly in and about Plaintiff's home.
"SEVENTH: That the cost of Court accrued herein are hereby taxed against the Plaintiff, for the collection of which execution may issue."
Appellee cross-assigns as error subsection (a) above set forth, while appellant contends, by appropriate assignment of error, that the court erred in awarding payments of $400.00 because of inadequacy.
In addition, appellant assigns as error the granting of the divorce, awarding custody of the children to complainant, and injunctive relief. Also, appellant contends that the court failed to acquire jurisdiction to enter a divorce decree because the proof failed to sustain the allegation of residence on the part of complainant.
We are not in accord with the contentions that the divorce should not have been granted; nor do we agree that the custodial award of the children to the mother was in error. And we cannot agree that the evidence failed to prove jurisdictional residence. Also, we think injunctive relief to restrain respondent from the premises and to prevent disturbance by him was justified under the evidence.
In order to obtain a more comprehensive picture of the evidence than the narration thereof in the briefs by both parties affords, we read the text of all the evidence. Some of it was repetitious due to the fact that appellant, for some reason known to himself, or at least not shown by the record, did not avail himself of an attorney during the trial, but undertook (poorly we think) to represent himself.
We might state parenthetically that the trial judge advised appellant that he should be represented by an attorney on the trial, and gave him every opportunity to procure such services; also, that the court was extremely considerate of appellant in his efforts to represent himself and exercised the "patience of Job." Inadequacy of such representation is due to no fault of the court.
There is ample evidence from which the court could (and did) conclude that both parties to the suit were residents of Etowah County for the required time when suit was filed. The evidence tended to show that several years before suit was filed the parties in marital cooperation purchased some real estate upon which they built or caused to be erected an expensive home, which they appropriately furnished with fine furniture and modern household fixtures; that they lived in this home for several years and were living there when the violence or acts of alleged cruelty were committed; also, the evidence shows that they owned and conducted business enterprises in Etowah County and in other counties in Alabama, which required their several and joint attention. We deem it unnecessary to point out other evidence which sustains the allegation of residence on the part of complainant and respondent.
Appellant also complains that the proof does not sustain the allegations of cruelty appearing in the complaint. While the alleged conduct of appellant as to physical assault on complainant might, to some extent, have been invited by antecedent and surrounding circumstances, we think there was sufficient evidence to sustain the trial court's finding of fact favorable to complainant on the issue of cruelty. It is true that respondent's evidence, if taken as true, completely refutes the allegation, but the testimony of complainant and other witnesses, if believed, sustains the allegation. It is unnecessary for us to go into details of the evidence, but suffice it is that we will not reverse the trial court on this issue. In order to do so, we would have to say that the trial court's conclusion was palpably erroneous and manifestly unjust. Sieben v. Torrey, 252 Ala. 675, 42 So.2d 621(1). The witnesses were before the court for his observation in their oral statements. *765 By this personal observation, the trial judge could fairly evaluate the testimony for truthfulness and veracity.
We are unwilling to disturb the decree of the trial court in awarding the children to the custody of their mother, and imposing on appellant the duty of notifying the mother in advance of his intended visit with them as authorized by the decree. Again we point to the fact that the trial court heard all the evidence from the mouths of the witnesses as they appeared before him and had a good opportunity to form a correct conclusion as to their veracity and truthfulness on the issue. We cannot say that the trial court, in making this award with fringe conditions as to appellant's right to visit the children, decreed unjustly or unwisely.
Appellee earnestly insists by cross-assignment of error that the trial court erred to reverse in overruling her demurrer, with particular reference to paragraphs 8-A(1-4) and 8-B, which assert the phases of the bill contained in said sections are not germane to the original bill.
We have held that a cross-bill must be made up of defensive matter to the original bill, in whole or in part, or seek to modify the relief complainant obtains. Emens v. Stephens, 233 Ala. 295, 172 So. 95(1).
Here complainant prays that she be awarded alimony. In so doing, she opened wide the door for any defensive matter on that issue, or to evidence in modification of such relief.
We held in O'Bannon v. O'Bannon, 257 Ala. 246, 249, 58 So.2d 779, 782, as follows:
"On account of the divorce which destroys her homestead and dower rights in her husband's property, and in lieu thereof and for her support, the court may award alimony either in money or property. It could very properly take into consideration the contentions made by her with respect to her contributions both in money and services in building the house. It may be that the court considered under all the circumstances that she was entitled to a half interest in such property by way of alimony, and in that view of the situation it cannot be said there was error in the decree. Roubicek v. Roubicek, 246 Ala. 442, 21 So.2d 244; Atkinson v. Atkinson, 233 Ala. 125, 170 So. 198."
We also quote from Singer v. Singer, 165 Ala. 144, 149, 51 So. 755(2), 757, 29 L.R.A.,N.S., 819, as follows:
"One of the grounds of equitable jurisdiction is to avoid a multiplicity of suits, and where the only two parties interested are before the court, and there is no repugnancy, and no mixing of incongruous subjects, there seems to be no reason why it should be necessary to have two suits. In fact, in the present case, there is no question about the right to provide for alimony, and, in order to act intelligently on that question, it is necessary that the court ascertain what property the husband has and what property the wife has, and if the point is raised that certain property, standing in his name, really belongs to her, it seems that this is the most convenient and appropriate time and way to settle that matter, in order that complete justice may be accomplished."
We think that on the issue of alimony the court could not only ascertain what property in the name of the husband, or in his possession, belongs to complainant, but also under the cross-bill what property in the name or in possession of the wife belongs to cross-complainant. We pretermit observing whether or not the cross-bill would be germane without the issue of alimony.
As we understand his assignment of error and argument, appellant questions the correctness of that portion of the decree which awards to him the sum of $400.00 *766 per month. By an assignment of error, appellee also contends that the trial court erred in decreeing such payments. So we have both appellant and appellee contending error to the same provision of the decree.
Appellee also questions by assignment of error the provision of the decree requiring her to pay a $35,000.00 judgment obtained in the federal court against appellant. It is to be noted that there was no intervention by the judgment creditor to subject assets of appellant here in dispute to payment of the balance due on this judgment. This judgment creditor is not a party by intervention or otherwise.
Under the pleadings and evidence in this case, we think it was beyond the authority and jurisdiction of the trial court to effect, as undertaken, as adjustment of property rights of the parties in the manner which the decree reflects. In the first place, the decree fails to adjudicate what property, real or personal, in the name of cross-respondent or in her possession, belongs to cross-complainant. Without such an adjudication, it was beyond the power of the court to decree payment of any sum under the pleadings. Adair v. Adair, 258 Ala. 293, 62 So.2d 437(10-11). If appellant is entitled to $35,000.00 as his part of any money or property rightfully belonging to him, and in the possession and under the control of his wife, the court was without authority to direct payment to a judgment creditor which was not a party to the suit.
By ordering payment of $400.00 per month without any limitation of time or amount, the decree lacked certainty and definiteness, and did not inform appellee how much she would have to pay nor how much her liability is under the pleadings. Also, the court failed to adjudicate that the money belongs to cross-complainant. Adair v. Adair, supra.
The trial court committed reversible error in ordering payment to the judgment creditor of $35,000.00 and in ordering cross-respondent to pay cross-complainant the sum of $400.00 per month.
We also state that the court erred in enjoining cross-complainant from interfering with the operation of the several business establishments mentioned in the pleadings. We cannot find in the record any pleadings filed by cross-respondent that seek such relief.
We wish to observe that under the evidence adduced by cross-complainant, in his frail efforts to represent himself, the record with respect to the property rights of the parties is a confused mess. We do not see how the trial court, under the bungled state of the evidence, could have rendered a decree that does justice to the parties with respect to the widely ramifying property, real and personal, that the parties claim. Indeed, it will take an adversary lawyer of skill and competence, along with able counsel now representing complainant (cross-respondent) to clarify the factual issues relating to the entangled condition of the alleged property rights. Without the aid of a lawyer, left reasonably free to conduct the trial of cross-complainant's rights as he deems best, it seems to us that cross-complainant (appellant here) will experience extreme if not hopeless difficulty in adequately presenting his claims under his cross-bill to the trial court.
It occurs to us that under the state of the evidence, now before us, that the trial judge might have been well within the law in denying to cross-complainant any relief whatsoever as to his alleged property rights, although we might observe that there is some evidence, very faint, more moral than otherwise, which supports cross-complainant in his efforts to regain some of his alleged property, but as to which, and how much we will omit any statement with reference thereto.
That part of the decree which grants the divorce, awards custody of the children, restrains respondent from the home of complainant and from interfering with her custody *767 of the children, is affirmed. But that part which decrees payment of the $35,000.00 in satisfaction of the judgment; that part which awards cross-complainant the sum of $400.00 per month, and which also enjoins him from interfering with the business operations, be, and is, hereby reversed. The cause is also remanded for further proceedings on the issues embraced in the reversal, or for other proceedings that may lawfully follow additional pleading.
The foregoing opinion was prepared by B. W. Simmons, Supernumerary Circuit Judge, and was adopted by the court as its opinion.
Affirmed in part; reversed and remanded in part.
LIVINGSTON, C. J., and LAWSON, GOODWYN and COLEMAN, JJ., concur.
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511 F.3d 1270 (2008)
Peggy L. BOWMAN, Plaintiff-Appellant,
v.
Michael J. ASTRUE,[*] Commissioner, Social Security Administration, Defendant-Appellee.
No. 06-6380.
United States Court of Appeals, Tenth Circuit.
January 4, 2008.
Submitted on the Briefs:[**]
Darren T. Rackley of Troutman & Troutman, P.C., Tulsa, OK, for Plaintiff-Appellant.
John C. Richter, United States Attorney, Oklahoma City, OK; Tina M. Waddell, Regional Chief Counsel, and Richard A. Gilbert, Special Assistant U.S. Attorney, Office of the General Counsel, Region VI, Social Security Administration, Dallas, TX, for Defendant-Appellee.
Before HOLLOWAY, Circuit Judge, BARRETT, Senior Circuit Judge, and SEYMOUR, Circuit Judge.
*1271 SEYMOUR, Circuit Judge.
Peggy L. Bowman appeals from an order of the district court affirming the Social Security Commissioner's denial of her application for supplemental security income (SSI) benefits under Title XVI of the Social Security Act. Ms. Bowman argues that a remand to the Commissioner is necessary because: (1) the Administrative Law Judge (ALJ) erred, as a matter of law, in failing to perform a proper analysis at step four of the five-step sequential evaluation process for determining whether a social security claimant is disabled, see Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir.2005) (describing five steps); (2) the ALJ erred, as a matter of law, in failing to properly evaluate the opinion of Ms. Bowman's primary medical provider, Linda W. Hancik, a registered nurse and family nurse practitioner; and (3) the ALJ's findings that Ms. Bowman was capable of performing both light work and her past relevant work are not supported by substantial evidence.
We agree with Ms. Bowman that a remand is required with regard to the first issue. As part of the remand proceedings, we also direct the Commissioner to reconsider Nurse Hancik's opinion in accordance with the instructions set forth herein. In light of our disposition of the first two issues, we do not need to address the third issue. Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we reverse and remand for further proceedings.
I.
Ms. Bowman was forty-nine years old when the ALJ denied her application for SSI benefits. She obtained a high school general equivalency degree and attended one year of college. She has prior work experience as a housekeeper, food preparation worker, cashier, fast food worker, and hostess. Ms. Bowman alleges that she has been unable to work since October 6, 1997, "due to limitations imposed by asthma, arthritic lower back pain, limited use of her left wrist and hand status post surgery, tuberculosis, allergic rhinitis, anxiety, and depression." Aplt. Br. at 4.
In June 2003, Dr. James P. Metcalf examined Ms. Bowman and performed a physical consultative examination on behalf of the Commissioner. Dr. Metcalf's "clinical impression" was that Ms. Bowman suffered from chronic lower back pain without radiculopathy, bronchial asthma, and "[status/post] surgical procedure on the left wrist with limited range of motion." Aplt. App., Vol. II at 212. Dr. Metcalf also reported that Ms. Bowman was unable to effectively grasp tools such as a hammer with her left hand. Id. at 215.
After Ms. Bowman's application for SSI benefits was denied initially and on reconsideration, a de novo hearing was held before the ALJ in January 2005. At the hearing, a vocational expert (VE) testified that Ms. Bowman's prior jobs are classified as "light in exertion" in the Department of Labor's Dictionary of Occupational Titles (4th ed.1991). Id. at 265-66. The VE also identified the DOT Code for each of Ms. Bowman's prior jobs. Id. at 266.
In February 2005, the ALJ issued a written decision denying Ms. Bowman's application for SSI benefits. Although the ALJ found at step two of the sequential evaluation process that Ms. Bowman suffered from severe impairments in the form of "disorders of the back, discogenic and degenerative and asthma," id. at 20, the ALJ concluded at step four that she could still perform her past relevant work "as performed in the national economy" and was therefore not disabled. Id. at 22. Specifically, the ALJ found that: (1) Ms. *1272 Bowman retained "the residual functional capacity to perform light work with limited use of her left hand and occasional stooping," id.; and (2) Ms. Bowman's "past relevant work as a cashier, housekeeper, food preparer, fast food worker and hostess, did not require the performance of work-related activities precluded by her residual functional capacity," id.
In October 2005, the Appeals Council denied Ms. Bowman's request for review of the ALJ's decision. Ms. Bowman then filed a complaint in the district court. In October 2006, the magistrate judge entered a report and recommendation, recommending that the district court affirm the ALJ's denial of Ms. Bowman's application for SSI benefits. The district court adopted the magistrate judge's recommendation and affirmed the ALJ's decision. This appeal followed.
Because the Appeals Council denied review, the ALJ's decision is the Commissioner's final decision for purposes of this appeal. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.2003). In reviewing the ALJ's decision, "we neither reweigh the evidence nor substitute our judgment for that of the agency." Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991). Instead, we review the ALJ's decision only "to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Doyal, 331 F.3d at 760.
II.
A. The ALJ's Step-Four Analysis.
"Step four of the sequential analysis . . . is comprised of three phases." Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.1996).
In the first phase, the ALJ must evaluate a claimant's physical and mental residual functional capacity (RFC), . . . and in the second phase, he must determine the physical and mental demands of the claimant's past relevant work. . . . In the final phase, the ALJ determines whether the claimant has the ability to meet the job demands found in phase two despite the mental and/or physical limitations found in phase one. . . .; Henrie v. United States Dep't of Health & Human Servs., 13 F.3d 359, 361 (10th Cir.1993). At each of these phases, the ALJ must make specific findings. See Henrie, 13 F.3d at 361.
Id.
As set forth above, the ALJ evaluated and made specific findings regarding Ms. Bowman's physical residual functional capacity as required at phase one of the step-four analysis, and concluded that Ms. Bowman retained "the residual functional capacity to perform light work with limited use of her left hand and occasional stooping." Aplt.App., Vol. II at 22. After noting, for purposes of phase two, that the VE "testified that the claimant's past work as a housekeeper, food preparation worker, cashier, fast food worker and hostess are classified in the Dictionary of Occupational Titles as light work activity," id., the ALJ then found at phase three that Ms. Bowman's "past relevant work . . . did not require the performance of work-related activities precluded by her residual functional capacity. . . ." Id.
We agree with Ms. Bowman that the ALJ's step-four analysis was legally deficient. As Ms. Bowman explains in her opening brief:
Here, the ALJ found Ms. Bowman to have "limited use" of her left hand as part of her RFC. (II Aplt.App. at 22). The ALJ also found that Ms. Bowman could perform her past relevant work as a cashier, housekeeper, food preparer, fast food worker, and hostess. Id. However, *1273 not only did he fail to address the impact of this relatively vague restriction on Ms. Bowman's ability to perform her past relevant work with the VE (II Aplt.App. 265-72), but the ALJ also failed to make any findings regarding the handling demands of such work in his decision. (II Aplt.App. at 17-23).
Further, because he failed to make the necessary findings at phase two, the ALJ was unable and failed to make the necessary "function by function" comparison between Ms. Bowman's limited use of her left hand and the demands of her past work as required at phase three. (II Aplt.App. at 17-23). Due to these failures, the record lacks the necessary documentation concerning the impact Ms. Bowman's limited use of her left hand would have on her ability to perform her past relevant work (which all require frequent to constant handling of objects); or any evidence supporting the ALJ's finding that Ms. Bowman could perform such work despite that limitation.
Aplt. Br. at 18; see also Winfrey, 92 F.3d at 1024-25 ("Having failed to complete phase two appropriately, the ALJ was unable to make the necessary findings at phase three about plaintiff's ability to meet the . . . demands of his past relevant work despite his . . . impairments.").
As noted by Ms. Bowman, all of her past jobs require frequent or constant "handling," which is defined as "[s]eizing, holding, grasping, turning, or otherwise working with hand or hands," and, at the very least, this means that she must be able to perform such handling activities "from 1/3 to 2/3 of the time" during a normal work-day. See EMPLOYMENT & TRAINING ADMIN., U.S. DEP'T OF LABOR, SELECTED CHARACTERISTICS OF OCCUPATIONS DEFINED IN THE REVISED DICTIONARY OF OCCUPATIONAL TITLES C-3; see also id. at 132 (food assembler, kitchen and housekeeper DOT Codes 319.484-010 and 323.687-014), 333 (cashier II DOT Code 211.462-010), 359 (host/hostess DOT Code 352.667-010), and 365 (fast-foods worker DOT Code 311.472-010 (this job requires handling "constantly" (2/3 or more of the time))).[1] After the VE identified the appropriate DOT Codes for Ms. Bowman's prior jobs, the ALJ could have taken administrative notice of this job information, and then asked the VE to give an opinion concerning whether Ms. Bowman's limited use of her left hand would affect her ability to perform the required handling activities. See Winfrey, 92 F.3d at 1025. The ALJ did not pursue such an inquiry, however, and did not otherwise make the necessary findings at phases two and three of the step-four analysis. As a result, we must remand this case to the Commissioner for further proceedings regarding phases two and three of step four and, if necessary, step five.
B. SSR 06-03p and Nurse Hancik.
Linda W. Hancik is a registered nurse and family nurse practitioner. She was Ms. Bowman's primary medical provider during the time period at issue here. In a letter dated November 25, 2002, Nurse Hancik states that Ms. Bowman has been a patient of hers for approximately thirteen years; that Ms. Bowman "has multiple health problems that impact her daily life"; and that Ms. Bowman's "degenerative joint disease prevents her from standing or sitting for long periods." Aplt.App., *1274 Vol. II at 245. In his decision, the ALJ discussed Nurse Hancik's opinion regarding Ms. Bowman's ability to stand or sit as part of his assessment of Ms. Bowman's residual functional capacity:
The undersigned notes that no work related restrictions have been placed on the claimant by any treating source; however, Linda W. Hancik, a family nurse practitioner was of the opinion that the claimant's degenerative joint disease prevents her from standing or sitting for long period[s]. . . . On consultative examination, it was reported [by Dr. Metcalf] that she did have some limitation of range of motion of the lumbar spine with tenderness and some decreased limitation in range of motion of the left wrist. She did have 3/5-grip strength in each hand. She had good muscle strength and tone in both upper and lower extremities. She was able to heel/toe walk, tandem walk and the gait was normal with a slight limp favoring the right side. She had good dexterity of her fingers.
Accordingly, the undersigned finds the claimant retains the residual functional capacity to perform light work with limited use of left hand and occasional stooping.
Id. at 21.
Ms. Bowman contends that the ALJ's evaluation of Nurse Hancik's opinion was legally deficient because he failed to comply with the requirements of SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006), a Social Security Ruling that was published by the Commissioner almost a year and a half after the ALJ issued his decision in this case. According to Ms. Bowman:
SSR 06-3p requires ALJs to evaluate opinions by medical providers who do not qualify as `acceptable medical sources' under the factors cited in 20 C.F.R. § 416.927(d). . . . It also requires ALJs to explain the weight given to opinions by those sources or provide a discussion of the evidence in the decision which allows a reviewer to follow the ALJ's reasoning when such opinions may have an effect on the outcome of the case. . . . Here, while acknowledging Nurse Hancik's opinions, the ALJ did not explain the weight he attached to these opinions nor explain why he rejected them. As such, since SSR 06-3p should have been applied retroactively due to the fact that it merely clarified existing law, . . . the ALJ's failure to follow its procedures in evaluating Nurse Hancik's opinions also constituted reversible legal error.
Aplt. Br. at 19.
As the Eighth Circuit recently recognized, "SSR 06-3p is a clarification of existing SSA policies." Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir.2007). Specifically, the "ruling clarifies how [the Commissioner] consider[s] opinions and other evidence from medical sources who are not `acceptable medical sources.'" SSR 06-03p, 2006 WL 2329939 at *4. As explained in the ruling:
[The existing] regulations provide specific criteria for evaluating medical opinions from "acceptable medical sources"; however, they do not explicitly address how to consider relevant opinions and other evidence from "other sources" listed in 20 C.F.R. 404.1513(d) and 416.913(d). With the growth of managed health care in recent years and the emphasis on containing medical costs, medical sources who are not "acceptable medical sources," such as nurse practitioners, physician assistants, and licensed clinical social workers, have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists. Opinions *1275 from these medical sources . . . are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file.
Id. at *3.
In order to effectuate these policy considerations, the ruling states that disability "adjudicator[s] generally should explain the weight given to opinions from these `other sources,' or otherwise ensure that the discussion of the evidence . . . allows a claimant or subsequent reviewer to follow the adjudicator's reasoning." Id. at *6. In addition, the ruling makes it clear that
an opinion from a medical source who is not an "acceptable medical source" may outweigh the opinion of an "acceptable medical source," including the medical opinion of a treating source. For example, it may be appropriate to give more weight to the opinion of a medical source who is not an "acceptable medical source" if he or she has seen the individual more often than the treating source and has provided better supporting evidence and a better explanation for his or her opinion.
Id. at *5.[2]
In this appeal, the Commissioner has not argued that it would be error to apply SSR 06-03p retroactively to Ms. Bowman's application for SSI benefits, and we recently applied the ruling and remanded, notwithstanding the ALJ had made his determination before the ruling was issued. Frantz v. Astrue, 509 F.3d 1299, 1302-03 (10th Cir.2007); see also Sloan, 499 F.3d at 889 (applying ruling and remanding despite fact that both ALJ and district court had made their determinations before ruling was issued). Instead, the Commissioner asserts that "the ALJ's decision was consistent with SSR 06-03p." Aplee. Br. at 16. According to the Commissioner:
The ALJ summarized the medical records from [. . . Nurse Hancik] and noted the inconsistencies between [her] opinion and other evidence. For example, the ALJ noted the absence of work-related restrictions placed on Bowman from a treating source (Tr. 19, 21). The ALJ also pointed out the findings of the consultative examiner, [Dr. Metcalf,] which were inconsistent with the nurse's opinion (Tr. 19, 21). . . . This Court can easily follow the ALJ's reasoning in assessing the opinion of [Nurse Hancik]. Therefore, the Commissioner submits that the ALJ properly considered [her] opinion. . . .
Id. at 17.
The question of whether the ALJ's evaluation of Nurse Hancik's opinion was consistent with SSR 06-03p is a close one. Given our determination that it is necessary to remand this case to the Commissioner for further proceedings with regard to the first issue raised by Ms. Bowman, we believe the best course of action is to direct the Commissioner to apply SSR 06-03p on remand and reconsider Nurse Hancik's opinion. See Frantz, 509 F.3d at 1302-03; Sloan, 499 F.3d at 889. This approach is especially appropriate here, where we are troubled by the ALJ's apparent *1276 assumption that Dr. Metcalf's consultative examination findings were inconsistent with Nurse Hancik's opinion that Ms. Bowman's "degenerative joint disease prevents her from standing or sitting for long periods." Aplt.App., Vol. II at 245. On this point, we agree with Ms. Bowman that Dr. Metcalf's findings are instead arguably consistent with Nurse Hancik's opinion. Most importantly, Dr. Metcalf specifically found that Ms. Bowman suffers from chronic low back pain, and he further reported that she had a slight limp on the right side, had a positive straight leg raising test in a reclining position, and had limited range of motion in her lumbar spine. Id. at 210-12. Unfortunately, Dr. Metcalf did not provide a medical opinion concerning Ms. Bowman's ability to stand or sit in a workplace setting, and it is pure guesswork to extrapolate one from the various findings that are set forth in his report.[3]
In sum, on remand, the Commissioner should reconsider Nurse Hancik's opinion in light of SSR 06-03p. We emphasize that we are not expressing an opinion as to the weight the Commissioner should give to Nurse Hancik's opinion, as that is an issue for the Commissioner to determine applying the factors that are set forth in SSR 06-03p. The Commissioner should also consider whether it would be helpful to have Dr. Metcalf or another consultative examiner complete an RFC assessment form for Ms. Bowman and provide a specific medical opinion concerning her ability to stand or sit during the relevant time frame.
The judgment of the district court is REVERSED and this case is REMANDED to the district court with instructions to REMAND the case to the Commissioner for further proceedings consistent with this opinion.
NOTES
[*] Pursuant to Fed. R.App. P. 43(c)(2), Michael J. Astrue is substituted for Linda S. McMahon as appellee in this appeal.
[**] After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
[1] It is well established that "the agency accepts the [definitions in the Dictionary of Occupational Titles] as reliable evidence at step four of the functional demands and job duties of a claimant's past job as it is usually performed in the national economy." Haddock v. Apfel, 196 F.3d 1084, 1090 (10th Cir.1999) (quotations omitted).
[2] Although SSR 06-03p recognizes the potential value of opinions from medical sources who are not "acceptable medical sources," the ruling also points out that it is still necessary to distinguish between "acceptable medical sources" and other medical sources. This is necessary because "[i]nformation from . . . `other [medical] sources' cannot establish the existence of a medically determinable impairment." SSR 06-03p, 2006 WL 2329939 at *2. Further, "only `acceptable medical sources' can give . . . medical opinions" and "be considered treating sources . . . whose medical opinions may be entitled to controlling weight." Id.
[3] We note that a "DDS physician" (a nonexamining medical source) completed a "Residual Functional Capacity Assessment" form for Ms. Bowman in which it was reported that she could stand and/or sit for about six hours in an eight-hour workday. See Aplt. App., Vol. II at 4, 218. It appears that this conclusion was based solely on Dr. Metcalf's consultative examination report, and we think this report is too ambiguous in terms of assessing Ms. Bowman's functional limitations to support a medical opinion from a nonexamining physician about Ms. Bowman's ability to stand or sit. We also note that neither the ALJ in his decision nor the Commissioner in this appeal relied on the DDS physician's RFC assessment to support the denial of benefits in this case.
|
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0433n.06
Filed: July 21, 2008
Nos. 07-3376, 07-3438
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
v. ) DISTRICT OF OHIO
)
JASON WESTERFIELD, )
)
Defendant-Appellant. )
__________________________________________ )
BEFORE: KEITH, GRIFFIN, and GIBSON, Circuit Judges.*
GRIFFIN, Circuit Judge.
Defendant Jason Westerfield was indicted in the United States District Court for the Northern
District of Ohio for being a convicted felon in possession of a firearm. Westerfield pleaded guilty
to the indictment and, after the district court concluded that Westerfield was subject to an enhanced
sentence under the Armed Career Criminal Act (“ACCA”), was sentenced to a term of 180 months
of imprisonment.
While that case was still pending, a federal grand jury in the Northern District of Ohio
returned a multi-defendant, 55-count indictment, naming Westerfield in seven counts, alleging a
conspiracy to possess with the intent to distribute cocaine and cocaine base. Following a jury trial,
*
The Honorable John R. Gibson, Senior Circuit Judge, United States Court of Appeals for
the Eighth Circuit, sitting by designation.
Nos. 07-3376, 07-3438
United States v. Westerfield
Westerfield was found guilty on one count, which charged him with possessing cocaine base with
the intent to distribute, in violation of 21 U.S.C. § 841(b)(1)(B). After finding Westerfield was
subject to a sentencing enhancement as a career offender, the district court sentenced him to a term
of 360 months of imprisonment.
Westerfield now appeals. In case number 07-3438, he argues that the district court
erroneously found him subject to the fifteen-year mandatory minimum sentence provided in the
ACCA. In case number 07-3376, he contends that he was prejudiced by having been seen outside
the courtroom in handcuffs by potential members of the jury, that the district court erred in denying
his motion for a new trial that was predicated on the government’s alleged failure to establish a chain
of custody for crack cocaine, and that the court erred in sentencing Westerfield as a career offender
pursuant to U.S.S.G. § 4B1.1. In response to the government’s request, the two cases have been
consolidated for briefing and disposition.
For the reasons set forth below, we conclude that Westerfield’s appeals lack merit and
accordingly affirm his convictions and sentences.
I.
On August 31, 2005, a federal grand jury sitting in the United States District Court for the
Northern District of Ohio returned a one-count indictment against defendant Jason Westerfield,
charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). On
November 14, 2006, Westerfield pleaded guilty to the charge. During sentencing proceedings on
March 6, 2007, the district court found that Westerfield was subject to the fifteen-year mandatory
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United States v. Westerfield
minimum sentence provided in the ACCA, 18 U.S.C. § 924(e), due to his prior convictions for
breaking and entering, extortion and abduction, and attempted retaliation. The court sentenced
Westerfield to the statutory minimum term of 180 months of imprisonment. Defendant timely
appealed his sentence.
While Westerfield’s felon-in-possession charge was still pending, a second grand jury sitting
in the same federal district returned a 22-defendant, 55-count indictment, charging Westerfield with
engaging in a conspiracy to possess and distribute cocaine and cocaine base. Westerfield pleaded
not guilty, and the case proceeded to trial. At trial, the jury received testimony from Aisha Ford, a
codefendant in the case who had previously pleaded guilty and agreed to testify as part of her plea
agreement. Ford testified that Westerfield had moved into her apartment for eight days during
February 2005. She testified further that after Westerfield had moved out of her apartment, he
informed her that he had left a Nike shoe box in her apartment and asked her to get rid of the box.
Ford stated that she had inspected the box and found drugs inside. The government offered evidence
indicating that Westerfield had requested his friend Jacquoia Ginn to retrieve the box from Ford and
to store it at Ginn’s home.
The government then offered the testimony of Detective Chuck Metcalf of the Richland
County Sheriff’s office, who testified that during a search of Ginn’s residence, he discovered the
Nike box, containing a scale, marijuana, powder cocaine, and crack cocaine. Although Metcalf
testified that the box contained powder cocaine, the inventory sheet filled out after the search was
conducted listed only crack cocaine. Metcalf also conceded that, although the crack cocaine was
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United States v. Westerfield
taken to the police crime lab for testing, the chain of custody form for the cocaine did not indicate
that it had been removed from police inventory. He testified further that the cocaine was sealed both
when it was submitted to the lab for testing and when it was returned.
Following a six-day trial, the jury returned a guilty verdict against Westerfield with respect
to Count 30, which charged him with possessing with the intent to distribute crack cocaine.
Westerfield was acquitted on the remaining five counts, including Count 31, which charged him with
possessing with the intent to distribute powder cocaine.
At sentencing, over Westerfield’s objections, the district court found that defendant was a
career offender as defined in U.S.S.G. § 4B1.1. The court then sentenced Westerfield to a term of
360 months of imprisonment, to run concurrently with his sentence resulting from his felon-in-
possession conviction. This timely appeal followed.
II.
Case Number 07-3376
A.
In his first assignment of error, Westerfield argues that the district court should have granted
a mistrial when it received notice that potential jurors had viewed some of the defendants in
handcuffs outside of the courtroom, in the hallway. We review the denial of a motion for a mistrial
for an abuse of discretion. United States v. Martinez, 430 F.3d 317, 336 (6th Cir. 2005). However,
because Westerfield did not move for a mistrial at trial or otherwise object to the use of handcuffs
to transport him to the courthouse, we review Westerfield’s claim for plain error. United States v.
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Nos. 07-3376, 07-3438
United States v. Westerfield
Christman, 509 F.3d 299, 307 n.3 (6th Cir. 2007). Under a plain error analysis, Westerfield must
show “(1) error (2) that was obvious or clear (3) that affected his substantial rights and (4) that
affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v.
Phillips, 516 F.3d 479, 487 (6th Cir. 2008) (quoting United States v. Vonner, 516 F.3d 382, 386 (6th
Cir. 2008) (en banc)). We find that no plain error occurred here.
Westerfield’s claim is based on an incident that occurred during voir dire, in which the
presiding judge was handed a note “stating that apparently some of the defendants were complaining
[that] some of the jurors were outside the courtroom when they were brought into the courtroom in
handcuffs.” The district court responded that it had not learned of such incidents happening and
stated that the courtroom staff and Marshal’s Service were “working diligently to make certain that
there’s no such occurrences.” The court did not offer any type of curative instruction to the jury
pool, and Westerfield’s attorney raised no objections or requests for such an instruction. Westerfield
argues that this incident was prejudicial and warrants reversal of his conviction.
Defendant’s argument is unpersuasive. The cases upon which he relies are inapplicable
because they involve the decisions by a trial court to shackle a defendant during trial. There is no
evidence here that Westerfield was shackled or otherwise restrained while in the courtroom, or that
potential jurors saw defendant enter the courtroom while wearing shackles. This distinction is
significant, as we have “distinguished the inherent prejudice to a defendant who is shackled while
in the courtroom from a defendant who has been observed in shackles for a brief period elsewhere
in the courthouse.” United States v. Moreno, 933 F.2d 362, 368 (6th Cir. 1991) (citing United States
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Nos. 07-3376, 07-3438
United States v. Westerfield
v. Crane, 499 F.2d 1385, 1389 (6th Cir. 1974)). In such situations, a defendant on appeal is
“required to show actual prejudice where ‘the conditions under which [he was] seen were routine
security measures rather than situations of unusual restraint such as shackling of defendants during
trial.’” Id. (quoting Payne v. Smith, 667 F.2d 541, 544-45 (6th Cir. 1981)).
In similar circumstances, we have repeatedly denied requests for mistrial where the defendant
is unable to carry his burden of showing actual prejudice. United States v. Waldon, 206 F.3d 597,
607-08 (6th Cir. 2000) (rejecting claim on appeal where “one juror . . . saw Waldon in shackles, and
that juror mentioned it contemporaneously to only one other juror” because the “event occurred
outside of the courtroom as part of a routine security measure, the district court properly queried both
jurors regarding any potential prejudice to Waldon, and the two jurors assured the district court that
their view of Waldon in handcuffs and shackles made no difference whatsoever in their decision”);
Moreno, 933 F.2d at 368 (denying claim on appeal where “defendants were inadvertently observed
in shackles while being transported by the marshals and the jury learned of defendants’ custodial
status through trial testimony” because the record failed “to support defendants’ claims of inherent
prejudice warranting mistrial”). See also United States v. Bowlson, 148 F. App’x 449, 455-56 (6th
Cir. 2005) (rejecting claim where defendant failed to request a mistrial, and explaining that
defendants’ “complaint that jurors may have seen him briefly as he was transported to and from the
courtroom is not a sufficient basis to justify setting aside his conviction.”).
Although there was no curative instruction here as in Waldon, Westerfield has failed to carry
his burden of showing actual prejudice. First, because the incident occurred during voir dire and
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Nos. 07-3376, 07-3438
United States v. Westerfield
outside of the courtroom, the record is unclear regarding how many – if any – of the eventual jurors
viewed Westerfield in handcuffs. Second, and similarly, there is no indication in the record that
Westerfield was one of the defendants who was seen in handcuffs by the potential jurors. Finally,
other than relying on inapplicable caselaw for the proposition that it is “inherently prejudicial” for
the jury to see a shackled defendant, Westerfield has not relied on any evidence in the record to show
that he was prejudiced by this incident.
Accordingly, we hold that the district court did not commit plain error in failing to order a
mistrial.
B.
Westerfield next argues that the district court should have granted his motion for a new trial
based upon the government’s alleged failure to establish a chain of custody for the crack cocaine.
We review the denial of a motion for a new trial for abuse of discretion. Radvansky v. City of
Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007); Kusens v. Pascal Co., Inc., 448 F.3d 349, 367 (6th
Cir. 2006). This standard is highly deferential, and we will find an abuse of discretion only when
we have a “definite and firm conviction that the trial court committed a clear error of judgment.”
Mitchell v. Boelcke, 440 F.3d 300, 303 (6th Cir. 2006) (internal quotation omitted).
The district court summarized the pertinent facts as follows:
On April 25, 2005, police seized a box containing powder and crack cocaine from the
home of Jacquoia Ginn. During the search, Det. Chuck Metcalf served as the
inventory officer. In his inventory report, Det. Metcalf listed the crack cocaine but
not the powder cocaine. Following the search, Det. Metcalf took the drugs to the
crime lab at the Sheriff’s Department and prepared a chain of custody document. On
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Nos. 07-3376, 07-3438
United States v. Westerfield
November 9, 2005, Defendant was charged with, inter alia, intentionally possessing
crack and powder cocaine.
At trial, the government introduced the drugs and the chain of custody document.
The document contained two entries – the first indicating that Det. Metcalf had
submitted the seized items to the Sheriff’s Department Laboratory and the second
showing that Special Agent Lee Lucas of the Drug Enforcement Agency had
removed the items to bring them to trial. Det. Metcalf could not explain the chain
of custody within the laboratory, but did testify that the drugs remained sealed before
and after they were tested. Det. Metcalf also testified that the crack and powder
cocaine introduced at Defendant’s trial was the same seized on April 25, 2005.
The district court, citing our opinion in United States v. Allen, 106 F.3d 695, 700 (6th Cir.
1997), denied defendant’s motion on the basis that “challenges to the chain of custody go to [the]
weight of evidence, not admissibility,” reasoning that “[a]t most, Defendant has ‘[m]erely rais[ed]
the possibility of tampering,’ which ‘is insufficient to render evidence inadmissible.’”
The district court’s ruling was correct. We have explained repeatedly that “[a]bsent clear
evidence that public officers tampered with the evidence at issue, challenges to the chain of custody
typically go to the weight of the evidence, and not its admissibility.” United States v. Collier, 246
F. App’x 321, 335 (6th Cir. 2007) (citing United States v. Levy, 904 F.2d 1026, 1030 (6th Cir. 1990)
and Allen, 106 F.3d at 700); United States v. Combs, 369 F.3d 925, 938 (6th Cir. 2004) (“Merely
raising the possibility of tampering or misidentification is insufficient to render evidence
inadmissible.”) (quoting United States v. Kelly, 14 F.3d 1169, 1175 (7th Cir. 1994)). See also United
States v. Black, 239 F. App’x 210, 214 (6th Cir. 2007) (“Where no evidence exists to indicate that
tampering with an exhibit occurred, the court presumes public officers have properly discharged their
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Nos. 07-3376, 07-3438
United States v. Westerfield
duties.”) (citing Allen, 106 F.3d at 700); United States v. Butler, 137 F. App’x 813, 819 n.3 (6th Cir.
2005) (“Gaps in the chain of custody, however, go to the weight, not the admissibility of evidence”).
On appeal, Westerfield has not cited any evidence in the record indicating that the cocaine
was actually tampered with. On the contrary, he admits that “there is no affirmative evidence of
tampering in the sense of switching the seized drugs or changing the amount of the drugs found
. . . .” Under Allen, Levy, and Combs, this argument plainly fails. See also United States v. Williams,
503 F.2d 50, 53 (6th Cir. 1974) (rejecting challenge to admission of drugs into evidence where
defendant argued that the “lack of any testimony regarding the transfer of the bags from the
technician to the government chemist [was] a fatal missing link” in the chain of evidence, reasoning
that “the envelopes containing the narcotics were initialed and lock-sealed by an agent of the Bureau
of Narcotics and Dangerous Drugs and that the envelopes were lock-sealed and untorn when
received by the chemist. Since the seals were unbroken when the chemist received the envelopes,
we find that the evidence was properly admitted.”). Without any evidence indicating that the crack
cocaine was tampered with, Westerfield’s argument goes to the weight of the evidence rather than
its admissibility. Therefore, we conclude that the district court did not abuse its discretion in denying
defendant’s motion for a new trial.
C.
In his final argument raised in appeal number 07-3376, Westerfield contends that the district
court erred in sentencing him as a career offender pursuant to U.S.S.G. § 4B1.1. Specifically, he
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Nos. 07-3376, 07-3438
United States v. Westerfield
argues that the district court misapplied the categorical approach required by the Supreme Court
when determining a defendant’s eligibility for career offender status. We disagree.
We review de novo questions involving the interpretation of the Sentencing Guidelines,
including the district court’s determination that defendant is a career offender under U.S.S.G. §
4B1.1. Mallett v. United States, 334 F.3d 491, 500 (6th Cir. 2003); United States v. Dolt, 27 F.3d
235, 237 (6th Cir. 1994). Moreover, we may “affirm a district court’s judgment for reasons other
than those stated by the lower court.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999).
To qualify as a career offender under U.S.S.G. § 4B1.1, a defendant who was over the age
of eighteen at the time he committed the instant felony offense must have “at least two prior felony
convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)(1),
(3). The term “crime of violence” is defined as any felony that either “has as an element the use,
attempted use, or threatened use of physical force against the person of another,” or “is burglary of
a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a).
Before sentencing, the Presentence Investigation Report (“PSR”) recommended that
Westerfield qualified for career offender status, based on his 1997 felony convictions for (1)
extortion/abduction, and (2) aggravated drug trafficking, thus resulting in a Guidelines range of 360
months to life imprisonment. At the sentencing hearing, Westerfield conceded that the aggravated
trafficking conviction was a predicate crime of violence, but contested the applicability of his
extortion/abduction convictions. He argued further that the extortion and abduction statutes
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Nos. 07-3376, 07-3438
United States v. Westerfield
encompass both violent and nonviolent activity, thereby allowing the court to look beyond the face
of the statute to determine whether the convictions were predicate offenses. The government
disagreed with Westerfield’s claim that the abduction and extortion convictions were not predicate
offenses and argued that Westerfield’s 2003 conviction for escape was also a predicate offense.
The district court agreed with the government, explaining that under the “categorical
approach, based upon the Guidelines as well as the application notes to the same, it would appear
to the court that indeed the extortion conviction clearly is a crime of violence, indeed in all
likelihood the abduction is as well.” The court then stated that even if it were to look beyond the
statutory definition of extortion, as Westerfield requested, its conclusion remained the same:
However, in an abundance of caution, even if the court were to consider the
defendant’s arguments and to look to the terms of the charging document, in terms
of the plea agreement, the transcript of colloquy, et cetera, as it relates to the
abduction and the extortion conviction, the court is convinced that even using that
approach, indeed these two offenses would be crimes of violence for the following
reasons.
The indictment itself . . . clearly references language that would give rise to the use
of force, threat, restrain[t] of liberty of the victim in this case, Miss Constance
Hunter.
***
The factual predicate set forth in Defendant’s Exhibit A, reveals the fact that the
victim in this case – I’ll read it so it’s clear for the record – it says between 2/1/97
and 3/6/97, Jason Westerfield moved in the residence at 497 and a half West Fourth
Street, and took the residence over from Constance Hunter, who is blind, and rented
the apartment.
The defendant, paragraph 2, took all the victim’s belongings and put them in garbage
bags and placed them in a bedroom where the victim was banished to live.
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Nos. 07-3376, 07-3438
United States v. Westerfield
Three, the defendant refused to leave the residence and suggested the victim find
another place to live.
The defendant was unknown by the victim.
Five, the defendant had her telephone service changed to a different address, at which
the defendant obtained the victim’s new address, picked her up took her to the phone
company, and had her reconnect the old line.
And then paragraph 6, finally on 3/6/97 the victim contacted the Mansfield Police
Department and investigation started.
It’s clear to the court, the victim, obviously blind and obviously unable to defend
herself, clearly there was an element of force or threat of force that was part and
parcel of this underlying offense of extortion and abduction.
The court then addressed the government’s second argument, concluding that Westerfield’s prior
escape conviction also qualified as a predicate offense.
On appeal, Westerfield argues that the district court misapplied the categorical approach
required by the Supreme Court when determining a defendant’s eligibility for career offender status.
Under the categorical approach, adopted by the Supreme Court in Taylor v. United States, 495 U.S.
575, 600 (1990), a sentencing court may look “only to the statutory definitions of the prior offenses,
. . . and not to the particular facts underlying those convictions” in determining whether a prior
conviction qualifies as a predicate offense for a sentence enhancement. See also United States v.
Montanez, 442 F.3d 485, 489 (6th Cir. 2006) (applying categorical approach to career offender status
under § 4B1.1). Where the statutory definition of the prior crime encompasses both violent and
nonviolent behavior, however, the sentencing court may then look to the “charging document, the
terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual
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Nos. 07-3376, 07-3438
United States v. Westerfield
basis for the plea was confirmed by the defendant, or to some comparable record of this information”
to determine whether the crime involved the violent aspect of the statute. Shepard v. United States,
544 U.S. 13, 26 (2005). See also United States v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006)
(describing a sentencing court’s two-step application of categorical approach under Taylor and
Shepard).
Specifically, Westerfield disputes the district court’s holding that his 1997 conviction for
abduction was a conviction for a crime of violence. He argues that the Ohio abduction statute
encompasses both violent and nonviolent behavior and that the district court misapplied Taylor and
Shepard by “assum[ing] that if any conviction of [abduction] fit within the scope of § 4B1.2 then
all convictions of [abduction] fit within the statute.” The Ohio abduction statute provides:
(A) No person, without privilege to do so, shall knowingly do any of the following:
(1) By force or threat, remove another from the place where the other person is found;
(2) By force or threat, restrain the liberty of another person under circumstances that
create a risk of physical harm to the victim or place the other person in fear;
(3) Hold another in a condition of involuntary servitude.
OHIO REV . CODE § 2905.02. Although he concedes that subsections (1) and (2) involve violent
conduct, Westerfield contends that subsection (3) may be violated in a nonviolent manner and
therefore the sentencing court was entitled to look beyond the statutory definition of “abduction” and
consider Shepard materials. We disagree.
Although one can conceive of nonviolent methods by which a defendant can “[h]old another
in a condition of involuntary servitude,” the statute clearly targets conduct that “presents a serious
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Nos. 07-3376, 07-3438
United States v. Westerfield
risk of physical injury to another.” In James v. United States, 127 S. Ct. 1586 (2007), the Supreme
Court rejected the defendant’s argument that attempted burglary was not a predicate offense under
the ACCA because not all cases of attempted burglary necessarily present a risk of physical injury:
James’ argument also misapprehends Taylor’s categorical approach. We do not view
that approach as requiring that every conceivable factual offense covered by a statute
must necessarily present a serious potential risk of injury before the offense can be
deemed a violent felony. Cf. Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007)
(“[T]o find that a state statute creates a crime outside the generic definition of a listed
crime in a federal statute requires more than the application of legal imagination to
a state statute’s language. It requires a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls outside the
generic definition of a crime”).
Rather, the proper inquiry is whether the conduct encompassed by the elements of the
offense, in the ordinary case, presents a serious potential risk of injury to another.
One can always hypothesize unusual cases in which even a prototypically violent
crime might not present a genuine risk of injury – for example, an attempted murder
where the gun, unbeknownst to the shooter, had no bullets, see United States v.
Thomas, 361 F.3d 653, 659 (D.C. Cir. 2004). Or, to take an example from the
offenses specifically enumerated in § 924(e)(2)(B)(ii), one could imagine an
extortion scheme where an anonymous blackmailer threatens to release embarrassing
personal information about the victim unless he is mailed regular payments. In both
cases, the risk of physical injury to another approaches zero. But that does not mean
that the offenses of attempted murder or extortion are categorically nonviolent.
As long as an offense is of a type that, by its nature, presents a serious potential risk
of injury to another, it satisfies the requirements of § 924(e)(2)(B)(ii)’s residual
provision. Attempted burglary under Florida law – as construed in Jones to require
an overt act directed toward entry of a structure – satisfies this test.
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Nos. 07-3376, 07-3438
United States v. Westerfield
James, 127 S. Ct. at 1597-98.1 Here, although a defendant could conceivably use nonviolent
methods to hold another in involuntary servitude – by, for example, using blackmail to coerce a
victim into servitude – abduction is undoubtedly an offense of a type that “by its nature, presents a
serious potential risk of injury to another,” such that it is a crime of violence.
Our conclusion is further supported by the Court’s recent decision in Begay v. United States,
128 S. Ct. 1581 (2008). In considering whether driving under the influence of alcohol is a “violent
felony” under the ACCA, the Court explained that the inclusion of examples in the statute’s residual
clause – burglary, arson, extortion, or crimes involving the use of explosives – “indicates that the
statute covers only similar crimes, rather than every crime that ‘presents a serious potential risk of
physical injury to another.’” Id. at 1585. See also United States v. Bartee, — F.3d —, No. 07-1522
(6th Cir. June 10, 2008) (summarizing Begay and holding that like the ACCA, Ҥ 4B1.2(a)(2) also
should be limited to crimes that are similar in both kind and in degree of risk to the enumerated
examples”). The Court reasoned that the crime of DUI differed from those listed in the residual
clause in that the enumerated crimes “all typically involve purposeful, ‘violent,’ and ‘aggressive’
conduct” whereas “statutes that forbid driving under the influence . . . impose strict liability,
criminalizing conduct in respect to which the offender need not have had any criminal intent at all.”
1
Although James involved the interpretation of the ACCA, rather than U.S.S.G. § 4B1.1’s
career offender designation, the Court’s opinion in James is nevertheless applicable to Westerfield’s
appeal. See Lancaster, 501 F.3d at 676 n.2; United States v. Flores, 477 F.3d 431, 437 n.3 (6th Cir.
2007).
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Nos. 07-3376, 07-3438
United States v. Westerfield
Begay, 127 S. Ct. at 1586-87. Consequently, the Court held that ACCA’s residual clause did not
include the crime of DUI in its definition of a violent felony. Id. at 1588.
The Court’s emphasis in Begay on the enumerated examples of violent felonies in 18 U.S.C.
§ 924(e)(2)(B)(ii) reinforces our view that Westerfield’s conviction for abduction was a conviction
for a predicate offense under U.S.S.G. § 4B1.1. Like the crimes of burglary, arson, and extortion,
abduction involves purposeful and aggressive conduct such that a defendant who has engaged in
abduction has exhibited a “degree of callousness toward risk” that shows “an increased likelihood
that the offender is the kind of person who might deliberately point [a] gun and pull the trigger.” Id.
at 1587 (stating that “[w]e have no reason to believe that Congress intended a 15-year mandatory
prison term where that increased likelihood does not exist”). Moreover, we find that Westerfield’s
conviction for abduction is similar to the crime of extortion, in that both may often involve the threat
of physical force against another for pecuniary gain. Reinforcing our conclusion is the fact that
Westerfield was also tried and convicted of extortion, under OHIO REV . CODE § 2905.11, for the
same conduct that served as the basis for his abduction conviction. Thus, contrary to Westerfield’s
position at oral argument, the Court’s opinion in Begay supports the district court’s sentencing
determination.
Accordingly, we hold that Westerfield’s abduction conviction is a crime of violence under
§ 4B1.1, and the district court properly sentenced Westerfield as a career offender.2
2
We note that Westerfield concedes in his reply brief that the eligibility of his prior escape
conviction for a sentence enhancement under § 4B1.1 is controlled by this court’s precedent in
United States v. Lancaster, 501 F.3d 673 (6th Cir. 2007). In Lancaster, we held that, using the
- 16 -
Nos. 07-3376, 07-3438
United States v. Westerfield
III.
Case Number 07-3438
In case number 07-3438, Westerfield argues that the district court improperly sentenced him
as an armed career criminal under the ACCA. For purposes of this separate appeal, he concedes that
his 1997 conviction for abduction, and his 1995 conviction for breaking and entering, are predicate
categorical approach and looking solely to the statutory definition, “a Kentucky state conviction for
second-degree escape is a ‘violent felony’ for purposes of the . . . ‘ACCA’ [], 18 U.S.C. § 924(e).”
Id. at 675. Rejecting the defendant’s argument that second-degree escape was not a violent felony
because Kentucky’s statute applied to “walk away escapes,” this court reasoned that “an escaped
prisoner poses a ‘continuing threat to society’” and that the “consequences and circumstances of a
Kentucky prisoner’s escape from custody . . . involve ‘conduct that presents a serious potential risk
of physical injury to another.’” Id. at 680-81. In so doing, we distinguished United States v. Collier,
493 F.3d 731 (6th Cir. 2007), which held that a defendant’s conviction under Michigan’s prison
escape statute was not a violent felony due, in part, to the Michigan statute’s definition of escape as
a discrete act, complete when the prisoner first leaves state custody. As we pointed out in Lancaster,
the Michigan definition of escape is the minority approach; both the majority of states and the federal
escape statute define escape as a continuing offense. Lancaster, 501 F.3d at 680.
Westerfield’s concession that Lancaster controls his escape conviction is correct, as
Lancaster appears to apply to all escape statutes not specifically defined or interpreted as a discrete,
non-continuing offense. Because there is no indication that escape is so defined under Ohio’s
statute, Westerfield’s 2003 escape is a predicate offense under § 4B1.1, and we agree that he was
properly sentenced as a career offender subject to § 4B1.1’s sentence enhancement.
Nevertheless, the Supreme Court has recently granted certiorari to consider whether a
conviction for escape under a statute that encompasses walkaway escapes qualifies as a violent
felony under the ACCA. United States v. Chambers, 473 F.3d 724 (7th Cir. 2007), cert. granted,
No. 06-11206, 128 S. Ct. 2046 (Apr. 21, 2008). Thus, because Westerfield has other prior
convictions that may serve as predicate offenses under § 4B1.1, we need not, and do not, rely on
Westerfield’s 2003 escape conviction to affirm the district court’s sentencing determination in case
number 07-3376.
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Nos. 07-3376, 07-3438
United States v. Westerfield
violent felony offenses, but contends that the district court erred in holding that his 1997 conviction
for attempted retaliation was a conviction for a violent felony.3
The ACCA provides, in pertinent part:
In the case of a person who violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this title for a violent
felony or a serious drug offense, or both, committed on occasions different from one
another, such person shall be fined under this title and imprisoned not less than
fifteen years, and, notwithstanding any other provision of law, the court shall not
suspend the sentence of, or grant a probationary sentence to, such person with respect
to the conviction under section 922(g).
18 U.S.C. § 924(e)(1). The Ohio retaliation statute, under which defendant was convicted, provides:
No person, purposely and by force or by unlawful threat of harm to any person or
property, shall retaliate against a public servant, a party official, or an attorney or
witness who was involved in a civil or criminal action or proceeding because the
public servant, party official, attorney, or witness discharged the duties of the public
servant, party official, attorney, or witness.
OHIO REV . CODE § 2921.05(A).
The district court found, and both parties agree on appeal, that the statute encompasses both
violent and nonviolent behavior. Accordingly, the court looked to Shepard materials to determine
whether Westerfield’s conviction was a conviction for a violent felony. Specifically, the court relied
on the Judgment Entry of Conviction and Sentence completed by the Ohio state sentencing judge,
3
Although Westerfield conceded before the district court in case number 07-3376 that his
1997 conviction for Aggravated Trafficking was a conviction for a crime of violence under § 4B1.1,
the government did not rely on this conviction in case number 07-3438 to support its position that
Westerfield is subject to the ACCA. Because the government has not asserted, either before the
district court or this court, that Westerfield’s conviction for Aggravated Trafficking is a predicate
offense under the ACCA, we choose not to rule whether this conviction also supports the district
court’s determination that Westerfield was subject to an enhanced sentence under the ACCA.
- 18 -
Nos. 07-3376, 07-3438
United States v. Westerfield
who found that the following factors were part of Westerfield’s crime: “attempt or threat”; “attempt
or threat of harm, and previous conviction for physical harm”; “previous prison term served”; and
“defendant already under community control or violated prior community control.” The district
court reasoned that these factors correlated to findings under OHIO REV . CODE § 2929.13 that
Westerfield’s actions involved the threat of physical harm to a person.
We conclude that the court erred in relying on the Judgment Entry of Conviction and
Sentence to determine the nature of Westerfield’s crime. In Shepard, the Supreme Court limited a
sentencing court to consideration of only “the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between judge and defendant in which the factual basis for the
plea was confirmed by the defendant, or to some comparable judicial record of this information.”
Shepard, 544 U.S. at 26. The Court noted the limitation that the Sixth Amendment places on a
sentencing court’s review of the nature of a defendant’s prior convictions, and emphasized the
requirement that the documents relied upon by the sentencing court reflect the defendant’s admission
to violent behavior:
The Government dismisses the relevance of the Jones-Apprendi implementation of
the jury right here by describing the determination necessary to apply the ACCA as
“involv[ing] only an assessment of what the state court itself already has been
‘required to find’ in order to find the defendant guilty.” But it is not that simple. The
problem is that “what the state court . . . has been ‘required to find’” is debatable. In
a nongeneric State, the fact necessary to show a generic crime is not established by
the record of conviction as it would be in a generic State when a judicial finding of
a disputed prior conviction is made on the authority of Almendarez-Torres v. United
States, 523 U.S. 224 (1998). The state statute requires no finding of generic burglary,
and without a charging document that narrows the charge to generic limits, the only
certainty of a generic finding lies in jury instructions, or bench-trial findings and
rulings, or (in a pleaded case) in the defendant’s own admissions or accepted findings
- 19 -
Nos. 07-3376, 07-3438
United States v. Westerfield
of fact confirming the factual basis for a valid plea. In this particular pleaded case,
the record is silent on the generic element, there being no plea agreement or recorded
colloquy in which Shepard admitted the generic fact.
Instead, the sentencing judge considering the ACCA enhancement would (on the
Government’s view) make a disputed finding of fact about what the defendant and
state judge must have understood as the factual basis of the prior plea, and the dispute
raises the concern underlying Jones and Apprendi: the Sixth and Fourteenth
Amendments guarantee a jury standing between a defendant and the power of the
State, and they guarantee a jury’s finding of any disputed fact essential to increase the
ceiling of a potential sentence. While the disputed fact here can be described as a
fact about a prior conviction, it is too far removed from the conclusive significance
of a prior judicial record, and too much like the findings subject to Jones and
Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the
dispute.
Shepard, 544 U.S. at 24-25 (internal citation omitted). See also United States v. Calloway, 189 F.
App’x 486, 490-91 (6th Cir. 2006) (holding that district court erred in relying on presentence report
to determine nature of prior convictions, where there was no “indication [that the facts presented in
the presentence report] were admitted by Calloway”).
Here, there is no indication in the record that Westerfield admitted to the facts found in the
Judgment Entry of Conviction and Sentence. Indeed, the document provides specifically that the
facts relied upon by the government were found by the court. Without Westerfield’s admission to
these judge-found facts, the judgment was not a permissible document upon which to rely under
Shepard and cannot support the court’s holding that Westerfield’s conviction for attempted
retaliation was a conviction for a violent felony as defined in the ACCA. Because OHIO REV . CODE
§ 2921.05(A) encompasses both violent and nonviolent behavior and the government has not offered
any permissible materials that demonstrate that defendant’s conviction necessarily involved the
- 20 -
Nos. 07-3376, 07-3438
United States v. Westerfield
violent behavior prohibited in § 2921.05(A), we conclude that the court erred in relying on
Westerfield’s attempted retaliation conviction in sentencing defendant as an armed career criminal.
Nonetheless, as discussed above, Westerfield’s escape conviction was a predicate offense
under the ACCA pursuant to our opinion in Lancaster. See supra, footnote 2. See also Apple, 183
F.3d at 479 (observing that we may “affirm a district court’s judgment for reasons other than those
stated by the lower court”). Moreover, although we have not had the benefit of the parties’ briefings
on this issue, we are not persuaded that the Court’s opinion in Begay affects our prior holding in
Lancaster. The crime of escape is substantially similar to the crime of burglary in that both pose a
significant risk of danger in the possibility of a confrontation with police. See James, 127 S. Ct. at
1592 (observing that the “most relevant common attribute” of the enumerated offenses in 18 U.S.C.
§ 924(e)(2)(B)(ii) is that all of the offenses “create significant risks of bodily injury or confrontation
that might result in bodily injury”); id. at 1594-95 (noting that the “main risk of burglary arises not
from the simple physical act of wrongfully entering onto another’s property, but rather from the
possibility of a face-to-face confrontation between the burglar and a third-party”). Furthermore,
escape – like burglary, arson, extortion, and crimes involving the use of explosives – involves
“purposeful, ‘violent’ and ‘aggressive’ conduct,” Begay, 128 S. Ct. at 1586, that is the common
denominator among the enumerated offenses in § 924(e)(2)(B)(ii).
Accordingly, we hold that the court did not err in sentencing Westerfield to a term of 180
months of imprisonment due to his armed career criminal status.
IV.
- 21 -
Nos. 07-3376, 07-3438
United States v. Westerfield
For these reasons, Westerfield’s convictions and sentences are affirmed.
- 22 -
|
199 F.3d 552 (1st Cir. 1999)
UNITED STATES, Appellee,v.CRUZ ROSARIO-PERALTA, A/K/A CRESCENCIO CEDENO-PERALTA, Defendant, Appellant.UNITED STATES, Appellee,v.JOHNNY DAVID DIAZ-MORLA, Defendant, Appellant.UNITED STATES, Appellee,v.RAMON ANTONIO JAVIER, Defendant, Appellant.
No. 97-2084, No. 97-2085, No. 97-2086.
United States Court of Appeals for the First Circuit.
Heard March 1, 1999.Decided December 23, 1999.
APPEALS FROM THE UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Perez-Gimenez, U.S. District Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Jorge A. Toro McGowan for appellant Cruz Rosario-Peralta.
Benjamn Angueira-Aguirre for appellant Johnny Diaz-Morla.
Zygmunt G. Slominski, by appointment of Court, for appellant Ramon Antonio Javier.
Michelle Morales, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, were on brief, for appellee.
Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Selya, Circuit Judge.
TORRUELLA, Chief Judge.
1
Defendants Cruz Rosario-Peralta, Johnny David Diaz-Morla, and Ramon Antonio Javier appeal their convictions and sentences for possession with intent to distribute cocaine while on the high seas. We addressed portions of these appeals in our previous decision, United States v. Rosario-Peralta, 175 F.3d 48 (1st Cir. 1999). In that opinion, we rejected defendants' challenge to the sufficiency of the evidence, but we found ourselves unable to properly assess defendants' claims of discovery violations on the existing record. Thus, we retained jurisdiction of the case and remanded to the district court for the resolution of several discovery issues. On August 27, 1999, the district court issued its findings in response to our instructions. Having received supplemental briefing from the parties, we now resume our consideration of the remaining issues on appeal.
BACKGROUND
2
We outlined the facts of this case at length in our previous decision, see Rosario-Peralta, 175 F.3d at 50-51, and we see no reason to repeat that entire account here. Nevertheless, a very brief review, focused on the facts relevant to today's decision, will set the factual context for our current discussion.
3
At approximately 1:11 a.m. on October 17, 1996, a United States Customs Service aircraft spotted a vessel heading towards Puerto Rico without any lights. After monitoring the suspect vessel for almost two hours, with the assistance of a United States Army National Guard helicopter, the government agents illuminated the suspect vessel and spotted its crew dumping bales, which later proved to contain cocaine, into the ocean. At trial, there was testimony, contested by defendants, that the helicopter remained over the suspect vessel and continued to illuminate it until it was intercepted. When a Customs vessel arrived on the scene and identified itself, defendants' vessel accelerated until the Customs vessel rammed it from astern. Defendants Rosario-Peralta and Javier then jumped into the water and refused to allow the Customs crew to retrieve them for several minutes. Defendant Diaz-Morla sped away in the vessel and was caught by a Puerto Rico Police Department vessel. After waiving their rights and agreeing to speak to the agents, defendants gave conflicting and implausible statements about how they came to be traveling at sea early that morning. Later, a drug-sniffing canine detected narcotics contamination on defendants' vessel.
4
Following their convictions, appellants appealed, and we remanded to the district court for findings, as discussed above. We now consider those findings, as well as appellants' other arguments on appeal.
DISCUSSION
5
I. The District Court's Failure to Require the Government to Disclose Particular Communication Records and Logs
6
A. Our Prior Opinion and the District Court's Findings
7
In our earlier opinion in this case, we found that the district court abused its discretion if it denied discovery of certain communication records and logs on the ground that they were irrelevant, when the district court had not reviewed the materials. See Rosario-Peralta, 175 F.3d at 55. We also recognized the possibility that the district court denied discovery of the logs based on the need for confidentiality, rather than because the logs were irrelevant, and we expressed reluctance to accept the government's stated concern for confidentiality as a basis for denying discovery of the logs. See id. at 57 n.8. We observed that, because the district court denied discovery of the logs based on either relevance or the need for confidentiality, the district court did not determine whether the logs were required to be disclosed under Fed. R. Crim. P. 16(a)(1)(C), Brady v. Maryland, 373 U.S. 83 (1963), or the Jencks Act, 18 U.S.C. § 3500. See id. at 56.
8
We then noted that, in an attempt to resolve the discovery issues on appeal, the government submitted a copy of what it claimed to be the only relevant log: the October 17, 1996 morning log of the United States Command Center Sector for United States Customs ("Sector"). See Rosario-Peralta, 175 F.3d at 56. We found it inappropriate to review the Sector log or to resolve the remaining discovery issues for the first time on appeal, so we remanded to the district court to perform both tasks. See id. We instructed the district court to review the Sector log, as well as any other potentially relevant logs, to determine: (1) whether the logs should have been disclosed under Rule 16, Brady, or the Jencks Act, and (2) if so, whether the government's failure to disclose the logs materially prejudiced the defense. See id. at 57.
9
On August 27, 1999, the district court responded with a four-page statement of its findings. The district court found that the logs at issue were: (1) the San Juan Sector Communication Master Station Log for October 17, 1996; (2) the log for an unnamed land-based agency codenamed "Razorback"; and (3) the log from the Drug Interdiction Operations Center (codenamed "Salty Dog").1 The court reviewed these sets of logs and determined that they were required to be disclosed by Rule 16(a)(1)(C) and also as Brady material, but were not discoverable under the Jencks Act. Finally, the district court found that defendants were not prejudiced by the government's failure to disclose the logs, because the information to which defendants were entitled was made available to them through other means, namely, the reporting data and FLIR videotapes from Omaha 13, Omaha 85, and Hawk 514.
10
B. Appellants' Renewed Claims of Discovery Violations
11
Although appellants agree with the district court's determination that the logs were discoverable under Rule 16(a)(1)(C) and also under Brady, they claim that the court erred in finding that all relevant information had been disclosed and that the defendants suffered no prejudice from the nonproduction. After careful consideration of the parties' supplemental briefs on this issue, we find no reversible error in the district court's ruling.
12
As a preliminary matter, we emphasize that the government's failure to produce discoverable materials in this case is a serious infraction which we do not condone. There is no dispute that the prosecution had access to these logs before and during trial. The sole basis offered by the United States for resisting disclosure is the desire to maintain the secrecy of the logs' code names, an objective that could have been easily and effectively achieved through redaction without depriving the appellants of information to which they were entitled under the Rules of Criminal Procedure and federal case law. Mindful of the government's error, we will proceed to consider appellants' claims of error by the district court.
13
Appellants' first contention -- that the district court could not know whether all relevant information was disclosed to them through other means -- is their strongest. The government's response -- that appellants fail to "pinpoint" any information that was not disclosed -- is clearly inadequate; appellants' very point is that they do not and cannot know what exculpatory information may have been on the logs, and yet the government expects them to identify particular pieces of information to which the government improperly denied them access. Given the accidental destruction of the Salty Dog log requested by the defense, we are inclined to agree with the appellants that the district court was in a poor position to determine with absolute certainty whether that log contained any discoverable information that was not in fact produced in another form. However, we do not require "absolute certainty" to support a trial court's determinations on the discoverability of information under the federal rules nor under Brady. The district court's findings were made with the benefit of written and oral argument from both sides and after the government produced to the appellants and to the court all existing materials that could reasonably have been expected to contain discoverable information relevant to the motion to compel. Because the appellants have done little more than speculate as to what other information the logs might have contained, we simply cannot hold that the district court abused its discretion in finding that all discoverable information had in fact been produced to the defendants by other means.
14
Whatever our nagging doubts regarding the completeness of the information produced to appellants by other means, we are in complete agreement with the district court that appellants were not prejudiced by the failure to produce the logs. The record amply demonstrates that appellants were not impeded in the presentation of their defense, and the substantial other evidence presented at trial was such that the mere possibility of additional exculpatory evidence in the logs is insufficient to call into doubt the fairness of appellants' trial or the verdict reached by the jury.
15
To succeed on their Rule 16 claim, appellants would have to demonstrate prejudice resulting from the government's nondisclosure. See United States v. Spinosa, 982 F.2d 620, 630-31 (1st Cir. 1992). Under Brady, they must demonstrate "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Gilday v. Callahan, 59 F.3d 257, 267 (1st Cir. 1995) (internal quotations omitted). Under either standard, the appellants have fallen well short of the mark. Although we are sympathetic to the difficulty of demonstrating how information might have aided one's case without ever seeing that information (or even knowing that it exists), some showing, albeit imperfect, must be made before an appellate court can reverse the reasoned decision of the trial court, and appellants have offered us nothing of any substance upon which to hang our proverbial hats. Because the appellants have not demonstrated prejudice from the government's failure to disclose the logs, and in light of the substantial evidence supporting the jury's guilty verdict, we affirm the district court's ruling.2
16
II. The District Court's Interference With the Testimony of Defendants' Expert
17
Defendants next argue that the testimony of their expert, Captain Edwin Geary, was rendered ineffective because the district court interfered with his testimony. Defendants complain that the court: (1) interrupted and clouded Captain Geary's significant findings; (2) questioned his calculations; (3) questioned his testimony regarding hull speed; (4) confused the issues by interrupting his testimony; (5) attempted to bolster or rehabilitate the previous testimony of government witnesses; (6) emphasized points helpful to the prosecution; (7) attacked Captain Geary's credibility; and (8) communicated to the jury that it did not believe the witness. Defendants complain that the court's interference rose to the level of advocacy and denied them a fair trial by communicating to the jury that the court had taken a side.
18
The government responds that the district court merely attempted to clarify vague and confusing testimony for its own benefit and the benefit of the jury. We have stated previously that the trial judge is more than a "mere moderator" in a federal trial and that the trial judge has the prerogative of eliciting facts he deems necessary to the clear presentation of issues. See United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir. 1989). Thus, the judge "may examine witnesses who testify, so long as he preserves an attitude of impartiality and guards against giving the jury an impression that the court believes the defendant is guilty." Id. at 400-01 (quoting Llach v. United States, 739 F.2d 1322, 1329-30 (8th Cir. 1984)). In Paz Uribe, we found that testimony presented by the defendant was confusing and that the district court acted appropriately in attempting to clarify the testimony. See id. at 401.
19
Similarly, we find here that the district court appropriately questioned the defense expert, while managing to preserve an attitude of impartiality. Captain Geary's testimony was confusing in that it included numerous maritime calculations. The district court did interrupt several times to ask questions, but the court also did so during the testimony of government witnesses regarding the same subject matter. The court asked short, even-handed clarifying questions, albeit frequent ones, and refrained from making any communications to the jury about Captain Geary's credibility or calculations. Nor did the district court abandon its impartiality by rehabilitating the previous testimony of government witnesses or emphasizing points helpful to the prosecution, to the extent that it actually engaged in either activity. While, in asking its clarifying questions, the district court may have raised issues that defendants would rather the jury not focus on, it cannot be said that the district court did so to benefit the government. All issues raised in the district court's questions were raised impartially and for the benefit of clarity alone. Thus, although trial judges are to be given the "widest possible latitude" in making judgments about the need to clarify testimony, Rodrguez v. Banco Central Corp.,990 F.2d 7, 12 (1st Cir. 1992), we would reject defendants' arguments here even if we were not required to grant such latitude.
20
III. Evidence of Positive Canine Alert to Narcotics Contamination
21
Defendants also object to the testimony elicited at trial about the positive canine alert to narcotics contamination that was given by Gator, a Puerto Rico Police canine, on board defendants' vessel. Defendants argue that: (1) the unreliable "dog sniff" evidence should have been excluded under Federal Rule of Evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice, and (2) the court should have allowed defendants' counsel to voir dire the canine's handler, Agent Rafael Ocasio-Cruz, outside the presence of the jury.
A. Federal Rule of Evidence 403
22
We begin by noting that defendants have a difficult hill to climb. We review a trial court's Rule 403 balancing for an abuse of discretion, and only in "extraordinarily compelling circumstances" will we reverse the district court's judgment concerning the probative value and unfair effect of the proffered evidence. See United States v. Gilbert, 181 F.3d 152, 160-61 (1st Cir. 1999) (citing United States v. Shea, 159 F.3d 37, 40 (1st Cir. 1998)).
23
In arguing that dog sniff evidence has little probative value, defendants cite United States v. Carr, 25 F.3d 1194 (3d Cir. 1994), for Judge Becker's concurring and dissenting opinion that assails the reliability of dog sniff testimony in the context of currency. In that opinion, Judge Becker cites to numerous studies and evidence that persuaded him that "a substantial portion of United States currency now in circulation is tainted with sufficient traces of controlled substances to cause a trained canine to alert to their presence." Id. at 1215. We express no opinion today regarding Judge Becker's view that a positive canine alert to a particular bundle of currency has little probative value because of the substantial amount of all currency that has been tainted by illegal drugs.3 Nevertheless, Judge Becker's discussion is irrelevant to our analysis here. The present case does not involve a dog sniff of currency, which can easily and quickly travel through several sets of unknown hands. Rather, our case involves a dog sniff of defendants' vessel. Judge Becker's analysis might have had some bearing on the present case if defendants had offered similar studies indicating that the circulation of nautical vessels is sufficiently similar to the circulation of currency that a substantial portion of vessels are also tainted with traces of controlled substances. Because defendants did not -- and perhaps cannot -- show such similarity, the concern raised by Judge Becker does not undermine the reliability of the evidence presented.
24
Even so, defendants attempt to demonstrate that the dog sniff evidence presented below was unreliable, and therefore lacking in probative value, by listing facts elicited from Agent Ocasio-Cruz on cross-examination. Defendants claim that it was established during Agent Ocasio-Cruz's cross-examination that canines do not alert properly when they are sick. However, what Agent Ocasio-Cruz actually testified to was that Gator "act[s] differently" when he is sick. Defendants also claim that it was established that canines cannot identify the substance for which they are alerting, but the actual testimony was that the canines give the same signal for each of four types of illegal narcotics. Defendants correctly characterize Agent Ocasio-Cruz's testimony that: (1) the canine cannot determine the time at which the contamination of the surface occurred; (2) the canine gives different signals for alerts to specific and general areas; and (3) the trainer must interpret the signal from the canine. Agent Ocasio-Cruz also testified that: (1) no drugs were found on the vessel; (2) his report indicated a "possible presence of contamination of controlled substance"; and (3) Gator only scratched on the top of a small fiberglass box on the deck of the vessel. From this last fact, defendants argue that Gator alerted to a small area (the fiberglass box) that could not have held the large amount of narcotics involved in this case.
25
Some of the facts elicited by defendants do demonstrate that dog sniff testimony is not a perfect indicator of a particular controlled substance in a particular, well-defined location at a particular time. After all, it is at least possible that Gator alerted to the presence of a different controlled substance than the cocaine found to have been dumped in the ocean that day. Also, it is possible that Gator alerted to a contamination that occurred well before the bales of cocaine were alleged to have been aboard. And, due to Gator's less-than-perfect communicative abilities, it is possible that Gator alerted to an area that was not precisely identified by his handler.
26
However, these facts do not substantially diminish the probative value of this testimony. Agent Ocasio-Cruz testified that Gator gave a positive alert to the presence of a controlled substance on the deck of defendants' vessel. Despite defendants' attempts to demonstrate the contrary, Agent Ocasio-Cruz specifically testified that Gator alerted to a contaminated area that was larger than merely the fiberglass container. While this testimony is not perfect, it is extremely probative in a case in which defendants claim that they were never in possession of the cocaine. No narcotics were found on the vessel, so the only way the government could link the cocaine to defendants was by demonstrating that defendants' vessel was the vessel that dumped the bales of cocaine into the ocean when spotted by the National Guard helicopter. Defendants contested the officers' claims that they saw defendants' vessel do the dumping, but the positive canine alert corroborated the officers' testimony by demonstrating that an allegedly unbiased canine indicated that a controlled substance contaminated defendants' vessel. Thus, the dog sniff testimony had substantial probative value.
27
Defendants offer little argument regarding the opposite side of the Rule 403 equation: unfair prejudice, confusion of the issues, or the potential for misleading the jury. Defendants argue that allowing this testimony enhanced the credibility of government witnesses who claimed that defendants' vessel was the vessel they saw dumping bales of cocaine, but defendants do not explain why this was improper or unfair. The admission of the dog sniff testimony to corroborate the officers' testimony was undoubtedly detrimental to defendants' defense, but that does not mean that it is "unfair[ly] prejudic[ial]" under Rule 403. See United States v. Munoz, 36 F.3d 1229, 1233 (1st Cir. 1994) ("The damage done to the defense is not a basis for exclusion; the question under Rule 403 is "one of 'unfair' prejudice -- not of prejudice alone.") (quoting United States v. Moreno Morales, 815 F.2d 725, 740 (1st Cir. 1987)). "The term 'unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief v. United States, 519 U.S. 172, 180 (1997). "'Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily an emotional one." Id. (quoting Advisory Committee's Notes on Fed. Rule Evid. 403, 28 U.S.C. App., p. 860). Defendants fail to raise or explain the possibility of any such unfair prejudice. Accordingly, defendants' Rule 403 argument fails.
28
B. Refusal to Allow Voir Dire of Agent Ocasio-Cruz
29
In the conclusion to the section of their brief arguing that the district court erred in admitting the dog sniff testimony, defendants baldly assert that the court also abused its discretion by not permitting defendants to voir dire Agent Ocasio-Cruz outside the presence of the jury. Nowhere in their brief do defendants offer any argument or authority to demonstrate why it was error to fail to allow voir dire outside the jury's presence. When asked about this contention at oral argument, defendants' counsel responded that: (1) the testimony was prejudicial, and (2) there was no reason for the jury to hear arguments of whether the testimony was substantially more prejudicial than probative. We have already held that this testimony was not so prejudicial as to require its exclusion under Rule 403, so we see no harm in allowing the testimony to be heard before defense counsel could voir dire Agent Ocasio-Cruz during cross-examination.
30
As for counsel's argument that the jury should not have been exposed to arguments regarding the prejudice and probative value of Agent Ocasio-Cruz's testimony, we find no instance in which this occurred. The discussion of defendants' motion to exclude this testimony took place at a sidebar bench conference. Defense counsel certainly attempted to undermine the value of this testimony during cross-examination of Agent Ocasio-Cruz, but these efforts at vigorous cross-examination were obviously appropriate for the jury to hear. Because we find that the testimony was properly admitted, and because we find that the jury was not subjected to inappropriate argument, we reject defendants' argument that the district court should have allowed them to voir dire Agent Ocasio-Cruz outside the presence of the jury.
31
IV. Admission of Defendants' Post-Arrest Statements
32
Defendants next argue that the district court erred in admitting evidence of statements given by all three defendants during their post-arrest interrogation. Defendants argue that the admission was improper for two reasons.4 First, defendants claim that the statements were not voluntary, despite defendants' signed waivers of their rights. Second, defendants contend that the prejudicial effect of the statements substantially outweighed their probative value under Rule 403. We address the latter argument first.
A. Federal Rule of Evidence 403
33
Defendants argue that the relevancy of their statements is far outweighed by the prejudicial effect of allowing the jury to speculate and draw inferences of guilt. Again, we believe that defendants confuse harmfulness to their case with unfair prejudice. There is nothing improper about a jury drawing inferences about the guilt of three defendants who gave inconsistent and incredible statements about how they acquired their vessel and where they were going.
34
Further, these statements and the inconsistencies between them were probative of the offenses with which defendants were charged. Defendants were charged with possession with intent to distribute cocaine while on the high seas. Therefore, the purpose of defendants' early morning ocean voyage was quite relevant. All three defendants claimed that they were going fishing, but their testimony was inconsistent as to the location in which they planned to do so. None of the three defendants claimed to know who owned the vessel that they were using or how they happened to obtain the keys to the vessel. The inconsistencies in defendants' statements and the implausibility of their claims of ignorance regarding the origins of the vessel tended to show that their fishing explanation was untrue. If defendants lied about why they were in the vicinity of the area in which the agents saw bales of cocaine being thrown into the water, those lies could properly be seen by a jury as an attempt by defendants to conceal their crime. Thus, defendants' statements were relevant. Consequently, we reject defendants' Rule 403 argument in this context as well.
B. Voluntariness of Defendants' Statements
35
Defendants argue that their statements should have been excluded because they were not made voluntarily. Although the ultimate issue of the voluntariness of a confession is a question of law subject to plenary review, we will accept the district court's subsidiary findings of fact unless they are clearly erroneous. See United States v. Burns, 15 F.3d 211, 216 (1st Cir. 1994) (citing United States v. Garca, 983 F.2d 1160, 1167 (1st Cir. 1993)).
36
The district court rejected defendants' voluntariness arguments in denying their motion to suppress. The court appeared to accept the facts that the defendants may have been wet, the air conditioning may have been on in the office, and the defendants may have been hungry. Nevertheless, the court accepted Agent Vicens' testimony that: (1) it was calm in the room; (2) no one was making any threats or forcing defendants to speak; (3) there were no loud voices or indications of violence; (4) each defendant was advised that he was being arrested for smuggling; (5) Agent Vicens asked each defendant if he knew how to read and write; (6) each defendant read the rights being waived or appeared to do so without indicating that he could not read or write; (7) agents slowly and carefully explained to each defendant in Spanish the rights being waived; and (8) the defendants were asked after every explanatory sentence if they understood their rights. The court deemed this sufficient to find that the waiver of rights was voluntarily and knowingly made and therefore that the statements were voluntarily made.
37
Defendants' entire argument on appeal that the statements were involuntary consists of the following: (1) defendant Javier was dressed in shorts and was without a shirt; (2) Javier was interrogated in the Customs office after paddling around for several minutes in rough waters after the collision; (3) Javier was never asked if he could read or write; and (4) Agents Vicens and Lopez each signed defendants' waivers indicating that they witnessed more than one waiver of rights at 5:00 a.m., even though the three defendants were in separate cubicles.
38
Only one of these contentions alleges a fact that is at odds with the district court's findings. On the day after the court's ruling, Agent Vicens testified that he did not ask Javier whether he could read and write. Even if we were to find that this post-ruling evidence renders erroneous the court's finding that all defendants were asked that question, we would not -- and do not --disagree with the district court's ultimate finding that the waiver and statements were given voluntarily. The defendants were placed under arrest at approximately 3:30 a.m. and did not sign their waivers or give their statements until 5:00 a.m. Therefore, we place little emphasis on the effect of the collision on the defendants at the time they made their statements approximately ninety minutes later. Defendants do not challenge the district court's findings regarding the calmness of the room, the explanation of defendants' rights, or the steps taken to ensure that defendants understood those rights, and we agree with each of those findings. After conducting plenary review of this issue, we find that defendants knowingly and voluntarily waived their rights and voluntarily gave the statements that were admitted at trial. Accordingly, the district court did not err in admitting those statements at trial.
39
V. Admission of Evidence of the Street Value of the Cocaine
40
Defendants complain that Agent Waldo Santiago was permitted to testify to the "overestimated" street value of the recovered cocaine: one billion dollars. Defendants contend that the sole purpose of this testimony was to frighten the jury, infuse emotional bias, and improperly instill the desire to convict. Defendants argue that the relevancy of this evidence is low, because the intent to distribute could have been amply demonstrated through testimony that defendants were seen throwing bundles from the vessel.
41
Citing United States v. Rivera, 68 F.3d 5 (1st Cir. 1995), cert. denied, 516 U.S. 1139 (1996), and similar cases from other circuits, the government counters that such evidence of street pricing is "routinely" admitted by courts in order to prove the intent to distribute. What this argument ignores, however, is that such evidence could conceivably become substantially more prejudicial than probative if the figure is large enough and if other evidence to prove intent to distribute is available.
42
We have little trouble accepting defendants' view that the introduction of the one-billion-dollar street value was prejudicial. Whether that prejudice is unfair or not is a close question. The enormity of that figure could well evoke exactly the type of fear and emotional response that Rule 403 seeks to avoid, but that ability to frighten is only present because defendants chose to smuggle such a substantial amount of cocaine. It seems to us at least awkward for defendants to argue that it was unfairly prejudicial to shock the jury by informing them of the magnitude of the offense. However, while much of the shock value comes from the magnitude of the offense, the spin the government attempts to put on the offense by attaching the mammoth street value price tag certainly adds (perhaps unnecessarily) to that shock value.
43
In all events, evidence of the street value of controlled substances is a widely accepted method of proving the intent to distribute. See, e.g., Rivera, 68 F.3d at 8 ("There is little dispute that such information may aid in proving intent to distribute."); United States v. Amaechi, 991 F.2d 374, 377 (7th Cir. 1993); United States v. Pigrum, 922 F.2d 249, 254 (5th Cir. 1991). While the district court could have required the government to prove intent to distribute in another way, it had discretion to admit the evidence that it did. The district court balanced the components of Rule 403 and found that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. We cannot say that the district court's decision fell outside the boundaries of its considerable discretion. Simply put, this is not one of those sets of "extraordinarily compelling circumstances" in which we would upset the balance struck by the district court. See Gilbert, 181 F.3d at 160-61.
44
VI. Impartiality of the District Court's Instruction to the Jury at the End of the Fifth Day of Trial
45
Defendants claim that the district court's May 16, 1997 instruction advising the jury not to discuss the case communicated to the jury the court's belief that defendants were guilty. Defendants complain that the implication of the instruction was that defendants were "dealing with drugs" and were "caught off Fajardo." Recognizing that they failed to object to the instruction when it was given to the jury, defendants complain that this instruction rose to the level of plain error. See Fed. R. Crim. P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."); see also United States v. Paniagua-Ramos, 135 F.3d 193, 197 (1st Cir. 1998) (subjecting the defendants' complaints regarding an Allen instruction to plain error analysis under Rule 52(b) because they failed to object in a timely fashion). The government does not respond to this argument.
46
We first dispose of defendants' claim that the court implied that defendants were "dealing with drugs." What the district court actually stated was that the jurors were allowed to tell others only that they were jurors on a "case in federal court dealing with drugs." Thus, the court stated quite accurately and impartially that the case dealt with drugs, not that the defendants did.
47
The second quotation offered by defendants raises more of a concern, but only slightly. The court also told the jurors that they could tell others that the defendants "were caught off Fajardo or in the general area of the east." We understand how defendants could object to the use of the word "caught," which carries with it the connotation that the individuals who were "caught" were guilty. It would have been preferable for the district court to have said that the jury could tell others: (1) that the case was a drug case dealing with individuals who were "arrested" near Fajardo, or (2) that the case was a drug case in which the drugs were recovered near Fajardo. However, we are reluctant to require the district court to engage in such semantic hair-splitting, especially in the absence of a contemporaneous objection. We do not agree that the district court's perhaps imprecise choice of words communicated to the jury a belief that the defendants were guilty. Therefore, we do not find that the district court committed any error in this regard, let alone the "obvious" error affecting substantial rights that is required by the plain error standard. See United States v. Olano, 507 U.S. 725, 732-34 (1993).
48
VII. The District Court's Refusal to Give an Instruction on Defendants' Theory of the Case
49
Defendants next argue that the district court erred in refusing to give their proposed instruction regarding their theory of defense. At the conclusion of trial, defendants submitted the following
50
"Special Charge on Theories of Defense":
51
Also, as it relates to the facts and evidence in this case, the government must specifically prove, beyond a reasonable doubt, that thirty-one (31) bales were thrown overboard from a vessel approximately 18 to 20 nautical miles N.E. of Cabo San Juan, (Fajardo Light House) between the hours of 2:57 a.m. and 3:03 a.m., on October 17, 1996, which bales were later retrieved and found to contain a controlled substance, to wit: cocaine.
52
The government must also prove, beyond a reasonable doubt, that the 31 bales it claims were thrown out or dumped from the vessel it had been tracking, at approximately 2:57 a.m. and 3:03 a.m., on October 17, 1996, came from the same boat and vessel which was rammed and stopped at approximately 3:30 a.m., on October 17, 1996, approximately one and one half (1 1/2 miles off of Cabo San Juan, (Fajardo Light House) and upon which the defendants were found and arrested.
53
Thus, in addition to having to prove, beyond a reasonable doubt, each and every one of the elements of the offense, as charged, the government must also prove, beyond a reasonable doubt, that the vessel which dumped the bales between the hours of 2:57 a.m. and 3:03 a.m., was the same vessel upon which the defendants were found when it was rammed at approximately 3:30 a.m., approximately one and a half (1-1/2) miles off of Cabo San Juan, (Fajardo Light House).
54
If you find that the government cannot prove, beyond a reasonable doubt, that the vessel which was tracked from approximately 1:11 a.m. until 3:03 a.m. was the same vessel as the one upon which the defendants were found when rammed at approximately 3:30 a.m., then you must find them not guilty and acquit each one of them of the offense and charge brought against them.
55
Further, if you find that the government cannot prove, beyond a reasonable doubt, that the vessel upon which the defendants were found [] could have attained and sustained the average speed required for it to have traveled from the approximate point where the bales were reportedly dropped to the approximate point where the defendant's vessel was rammed, then you must find them not guilty and acquit each one of them of the offense and charge brought against them.
56
The district court refused to give the proposed instruction because it was "replete with the evidence on the record." The district court stated several times that it was not proper for the court to comment on the evidence and that it would necessarily be doing so if it gave the proposed instruction.
57
We disagree, in part. We have repeatedly stated that "the trial judge is not limited to instructions in the abstract. The judge may explain, comment upon and incorporate the evidence into the instructions in order to assist the jury to understand it in light of the applicable legal principles." United States v. Maguire, 918 F.2d 254, 268 (1st Cir. 1990) (citing Quercia v. United States, 289 U.S. 466, 469 (1933)); see also United States v. Burke, 948 F.2d 23, 28 (1st Cir. 1991). There are limitations placed on the trial judge's comments to prevent the judge from assuming the role of a witness, misleading the jury, or distorting or adding to the evidence. See Maguire, 918 F.2d at 268-69 (quoting Quercia, 289 U.S. at 470). Beyond that, however, the trial judge may exercise her discretion in how best to assist the jury. On this basis, the district court likely could have given the detailed, case-specific instruction that the defendants requested, or otherwise simplified the somewhat prolix and repetitive history of facts critical to identifying defendants' vessel as the culprit. See Leshore v. County of Worcester, 945 F.2d 471, 474 (1st Cir. 1991); Maguire, 918 F.2d at 268.
58
Nevertheless, our determination that the proposed instruction was not necessarily improper does not mean that the district court was required to give the instruction to the jury. A defendant is entitled to an instruction on his theory of defense if sufficient evidence is produced at trial to support the defense and the proposed instruction correctly describes the applicable law. See United States v. Montanez, 105 F.3d 36, 39 (1st Cir. 1997) (citing United States v. McGill, 953 F.2d 10, 12 (1st Cir. 1992)). However, the defendant is not entitled to a verbatim reading of the requested instruction, and the court need not instruct on every particular that conceivably might be of interest to the jury. See Montanez, 105 F.3d at 39. Therefore, a trial court's failure to deliver a theory of defense instruction will result in reversal only if: (1) the requested instruction correctly describes the applicable law; (2) sufficient evidence is produced at trial to warrant the instruction; (3) the charge actually delivered does not fairly present the defense; and (4) the requested instruction was essential to the effective presentation of the particular defense. See id. (citing United States v. Passos-Paternina, 918 F.2d 979, 984 (1st Cir. 1990)).
59
Defendants appear to satisfy the first two elements. At bottom, defendants' theoryof defense instruction, stripped of its details, charges that the government must prove beyond a reasonable doubt that defendants' vessel was the same vessel that government agents tracked and witnessed dumping the thirty-one bales of cocaine. Because the government had to prove that the defendants possessed the thirty-one bales of cocaine on the high seas, this is essentially a correct statement of the government's burden in this case. And, although confusing, defendants did present evidence that their vessel could not have been the vessel tracked by the government agents between 1:11 a.m. and 2:50 a.m., due to the sea conditions and the maximum sustainable speed of defendants' vessel.
60
Where defendants stumble is in the third and fourth elements of the standard. The instruction delivered to the jury does fairly present defendants' "wrong boat" defense, and the proposed instruction was not essential to the effective presentation of that defense. The district court instructed the jury that the government had to prove that the defendants knowingly and intentionally possessed the cocaine with the intent to distribute it. The district court instructed the jury at length regarding the definition of possession and what the jury needed to find to render a guilty verdict. These instructions adequately covered the substance of the proposed instruction: that the government must prove that it was defendants, and not the crew of some other nearby vessel, that possessed the bales of cocaine. Because the district court's instructions adequately covered defendants' theory of defense, there was no error in declining to give their proposed instruction. See McGill, 953 F.2d at 13.
61
Additionally, defendants were able to effectively present their "wrong boat" defense. This was the clear theme of the defense put on by defendants, as evidenced by its extensive coverage at closing argument. The district court's instructions opened the door for the jury to give life to defendants' theme. The fact that the jury chose not to subscribe to this theory of the case does not mean that defendants were precluded from effectively presenting it. Accordingly, we reject defendants' challenge to the district court's instructions.
VIII. Sentencing
62
Defendants raise several arguments protesting their sentences, although many of them take the form of generalized complaints that are not tied to any particular sentencing calculation. We review the district court's findings of fact during sentencing for clear error, see United States v. Aker, 181 F.3d 167, 171 (1st Cir. 1999), and we review its determinations of law under the Sentencing Guidelines de novo. See United States v. Ticchiarelli, 171 F.3d 24, 35 (1st Cir. 1999).
63
A. District Court's Remarks Regarding Conspiracy
64
Defendants first argue that the court erroneously believed that this was a conspiracy case. They point to the court's statement that "all three of them participated in this conspiracy to import 1,040 kilograms of cocaine." Defendants do not, however, explain how this alleged error affected their sentences. They do not argue that the district court used the wrong sentencing guideline in calculating their base offense level. Nor do they argue that this alleged erroneous belief caused the district court to apply any improper enhancements or to deny any appropriate reductions. After reviewing the entire sentencing record, it is clear to us that the district court engaged in the proper analysis and merely spoke colloquially when it referred a single time to the "conspiracy to import". Thus, we reject defendants' contentions that the court erroneously treated this as a conspiracy case.
B. Undue Influence
65
Defendants also argue that the district court was unduly influenced by two factors: (1) the amount of cocaine involved and (2) deterrence of other potential offenders. Again, defendants do not explain why the district court erred by considering these two factors or how this alleged error actually impacted their sentences.
66
The amount of the controlled substance is not only a relevant concern at sentencing, it is the most critical factor used to determine the proper base offense level. See U.S.S.G. § 2D1.1(c) (Drug Quantity Table). Accordingly, the court clearly did not err in considering this factor. To the extent that defendants argue that the district court was influenced by the amount of the controlled substance to sentence them at the upper end of the guidelines range, we offer two responses. First, we have no appellate jurisdiction to review a sentence within the applicable sentencing guidelines range if that range was correctly determined. See United States v. Panet-Collazo, 960 F.2d 256, 261 (1st Cir. 1992). Second, even if we did, we would find nothing wrong with imposing a high-end sentence based on this factor. The highest base offense level under § 2D1.1 for a violation of 46 U.S.C. App. § 1903(a) in which no death or serious bodily injury occurred is Level 38, the level attributed to defendants. This level is achieved by possessing 150 kilograms of cocaine, and defendants possessed almost seven times that amount. There is nothing improper about a district court considering a sentence at the upper end of the sentencing range for an offense involving a substantially greater quantity of cocaine than that involved in the standard offense meriting a base offense level of 38.
67
Our conclusions do not differ with regard to the district court's stated concerns regarding deterrence. Defendants do not argue that the court's deterrence concerns caused it to err in determining the proper sentencing range. Rather, defendants merely argue that the court's comments regarding deterrence "reflect an unfounded instinct for harsher punishment." To the extent that this is an argument that the court's deterrence concerns resulted in a high-end sentence, we again lack jurisdiction, see Panet-Collazo, 960 F.2d at 261, and we again fail to share defendants' outrage over the use of this factor. In fact, 18 U.S.C. § 3553(a)(2)(B) expressly directs the district court to consider the need for adequate deterrence when imposing a sentence. For these reasons, defendants' claims of undue influence fail.
C. Escape
68
Defendants next argue that the district court erred in finding that they attempted to flee the scene when they were apprehended. Yet again, defendants fail to explain to the Court how they were harmed by this alleged error. In any event, the district court's finding was not clearly erroneous. The court heard testimony that: (1) the crew of the Customs vessel pursuing defendants' vessel identified themselves as police officers; (2) defendants' vessel stopped and then accelerated; (3) Rosario-Peralta and Javier jumped into the water when the Customs vessel rammed their boat; (4) Rosario-Peralta and Javier attempted to swim away and remained in the water to avoid boarding the Customs vessel; (5) Diaz-Morla sped away when the Customs vessel stopped to retrieve Rosario-Peralta and Javier; and (6) Diaz-Morla initially failed to heed orders to stop and eventually stopped only when agents threatened to neutralize the vessel's engines.
69
Rosario-Peralta and Javier claim that it is unreasonable to conclude that they were trying to escape, given that they went overboard a mile and a half offshore. While it may in fact have been unreasonable for Rosario-Peralta and Javier to think that their escape attempt would be successful under those circumstances, the district court's finding that escape was on their minds is still the most reasonable interpretation of the events. Diaz-Morla claims that he was not trying to escape either; he was merely maneuvering the vessel in response to the collision caused by the Customs vessel. Given the testimony to the contrary, this argument is equally unsuccessful in demonstrating clear error in the district court's finding of attempts to escape.
D. Acceptance of Responsibility
70
Each defendant claims that the court erroneously denied him a two-level downward adjustment under U.S.S.G. § 3E1.1(a) for acceptance of responsibility. This adjustment is applicable when "the defendant clearly demonstrates acceptance of responsibility for his offense." U.S.S.G. § 3E1.1(a). The district court's decision to withhold a reduction in the offense level will not be overturned unless clearly erroneous. See United States v. Gonzales, 12 F.3d 298, 300 (1st Cir. 1993). The burden is on the defendant to demonstrate that he or she should have received the reduction. See United States v. Uricoechea-Casallas, 946 F.2d 162, 167 (1st Cir. 1991).
71
Defendants greatly diminished their chances for receiving this adjustment by pleading not guilty and proceeding to trial. See U.S.S.G. § 3E1.1, Application Note 2 ("This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse."). However, there are "rare situations" in which a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to trial. Id.
72
Neither Rosario-Peralta nor Diaz-Morla presents this Court with such a "rare situation" because, even now on appeal, they maintain their factual innocence. Thus, they are not entitled to a downward adjustment for acceptance of responsibility. See United States v. Dodd, 111 F.3d 867, 870 (1st Cir. 1997) (affirming the district court's denial of a reduction for acceptance of responsibility based on the defendant's "continued denial of factual guilt"); United States v. Perez-Perez, 72 F.3d 224, 228 (1st Cir. 1995) (finding no error in the district court's denial of a § 3E1.1(a) adjustment when the defendant declared his innocence at sentencing).
73
Defendants object to this result, claiming that they cannot be punished for preserving their constitutional right to appeal by maintaining their innocence. We join the circuits that have rejected this claim and found that § 3E1.1 does not prejudice or penalize a defendant for exercising his right to appeal. See, e.g., United States v. Davis, 960 F.2d 820, 829 (9th Cir. 1992); United States v. McDonald, 935 F.2d 1212, 1222 (11th Cir. 1991); United States v. Monsour, 893 F.2d 126, 129 (6th Cir. 1990). Although we have not previously addressed the precise issue raised by defendants, our decisions on closely related questions have recognized the principles underlying the decisions of our sister circuits on this issue. For instance, in United States v. Munoz, 36 F.3d 1229, 1236-37 (1st Cir. 1994), we rejected the appellant's argument that his constitutional right to trial was infringed when the district court refused to grant him a § 3E1.1 reduction because he had proceeded to trial rather than plead guilty. While recognizing the difficult choice presented to a criminal defendant, we stated that "not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid." Id. (quoting Corbitt v. New Jersey, 439 U.S. 212, 218 (1978)). In United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir. 1989), we upheld the constitutionality of § 3E1.1 against a challenge brought under the Fifth Amendment, stating that the Sentencing Guidelines "merely codify a tradition of leniency and are not an impermissible burden on the exercise of constitutional rights."
74
Furthermore, as noted by the Sixth Circuit in Monsour, this is not a case in which a defendant's punishment has been increased for failure to accept responsibility.See id. Instead, defendants who choose to demonstrate remorse are granted special leniency. The fact that § 3E1.1 forces defendants to make a difficult choice simply does not violate their constitutional rights to trial or to an appeal. See Munoz, 36 F.3d at 1236-37; Davis, 960 F.2d at 829. Thus, we reject defendants' arguments in this regard.
75
Defendant Javier raises a somewhat different argument. He claims that he did in fact express remorse and accept responsibility for his conduct when he stated, "I feel very bad about the position I am in and I wish you would consider me."5 However, Javier made no mention of the crime in this short statement and did not express regret over any actions he has taken. Rather, he appeared to express displeasure with the consequences of being convicted of the crime. As such, Javier's statement falls far short of "clearly demonstrat[ing] an acceptance of responsibility for his criminal conduct." U.S.S.G. § 3E1.1, Application Note 2.
76
Perhaps recognizing this, Javier claims that the district court "cut him off" before he could finish. Citing United States v. De Alba Pagan, 33 F.3d 125 (1st Cir. 1994), Javier complains that the district court thereby denied him his right to allocution. In doing so, Javier misrepresents the situation as it occurred during the sentencing hearing. When the district court asked both Javier and his counsel if they wished to make any factual corrections to the pre-sentence report, Javier took the opportunity to make the statement quoted above. The court then told Javier that "[w]e will get to that." Minutes later, the district court specifically asked Javier if he wanted to say anything before the sentence was pronounced. Javier replied, "No." Therefore, Javier's claim that he was denied his right of allocution has no basis in fact. Javier was free to express remorse and accept responsibility for his criminal conduct, but he chose not to do so. Thus, we will not now declare that he should have been given a downward adjustment under § 3E1.1.
E. Role-in-the-Offense Adjustments
77
Each defendant also claims that he should have been given a role-in-the-offense reduction because his role was equivalent to that of a "minimal" or "minor" participant. Guideline Section 3B1.2 provides a four-level reduction for minimal participants (those "plainly among the least culpable of those involved in the conduct of a group") and a two-level reduction for minor participants (those "less culpable than most other participants, but whose role could not be described as minimal"). See U.S.S.G. § 3B1.2, Application Notes 1, 3. We will reverse the district court's finding that a defendant is not a minimal or minor participant only if it is clearly erroneous. See United States v. Gonzalez-Soberal, 109 F.3d 64, 73 (1st Cir. 1997) (citing Paz Uribe, 891 F.2d at 399).
78
Defendants claim that they: (1) lacked knowledge of the scope and structure of the offense; (2) performed only unsophisticated tasks; (3) did not make any decisions that were material to the offense; and (4) possessed little, if any, supervisory responsibility. In making these arguments, defendants make the same mistake they accuse they district court of making. Defendants were not convicted of conspiracy offenses; they were convicted of possession with intent to distribute cocaine while on the high seas in violation of 46 U.S.C. App. § 1903(a), (b)(1) and (f). Thus, it matters little to this analysis whether defendants knew the structure of or substantially participated in an alleged overall drug conspiracy. The fact that defendants may or may not have been a smaller part of a larger conspiracy does not diminish their role in the cocaine possession offense charged here. Defendants were the only three individuals aboard the vessel that carried the cocaine, and, as the district court found, there was little or no evidence that one of the defendants was comparatively less culpable than the other two. Defendants' showing is insufficient to demonstrate clear error in the district court's decision. See United States v. Coneo-Guerrero, 148 F.3d 44, 50 (1st Cir. 1998) (rejecting the defendants' arguments that they, as mere transporters of cocaine, were less responsible for importing and possessing cocaine with intent to distribute than other, unnamed participants with allegedly greater responsibilities), cert. denied, 119 S. Ct. 1511 (1999).
CONCLUSION
79
Based on the foregoing, we affirm the judgment of the district court.
Notes:
1
The Salty Dog log entries for October 17, 1996 were destroyed by lightning, but the pertinent information was transmitted to the Domestic Air Interdiction Coordinating Center ("DAICC").
2
Because we affirm the finding that no prejudice resulted from the failure to produce the logs, we need not reach appellants' further claim that the district court erred in ruling that the logs were not discoverable under the Jencks Act.
3
We have addressed the issue raised by Judge Becker in at least one previous case. In United States v. Saccoccia, 58 F.3d 754, 777 (1st Cir. 1995), cert. denied, 517 U.S. 1105 (1996), we held that the district court did not abuse its discretion in admitting canine sniff evidence, despite defense expert testimony regarding the widespread contamination of circulating currency.
4
Defendants also offer a third argument regarding their statements: that the court erroneously admitted the statements of each co-defendant as evidence against the other two. However, defendants neither develop this argument any further nor provide any authority for the proposition that it was in fact error to do so. "We have steadfastly deemed waived issues raised on appeal in a perfunctory manner, not accompanied by developed argumentation." United States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997). "An issue lacks developed argumentation if the appellant merely mentions it as a 'possible argument in the most skeletal way, leaving the court to do counsel's work.'" Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass'n, 142 F.3d 26, 43 (1st Cir. 1998) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1989)). Accordingly, we deem this argument to be waived.
5
For the moment, we set aside the fact that Javier disputes his factual guilt in the same appellate brief in which he makes this argument that he expressed remorse and accepted responsibility for his criminal conduct.
|
Order entered September 9, 2016
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00878-CV
BRANCH BANKING AND TRUST COMPANY, Appellant
V.
SWIG PARTNERS GP, LLC, ET AL., Appellees
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-03427
ORDER
By order dated July 18, 2016, the Court ordered Vielica Dobbins, Official Court Reporter
for the 134th Judicial District Court, to file, by August 8, 2016, a corrected Master Index,
Volume 10, and Volume 11 correcting errors and omissions related to the exhibits as outlined in
the motion attached to the order and extended the time for appellant’s and cross-appellant’s
briefs to September 9, 2016. As of today’s date, the corrected index and volumes have not been
filed. Accordingly, we again ORDER Ms. Dobbins to file, by SEPTEMBER 19, 2016, a
corrected Master Index, Volume 10, and Volume 11 correcting errors and omissions related to
the exhibits. A copy of the parties’ July 13, 2016 agreed motion detailing the necessary
corrections is attached. We caution Ms. Dobbins that failure to file the corrected records by
September 19, 2016 may result in this Court ordering that you not sit as a court reporter until
they are filed.
We GRANT the parties’ September 8, 2016 agreed motion of appellant and cross-
appellant Swig Partners, LP to extend time to file their briefs to the extent that we extend the
time to OCTOBER 19, 2016.
We DIRECT the Clerk of this Court to send a copy of this order to the Honorable Dale
Tillery, Presiding Judge of the 134th Judicial District Court, Ms. Dobbins, and counsel for all
parties.
/s/ ELIZABETH LANG-MIERS
JUSTICE
|
44 F.Supp. 767 (1942)
TROUNSTINE
v.
BAUER, POGUE & CO., Inc., et al.
District Court, S. D. New York.
March 31, 1942.
*768 Joseph Rilander, of New York City (Edgar J. Bernheimer, Sidney Rosenbaum, and Sidney J. Schwartz, all of New York City, of counsel), for plaintiff.
*769 Benjamin P. DeWitt, of New York City, (Benjamin P. DeWitt and Sidney Pepper, both of New York City, of counsel), for defendant Bauer, Pogue & Co., Inc.
Sidney Pepper, of New York City (Benjamin P. DeWitt and Sidney Pepper, both of New York City, of counsel), for defendant Frederick R. Bauer.
BRIGHT, District Judge.
Plaintiff brings this suit for an accounting of certain transactions of the defendants in the stock of Fidelio Brewery, Inc., which, it is alleged, was to be dealt in for the joint benefit of Norman S. Goldberger, her testator, and the defendants. The amended complaint sets out two causes of action, the first upon an alleged oral agreement claimed to have been entered into on or shortly prior to June 8, 1933, between the defendant corporation acting through the individual defendants Bauer and Pogue, the latter since deceased, and the second upon an alleged written agreement dated June 9, 1933, both agreements being in substantially the same terms. The defendant Donald F. Arrowsmith, as executor, etc., of Davenport Pogue, deceased, has not been served, nor has he appeared herein.
The determination of the questions involved is simplified, to a large extent, by admissions in the pleadings and upon the trial. From them, it appears that the defendant corporation, organized in Delaware, was dissolved in December, 1937, but under the laws of that state it "continues in existence for the purpose of liquidating its assets, discharging its liabilities, and prosecuting or defending suits by or against it". Prior to April, 1933, Bauer and Pogue were copartners under the name of Bauer, Pogue & Company, dealing in securities, and so continued until the death of Pogue. Bauer is the sole surviving partner. The corporation was organized in April, 1933, by Bauer and Pogue, to conduct the business of said partnership, including the sale and disposition of the Brewery stock, was authorized to do business in the State of New York, and all of its capital stock was owned by Bauer and Pogue, who were in control of it, and exercised direction and management of its business and affairs. On or about June 6, 1933, the defendant corporation, under the direction of Bauer and Pogue, completed the sale of 334,000 shares of Fidelio Brewery, of which corporation Goldberger was president and the owner of a majority of its stock. On or about June 13, 1933, the defendant corporation received from Goldberger 50,000 shares of Fidelio stock, which were registered, at the request of Bauer and Pogue, in the name of the copartnership. The corporation and Bauer and Pogue in June and July, 1933, conducted a joint account in the Fidelio stock, in which Goldberger had an interest, which transaction terminated about the last week of July, 1933. During those two months, the corporation made sales of quantities of Fidelio stock "for its sole benefit", none of which were credited or accounted for to Goldberger; and sales of the same stock were made for accounts in the names of Duffy, Valenti and Williams, employees of the corporation, which stock was owned by Bauer and Pogue, and which were not credited or accounted for to Goldberger. The account Exhibit A attached to the amended complaint was delivered to Goldberger, was incorrect, and did not accurately set forth transactions in the Fidelio joint account, and that was the only statement made to Goldberger of transactions in Fidelio stock in which he was interested. The answering defendants also admit that there was paid to Goldberger $71,847.58, being the amount shown to be due him by Exhibit A, and no more. Part of the assets of the corporation have been distributed to Bauer and Pogue, and its remaining assets still remain undistributed. The corporation is ready to account for its transactions in Fidelio stock in which Goldberger was interested. They further admit that a writing, in the form set out in Exhibit B to the amended complaint, was signed by Bauer on behalf of the corporation and delivered to Goldberger, and that Goldberger signed the writing and returned it to the corporation.
The first question to be determined is that raised by the defendant corporation that more than three years have elapsed since it was dissolved, and, therefore, no judgment may be taken against it because under the laws of Delaware it has ceased to exist for any such purpose. Attention is called to Section 42 of the General Corporation Law of that state, Rev.Code Del.1935, § 2074, which provides, so far as material: "All corporations, whether they expire by their own limitation, or are otherwise dissolved, shall nevertheless be continued for the term of three years from such * * * dissolution bodies corporate for the purpose of prosecuting and defending suits by or against them * * *; provided, however, that with respect to any action * * * *770 begun or commenced by or against the corporation prior to such * * * dissolution and with respect to any action * * * begun or commenced by the corporation within three years after the date of such * * * dissolution, such corporation shall only for the purpose of such actions * * * be continued bodies corporate beyond said three-year period and until any judgment * * * therein shall be fully executed."
The defendant corporation contends that this suit, not having been begun before the dissolution, the extension of three years cannot apply to it, and only applies to actions begun by the corporation and not against it.
The action was originally commenced in the New York Supreme Court and was removed to this court on September 27, 1939, upon a petition by the corporation defendant, which alleged that it was and is a nonresident of the State of New York, "and at the time of the commencement of this suit, ever since has been, and still is, a corporation organized under the laws of the State of Delaware and a citizen of said State of Delaware".
As above stated, it is admitted that it was authorized to do business in the State of New York, that it continues in business for the purpose of liquidating its assets, discharging its liabilities and defending suits against it, and that its assets have not yet been entirely distributed. As we have seen, it is also admitted that it is ready to account and that an accounting should be had and in its answer asks permission so to do. Upon the trial, its counsel conceded that the defendants were willing to account but contended that the accounting should be from June 13, 1933. When asked what the questions to be decided were, counsel stated that they were three in number(1) whether there should be an accounting from June 8 or June 13, 1933; (2) whether such accounting should include the sales made by the defendant in its trading account and those made by its employees; and (3) whether it should also include a sale claimed to have been made by Goldberger to Sidney Rosenbaum.
Under Section 210 of the General Corporation Law of New York, Consol. Laws N.Y. c. 23, the corporation could not do business in this state without first obtaining a certificate of authority from the Secretary of State and his designation as its agent upon whom process might be served within the state. Under Section 216 of the same law, it could not surrender that authority without consenting that process against it, in an action upon any liability or obligation, incurred within this state before the filing of any certificate of surrender, after the filing thereof, might be served upon the Secretary; and even the filing of such a certificate would not affect any right of action upon any contract made before the surrender. The designation of the Secretary of State upon whom process might be served in this state was a consent to be sued here, and a waiver of any claim of want of jurisdiction over the person of the corporation. Neirbo Co. v. Bethlehem Corp., 308 U.S. 165-175, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437. The granting of a certificate to do business constituted a true contract with the state, and the Secretary of State was a true agent of the corporation. The actions in which he was to represent the corporation were not limited. Bagdon v. Philadelphia & Reading C. & I. Co., 217 N.Y. 432, 111 N.E. 1075, L.R.A. 1916F, 407, Ann.Cas.1918A, 389.
It is probably true that Bauer, Pogue & Company, Inc., is dead in Delaware, except insofar as its corporate existence is continued by the laws of that state. Oklahoma Natural Gas Co. v. Oklahoma, 273 U.S. 257, 47 S.Ct. 391, 71 L. Ed. 634. But having contracted with the State of New York when it acquired the right to do business here, it is still existent in this state insofar as the winding up of its business and the administration of its assets here may be carried on in this jurisdiction, where it did its business and where the controversy now in suit arose. Matter of National Surety Co., 283 N.Y. 68-77, 27 N.E.2d 505; Restatement of Law, Conflict of Law, Section 158-(a), page 230. Although the existence and powers of a foreign corporation coming into this state to do business are at all times subject to the law of its creation and domicile, it is also subject to laws relating to it and the terms laid down by the legislature of this state as conditions of its doing business here. Sinnott v. Hanan, 214 N.Y. 454-458, 108 N.E. 858. When a foreign corporation comes into New York State and transacts its business there, it must yield obedience to its laws. That is a condition on which the right to do business there depends. German-American Coffee Co. v. Diehl, 216 N.Y. 57-64, 109 N.E. 875; Horn Silver Mining Co. v. New York, 143 U.S. *771 305, 314, 315, 12 S.Ct. 403, 36 L.Ed. 164. That which a state may do with corporations of its own creation it may do with foreign corporations admitted into the state. Orient Insurance Co. v. Daggs, 172 U.S. 557-566, 19 S.Ct. 281, 43 L.Ed. 552.
The Oklahoma Gas Company case is cited by the defendant corporation to show its demise before the commencement of this action. But it is to be noted that in that case the Supreme Court refused to substitute a new party in place of the allegedly dead one; it seemed that there was no abatement because, for litigating purposes, the Oklahoma Company was still in being and a party before the court. Significantly, in language appropriate to the present case, it was stated [273 U.S. 257, 47 S.Ct. 393, 71 L.Ed. 634], "The motion is signed by counsel for the appellant, the Oklahoma Natural Gas Company. He does not explain how he continues to represent the appellant, if in fact it has ceased to be as he represents to this court". It would seem to be the law that an action abates upon dissolution of the corporation only "when there is no statute or public policy to the contrary in the state where the foreign corporation has been licensed to do business". Clark v. Williard, 292 U.S. 112, 119, 54 S.Ct. 615, 618, 78 L.Ed. 1160.
Somewhat similar language is used in James & Co. v. Second Russian Insurance Co., 239 N.Y. 248, 254, 146 N.E. 369, 370, 37 A.L.R. 720, where plaintiff, an assignor of a British insurance company, sued to recover for marine losses against which the defendant had insured. The defendant defended that its corporate life was ended by a decree of the Russian Soviet Government nationalizing the business of insurance companies, and releasing them from the payment of debts and liabilities. It was still engaged in business, however. A motion to compel a reply to that defense was denied and the order was affirmed, the court saying: "We deal first with the so-called defense that the corporation which defends is dead and so incapable of defending. * * * A corporation with vitality sufficient to answer a complaint has, by the very terms of the hypothesis, vitality sufficient to permit it to be sued. The shades of dead defendants do not appear and plead. Expedients, of course, there are whereby a court may be informed that jurisdiction has been halted. * * * But if we put the questions to one side and view the statements of the answer * * * as a suggestion of its death, to be heeded even in this court, lest a controversy with an unreal litigant be unwittingly determined, the result will not be changed. The decree of the Russian Soviet government nationalizing its insurance companies has no effect in the United States unless, it may be, to such extent as justice and public policy require that effect be given. * * * Justice and public policy do not require that the defendant now before us shall be pronounced immune from suit. * * * If existence be assumed, the question remains whether liability has been extinguished. Was it extinguished by the Soviet decree canceling or releasing the debts of the nationalized companies? * * * Its fiat to that effect could not constrain the courts of other sovereignties, if assets of the debtor were available for seizure in the jurisdiction of the forum."
It might also be said that at no time until the final submission of briefs after the trial of the case, was this point raised by the defendant corporation. There is no such defense set up in the answer, nor any suggestion of complete and final demise made on the record. It was not specifically raised prior to or during the trial by any motion to dismiss or in any other manner. On the contrary, the defendants conceded that there should be an accounting by the corporation and its answer expressly asks that one be had. I can see no merit in the contention either as a matter of law or fairness or equity.
Should there be an accounting? It is admitted there should. It is also admitted that there was a joint account in the Brewery stock, and that the statement rendered to Goldberger after the account was closed is incorrect. The questions remaining, therefore, are (1) what were the terms of the agreement as to the joint account; (2) between what dates should such accounting be had; (3) should it include the trading account of the defendants, the nominee accounts of Duffy, Valenti and Williams, and the sale to Rosenbaum; and (4) should the defendant Bauer be held liable.
The weight of the evidence shows that the original transactions in the sale of 334,000 shares of the Fidelio stock were concluded about June 6, 1933 or shortly thereafter. Goldberger and the defendants had other stock which they concluded could be profitably marketed. On or about June 8, 1933, they entered into an agreement or joint venture for the purpose of dealing in that stock. This was confirmed by the *772 letter of June 9, 1933, signed by the corporate defendant and Goldberger, and which substantially sets out the terms of that agreement. That such an agreement was made, substantially on the terms of that letter, is corroborated by the written instrument itself, Exhibit B attached to the complaint; by the letter from Bauer, Pogue & Company to Goldberger dated June 9, 1933, consenting to the release of Goldberger's stock escrowed to them in April 1933; by the letter from Goldberger to the Guaranty Trust Company of June 9, 1933, approved by the partnership and corporation on that day, authorizing the delivery of 50,000 shares of the Fidelio stock to the partnership, that being his contribution to the account; by the record of the Guaranty Trust Company dated June 9, 1933, showing the splitting up of Goldberger's larger certificate of stock so that 50,000 shares could be recorded in the name of and delivered to the partnership; by the ledger of the defendant corporation showing this joint trading account which begins on June 8, 1933 and ends on August 2, 1933; by the accounting which was made by the corporation to Goldberger on September 11, 1933, Exhibit A attached to the complaint, which contains the summaries of net profit to the joint adventurers in the same figures as are contained in the ledger account; and by the letter from Tribble dated July 11, 1933 addressed to the defendant corporation in which reference is made "to the account formed by you and Norman S. Goldberger dated June 9, 1933, for trading in the common stock of Fidelio".
It is, of course, obvious that the letter of June 9, 1933 was addressed to George E. Tribble, as well as to Goldberger, and the defendants claim that that could not constitute any contract because it was not accepted by Tribble. But that does not detract from the fact that there was an agreement between the corporation and Goldberger, as outlined in the letter of June 9, 1933. Defendants began their entries of items in that account the day before and paid a substantial sum of money both to Goldberger and to Tribble, based upon such beginning. And Tribble did come in upon practically every term contained in the letter of June 9.
Under the agreement the trading account was to begin forthwith. It did on June 8, 1933 and ended on August 2, 1933. The account and accounting so shows. Goldberger and the corporation agreed to contribute each 50,000 shares at $3, and they did. Tribble agreed to contribute 15,000 shares, and he did. Goldberger agreed to deliver to the corporation his number of shares forthwith, and the evidence shows he did. All purchases and sales of said stock made by the corporation during said period, including any purchases made pursuant to options, "shall be deemed for said account". The defendant corporation was to receive for its services in operating said account, 20% of the net profits upon the final termination, and the accounting shows that it made such deduction both from Goldberger and Tribble. The corporation agreed to distribute the shares remaining and the profits pro rata among the three adventurers, and it did. It was also agreed that during the period of the account's operation, neither Goldberger nor Tribble should directly or indirectly sell or dispose of any shares in the open market except for said account and under the direction of the corporation.
The agreement and trading account were obviously a joint adventure. Each participant in it bore a fiduciary relationship to the other. In re Taub, 2 Cir., 4 F.2d 993, 994; Chapman v. Dwyer, 2 Cir., 40 F.2d 468-470; Hey v. Duncan, 7 Cir., 13 F.2d 794, 795; Kimberly v. Arms, 129 U.S. 512, 527, 9 S.Ct. 355, 32 L.Ed. 764; Dexter & Carpenter v. Houston, 4 Cir., 20 F.2d 647-651; Cray, McFawn & Co. v. Hegarty, D.C., 27 F.Supp. 93-99, affirmed 2 Cir., 109 F.2d 443; Meinhard v. Salmon, 249 N.Y. 458-463, 164 N.E. 545, 62 A.L.R. 1; Selwyn & Co. v. Waller, 212 N.Y. 507-511, 106 N.E. 321, L.R.A. 1915B, 160. None could deal secretly in the stock during the period of the account for his or its individual profit. Bauer and Pogue, holders of all of the capital stock of the corporation who would thereby receive an equal share in the proceeds of the venture and who admittedly controlled the corporation and invited Goldberger to repose trust and confidence in them as officers and directors of the corporation, were likewise in a similar relationship with Goldberger. It is admitted that the 50,000 shares contributed by Goldberger to the account were, at the request of the individual defendants, registered in the name, not of the corporation but of the partnership of Bauer, Pogue & Company, in which the individual defendants were partners. Bauer admits that the corporation made sales of quantities *773 of Fidelio stock during the period in question, for the sole benefit of the corporation and that none of the profits of those sales were credited to or accounted for to Goldberger. He also admits that during the same period, sales of Fidelio stock, owned by the individual defendants, were made for accounts in the names of three employees of the defendant corporation, and the profits from the sales were retained by the individual defendants and not accounted for to Goldberger.
It is clear that there was an obvious breach of the fiduciary relationship existing, participated in not only by the corporation but also by the individuals Bauer and Pogue and in violation of the terms of the agreement, from which breach all of them secretly profited.
There should, therefore, be an accounting of all of the transactions in Fidelio stock between June 8, 1933, and August 2, 1933, including the trading account of the corporation, as well as the sales made under the names of the three employees of stock owned by Bauer and Pogue.
It appears that on July 21, 1933, Goldberger requested the Guaranty Trust Company to transfer to Sidney Rosenbaum 25,000 shares of the Fidelio stock and that Rosenbaum received the same on July 24, 1933. Under the agreement, all sales during the period of the duration of the account were to be deemed for the account and Goldberger did not have the right to sell or dispose of any shares of Fidelio stock in the open market except for the trading account and under the direction of the corporation. This transaction, therefore, must be inquired into upon the accounting to be had, and if found to have been in violation of the agreement, and profit was derived therefrom, shall be included in the profits to be accounted for and distributed.
If it appears upon said accounting that the profits in the said joint trading account are increased, the special master will determine whether or not the corporation is entitled to a 20% commission upon such increase. Insofar as any such profit may have resulted from the dealings of the corporation in its own trading account, or from the sales in the names of the three employees, which would be in violation of the agreement, there should not be allowed to the corporation any such commission upon those sales or deals.
The final question is whether or not the defendant Bauer shall be held personally liable. He admits that he was a director and the owner of 50% of the stock of the defendant corporation. He admits that he received his share of the profits from the sales in the names of the employees of stock owned in part personally by him and during the time when he and his partner were engaged in their direction and management of the corporation in the sale of stock owned under the joint trading account. He also admits that he and his partner impliedly invited Goldberger to repose confidence and trust in them as officers and directors of the corporation. In the distribution of the assets of the corporation, in which he undoubtedly shared, he has personally profited from the violation of the joint trading account agreement and was a party to such violation. He should, accordingly, be held jointly liable with the corporation. Muller v. Ackerman, 250 App.Div. 129-132, 293 N.Y.S. 547; Wainwright & Page v. Burr & McAuley, 272 N.Y. 130-133, 5 N.E.2d 64.
The entry of an interlocutory judgment is, therefore, directed, requiring the answering defendants to account in accordance with the foregoing, and appointing a special master for that purpose.
|
UNITED STATES COURT OF APPEALS
Filed 12/18/96
TENTH CIRCUIT
PRENTICE DON WOOD,
Plaintiff - Appellee,
No. 96-7033
v.
(CV-94-427-S)
(Eastern District of Oklahoma)
BILL ED ROGERS, et al.,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.
.
Prentice Don Wood, an Oklahoma inmate, appeals the district court’s dismissal of
his action brought pursuant to 42 U.S.C. § 1983. Appellant filed a complaint alleging that
various state officials had conspired to violate his constitutional rights at his original state
court criminal proceeding. More specifically, he alleged that the judge and prosecuting
attorneys had pressured witnesses into giving perjured testimony that caused his
conviction. Appellant sought “immediate release from incarceration,” as well as
monetary damages.
*
The case is unanimously ordered submitted without oral argument pursuant to Fed. R.
App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited
under the terms and conditions of 10th Cir. R. 36.3.
In an order dated August 3, 1994, the same date the complaint was filed, the
district court held that appellant’s action “[fell] within the core of habeas corpus” because
his challenge was to the “very fact or duration of his imprisonment.” I R., tab 4, at 1. To
the extent that appellant’s claim sought habeas corpus relief, the action was dismissed for
failure to exhaust. 28 U.S.C. § 2254(b). To the extent that appellant’s claim sought
damages under § 1983, the action was stayed and closed for one year in order to allow
appellant an opportunity to exhaust state appeals and federal habeas corpus. I R., tab 4, at
3. The district court further stated that appellant could either: (1) move to have the stay
vacated and § 1983 action restored when he had either prevailed on his state appeals, or
exhausted his state appeals and federal habeas corpus, or (2) petition for an extension of
time to bring his § 1983 claims and a continuation of the stay, which would be granted
were appellant able to demonstrate due diligence in exhausting his still unexhausted
claims. Id. at 4-6. If the stay were to run without the appellant pursuing one of these
courses of action, the complaint would be dismissed. Id. at 6. Such dismissal would be
“a permissible exercise of the court’s discretion and its inherent authority to manage its
docket . . . reflect[ing] concern for the efficient administration of justice and judicial
economy.” Id.
Before the stay ran, appellant filed a motion to vacate, alleging that a direct state
court appeal had been filed with the Oklahoma Court of Criminal Appeals by the
Oklahoma Indigent Defense System. The district court denied this motion on two
-2-
grounds: first, that the issues forming the basis for his § 1983 claim had never been
raised before the Oklahoma Court of Criminal Appeals; and second, that he had a federal
habeas corpus motion pending before the district court. I R., tab 16, at 3. In addition, the
district court dismissed appellant’s § 1983 claim in its entirety because appellant had not
chosen to pursue one of the permitted courses of action identified by the district court in
its earlier order. Id. Mr. Wood appeals the denial of his motion to vacate the stay, and
the dismissal of his § 1983 claims. We exercise jurisdiction pursuant to 28 U.S.C. §
1291, and affirm.
Appellant’s claim for damages pursuant to § 1983 is premised on his conviction’s
alleged unconstitutionality. In other words, to establish the basis for his damages claim,
appellant would necessarily have to demonstrate the invalidity of his conviction. Such a
claim is not cognizable under § 1983, unless “a . . . plaintiff . . . prove[s] that the
conviction or sentence has been reversed on direct appeal, expunged by excessive order,
declared invalid by a state tribunal authorized to make such determination, or called into
question by a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, —, 114 S. Ct.
2364, 2372 (1994). The appellant has offered no such proof, and his action cannot
-3-
therefore be allowed to proceed.1 See id.; 28 U.S.C. § 1915(e)(2)(B)(ii).
The judgment of the district court is AFFIRMED.
The mandate shall issue forthwith.
Entered for the Court
Carlos F. Lucero
Circuit Judge
1
As a result, we deny appellant’s two additional motions relating to his § 1983 claims.
-4-
|
328 F.3d 995
John A. MANDACINA, Appellant,v.UNITED STATES of America, Appellee.
No. 02-1685.
United States Court of Appeals, Eighth Circuit.
Submitted: December 9, 2002.
Filed: May 16, 2003.
COPYRIGHT MATERIAL OMITTED Mark W. Hagemeister, argued, St. Louis, MO (David B. Helfrey, on the brief), for appellant.
Paul S. Becker, argued, Asst. U.S. Atty., Kansas City, MO, for appellee.
Before BOWMAN, MORRIS SHEPPARD ARNOLD, and RILEY, Circuit Judges.
RILEY, Circuit Judge.
1
A jury convicted John A. Mandacina (Mandacina) of conspiracy, retaliating against an informant, interstate murder-for-hire, and use of a firearm during a crime of violence. The district court sentenced Mandacina to life imprisonment. We affirmed. United States v. McGuire, 45 F.3d 1177 (8th Cir.1995). Mandacina filed a motion and supplemental motion pursuant to 28 U.S.C. § 2255 (2000), raising multiple Brady claims and ineffective assistance of counsel claims. The district court1 denied the original motion, and dismissed as untimely the claims in the supplemental motion. Mandacina appeals. We affirm the judgment below.
I. BACKGROUND2
2
Larry Strada (Strada) provided information to the Federal Bureau of Investigation (FBI) implicating Mandacina in illegal gambling operations in the Kansas City area. On May 3, 1990, Mandacina pled guilty to charges of conducting an illegal gambling business and was sentenced to twelve months imprisonment. Thirteen days later, Strada was gunned down outside his home. The gunman did not remove Strada's jewelry, cash or bank bag. The FBI later assumed control of the murder investigation.
3
In December 1990, Mandacina's co-defendant, Patrick McGuire (McGuire), and his brother-in-law, Terry Dodds (Dodds), were arrested for bank robbery. Dodds later cooperated with the FBI, and implicated Thomas Earlywine (Earlywine) in several unsolved bank robberies. After the arrest, Earlywine also cooperated with the FBI. Both Dodds and Earlywine implicated Mandacina in Strada's murder. Dodds told the FBI he had overheard a conversation in which Mandacina said he wanted somebody killed for implicating him in criminal activity. Earlywine told the FBI that, in May 1990, Mandacina said he wanted Strada killed and offered to pay McGuire $25,000 to kill Strada.
4
The FBI also interviewed Frank Angotti (Angotti), a long-term acquaintance of McGuire. Angotti told the FBI he met McGuire for a drink in July 1990. During the meeting, Angotti asked McGuire, "Well, I hear that you did Larry. Did you do Larry?" Angotti told the FBI McGuire responded, "Yes." The government charged Mandacina with conspiracy, retaliating against an informant, interstate murder-for-hire, and use of a firearm during a crime of violence.
5
On August 16, 1993, approximately three weeks before trial, government counsel sent Mandacina's trial counsel a report of a May 19, 1990, interview with Donna Borland (Borland Report). The Borland Report consists of six pages of notes taken during an interview of Borland by two Gladstone, Missouri, police detectives. According to the Borland Report, Borland told the detectives Strada was involved in "fronting money for others to buy drugs." When the detectives asked Borland "why or who might have killed" Strada, Borland told them "[i]t was done because [Strada] had turned some information and names over to the authorities in reference to the buying and selling of drugs." Borland did not provide the detectives with specific names, but said "they were some of the people ... mentioned earlier" by the detectives. The detectives had previously read Borland a list of names collected in the investigation. Near the end of the interview, Borland told the detectives that "6 or 7 people [were] indicted and this was done within the past several months." Borland also told detectives they needed "to identify and talk with these people, as this is probably where the `hit' came from."
6
The record does not reveal whether Mandacina's trial counsel reviewed or investigated the Borland Report or sought additional discovery during the three weeks before trial, which began on September 7, 1993. A jury convicted Mandacina on all counts, and he was sentenced to life imprisonment. After this court affirmed his conviction and sentence, McGuire, 45 F.3d at 1190, Mandacina filed a habeas motion alleging (1) the government failed to disclose exculpatory evidence, (2) Mandacina received ineffective assistance of counsel, and (3) newly discovered evidence required Mandacina's convictions be vacated. After carefully reviewing these claims, the district court dismissed all claims, except the newly discovered evidence claims relating to footprints discovered at the crime scene. The district court allowed additional discovery on these claims.
7
On September 27, 2000, twenty days after the district court dismissed all the original claims, except the footprint evidence claims, Mandacina sought leave to file a supplemental section 2255 motion. After allowing discovery, the district court determined the original claims relating to footprint evidence lacked merit, and the newly asserted claims in the supplemental motion were untimely and should be stricken.
8
On March 4, 2002, the district court granted, in part, Mandacina's extensive application for a certificate of appealability. The court certified two issues for appellate review, one relating to a claim of ineffective assistance of counsel in failing to investigate the Borland Report, and the other relating to the failure to disclose or develop impeachment from Angotti's testimony, whether treated as a Brady violation or an ineffective assistance of counsel claim.
II. DISCUSSION
9
On appeal, Mandacina raises three issues, which are not necessarily consistent with the certificate of appealability. First, Mandacina contends the government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) by failing to provide him with the names of alternate suspects with strong motives to murder Strada, and by failing to disclose evidence proving Angotti, a key prosecution witness, was forced to testify. Second, Mandacina claims his trial attorney failed to investigate alternate suspects and failed to compel the government to release information on other suspects in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Third, Mandacina claims his amended motion was timely filed pursuant to 28 U.S.C. § 2255(2) and (4), because the newly asserted claims related back to the original motion, the government prevented him from bringing timely claims, and certain evidence was only recently discoverable through diligent investigation. Alternatively, Mandacina argues, if subsections 2255(2) and (4) are inapplicable, the statute should be equitably tolled due to circumstances beyond his control and because his newly asserted claims satisfy the "actual innocence" standard.
10
Initially, we note the Brady and ineffective assistance claims raised here were not previously raised in the original section 2255 motion. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a section 2255 motion must be filed within one year of the date the conviction becomes final, except in circumstances not present here. 28 U.S.C. § 2255. While Mandacina's original motion was timely filed, his supplemental motion, filed three years later, was not. Therefore, the supplemental motion is time-barred, unless Mandacina can satisfy a relation back analysis.
11
Pursuant to the Federal Rules of Civil Procedure, relation back of amendments filed after the period of limitations is permitted in certain instances.3 The relation back doctrine allows untimely claims to be deemed timely by treating the claims as if they had been filed when the timely claims were filed. Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir.2000). "An amendment to a pleading shall `relate back' to the date of the original pleading only if the claim asserted in the original pleading and the claim asserted in the amended pleading arose out of the same conduct, transaction, or occurrence." United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999) (citing Fed. R.Civ.P. 15(c)(2)). "The rationale of Rule 15(c) is that a party who has been notified of litigation concerning a particular occurrence has been given all the notice that statutes of limitations were intended to provide." Id. (citations omitted). Thus, only if the Brady claims and the ineffective counsel claims alleged in Mandacina's supplemental section 2255 motion can be said to have arisen out of the same set of facts as his original claims will they relate back for purposes of deeming the claims timely filed. We review a district court's application of Rule 15(c) for an abuse of discretion. See Craycraft, 167 F.3d at 457 n. 6; Davenport, 217 F.3d at 1343 n. 4.
A. Borland Report
1. Amended Brady Claim
12
In analyzing whether the two Borland Report claims-one raised as a Brady violation claim, and another raised as an ineffective assistance claim-relate back to the original section 2255 motion, the district court recognized the determination presented "a reasonably close question." The district court explained Mandacina's original motion alleged the government failed to disclose exculpatory evidence, "including various physical and other evidence obtained by the Gladstone Police Department and detectives involved in the investigation of Mr. Strada's murder." The original motion also alleged:
13
[T]he Government failed to properly disclose... any and all information related by Mr. Strada prior to his death in which Mr. Strada implicated any other person in any criminal activity, including any organized crime-related activity. Such information constitutes favorable and exculpatory information in that it establishes a motive for others besides Movant Mandacina to have killed or conspired to kill Mr. Strada.... [T]here is a strong factual basis to support a defense theory ... that Mr. Strada was killed not because of any statements he may have made regarding Movant Mandacina, but instead was killed by others who had a much stronger motive to retaliate against Mr. Strada.
14
The district court found the original and amended Brady claims both related to evidence obtained by Gladstone Police Department and were factually similar in terms of both "time and type," citing Craycraft, 167 F.3d at 457. However, the district court concluded the amended Brady claim did not relate back to the original motion because the original motion made no mention of the Borland Report, and contained only generalized assertions that evidence obtained by the Gladstone Police Department was withheld. The district court declared "[i]t is insufficient that the amended claims and the original ones are both Brady claims, just as it was insufficient in Craycraft that both sets of claims alleged ineffective assistance of counsel."
15
On this claim, the district court construed Craycraft too narrowly and committed an abuse of discretion. In Craycraft, this court determined the "original complaint alleged deficiencies of representation distinctly separate from the deficiency alleged in his amendments." We explained that an attorney's failure to file an appeal represents a "separate occurrence in both time and type" from an attorney's failure to pursue a downward departure for substantial assistance or an attorney's failure to object to the type of methamphetamine. We explained this was so because the original petition alleging an ineffective assistance of counsel claim for failure to file an appeal would unlikely provide notice of "such a different sort of theory." Craycraft, 167 F.3d at 457.
16
Unlike Craycraft, Mandacina's original section 2255 motion does not allege Brady violations separate and distinct from the violation alleged in the supplemental motion. Although Mandacina's original motion did not refer specifically to the Borland Report, the original motion referred to Brady violations involving the government's failure to disclose "any and all" investigative information obtained by Gladstone Police Department detectives supporting a defense theory that, before he died, Strada implicated other persons involved in organized criminal activity who possessed a stronger motive than Mandacina to retaliate against Strada. The Brady claims in the original section 2255 motion referring to evidence of other suspects obtained by the Gladstone Police Department satisfy Rule 15(c) by providing the government with the notice that the statutes of limitation were intended to provide. As such, we conclude the amended Brady claim, alleging the government failed to disclose the Borland Report, relates back to the original motion.
17
Having determined the amended Brady claim concerning the Borland Report relates back to the original section 2255 motion, we proceed to review the district court's rejection of the claim. Ordinarily, we would remand the claim. However, the district court analyzed the merits of the amended Brady claim based on the Borland Report under 28 U.S.C. § 2255(2) and (4), as well as under the "actual innocence" standard set forth in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). "We review de novo allegations of Brady violations." United States v. McElhiney, 275 F.3d 928, 932 (10th Cir.2001) (citation omitted).
18
To succeed on his amended Brady claim, Mandacina must establish (1) "the prosecution suppressed evidence," (2) "the evidence was favorable to him," and (3) "the evidence was material to either his guilt or his punishment." United States v. Carman, 314 F.3d 321, 323-24 (8th Cir.2002). To establish materiality in the context of Brady, "the accused must show there is a reasonable probability that if the allegedly suppressed evidence had been disclosed at trial the result of the proceeding would have been different." Drew v. United States, 46 F.3d 823, 828 (8th Cir.1995). "A `reasonable probability' is a probability sufficient to undermine the reviewing court's confidence in the outcome of the proceeding." Id.
19
Following the magistrate judge's pretrial, in camera inspection of the police file, the government disclosed the Borland Report to Mandacina's trial counsel on August 16, 1993, approximately three weeks before trial began. Mandacina contends that, in addition to producing the actual Borland Report, the government had a duty to disclose the names of all suspects with strong motives to murder Strada, as well as all facts developed in the investigation of these suspects. The district court properly rejected this argument, declaring "[e]vidence that a movant can discover through his own reasonable investigation is not illegally withheld by the Government within the meaning of § 2255(2), or under Brady," citing United States v. Jones, 160 F.3d 473, 479 (8th Cir.1998). The district court correctly ruled nothing prevented Mandacina from conducting an expedited investigation of the Borland Report and, if necessary, requesting the trial be continued to allow for more investigation. Because the government did not suppress the Borland Report, Mandacina cannot prove a Brady violation.
2. Amended Ineffective Assistance Claim
20
The more difficult question presented on appeal is whether the amended ineffective assistance of counsel claim based on the Borland Report relates back to the ineffective assistance claims contained in the original section 2255 motion. The original section 2255 motion alleged ten claims of ineffective assistance of counsel. Only one of the ten original claims involved trial counsel's failure to discover exculpatory evidence. That particular claim alleged trial counsel failed to discover and investigate footprint evidence found at the crime scene by the Gladstone Police Department. In his original motion, Mandacina alleged that had trial counsel discovered and investigated the footprint evidence, the evidence would have revealed: (1) the footprints came from hiking boots, and (2) McGuire did not wear hiking boots, and, (3) when arrested, McGuire was not wearing hiking boots. Further, the footprints may have revealed a shoe size different from McGuire's shoe size. Such findings, Mandacina alleged, would have been favorable not only to McGuire, the convicted gunman, but derivatively to Mandacina.
21
While recognizing reasonable minds could differ on the issue, we conclude the district court properly interpreted Craycraft and did not abuse its discretion in finding the amended ineffective assistance of counsel claim based on the Borland Report does not relate back to the original habeas motion. The claims are not sufficiently similar in both "time and type." Although both claims relate to pretrial conduct by counsel and therefore occurred at a generally similar "time," the claims are not similar in "type." The original claim alleged a failure by counsel to discover allegedly exculpatory footprint evidence; whereas, the amended claim alleged a failure by counsel to investigate the Borland Report. We conclude the district court correctly ruled the amended ineffective assistance of counsel claim does not relate back to the original motion, and is therefore time barred.
B. Angotti Evidence
1. Amended Brady Claim
22
Mandacina further contends the prosecution failed to timely disclose Angotti's grand jury testimony and immunity deals and, in doing so, deprived Mandacina of his right to formulate a defense and to confront and impeach a key witness. In Mandacina's brief, Mandacina argues the original motion alleged "improper conduct in that the prosecution withheld exculpatory evidence ... which could impeach the witnesses who testified as to Movant's alleged involvement in the crime." Our review of the original habeas motion reveals Mandacina did not raise a Brady claim related to the government's failure to disclose evidence which could impeach Angotti or other key prosecution witnesses.4 Under the section alleging Brady violations, the original motion references Dodds and Earlywine, but does not allege the government withheld impeachment evidence related to them. We agree with the district court's analysis that each alleged withholding of evidence represents a distinct act, such that the original motion does not provide fair notice of Brady claims not specifically asserted. Because the amended claim does not relate back, it is time barred.
2. Amended Ineffective Assistance Claim
23
Mandacina also claims his trial counsel was ineffective in cross-examining Angotti and Earlywine at trial. In so far as the claim alleges inadequate cross examination of Earlywine, this assertion was not raised in the original motion and is time-barred. In so far as the claim alleges inadequate cross examination of Angotti, the claim was raised in the original motion and carefully reviewed by the district court. Angotti testified only against co-defendant McGuire, and Mandacina's counsel walked out of the courtroom with Mandacina and remained absent during Angotti's testimony. The court referred to an affidavit prepared by trial counsel which explained counsel's "decision to leave the courtroom during Mr. Angotti's testimony was based on his desire to underscore in the minds of the jury the importance of the judge's instruction that the testimony not be considered against movant." The district court concluded counsel's decision represented a "sound strategy decision." We agree and affirm the dismissal of this claim.
C. Remaining Supplemental Claims
24
Finally, we reject Mandacina's arguments that his remaining supplemental claims, including the St. John evidence, are timely filed under section 2255(2) and (4) or that the claims relate back to the original motion. We further conclude the district court correctly found Mandacina has not established a claim of actual innocence, and therefore deny his request for equitable tolling. See 8th Cir. R. 47B.
III. CONCLUSION
25
For the reasons set forth above, we affirm the district court's dismissal of the original section 2255 motion and the supplemental section 2255 motion.
Notes:
1
The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri
2
A detailed factual summary is provided inMcGuire, 45 F.3d at 1180-82.
3
Habeas proceedings are civil in nature; therefore, the Federal Rules of Civil Procedure applyUnited States v. Craycraft, 167 F.3d 451, 457 n. 6 (8th Cir.1999).
4
In the original motion, Mandacina primarily discussed Ms. Brock Decastrogiovannimausolf
|
288 Wis.2d 459 (2005)
706 N.W.2d 702
2005 WI App 254
STATE EX REL. COWICK v. SCHWARZ.[]
No. 2003AP002520.
Court of Appeals of Wisconsin.
October 26, 2005.
Unpublished Opinion. Affirmed.
NOTES
[] Petition to review filed.
|
425 F.2d 594
138 U.S.App.D.C. 163
UNITED STATES of Americav.Samuel L. STRAITE, Appellant.
No. 23260.
United States Court of Appeals, District of Columbia Circuit.Argued March 3, 1970.Decided April 2, 1970.
Mr. William J. Garber, Washington, D.C., for appellant.
Mr. Herbert B. Hoffman, Asst. U.S. Atty., with whom Thomas A. Flannery, U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief, for appellee.
Before WRIGHT, McGOWAN and MacKINNON, Circuit Judges.
PER CURIAM:
1
Appellant was convicted in the District Court, sitting without a jury, on one count of assault with intent to kill, and two counts of assault with a dangerous weapon, 22 D.C.Code 501, 502.1 The charges arose from an incident wherein appellant threatened to kill a dog which allegedly was harassing his children. Words were exchanged between the dog's owner and appellant, appellant entered his home, returned with a gun, and fired four shots. Found guilty on all counts, appellant received a general sentence of five to fifteen years. He seeks a remand for resentencing on the ground that the use of the general sentence is improper.
2
Before reaching the question of sentencing, we deal with another assignment of error deriving from the circumstances of appellant's waiver of jury trial. At trial, the record reveals this colloquy following upon an off-the-record conference at the bench:
3
(Appellant's counsel): Your Honor, I have conferred with Mr. Straite and have advised him he has a right to trial by the Court or Jury. I have advised him that in a trial by jury the jury will decide the case with instructions from the Court on the law; and that a trial by the Court means the Judge will decide the facts and the law and determine his guilt or innocence. He at this time, Your Honor, wishes to waive his right to a trial by jury. He understands that he is having his case tried by this Court. Is that right. Mr. Straite?
4
Defendant Straite: Yes.
5
The Court: Very well.
6
Mr. Nesbitt: Mr. Straite will sign the waiver now, Your Honor.
7
Your Honor, Mr. Straite has signed, I have signed and the Assistant U.S. Attorney has signed the waiver.
8
The Court: All right.
9
Appellant now asserts that this purported waiver was constitutionally defective in that the degree of participation by the trial judge in this inquiry was deficient.
10
We cannot say that, on the record before us, the waiver was demonstrably involuntary, despite the relatively passive nature of the role played by the trial court. Rule 23(a), Fed.R.Crim.P., says only that 'Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.' Compare Rule 11, Fed.R.Crim.P., relating to the taking of guilty pleas. Nevertheless, there is much to be said, in terms of the kind of judicial administration which anticipates and nullifies potential sources of trouble on direct appeal or collateral attack, for the trial judge's assuming an active role in establishing that the waiver is voluntary and informed.2 We commend to the attention of the District Court the recommendation by the American Bar Association Project on Minimum Standards for Criminal Justice (Trial by Jury, Part I, Section 1.2(b)) that the defendant shall be 'advised by the court of his right to trial by jury' as an essential element of the waiver procedure; and to its observations in this regard as follows (at p. 38):
11
'It may well be that a defendant who has been informed by his counsel or is otherwise aware of his right to trial by jury may intelligently waive that right without further admonishment from the court. However, consistent with the approach which has been taken with regard to entry of a plea of guilty, the better practice is for the court to advise the defendant of his right to jury trial before accepting a waiver. * * *'
12
A general sentence introduces a variety of difficulties into the efficient administration of justice. When an appellate court reverses less than all of a multicount conviction, it usually must remand, either because the general sentence imposed is greater than the maximum permitted on the remaining counts,3 or because of the possibility that the sentencing judge was influenced by the multiplicity of offenses. See Baber v. United States, 116 U.S.App.D.C. 358, 324 F.2d 390 (1963). Furthermore, the general sentence hampers the prison and correctional authorities in the accomplishment of their rehabilitative purposes, and confuses the defendant by disguising the essence of the court's decision on the individual offenses committed.4
13
The Fifth Circuit, in the course of outlawing the general sentence for courts under its supervision, has rehearsed at length the weaknesses of the general sentence. They are well-known, and need not be repeated here. We agree with the Fifth Circuit's acceptance of
14
'The basic idea that a criminal sentence should be plain, unequivocal and so free from doubt that those concerned-- accused, sentencing Court, reviewing Court, and prison authorities-- will know precisely what the punishment is. * * * A sentence is passed not because the defendant is a social outcast or needs chastisement generally. It is the law's punishment for specific transgressions.
15
Benson v. United States, 332 F.2d 288, 290, 291 (5th Cir. 1964); See also Walker v. United States, 342 F.2d 22, 27 (5th Cir.), cert. denied, 382 U.S. 859, 86 S.Ct. 117, 15 L.Ed.2d 97 (1965).
16
We adopt the view of the Fifth Circuit. Although we affirm the judgment of conviction on all counts, we note that the facts of this case present an especially appealing case for careful and precise sentencing. Consequently, we vacate the sentence imposed and remand for resentencing.5
17
It is so ordered.
1
Appellant urges that the evidence was insufficient to sustain the verdict with respect to the charge of assault with intent to kill. It is true that appellant's testimony as to the firing of the shots varies from that of the complaining witnesses, but our reading of the record persuades us that there was adequate evidence from which the court could have found the requisite elements
2
In a recent tightening up of the procedures in General Sessions Court for the waiver of jury trial, Jackson v. United States (262 A.2d 106, decided February 17, 1970), the District of Columbia Court of Appeals noted that the Government in its brief had suggested the merits of a 'requirement of some form of direct communication between the judge and defendant, in addition to the written waiver * * *.' The court itself went on to say that 'An on-the-record inquiry of a defendant himself by the trial judge in open court would more readily facilitate the trial judge's determination, and the determination in any post-conviction proceedings, that the waiver was in fact voluntary. * * *'
3
In this instance the general sentence was five to fifteen years. This was the maximum permitted for assault with intent to kill, but exceeded the maximum limits in respect of the other two counts of the indictment
4
See ABA Minimum Standards, Sentencing Alternative & Procedures, 5.6(iv), where it is provided that the sentencing judge 'should state with care the precise terms of the sentence which is imposed.'
5
We note the Fifth Circuit's emphasis upon the fact that defects of the general sentence go only to the sentence, not to the underlying conviction; and that they cannot be reached in collateral proceedings under 28 U.S.C. 2255. Benson v. United States, supra at 292 n. 10
|
277 S.E.2d 222 (1981)
THOMAS P. HARKINS, INC., et al.
v.
REYNOLDS ASSOCIATES et al.
Record No. 790435.
Supreme Court of Virginia.
April 24, 1981.
Randolph W. Church, Jr., Fairfax (Grady K. Carlson, McCandlish, Lillard, Church & Best, Fairfax, on briefs), for appellants.
Terrence Ney, Fairfax (Haynie S. Trotter, Robert W. Wooldridge, Jr., Fairfax, Louis Pohoryles, Washington, D. C., Boothe, Prichard & Dudley, Fairfax, Pohoryles, Goldberg, Staton & Harris, Washington, D. C., on brief), for appellees.
Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.
THOMPSON, Justice.
Reynolds Associates (Reynolds) is a limited partnership doing business in Virginia. *223 On January 23, 1973, Reynolds entered into an agreement with Bucher-Meyers & Associates, Inc. (Bucher-Meyers), a Maryland corporation, whereby Bucher-Meyers agreed to provide architectural, engineering and consultant services for the construction of a 209-unit high-rise apartment project known as Cameron Overlook. On March 29, 1973, Reynolds entered into a contract with Thomas P. Harkins, Inc. (Harkins) for the construction of the apartment project designed by Bucher-Meyers. At the same time Harkins executed a performance bond for the project in the penalty of $1,887,150 with Maryland Casualty Company (Maryland Casualty) as surety.
On June 10, 1977, Reynolds filed a motion for judgment alleging that Harkins had failed to construct the building in accordance with plans and specifications and that Bucher-Meyers had negligently designed the building and had failed to supervise properly the work done by Harkins. Reynolds sought joint and several damages in the amount of $1,150,000 against Bucher-Meyers, Harkins and Maryland Casualty as surety. On September 29, 1978, Reynolds filed an amended motion for judgment which increased the damage claim to $1,450,000.
The case was tried by a jury which rendered a verdict in favor of Bucher-Meyers, but against Harkins and Maryland Casualty in the amount of $281,092. The trial court entered judgment on the verdict, and we granted an appeal limited to the following assignment of error:
1. The Court erred in permitting the witness Anthony Vallance to testify concerning damages in that:
A. Vallance was not qualified to testify concerning costs of construction and repair in Northern Virginia in October 1978;
B. Vallance was not qualified to testify concerning costs of construction and repair in Northern Virginia on June 12, 1975, and Vallance was improperly allowed to reduce his 1978 figures to 1975 figures.
I. WAS VALLANCE PROPERLY QUALIFIED AS AN EXPERT WITNESS?
Anthony Vallance was questioned at length on direct and cross-examination regarding his qualifications to render an opinion on building repair costs for the project in question. His testimony revealed that Vallance was a "quantity surveyor"[1] and a certified member of the American Association of Cost Engineers, the latter requiring proof of expertise, education and experience in the profession of cost estimating before membership is extended. In the United States, Vallance had been involved in determining construction costs of an $81 million facility in Chicago known as the State of Illinois Center, a $14 million academic building at George Washington University in Washington, D. C., multi-family housing projects of the Federal Housing Program, and miscellaneous projects in Alexandria, on the Eastern Shore of Virginia, at the National Aeronautics and Space Administration in Virginia, and at Salisbury, Maryland. He was specifically asked by the court if he was familiar with building costs in the Alexandria area, and Vallance responded in the affirmative.
This court has consistently followed the rule set forth in Swersky v. Higgins, 194 Va. 983, 76 S.E.2d 200 (1953), which holds that a trial court should not be reversed for permitting a witness to testify as an expert unless it clearly appears that he was not qualified in the field in which he tendered his evidence. 194 Va. at 985, 76 S.E.2d at 202. See also Whitworth v. State Highway Commissioner, 209 Va. 95, 99-100, 161 S.E.2d 698, 702 (1968). From our reading of the testimony presented at trial it is readily apparent that Vallance possessed the necessary credentials and expertise required of a building repair estimator, and we will not disturb the ruling of the lower court.
*224 Harkins argues that Vallance should not have been permitted to testify absent personal knowledge of building repair costs in the Alexandria area, the situs of the project in question. Vallance testified however, that he was familiar with building costs in the area. The trial court found he was knowledgeable on the matter. We will not disturb that finding, and accordingly, we reject Harkins' contention.
We therefore conclude that Vallance could properly testify as to the amount of repair costs he believed would be required to bring the project into full compliance with the building contract.
II. WAS IT PROPER TO PERMIT THE WITNESS TO REVISE HIS FIGURES?
The trial court ruled that any damages that might be assessed should be computed with regard to the date that the building contract was substantially completed, June 12, 1975. Vallance was prepared to testify as to repair costs compiled in October of 1978 reflecting building costs that were prevailing at that time. In order to adjust his calculations to demonstrate repair costs in effect as of June 12, 1975, Vallance was permitted to withdraw from the courtroom and recompute his figures. In making these adjustments Vallance simply "discounted" all estimates by an average of nine percent per annum for the period June 12, 1975, to October, 1978. We must decide whether such a method of re-evaluation was proper under the circumstances.
While the costs of any specific commodity or service does not normally rise or fall at a uniform or constant rate, Vallance's integration of a flat nine percent "deflation factor" is not without merit. His use of that figure was an interpretation and assessment of past economic inflation in the building and construction business and not a projection of cost increases. We can find no evidence to support the theory that the use of a nine percent discount rate was unreasonable or that building costs did not otherwise rise at that level.
Vallance testified that this particular discounting procedure is widely used and has been utilized by him before. In Kerr v. Clinchfield Coal Corp., 169 Va. 149, 156, 192 S.E. 741, 743 (1937), we said: "[T]he opinion may be based upon the value of the property at a previous, if not too remote, period." We have long been committed to the view that damages are not required to be proved with mathematical exactness.[2] The jury was so instructed in this case, that is, that an intelligent estimate or a reasonable basis of calculations is all that is required.[3] Vallance was subjected to vigorous cross-examination, and accordingly it was for the jury to give such weight and credibility to his testimony as they deemed justified. The method of recomputing the building repair costs estimates was therefore proper.
For the foregoing reasons we are of opinion that the trial court committed no error, and the judgment of the lower court will be
Affirmed.
NOTES
[1] The term "quantity surveyor" is of British origin and, in its common usage, refers to a person with architectural and engineering expertise who is employed to supervise and control construction projects during both design and construction phases.
[2] In Washington Golf and Country Club, Inc. v. Briggs and Brennan Developers, Inc., 198 Va. 586, 592, 95 S.E.2d 233, 237 (1956), we said:
Damages are not rendered uncertain because they cannot be calculated with absolute exactness or because the consequences of the wrong are not precisely definite in pecuniary amount. Moreover, one whose wrongful conduct has rendered difficult the ascertainment of the precise damages suffered by a plaintiff is not entitled to complain that they cannot be measured with the same exactness and precision as would otherwise be possible. An element of uncertainty in the assessment of damages or the fact that they cannot be calculated with mathematical accuracy or with reasonable certainty or exactness is not a bar to their recovery. Nor is mere difficulty in the assessment of damages a sufficient reason for refusing them where the right to them has been established. [Citations omitted.]
[3] Instruction 26 granted by the court states: "The burden on the plaintiff to prove his damages by a preponderance of the evidence or with reasonable certainty does not require that he prove with mathematical precision the exact sum of his damage, but only that he furnish evidence of sufficient facts and circumstances to permit an intelligent and probable estimate thereof."
|
529 S.W.2d 633 (1975)
Orena McNEILL, Appellant,
v.
Irma Nixon LOVELACE et al., Appellees.
No. 17656.
Court of Civil Appeals of Texas, Fort Worth.
October 31, 1975.
Rehearing Denied November 21, 1975.
*635 Jimmy P. Horany and Philip S. Kouri, Wichita Fallas, for appellant.
Fillmore, Lambert, Farabee & Purtle, and Glynn R. Purtle, Wichita Falls, for Charles F. Pierce, Jr.
Stuart & Brunette, and Paul H. Brunette, Wichita Falls, for all other appellees.
OPINION
SPURLOCK, Justice.
This is an appeal by Orena McNeill, plaintiff, from a summary judgment granted in favor of the defendants.
Plaintiff is seeking to cancel a disclaimer executed by her and a conveyance by deed to real estate and thus obtain judgment for title and possession to the realty involved. The grounds for cancellation are duress and coercion, continuing in nature, exerted upon her by the grantee in the deed who at the time suit was filed was deceased. She also seeks title and possession to personal property alleged to have been converted.
The defendants assert that plaintiff has no cause of action as a matter of law because her cause of action is barred by the two and four year statutes of limitations and that plaintiff's opposing affidavit, not shown by the record to have been objected or excepted to, cannot be considered by the court because it contravenes Article 3716, V.A.T.S. (the Dead Man's Statute).
Plaintiff relies upon the contents of her opposing affidavit to toll the running of the statute of limitations and contends that the statute of limitations would not begin to run until the coercion and duress ceased to exist and therefore suit was filed within the four year statute of limitations which is the controlling statute.
We reverse and remand.
Trudie Nixon, Orena McNeill's sister, purchased the realty as her separate property on July 5, 1961. Plaintiff and Trudie Nixon's brother advanced the funds to make the down-payment. Trudie Nixon died testate. By the terms of the probated will title passed to Orena McNeill. Trudie Nixon's surviving husband, James N. Nixon, was the executor of her estate. In accordance with the terms of the will be conveyed the property to Orena McNeill, the plaintiff. Plaintiff alleges that James N. Nixon thereafter, through the use of duress and coercion, obtained from plaintiff a disclaimer to the property and a deed conveying same to him. She also alleged he was in possession of various items of personal property which is the property of plaintiff and that he is withholding same from plaintiff. Plaintiff alleged a count in trespass to try title.
The defendants are Irma Nixon Lovelace and Husband Bryan Lovelace, individually; Irma Nixon Lovelace and Harry N. Feathers, in their capacity as co-independent executors of the estate of James N. Nixon, deceased; and Charles F. Pierce, Jr., James N. Nixon died two years before the suit was filed. Prior to his death he had married Irma Nixon Lovelace. He died testate. Under the terms of the probated will his surviving wife was vested with the title to the property. Plaintiff then claims that she filed a lis pendens notice. Thereafter Irma Nixon Lovelace conveyed the property to Charles F. Pierce, Jr.
In order to recover plaintiff must set aside the disclaimer and the conveyance to James N. Nixon, now deceased, and whose estate is in administration.
The defendants, in general, pleaded not guilty to the trespass count and pleaded the disclaimer and the two and four year statutes of limitations.
All the defendants filed a motion for summary judgment and attached to the motion a warranty deed dated January 13, 1965, from plaintiff to James N. Nixon, reciting a cash consideration and that the *636 conveyance was made subject to a lien in the sum of $16,600.00. Also attached was a disclaimer also dated January 13, 1965, signed and acknowledged by plaintiff, in which she disclaimed any right, title, or interest in and to the property here involved, reciting: "... that I, due to financial considerations involved, cannot accept this bequest ...."
Plaintiff countered by affidavit in opposition to the defendants' motion for summary judgment. This affidavit in general traces the transaction affecting title as described above.
In addition thereto, plaintiff's affidavit reflects that after she had received the deed to the real property from James N. Nixon he made a demand upon her to deed the real property in dispute back to him and asked her to disclaim any interest in said property. She refused. He then, over a period of time, applied pressure to her and threatened her by means of telephone and personal contact. He then threatened that unless his demands were met he would exhume the body of Orena's beloved sister, his deceased wife, from the family gravesite at Westover, in Baylor County, Texas, and would move it to a place where the plaintiff would never know where she was buried.
Plaintiff states she had great love and affection for her sister and such threats on her constituted duress and coercion and she was unduly influenced by such threats. She states that because of such threats, she did execute the deed on December 15, 1965, rather than on January 13, 1965. She further says that because of this she permitted James N. Nixon to keep and occupy the property here involved until his death on March 29, 1968. After his death she then attempted to negotiate reconveyance with his surviving widow. When the surviving widow finally refused to comply with her request she filed this suit on May 12, 1970.
It will be noted that this suit was filed two years and two months after the death of James N. Nixon.
Plaintiff's points of error, Nos. 1 and 2, are to the effect that a material fact issue exists on the issue of whether or not the instruments here involved were executed as the result of coercion, duress, and undue influence exerted upon her; and that such action on the part of Nixon was of such a continuing nature as to toll the four year statute of limitation.
These points will be discussed together because they are in part interwoven.
The general rules governing the summary judgment practice in Texas are stated in Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41 (Tex.Sup., 1965). These principles are well known and will not be repeated here.
All parties agree that as to the cause of action concerning the realty, as distinguished from the cause of action for personalty, the four year statute of limitation applies. Article 5529, V.A.C.S.; Goodwin v. City of Dallas, 496 S.W.2d 722 (Waco, Tex. Civ.App., 1973, no writ hist.).
We hold that the two year statute of limitation applies concerning the cause of action for conversion of the personalty. Pierce v. Estate of Haverlah, 428 S.W.2d 422 (Tyler, Tex.Civ.App., 1968, ref., n. r. e.).
The balance of this opinion will be directed to the cause of action for title and possession to the realty.
In Pierce v. Estate of Haverlah, supra, that court stated:
"It is now settled that the burden of proving that there is no genuine issue of any material fact is upon the movant, and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party ruling for a summary judgment. In determining a motion thus depending upon extrinsic evidence, the court's task is analogous to that which he performs on a motion for directed verdict. He accepts as true all evidence of the party opposing the motion which tends to support such party's contention and gives him the benefit of every reasonable inference which *637 properly can be drawn in favor of his position. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.
". . .
"Generally speaking, any coercion of another, either mental, physical or otherwise, causing him to act contrary to his own free will or submit to a situation or a condition against his own volition or interest, constitutes `duress.' Hailey v. Fenner & Beane (Tex.Civ.App.), 246 S.W. 412.
"The modern doctrine is that whether or not a threat constitutes duress is a question of fact dependent upon all the circumstances and the mental effect on the party claiming duress....
"In Volume 37, Tex.Jur.2d, page 217, Limitation of Actions, Sec. 77, it is stated:
"`In actions based on duress or undue influence, the operation of the statute of limitations is tolled or suspended and the cause of action is deemed not to accrue until the time that duress or undue influence ceases to exist. * * *'
"See also Cadena v. Cadena (Tex.Civ. App.), 223 S.W.2d 678; Besteiro v. Besteiro (Tex.Civ.App.), 45 S.W.2d 379; 34 Am.Jur., Sec. 236, p. 193.
"Upon removal of the duress or undue influence, the statute begins to run. 34 Am.Jur., Sec. 236, p. 193."
When defendants, by their proof, showed that the conveyance was made about five years before suit was filed, plaintiff then had the burden of coming forward with summary judgment proof showing some excuse for the delay in filing suit. Pierce v. Estate of Haverlah, supra. See also Birdwell v. American Bonding Company, 337 S.W.2d 120 (Fort Worth, Tex.Civ. App., 1960, ref., n. r. e., 367 U.S. 904, 81 S.Ct. 1920, 6 L.Ed.2d 1250); McDonald, Texas Civil Practice, Sec. 17.26.1; Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.Sup., 1970); Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960), and Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958).
Although plaintiff's summary judgment affidavit contains some conclusions and references to recorded instruments not attached to her motion in opposition, such proof is not determinative of this appeal. Her affidavit testimony concerning the undue influence and coercion exerted upon her is clear and leaves the inference, by the language used, that its effect continued until Mr. Nixon's death. She testified these threats were made to her by him, therefore, such testimony is based upon her personal knowledge.
The record in this case does not disclose that any objection or exception was taken to this summary judgment affidavit evidence on the grounds that such affidavit testimony was not admissible under the terms and provisions of Article 3716, V.A. T.S. (the Dead Man's Statute).
Defendants contend that because of the application of the above statute that the trial court cannot consider such affidavit because it does not comply with the requirements of Rule 166-A, T.R.C.P., the summary judgment rule, and particularly to Section (e) which provides as follows (referring to the required form of affidavits) that such affidavit, "... shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."
It is clear that hearsay will not support a summary judgment or hearsay contained in opposing affidavits will not defeat a summary judgment. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex. Sup., 1962).
The summary judgment evidence here involved is not hearsay and, therefore, the above rule will not apply.
In Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.Sup., 1971) the Supreme Court indicates that generally the trial court will consider the summary *638 judgment proof under the same rules as to admissibility of evidence that would have been followed if the case had been tried on its merits in a conventional trial proceeding. That court stated: "The trial process includes both the pleading and the trial stages, whether the trial stage be in summary or conventional trial proceedings."
Rule 166-A, T.R.C.P., makes an exception in that no oral testimony shall be received at the hearing. By court construction other exceptions have been made but none of such exceptions are applicable to the case at bar.
Article 3716 provides, in general, in a situation like we have here, that neither the plaintiff nor a representative of the estate may testify as to any transaction between them and the deceased unless such persons are called to testify by the opposite party.
The record before us on this appeal does not show whether or not the defendants timely objected to the consideration by the trial court of the affidavit that plaintiff presented in opposition to the motion for summary judgment on the grounds that its contents were in violation of Article 3716. That being true we must assume for the purposes of this appeal that the defendants waived the Dead Man's Statute in so far as the contents of the affidavit are concerned. The evidence contained therein had probative force and when we consider it along with the other summary judgment evidence that was before the court we are convinced that a fact issue was presented as to whether or not plaintiff was acting under duress at the times in question.
In the event of a trial on the merits we assume that the record will be developed in full on the issue of whether or not the defendants did in fact waive the benefit of Article 3716 by failing to object to the trial court considering the contents of said affidavit in deciding the outcome of the motion for summary judgment.
In a summary judgment proceeding it is the better practice for the party attacking summary judgment proof, on the grounds of admissibility or form, to (1) file written objections at or prior to trial, obtain a signed order from the court reflecting its rulings; (2) incorporate in the judgment the objections and the court's rulings; or (3) have the court reporter make a record of the objections and the court's rulings. In this manner a record is made that will be incorporated in the transcript and will be before the appellate court for review.
In Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 (1943) that court stated: "Petitioner insists that this testimony had no probative force, even if admitted without objection. The disqualification of witnesses under Art. 3716, supra, can be waived by failure to object at the proper time and for the proper reason, and when the disqualification is so waived the testimony has probative force. Besteiro v. Besteiro, Tex.Com. App., 65 S.W.2d 759; Adam v. Adam et al., Tex.Civ.App., 127 S.W.2d 1001; 14 Tex.Jur., p. 329, sec. 544." See also Wilbanks v. Wilbanks, 160 Tex. 317, 330 S.W.2d 607 (1960).
For a discussion of the applicable law see Vol. 27, Texas Bar Journal, p. 315, "The Dead Man's Statute", by Ruel C. Walker, Justice of the Supreme Court of Texas, and particularly that portion of his discussion of the law beginning on page 373 entitled, "Waiver."
If this case were tried in a conventional trial and no objection was made to the testimony on the grounds that the witness was disqualified under the terms of the above statute, the testimony would be clearly admissible and have probative force. The question then arises as to whether or not in a summary judgment proceeding the philosophy expressed in the Hidalgo case should be followed.
We hold that it was the duty of the defendants who were present through their attorneys at the hearing on the motion for summary judgment to have objected to the affidavit on the basis of the disqualification contained in Art. 3716 and cause the record *639 to reflect this fact and having failed to do so waived same as far as this appeal is concerned.
In Youngstown Sheet & Tube Co. v. Penn, supra, that court held: "Unlike the case of Box v. Bates, Tex. [162 Tex. 184], 346 S.W.2d 317, the factual statements made in the affidavits are not obviously based on hearsay. The information regarding the affiants set out therein and the nature of the facts stated indicated that each affiant probably has personal knowledge of and is competent to testify to such facts. If petitioner was in any doubt as to these matters or if it was prejudiced in any way by the fact that sworn or certified copies of the operating agreements were not attached to or served with the Johnson affidavit, it should have excepted to the affidavits at or prior to the hearing." (Emphasis ours.)
In Texas Nat. Corp. v. United Systems Internat'l, Inc., 493 S.W.2d 738 (Tex.Sup., 1973) that court held that certain summary judgment evidence could not be considered because proper exceptions were taken to the summary judgment evidence at the proper time.
In Leach v. Cassity's Estate, 279 S.W.2d 630 (Fort Worth, Tex.Civ.App., 1955, ref., n. r. e.) this Court, speaking through Massey, Chief Justice, had before it a summary judgment proceeding in which the plaintiff, as a non-moving party, tendered a counter affidavit signed by the administratrix of the estate of the deceased and who was also a defendant in the suit. This Court stated: "The moving parties, anticipating in advance that such would be the case, objected to its reception and consideration as being in violation of the `dead man's statute". The trial court sustained the objection and refused to admit and consider Mrs. Puckett's testimony as valid and proper evidence upon the motion for summary judgment." (Emphasis ours.) The Court then held in effect that since such summary judgment evidence was properly and timely objected to, for the proper reason, and the court having properly sustained same, such evidence could not be considered in the summary judgment proceeding.
In Kellner v. Blaschke, 334 S.W.2d 315 (Austin, Tex.Civ.App., 1960, ref., n. r. e.) that court approved the use of special exceptions to challenge the admissibility of summary judgment affidavits.
The remaining question is whether or not the statute of limitations barred the cause of action as a matter of law. We hold that the testimony contained in plaintiff's summary judgment affidavit concerning continuing duress and coercion raised a fact issue on the question of the tolling of the statute of limitations and thus prohibited the granting of the summary judgment.
Judgment reversed and cause remanded to the trial court for a new trial.
|
333 F.3d 801
Edward P. DECHERT, individually as trustee of the estate in bankruptcy of Judy A. Oyler, and on behalf of all others similarly situated to her, Plaintiff-Appellee,v.The CADLE COMPANY, Defendant-Appellant.
No. 03-2217.
United States Court of Appeals, Seventh Circuit.
Submitted May 27, 2003.
Decided June 24, 2003.
David J. Philipps (submitted a brief), Gomolinski & Philipps, Hickory Hills, IL, for plaintiff-appellee.
Carol A. Nemeth (submitted a brief), White & Raub, Indianapolis, IN, for defendant-appellant.
Before BAUER, POSNER, and COFFEY, Circuit Judges.
POSNER, Circuit Judge.
1
We accepted the defendant's appeal under Fed.R.Civ.P. 23(f) from the certification of this suit as a class action in order to determine whether, as the district judge held, a trustee in bankruptcy is, in general and in this case, a proper class representative — whether, that is, he is a member of the class who, as named plaintiff, "will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). There are no appellate cases on the question, although our decision in Morlan, quoted below, bears on it; a district court has held that a trustee in bankruptcy cannot be a proper class representative, King v. Sharp, 63 F.R.D. 60, 64-65 (N.D.Tex. 1974); and several other cases remark the danger of a conflict of interest if a bankruptcy trustee is allowed to be class representative. Ernst & Ernst v. U.S. District Court, 457 F.2d 1399 (5th Cir.1972) (per curiam); Maddox & Starbuck, Ltd. v. British Airways, 97 F.R.D. 395, 397 n. 2 (S.D.N.Y.1983); In re Plywood Anti-Trust Litigation, 76 F.R.D. 570, 579 (E.D.La. 1976); In re Ball, 201 B.R. 204, 208-09 (Bankr.N.D.Ill.1996).
2
The suit at hand was filed by Judy Oyler under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, and alleges that she had received a dunning letter from Cadle Company (the defendant), a collection agency, that violated the Act because it failed to state the amount that Cadle was seeking to collect from her and had other deficiencies as well. She sued on behalf not only of herself but also of all other persons — at least 30 in number, and possibly 68 — who had received the identical form letter from Cadle. She sought for herself statutory damages (a maximum of $1,000), costs, and attorneys' fees. 15 U.S.C. § 1692k. If the case is certified as a class action, the other members of the class will be entitled to total damages of either $500,000, or 1 percent of the defendant's net worth — whichever is less. 15 U.S.C. § 1692k(2)(B). Cadle's net worth is somewhere between $350,000 and $800,000, so that the additional damages to which the class would be entitled if the suit were successful would be between $3,500 and $8,000.
3
Shortly before filing the suit, however, Oyler had declared bankruptcy under Chapter 7 of the Bankruptcy Code, and when the trustee discovered this he had himself substituted for her as the plaintiff in her suit. He then asked the district court to certify the suit as a class action, with him as the only named plaintiff and therefore as the only class representative. The district court did so, precipitating this appeal.
4
In Morlan v. Universal Guaranty Life Ins. Co., 298 F.3d 609, 619 (7th Cir.2002), we noted the infrequency of class actions in which a trustee in bankruptcy is the named plaintiff: "What trustee in bankruptcy would think it worthwhile to insert himself in the place of the named plaintiff? We are not surprised to find very few cases in which trustees in bankruptcy have done so. The named plaintiff in a class action usually has only a small stake in the action, and while the stakes for the class as a whole may be large, very few of the benefits of settling the class action or prosecuting it to judgment would be received by the trustee (which is to say the creditors), since he would just be the named plaintiff's surrogate. Most of the benefits would go to the other members of the class and to the lawyers for the class, so that the trustee, as class representative yet having fiduciary obligations exclusively to the estate in bankruptcy, would have a potential conflict of interest" (citations omitted). The problems we noted in Morlan are present in this case. Oyler's trustee has a fiduciary obligation to Oyler's unsecured creditors, and they will derive no benefit from so much of any judgment or settlement in the class action as enures to the benefit of the other members of the class.
5
Granted, a class representative always has a conflict of interest of sorts, because he has an individual as well as a representative interest in the outcome of the case. In the usual class-action case, in which the class representative's stake is so small that as a practical matter the lawyer for the class completely controls the litigation, there is a danger remarked in numerous cases that the lawyer will negotiate a settlement with the defendant that gives the lawyer a large fee but the class a meager recovery. See, e.g., Reynolds v. Beneficial National Bank, 288 F.3d 277 (7th Cir.2002). But that is just to say that agents, being self-interested, cannot be trusted always to be faithful to their principals. This problem, which economists discuss under the rubric of "agency costs," lies behind the law's imposing on agents strict, enforceable duties of care and loyalty toward their principals, and behind such specific rules as the requirement that the court approve a class-action settlement because of the "sell out" danger noted above. But from the ubiquity of potential conflicts of interest in the class-action setting and other principal-agent settings it does not follow that a person can properly be an agent of two principals having conflicting interests (unless both principals consent). For then the conflict of interest is not potential but actual. The fact that some lawyers may be imperfect agents because of their self-interest does not permit a lawyer to represent two clients in the same case who have inconsistent defenses, without both clients' consent.
6
It might seem that the conflict of interest in this case between the trustee in bankruptcy and the members of the class (other than the estate in bankruptcy) is inherent in class actions because a named plaintiff cannot be assumed to have the same interest in the litigation as the unnamed class members. So what difference does it make whether the named plaintiff is a trustee in bankruptcy? The difference is that in the usual class action the named plaintiff is a nominal party and the real party is the lawyer for the class. The lawyer has no reason to favor the named plaintiff over the rest of the class members. When the named plaintiff is a fiduciary, however, he cannot just "go along" with the class lawyer. He has a duty to seek to maximize the value of his claim, and this duty may collide with his fiduciary duty as class representative (if he is permitted to be the class representative) to represent all members of the class equally. Such a collision is especially likely in a case in which the fiduciary is a trustee in bankruptcy, because class-action litigation tends to be protracted yet the Bankruptcy Code requires the trustee to complete his work expeditiously. 11 U.S.C. § 704(1).
7
We do not want to lay down a flat rule that a trustee in bankruptcy (or, what is the equivalent, a debtor in possession) can never be a class representative. And we do not want to question the appropriateness of other fiduciaries, such as pension funds, guardians, and administrators of decedents' estates, serving as class representatives, see Woodard v. Online Information Services, 191 F.R.D. 502, 506 (E.D.N.C.2000); In re Pizza Time Theatre Securities Litigation, 112 F.R.D. 15, 22 (N.D.Cal.1986); Landy v. Amsterdam, 96 F.R.D. 19, 21 (E.D.Pa.1982); Kane Associates v. Clifford, 80 F.R.D. 402, 409-10 (E.D.N.Y.1978), especially when there is consent by the beneficiaries, as in In re Independent Gasoline Antitrust Litigation, 79 F.R.D. 552, 557 (D.Md.1978). There may be cases in which the expected recovery of individual class members is substantial and only a fiduciary is available to be the class representative. There has been no showing of either circumstance in this case.
8
The case features another conflict of interest besides that inherent in the trustee's dual role as class representative and creditors' representative: The defendant, Cadle, the collection agency that sent the dunning letter to Oyler, is affiliated with the firm that bought Oyler's delinquent loan that Cadle dunned her to repay. That firm is thus one of Oyler's creditors, and by virtue of the affiliation with it Cadle is an indirect creditor of Oyler. She responded to the dunning letter by suing the sender rather than by paying what she owed her creditor. Because the trustee in bankruptcy is the representative of all Oyler's unsecured creditors, he is (via the affiliation) Cadle's representative, putting him on both sides of the controversy between the creditors and Oyler. There would be no actual conflict if one of the other class members were the named plaintiff, for the trustee would then have no control over the litigation.
9
For the reasons stated, the class certification is vacated.
|
43 Cal.3d 64 (1987)
729 P.2d 728
233 Cal. Rptr. 294
HARLAN YOUST, Plaintiff and Appellant,
v.
GERALD LONGO, Defendant and Respondent.
Docket No. L.A. 32114.
Supreme Court of California.
January 2, 1987.
*67 COUNSEL
Edward Freidberg, Marjorie E. Manning, Rex-Ann S. Gualco and R. Parker White for Plaintiff and Appellant.
Sheryll Layne Myrdall for Defendant and Respondent.
John K. Van de Kamp, Attorney General, N. Eugene Hill, Assistant Attorney General, Talmadge R. Jones, Deputy Attorney General, Roger D. Smith, Christopher S. Rooney and Jackson & Nash as Amici Curiae.
OPINION
LUCAS, J.
Is a racehorse owner entitled to tort damages when the harness driver of another horse[1] negligently or intentionally interferes with the owner's horse during a race, thereby preventing the owner from the chance of winning a particular cash prize? (1) It is a well-settled general tort principle that interference with the chance of winning a contest, such as the horserace at issue here, usually presents a situation too uncertain upon which to base tort liability. We agree that application of this principle should govern here. Further, even if the outcome of the race was certain, as a matter of public policy, we conclude that an action for interference with prospective economic advantage, occasioned as a result of allegedly tortious conduct occurring during a sporting contest, ordinarily will not lie. Finally, the Court of Appeal concluded that the California Horse Racing Board (the Board) has jurisdiction to award affirmative relief for the alleged tort liability *68 here. In order to clarify its duty, we hold that the Board has no authority to award compensatory or punitive damages for tortious interference with a horserace.
I. FACTS
Plaintiff Harlan Youst entered his standardbred trotter horse, Bat Champ, in the eighth harness race at Hollywood Park in Inglewood, California. Also entered in the race was The Thilly Brudder, driven by defendant, Gerald Longo. During the race, defendant allegedly drove The Thilly Brudder into Bat Champ's path and struck Bat Champ with his whip, thereby causing the horse to break stride. Bat Champ finished sixth while The Thilly Brudder finished second. The Board reviewed the events of the race and disqualified The Thilly Brudder, which moved Bat Champ into fifth place, entitling plaintiff to a purse of only $5,000.[2]
Plaintiff filed a complaint for damages against defendant in the Los Angeles Superior Court, asserting three causes of action: (1) defendant negligently interfered with Bat Champ's progress in the race;[3] (2) defendant intentionally interfered therewith; and (3) defendant and unidentified individuals (Does I through X) conspired to interfere. Plaintiff sought as compensatory damages the difference in prize money between Bat Champ's actual finish and the finish which allegedly would have occurred but for defendant's interference. Plaintiff requested compensatory damages in three alternative amounts, namely, the purse amount for either first, second or third place (less the fifth place prize of $5,000 which Bat Champ has already received). Ascertainment of the amount of actual damages apparently would require a finding as to the position in which Bat Champ would have finished but for defendant's interference. Punitive damages of $250,000 were also sought.
Defendant demurred, asserting lack of subject matter jurisdiction by the superior court and failure to state a cause of action in each count of the complaint. The trial court sustained the demurrer without leave to amend on the latter ground. Plaintiff appealed from the judgment of dismissal. The Court of Appeal affirmed.
The Court of Appeal held that, as a matter of law, the facts did not invoke the tort of negligent interference with prospective economic advantage. *69 The court also held that, given the special circumstances surrounding sports competition, and as a matter of public policy, plaintiff's allegations of intentional interference with prospective economic advantage were insufficient to state a cause of action. However, the third cause of action, alleging a civil conspiracy to intentionally interfere with prospective economic advantage, could be actionable in the context of a horserace competition.[4] Nevertheless, the court concluded that the third count failed to state a cause of action because plaintiff did not petition the Board for such relief and, therefore, had not exhausted his administrative remedies before the Board.
The Court of Appeal was unanimous in holding that the Board has the authority to award tort compensation for the type of injury alleged in the third count and could enforce any award against licensees and nonlicensees of the Board. The court directed the Board to waive any time limits which may have expired with respect to hearing plaintiff's claim of a conspiracy to intentionally interfere with his prospective economic advantage. This directive was deemed appropriate because, as the Board conceded, Board policy and practice precluded awarding such affirmative compensatory relief when plaintiff first filed his complaint and the trial court sustained the demurrer.[5]
II. THE PARTIES' CONTENTIONS
The Court of Appeal ruled that a tort for civil conspiracy to intentionally interfere with prospective economic advantage may exist in the context of a sporting event, but initially only the Board may award compensation where such interference occurs during a horserace. Plaintiff challenges this holding on two grounds.
First, plaintiff contends that the Court of Appeal erred in affirming dismissal of count two of his complaint, which alleges that defendant intentionally interfered with plaintiff's horse. Plaintiff argues that this cause of action should be available when intentional conduct proscribed by horseracing rules results in economic loss. As discussed below, the Court of Appeal held that only the act of conspiring alleged in count three of the complaint *70 fulfilled the requisite malicious intent for intentional interference with prospective economic advantage. In essence, therefore, the Court of Appeal found, through the conspiracy allegation, that a cause of action had been stated for intentional interference with prospective economic advantage, the underlying wrong.
The second ground upon which plaintiff challenges the Court of Appeal's ruling involves the jurisdiction of the Board. Plaintiff contends the court erred in holding that the Board has initial jurisdiction to award compensation to horse owners whose prospects for winning a cash prize are substantially harmed by another. Plaintiff further argues that the court erroneously applied the exhaustion of remedies doctrine. He contends that because the Board, for the first time in its amicus brief and at oral argument on rehearing, indicated a willingness to consider compensatory awards in the future, the Court of Appeal erroneously applied the exhaustion of remedies doctrine retroactively. Plaintiff asserts that he exhausted the available administrative remedies prior to seeking review in the courts, and that where no administrative remedy exists, a court action is proper.
Defendant responds that the complaint failed to state any valid tort cause of action for either negligent or intentional interference with prospective economic advantage, including a conspiracy to interfere. Defendant further asserts that the superior court lacked jurisdiction over this claim for two reasons: (1) the Board has exclusive jurisdiction over all matters relating to horseracing, and (2) plaintiff failed to exhaust his administrative remedies.
In addition, defendant also contends the Board has no power to award compensation to racehorse owners for tort damages. He argues the Legislature has expressed the intention that the Board's responsibility is limited to enforcement of the rules and regulations concerning horseracing as a business and a sport. As will appear, we agree with most of defendant's contentions.
III. DISCUSSION
We conclude that the Court of Appeal reached the correct result in affirming the dismissal as to all three counts. However, in our view, such a result should be based on substantive, rather than procedural, grounds. The Court of Appeal affirmed the dismissal for failure to exhaust administrative remedies; we believe it erred in holding that the complaint stated a valid cause of action based on conspiracy (between competitors and noncompetitors) to interfere with plaintiff's prospective economic advantage. To the contrary, and despite the existence of any such conspiracy, we conclude *71 that tort liability for interference with prospective economic advantage is not available, as a matter of law and public policy, in the context of a sporting event.
A. Interference With Prospective Economic Advantage Legal Principles
Each of the three counts in the complaint purports to state a claim for loss of prospective economic advantage, rather than for physical personal injury or property damage. The torts of negligent or intentional interference with prospective economic advantage require proof of various elements as a prerequisite to recovery. (2) However, as a matter of law, a threshold causation requirement exists for maintaining a cause of action for either tort, namely, proof that it is reasonably probable that the lost economic advantage would have been realized but for the defendant's interference.
(3) (See fn. 6.) Over the past several decades, California courts analyzing the tort of interference with prospective economic advantage have required such a threshold determination. In Buckaloo v. Johnson (1975) 14 Cal.3d 815 [122 Cal. Rptr. 745, 537 P.2d 865], where we set out the five elements of the intentional form of the tort, we stated that the first element requires "the probability of future economic benefit."[6] (Id., at p. 827, italics added.) Although varying language has been used to express this threshold requirement, the cases generally agree it must be reasonably probable that the prospective economic advantage would have been realized but for defendant's interference. (See Worldwide Commerce, Inc. v. Fruehauf Corp. (1978) 84 Cal. App.3d 803, 811 [149 Cal. Rptr. 42] ("creditor-guarantor relationship was one reasonably expected to be economically advantageous"]; Wilson v. Loew's Inc. (1956) 142 Cal. App.2d 183, 190 [298 P.2d 152], cert. granted (1957) 352 U.S. 980 [1 L.Ed.2d 364, 77 S.Ct. 381], cert. dism. (1958) 355 U.S. 597 [2 L.Ed.2d 519, 78 S.Ct. 526] ["it must appear that such (prospective) contract or relationship would otherwise have been entered into"]; Campbell v. Rayburn (1954) 129 Cal. App.2d 232, 234 [276 P.2d 671] ["facts showing that the plaintiff had any reasonable expectation of economic advantage which would otherwise have accrued"].)
(4) Notwithstanding this line of California authority requiring at least the reasonable probability of an expectancy to establish a cause of action *72 for interference with prospective economic advantage, the Court of Appeal here relied on a lone appellate case seemingly to the contrary. In Gold v. Los Angeles Democratic League (1975) 49 Cal. App.3d 365 [122 Cal. Rptr. 732], the court applied principles of intentional interference with prospective economic advantage to the factual setting of an election. We do not find that setting analogous to a horserace.
In Gold, the plaintiff, a candidate for Los Angeles City Controller, claimed that defendants had interfered with his opportunity to win an election to political office. The defendants, including several political supporters of plaintiff's opponent, had sent a false and misleading mailing to voters stating their candidate, and not plaintiff, was the candidate officially endorsed by the Democratic Party. The opponent was in fact not so endorsed; he was a Republican. Plaintiff alleged that his defeat by the voters was a result of defendants' misrepresentations. The trial court in Gold sustained defendants' demurrer, but the Court of Appeal majority held defendants' actions stated a cause of action for interference with prospective economic advantage; plaintiff's expectancy was the salary he would have earned had he won the election. Defendants failed to petition for hearing with this court.
The Gold court seemed to place little emphasis on the general tort requirement that the plaintiff show a probability of the prospective advantage, that is, that plaintiff would have benefited economically but for the interference. The Court of Appeal here noted that the Gold majority "was not concerned about what some might call the `speculative nature' of plaintiff's injury. Actually plaintiff had lost the election by a four-to-one margin.... It seems most unlikely plaintiff would have won election and the economic advantage of serving in that office even if defendants had refrained from sending out this one misleading brochure. But this factor did not bother the California court. It upheld the cause of action for interfering with a contestant's opportunity to win a contest." (Italics added.)[7]
Based primarily on Gold, the Court of Appeal here extended interference with prospective economic advantage from political contests to sports contests on the basis that "there appears to be no reason to distinguish politics from sports ... [and] no California case ... limits Gold to political contests. Nor have we found any California cases which expressly exempt athletic contests from the tort." We conclude, however, that Gold is distinguishable because it dealt with interference with elections and with the *73 public's right to accurate information regarding candidates. As the Gold court stated, the allegations of interference with prospective economic advantage "tend to show that, because of the misrepresentation, the election did not express the will of an undeceived, well-informed public. [Citation.]" (49 Cal. App.3d at p. 376.) We do not believe any sporting event rises to the same level of importance as a political election and the processes involved therein.
At oral argument, plaintiff relied on Smith v. Superior Court (1984) 151 Cal. App.3d 491 [198 Cal. Rptr. 829], a case citing Gold on the issue of interference with prospective economic advantage. Smith involved an action against an automobile dealer to recover for personal injuries due to a defective wheel. Prior to trial, the dealer either lost or destroyed certain automotive parts he had promised to maintain, and plaintiff's experts were thereby unable to inspect and test those parts to pinpoint the cause of the defect. The court observed that intentional destruction or spoliation of evidence had not been recognized as a tort, and utilized the elements set out in Buckaloo, supra, 14 Cal.3d at page 827, for intentional interference with prospective economic advantage to analogize to spoliation of evidence.
Smith analogized the opportunity to win an election in Gold to the opportunity to win the lawsuit, an expectancy plaintiff argues is no more speculative than the outcome of a sporting event. However, the Smith court noted that protecting the right to a civil action in a products liability case is the type of valuable "probable expectancy" the court must protect from the kind of interference alleged by plaintiffs there. (151 Cal. App.3d at p. 502.) Smith concluded that public policy dictates that an interest in prospective civil litigation is entitled to legal protection against alleged intentional spoliation of evidence even though damages could not be pleaded with complete certainty. (Id. at p. 503.)
The Smith court recognized that recovery for interference with an economic relationship depends upon the probability of future economic benefit to plaintiff. As Smith stated: "California courts have adopted Prosser's belief in the importance of `probable expectancies' in several cases dealing with interference with prospective business advantage, requiring only an allegation of a `reasonable probability' that a contract or profit would have been obtained but for the defendant's acts. (Campbell v. Rayburn (1954) 129 Cal. App.2d 232, 235 ...; Brody v. Montalbano (1978) 87 Cal. App.3d 725, 738 ...; see also Gold v. Los Angeles Democratic League (1978) 49 Cal. App.3d 365, 375....)" (Smith, supra, 151 Cal. App.3d at p. 502.)
Next to Gold, Smith may represent the most speculative advantage that has heretofore been recognized by the California appellate courts. Just as *74 Gold protected the fundamental right to a fair election, Smith based its ruling on the importance of preserving the integrity of civil litigation. We do not believe that comparably important public policy considerations exist here. Indeed, as will appear, public policy dictates a rule that would preclude litigants from burdening the courts with controversies over sporting events which supposedly involved some economic loss.
Thus, we find that the Court of Appeal here erred in extending Gold to the factual setting of a sporting event. Unlike Gold and Smith, no compelling public policy exists which would justify ignoring the threshold requirement of reasonable probability of economic gain in the context of a sporting event.
B. Interference With Competitive Contests
(5) As indicated previously, the Court of Appeal failed to apply the threshold requirement of a probability of the prospective economic benefit. That requirement is especially appropriate to evaluate a lost economic expectancy where the facts involve a competitive contest of one kind or another. To require less of a showing would open the proverbial floodgates to a surge of litigation based on alleged missed opportunities to win various types of contests, despite the speculative outcome of many of them. In fact, it is the very "speculativeness" of the outcome that makes such competitions interesting. Further, to allow recovery without proof of probable loss would essentially eliminate the tort's element of causation, which links the wrongful act with the damages suffered.
Scholarly authority and cases from other jurisdictions agree that an application of the threshhold requirement of probable expectancy to the area of contests in general will usually result in a denial of recovery. Prosser has generally remarked that "since a large part of what is most valuable in modern life depends on `probable expectancies,' as social and industrial life becomes more complex the courts must do more to discover, define and protect them from undue interference." (See Prosser & Keeton, Torts (5th ed. 1984) § 130, p. 1006, fn. omitted.) Prosser, however, has specifically addressed the area of interference with contests: "When the attempt has been made to carry liability for interference ... into such areas as ... deprivation of the chance of winning a contest, the courts have been disturbed by a feeling that they were embarking upon uncharted seas, and recovery has been denied; and it is significant that the reason usually given is that there is no sufficient degree of certainty that the plaintiff ever would have received the anticipated benefits." (Ibid., italics added, fn. omitted.)
Notwithstanding rare cases where public policies are compelling, the tort of interference with prospective economic advantage traditionally has not *75 protected speculative expectancies such as the particular outcome of a contest. Prosser instructs that the true source of the modern law on interference with prospective relations is the principle that tort liability exists for interference with existing contractual relations. (Prosser & Keeton, supra, at p. 1006.) "For the most part the `expectancies' thus protected have been those of future contractual relations.... In such cases there is a background of business experience on the basis of which it is possible to estimate with some fair amount of success both the value of what has been lost and the likelihood that the plaintiff would have received it if the defendant had not interfered." (Ibid., italics added.)
Recently in Blank v. Kirwan (1985) 39 Cal.3d 311 [216 Cal. Rptr. 718, 703 P.2d 58], we acknowledged Prosser's suggestion that the interests generally protected by the tort are business expectancies, and on that basis we declined to expand the tort to cover interference with prospective nonbusiness relations. In Blank, an unsuccessful applicant for a license to operate a poker club brought an action against a city, public official and private individuals alleging a conspiracy to monopolize the operations of poker clubs. We ruled the complaint failed to state a cause of action for intentional interference with prospective economic advantage. Citing Buckaloo, supra, 14 Cal.3d at page 827, we held that plaintiff had failed to state adequate facts satisfying the first element of the tort, namely, an economic relationship between the plaintiff and some third person containing the probability of future economic benefit to the plaintiff. (Id., at pp. 330-331.)
There were two reasons in Blank why plaintiff failed to state a cause of action. First, the requisite relationship with third persons involved as yet unknown or nonexistent patrons; the relationship between the defendant city and plaintiff could not be characterized as an economic one. "Second, even if the relationship between plaintiff and the city could be so characterized, it would make little difference. The tort has traditionally protected the expectancies involved in ordinary commercial dealings not the `expectancies,' whatever they may be, involved in the governmental licensing process. (See Prosser & Keeton, [supra,] p. 1006.) Plaintiff does not attempt to justify such an expansion of the tort. Nor would he likely have been successful if he had." (39 Cal.3d at p. 330.) Thus, the plaintiff in Blank failed to show any real expectation of economic advantage because the city council's discretion to grant or deny applications for a poker club license was broad and negated any expectancy as a matter of law. (Id., at pp. 330-331.)
Determining the probable expectancy of winning a sporting contest but for the defendant's interference seems impossible in most if not all cases, including the instant case. Sports generally involve the application of various *76 unique or unpredictable skills and techniques, together with instances of luck or chance occurring at different times during the event, any one of which factors can drastically change the event's outcome. In fact, certain intentional acts of interference by various potential "defendant" players may, through imposition of penalties or increased motivation, actually allow the "victim" player or team to prevail. Usually, it is impossible to predict the outcome of most sporting events without awaiting the actual conclusion.
The Restatement Second of Torts specifically addresses the speculative nature of the outcome of a horserace. The relevant comment is contained in a "Special Note on Liability for Interference With Other Prospective Benefits of a Noncontractual Nature." The comment states that various possible situations may justify liability for interference with prospective economic benefits of a noncommercial character. Special mention is given to "[c]ases in which the plaintiff is wrongfully deprived of the expectancy of winning a race or a contest, when he has had a substantial certainty or at least a high probability of success. For example, the plaintiff is entered in a contest for a large cash prize to be awarded to the person who, during a given time limit, obtains the largest number of subscriptions to a magazine. At a time when the contest has one week more to run and the plaintiff is leading all other competitors by a margin of two to one, the defendant unjustifiably strikes the plaintiff out of the contest and rules him ineligible. In such a case there may be sufficient certainty established so that the plaintiff may successfully maintain an action for loss of the prospective benefits. On the other hand, if the plaintiff has a horse entered in a race and the defendant wrongfully prevents him from running, there may well not be sufficient certainty to entitle the plaintiff to recover. ..." (Rest.2d Torts, § 774B, special note, pp. 59-60, italics added.)
As indicated by the Restatement comment, certain contests may have a higher probability of ultimate success than others. To this end, the cases cited by the Court of Appeal here, awarding damages to competitors in contests, are distinguishable because in each case there was a high probability of winning.[8] In addition to the Restatement position, one older case has specifically held that the loss of a chance to win a prize purse at a *77 trotting horserace was too speculative to support tort liability. (See Western Union Tel. Co. v. Crall (1888) 39 Kan. 580 [18 P. 719].)
Applying the foregoing analysis to the instant case, it seems clear that plaintiff's complaint fails adequately to allege facts showing interference with a probable economic gain, i.e., that Bat Champ would have won this horserace, or at least won a larger prize, if defendant had not interfered. Here, the complaint only alleged in conclusory terms that defendant's wrongful interference resulted in a lost "opportunity" to finish higher in the money. The complaint merely indicated that defendant's maneuvers and whipping forced Bat Champ to break stride and fall out of contention.[9]
We conclude, as a matter of law, that the threshold element of probability for interference with prospective economic advantage was not met by the facts alleged, whether or not some "conspiracy" between a competitor and noncompetitor existed. It was not reasonably probable, on the facts alleged, that Bat Champ would have finished in a better position. Indeed, we may take judicial notice of the impossibility of predicting such matters; the winner of a horserace is not always the leader throughout the race for a horse can "break the pack" at any point in the race, even as a matter of strategy. Further, many races are won by a "nose." (6) (See fn. 10.) Thus, no cause of action exists for interference with this horseracing event.[10]
C. Sporting Contests Public Policy Considerations
Courts must be guided by considerations of common sense, justice and fair play when making public policy determinations. (7) In setting forth special criteria for negligent interference with prospective economic advantage in J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 804, footnote 1 [157 Cal. Rptr. 407, 598 P.2d 60], we stated: "Countervailing public policies may preclude recovery for injury to prospective economic advantage in some cases, such as the strong public policy favoring organized activity by *78 workers. Accordingly, interference with the prospective economic advantage of an employer or business has traditionally not been considered tortious when it results from union activity, including picketing, striking, primary and secondary boycotts or similar activity, that is otherwise lawful and reasonably related to labor conditions. [Citations.]"
(8a) Similar policy considerations apply here. The courts are not appropriate forums for adjudicating claimed sporting event violations which allegedly resulted in prospective economic loss. Although the economic rewards for engaging in professional sports have grown over the past decades, a sporting event is still a contest. The atmosphere of competition remains predominant despite the potential economic rewards. The regulation of sports conduct heretofore has been delegated to supervising regulatory agencies for each particular sport. Specific rules and regulations exist to provide for penalties for violations; remedies are seldom economic but usually involve sanctioning, within the context of the competition, the violating competitors. Our crowded courts are ill-equipped to decide such specialized matters.
The regulatory method for sanctioning or penalizing sports violators has proven relatively successful and is generally accepted. In the instant case, numerous administrative remedies are available through the Board to punish drivers who intentionally or recklessly drive their horses. It seems unnecessary to supplant this system by bringing the owners or harness drivers into the courtroom for a determination of speculative compensatory economic damages. It is the competitive nature of sporting in general, including both strategy and luck, that makes a claim for a "lost purse" markedly different from a claim for personal injuries.[11]
If the tort of interference were recognized in the context of a sporting competition, virtually no such event would take place without a tort claim from some losing competitor seeking to recover his supposed economic loss; a player's every move would be highly scrutinized for possible use in the courtroom. Placing this type of additional pressure on competitors could seriously harm competitive sports.
In the specific context of a horseracing event, the physical demands placed on harness drivers attempting to control and maneuver the animals frequently may require jockeying for position. Imprecision is inherent in the maneuvering of these animals and it is impossible to assure that physical contact among the horses will not occur. In fact, the harness racing rules *79 contain provisions that address the nature of the contact which is likely to occur, indicating an awareness of the constant maneuvering required in the sport.[12] To impose liability on drivers for acts which may be a necessary consequence of their jockeying for track position would effectively eliminate the type of intense competition permitted by the rules of racing. We should not sanction moving the arena for sporting competitions from the stadium, boxing ring or horseracing track into the courtroom. In light of these important public policies, we conclude that a cause of action will not lie for prospective economic loss which arises between competitors during a sporting contest.[13]
The issue of whether a conspiracy to interfere may give rise to the tort of intentional interference with prospective economic advantage was raised in the Court of Appeal. It concluded that only the conspiracy count stated a valid cause of action for the tort of intentional interference with prospective economic advantage. The court determined that the act of conspiring to interfere represents the type of improper motive or means necessary to constitute the tort of intentional interference with prospective economic advantage. According to the court, no such ill-motive can be found in the sort of intentional acts which are naturally a part of athletic competition. But a plot by the driver and others to cause Bat Champ to lose the race both offends public policy and discloses the requisite improper intent to sustain tort recovery. Therefore, the court concluded the conspiracy count satisfies the elements of intentional interference with prospective economic advantage.
(9) The Court of Appeal correctly stated that there is no separate tort of civil conspiracy. Rather the conspirators must agree to do some act which is classified as a "civil wrong." (Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 631 [102 Cal. Rptr. 815, 498 P.2d 1063].) (8b) But we fail to see why the act of competitors conspiring with others (e.g., teammates, friends, coaches, other competitors) to commit an intentional improper play in a sporting competition is so different in kind from the commission of that act by a competitor acting on his own. It would become impossible to draw a distinction between behavior that is sufficient to justify liability, i.e., a conspiracy, and behavior that is excusable as being committed in the heat of competition, i.e., fair play. Further, the fact that a *80 conspiracy exists does not affect the lack of any reasonable probability that economic gain would have been realized. We therefore conclude that even conspiracies formed between competitors, or between competitors and noncompetitors, do not justify liability for intentional interference with prospective economic advantage in the sports context.[14]
D. Jurisdiction of the Board
(10) The Court of Appeal herein held the Board has jurisdiction to decide and enforce tort claims against licensees and nonlicensees of the Board who unlawfully interfere, or cause others to unlawfully interfere, with a horserace. This determination was based primarily on language in the Business and Professions Code and the California Administrative Code establishing the Board's authority over horseracing.
The present case involved a unique procedural sequence of events. As previously stated, at the time the trial court sustained defendant's demurrer, the Board followed a policy of refusing to award tort compensation. However, the Board later indicated a willingness to do so, based on the Court of Appeal's conclusion that the Board's authority included "the power to award compensation to horseowners who are victimized by unlawful conduct during horse race meetings." The court ultimately determined that a new administrative remedy was available to plaintiff which was previously unavailable. Thus, the court directed the Board to waive time limits so that plaintiff could bring his claim to the Board for affirmative relief.
Contrary to the Court of Appeal's conclusion, the power to award compensatory and punitive tort damages to an injured party is a judicial function. Although the Board has very broad power to regulate and discipline wrongful conduct which involves horseracing in California, the relevant statutes do not authorize awarding affirmative compensatory relief such as tort damages.
The Court of Appeal concluded that three enactments essentially vested the Board with power to award tort recovery for economic loss. First, Business and Professions Code section 19440 provides in part: "The board *81 shall have all powers necessary and proper to enable it to carry out fully and effectually the purposes of this chapter...." Second, the California Administrative Code, title 4, section 1530, provides: "Should any case occur which may not be covered by the Rules and Regulations of the Board or by other accepted rules of racing, it shall be determined by the stewards in conformity with justice and in the interest of racing." Third, section 1529 of the Administrative Code provides: "The stewards may refer any matter within their jurisdiction to the Board when the penalty the stewards have jurisdiction to impose is insufficient ... or for other good and sufficient cause, and they may order the suspension of the licensee pending further Order of the Board. In such event, the Board shall accept the matter for hearing and adjudication or such other action as the Board deems to be in the best interests of justice."
Although the provisions cited by the Court of Appeal vest the Board with broad powers, such powers are regulatory in nature. The Board was created by legislative enactment in 1933 and the grant of broad power has remained essentially unchanged since that time. The preamble to the act provided that its purpose, however, was to regulate, license, supervise and "provide penalties for the violation of the provisions of this act." (Stats. 1933, ch. 769, p. 2046, italics added.) Further, in Flores v. Los Angeles Turf Club (1961) 55 Cal.2d 736, 745-746 [13 Cal. Rptr. 201, 361 P.2d 921], we described the Board's powers by noting that "pursuant to article IV, section 25a of the California Constitution, the Legislature has enacted a comprehensive scheme of legislation designed to regulate almost every aspect of legalized horse racing and wagering." (Italics added, fn. omitted.)
Business and Professions Code section 19440 confirms this broad regulatory power of the Board. In part the code provides: "Responsibilities of the board shall include, but not be limited to: ... [¶] (2) Administration and enforcement of all laws, rules and regulations affecting horseracing and parimutuel wagering. [¶] (3) Adjudication of controversies arising from the enforcement of those laws and regulations dealing with horseracing and parimutuel wagering.... [¶] The board may delegate to stewards such of its powers and duties that are necessary to carry out fully and effectuate the purposes of this chapter." (Bus. & Prof. Code, § 19440.)
Pursuant to this delegation of power, the Board has promulgated rules contained in California Administrative Code, title 4, section 1400 et seq. Nowhere in title 4, however, is the Board given authority to award affirmative relief in the form of compensatory or punitive tort damages. Section 1405 of title 4, contained in article 1 (Racing Board Powers and Jurisdiction), provides for punishment by the Board: "Violation of any provision of this chapter ... is punishable in the discretion of the Board by *82 revocation or suspension of any license, by fine, or by exclusion from all racing ... or by any combination of these penalties. The Board may independently punish any misconduct of any person connected with racing." (Italics added.)
The stewards, with whom a claim of interference may be lodged after a race, also have limited authority. Section 1528 of title 4 of the California Administrative Code provides in part: "The stewards may suspend the license of anyone whom they have the authority to supervise or they may impose a fine or they may exclude from all enclosures in this State or they may suspend, exclude and fine." (Italics added.) The Court of Appeal herein acknowledged that the "stewards are given express authority to punish a jockey or horse owner or anyone else who is licensed by the Board and is found to have violated a riding rule." (Italics added.)
These specific rules and regulations in the California Administrative Code demonstrate the character of the Board as a regulatory and disciplinary entity. The extensive regulations neither express nor imply any authority to award affirmative monetary relief. In fact, each section which authorizes adjudication of racing violations reveals the power of the Board is limited to fines, penalties or exclusions. Accordingly, the regulatory relief available from the Board indicates that it lacks the power to award damages to those who are injured by a violation of the Horse Racing Law (Bus. & Prof. Code, § 19400 et seq.). It is undisputed that the Board has never awarded such affirmative relief and that neither the Horse Racing Law nor the Board regulations specifically include "damages" as a form of relief afforded by the Board.[15]
Further, California Administrative Code, title 4, section 1699, subdivision (c), provides a specific penalty for acts of interference such as are alleged herein: "A horse which interferes with another and thereby causes any other horse to lose stride, lose ground, or lose position, when such other horse is not in fault and when such interference occurs in a part of the race where the horse so interfered with loses the opportunity to place where he might, in the opinion of the stewards, be reasonably expected to finish, may be disqualified and placed behind the horse so interfered with." (Italics added.) Therefore, since neither the statutes nor the administrative rules governing the power of the Board grant authority to award affirmative relief, we conclude that the jurisdiction of the Board is confined to disciplinary *83 and regulatory matters.[16] Accordingly, the only remedy available from the Board in this case is to reorder the finishing positions of the competitors, which has already been done. (Cal. Admin. Code, tit. 4, § 1699, subd. (c).)
IV. CONCLUSION
Deprivation of the chance of winning a horserace or any sporting event does not present a basis for tort liability for interference with prospective economic advantage. Here, the probability that plaintiff's horse would have won the race is simply too speculative a basis for tort liability. Further, as a matter of public policy, no such tort cause of action is available in the context of any sporting event. Finally, the Horse Racing Board lacks jurisdiction to award general tort damages.
The judgment of the Court of Appeal is affirmed.
Mosk, J., Broussard, J., and Panelli, J., concurred.
REYNOSO, J.
I concur, but on a limited basis. The majority correctly hold that tort liability for potential economic loss as a result of illegal conduct which occurs during a sporting event is prohibited on the basis of public policy. No more need be said.
We deal with a very narrow factual situation, a sporting event. Many older cases, mentioned in the majority, dealing with the tort of interference with prospective economic advantage turn almost entirely upon the defendant's motive or purpose, and the means by which it will be accomplished. Such an approach was used primarily to emphasize that the tort was not applicable in the context of bona fide competition. (4 Witkin, Summary of Cal. Law (4th ed. 1974) § 392, p. 2643.) In sporting events, where the line between bona fide competition and unfair competition is so finely drawn as to require regulation by specific agencies or organizations, the courts should not interfere.
The emphasis on improper conduct which we find in those older cases does not lessen or diminish plaintiff's burden to establish, as a threshold *84 requirement, probable economic gain. The lack of any reasonable probability that gain would have been realized defeats the cause. Thus, it is not enough to conclude, as did the Court of Appeal, that the acts of two or more persons to achieve illegal goals comprise the type of improper conduct that is actionable.
Defendant's other contentions need not be reached: (1) that the superior court lacked jurisdiction to consider plaintiff's claim, or (2) whether the California Horse Racing Board has the exclusive power to consider claims for compensatory relief. The Court of Appeal found it necessary to reach the latter issue because it concluded that a cause of action had been stated. However, plaintiff never sought compensatory relief from the board; and since we have decided that no cause of action has been stated, there is no reason for this court to reach that question.
Bird, C.J., concurred.
GRODIN, J.
Like Justice Reynoso, I concur in the judgment, but would rest the decision on even narrower grounds than suggested in his concurring opinion. In my view, it is inappropriate in this case to permit plaintiff to maintain a tort cause of action for intentional interference with prospective economic advantage because of the broad authority which the Legislature has granted to the California Horse Racing Board to regulate, and to devise remedies for, misconduct by participants within the horse racing industry. (Bus. & Prof. Code, § 19440.) In the absence of such legislation, I am not convinced that it would necessarily be appropriate to bar tort recovery simply because defendant's intentional misconduct occurred during the course of a sporting event.
Although in the sporting context there certainly will be some instances in which the relationship between the defendant's intentional misconduct and damages would be too speculative to support recovery under ordinary tort principles, it is not difficult to imagine other instances e.g., a horse shot just before it crosses the finish line, 10 lengths ahead of the field in which the causal relationship will be no more speculative than in many other financial settings in which tort recovery is routinely permitted. If tort recovery is properly to be barred in such circumstances, it would have to be for reasons other than the "speculativeness" of the injury.
The majority suggests that, apart from the "speculative nature" of the damages, tort recovery should be barred in the field of sports as a matter of "public policy." In the absence of any legislative declaration of such a public policy, however, I have difficulty understanding the source from which the majority draws this policy. The majority points to nothing in the *85 current fabric of laws or regulations which suggests that the public interest demands that professional gamblers or others who may have much to gain by "fixing" the results of sporting events should generally be permitted to engage in intentional misconduct with impunity from ordinary principles of civil liability. Under the circumstances, I see no reason for the court to go out of its way to grant broad immunity to such intentional misconduct, particularly when such a rule is unnecessary to the decision in this case.
Finally, I also, again like Justice Reynoso, would withhold any decision on the question whether the Horse Racing Board has the statutory authority to provide compensatory relief to a person who has been injured through an intentional violation of one of the board's regulations, by, for example, conditioning the reinstatement of a wrongdoer's license on his payment of wrongfully obtained gains to the victim. Because plaintiff never sought such relief from the board, the question of the board's power to afford that remedy is not presented here.
NOTES
[1] The following distinction in horseracing terminology is relevant here: The California Administrative Code, title 4, section 1420, defines "jockey" as a "race rider" and "driver" as "one who drives and controls the horse from a seated position on a two-wheel vehicle." As the instant case involves a harness race, "driver" is the appropriate term.
[2] The purse for the race was $100,000 distributed as follows: the winner received $50,000; second place received $25,000: third place received $12,000; fourth place received $8,000; and fifth place received $5,000.
[3] At oral argument, counsel for plaintiff confirmed that he had waived any claim for negligent interference with prospective economic advantage.
[4] The Court of Appeal observed that the conspiracy allegation of the complaint was inappropriate and misleading because it incorporated paragraphs of the first and second counts, but agreed that this defect was curable by amendment.
[5] The Court of Appeal in an initial, vacated opinion determined that the Legislature delegated exclusive power to the Board over controversies arising from the enforcement of horseracing rules and regulations. In an amicus brief filed on rehearing, the Board indicated that, although unprecedented, it would award affirmative relief in appropriate cases in the future pursuant to the broad interpretation of its power set forth in the original vacated majority opinion. The Court of Appeal in its second opinion reiterated this interpretation of broad power.
[6] The five elements for intentional interference with prospective economic advantage are: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. (See Buckaloo v. Johnson, supra, 14 Cal.3d at p. 827.) In the present case, the "relationship" required in the first element is arguably the potential relationship between plaintiff and the racetrack; the economic benefit is a richer "purse" that he would have received.
[7] The dissent in Gold concluded that the effect of defendants' pamphlet on Gold's chances of winning the election was too remote and speculative to justify judicial intervention. (Id., at p. 380, fn. 5 [dis. opn.].)
[8] Nor are we persuaded by the Court of Appeal's argument that damages should be allowed for the value of the lost chance of benefit. (See Schaefer, Uncertainty and the Law of Damages (1978) 19 Wm. & Mary L.Rev. 719.) Under this approach, plaintiff would not recover the full value of the lost prize but that value discounted by the probability of winning in the absence of defendant's interference. We believe this calculation is incorporated in the basic analysis for interference with prospective economic advantage; the speculative nature of the chance of winning is examined in establishing the first element of the tort as opposed to determining specific damages after recognizing a cause of action. In the instant case, the potential economic advantage is simply too speculative to allow any recovery.
[9] Presented in plaintiff's opposition to the demurrer were the following additional facts: "As the horses entered in the eighth race rounded the last turn, Bat Champ began to make his move to the lead of the group. As his move progressed, Defendant drove his horse into Bat Champ's path and thereafter whipped Bat Champ with his whip. Bat Champ's advance was halted, his stride broken and his chances at finishing `in the money' ended." (Italics added.) Further, at oral argument, plaintiff asserted that the alleged interference took place 100 yards from the finish line. However, despite these asserted facts, Bat Champ's chance of placing higher in the purse money remained highly speculative.
[10] At oral argument, plaintiff requested leave to amend his complaint. However, in light of the speculative nature of the outcome of a horserace, and our additional conclusion discussed below, that no recovery should be available for economic loss occasioned as a result of interference during any sporting event, the trial court properly sustained the demurrer without leave to amend. (See Routh v. Quinn (1942) 20 Cal.2d 488. 493-494 [127 P.2d 1].)
[11] We emphasize, as did the Court of Appeal, that this holding applies only to claims for prospective economic loss.
[12] See California Administrative Code, title 4, sections 1720-1736. We note that these sections are specific to harness racing but apply in addition to the other sections of the chapter regulating horseracing in general. (Id., § 1720.)
[13] The facts do not present and we do not reach the question of whether liability could be imposed in a case charging wrongful interference solely by a noncompetitor (such as a fan, gambler or other person financially interested in the outcome), at least where the threshold element of probable loss is met.
[14] At oral argument, counsel for plaintiff further clarified the conspiracy cause of action. He asserted that a conspiracy for interference with prospective economic advantage should lie (in the context of a horserace) when there is a conspiracy to eliminate a horse for motives other than to further the position of the offending horse. In the present case, plaintiff asserts the conspiracy was for the purpose of "fixing" the race, a motive that should give rise to a cause of action. Although plaintiff did not make a specific allegation of "race fixing" in the complaint, he requests the opportunity to amend. However, in light of our conclusion foreclosing tort liability for economic loss occasioned during a sporting event, such a distinction between motives is unnecessary.
[15] We do not mean to imply that the Board is without authority to require compensatory relief as a condition for reinstatement of licenses. We agree with Justice Grodin that "the Board's power to afford that remedy is not presented here." (Post, p. 85.) All we now hold is that the Board may not award general tort damages.
[16] The Court of Appeal opinion would have conferred a broad grant of power to the Board. In a footnote, the court stated that although the Board itself, rather than the stewards, preferably should adjudicate tort claims for compensation, it would leave these administrative and procedural matters to the judgment of the Board. The ultimate result of such a decision cannot be sanctioned, for stewards should not sit as judges in civil law tort actions. The fact that the Board has indicated in essence that it would be willing to award affirmative relief does not change our conclusion; unless there is a valid legislative grant of power, the Board cannot award such relief.
|
228 Ga. 489 (1971)
186 S.E.2d 531
MOORE
v.
MOORE.
26839.
Supreme Court of Georgia.
Submitted November 8, 1971.
Decided December 1, 1971.
Rehearing Denied December 17, 1971.
Will Ed Smith, for appellant.
Timothy K. Adams, Milton Harrison, for appellee.
GRICE, Justice.
This review involves a contest between the wife of an insured and the administratrix of the estate of the mother of the insured over the proceeds of a group life insurance policy issued pursuant to the Federal Employees' Group Life Insurance Act of 1954 (5 USC § 8705).
Litigation began when Metropolitan Life Insurance Company filed in the Superior Court of Dodge County a complaint for interpleader against Mary W. Moore and Lillie L. Moore.
The complaint alleged in substance the following: that the plaintiff issued a policy of insurance on the life of John L. Moore, an employee of the United States now deceased; that Mary W. Moore was his wife and named beneficiary in the policy; that she killed the insured and was convicted of his murder; that Lillie L. Moore was the mother of the insured; that she claimed the proceeds of the policy by virtue of Code Ann. § 56-2506 (Ga. L. 1960, pp. 289, 687) because Mary W. Moore had forfeited her rights under the policy.
The complaint alleged further that the policy provided as *490 follows: "If at the death of the Employee, there be no designated Beneficiary as to all or any part of the insurance, then the amount of the insurance payable for which there is no designated Beneficiary shall be payable to the person or persons listed below surviving at the date of the Employee's death, in the following order of precedence: (1) To the widow or widower of the Employee; (2) If neither of the above, to the child or children of such Employee and descendants of deceased children by representation; (3) If none of the above, to the parents of such Employee or the survivor of them; ..."
In view of these conflicting claims, the complaint prayed that the proceeds of the policy be paid into court and that the plaintiff be discharged. This was thereafter authorized to be done.
The answer of the defendant Lillie L. Moore alleged in substance that she was entitled to the proceeds of the policy since the wife Mary W. Moore, with malice aforethought, killed the insured; and that Lillie L. Moore was the sole surviving parent of the deceased.
The answer of the defendant Mary W. Moore stated in essential part the following: that she was entitled to the proceeds because she was designated as beneficiary of the policy and also because she is the widow of the insured as set forth in the complaint and by virtue of the applicable federal statute (5 USC § 8705), which provides for the same order of precedence of beneficiaries as the insurance policy; and that the claim of Lillie L. Moore as parent under Code Ann. § 56-2506, which attempts to forfeit the right of a beneficiary, is in conflict with the federal law and is unconstitutional for stated reasons not necessary to set forth here.
The defendant Mary W. Moore moved for summary judgment in her favor because of the alleged unconstitutionality of the Georgia statute referred to above and because of the alleged supremacy of federal law directing payment to her.
The defendant Lillie L. Moore died and her administratrix, Ollie B. Moore, was made a party in her stead.
*491 It is agreed by the parties that the insured died without child or children.
Upon the hearing for summary judgment the defendant Mary W. Moore introduced in evidence the affidavit of an attorney at law for the plaintiff Metropolitan Life Insurance Company which recited that he was familiar with the records relating to the case; that they do not contain a designation of beneficiary; and that therefore the order of preference provision set forth in the policy is applicable here.
The trial court denied the motion for summary judgment. Certificate for immediate review was granted.
We have concluded that the denial of the motion for summary judgment was correct.
What is decisive here is that there exists throughout the United States a common law principle that one who has murdered an insured cannot thereafter claim the proceeds of the policy of insurance on his life. This principle pervades every issue under consideration.
"It is a well-settled rule that a beneficiary in a life insurance policy who murders or feloniously causes the death of the insured forfeits all rights which he may have in or under the policy. This rule is based upon public policy and upon the principle that no one shall be allowed to benefit from his own wrong. It is not necessary that there should be an express exception in the contract of insurance forbidding a recovery in favor of a beneficiary who intentionally kills the insured ... Nor is it necessary, in order to defeat the rights of the beneficiary in such case, to show that the purpose was to obtain the proceeds of the policy; it is sufficient that the killing was the intentional and wrongful act of the beneficiary." 44 AmJur2d 653, Insurance, § 1741.
In our view this rule is applicable in both state and federal jurisdictions. Thus it does not matter whether state or federal law should be looked to.
For collections of cases following this principle see annotations in 44 AmJur2d 653, Insurance, § 1741, supra; 46 CJS 57, Insurance, § 1171; Vance on Insurance (3d Ed.) 717, § 117; 1A Appleman, Insurance Law and Practice 1, § 381 et *492 seq.; 4 Couch on Insurance 2d 695, § 27:148 et seq.
Perhaps the leading case on the subject is New York Mutual Life Ins. Co. v. Armstrong, 117 U. S. 591, 600 (6 SC 877, 29 LE 997). There Justice Field speaking for the court said this: "It would be a reproach to the jurisprudence of the country, if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had wilfully fired."
This common law principle applies here independently of Code Ann. § 56-2506, supra, which provides as follows: "No person who commits murder or voluntary manslaughter, and no person who conspires with another to commit murder shall receive any benefits from any insurance policy on the life of the deceased even though the person so killing or conspiring be named beneficiary in such an insurance policy. A plea of guilty or a judicial finding of guilt, not reversed or otherwise set aside as to any of such crimes, shall be prima facie evidence of guilt in determining rights under this section. All right, interest, estate and proceeds in such an insurance policy shall go to such other heirs of the deceased as may be entitled thereto by the laws of descent and distribution of this State, unless secondary beneficiaries be named in the policy, in which event such secondary beneficiaries shall take."
In view of the conclusion we have reached, it is unnecessary to rule upon the constitutional attacks made by the appellant upon this Georgia statute.
For the foregoing reasons the Judgment is
Affirmed. All the Justices concur.
|
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-50458
Plaintiff-Appellant, D.C. No.
v. CR-03-00053-
THOMAS MICHAEL WHITEHEAD, CAS-1
Defendant-Appellee.
UNITED STATES OF AMERICA, No. 05-50506
Plaintiff-Appellee, D.C. No.
v. CR-03-00053-
THOMAS MICHAEL WHITEHEAD, CAS-1
Defendant-Appellant.
ORDER
Filed March 11, 2009
Before: Alex Kozinski, Chief Judge,
Diarmuid F. O’Scannlain and Jay S. Bybee, Circuit Judges.
Order;
Dissent by Judge Gould;
Dissent by Judge Reinhardt
ORDER
A majority of eligible judges has voted against rehearing en
banc. The petition for rehearing and rehearing en banc is
denied. Fed. R. App. P. 35, 40.
3125
3126 UNITED STATES v. WHITEHEAD
GOULD, Circuit Judge with whom KLEINFELD, BYBEE,
CALLAHAN, and BEA Circuit Judges, join dissenting from
the denial of rehearing en banc:
I respectfully dissent from the denial of rehearing en banc
in this case.
The problem is simply that the desirable principle of defer-
ence to the sentencing judge, if taken too far, is transformed
into an undesirable principle of no review in effect for sub-
stantive reasonableness of a sentence, contrary to what the
Supreme Court declared as law. I believe that while Gall v.
United States, 128 S. Ct. 586 (2007) reinforced district
judges’ considerable discretion in sentencing, it left appellate
judges with the task of reviewing sentences for reasonable-
ness, and that review must be more than the mere recitation
that the district court knows the facts better than we do, with
a citation to Gall. See United States v. Whitehead, 532 F.3d
991, 993 (9th Cir. 2008).
The scope of our duty to review a district court’s sentenc-
ing decision for substantive reasonableness under an abuse of
discretion standard goes beyond what our court did here, and
we would all benefit if we had a better standard for such cir-
cumstances. Thomas Whitehead, the defendant in this case,
pirated a million dollars worth of “access cards” and sold
them to persons who used them to steal DirectTV’s television
services. He personally garnered more than $400,000 from his
involvement in this illegal scheme. Yet despite this serious
crime, he got zero jail time. After taking his personal circum-
stances into account and granting him acceptance of responsi-
bility, even though he went to trial and did not save the
government time by pleading guilty, the district judge calcu-
lated his guideline range at 33 to 41 months. Nonetheless, the
judge sentenced him only to probation, restitution, and com-
munity service with no prison term, not a month, not even a
day. The sentencing judge gave the following reasons: White-
head displayed extreme remorse (which, I observe, was
UNITED STATES v. WHITEHEAD 3127
expressed after his conviction). Whitehead had family circum-
stances that the district court thought warranted leniency, spe-
cifically his mother’s illness and his position as a parent with
joint custody of his daughter. And the district court concluded
that there was a low likelihood of recidivism. Whitehead, 532
F.3d at 99799. The Whitehead per curiam majority was com-
fortable affirming the sentence rather summarily and hardly
needed to justify its affirmance with any analysis of the dis-
trict court’s reasons.
In Gall v. United States, the Supreme Court upheld a 36
month probationary sentence as reasonable when the applica-
ble guideline range was a 30 to 37 month custodial sentence.
Gall, 128 S. Ct. 586. The extent of the variance in Gall was
substantially the same as in Whitehead, but the Supreme
Court’s reasoning and review of the record was significantly
more thorough than in Whitehead. In Gall, the Supreme Court
exhaustively detailed the compelling mitigating evidence of
Gall’s voluntary withdrawal from a conspiracy to distribute
ecstacy and self-motivated rehabilitation—mitigation substan-
tially more compelling than Whitehead’s mitigation case.
Whitehead cites Gall, but it does not engage in the same sort
of review. The signal fact is that Whitehead expressed
remorse after his conviction. And, of course, he also had
some family obligations, but who doesn’t? How do the factors
of post-conviction remorse and some family make his case
much different from all of the routine convictions where crim-
inal defendants are unhappy that they were caught and con-
victed and also have fathers, mothers, spouses, or children?
How do these mitigating factors warrant such a significant
variance? It’s hard to believe that the Sentencing Commission
was unaware of such circumstances in the mass of cases they
reviewed. It looks as if district courts can give a mere wrist-
slap to those convicted of white collar crime, and then await
a summary affirmance from our court.
However, it has been recognized for more than two thou-
sand years that: “to spare the guilty is to injure the innocent.”
3128 UNITED STATES v. WHITEHEAD
Publius Syrus, Moral Sayings 113 (D. Lyman trans. 1856).
Many of those now concerned with victims’ rights have rec-
ognized the same thing. See, e.g., Crime Victims’ Rights Act,
18 U.S.C. § 3771 (2006). Doubtless the district court thought
it was sentencing in a just way, and doubtless the Whitehead
panel majority also thinks it serves justice to affirm. None
would dispute the importance of reaching a just result sen-
tence for crime in our criminal justice system. As was well
stated by no less a legal luminary than Daniel Webster, at the
funeral of Mr. Justice Story, on September 12, 1845: “Justice
is the great interest of man on earth. It is the ligament which
holds civilized beings and civilized nations together.” 2
Papers of Daniel Webster: Legal Papers, 695 (Andrew J.
King, ed. 1989). We can accept that the Whitehead panel
majority and the sentencing district court think Whitehead’s
sentence was just. But just as surely I conclude that it is unjust
for a person who stole so much money to get no jail time.
What is needed is some better standard by which in white col-
lar crime cases, where physical injury to the public from the
defendant is probably not in the cards, to assess what is an
appropriate level of punishment. I do not think it is sufficient
merely to defer to district court discretion with unbounded
standards.
The Whitehead majority concludes that “the district court
was ‘in a superior position’ to find the relevant facts and to
‘judge their import.’ [It] didn’t abuse its discretion in so
doing.” Whitehead, 532 F.3d at 993. Surely it is true that the
district court is in a better spot than we normally to consider
the facts of a case and to render sentence. Nonetheless, we
should provide some standard that would alert a district court
to the concern that it should go only so far but not farther. To
review for substantive reasonableness in such an undemand-
ing manner, as was undertaken by the per curiam majority in
Whitehead, undermines the equality goal envisioned by the
Guidelines, and embraced by the Court in the remedy portion
of Booker. United States v. Booker, 543 U.S. 220, 250-51,
261-63 (2005).
UNITED STATES v. WHITEHEAD 3129
I share Judge Bybee’s valid concern that Whitehead will
become the “baseline” that we use to measure other sentences.
Whitehead, 532 F.3d at 999. Indeed, it already has. In United
States v. Ruff, a panel majority, over my dissent, upheld a
one-day custodial sentence, a significant variance from a
guideline range of 30 to 37 months, citing the archetype of
permissiveness, Whitehead. Ruff, 535 F.3d at 1002. In that
case, Kevin Ruff had stolen more than $600,000 worth of sup-
plies from the Sacred Heart Medical Center and then covered
his tracks by entering more than one thousand false down-
ward inventory adjustments in the medical center’s computer-
ized log. The district court in Ruff cited Ruff’s history of
employment; his cooperation and remorse; his family support;
the absence of risk to the public and the appropriateness of
restitution; as well as his mental health issues and gambling
addiction for the reasons to vary downward. 535 F.3d at 1001.
Again, are these mitigating factors that justify such a lenient
sentence?
I ask: Given that Whitehead took more than $1 million and
profited by some $400,000, in a calculated fraud, is no jail
time warranted? Given that Ruff took more than $600,000 in
a calculated fraud, over several years, is spending one day in
jail enough? Doubtless our society has a hard time paying for
all those imprisoned and doubtless those who aren’t impris-
oned might have a better chance at generating income to pay
victim restitution, but those are not sufficient reasons to
rubber-stamp leniency for criminals who are better placed in
society than the run-of-the-mill criminals who get a worse
deal from the sentencing judges.
This case puts the Ninth Circuit in what I consider to be a
conflict with several of our sister circuits who have adopted
a more vigorous approach to reviewing sentences for reason-
ableness. So far as I have been able to determine, the Ninth
Circuit has never found a sentence substantively unreasonable
after Gall in a published opinion. But some other circuits in
white collar crime cases have concluded after Gall that sen-
3130 UNITED STATES v. WHITEHEAD
tences were unreasonable when they contained significant
downward variances. See, e.g., United States v. Omole, 523
F.3d 691 (7th Cir. 2008) (reversing a 12 month custodial sen-
tence for a defendant convicted of wire fraud when the guide-
line range was 87-102 months, and the sentencing judge’s
explanation did not support a sentence so far below the
range); United States v. Hunt, 521 F.3d 636 (6th Cir. 2008)
(reversing a probationary sentence for health care fraud where
the Guideline range was 27-33 months).
To give such light sentences for such serious crime is an
affront to the premises of our criminal law system which rely
in part on punishment serving some purpose of general deter-
rent. Needless to say, the victims of these crimes could hardly
be expected uniformly to endorse a lack of incarceration.
Indeed, the Sentencing Commission, with its mandate from
Congress to foster uniformity and proportionality in sentenc-
ing, has expressed concern that before the Guidelines, “courts
sentence[d] to probation an inappropriately high percentage of
offenders guilty of certain economic crimes, such as theft, tax
evasion, antitrust offenses, insider trading, fraud, and embez-
zlement . . . .” U.S.S.G. § 1A1.1, Ch. 1, Pt. A.4(d) (2006).
Regrettably, Whitehead signals that we are returning to that
era of inappropriate sentences. Wilful offenders who commit
white collar crime, who steal intentionally hundreds of thou-
sands or even millions of dollars, should receive some degree
of forced incarceration. We know that often the poor and
powerless criminal defendants who commit common larceny
or theft will serve some hard time. The public, respecting our
legal system, may find it difficult to believe that our abuse of
discretion review with deference to trial court sentencing per-
mits us to conclude that persons who steal hundreds of thou-
sands of dollars in intentional schemes over long periods of
time will suffer little or no prison time.
I do not mean to sound harsh toward the criminal defen-
dants in white collar crime cases or to our district courts giv-
ing light sentences in such cases or to our panels that might
UNITED STATES v. WHITEHEAD 3131
be inclined to affirm them under the panel’s view of Gall, but
the reasons cited by the sentencing judges in Whitehead and
Ruff will exist in most white collar criminal cases. We can
hardly be surprised if criminals express remorse after they are
caught and are facing the consequences. We can hardly be
surprised if a white collar criminal has a good employment
history—otherwise, he or she would likely not be in a position
to commit the crime. Possibly for that reason, as I mentioned
in my Ruff dissent, “district courts sentencing white collar
criminals can more often identify with the criminal . . . . But,
socioeconomic comfort with a criminal convict is not a suffi-
cient reason to show extreme leniency . . . .” Ruff, 535 F.3d
at 1007 (Gould, J., dissenting).
Many judges will naturally hesitate to step forward with
views that might be characterized as being less than merciful
to a criminal defendant.1 I, for one, would not quarrel with
any reasonable variance from the advisory guidelines, and
disposition towards mercy alone might be enough. But there
have to be some limits and for me these limits are transcended
when persons who orchestrate massive white collar crimes are
given no or virtually no jail time.
If a district court in the Ninth Circuit need only cite one or
two of these predictable reasons to allow a white collar crimi-
nal to forgo jail time, these white collar criminals generally
won’t have much jail time. Under 18 U.S.C. § 3553(a), we
should be upholding sentences that will reflect the seriousness
of the offense, afford adequate deterrence and protect the pub-
lic. We should not, by inaction and excessive deference, be
inviting people to open up shop scamming law-abiding indi-
viduals or corporations out of hundreds of thousands or even
millions of dollars, and then accepting that if on conviction
1
We have it on the good authority of Cicero: “Nothing is more praise-
worthy and nothing more befitting a great and eminent [person] than pla-
cability and clemency.” Cicero, De officiis in The Ethical Writings of
Cicero, 55 (Andrew P. Peabody trans. 1887).
3132 UNITED STATES v. WHITEHEAD
they say that they are sorry, they need not serve any jail time.
Thomas Whitehead is no Charles Ponzi, but still to affirm a
sentence that gives a total pass from jail time is unwise.
REINHARDT, Circuit Judge, dissenting from the denial of
rehearing en banc:
We should have taken this case en banc for the reasons set
forth in Section II.A of Judge Bybee’s dissent. United States
v. Whitehead, 532 F.3d 991, 994-96 (9th Cir. 2008).
Although, in my view, the result reached in Whitehead was
not necessarily erroneous, the cursory nature of the review in
which the majority engaged surely was. The majority’s super-
ficial opinion reflects a fundamental misunderstanding of our
responsibility as appellate judges to conduct a serious exami-
nation of the sentencing decisions of district courts and to
reverse those sentences if they do not meet the standard of
“substantive reasonableness.” Gall v. United States, 128 S. Ct.
586, 597 (2007).
I regret that Judge Gould has chosen to limit his complaint
to the sentencing of white collar criminals and that he empha-
sizes a need for an increase in the length of sentences, if only
in their case. The problem with our sentencing policies these
days is quite the opposite: the sentences we impose are far too
harsh. Those harsh penalties fall all too often on the “poor and
powerless.” Dissent from Denial of Rehearing at 3130. Some
of the sentences federal courts impose are, indeed, both
absurd and inhumane. A fairly recent example is the sentence
handed down in United States v. Hungerford, 465 F.3d 1113
(9th Cir. 2006), a case in which we were compelled, on
account of our mandatory minimum sentencing regime (and
some unconscionable prosecutorial charging decisions) to
affirm “an immensely cruel, if not barbaric, 159-year sentence
[of] a severely mentally disturbed person who played a lim-
ited and fairly passive role in several robberies during which
UNITED STATES v. WHITEHEAD 3133
no one was physically harmed.” She was in addition a 52-
year-old first offender. Id. at 1119, 1120 (Reinhardt, J., con-
curring in the judgment). A one hundred and fifty-nine year
sentence?? The solution to our sentencing problem is, in my
view, to treat all defendants fairly, white collar and otherwise.
To that end, I am less concerned with our occasional defer-
ence to lenient district court sentencing decisions than with
our continuing obligation to ensure that sentences are not
unreasonably severe.
Appellate judges must play an important, though deferen-
tial, role in achieving this goal. I recognize that our ability to
do so is limited not only by the deference we must show to
sentencing judges but by the harsh sentencing policies Con-
gress has adopted, especially with respect to mandatory mini-
mum sentences. Still, district judges remain free in most cases
to follow the statutory principles Congress has established,
and to impose a sentence that is “sufficient, but not greater
than necessary,” taking into account, inter alia, “the nature
and circumstances of the offense and the history and charac-
teristics of the defendant.” 18 U.S.C. § 3553. The Supreme
Court has ruled, and fairness demands, that we must conduct
a serious review of the sentences imposed by district judges
to ensure that they are reasonable. We abdicate our responsi-
bility when we fail to do so — whoever the defendant may be,
and whatever the crime.
PRINTED FOR
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© 2009 Thomson Reuters/West.
|
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-55713
Plaintiff-Appellee, D.C. Nos. 3:16-cv-01455-GPC
3:12-cr-00236-GPC-12
v.
JULIO SOLORZANO, AKA Mowgli, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-55725
Plaintiff-Appellee,
D.C. Nos. 3:16-cv-01410-GPC
v. 3:12-cr-00236-GPC-16
JOSE CORNEJO, AKA Rabbit,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted May 15, 2019
Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,** District
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Judge.
Julio Solorzano and Jose Cornejo were charged with RICO conspiracy, in
violation of 18 U.S.C. § 1962(d), violent crimes in aid of racketeering (“VIAR”), in
violation of 18 U.S.C. § 1959(a), and discharging a firearm during a crime of
violence, in violation 18 U.S.C. § 924(c). The indictment alleged two predicate
crimes of violence for the § 924(c) charge: (1) the RICO conspiracy and (2) VICAR.
The jury found the defendants guilty of the RICO conspiracy and acquitted the
defendants of the VICAR charge, but nonetheless found they violated § 924(c),
returning a verdict finding them “guilty of discharge of a firearm . . . in relation to a
crime of violence, that is the violent crime in aid of racketeering.” The jury verdict
also found the defendants “guilty of brandishing a firearm . . . in relation to a crime
of violence, that is the RICO conspiracy” and “guilty of discharge of a firearm . . .
in relation to a crime of violence, that is the RICO conspiracy.”
The defendants subsequently filed motions under 28 U.S.C. § 2255
collaterally attacking their convictions, arguing that (1) the residual clause in
§ 924(c) was unconstitutional in light of Johnson v. United States, 135 S. Ct. 2551,
2563 (2015); (2) RICO conspiracy is not a crime of violence; and (3) “the violent
crime in aid of racketeering” jury finding could not serve as the predicate for their
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
2
§ 924(c) convictions, given their acquittal on the VICAR charges. The district court
denied the motions, finding that the jury’s verdicts established that the defendants
had committed the “violent crime in aid of racketeering” despite the acquittals on
the VICAR charges, and that the § 924(c) convictions were therefore supported by
the § 924(c) “force clause.” The defendants timely appealed. We dismiss the
appeals.
1. After the jury returned its verdicts, the defendants entered into
sentencing agreements with the government that “waive[], to the full extent of the
law, any right to appeal or to collaterally attack the conviction and sentence.” The
defendants did not argue below that the waivers were not knowing and voluntary.
Nor do they now assert any breach of the sentencing agreement. Indeed, the district
court made clear that but for the sentencing agreement, it might well have imposed
longer sentences than it did. Rather, the defendants argue that because an appeal
waiver generally does not extend to an “illegal sentence,” United States v. Torres,
828 F.3d 1113, 1125 (9th Cir. 2016), they can collaterally attack their § 924(c)
convictions despite the sentencing agreement because if their convictions are
improper, the sentences imposed are illegal. We reject that argument.
2. “[T]he phrase ‘illegal sentence’ has a precise legal meaning. An illegal
sentence is one ‘not authorized by the judgment of conviction’ or ‘in excess of the
permissible statutory penalty for the crime.’” United States v. Vences, 169 F.3d 611,
3
613 (9th Cir. 1999) (quoting United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.
1986)). It also includes a sentence that “violates the Constitution.” United States v.
Bibler, 495 F.3d 621, 624 (9th Cir. 2007). The definition of “illegal sentence” is
imported from this Court’s case law interpreting Federal Rule of Criminal Procedure
35(a), which allows a court to “correct an illegal sentence at any time.” See Fowler,
794 F.2d at 1448-49. Rule 35, however, does not authorize challenges to an
underlying conviction. See United States v. Johnson, 988 F.2d 941, 943 (9th Cir.
1993).
The defendants do not contend that their sentences are unauthorized under the
judgment of conviction or that the Constitution prohibits the sentences imposed.
Rather, they simply contend that the evidence adduced at trial does not support their
§ 924(c) convictions in light of subsequent Supreme Court law, and that the resulting
sentences are therefore illegal. But, if the “illegal sentence” exception were so
broadly construed, it would vitiate virtually all appeal and collateral attack waivers,
as any defendant who signed the waiver would be able to argue that his sentence was
illegal because he was incorrectly convicted. Enforcing the defendants’ knowing
and voluntary waivers of their right to collaterally attack their convictions, we
DISMISS their appeals.
4
|
709 S.W.2d 847 (1986)
David Michael WELLS, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
March 21, 1986.
Discretionary Review Denied and Opinion Ordered Published by Supreme Court June 3, 1986.
*848 Gene Lewter, Fayette County Legal Aid, Inc., Lexington, for appellant.
David L. Armstrong, Atty. Gen., Connie Malone, Asst. Atty. Gen., Frankfort, for appellee.
Before COMBS, DUNN and HOWARD, JJ.
HOWARD, Judge.
This Court granted discretionary review from a ruling of Fayette Circuit Court upholding on appeal the appellant's convictions for operating a motor vehicle under the influence of alcohol and driving under a suspended or revoked license.
The appellant was tried before the Fayette District Court sitting without a jury. The facts are essentially undisputed. The police found the appellant asleep behind the wheel of his van in a parking lot outside the Continental Inn in Lexington. The appellant was alone, the key was in the ignition, and the van's motor was running. The transmission was in neutral and the emergency brake was engaged. A case of beer was in the van with three of four cans missing and one empty can was found. The arresting officer detected the odor of alcohol on the appellant who, upon emerging from the van, was unsteady on his feet. The appellant failed a field sobriety test and a breathalyzer test administered to him showed a reading of .17.
The trial court ruled that the term "operate" in KRS 189A.010(1) encompassed the conduct of the appellant and convicted the appellant of operating a motor vehicle under the influence of alcohol and also of driving a motor vehicle with a revoked or suspended license. The appellant was sentenced to a prison term of nine months and fined $1,000 for operation under the influence. In addition, he was sentenced to six months in jail and fined $500 for driving with a revoked or suspended license. The jail terms were to be served concurrently. The conviction was appealed to the Fayette Circuit Court which upheld the appellant's conviction.
The appellant's principal contention is that his actions do not constitute operating a motor vehicle under KRS 189A.010(1).
KRS 189A.010(1) provides that "[n]o person shall operate a motor vehicle anywhere in this state while under the influence of alcohol or any other substance which may impair one's driving ability." The term "operate" is not defined in the statute, however KRS 189.010(6) defines "operator" as the person in actual physical control of the vehicle. Further, KRS 186.565(1), by which all persons operating a motor vehicle in Kentucky are deemed to consent to testing for blood alcohol content, also refers to the operation of a motor vehicle as "driving or actual physical control."
The court below relied on Newman v. Stinson, Ky., 489 S.W.2d 826 (1972), as the basis for its decision. In Newman, the defendant was arrested as he sat behind the steering wheel of his automobile nearly *849 "passed out." The automobile was stopped at an intersection with the motor running and had not moved although the light had changed several times. The question presented to the court was whether the officers had reasonable grounds to believe that the defendant was either driving the vehicle or in actual physical control of it that would provide cause for administering the breath analysis examination pursuant to KRS 186.565(1). The Court held that the circumstances of the defendant's arrest would reasonably support either belief. Thus, the Court concluded that "[i]n this case the appellee [defendant] may well have had very little control of himself but the motor vehicle was unquestionably subject to his control or lack of it as the case may have been." Id. at 828.
In DeHart v. Gray, Ky., 245 S.W.2d 434 (1952), cited in Newman, supra, the appellant was reported to the police for driving his truck in a dangerous manner. The police located the truck parked in the middle of the highway with the headlights on, the door open, and the motor running near a residence where the appellant was reported to be. The appellant staggered out of the residence, told the police the truck belonged to him and stepped on the vehicle's running board stating he would move the truck. The appellant was then arrested for drunken driving. Following disposition of the criminal charge, the appellant brought suit against the officers for false imprisonment. The appellant argued that the arrest was illegal because the officers had insufficient grounds for making an arrest without a warrant.
The Court pointed out there are numerous conflicting cases from other jurisdictions on what degree of conduct constitutes operation of a motor vehicle while under the influence of intoxicants. The Court stated that the appellant was in physical control of the truck when he left the truck in the middle of the road with the engine running and the lights on. Further, he continued to exercise control when he returned to the vehicle announcing that he intended to drive it. Thus, the Court concluded that the evidence of "operation" was sufficient to justify the arrest.
We do not find that Newman, supra, or DeHart, supra, provide any hard and fast rules for determining when a person's actions constitute operation of a motor vehicle. However, we think these cases, along with some decisions from other jurisdictions, will provide guidance in reaching any decision in the instant case. We find that a number of factors have been used in determining whether a person operated or was in actual physical control of a motor vehicle including: (1) whether or not the person in the vehicle was asleep or awake; (2) whether or not the motor was running; (3) the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and (4) the intent of the person behind the wheel. See Annot., 93 A.L.R.3d 7 (1979).
In People v. Pomeroy, 419 Mich. 441, 355 N.W.2d 98 (1984), the intoxicated defendant was found asleep in the driver's seat of a car legally parked outside a bar. The transmission was in neutral, the motor and heater were on, but the lights were off. The Court, under a statutory scheme virtually identical to Kentucky's, held that the defendant was not operating a motor vehicle while under the influence of alcohol. The Court reasoned that a person in the driver's seat of a car in motion may be operating the car although asleep or that an awake person in the driver's seat may be in such physical control of the vehicle that he is operating it although the car is motionless. However, the Court concluded that a sleeping person could not be operating a vehicle which is not moving. See State v. O'Malley, 120 N.H. 507, 416 A.2d 1387 (1980).
In most other jurisdictions where a sleeping person behind the steering wheel of a motionless car was held to be operating the motor vehicle, additional circumstances have been present that would show the person had in fact operated the vehicle. For example, in Jacobson v. State, 551 P.2d 935 (Alaska, 1976), the defendant was intoxicated and was found asleep in his *850 parked vehicle with the motor and heater running, but two wheels of the vehicle were situated on the highway and the other two were off the pavement. In State v. Lariviere, 2 Conn.Cir. 221, 197 A.2d 529 (1963), the defendant's car was found in a parking lot with its engine running and was obstructing traffic. The vehicle was not in a parking slot and the defendant was asleep in the driver's seat. The vehicle had apparently rolled or was driven from a parking space. See Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1974).
In the above cases, the vehicle in question could not have reached their locations without some form of operation. Further, the circumstances rendered it virtually impossible that anyone besides the respective defendants could have performed these maneuvers. Thus, one may reasonably conclude that various defendants did in fact operate these motor vehicles.
Although the Kentucky cases of Newman, supra, and DeHart, supra, do not deal with the precise issue of operation of a motor vehicle under KRS 189A.010(1), it is apparent that facts concerning the location of these vehicles and the means of arrival were important. In Newman, supra, the car was found stopped at an intersection with a person nearly asleep sitting in the driver's seat. In DeHart, supra, the vehicle was left in the middle of the road when the owner told the police that the vehicle was his and that he would move it. Thus, the respective vehicles must have been controlled by someone to reach their locations and it appeared certain that the persons charged exercised that control.
In the instant case, the van was in a parking lot in a parking space, thus, there was no evidence that he had driven or otherwise operated the vehicle while intoxicated to its location. It was also not shown that he planned to operate the vehicle. That inference is negated by the facts that the transmission was in neutral and the parking brake was engaged. Most importantly, he was asleep at the time. "A sleeping person is seldom operating anything." Pomeroy, supra, at 100. The only act clearly demonstrated was that the appellant started the van's engine. When viewed in light of the other circumstances, we do believe that merely starting the engine in the van was not an exercise of actual physical control as defined in the above cases.
The Commonwealth has the burden of proving each essential element of a crime beyond a reasonable doubt. Timmons v. Commonwealth, Ky., 555 S.W.2d 234 (1977). We think that the Commonwealth presented insufficient evidence of operation by the appellant to sustain a conviction under KRS 189A.010(1).
The appellant also seeks to have his conviction for driving with a revoked or suspended license overturned. However, no issues in regard to this conviction were raised in the appeal to Fayette Circuit Court nor did that court make any rulings concerning this question. Therefore, we will not consider any such issues upon discretionary review.
The judgment is reversed.
All concur.
|
FILED
AUG 12 2013
1
SUSAN M SPRAUL, CLERK
U.S. BKCY. APP. PANEL
2 OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. NC-12-1425-JuTaPa
)
6 ADALBERTO PEREZ JIMENEZ, ) Bk. No. 12-42231-WJL
)
7 Debtor. )
______________________________)
8 OLIVIA PEREZ, )
)
9 Appellant, )
)
10 v. ) M E M O R A N D U M*
)
11 ADALBERTO PEREZ JIMENEZ, )
)
12 Appellee. )
)
13 ______________________________)
14 Submitted Without Oral Argument on July 25, 2013
15 Filed - August 12, 2013
16 Appeal from the United States Bankruptcy Court
for the Northern District of California
17
Honorable William J. Lafferty, Bankruptcy Judge, Presiding
18 _______________________
19 Appearances: Appellant Olivia Perez pro se on brief; Peter
Christopher Pappas, Esq., on brief for appellee
20 Adalberto Perez Jimenez.
_________________________
21
Before: JURY, TAYLOR, and PAPPAS, Bankruptcy Judges.
22
23
24
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8013-1.
-1-
1 Appellant, Olivia Perez, filed a proof of claim (POC) in
2 the chapter 131 case of her former husband, Adalberto Perez
3 Jimenez (Adalberto or debtor). Olivia’s POC asserted a domestic
4 support obligation for $245,000 entitled to priority under
5 § 507(a)(1)(A). Debtor objected to her claim on the ground that
6 it represented an equalizing payment rather than a claim for
7 support. The bankruptcy court sustained debtor’s objection,
8 finding that Olivia’s claim was a general unsecured claim. This
9 appeal followed. We AFFIRM.
10 I. FACTS
11 Adalberto was married to Olivia for approximately ten
12 years. In December 2012, they divorced and entered into a
13 martial settlement agreement (MSA). Both parties were
14 represented by counsel. Under the MSA, each party gave up the
15 right to receive spousal support from the other. The MSA also
16 contained an equalizing payment of $245,000 whereby Adalberto
17 would pay Olivia that amount by making monthly payments ranging
18 from $750 to $1,300 until the amount was paid. Adalberto made
19 some payments under the agreement.
20 On March 12, 2012, Adalberto filed his chapter 13 petition.
21 He listed Olivia on Schedule E as a creditor holding a domestic
22 support obligation and asserted that he was current on the
23 payments.
24 Debtor’s chapter 13 plan was a stepped-up five-year plan
25
26 1
Unless otherwise indicated, all chapter and section
27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532 and
“Rule” references are to the Federal Rules of Bankruptcy
28 Procedure.
-2-
1 with a 4% dividend to general unsecured claims. It also paid
2 priority claimants under § 507 in full. The chapter 13 trustee
3 objected to debtor’s plan because he could not complete it
4 within sixty months if Olivia’s $245,000 claim was entitled to
5 priority.2
6 Debtor then objected to Olivia’s POC on the grounds that it
7 failed to take into consideration the amounts he had paid and
8 that the MSA made clear that (1) no spousal support payments
9 were due and (2) the $245,000 amount was an equalizing payment.
10 In response, Olivia argued that although the MSA indicated there
11 were no further spousal obligations, that provision was not
12 determinative on the issue under the holding in Friedkin v.
13 Sternberg (In re Sternberg), 85 F.3d 1400 (9th Cir. 1996),
14 overruled on other grounds by Murray v. Bammer (In re Bammer),
15 131 F.3d 788, 792 (9th Cir. 1997) (en banc). Olivia also
16 submitted a declaration stating that at the time of her
17 separation from debtor, she had not worked for three years and
18 that debtor’s payments to her pursuant to the MSA were intended
19 to assist her in getting back on her feet.
20 On July 18, 2012, the bankruptcy court heard the matter
21 and sustained debtor’s objection. Olivia filed her notice of
22 appeal on August 14, 2012. On November 29, 2012, the bankruptcy
23 court entered the order sustaining debtor’s objection to
24
25 2
Section 1322(a)(2) requires that the plan “provide for the
26 full payment . . . of all claims entitled to priority under
section 507 of [title 11]. . . .” Thus, if an equalizing payment
27 is a “domestic support obligation,” it must be paid in full
through the debtor’s chapter 13 plan, unless the former spouse
28 agrees otherwise.
-3-
1 Olivia’s POC. Accordingly, Olivia’s appeal was timely. See
2 Rule 8002(a) (providing that a notice of appeal filed after
3 announcement of bankruptcy court’s decision, but before entry of
4 an order, is to be treated as filed after such entry).
5 II. JURISDICTION
6 The bankruptcy court had jurisdiction over this proceeding
7 under 28 U.S.C. §§ 1334 and 157(b)(2)(A) and (B). We have
8 jurisdiction under 28 U.S.C. § 158.
9 III. ISSUE
10 Whether the bankruptcy court erred when it determined that
11 the equalizing payment was not a domestic support obligation
12 entitled to priority status under § 507(a)(1)(A).3
13 IV. STANDARDS OF REVIEW
14 We review mixed questions of law and fact de novo.
15 Wechsler v. Macke Int’l Trade, Inc. (In re Macke Int’l Trade,
16 Inc.), 370 B.R. 236, 245 (9th Cir. BAP 2007). A mixed question
17 exists when the facts are established, the rule of law is
18 undisputed, and the issue is whether the facts satisfy the legal
19 standard. In re Bammer, 131 F.3d at 792. Thus, whether a claim
20 is entitled to priority status is a mixed question of law and
21
22 3
Olivia has framed the issue on appeal as whether
23 equalization payments between spouses are dischargeable. While a
debt of the kind described in § 523(a)(15) is nondischargeable in
24 chapters 7, 11 and 12, the expanded discharge provided for in
chapter 13 cases covers debts such as this. Therefore, if the
25 equalization payment is not a domestic support obligation, it
26 would constitute a debt under § 523(a)(15), and could be
discharged in debtor’s chapter 13, even if not paid. However, to
27 obtain a discharge, a chapter 13 debtor must complete all
payments under the plan unless certain exceptions are found to
28 apply. See § 1328.
-4-
1 fact that we review de novo.
2 Our review of a mixed question begins by ascertaining
3 whether the bankruptcy court committed clear error in its
4 findings of fact. In the context of this appeal, we review the
5 bankruptcy court’s factual determination that the debt was not
6 based on spousal support for clear error. Beaupied v. Chang
7 (In re Chang), 163 F.3d 1138, 1140 (9th Cir. 2000) (Whether a
8 debt is actually in the nature of support is a “factual
9 determination made by the bankruptcy court as a matter of
10 federal bankruptcy law.”). “A finding is ‘clearly erroneous’
11 when although there is evidence to support it, the reviewing
12 court on the entire evidence is left with the definite and firm
13 conviction that a mistake has been committed.” United States v.
14 U.S. Gypsum Co., 333 U.S. 364, 395 (1948). “A court’s factual
15 determination is clearly erroneous if it is illogical,
16 implausible, or without support in the record.” Retz v. Samson
17 (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010) (citing United
18 States v. Hinkson, 585 F.3d 1247, 1261–62 & n.21 (9th Cir. 2009)
19 (en banc)).
20 The next step in our review of a mixed question is
21 determining whether the facts satisfy a legal rule. This is a
22 matter of statutory construction. We review a bankruptcy
23 court’s statutory construction and conclusions of law, including
24 interpretation of provisions of the Bankruptcy Code, de novo.
25 Einstein/Noah Bagel Corp. v. Smith (In re BCE W., L.P.),
26 319 F.3d 1166, 1170 (9th Cir. 2003). We therefore review de
27 novo the bankruptcy court’s determination that a debt does not
28 constitute a domestic support obligation within the meaning of
-5-
1 § 507(a)(1)(A). De novo means review is independent, with no
2 deference given to the trial court’s conclusion. See Rule 8013.
3 V. DISCUSSION
4 Section 507(a)(1), enacted as part of the Bankruptcy Abuse
5 Prevention and Consumer Protection Act of 2005 (“BAPCPA”),
6 provides first priority status for a debt which is a domestic
7 support obligation. Section 507(a)(1)(A) provides: “The
8 following expenses and claims have priority in the following
9 order: (1) First: (A) Allowed unsecured claims for domestic
10 support obligations that, as of the date of the filing of the
11 petition in a case under this title, are owed to or recoverable
12 by a . . . former spouse. . . .”
13 The term “domestic support obligation” is defined in
14 § 101(14A):
15 a debt that accrues before, on, or after the date of
the order for relief in a case under this title,
16 including interest that accrues on that debt as
provided under applicable nonbankruptcy law
17 notwithstanding any other provision of this title,
that is—
18
(A) owed to or recoverable by—
19
(i) a spouse, former spouse, or child of the debtor or
20 such child’s parent, legal guardian, or responsible
relative; or
21
. . .
22
(B) in the nature of alimony, maintenance, or support
23 (including assistance provided by a governmental unit)
of such spouse, former spouse, or child of the debtor
24 or such child’s parent, without regard to whether such
debt is expressly so designated;
25
(C) established or subject to establishment before,
26 on, or after the date of the order for relief in a
case under this title, by reason of applicable
27 provisions of—
28 (i) a separation agreement, divorce decree, or
-6-
1 property settlement agreement; [or]
2 (ii) an order of a court of record; or
3 (iii) a determination made in accordance with
applicable non-bankruptcy law by a governmental unit;
4 and
5 (D) not assigned to a nongovernmental entity, unless
that obligation is assigned voluntarily by the spouse,
6 former spouse, child of the debtor, or such child's
parent, legal guardian, or responsible relative for
7 the purpose of collecting the debt.
8 Our review of the MSA shows that the equalizing payment at
9 issue here is a debt (1) that accrued before the order for
10 relief in debtor’s chapter 13 case, (2) that is owed to his
11 former spouse, Olivia, (3) that was established prepetition by
12 reason of applicable provisions of a “divorce decree . . . or
13 property settlement agreement,” and (4) that has not been
14 assigned to a nongovernmental entity. The only issue in dispute
15 is whether the equalizing payment is “in the nature of alimony,
16 maintenance, or support.”
17 Whether a debt is actually in the nature of support is a
18 “factual determination made by the bankruptcy court as a matter
19 of federal bankruptcy law.” In re Chang, 163 F.3d at 1140. “In
20 determining whether a debtor’s obligation is in the nature of
21 support, the intent of the parties at the time the settlement
22 agreement is executed is dispositive.” In re Sternberg, 85 F.3d
23 at 1405.
24 A trial court should consider several factors in
determining how the parties intended to characterize
25 the obligation. Foremost, the trial court should
consider whether the recipient spouse actually needed
26 spousal support at the time of the divorce. In
determining whether spousal support was necessary, the
27 trial court should examine if there was an ‘imbalance
in the relative income of the parties’ at the time of
28 the divorce decree. The trial court should also
-7-
1 consider whether the obligation terminates upon the
death or remarriage of the recipient spouse and
2 whether the payments are ‘made directly to the
recipient spouse and are paid in installments over a
3 substantial period of time.’ Finally, the labels
given to the payments by the parties may be looked at
4 as evidence of the parties’ intent.
5 Id.
6 Here, we can proceed no further with our review because
7 Olivia failed to provide the transcript of the July 28, 2012
8 hearing, where the bankruptcy court announced its oral findings
9 and conclusions. Rule 8009(b) requires an appellant to file an
10 appendix to her brief with excerpts of the record, including a
11 transcript of the opinion, findings of fact, or conclusions of
12 law delivered orally by the court. On November 23, 2012, the
13 Panel issued an Order re Prosecution of Appeal which warned
14 Olivia of the consequences of her failure to provide a
15 transcript. Despite this notice, Olivia failed to respond.
16 Olivia had the burden of showing the bankruptcy court’s
17 findings of fact were clearly erroneous. See Massoud v. Ernie
18 Goldberger & Co. (In re Massoud), 248 B.R. 160, 163 (9th Cir.
19 BAP 2000). We may affirm where the record is inadequate to show
20 clear error, see Friedman v. Sheila Plotsky Brokers, Inc.
21 (In re Friedman), 126 B.R. 63, 68 (9th Cir. BAP 1991), and we do
22 so here.
23 VI. CONCLUSION
24 For the reasons stated, we AFFIRM.
25
26
27
28
-8-
|
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
BRUD ROSSMANN, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-0977 (ESH)
)
CHASE HOME FINANCE LLC, ET AL. )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Brud Rossmann brings this action pro se 1 against defendants Chase Home
Finance, LLC, Chase Manhattan Mortgage Corporation, and Chase Manhattan Bank, USA N.A.
(“defendants”), alleging that during the course of the parties’ mortgage servicing relationship,
defendants allegedly misapplied his property tax payments, thereby causing the foreclosure of
his property. Before the Court is defendants’ Joint Motion to Dismiss, which the Court will
grant for the reasons explained herein.
BACKGROUND
Despite the fact that plaintiff is a 1989 graduate of Harvard Law School, his Amended
Complaint is complex, garbled, and accompanied by hundreds of “exhibits,” which appear to
1
Although plaintiff is proceeding pro se, he is an attorney and an experienced litigant.
Therefore, plaintiff “is not automatically subject to the very liberal standards afforded to a non-
attorney pro se plaintiff because an attorney is presumed to have a knowledge of the legal system
and need less protections from the court.” Richards v. Duke Univ., 480 F. Supp. 2d 222, 234
(D.D.C. 2007), aff’d, No. 07-5119, 2007 U.S. App. LEXIS 30275 (D.C. Cir. Aug. 27, 2007).
have been assembled in no particular order. 2 The Court has waded through these documents
(hereafter “Amend. Compl.”) and has gleaned the following pertinent facts.
Plaintiff Brud Rossmann, who currently resides in the District of Columbia and the State
of New York, purchased property at 2321 Sawtooth Oak Court, Vienna, Virginia 22182 (also
referred to as “Lot 8, Cedar Lane”) on or about September 8, 2000. (Amend. Compl. Glossary
¶¶ 1, 10; Amend. Compl. ¶¶ 6, 14) Defendants allegedly serviced the mortgage for this property
from approximately 2000 until the property was sold in May 2003. (Amend. Compl. ¶¶ 8.1-8.5.)
Plaintiff alleges that defendants “violated various [unspecified] Deed of Trust provisions” and
“leveraged” an estimated $170,000 of plaintiff’s cash “as de facto real estate development
financing without plaintiff’s consent.” (Id. ¶¶ 15, 16.) In addition, plaintiff alleges that his tax
payments made to Chase over several years “were not used for payment against Plaintiff’s
property or properties, including critical property tax payments that slipped into delinquency or
foreclosure without notice” (Id. ¶ 21.) Consequently, “this failure to apply such funds”
allegedly “forced one or more such properties into foreclosure, beginning in 2002” (Id.) In
addition, plaintiff charges that defendants “refused to account or provide related documentation”
regarding the “cash balances paid by Plaintiff that extended into mid-2004 and beyond.” (Id. ¶
26.) Finally, plaintiff accuses defendant of engaging “in litigation and third-party transactions in
Plaintiff’s name . . . without due or any authorization to the direct prejudice of Plaintiff.” (Id. ¶
28.)
2
Indeed, many of plaintiff’s submissions (for example, a veterinary bill for a 75-pound black
Labrador) appear to be completely irrelevant to this case.
2
ANALYSIS
I. PERSONAL JURISDICTION
Among its many meritorious arguments, defendants argue that the case should be
dismissed for lack of personal jurisdiction.
Under Federal Rule of Civil Procedure 12(b)(2), a plaintiff bears the burden of
establishing a factual basis for personal jurisdiction over the defendants. 3 See Crane v. N.Y.
Zoological Society, 894 F.2d 454, 456 (D.C. Cir. 1990). The Court need not treat all of the
plaintiff's allegations as true when determining whether personal jurisdiction exists over the
defendant. Instead, the Court “may receive and weigh affidavits and any other relevant matter to
assist it in determining the jurisdictional facts.” United States v. Philip Morris, Inc., 116
F. Supp. 2d 116, 120 n.4 (D.D.C. 2000) (citing 5A Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 1351 (1990)). However, the Court should resolve any factual
discrepancies with regard to the existence of personal jurisdiction in favor of the plaintiff. See
Crane, 894 F.2d at 456.
The D.C. Court of Appeals has set forth a two-part inquiry for establishing personal
jurisdiction over a nonresident defendant. First, a court must “examine whether jurisdiction is
applicable under the state's long-arm statute,” and second, “determine whether a finding of
jurisdiction satisfies the constitutional requirements of due process.” GTE New Media Servs. v.
BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000).
3
Plaintiff argues that Defendants’ use of the word “national” in its corporate name, combined
with its “multi-State” operations somehow require the Court to “presume” personal jurisdiction
at the motion to dismiss stage. (Plaintiff’s Opposition to Joint Motion to Dismiss [“Opp.”] at 34-
35.) This is not the law. See, e.g., Second Amendment Found. v. U.S. Conference of Mayors,
274 F.3d 521, 523-24 (D.C. Cir. 2001) (plaintiff must allege specific acts connecting the
defendant with the forum).
3
In the District of Columbia, there are three statutory bases for the exercise of personal
jurisdiction over a corporation. The plaintiff may establish “general” personal jurisdiction
against resident corporations under D.C. Code Section 13-422, 4 or against foreign corporations
under D.C. Code Section 13-334(a). 5 The plaintiff may establish “specific” personal jurisdiction
under D.C. Code Section 13-423, the District of Columbia’s long-arm statute.
Defendants argue that this Court lacks general jurisdiction over them, as none of them are
residents of D.C. and plaintiff has made no allegation to the contrary. (Joint Motion to Dismiss
[“Mot.”] at 9; Amend. Compl. at p.1 (caption) and ¶ 8.) Defendants are citizens of Delaware
and/or New Jersey, and while plaintiff claims that certain defendants were at times “based” in
Ohio and Arizona (Amend. Compl. ¶ 8), at no time does he allege, let alone establish, that any
defendant is “domiciled in, organized under the laws of, or maintain[s] . . . its principal place of
business in, the District of Columbia.” D.C. Code § 13-422. As such, personal jurisdiction
cannot be based on Section 13-422.
Nor may plaintiff look to Section 13-334(a) for general personal jurisdiction. Regardless
of whether defendants were “doing business in the District,” plaintiff may not invoke Section 13-
334(a) as the basis for personal jurisdiction against a foreign corporation unless the corporation
has been served within the District of Columbia. Everett v. Nissan Motor Corp., 628 A.2d 106,
108 (D.C. 1993) (“specific jurisdictional requirement of D.C. Code § 13-334(a) that service be
4
“A District of Columbia court may exercise personal jurisdiction over a person domiciled in,
organized under the laws of, or maintaining his or its principal place of business in, the District
of Columbia as to any claim for relief.” D.C. Code § 13-422.
5
“In an action against a foreign corporation doing business in the District, process may be served
on the agent of the corporation or person conducting its business, or, when he is absent and can
not be found, by leaving a copy at the principal place of business in the District, or, where there
is no such place of business, by leaving a copy at the place of business or residence of the agent
in the District, and that service is effectual to bring the corporation before the court.” D.C. Code
§ 13-334(a).
4
made in the District of Columbia”); Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 514
(D.C. Cir. 2002) (“Where the basis for obtaining jurisdiction over a foreign corporation is § 13-
334(a), . . . a plaintiff who serves the corporation by mail outside the District is ‘foreclosed from
benefitting from [the statute’s] jurisdictional protection.’” (quoting Everett, 628 A.2d at 108)).
It is also clear that plaintiff has not met his burden of showing specific personal
jurisdiction over defendants under the long-arm statute, which provides in relevant part:
(a) A District of Columbia court may exercise personal
jurisdiction over a person, who acts directly or by an agent, as to a
claim for relief arising from the person's --
(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of
Columbia;
(3) causing tortious injury in the District of Columbia by an
act or omission in the District of Columbia;
(4) causing tortious injury in the District of Columbia by an
act or omission outside the District of Columbia if he
regularly does or solicits business, engages in any other
persistent course of conduct, or derives substantial revenue
from goods used or consumed, or services rendered, in the
District of Columbia;
D.C. Code § 13-423(a). Section 13-423 makes clear that, where jurisdiction is predicated solely
upon the long-arm statute, “only a claim for relief arising from acts enumerated in this section
may be asserted against him.” D.C. Code § 13-423(b). Plaintiff has failed to allege any facts
that would establish personal jurisdiction under the long-arm statute, and having carefully
reviewed plaintiff’s lengthy complaint, his opposition to defendants’ motion to dismiss, and a
veritable basket of miscellaneous (and often meaningless) documents, it is clear that none of the
allegations in this case relate in any way to the District of Columbia. This case arises out of the
alleged conduct of three Delaware and New Jersey entities regarding property in the
5
Commonwealth of Virginia. 6 (Amend. Compl. Glossary ¶ 1; Amend. Compl. ¶ 8.) Plaintiff’s
claims do not arise out of any transaction or contract to supply services in the District of
Columbia, and no tortious conduct is alleged to have occurred here. (See Amend. Compl.)
Furthermore, the complaint alleges no facts to establish that plaintiff suffered any injury in the
District of Columbia. Plaintiff’s assertion that he is “now residing in the District of Columbia
and the State of New York” (Amend. Compl. ¶ 6) is insufficient to establish jurisdiction under
the long-arm statute. An economic injury does not occur “in the District of Columbia” simply
because plaintiff is a resident. Helmer v. Doletskaya, 393 F.3d 201, 208-09 (D.C. Cir. 2004)
(citing interpretations of similar language in New York and Colorado long-arm statutes). Rather,
the situs of economic injury is the location of the original event which caused the injury, not the
location where the resultant damages are subsequently felt by the plaintiff. Id. Moreover,
defendants correctly point out that the “D.C. based correspondence” variously referred to by
plaintiff is insufficient, standing alone, to support personal jurisdiction under the long-arm
statute. (Opp. at 33, 37.) See Dove v. United States, No. 86-cv-0065, 1987 WL 18739, at *3
(D.D.C. Oct. 9, 1987) (“An act within the district will not confer jurisdiction if it is of ‘minimal
significance’ to the transaction as a whole.”); Mitchell Energy Corp. v. Mary Helen Coal Co.,
524 F. Supp. 558, 564 (D.D.C. 1981) (“Exchange of letters and telephone communications with
a party in the District of Columbia alone is not considered a jurisdictionally significant contact
by District of Columbia courts.”).
6
Indeed, plaintiff filed suit against defendants in 2008 in the Eastern District of Virginia,
alleging six claims which also arose from the same mortgage servicing relationship with plaintiff
with regard to the same property, deed of trust, and foreclosure as those at issue here. All of
plaintiff’s claims were dismissed on September 3, 2008, pursuant to Rule 12(b)(6) for failure to
state a claim upon which relief can be granted. See Rossmann v. Lazarus, No. 1:08-cv-0316,
2008 U.S. Dist. LEXIS 68408 (E.D. Va. Sept. 3, 2008).
6
Plaintiff’s claims must therefore be dismissed pursuant to Rule 12(b)(2) for lack of
personal jurisdiction. 7
II. VENUE
Even if plaintiff could establish personal jurisdiction over defendants, which he has not,
defendants argue that the case should be dismissed for improper venue under Federal Rule of
Civil Procedure 12(b)(3). The Court agrees.
As a preliminary matter, venue must be determined pursuant to 28 U.S.C. § 1391(a), as
subject-matter jurisdiction here is founded only on diversity of citizenship. 8 Accordingly, venue
is proper only in:
(1) a judicial district where any defendant resides, if all defendants
reside in the same State,
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated, or
(3) a judicial district in which any defendant is subject to personal
jurisdiction at the time the action is commenced, if there is no
district in which the action may otherwise be brought.
28 U.S.C. § 1391(a). As previously noted, defendants neither reside in the District of Columbia
nor are subject to personal jurisdiction here. Furthermore, the District appears to have almost no
connection to this case whatsoever, and can in no way be said to be the location of “a substantial
7
As plaintiff has failed to establish a valid statutory basis for personal jurisdiction, the Court
need not address whether a finding of jurisdiction satisfies the constitutional requirements of due
process.
8
Plaintiff’s allegations that subject-matter jurisdiction also exists pursuant to federal question
jurisdiction, 28 U.S.C. § 1332, civil rights and elective franchise jurisdiction, 28 U.S.C. § 1343,
and supplemental jurisdiction, 28 U.S.C. § 1367, are without merit. The Amended Complaint’s
two counts—unjust enrichment and constructive trust—are common-law based actions, and do
not properly fall within either federal question or 28 U.S.C. § 1343 jurisdiction. (See Amend.
Compl.) Accordingly, supplemental jurisdiction is inapplicable here. See 28 U.S.C. § 1367.
7
part of the events or omissions” giving rise to the plaintiff’s claims. Moreover, the property that
is the subject of the action is situated in Virginia, not the District. The case will therefore be
dismissed for improper venue pursuant to Rule 12(b)(3). 9
CONCLUSION
For the foregoing reasons, the Court grants defendants’ motion to dismiss. Plaintiff’s
assorted motions to stay the litigation are denied as moot. A separate order accompanies this
Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: March 25, 2011
9
Defendants also argue that the Court should dismiss plaintiff’s claims pursuant to Federal Rule
of Civil Procedure 12(b)(6) as time-barred under the applicable statute of limitations and barred
by res judicata, having already been dismissed by the United States District Court for the Eastern
District of Virginia. (Mot. at 6-8.) It is unnecessary to address these arguments in light of the
Court’s holding that this case must be dismissed for lack of personal jurisdiction and venue.
8
|
190 Cal.App.3d 41 (1987)
235 Cal. Rptr. 223
THE PEOPLE, Plaintiff and Respondent,
v.
STEVEN GARY HOWARD, Defendant and Appellant. In re STEVEN GARY HOWARD on Habeas Corpus.
Docket Nos. D002206, D003300.
Court of Appeals of California, Fourth District, Division One.
March 10, 1987.
*42 COUNSEL
Gary Nelson, under appointment by the Court of Appeal, for Defendant and Appellant and Petitioner.
John K. Van de Kamp, Attorney General, John W. Carney, Michael D. Wellington and Frederick R. Millar, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[1]]
OPINION
WIENER, Acting P.J.
Steven Howard was convicted by a jury of false imprisonment by violence, menace, fraud or deceit (Pen. Code, §§ 236, 237[2]), forcible oral copulation (§ 288a, subd. (c)), forcible sodomy (§ 286, subd. (c)), spousal rape (§ 262, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)), all committed against his estranged wife, Verdise.[3] He *43 was sentenced to a total term of 12 years in prison. He appeals from the judgment and also petitions for writ of habeas corpus, which has been consolidated for disposition with this appeal.
Steven contends that there were repeated instances of prosecutorial misconduct, erroneous jury instructions and a failure to give him a Miranda warning before an interrogation. His petition for writ of habeas corpus alleges ineffective assistance of counsel. We have concluded that Steven's claims on appeal fail to establish the existence of any prejudicial error at trial and accordingly affirm the judgment. As to his writ petition, although it appears to state a prima facie case of ineffective assistance by virtue of trial counsel's failure to move to suppress certain evidence, we are required by the governing standard of Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674, 104 S.Ct. 2052] to ascertain the likelihood that any error committed by trial counsel actually contributed to the verdict. Applying that standard, we conclude there is no reasonable probability that the jury would have reached a different verdict had the challenged evidence been suppressed. Accordingly, we also deny Steven's habeas corpus petition.
FACTUAL BACKGROUND
Steven and Verdise Howard were married on August 31, 1980. They physically separated and began living in separate residences in March of 1983.
On July 15, 1983, Verdise contacted Steven to arrange to pick up a child support check from him. She arrived at Steven's residence at approximately 9 o'clock that evening. After writing the check and handing it to her, Steven demanded that she disrobe. When Verdise refused, Steven produced a knife and again ordered her to take off her clothes. Verdise disrobed and pulled on Steven's penis. He reacted by slashing the knife at her, causing several superficial cuts on her hands.
Steven ordered Verdise onto the bed and placed her in handcuffs which were attached to the bedframe. He then forced her to engage in a variety of sex acts. At her earliest opportunity Verdise fled the apartment clad only in a bath towel and reported the offenses to the police.
At about the same time, Steven called the 911 emergency operator, explaining that he had just "assaulted" his wife. He said, "I'm not proud of what I did" and asked the operator to "tell them I'm sorry and that I'll make everything all right." He then indicated he was attempting to commit suicide by slashing his wrists.
Following the call, officers were dispatched to Steven's residence. After receiving no response to their knock, they entered the apartment through *44 the unlocked door and found Steven in the kitchen holding a box cutter. He threatened to kill himself if they came any closer. One of the officers was able to subdue Steven using mace and he was then taken to the hospital. A search of the apartment yielded, among other things, a knife, a pair of handcuffs and some bloodstained bedding.
At the hospital, Steven waived his Miranda rights and agreed to talk with Officer Bigbie. When asked what happened that night, Steven replied that he "was tired of being fucked with." Asked to elaborate on the events leading up to the incident, he related the following: "I said, `Hey baby, how about a little for old times sake?' She said, `Fuck you in the ass.' ... [After that] I don't remember, I just freaked out."
Steven testified at trial that he had engaged in consensual sex with Verdise that night, but that they had begun to argue about a child custody matter afterwards. Verdise attacked Steven with a knife and it was while he was attempting to disarm her that she had been cut.
DISCUSSION
I-III[*]
.... .... .... .... ....
IV
WRIT PETITION
(1) In his petition for writ of habeas corpus, Steven alleges ineffective assistance of counsel based on his trial attorney's failure to move to suppress the incriminating evidence obtained by the police as a result of a warrantless search of his residence following his being maced by one of the officers. Not only was the evidence itself incriminating but the locations where it was found allowed the prosecutor to argue to the jury that Steven intentionally concealed the evidence and thereby demonstrated consciousness of his guilt.
The record provides no satisfactory explanation for counsel's failure to move to suppress the evidence. Normally under such circumstances we would issue the writ to enable the superior court to conduct an evidentiary hearing at which defense counsel would be afforded the opportunity to explain his conduct. (See People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal. Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) Citing Strickland v. *45 Washington, supra, 466 U.S. 668 and People v. Ledesma (1987) 43 Cal.3d 171 [233 Cal. Rptr. 404, 729 P.2d 839], however, the People urge that such an evidentiary hearing is unnecessary because there is no "reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694 [80 L.Ed.2d at p. 698]; Ledesma, supra, 43 Cal.3d at pp. 217-218.) In support of this argument, the People point to a variety of other evidence in the case in particular Steven's statements to Officer Bigbie and the 911 operator which they suggest makes it unlikely the jury would have reached a different conclusion even had the seized evidence been excluded.
This is the second opinion we have filed in this case. In the original decision, we accepted the People's contention that the effect of counsel's omission must be inquired into but concluded that the "reasonable probability" standard was an inappropriate test to use in making such an evaluation. We reasoned as follows: "It is well established that a criminal conviction cannot be affirmed unless any federal constitutional errors in the procedures leading to the conviction are determined to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].) Thus, an error in admitting evidence seized in violation of the Fourth Amendment must be judged by the Chapman standard. (People v. Ratliff (1986) 41 Cal.3d 675, 688 [224 Cal. Rptr. 705, 715 P.2d 665]; People v. Minjares (1979) 24 Cal.3d 410, 424 [153 Cal. Rptr. 224, 591 P.2d 514].) Here, acceptance of the People's argument would result in the following anomalous situation: if defense counsel failed to move to suppress illegally seized evidence, a reversal would only be warranted if it was reasonably probable a different result would have been reached had the evidence been excluded; however, if defense counsel made the motion but the court erroneously denied it, the conviction would be reversed unless the reviewing court was convinced beyond a reasonable doubt that the illegally seized evidence did not contribute to the verdict. In the two situations, the evidence before the jury is exactly the same. We believe logic requires that the standard of review be the same as well."
Our original opinion was filed on June 19, 1986. Seven days later, on June 26, the United States Supreme Court issued its decision in Kimmelman v. Morrison (1986) 477 U.S. 365 [91 L.Ed.2d 305, 106 S.Ct. 2574], which directly affects the issue of the appropriate standard of prejudice. By the time the Attorney General became aware of the substance of Kimmelman, our jurisdiction to grant a rehearing had already expired. (See Cal. Rules of Court, rules 24(a) and 27(a).) Quite appropriately, he then petitioned the California Supreme Court for review, suggesting that the case be retransferred to this court for reconsideration in light of Kimmelman. The Supreme Court's order to that effect was filed on October 2, 1986.
*46 Kimmelman involved facts remarkably similar to this case. In a prosecution for rape, the state introduced physical evidence consisting of a bedsheet seized from the defendant's apartment without a warrant several hours after the rape. Semen stains and hairs found on the sheet were consistent with the defendant having committed the rape. Because of his failure to pursue any pretrial discovery, defense counsel was unaware of the existence of the sheet and therefore failed to file a suppression motion within the time limits prescribed by the New Jersey court rules.
Following the affirmance of his conviction by the New Jersey state courts, defendant sought federal habeas corpus relief on the grounds of ineffective assistance of counsel. The precise issue before the U.S. Supreme Court was whether the rule of Stone v. Powell (1976) 428 U.S. 465 [49 L.Ed.2d 1067, 96 S.Ct. 3037] precluding federal habeas corpus review of Fourth Amendment claims applied equally to Sixth Amendment claims of ineffective assistance where counsel's alleged error was the failure to timely file a motion to suppress evidence seized in violation of the Fourth Amendment. The court held that it did not, focussing on what it perceived to be significant differences between Fourth and Sixth Amendment claims. (477 U.S. at p. ___ [91 L.Ed.2d at pp. 318-324, 106 S.Ct. at pp. 2582-2587].) In doing so, the court specifically observed that the Strickland "reasonable probability" test for prejudice was the appropriate standard by which to evaluate counsel's failure to bring a suppression motion. (Id. at p. ___ [91 L.Ed.2d at p. 319, 106 S.Ct. at p. 2583].) If that weren't enough, a footnote in Justice Brennan's opinion touched on the precise issue which concerned us in our earlier decision. Responding to the suggestion that defense attorneys might "consciously default or poorly litigate their clients' Fourth Amendment claims in state court in the hope of gaining more favorable review of these claims in Sixth Amendment federal habeas proceedings," the court stated: "[W]hen an attorney chooses to default a Fourth Amendment claim, he also loses the opportunity to obtain direct review under the harmless-error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which requires the State to prove that the defendant was not prejudiced by the error. By defaulting, counsel shifts the burden to the defendant to prove that there exists a reasonable probability that, absent his attorney's incompetence, he would not have been convicted...." (477 U.S. at p. ___, fn. 7 [91 L.Ed.2d at p. 324, 106 S.Ct. at p. 2587].)
Kimmelman thus makes abundantly clear the Supreme Court intends that a counsel's failure to bring an appropriate suppression motion should only result in a new trial if the Strickland "reasonable probability" standard is satisfied. We might have preferred that in reaching this conclusion, the Court discuss the factors which make it willing to tolerate a greater likelihood of error in the outcome where the mistake is defense counsel's rather than that *47 of the trial judge. Nonetheless, with or without explanation, we are not free to substitute our view for that of the United States Supreme Court in matters concerning the proper interpretation of the Sixth Amendment.
Steven argues that we are authorized to prescribe a more stringent standard of review under California law. It is true the defendant's right to effective assistance of counsel in California is premised on both the Sixth Amendment and article I, section 15 of the California Constitution. (See People v. Pope, supra, 23 Cal.3d at p. 422.) Steven's suggestion that we mandate a Chapman "reasonable doubt" test for prejudice, however, ignores the California Supreme Court's recent decision in People v. Ledesma, supra, 43 Cal.3d 171, which accepted and applied Strickland's "reasonable probability" test. (Id. at pp. 217-218.) Significantly, one of the alleged deficiencies of defense counsel in Ledesma was his failure to bring a suppression motion directed at the contents of a telephone call intercepted by police after a warrantless entry of the defendant's residence. (Id. at pp. 208-209; see also id. at p. 235 (conc. opn. of Mosk, J.).) Moreover, even in the absence of Ledesma, violations of state constitutional rights are normally subject to review under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], i.e., whether it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (See People v. Rodriguez (1986) 42 Cal.3d 1005, 1012 [232 Cal. Rptr. 132, 728 P.2d 202].) This is particularly true where the federal standard for review of similar error is something less than the Chapman standard. (Compare Rodriguez, supra, 42 Cal.3d at p. 1012, recognizing a limited exception to the Watson standard of review where "numerous federal constitutional rights may be affected" by violation of a state constitutional right.)
We thus view ourselves as bound by the Strickland standard of review as mandated in Kimmelman and Ledesma. Strickland requires that we ascertain whether there is a "reasonable probability" that Steven would have been convicted had the challenged evidence been excluded.[4] Under this standard, *48 "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome ... [because] [v]irtually every act or omission of counsel would meet that test [citation] and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding." (466 U.S. at p. 693 [80 L.Ed.2d at p. 697].) On the other hand, the Strickland court specifically rejected as too stringent an "outcome-determinative" test which would have required the defendant to show "that counsel's deficient conduct more likely than not altered the outcome in the case." (Ibid.)
Thus, the reasonable probability test represents a sort of middle ground among the available tests for prejudice. In trying to pinpoint its exact location, we are instructed by Strickland that "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694 [80 L.Ed.2d at p. 698].) "[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results."[5] (Id. at p. 696 [80 L.Ed.2d at p. 699].)
Unfortunately, these grandiloquent formulations give little substance to what is essentially a statistical concept, focussing on the likelihood that a given error affected the outcome of a trial. In statistical terms, we believe Strickland requires a significant but something-less-than-50 percent likelihood of a more favorable verdict. Viewing the factual record in the present case, we think Steven has failed to meet his burden under Strickland because the probability of a different result is not significant. Although possible and thus not harmless beyond a reasonable doubt under the Chapman standard we think it unlikely that the jury would find Steven's statements to Officer Bigbie and the 911 operator consistent with his consent defense. In particular, Steven's response to Bigbie's question regarding how the incident began makes it quite clear Verdise had not consented. Consistent with Strickland then, even if Steven could establish at an evidentiary hearing that his counsel's failure to bring a suppression motion was unjustified, a new trial *49 would not be required because there is no "reasonable probability" of a different result on retrial.
DISPOSITION
Judgment affirmed. Petition for writ of habeas corpus denied.
Work, J., and Jones (N.A.), J.,[**] concurred.
NOTES
[1] Pursuant to California Rules of Court, rules 976.1 and 976(b), this opinion is certified for publication with the exception of sections I through III.
[2] All statutory references are to the Penal Code unless otherwise specified.
[3] Because we are dealing with a husband and wife as defendant and prosecutrix, we will refer to each by their first name.
[*] See footnote 1, ante, page 41.
[4] The People urge that Strickland's reasonable probability standard is the equivalent of the Watson test which has traditionally been applied to most ineffective assistance claims. (See People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal. Rptr. 855, 659 P.2d 1144].) While the language of the two tests is certainly similar (Strickland: "reasonable probability" vs. Watson: "reasonably probable"), Strickland specifically holds that the test is not to be interpreted as requiring a showing that a different result was "more likely than not." (466 U.S. at pp. 693-694 [80 L.Ed.2d at p. 697].) The Watson standard, on the other hand, has at least been applied in a manner closely approximating the "more likely than not" test. (See, e.g., Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 897 [103 Cal. Rptr. 856, 500 P.2d 880]; People v. Parks (1971) 4 Cal.3d 955, 961 [95 Cal. Rptr. 193, 485 P.2d 257]; People v. Hill (1967) 67 Cal.2d 105, 119 [60 Cal. Rptr. 234, 429 P.2d 586]; People v. Williams (1986) 180 Cal. App.3d 57, 63 [225 Cal. Rptr. 498]; People v. Prantil (1985) 169 Cal. App.3d 592, 610 [215 Cal. Rptr. 372]; People v. Barrow (1976) 60 Cal. App.3d 984, 995 [131 Cal. Rptr. 913]; but see People v. Ross (1967) 67 Cal.2d 64, 84 [60 Cal. Rptr. 254, 429 P.2d 606] (dis. opn. of Traynor, C.J.).)
We need not decide here whether Watson in fact prescribes a less stringent standard. In the event it does, we are bound by the supremacy clause to apply Strickland's more rigorous test.
[5] At oral argument, the Attorney General urged that we read Strickland in light of Justice Powell's concurring opinion in Kimmelman which suggests that "the admission of illegally seized but reliable evidence can [never] constitute `prejudice' under Strickland" (477 U.S. at p. ___ [91 L.Ed.2d at p. 330, 106 S.Ct. at p. 2592]) because the use of such evidence does not "... call into question the basic justice of the defendant's conviction ..." (id. at p. ___ [91 L.Ed.2d at p. 332, 106 S.Ct. at p. 2594]). We specifically decline to do so. We believe a majority was reached in Kimmelman only after Justice Powell's thesis was considered and rejected. Accordingly, we do not think it legally correct to interpret Strickland through Justice Powell's concurring opinion in Kimmelman.
[**] Assigned by the Chairperson of the Judicial Council.
|
Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-8-2008
Thomas v. Wheeler
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3173
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-3173
___________
CLAUDE THOMAS,
Appellant
v.
STEVEN R. WHEELER;
PENNSYLVANIA OFFICE OF ATTORNEY GENERAL;
JAMES CAGGIANO; CHARLES WARNER;
LARRY CHERBA; MICHAEL AHWESH,
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 05-cv-01447)
District Judge: Honorable Legrome D. Davis
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 11, 2008
Before: SLOVITER, FUENTES and ALDISERT, Circuit Judges.
(Opinion Filed: October 8, 2008)
1
FUENTES, Circuit Judge:
Claude Thomas, an African American male, appeals from the dismissal of
employment discrimination claims he brought against his employer, the Pennsylvania
Office of Attorney General, and several individual defendants. In particular, Thomas
argues that the District Court erred in finding that certain of his claims were barred by the
applicable statutes of limitation, and that Thomas had failed to present sufficient evidence
to support his remaining claims.1
I.
Background
Because we write exclusively for the parties, we only discuss the facts and
proceedings necessary for resolution of this case. In 1992, pursuant to his contract,
Thomas was promoted to the position of Narcotics Agent II. A year later, Thomas filed a
pro se federal action under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act, 42
U.S.C. § 2000e et seq. (“Title VII”). That action was settled and, pursuant to the
settlement agreement, Thomas was reassigned to the U.S. Customs Service in
Philadelphia. In 1998, his position with the Customs Service was terminated and he
returned to the Office of Attorney General.
In 2005, Thomas filed this action alleging violations of Title VII, 42 U.S.C. §§
1
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise
plenary review over a district court’s summary judgment ruling. Township of Piscataway
v. Duke Energy, 488 F.3d 203, 208 (3d Cir. 2007).
2
1981 and 1983, the First, Thirteenth, and Fourteenth Amendments to the United States
Constitution, the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. Ann.
§ 951 et seq., and various state tort law causes of action. Thomas alleged that, beginning
in 1998, he applied for and was denied eight promotions because of racial discrimination
and retaliation for his previous suit. Thomas also asserted that he received excessive
discipline and was denied training and favorable work-related assignments because of
discriminatory and retaliatory animus.
In a series of rulings, the District Court dismissed all of Thomas’s claims. The
District Court determined that many of Thomas’s claims were time-barred because he
failed to file a timely complaint with the EEOC or in federal court. The District Court
also concluded that Thomas failed to meet his burden of producing evidence to suggest
that the employment decisions concerning him were prompted by racial discrimination.
II.
Discussion
“Summary judgment is appropriate if there are no genuine issues of material fact
and the movant is entitled to judgment as a matter of law. In reviewing the District
Court’s grant of . . . the motions for summary judgment, we view the facts in the light
most favorable to the nonmoving party.” Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290,
293 (3d Cir. 2008) (citations omitted).
A. Timeliness of Thomas’s Claims
3
Thomas argues that the District Court should have applied the “continuing
violation” doctrine to his otherwise time-barred failure to promote, excessive discipline,
and reassignment claims. We concur with the District Court that these claims constitute
discrete incidents to which the continuing violation analysis is inapplicable. See Rush v.
Scott Speciality Gases, Inc., 113 F.3d 476, 483-84 (3d Cir. 1997). Accordingly, we find
that the District Court properly dismissed all Title VII claims that occurred more than 300
days prior to the filing of Thomas’s EEOC complaint, all § 1981 claims that occurred
before March 29, 2001, and all § 1983 claims that occurred before March 29, 2003.
However, evidence of discriminatory or retaliatory intent from this period may still be
relevant to analyzing claims that are not time-barred.
B. Merits of Thomas’s Remaining Claims
1. Title VII, 42 U.S.C. § 1981, First Amendment, and PHRA Claims
The District Court concluded that Thomas had failed to present evidence to
support his claim that he was subjected to a hostile work environment. Thomas alleges
that Office of Attorney General staff made derogatory comments about the abilities of
African-American and Latino officers, but admits that he is unable to identify who made
these comments and cannot “specifically state what comments were made.” (App. 161.)
We agree with the District Court that these vague allegations are not sufficient to meet
Thomas’s burden at the summary judgment stage. Accordingly, we will affirm the
District Court’s grant of summary judgment on Thomas’s hostile work environment
4
claim, and will not discuss these alleged comments in evaluating Thomas’s other claims.
The District Court applied the familiar McDonnell Douglas burden-shifting
framework to analyze Thomas’s disparate treatment claims. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The District Court found that Thomas had failed to
present a prima facie case of discrimination as to his July 2004 failure to promote claims
and his unfavorable assignment claim. As to the unfavorable assignment claim, the
District Court determined that Thomas had presented no evidence that he was denied
favorable assignments. The District Court also found that the defendants had presented
evidence of a legitimate non-discriminatory reason for not promoting Thomas to
Narcotics Officer III in July 2004: the open position was reclassified to a higher ranking
position for which Thomas was not eligible.
The District Court assumed that Thomas had met his initial burden of presenting a
prima facie case of discrimination as to his claim of failure to train and his July 2002 and
March 2004 failure to promote claims. The District Court found that Thomas was denied
training because of the application of legitimate non-discriminatory Office of Attorney
General policies. Thomas was denied training to become “B certified” in wiretap
investigations because the training was expensive and the Office of Attorney General
only needed one B certified agent in each regional office. Thomas was denied polygraph
training because his division of the Office of Attorney General did not use polygraph
testing. In sum, Thomas failed to present evidence that these policy justifications were
untrue or that the real reason for applying the policies to him was discriminatory animus.
5
We concur with the District Court and adopt its reasoning as to these claims.
The District Court also determined that the defendants presented evidence of a
legitimate reason for declining to promote Thomas in July 2002 and March 2004: other
candidates were better qualified. Thomas argues that the District Court erred in granting
summary judgment as to these claims because he would have been well-qualified but for
the Office of Attorney General’s failure to provide him with the training and experience
needed to meet its promotion criteria. As noted above, we concur with the District
Court’s reasoning that Thomas did not present adequate evidence to suggest that he was
denied training or favorable assignments because of discrimination. Accordingly, we will
also affirm the District Court’s decision to grant summary judgment as to Thomas’s
March 2004 failure to promote claim.
As to Thomas’s retaliation claims, we agree that Thomas failed to present evidence
suggesting a causal nexus between any employment actions and his earlier suit. The
District Court found that Thomas had failed to raise a genuine issue of material fact as to
his First Amendment claim for the same reason. Thomas’s only evidence suggesting a
causal nexus is that in 1998, James Caggiano made comments indicating retaliatory
animus. Caggiano participated in the final phase of the selection process for the March
2004 promotion. However, Thomas was eliminated from consideration prior to this
phase, and Thomas has presented no evidence that Caggiano influenced the selection of
candidates during the initial levels of review. In light of the many years’ gap between
Thomas’s first discrimination claim, Caggiano’s 1998 comments, and the 2004 promotion
6
process, more was needed to suggest a causal nexus. Further, Thomas has not presented
evidence linking Caggiano to any other non-time barred employment actions. Thus, we
will also affirm the District Court’s decision as to these claims.
2. Fourteenth Amendment Claims
On appeal, Thomas claims that his rights to substantive and procedural due
process, and equal protection were violated. In his complaint, Thomas claimed violations
of his “right under the . . . 14th Amendment . . . to be gainfully employed and thereby
contribute as a taxpayer and support himself and his family free of a hostile work
environment inflicted upon him based upon his race” and his “right under the 14th
Amendment . . . to work and be employed in the stream of American commerce and enjoy
the benefits and emoluments of employment so that he can participate in supporting the
American nation through the payment of taxes and to support his family free of unlawful
discrimination on account of his race, national origin and color.” (Compl. ¶¶ 13-14, app.
69.) The District Court granted summary judgment on Thomas’s Fourteenth Amendment
claim noting that he had failed to “define the legal or factual basis” for this claim and
introduced “no factual evidence on this particular claim.” Accordingly, the District Court
concluded that the defendants were entitled to “judgment on the alleged Fourteenth
Amendment violation as a matter of law.” Thomas v. Wheeler, 05-cv-1447, Dkt. # 26 at
35 (Apr. 10, 2005).
Thomas did not raise his procedural or substantive due process claims in his
complaint, or otherwise, before the District Court and may not amend his complaint
7
through his arguments on appeal. Accordingly, we will not consider these claims.2
We find that the District Court properly granted summary judgment on Thomas’s
equal protection claim for the same reasons that his statutory employment discrimination
claims fail.
III.
Conclusion
We have considered all contentions raised by the parties and conclude that no
further discussion is necessary.
The judgment of the District Court will be affirmed.
2
Further, even if a claim for violation of Thomas’s substantive or procedural due
process rights were properly before this Court, we would find that Thomas did not raise a
genuine issue of material fact that these rights were violated.
8
|
772 F.Supp.2d 232 (2011)
FRIENDS OF BLACKWATER, et al., Plaintiffs,
v.
Kenneth SALAZAR, et al., Defendants.
Civ. Action No. 09-2122 (EGS).
United States District Court, District of Columbia.
March 25, 2011.
*233 Eric Robert Glitzenstein, Howard M. Crystal, Jessica Almy, Meyer Glitzenstein & Crystal, Washington, DC, for Plaintiffs.
Rickey D. Turner, U.S. Department of Justice, Washington, DC, M. Reed Hopper, Theodore Hadzi-Antich, Pacific Legal Foundation, Sacramento, CA, for Defendants.
MEMORANDUM OPINION
EMMET G. SULLIVAN, District Judge.
In 1985, the Virginia Northern Flying Squirrel, Glaucomys sabrinus fuscus, (the "Squirrel") was listed as an endangered species under the Endangered Species Act ("ESA") by the U.S. Fish and Wildlife Service ("FWS"). Over two decades later, in 2008, the FWS delisted the Squirrel pursuant to the Final Rule Removing the Virginia Northern Flying Squirrel From the Federal List of Endangered and Threatened Wildlife ("Delisting Rule"), 73 Fed. Reg. 50,226 (Aug. 26, 2008). Plaintiffs brought this suit challenging the delisting.[1]
Pending before the Court are plaintiffs' motion for summary judgment and defendants' cross-motion for summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, the administrative record, the arguments by counsel at the November 17, 2010 motions hearing, and for the reasons set forth below, plaintiffs' motion for summary judgment is hereby GRANTED, and defendants' cross-motion for summary judgment is hereby DENIED. The Court concludes that the agency violated Section 4(f) of the ESA, 16 U.S.C. § 1533(f), when it effectively revised its recovery plan for the Squirrel without employing notice-and-comment rulemaking. Accordingly, the Court hereby VACATES the Delisting Rule and REMANDS to the agency for further proceedings consistent with this Opinion.
I. BACKGROUND
A. The Endangered Species Act
By 1973 when the Endangered Species Act was enacted, Congress had concluded *234 that "various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation[.]" 16 U.S.C. § 1531(a)(1). In addition, Congress found that "other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction," and "these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people[.]" Id. § 1531(a). The ESA was therefore enacted in order "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered species and threatened species[.]" Id. § 1531(b).[2]
On his own initiative or in response to the petition of an "interested person," the Secretary of the Interior determines whether a species is an endangered species or a threatened species[3] based on the evaluation of five factors, "(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence." Id. § 1533(a)(1). The Secretary is required to make this determination "solely on the basis of the best scientific and commercial data available[.]" Id. § 1533(b)(1).
Once a species is designated an endangered or threatened species, certain legal protections are triggered. Among other things, the ESA directs the Secretary to develop and implement "[recovery] plans. . . for the conservation and survival of endangered species and threatened species. . . unless he finds that such a plan will not promote the conservation of the species." Id. § 1533(f)(1). Prior to the final approval of a new or revised recovery plan, the Secretary is required to "provide public notice and an opportunity for public review and comment on such plan." Id. § 1533(f)(4). Furthermore, each recovery plan "shall, to the maximum extent practicable,. . . incorporate in each plan(i) a description of such site-specific management actions as may be necessary to achieve the plan's goal for the conservation and survival of the species; (ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list; and (iii) estimates of the time required and the cost to carry out those measures needed to achieve the plan's goal and to achieve intermediate steps toward that goal." Id. § 1533(f)(1)(B).
At least once every five years, the Secretary must conduct a review of all listed species to determine whether any species should be delisted, or whether the status of any species should be changed from *235 threatened to endangered or vice versa. See id. § 1533(c)(2). A determination to delist or change the status of an endangered or threatened species is made on the basis of the same five factors in § 1533(a)(1) that govern the initial listing of a species. See id. § 1533(c)(2); 50 C.F.R. § 424.11(d).
B. Factual Background
i. The Virginia Northern Flying Squirrel and Its Listing as an Endangered Species
At stake in the instant action is a subspecies of the northern flying squirrel: the Virginia Northern Flying Squirrel, also known as the West Virginia Northern Flying Squirrel (Glaucomys sabrinus fuscus) (the "Squirrel").[4] The Squirrel is a "small, nocturnal, gliding mammal" with "distinctive patagia (folds of skin between the wrists and ankles) . . . supported by slender cartilages extending from the wrist bones; these plus the broad tail create a large gliding surface area and are the structural basis for the squirrel's characteristic gliding locomotion. Adults are dorsally gray with a brownish, tan, or reddish wash, and grayish white or buffy white ventrally." AR at 15075 (internal citations omitted).[5]
The historic range of the Squirrel is believed to correspond roughly to the distribution of old-growth red spruce and northern hardwood forests that existed prior to the extensive logging and accompanying fires that occurred at the turn of the 20th century in the Allegheny Highlands, a section of the Appalachian Mountains extending into West Virginia and Virginia. This historic range encompassed an estimated 500,000 to 600,000 acres of oldgrowth red spruce forests. AR at 172.
In 1985, the FWS determined that the Virginia Northern Flying Squirrel and the Carolina Northern Flying Squirrel[6] were endangered subspecies within the meaning of the ESA. Determination of Endangered Status for Two Kinds of Northern Flying Squirrel ("1985 Listing Rule"), 50 Fed. Reg. 26,999. In particular, the 1985 Listing Rule stated that "[a]vailable evidence indicates that [the two subspecies] are rare and that their historical decline is continuing." Id. Efforts to capture and identify individual squirrels, for the purpose of evaluating the population, had resulted in the capture of very few squirrels. Id. Considering the first of the five factors outlined by the ESA under § 1533(a)(1), the FWS explained in the 1985 Listing Rule that:
[The two subspecies] now have a relictual distribution, restricted to isolated areas at high elevations, separated by vast stretches of unsuitable habitat. In these last occupied zones, the squirrels and their habitat may be coming under increasing pressure from human disturbance, such as logging and development of skiing and other recreational facilities. *236 50 Fed. Reg. 26,999, 27,000.[7]
ii. The Recovery Plan
In 1990, in accordance with the requirements of § 1533(f), the FWS issued an Appalachian Northern Flying Squirrels Recovery Plan ("Recovery Plan"). Ultimately, the objective of the Recovery Plan was to set forth a plan that, if accomplished, would "remove [the Squirrel] from the list of endangered and threatened species." AR at 15092. The agency envisioned that this would occur in two stages. The Squirrel would first be "downlisted" from endangered status to threatened status and then later delisted altogether. AR at 15092. Accordingly, the agency first outlined three criteria necessary for downlisting the species from endangered to threatened status, stating that:
Downlisting from endangered to threatened status will be possible when it can be documented that: [1] squirrel populations are stable or expanding (based on biennial sampling over a 10-year period) in a minimum of 80% of all Geographic Recovery Areas designated for the subspecies, [2] sufficient ecological data and timber management data have been accumulated to assure future protection and management, and [3] [Geographic Recovery Areas] are managed in perpetuity to ensure: (a) sufficient habitat for population maintenance/expansion and (b) habitat corridors, where appropriate elevations exist, to permit migration among [Geographic Recovery Areas].
AR at 15092.[8]
In addition to the three factors necessary for downlisting, the agency identified a fourth factor that would need to be met to warrant delisting the Squirrel completely. Specifically, the agency stated in the Recovery Plan that:
De-listing will be possible when, in addition to the above factors, it can be demonstrated that . . . the existence of the high elevation forests on which the squirrels depend is not itself threatened by introduced pests, such as the balsam wooly adelgid or by environmental pollutants, such as acid precipitation or toxic substance contamination.
AR at 15092.
Accompanying the criteria necessary for downlisting and ultimately delisting the species, the Recovery Plan also contained a detailed narrative describing numerous recovery tasks identified by the agency.[9] A detailed implementation schedule was *237 also included in the Recovery Plan, as well as guidelines for the identification and management of the Squirrels' habitat. AR at 15112-15118.[10]
iii. The 5-Year Review
The five-year review of the Squirrel began in 2003, despite the ESA's requirement that "[t]he Secretary shall . . . conduct, at least once every five years, a review of all species [listed as endangered or threatened] and . . . determine on the basis of such review whether any such species should (i) be removed from such list; (ii) be changed in status from an endangered species to a threatened species; or (iii) be changed in status from a threatened species to an endangered species." 16 U.S.C. § 1533(c)(2). Early drafts of the report did not recommend delisting the Squirrel.[11] However, after internal editing, the final version of the five-year review document, the West Virginia Northern Flying Squirrel 5-Year Review: Summary and Evaluation (the "5-Year Review Summary"), altered course and recommended that the Squirrel be delisted in April of 2006.
Significantly, in the final version, the FWS decided not to evaluate the status of the Squirrel based on the parameters of the agency's 1990 Recovery Plan. In so doing, the FWS explained that, "[a]lthough the recovery criteria as they apply to [the Squirrel] were deemed objective, measurable, and adequate when the plan was approved in 1990 and updated in 2001, they do not meet current standards for adequacy. . . . [T]he plan is not actively used to guide recovery for two reasons: first, it was developed over 15 years ago and needs updating, and, second, its recovery criteria and actions are, for the most part, combined and generalized for both [the Carolina Northern Flying Squirrel] and [the Virginia Northern Flying Squirrel]." AR at 166. Instead of applying the criteria set forth in the Recovery Plan, the FWS conducted an analysis based on the five listing factors contained in § 1533(a)(1) of the ESA.[12]
*238 In light of the results of its 5-Year Review Summary, the agency concluded that "the species is persisting throughout its historic range. . . . Habitat loss is localized, and a substantial amount of habitat is now considered secure and improving in quality. Therefore . . . it is evident that [the Squirrel] does not meet the definition of endangered or threatened." AR at 182. The agency indicated that it would initiate the process to delist the species.
iv. Delisting of the Squirrel
After the requisite notice and comment period, the FWS promulgated the Delisting Rule on August 26, 2008. 73 Fed. Reg. 50,226. The Delisting Rule largely reflects the conclusions drawn in the 5-Year Review Summary issued in 2006. In particular, the decision to delist the Squirrel in 2008 appears to have been prompted principally by a conclusion that the Squirrel was not as rare as was previously believed. As the agency explained in the Delisting Rule:
At the time of listing, the [Squirrel] was thought to be an extremely rare and declining taxon that had disappeared from most of its historical range. We now know that occupancy of available habitat has increased and is much more widespread and well connected than formerly thought, and the geographic extent of the [Squirrel's] range approximates historical range boundaries. . . . Additionally, we have learned that the [Squirrel] has adapted to changes in the spruce ecosystem over the past hundred years, and can successfully exploit the existing habitat conditions throughout the landscape.
AR at 20.
As the agency had done in the 5-Year Review, it assessed the species based upon the five factors contained in § 1533(a)(1) and did not apply all of the criteria in the Recovery Plan. (In its analysis of the five factors, the agency reached substantially the same conclusions as the 5-Year Review Summary.) In so doing, the agency *239 explained in the Delisting Rule its position that "[r]ecovery plans are not regulatory documents and are instead intended to provide guidance to the Service, States, and other partners on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved." AR at 1. The agency went on to further explain that:
There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more criteria may have been exceeded while other criteria may not have been accomplished. . . . In other cases, recovery opportunities may have been recognized that were not known at the time the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. This new information may change the extent to which criteria need to be met for recognizing recovery of the species. Overall, recovery of species is a dynamic process requiring adaptive management, and judging the degree of recovery of a species is also an adaptive management process that may, or may not, fully follow the guidance provided in a recovery plan.
AR at 1-2.
Using this approach to recovery plans, the agency then determined that "[n]ew information on the [Squirrel] has been learned that was not known at the time the recovery plan and the amendment were finalized. . . . This new information changes the extent to which two of the four Recovery Plan criteria need to be met for recognizing recovery of the subspecies." AR at 2. The two criteria affected were the first and the third criteria of the Recovery Plan, relating to the Squirrel population and the management of the GRAs, respectively.
As noted above, the first criterion set out in the Recovery Plan required that downlisting or delisting would be possible "when it can be documented that: . . . squirrel populations are stable or expanding (based on biennial sampling over a 10-year period) in a minimum of 80% of all Geographic Recovery Areas designated for the subspecies." AR at 15092. Nonetheless, the agency did not rely upon population trend data when delisting the species, as was contemplated by the first criterion in the Recovery Plan. Instead, the agency relied upon evidence of "persistence" of the species. AR at 2, 14. The agency defined persistence as "continuing captures of [the Squirrel] over multiple generations at previously documented sites throughout the historical range." AR at 2.[13]
Using the persistence data, the agency concluded that the intent of the first criterion, namely a "robust" population, had been met. As the agency explained in an analysis appended to the Delisting Rule:
The intent of [the first] criterion was to document that populations are robust; i.e., stable or expanding trends across most of the core areas of [the Squirrel] distribution. Based upon use of the best available scientific data, we conclude that the intent of this criterion has been met, considering that there has been no extirpation documented at any site in over 20 years of monitoring (13-20 generations), and existing populations appear *240 to be stable (persisting for multiple generations) across all seven core areas of [the Squirrel] distribution. In addition, the [Squirrel] is much more widespread than the five GRAs originally designated in the recovery plan. The number and size of the GRAs has increased, and the current range of the [Squirrel] approximates 85% of its historic range.
Analysis of Recovery Plan Criteria for the West Virginia Northern Flying Squirrel, AR at 39.
Similarly, the agency asserted that the "intent" had been met with respect to the third criterion of the Recovery Plan, which provided that downlisting or delisting would be possible when it could be documented that the five GRAs identified in the Recovery Plan "are managed in perpetuity." AR at 15092. The agency concluded that the intent of this criterion had been met because "79% of the [Squirrel] habitat (189,785 acres) is likely to remain protected from logging and other disturbances for the foreseeable future," and "[a]ll of the five original GRAs in the recovery plan are predominantly in public ownership[.]" AR at 46.
Plaintiffs initiated this lawsuit challenging, among other things, the agency's conclusion that it need not do more than meet the "intent" of the criteria laid out in the Recovery Plan. Plaintiffs' motion for summary judgment and defendants' cross motion are now ripe for consideration by the Court.
II. STANDARD OF REVIEW
"Since the ESA does not specify a standard of review, judicial review is governed by Section 706 of the Administrative Procedure Act." Gerber v. Norton, 294 F.3d 173, 178 n. 4 (D.C.Cir.2002) (quoting Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 685 (D.C.Cir.1982)). The Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, provides a right to judicial review of final agency actions. Under the APA, federal agency actions are to be held unlawful and set aside where they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. § 706(2)(A). To make this finding, the court must determine whether the agency "considered the relevant factors and articulated a rational connection between the facts found and the choice made." Keating v. FERC, 569 F.3d 427, 432 (D.C.Cir.2009) (quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)).
Where a court is reviewing an agency's interpretation of a statute that the agency is charged with administering, the appropriate standard of review is the framework set forth in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In particular, "[u]nder step one of Chevron, [the court] ask[s] whether Congress has directly spoken to the precise question at issue, in which case [the court] must give effect to the unambiguously expressed intent of Congress." Sec'y of Labor, Mine Safety & Health Admin. v. Nat'l Cement Co. of California, Inc., 494 F.3d 1066, 1073 (D.C.Cir.2007)(internal quotations omitted). If the court concludes that the "`statute is silent or ambiguous with respect to the specific issue'. . . [the court] move[s] to the second step and defer[s] to the agency's interpretation as long as it is `based on a permissible construction of the statute.'" Nat'l Cement Co., Inc., 494 F.3d at 1074 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778).
III. ANALYSIS
Plaintiffs' principal argument in this lawsuit is that Section 4(f) of the ESA, which covers the use of recovery plans by the agency, imposes obligations on the FWS that were not fulfilled in connection *241 with the delisting of the Squirrel. In particular, plaintiffs argue that "when FWS establishes recovery criteria for a species or subspecies in a formal recovery plan, the agency is required to abide by those criteria in making status determinations unless it amends the recovery plan in the manner ordained by the ESA." Pls.' Mem. at 25.
In response to plaintiffs' position, defendants argue that because the ESA "is clear on its face that the [agency's] delisting analysis is based on the threats found under the five factors provided by [16 U.S.C. § 1533(a)]," the decision to delist a species is not "governed by ... the `objective, measurable criteria' specified in a recovery plan." Defs.' Reply at 6-7. Defendants argue that the purpose of recovery plans is merely to "establish guidance and direction that can be meaningfully utilized and implemented to recover a species." Defs.' Mem. at 35; see also AR at 1 ("Recovery plans are not regulatory documents and are instead intended to provide guidance... on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met.").[14]
Defendants' arguments and the position taken by the agency in the Delisting Rule raise two questions for the Court. The first issue is whether the agency's decision to set aside two of the four criteria in its Recovery Plan constituted a revision to the Recovery Plan. The second question is whether the agency's position that it met the "intent" of the Recovery Plan criteria satisfies the requirements of the ESA. Each of these topics is discussed in turn.
A. The Agency's Decision to Set Aside the Criteria Contained in the Recovery Plan
Defendants' arguments rely on the position that recovery plans merely provide guidance, which may be set aside without such an action constituting a revision to the Recovery Plan, because the ESA only requires the agency to consider the five factors of § 1553(a)(1), using the best available science, when delisting a species. Defs.' Mem. at 36; Defs.' Reply at 9 ("[W]hile the criteria [of a recovery plan] help to inform a delising analysis, the criteria do not control a delisting analysis.").
There are two flaws in the approach taken by the agency and the defendants' arguments in this litigation. First, the statutory language of the ESA makes it clear that the obligation to "develop and implement" recovery plans and to include objective and measurable criteria in those recovery plans are mandatory aspects of the ESA. As noted above, the ESA mandates that "[t]he Secretary shall develop and implement [recovery] plans ... for the conservation and survival of endangered species and threatened species[.]" 16 U.S.C. § 1533(f)(1) (emphasis added).[15]*242 Recovery plans fulfill one of the purposes of the ESA that the FSW "do far more than merely avoid the elimination of protected species. It must bring these species back from the brink so that they may be removed from the protected class, and it must use all methods necessary to do so." Defenders of Wildlife v. Andrus, 428 F.Supp. 167, 170 (D.D.C.1977).
Furthermore, Congress did not stop with a simple requirement to develop and implement a recovery plan. The ESA requires that each recovery plan shall, among other things, "to the maximum extent practicable ... incorporate in each plan ... objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list[.]" 16 U.S.C. § 1533(f)(1)(B).[16] In the event the agency finds it necessary to revise a recovery plan, Congress expressly provides a vehicle for doing so: the statute states that "[t]he Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and an opportunity for public review and comment on such plan." 16 U.S.C. § 1533(f)(4)(emphasis added).
The legislative history reinforces the unambiguous meaning of the statute. In conjunction with the 1988 amendment to the ESA, which added the "objective, measurable criteria" requirement, Congress explained that:
Section 4(f) of the Act is amended to require that each recovery plan incorporate descriptions of site-specific management actions to achieve recovery, criteria by which to judge success of the plan, and time frames and estimates of costs to carry out the planned recovery.... These descriptions, criteria, and estimates currently are not provided uniformly in recovery plans. Incorporation of this information will ensure that plans are as explicit as possible in describing the steps to be taken in the recovery of a species.... The requirement that plans contain objective, measurable criteria for removal of a species from the Act's lists and timeframes and cost estimates for intermediate steps toward that goal will provide a means by which to judge the progress being made toward recovery.
S.Rep. No. 240, 100th Cong., 2d. Sess. 111-32 (1988), reprinted in 1988 U.S.C.C.A.N. 2700, 2708-2709.
In light of the above statutory language and accompanying legislative history, the Court concludes that the agency's decision to set aside two of the criteria in its Recovery Plan constituted a revision to the Recovery Plan within the meaning of the ESA. Accordingly, the agency was required to employ notice-and-comment rulemaking.
The second flaw in defendants' position is that it would render an explicit provision of the ESA meaningless, violating the "cardinal principle of statutory construction" that Courts shall "give effect, if possible, to every clause and word of a statute ... rather than to emasculate an entire section." Bennett v. Spear, 520 U.S. 154, 173, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)(internal quotations omitted). Defendants have taken the position that because § 1533(a)(1), containing the five *243 factors discussed above, fails to mention recovery plans, Congress intended these factors to be the only restrictions on the agency's ability to delist a species. However, § 1533(f) must be understood as imposing separate, distinct obligations on the agency. Merely because § 1533(a) imposes one set of requirements on the agency does not mean that § 1533(f), imposing separate obligations on the agency, may be disregarded. Permitting the FWS to set aside two of the four criteria in its own Recovery Plan while taking the position that such an action was not a revision to the Recovery Plan, would render the provision requiring the agency to subject its revisions to public notice and comment meaningless.
Even assuming that defendants correctly assert that the Recovery Plan for the Squirrel was outdated and contained "criteria [that] did not relate directly to threats to the Squirrel under the five factors that formed the basis of the listing decision," Defs.' Mem. at 6, such a conclusion merely supports a revision of the Recovery Plan. Congress clearly contemplated that revisions to recovery plans might become necessary, and the Secretary is plainly required to employ notice-and-comment rulemaking and "consider all information presented during the public comment period prior to approval of the plan." 16 U.S.C. § 1533(f)(4). Similarly, defendants' argument that "should the provisions of a recovery plan no longer constitute the best available scientific data, the [agency] cannot ignore recent and credible scientific data simply to defer to the contents of a recovery plan," Defs.' Mem. at 31-32, again does not explain the agency's failure to comply with the procedures laid out in § 1533(f)(4) for the revision of recovery plans.
Defendants also point to the ESA's directive that the agency "shall, to the maximum extent practicable ... incorporate in each plan ... objective, measurable criteria which, when met, would result in a determination ... that the species be removed from the list[.]" 16 U.S.C. § 1533(f)(1). Defendants focus on the use of the word "would" in support of their argument that "the text expressly recognizes a hypothetical and contingent possibility." Defs.' Mem. at 33. However, the language cited by defendants does not give the agency discretion to revise its recovery plan without consideration of the procedural requirements set forth in § 1533(f)(4); rather, it imposes on the agency an additional requirement that the recovery plan criteria reflect certain goals, i.e., that the criteria enable the eventual delisting of the species. As this District has already held, "the word `would' ... is used in the conclusion of a conditional sentence to express a contingency or possibility. Therefore, `would result in a determination ... that the species be removed from the list' sets a target to be aimed at by meeting the recovery goals set forth in the Plan." Fund for Animals v. Babbitt, 903 F.Supp. 96, 103 (D.D.C.1995)(internal citations omitted).
B. Whether the Agency Complied with the ESA by Considering the "Intent" of the Recovery Plan Criteria
In the Delisting Rule, the agency conceded that neither the first criterion, "stable or expanding populations (based on biennial sampling over a ten-year period) in a minimum of 80% of the Geographic Recovery Areas," nor the third criterion, "the management of the Geographic Recovery Areas in perpetuity," were actually met at the time of delisting. However, the agency takes the position that the consideration of other data met the "intent" of these two criteria such that the agency's actions did not constitute a revision to the recovery plan. Defs.' Mem. at 14-15; AR *244 at 37 (Delisting Rule states that "it is not practicable or necessary to measure actual [Squirrel] population numbers.").
The agency argues that the intent of the first criterion was met because the data collected showed a "robust population." Defs.' Mem. at 15; AR at 39. In particular, defendants cite the fact that, whereas in 1981 only one individual Squirrel at one individual survey site had been identified, by 2006 the number of survey sites had risen to 109 and the number of captured Squirrels to 1,198. Defs.' Mem. at 14-15; AR at 37-39.
Similarly, the defendants argue that the agency properly concluded that the intent of the third criterion had been met because "the present circumstances are significantly improved," Defs.' Mem. at 15, and "the original goal of permanent habitat protection of a few small areas is no longer necessary." AR at 41. Essentially, at the time of the listing and at the time the recovery plan was written, both the number of individual Squirrels and the number of occupied sites were believed to be extremely limited. According to the defendants, "[i]n such circumstances, prudency required permanent protection of those few remaining Squirrel individuals[.]" Defs.' Mem. at 15. However, once the agency determined that the present circumstances were significantly improved, such protections were no longer needed. In support of this position, defendants cite four factors relating to the recovery of the Squirrel: (1) the Squirrel spans roughly 85% of its former range; (2) all five of the GRAs identified in the 1985 Listing Rule are sufficiently interconnected to permit migration; (3) all five of the original Geographical Recovery Areas are now "predominantly" in public ownership; and (4) nearly 80% of all potential Squirrel habitat is protected from logging through various measures. Defs.' Mem. at 15.
Finally, the defendants argue that it would be illogical to require the agency to meet the criteria of an outdated recovery plan. Regarding the Squirrel's Recovery Plan in particular, defendants assert that "[o]lder recovery plans, such as this, typically focused on demographic parameters (e.g., population numbers, trends, and distribution), which are valid and useful sources of information, but alone do not determine a species' status." Defs.' Mem. at 6.
The court is not persuaded that the agency's decision to meet only the "intent" of its Recovery Plan criteria for the Squirrel complied with the ESA. The statute unambiguously requires that criteria must be "objective" and "measurable." 16 U.S.C. § 1533(f)(1)(B)(ii). Here, no one contests that the original criteria were objective and measurable when they were adopted as part of the Recovery Plan. The first criterion, for example, called for the agency to downlist or delist only when it could be documented that "squirrel populations are stable or expanding (based on biennial sampling over a 10-year period) in a minimum of 80% of all Geographic Recovery Areas designated for the subspecies." AR at 15092. Instead of applying this Recovery Plan criterion, however, the agency now takes the position that the intent of this criterion can be met with persistence data rather than population data because, according to the agency, the "intent of this recovery criterion was to document that populations are robust." AR at 37. Using "robust population" as a criterion does not satisfy the statutory requirement that the recovery plan criteria be "measurable" and "objective".
At the very least, the alteration of the first and third criteria in this manner is a revision to the recovery plan that ought to have been subjected to public notice and comment, as required by § 1533(f)(4). Defendants' *245 attempts to persuade the Court that subjecting a revised recovery plan to notice-and-comment rulemaking would be "illogical" and a "make-work exercise" ignore Congress' explicit instruction that the public be given an opportunity to comment on revisions to recovery plans. The statutory language is plain, and the Court therefore "must give effect to the unambiguously expressed intent of Congress." Nat'l Cement Co. of California, 494 F.3d at 1073.
IV. REMEDY
The Court concludes that vacating the Delisting Rule is the appropriate course of action in light of the agency's failure to comply with Section 4(f) of the ESA.[17] In deciding whether to vacate an agency's rule, this Circuit has focused on two factors, namely the "seriousness of the order's deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed." Int'l Union, United Mine Workers of Am. v. Federal Mine Safety & Health Admin., 920 F.2d 960, 967 (D.C.Cir.1990); see also Milk Train v. Veneman, 310 F.3d 747, 755-756 (D.C.Cir.2002).
Here, FWS failed to comply with unambiguous provisions of the ESA, and the Court is not inclined to speculate what the consequence of a properly revised recovery plan will be on the status of this species. Furthermore, as this Court previously held in Humane Society v. Kempthorne 579 F.Supp.2d 7, 21 (D.D.C.2008) "the ESA's preference for protecting endangered species counsels strongly in favor of vacating the [Delisting] Rule while FWS revisits its statutory interpretation." Id. (citing NRDC v. U.S. Dep't of the Interior, 275 F.Supp.2d 1136, 1145 (C.D.Cal. 2002)). The Court therefore will vacate the Delisting Rule and remand it to the agency for further proceedings.
V. CONCLUSION
For the foregoing reasons, plaintiffs' motion for summary judgment is hereby GRANTED, and defendants' cross-motion for summary judgment is DENIED. The Delisting Rule is VACATED, and this matter is REMANDED to the Fish and Wildlife Service for further proceedings consistent with the Court's ruling. An appropriate Order accompanies this Memorandum Opinion.
NOTES
[1] There are six plaintiffs, including five non-profit organizations and one individual. Defendants are Kenneth Salazar, the Secretary of the U.S. Department of the Interior ("Secretary"), and Rowan Gould, Acting Director of the U.S. Fish and Wildlife Service. (Pursuant to Fed.R.Civ.P. 25(d), Mr. Gould has been automatically substituted as a defendant for his predecessor, Sam D. Hamilton, who was sued in his official capacity.)
[2] The ESA states that "`conserve,' `conserving,' and `conservation' mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary." 16 U.S.C. § 1532(3).
[3] The ESA defines "endangered species" as "any species which is in danger of extinction throughout all or a significant portion of its range[.]" 16 U.S.C. § 1532(6). A "threatened species" is defined as "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). The Secretary is required to maintain and publish lists in the Federal Register of all species which have been determined to be endangered or threatened. Id. § 1533(c)(1).
[4] Two species of flying squirrel exist in North America, the southern flying squirrel (Glaucomys volans) and the northern flying squirrel (Glaucomys sabrinus.) 50 Fed. Reg. 26,999. The northern flying squirrel is found mainly in Canada, Alaska, and the western and northern parts of the conterminous United States. However, certain subspecies of the northern flying squirrel, including the one at issue in the instant case, exist in the Appalachian Mountains of North Carolina, Tennessee, Virginia and West Virginia. Id.
[5] Citations to the Administrative Record are abbreviated "AR"
[6] Although the Carolina Northern Flying Squirrel was listed as endangered simultaneously with the Virginia Northern Flying Squirrel, only the Virginia Northern Flying Squirrel has been delisted and accordingly is the subject of this litigation.
[7] The agency also concluded that the northern flying squirrel (including the subspecies at issue in the present litigation) was losing ground to the southern flying squirrel. In particular, the agency pointed out that "logging and other clearing activity has not only reduced the original habitat of the northern flying squirrel, but resulted in an invasion of this zone by the southern flying squirrel. . . . Regrowth in the cleared areas, if any, tended to be deciduous forest favored by [the southern flying squirrel], and hence the way was open for the spread of that species." 50 Fed. Reg. 26,999, 27,000.
[8] The Recovery Plan identified five Geographic Recovery Areas ("GRAs") that corresponded with the known distribution of the Squirrel at the time. The GRAs encompassed terrainin 10 counties in West Virginia and one county in Virginia. AR at 15090.
[9] The scope of these tasks was quite ambitious. Tasks included, among others, establishing a recovery advisory committee, determining the Squirrels' distribution, identifying and surveying potential habitats, monitoring known populations, conducting in-depth studies of the Squirrels' habitat requirements, studying the relationship among population size, habitat size and habitat quality, studying the effects of timber harvest and other developments on Squirrels' habitat, studying the diet of the species, investigating the potential accumulation of toxinsparticularly pesticides and heavy metalsin the Squirrels' food supply, studying the interaction of the endangered species with other species of squirrels, determining the genetic variability within the species, developing guidelines for private landowners and other individuals, implementing protection procedures and policies, and implementing educational programs. AR at 15093-15105.
[10] In 2001, the FWS issued a relatively brief Appalachian Northern Flying Squirrels Recovery Plan Update ("Recovery Plan Update"). The primary purpose of the Recovery Plan Update was to amend the habitat identification guidelines that were contained in Appendix A of the original Recovery Plan. In particular, the agency noted that it may have placed too much emphasis on the use of live trapping and/or the placement and monitoring of manmade nest boxes to determine the presence of the Squirrel in a particular area. AR at 15212. The FWS stated that it now believed that the Squirrel was "less likely to use nest boxes or enter traps in good quality habitat due to the natural presence of numerous den sites and an abundance of preferred foods." AR at 15212. Based on the additional information obtained since the 1990 Recovery Plan, the FWS concluded that "[r]ecovery of [the Squirrel] must go beyond protecting only those areas where the squirrel can be located through trapping and nest box placement and monitoring." AR at 15212. The amendments made no changes to any of the criteria contained in the 1990 Recovery Plan relating to downlisting or delisting the Squirrel.
[11] For example, in a 2003 draft of the report, it states that "[a] change in classification is not warranted at this time. Additional information on population trends and ecosystem health would allow a more thorough and reliable review of the subspecies' status." AR at 6132. The same 2003 draft states that "habitat loss has continued since listing on public and private lands," and that "[h]abitat loss, alteration, and fragmentation . . . are still primary threats to the [Squirrel]. Acid deposition (industrial discharge), mineral extraction, private land development, highway construction, and exotic pestsinstead of logging are the leading sources of these stresses." AR at 006125; AR at 6129.
[12] With respect to § 1533(a)(1)(A) ("Factor A"), the agency concluded that the habitat occupied by the Squirrel was much more extensive than previously understood, and the Squirrel was "more resilient in its habitat use than formerly thought[.]" AR at 173. FWS explained that the conclusions in 1985 were based on an underestimation of the ability of the Squirrel to utilize ecosystems other than the red spruce and spruce-hardwood ecosystem. AR at 181. With respect to § 1533(a)(1)(B) ("Factor B"), the agency noted that, contrary to its findings in 1985, "in the 21 years since listing the Service has not received any evidence that overutilization is a threat" and that "there is no evidence of commercial use in the pet trade or of recreational use of [the Squirrel]." AR at 176. Similarly, in the 5-Year Review Summary, the agency found no threats based on "disease and predation" under § 1533(a)(1)(C) ("Factor C"). Regarding § 1533(a)(1)(D)("Factor D"), requiring the agency to consider "the inadequacy of existing regulatory mechanisms," the agency came to the conclusion that "[o]verall, existing regulatory mechanisms in conjunction with continuing forest management provisions and landowner agreements make it highly likely that [the Squirrel] will be protected and managed for the long term across most of its range, irrespective of the subspecies' listing status under the federal ESA." AR at 178. Finally, regarding § 1533(a)(1)(E) ("Factor E"), addressing the "other natural or manmade factors" affecting a species, the FWS concluded that no serious threat to the Squirrel could be identified. Addressing the concern from 1985 that a parasite carried by the southern flying squirrel threatened the northern flying squirrels, the agency determined that the evidence had not been accurately interpreted and further concluded that "observations of [the Squirrel] capture[d] in the last 20 years . . . have shown no signs of sickness, debilitation, or death due to parasite infection." AR at 178. The agency also analyzed a handful of potential threats that had arisen since the 1985 listing, including two forest pests (the hemlock woolly adelgid and the balsam woolly adelgid), beech bark disease, acid precipitation, and climate change. AR at 179-180.
[13] The agency further explained that, "[b]ecause [the Squirrel] first reproduces at 1-2 years, and has a relatively short life span, averaging approximately 3 years, persistence at a single monitoring site over 5 years indicates successful reproduction across multiple (three to five) generations." AR at 2.
[14] Defendants also argue that "Congress did not impose a mandate to the [agency] to `revise' recovery plans based on new or emerging information, belying Plaintiffs' claims that the [agency] must revise a recovery plan prior to conducting an inquiry under [16 U.S.C. § 1533(a)]." Defs.' Mem. at 34; see also Defs.' Reply at 7 ("the ESA imposes no obligation to continually update or revise a recovery plan.") However, as is discussed below, the Court finds that the agency did in fact revise the Recovery Plan for the Squirrel when it essentially abandoned two of the four criteria contained in its own Recovery Plan. Accordingly, whether or not the ESA requires the agency to revise a recovery plan under certain circumstances is not determinative.
[15] The statute does provide an exception. A recovery plan is not required if the Secretary "finds that such a plan will not promote the conservation of the species." 16 U.S.C. § 1533(f)(1). However, defendants have not taken the position that a recovery plan would not have "promoted the conservation" of the Squirrel, and, in any event, the agency did indeed create a recovery plan for the Squirrel. The exception therefore appears inapplicable in the instant case.
[16] In the instant case, four objective, measurable criteria were clearly laid out on page 18 of the Recovery Plan. AR at 15092.
[17] The Court finds sufficient basis to remand to the agency on this ground alone; therefore, other arguments advanced by plaintiffs are not addressed. However, the Court does note that the agency appears to have taken the position that Factor D, requiring the agency to consider the "inadequacy of existing regulatory mechanisms," need not be separately analyzed if no threats are identified under Factors A, B, C or E. In particular, the agency stated in its Delisting Rule that "[c]urrently, all threats under Factors A-C, and E have been eliminated or abated, and no regulatory mechanisms are needed to delist the [Squirrel]. Therefore, the inadequacy of regulatory mechanisms is not considered a threat to the subspecies." AR at 19. As plaintiffs correctly state, and defendants themselves seem to acknowledge, the ESA mandates that a species be listed as endangered or threatened if any one of the five factors contained in § 1533(a)(1) is implicated. 16 U.S.C. § 1533(a)(1); AR at 13 ("Species are listed or delisted under the Act based on whether they are threatened or endangered by one or more Factors[.]"); see also Am. Wildlands v. Kempthorne, 530 F.3d 991, 994 (D.C.Cir.2008). Accordingly, to the extent the agency's decision was based on an analysis that did not separately assess the adequacy of existing regulatory mechanisms, the agency is directed to do so on remand.
|
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHARON D. RICHARDSON, :
:
Plaintiff, : Civil Action No.: 13-00826 (RC)
:
v. : Re Document No.: 40
:
GEORGE PETASIS, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Sharon D. Richardson, an African-American female, was an employee of
Defendant The Johns Hopkins University (“JHU”) from April 2011 to January 2013. Ms.
Richardson brings this civil action against JHU and four of its employees or former employees,
Defendants George Petasis, Shanna Hines, Deborah Grandval, 1 and Myron Kunka (collectively,
the “Individual Defendants”), for race discrimination and retaliation in violation of Section 1981
of the Civil Rights Act of 1866, Title VII of the Civil Rights Act of 1964, and Title 2 of the
District of Columbia Human Rights Act of 1977 (“DCHRA”). See Am. Compl., ECF No. 27.
Ms. Richardson alleges that JHU, through the conduct of the Individual Defendants,
discriminated against her with respect to the terms and conditions of her employment because of
her race (Counts I–III), created a hostile work environment (Count VI), and retaliated against her
1
Defendants’ motion states that the Amended Complaint incorrectly identifies this
Defendant as “Debbie Grandval.” See Mem. Supp. Defs.’ Mot. Summ. J. at 1, ECF No. 40-1.
for her complaints of race discrimination (Count V) and that the Individual Defendants aided and
abetted the discriminatory and retaliatory conduct (Count IV). 2 See id. ¶¶ 121–50.
Before the Court is Defendants’ motion seeking summary judgment on all counts of the
Amended Complaint. See Defs.’ Mot. Summ. J., ECF No. 40. Upon consideration of the
parties’ arguments in support of and in opposition to the motion 3 and the record before the Court,
2
Ms. Richardson’s Amended Complaint is inartfully drafted with respect to its claims
against the Individual Defendants and, apart from the aiding and abetting claim, does not make
clear which claims are brought against which defendants. For example, Count I, the
discrimination claim brought under Section 1981, references “Defendants’ conduct” but does not
claim that the Individual Defendants are liable for discrimination under that statute. E.g., Am.
Compl. ¶¶ 123–24. On the other hand, Count III, the discrimination claim brought under the
DCHRA, alleges that “Defendant JHU-SAIS discriminated against Plaintiff” and does not refer
to the Defendants in plural form. Id. ¶ 130. In a third variation, Count V, the retaliation claim,
references Section 1981, Title VII, and the “DCORC” (which the Court interprets to mean the
DCHRA) and “Defendants’ acts and/or omissions.” Id. ¶¶ 142, 143. In yet another variation,
Count VI, the hostile work environment claim, does not reference any particular statute but
references “Defendants’ acts and/or omissions.” Id. ¶¶ 146–49. Both parties treat the Amended
Complaint as bringing direct claims for discrimination and retaliation against only JHU and
bringing a claim of aiding and abetting violations of the DCHRA against each of the Individual
Defendants. The Court does the same.
3
The quality of Ms. Richardson’s brief in opposition to Defendants’ motion for summary
judgment and its related exhibits leaves much to be desired. For example, Ms. Richardson’s
counsel filed numerous exhibits along with her opposition brief but, without explanation, filed
additional exhibits the following day. See ECF No. 43. Those additional exhibits were filed out
of order. Even within the exhibits, some pages are inexplicably out of order. See, e.g., Pl.’s Ex.
5, ECF No. 42-8. Moreover, several of the exhibits merely consist of one page with a
handwritten note referring to another exhibit. E.g., Pl.’s Ex. 46, ECF No. 43-8 (“See Exhibit
40”). Ms. Richardson’s counsel then filed a final exhibit as an attachment to a certificate of
service the following day. See Pl.’s Ex. 19, ECF No. 44-1. Ms. Richardson’s counsel gave no
notification, let alone any explanation, for filing the exhibit in this manner. Additionally, despite
three separate filings of exhibits over the course of three days, certain exhibits cited in the
opposition brief appear to be missing from the record: Plaintiff’s Exhibits 24, 40, 41, 42, 44, and
47. The problems are not limited to haphazard filings. Among other things, Ms. Richardson’s
own 40-page affidavit is cited throughout the opposition brief and the Statement of Facts in
Dispute as one of the primary sources she relies upon in opposition to summary judgment, but
there are no pincites to the declaration, making it very difficult to understand what portion is
relied upon. See Pl.’s Opp. Defs.’ Mot. Summ. J., ECF No. 42; Pl.’s Stmt. Facts In Dispute, ECF
No. 42-2. Local Civil Rule 7(h) requires a party opposing a motion for summary judgment to
include in her statement of disputed facts “references to the parts of the record relied on” for
support. D.D.C. Local Civ. R. 7(h)(1). “The rule embodies the thought that judges ‘are not like
2
the Court will grant the motion in part and deny the motion in part for the reasons explained
below.
II. FACTUAL BACKGROUND 4
JHU’s Paul H. Nitze School of Advanced International Studies (“SAIS”) is a global
educational institution that maintains its primary campus in Washington, D.C. Its Office of
Information Technology provides computing support for SAIS students, faculty, and staff,
including computing and audio-visual support for SAIS events. See Defs.’ Stmt. Facts Not In
Dispute (“Defs.’ SOF”) ¶ 1, ECF No. 40-2. Plaintiff Sharon Richardson began working for
SAIS’s Office of Information Technology on April 11, 2011 and resigned on January 22, 2013.
See id. ¶ 6.
A. JHU’s Hire of Ms. Richardson and Ms. Richardson’s Responsibilities
Ms. Richardson was hired as an Information Technology Manager with the title of
Director of Operations and maintained this title throughout her employment. 5 See Defs.’ Ex. 2,
pigs, hunting for truffles buried in briefs’ or the record.” Potter v. District of Columbia, 558
F.3d 542, 553 (D.C. Cir. 2009) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991)). Nevertheless, the Court has expended considerable effort to determine what portions of
the record Ms. Richardson relies upon in her opposition. Finally, Defendants also make several
arguments concerning admissibility issues raised by the opposition. See Defs.’ Reply Supp. Mot.
Summ. J. at 2–8, ECF No. 46. The Court addresses these arguments, infra, to the extent that
they may be relevant to the Court’s analysis.
4
In ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). Accordingly, where the facts are disputed, the Court views the
evidence in the light most favorable to Ms. Richardson.
5
In one portion of her response to Defendants’ Statement of Facts, Ms. Richardson
disputes this title, stating that her proper title was “Information Technology Operating Unit
Director.” Pl.’s Stmt. Facts In Dispute ¶ 3, ECF No. 42-2. Ms. Richardson does not argue that
this dispute is material to her claims, but the Court is compelled to note that the evidence, a
formal JHU description of the position and its responsibilities dated April 2011 that Ms.
Richardson does not dispute, states that her title was Director of Operations. See Defs.’ Ex. 2,
3
ECF No. 40-4. Defendant George Petasis, who was the Chief Information Officer (“CIO”) of
SAIS and Ms. Richardson’s superior throughout her employment, interviewed both Ms.
Richardson and Defendant Deborah Grandval, who is Caucasian, for the position. See Defs.’
SOF ¶¶ 4, 7; see also George Petasis Dep. Tr. at 9:11–18, Defs.’ Ex. 4 (“Petasis Dep. Tr.”), ECF
No. 40-6. 6 At the time, Mr. Petasis concluded that Ms. Richardson was more qualified for the
position than Ms. Grandval due to the experience that Ms. Richardson described on her resume,
and he selected Ms. Richardson for the position. See Defs.’ SOF ¶¶ 7–9; see also Petasis Dep.
Tr. at 9:21–10:1; id. 11:4–6. According to Ms. Richardson, Mr. Petasis told her during her
interview for the position that “he did not need a technical person” and that she “could be trained
later.” Aff. Sharon D. Richardson ¶ 7, Pl.’s Ex. 7 (“Richardson Aff.”), ECF No. 42-10.
As the Director of Operations, Ms. Richardson supervised approximately eight
employees. See Defs.’ SOF ¶ 11. 7 Her responsibilities included overseeing audio-visual events
at SAIS, managing the Service Desk, which provides help to users with technology issues and
requests for service, assisting SAIS faculty, staff, and students with their technology needs,
ECF No. 40-4. Moreover, in other portions of her response to Defendants’ Statement of Facts,
Ms. Richardson does not dispute Defendants’ reference to her as the Director of Operations. See,
e.g., Pl.’s Stmt. Facts In Dispute ¶ 11. The Court also observes that Ms. Richardson alleged that
she was the “Director of Information Technology” in both her Amended Complaint and the
affidavit that she submitted in opposition to Defendants’ motion for summary judgment. Am.
Compl. ¶ 20; Aff. Sharon D. Richardson at ¶ 3, Pl.’s Ex. 7, ECF No. 42-10.
6
For ease of reference, the Court’s citations to deposition transcripts are to the page and
line numbers of the transcripts, rather than the page numbers of the exhibits submitted by the
parties.
7
Defendants’ Statement of Facts cites Ms. Richardson’s deposition testimony in support of
this fact, but the cited portion is missing from the excerpts provided to the Court. See Defs.’ Ex.
1-A, ECF No. 41-1. In this instance, and in a few other instances of the same issue, the error is
immaterial, because Ms. Richardson does not dispute Defendants’ factual statement. See Pl.’s
Stmt. Facts In Dispute ¶ 11. The Court notes other instances of this issue only where the error
affects its analysis.
4
managing the IT budget and staff, providing IT support for JHU’s Carey Business School, and
assisting Mr. Petasis with IT initiatives. See id.; Defs.’ Ex. 2. The JHU Staff Handbook also
states that all employees are responsible for “perform[ing] duties assigned by [their] supervisor
even if not included in [their] job description.” Defs.’ Ex. 5 at JHU00454–55, ECF No. 40-7.
B. Beginning of Ms. Richardson’s Employment
The signs of a future strained relationship between Ms. Richardson and Mr. Petasis were
evident early in Ms. Richardson’s employment. When Ms. Richardson began working in April
2011, Mr. Petasis was out of the office on a two-week vacation, and when he returned to the
office he and Ms. Richardson had a good and pleasant working relationship. See Defs.’ SOF ¶
15.
On or about May 5, 2011, however, Mr. Petasis yelled at Ms. Richardson in front of
Mohammad Elahi, one of Ms. Richardson’s staff members. See id. ¶ 16; Defs.’ Ex. 7, ECF No.
40-9 (handwritten note dated May 11, 2011 describing the incident). Ms. Richardson states that
Mr. Petasis “yelled and screamed at me in a physically hostile manner” and was “so close that I
could feel his breath and smell the coffee on his breath.” Richardson Aff. ¶ 11. Ms. Richardson
testified that she confronted Mr. Petasis about his conduct soon afterwards and told him that she
found it “offensive.” See Sharon Richardson Dep. Tr. at 222:8–223:21, Defs.’ Ex. 1-B
(“Richardson Dep. Tr.”), ECF No. 41-2. She testified that their interaction was calm and that it
ended by shaking hands. See id. Ms. Richardson also mentioned this incident to Defendant
Shanna Hines, an African-American woman who was the Human Resources Manager during Ms.
Richardson’s employment, shortly thereafter. See Defs.’ SOF ¶ 5; Richardson Dep. Tr. at
223:22–224:15. Ms. Richardson states, however, that Mr. Petasis frequently yelled and
screamed at her and invaded her personal space throughout her employment. See Richardson
5
Aff. ¶ 10. Nevertheless, Ms. Richardson testified that from May to September 2011, she and Mr.
Petasis had a “good relationship” and treated each other with respect. See Richardson Dep. Tr. at
262:16–263:2, Defs.’ Ex. 1-C, ECF No. 41-3.
Mr. Petasis states that within the first few months of Ms. Richardson’s employment, he
realized that Ms. Richardson’s “technical competence was not at the level [he] had understood it
to be based on her resume and [his] interview of her.” 8 Aff. George Petasis ¶ 4, Defs.’ Ex. 6
(“Petasis Aff.”), ECF No. 40-8. In July 2011, he hired Ms. Grandval as an IT Manager reporting
directly to him with the title of IT Project Leader. See Defs.’ SOF ¶ 33; Aff. Shanna Hines ¶ 14,
Defs.’ Ex. 3 (“Hines Aff.”), ECF No. 40-5; Pl.’s Ex. 12, ECF No. 42-15.
C. Physical Incident Involving Mr. Petasis and First Meeting with Human Resources
Ms. Richardson states that on or about September 27, 2011, 9 Mr. Petasis touched her
shoulder in a way that she felt was inappropriate. See Defs.’ SOF ¶ 18. During her deposition,
Ms. Richardson testified that on that day, while she and Mr. Petasis were working in a “very
tight,” small control room, Mr. Petasis, with his body in “very close proximity,” briefly squeezed
and rubbed her shoulder. Richardson Dep. Tr. at 235:17–240:19. She testified that she found
this physical contact offensive. See id. at 240:22–241:17. The next day, Ms. Richardson
confronted Mr. Petasis about the incident, telling him that he had made her uncomfortable. See
8
Ms. Richardson challenges Mr. Petasis’s testimony by claiming that on a few occasions
during her first few months of employment, Mr. Petasis made comments indicating that he had
no complaints about her work. See Pl.’s Stmt. Facts In Dispute ¶ 13. Her only support for this
proposition is a general citation to her 40-page affidavit without any pincite. See id. It is not
clear what portion of her affidavit she references. On the other hand, Defendants do not provide
a copy of Ms. Richardson’s resume or explain which portions of it Mr. Petasis believed to be
overstated.
9
In a “Memorandum For Record” dated September 29, 2011, discussed, infra, Ms.
Richardson referred to this incident as occurring on September 20, 2011. See Defs.’ Ex. 8 at
SDR000993, ECF No. 40-10.
6
id. at 245:3–11. Mr. Petasis responded by telling her that he “respect[s] that” and that he “didn’t
mean anything.” See id. at 245:16–18. Ms. Richardson felt satisfied with his response at the
time, which she characterized as courteous. See id. at 246:19–20; id. at 248:4–5. Ms.
Richardson does not attribute Mr. Petasis’s actions to racial discrimination. See Defs.’ SOF ¶
21; Richardson Dep. Tr. at 248:8–11.
Two days later, on September 29, 2011, at her request, Ms. Richardson met with Ms.
Hines and Defendant Myron Kunka, the Associate Dean for Finance and Administration at the
time, who was responsible for overseeing Human Resources and the Office of Information
Technology, to generally discuss her and her staff’s concerns about Mr. Petasis. See Defs.’ SOF
¶ 22. After the meeting, Ms. Richardson created a “Memorandum For Record” memorializing
her recollection of the conversation. See Defs.’ Ex. 8, ECF No. 40-10. According to Ms.
Richardson’s memorandum, the purpose of the meeting was to, first, “[m]ake management
formally aware” that the Office of Information Technology was a “hostile” environment and,
second, to “share concerns expressed by my direct reports (staff/personnel) and myself.” Id. at
SDR000992. Ms. Richardson stated that her staff had expressed concerns regarding Mr.
Petasis’s “inappropriate and unprofessional behavior” and that she was doing her job “to project
that information forward” by putting it “on record.” Id. She stated that her staff felt “threatened
and bullied” by Mr. Petasis for a few different reasons. Id. She stated, for example, that she was
informed that Mr. Petasis “has a history of volatile actions such as yelling, intimidation,
harassment and even pounding his fist on the desk.” Id. at SDR000992–93. She also stated that
her male staff had complained about Mr. Petasis grabbing their shoulders and shaking them. See
id. at SDR000993.
7
Ms. Richardson also told Ms. Hines and Mr. Kunka that some of her male staff wanted
Mr. Petasis to stop referring to them as “his boys.” Id. at SDR000992. She wrote in her
memorandum: “They find this reference offensive and degrading, example: One staff is of
[Philippians [sic] Origin] and another is [Ethiopian Nationality].” Id. (punctuation in original).
During her deposition testimony, Ms. Richardson provided some clarification. She testified that
the members of her staff that she referenced were Michael Berbano, who she said was of Filipino
origin, and Mr. Elahi, who she said was of Iranian origin. 10 See Richardson Dep. Tr. at 263:13–
18; id. at 270:11–16. She stated that Mr. Berbano complained to her directly and that Mr. Petasis
“referred to Moe Elahi in my presence, asking me, ‘How is your boy?’” Id. at 263:14–18; id. at
272:8–274:18. She could not recall whether she informed Mr. Elahi that Mr. Petasis referred to
him using the term “boy” or whether Mr. Elahi ever complained to her about it. See id. at
275:11–19. She testified that, as an African-American, she associates the term “boy” with
slavery and found it racially offensive and discriminatory. See id. at 272:2–7. She said that Mr.
Berbano did not express any feelings of racial discrimination in his complaint to her but that he
told her that he felt it was derogatory because he is a “grown-ass man.” See id. at 273:13–274:7.
Her memorandum does not reflect that she expressed the racial connotations she made with
slavery to Ms. Hines and Mr. Kunka, and Ms. Richardson testified that the memorandum was, to
her knowledge, a complete and accurate representation of what she discussed at the meeting. See
Richardson Dep. Tr. at 275:20–276:5.
10
During her deposition testimony, Ms. Richardson did not indicate that there was a third
staff member of Ethiopian origin who complained to her, discussing only Mr. Berbano and Mr.
Elahi as the employees that Mr. Petasis referred to as “his boys.” She appears, therefore, to have
been confused concerning Mr. Elahi’s ethnicity or national origin.
8
D. Incidents with Mr. Petasis and Ms. Grandval in January and February 2012
On January 24, 2012, Mr. Petasis had a heated discussion with Ms. Richardson in which
she claims that he yelled at her regarding a meeting that Ms. Richardson had requested with
Human Resources earlier that month. See Richardson Aff. ¶ 28; Pl.’s Ex. 11, ECF No. 42-14.
Ms. Richardson summarized that discussion in a memorandum dated two days later and
addressed to Mr. Petasis. 11 See Pl.’s Ex. 11. According to the account provided in the
memorandum, Ms. Richardson requested the meeting to discuss issues related to staffing and Mr.
Petasis yelled at her regarding the need for the meeting and for the two hours’ notice that Ms.
Richardson provided him in advance of the meeting. See id. at JHU00246. In the memorandum,
Ms. Richardson wrote she “felt very uncomfortable and fearful to remain in the room with you”
and referenced other purported instances of Mr. Petasis screaming at her and other employees.
Id. She also asked, “Is this rough and harsh behavior because of my gender, race or ethnicity?”
Id. She closed the memorandum by stating that she would request to meet with Mr. Petasis, his
supervisor, and Human Resources. See id. at JHU00247.
On February 22, 2012, Ms. Richardson had an encounter with Ms. Grandval that Ms.
Richardson characterizes as threatening. See, e.g., Richardson Dep. Tr. at 323:17–18, Defs.’ Ex.
1-D, ECF No. 41-4. According to Ms. Richardson’s testimony, Ms. Grandval came to her office
to ask her a question, and, because Ms. Richardson was doing something else at the time, she did
not respond. See id. at 322:6–9. Ms. Grandval then, according to Ms. Richardson’s testimony,
yelled at her that she asked her a question and Ms. Richardson again did not respond. See id. at
11
It is unclear whether this memorandum was actually written for Mr. Petasis. In a
subsequent memorandum from Mr. Petasis to Ms. Richardson over one month later, discussed,
infra, Mr. Petasis referred to this document as a “Memo to Human Resources that was addressed
to me.” Pl.’s Ex. 22, ECF No. 42-23. There is no indication on the face of the memorandum as
to where and when it was delivered.
9
322:8–12. Ms. Richardson testified that Ms. Grandval then “lunged in my face, and her breath
was on my breath,” yelling at her, “When I ask you something, you need to tell me.” Id. at
322:13–323:8. Ms. Richardson claims that shortly after this incident, Mr. Petasis removed her
access to the calendar on Microsoft Outlook but that he did not remove Ms. Grandval’s access,
which impeded her ability to perform her work. See Defs.’ SOF ¶ 28.
A week later, on February 29, 2012, Mr. Petasis wrote a memorandum to Ms. Richardson
in response to her memorandum dated January 26, 2012 and in advance of a meeting that the two
had with Ms. Hines that same day. See Pl.’s Ex. 22, ECF No. 42-23. Mr. Petasis disputed the
factual account that Ms. Richardson provided in her memorandum, writing: “It was shocking to
see things twisted around and styled in a way where you appear to be the victim; discussions
taken out of context, and comments often distorted, in order to present me in the worst possible
way.” Id. at JHU00235. He stated that he had been trying to accommodate Ms. Richardson’s
“hostile attitude, body language and behavior at meetings, as well as emails, these past ten
months,” and that he had attempted to address issues that she brought to him and “reassure you
that nobody was out to get you and that we are all part of the same team.” Id. He also addressed
the specific incidents that Ms. Richardson discussed in her memorandum. With respect to their
meeting on January 24, 2012, he stated that “[i]f there was one person that raised their voice
during this conversation it was you while you were trying to explain your earlier emails” and that
he “was actually under the impression that the conversation went well,” given that Ms.
Richardson thanked him at its conclusion and appeared to be in a “much better mood.” Id. at
JHU00236. He stated that he was therefore surprised when he saw his words “twisted and
warped in your email and you quoting me out of context.” Id.
10
Mr. Petasis also addressed what he characterized as Ms. Richardson’s unprofessional
behavior and need for improvement, writing, in part: “[T]hings need to change going forward
and beyond your body language, the tone in your voice, and the way you deal with your peers,
you need to also address the manner in which your [sic] write some of your emails where at
times you make me feel that I’m the one working for you and not the other way around . . . .” Id.
at JHU00238. He encouraged Ms. Richardson to “come see me if you’re not getting the kind of
response you are expecting” and told her that she should “stop feeling insecure about [her] job.”
Id. He stated that he would discuss these issues during their upcoming meeting with Human
Resources. See id. Ms. Hines submits an affidavit characterizing Mr. Petasis’s memorandum as
“counseling [Ms. Richardson] on ways she needed to improve her work performance.” Hines
Aff. ¶ 3. See also Petasis Dep. Tr. at 36:21–37:3 (testifying that this portion of the memorandum
“was guidance that, in my mind, was – was prescribing the course of action she had to take,
corrective action she had to take”).
Ms. Richardson met with Mr. Petasis and Ms. Hines on the same day as Mr. Petasis’s
memorandum. Ms. Hines states that she met with the two of them “to try to help them resolve
their conflict” and that during this meeting, Ms. Richardson “cited as a source of conflict the fact
that Petasis had yelled at her in May 2011.” Hines Aff. ¶ 4. Ms. Richardson also discussed her
encounter with Ms. Grandval on February 22. In an e-mail that Ms. Richardson sent to Ms.
Hines on March 1, 2012 following up on their meeting, she summarized the incident with Ms.
Grandval, referring to her “advanc[ing] toward my face” and stating that she “felt this behavior
was unacceptable in the work environment, unprofessional more importantly, threatening.”
Defs.’ Ex. 11, ECF No. 40-13 (emphasis omitted). Ms. Richardson’s account does not indicate
11
that she raised any concerns regarding race discrimination by either Mr. Petasis or Ms. Grandval
to Ms. Hines or Mr. Petasis.
E. Incident with Ms. Grandval in May 2012
According to Ms. Richardson, she had another, more serious encounter with Ms.
Grandval on May 9, 2012. Ms. Richardson testified during her deposition that on that day Ms.
Grandval came into her office following a meeting with Mr. Petasis, closed the door, leaned
over, and said to her, “I know exactly where you park your car, and I am going to hurt you, and I
will get your job. . . . And nobody will believe you.” Richardson Dep. Tr. at 336:3–9. See also
id. at 334:8–341:3 (discussing the incident). In a contemporaneous e-mail that Ms. Richardson
sent to Mr. Petasis and Ms. Hines the same day, she provided another description. See Defs.’ Ex.
12, ECF No. 40-14. She wrote:
Debbie G. came into my office and closed my door and proceeded
with the same discussion about “why I sent the email”? She was
antagonistic and badgering…….The purpose of our previous
meeting was to bring closure….why did she need to badger me
again? I’m not comfortable with her behind closed doors, because,
of the last episode where she lunged over my desk in my face…..So
I opened the door….She and I disagreed and I told her I was not
going to engage any further in this confrontational discussion…. I
asked “what she needed or how may I assist her”? She continued to
badger me about the email and Sais Store, and etc. Why would she
continue to pursue and badger me about the very discussion you
advised in your office 10 minutes prior to terminate? I heard her
acknowledge she understood in your office.
Id. (ellipses in original). Ms. Richardson requested that Mr. Petasis “advise Debbie Grandval to
confront me as a professional colleague with respect” and informed him that she was leaving
work early because she did not feel well and could not “successfully function” “[d]ue to the
stress and hostile environment today.” Id. Ms. Richardson made no mention of any threats of
physical violence or racial animus.
12
Ms. Richardson met with Mr. Petasis the next day, May 10, 2012, to discuss the incident
with Ms. Grandval, and Ms. Richardson created a “Memorandum For Record” purporting to
summarize her account of their conversation. See Defs.’ Ex. 13, ECF No. 40-15. According to
this memorandum, Ms. Richardson informed Ms. Petasis that Ms. Grandval “badger[ed]” her,
repeatedly asking “why did you send the email?” and was “antagonistic and threatening me.” Id.
at SDR000214. She stated that she “felt uncomfortable, harassed, and insulted.” Id. She also
wrote: “Debbie turns around and does what she feels like doing to Sharon. Debbie can shoot
Sharon. . . . She can hurt Sharon. She can do whatever she wants to Sharon and there’s no
recourse, no consequences.” Id. She also stated that she would be locking her door after hours
and that she did not “feel safe or comfortable.” Id. She also wrote that she told Mr. Petasis that
she “know[s] what to do the next time” and that when Mr. Petasis asked her what she would do,
she responded by stating, “It will be a surprise. I know how to handle it,” and “You’ll see.” Id.
at SDR000215. While the memorandum states that Ms. Grandval was “threatening” Ms.
Richardson during the encounter, it does not state or otherwise indicate that Ms. Grandval
explicitly threatened physical violence. The memorandum also contains no mention of potential
racial animus.
F. Incident with Mr. Petasis and Ms. Grandval and Medical Leave in the Summer of 2012
On June 4, 2012, according to Ms. Richardson, Mr. Petasis excluded her from a meeting
with SAIS’s campus in Bologna, Italy regarding IT Operations but allowed Ms. Grandval to
attend. See Richardson Aff. ¶¶ 50–52; Defs.’ SOF ¶ 29. Ms. Richardson states that, on the same
day, Mr. Petasis “yelled and screamed” at her in his office. 12 Richardson Aff. ¶ 54. Ms.
12
It is unclear from Ms. Richardson’s affidavit whether this incident occurred before or
after the meeting with SAIS’s campus in Bologna or whether there was any connection between
Ms. Richardson’s exclusion from that meeting and this incident.
13
Richardson states that Mr. Petasis “invited Defendant Grandval to join in his interrogation of me
during this meeting and she did.” Id. ¶ 55. Ms. Richardson states that during the meeting Ms.
Grandval “lodged a complaint regarding my alleged use of abusive language towards her” but
that neither Mr. Petasis nor Ms. Grandval told her what she was accused of saying, though they
stated that they would take Ms. Grandval’s complaint to Human Resources. See id. ¶¶ 57–59.
Ms. Richardson states that, following this meeting, she “felt like [she] was having a heart
attack,” fell to the floor, temporarily lost consciousness, and asked one of her staff members to
call 911. Id. ¶ 62. She was taken to a hospital in an ambulance where she underwent medical
tests. See id.
Documents indicate that Ms. Richardson was out of the office for at least a short period
following the incident on June 4, 2012. 13 See Defs.’ Ex. 29-A at JHU00189–90, ECF No. 41-5.
While she was out of the office, Mr. Petasis asked one of Ms. Richardson’s staff members to
remove her from an e-mail distribution list and put her back on the list upon her return to the
office. See id. Ms. Richardson states that this removal would have “disengage[d] [her] access to
the staff, service desk activity, staff communication, and etc.” Richardson Aff. ¶ 154. When
Ms. Richardson requested to be put back on the list, Mr. Petasis responded that he would “rather
you stay off work while you’re on sick leave” and said that she would be added upon her return.
Defs.’ Ex. 29-A at JHU00189. After Ms. Richardson reiterated her request to be added back to
the list immediately, Mr. Petasis agreed to do so. See id. Ms. Richardson states that she raised
this issue to Ms. Hines, who told her that “George is just being petty.” Richardson Aff. ¶ 154.
According to Ms. Hines, on or about June 22, 2012, Mr. Petasis asked her for advice “on
how to discipline Richardson given the ongoing work performance and insubordination
13
This period may have been only one day. See Defs.’ SOF ¶ 30.
14
problems,” and, on June 26, 2012, Ms. Hines advised Mr. Petasis to prepare a Final Written
Warning. 14 Hines Aff. ¶ 5. Ms. Richardson began receiving mental health treatment and, on her
physician’s recommendation, took Family Medical Leave from her employment from July 9,
2012 to August 13, 2012. See Richardson Aff. ¶¶ 63–65. Upon her return to work on August
13, she filed her first charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”), as well as a complaint with JHU’s Office of Institutional Equity at or
around the same time. See Defs.’ SOF ¶ 67; Richardson Aff. ¶ 66. Documents indicate that Ms.
Richardson informed at least Ms. Hines of her filing upon her return to work. See Pl.’s Ex. 9 at
JHU00514, ECF No. 42-12 (“Ms. Hines said that when Ms. Richardson was on medical leave
she filed her first EEOC complaint and that she notified Ms. Hines she had filed the EEOC
complaint upon her return to work.”).
G. Alleged Removal of Supervisory Duties, Final Written Warning, and Alleged
Reassignment in September 2012
Documents reflect that Ms. Richardson’s relationship with Mr. Petasis and Ms. Grandval
continued to deteriorate following her return from medical leave and her filing with the EEOC.
For example, on the day she returned, Ms. Richardson wrote to Mr. Petasis and Ms. Grandval
regarding a binder that she said was in her office prior to her medical leave but could not find
upon her return: “My ‘shredding’ information is missing!!!! That would have been helpful in
writing procedures….Oh well….It walked away!!!!!!” Defs.’ Ex. 27 at JHU00385 (ellipses in
original). Mr. Petasis responded by writing to Ms. Richardson that “insinuating that one of your
colleagues has walked away with your binder without any kind of proof is both unacceptable and
14
As discussed, infra, JHU did not issue Ms. Richardson a Final Written Warning until
September 2012.
15
unprofessional – please refrain from doing so in the future.” Id. at JHU00384. Similar e-mail
exchanges occurred over the next several weeks. Also, according to a memorandum authored by
Ms. Richardson and addressed to Mr. Petasis, he and Ms. Grandval told Ms. Richardson on
September 4, 2012 that they would be “taking me to Human Resources.” Defs.’ Ex. 29-A at
JHU00184.
On September 11, 2012, according to Ms. Richardson, Ms. Grandval announced during a
meeting with the IT Operations staff that Mr. Petasis “granted her decision making authority in
IT Operations” and that, though Ms. Richardson maintained her title as Director of Operations,
she was “demoted with no authority.” Richardson Aff. ¶¶ 67–68. She states that, as a result of
this announcement, she was “forced to ask permission from Grandval when utilizing my staff.”
Id. ¶ 71. See also Richardson Dep. Tr. 343:7–11 (“[S]he held a meeting with my staff and
myself and indicated that she would be making decisions on behalf of the director of IT
operations.”). Ms. Richardson also testified that, during the meeting, Ms. Grandval “removed” a
member of her staff. Richardson Dep. Tr. at 343:12–17. Ms. Richardson e-mailed a summary of
this meeting to herself on October 1, 2012. See Defs.’ Ex. 19.
On September 13, 2012, Mr. Petasis issued Ms. Richardson a formal Final Written
Warning regarding her “[u]nacceptable behavior.” Defs.’ Ex. 27. The Final Written Warning
stated that since Mr. Petasis’s February 29, 2012 memorandum and their meeting with Human
Resources on that day, Ms. Richardson’s behavior had “deteriorated to the point that formal
action is once again required.” Id. at JHU00374. The memorandum then provided Mr. Petasis’s
descriptions of a variety of specific incidents and behavior that he believed were unacceptable
and unprofessional, including: (1) raising her voice in the office or in meetings; (2) glaring at
others in an intimidating or threatening manner; (3) walking out of meetings that had not
16
officially ended; (4) sending harshly worded and unprofessional e-mails to Mr. Petasis and
others; (6) making unfounded accusations that others had taken things from her office; (7)
refusing to meet to discuss IT Operations matters; and (8) publicly undermining Mr. Petasis and
questioning his decisions. See id. at JHU00374–75. Mr. Petasis also attached documentation to
support his statements. See id. at JHU00378–405. He provided Ms. Richardson with a list of
eight actions or performance improvements that were required and informed her that her
“continued employment in the position of Director of IT Operations (classified title is IT
Manager) is in jeopardy” and that “[f]ailure to correct immediately and sustain an acceptable
level of work performance and appropriate, professional and courteous behavior to all clients
(internal and external to SAIS), including your manager and colleagues, will lead to your
termination.” Id. at JHU00375–76.
Around this time, though it is unclear whether it occurred before, after, or at the same
time as the Final Written Warning, Mr. Petasis also assigned Ms. Richardson to work at the
Service Desk. Ms. Richardson claims that she was “permanently reassigned” to work there,
which effectively constituted a demotion. See Richardson Aff. ¶ 80 (alleging that Mr. Petasis
“permanently placed my [sic] at the help desk”); id. ¶ 161 (“I was working at the help desk as
directed by Mr. Petasis and Ms. Grandval, not as a supervisor, but, a help desk associate, because
I was demoted to the help desk.”). She further claims that she was forced to work at the Service
Desk “alone or with minimal assistance,” stating that Mr. Petasis removed assisting staff
members from the Service Desk, and she provides dates and times that she worked at the Service
Desk for long periods. See id. ¶ 81. She also states that the Service Desk was located in another
building and “interfered with [her] ability to manage Operations” and “impacted [her] job” in
several specific ways. See id. ¶¶ 82–106. Defendants, however, claim that Ms. Richardson was
17
not assigned to work at the Service Desk full-time and that working at the Service Desk fell
within the scope of her duties as the Director of Operations.
H. Appeal to Mr. Kunka and Second EEOC Filing in October 2012
On October 9, 2012, Ms. Richardson appealed the Final Written Warning in accordance
with JHU’s internal procedures to Mr. Kunka. See Defs.’ Ex. 29. In her appeal letter to Mr.
Kunka, Ms. Richardson asserted that “Management knew” that her supervisor “habitually
shouted at employees” and “habitually intimidated, abused and discriminated against
employees.” Id. at JHU00155. See also Defs.’ SOF ¶ 72. Ms. Richardson also responded to the
various incidents described by Mr. Petasis in the Final Written Warning one-by-one, and, by her
own admission in response to Defendants’ motion for summary judgment, the only allegations
she specifically denied were that she refused to meet with Mr. Petasis and that she walked out of
a meeting before it had ended. 15 See Defs.’ Ex. 29 at JHU00156–60; Defs.’ SOF ¶ 72; Pl.’s
Stmt. Facts In Dispute ¶ 72, ECF No. 42-2. In the remainder of her letter, Ms. Richardson
attempted to justify her conduct and accused Mr. Petasis of engaging in equally unprofessional
conduct with her. See Defs.’ Ex. 29 at JHU00157–58; Defs.’ SOF ¶ 72; Pl.’s Stmt. Facts In
Dispute ¶ 72. On October 24, 2012, Mr. Kunka upheld the Final Written Warning and explained
his reasons in a 23-page letter, providing excerpts from e-mail exchanges in support. See Defs.’
Ex. 30, ECF No. 40-31.
On October 17, 2012, before Mr. Kunka’s decision to uphold the Final Written Warning,
Ms. Richardson filed a retaliation charge with the EEOC. See Richardson Aff. ¶ 110.
15
Ms. Richardson explains this by stating that she “declined to revisit all of the allegations
pertaining to my EEOC Filings because I knew that I was not going to receive fair results.”
Richardson Aff. ¶ 76.
18
I. Roger Daniel, Paid Administrative Leave, and Resignation
From December 2012 to February 2013, an African-American man named Roger Daniel
worked in SAIS’s Office of Information Technology and reported to Ms. Richardson. See Aff.
Roger Daniel ¶¶ 1, 2, 8 (“Daniel Aff.”), Pl.’s Ex. 8, ECF No. 42-11. Ms. Richardson, among
others, interviewed Mr. Daniel for his position, and Mr. Petasis, in part based on her
recommendation, as well as his own interview and others’ recommendations, hired him. See
Richardson Aff. ¶¶ 114–15. In her affidavit submitted in opposition to Defendants’ motion for
summary judgment, Ms. Richardson claims that Mr. Petasis continued to refer to staff members
as “boy,” specifically citing the example of Mr. Daniel. She states that “[o]n several occasions
Mr. Roger Daniel who is African-American complained to me regarding Defendant Petasis
referring to him as a ‘boy.’” 16 Richardson Aff. ¶ 15. She also provides an affidavit from Mr.
16
Defendants argue that the Court should not consider this portion of Ms. Richardson’s
affidavit, because it is a “sham affidavit.” Defs.’ Reply Supp. Mot. Summ. J. at 5–7, ECF No.
46. The “sham affidavit rule” “precludes a party from creating an issue of material fact by
contradicting prior sworn testimony unless the shifting party can offer persuasive reasons for
believing the supposed correction is more accurate than the prior testimony.” Galvin v. Eli Lilly
& Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (internal quotation omitted). “If the supplemental
affidavit does not contradict but instead clarifies the prior sworn statement, then it is usually
considered admissible.” Id. Defendants cite Ms. Richardson’s statement during her deposition
that she “cannot say” whether any African-American employees complained to her about being
referred to as boys as the support for their argument. See Defs.’ Reply at 5–7 (quoting
Richardson Dep. Tr. at 276:16–22). But a full reading of Ms. Richardson’s answer shows that
her affidavit is not contradictory. During the deposition, she responded: “I don’t know. I don’t
– I cannot say emphatically yes or no Bazemore, Robert Bazemore. I do believe there was a
discussion that – I’m not – I cannot say.” Richardson Dep. Tr. at 276:19–22. Ms. Richardson
did not state that no African-American employees complained to her; she simply stated that she
was not certain in her recollection and, in fact, gave some indication that an African-American
employee had complained to her. While her failure to recall Mr. Daniel’s complaints during the
deposition may be relevant to her credibility as a witness (which is not before the Court on
summary judgment), it is not a basis for excluding her more recent recollection. Even if the
Court were to exclude this portion of the affidavit, it would have no material impact on its
analysis, as the Court finds that this evidence is insufficient to create an inference of
discrimination.
19
Daniel confirming her account. 17 See generally Daniel Aff. He states that he complained to Ms.
Richardson that Mr. Petasis referred to him as a “boy” and that, as an African-American, he
“found that to be racist and very offensive.” Id. ¶¶ 10–11. He also states that he “never heard
Mr. Petasis refer to any Caucasians as ‘boy.’” Id. ¶ 12. Mr. Daniel also states that Mr. Petasis
“struck” him on “several occasions,” including one in which he “nearly lost [his] balance.” Id. at
¶¶ 5–6. He states that Ms. Richardson witnessed this incident and that he reported other
incidents to her. See id. ¶¶ 7, 9. Ms. Richardson states that on December 18, 2012, she spoke
with Mr. Petasis about hitting Mr. Daniel. See Richardson Aff. ¶ 124.
On December 21, 2012, JHU placed Ms. Richardson on “paid administrative leave”
(which can also be appropriately referred to as a suspension) through January 29, 2013 with full
salary and benefits. 18 Defs.’ SOF ¶ 78; Defs.’ Ex. 32, ECF No. 40-33. Ms. Hines informed Ms.
17
Defendants also argue that the Court should not consider Mr. Daniel’s affidavit under the
sham affidavit rule based upon Mr. Daniel’s prior deposition testimony in this case. See Defs.’
Reply Supp. Mot. Summ. J. at 7. In this Circuit, there appears to be an open question as to
whether the sham affidavit rule applies to statements by non-parties. See, e.g., Solomon v.
Vilsack, 628 F.3d 555, 566 (D.C. Cir. 2010) (assuming without deciding that the rule applies to
non-parties); Galvin, 488 F.3d at 1030–31 (refraining from deciding whether the sham affidavit
rule should apply to a non-party witness). The Court need not answer that question here,
because, even assuming that the rule did apply, Mr. Daniel’s affidavit would not be excluded.
First, Defendants do not provide the Court with any citation to Mr. Daniel’s deposition
testimony, leaving the Court unable to properly consider the issue. It is not even clear to the
Court if Mr. Daniel was asked whether Mr. Petasis ever referred to him as a boy during his
deposition. Moreover, even assuming the accuracy of Defendants’ characterization of the
testimony, Mr. Daniel does not appear to have contradicted his testimony in his affidavit.
Rather, at worst, Mr. Daniel now recalls something that he did not mention or recall during his
deposition. While that may be relevant to his credibility as a witness, it is not a contradiction
requiring exclusion from consideration. Even if the Court were to exclude the affidavit, it would
have no material impact on its analysis, as the Court finds that this evidence is insufficient to
create an inference of discrimination.
18
The Court observes that the letter to Ms. Richardson setting forth the terms of the
suspension stated that the administrative leave would run through January 22, 2013. See Defs.’
Ex. 32 at JHU00581. The parties, however, are in agreement that her administrative leave was to
run through January 29, 2013. See Defs.’ SOF ¶ 78; Pl.’s Stmt. Facts ¶ 78. The Court accepts
20
Richardson of the disciplinary action by letter dated the same day. See Defs.’ Ex. 32. In the
letter, Ms. Hines referenced her meeting with Ms. Richardson and Ms. Petasis in February 2012
and the Final Written Warning in September 2012. See id. at JHU00581. The letter stated that,
since the Final Written Warning, there had been “no resolution to the performance concerns
identified” and that Ms. Richardson had “failed to meet, fully, partially and/or consistently,
corrective actions and performance improvements as outline [sic] in the Final Written Warning.”
Id.
The letter stated that “[a]s a condition” of Ms. Richardson’s return, she was required to
complete two tasks for Mr. Petasis: first, an assignment that Mr. Petasis had given her
previously but found to be insufficiently completed; and second, a memorandum explaining how
she would meet the expectations described in the Final Written Warning, along with a “plan for
fulfilling” all of her listed job duties. See id. at JHU00582. The letter stated that these tasks
were “part of your return to work and without them you will not have met the criteria to return to
work” and that “[f]ailure by you to meet expectations will result in termination.” Id. The letter
also stated, however, that during her administrative leave, Ms. Richardson “should not report to
work, nor perform any managerial, supervisory or operational work duties.” Id. It also stated
that she should set up an auto reply message on her e-mail account indicating that she was on
leave and directing individuals to contact Mr. Petasis or her designee regarding work-related
matters. See id. Finally, the letter stated that Ms. Richardson would “need to obtain permission
to be on the JHU/SAIS campus unless you have prearranged meetings with the SAIS or
the parties’ agreed-upon facts. As discussed, infra, whether the administrative leave was to run
through January 22 or January 29 is immaterial for purposes of summary judgment.
21
Homewood Human Resources Office, JHU Faculty and Staff Assistance Program and/or medical
appointments.” Id.
Ms. Richardson did not complete either of the tasks required as a condition for her return.
See Defs.’ SOF ¶ 78; Pl.’s Stmt. Facts ¶ 78. Ms. Richardson states that she attempted to
complete the first task but could not do so because, without access to certain SAIS systems, she
was unable to obtain necessary data and other information. See Richardson Aff. ¶¶ 139–40.
According to Ms. Richardson, she asked Mr. Elahi about her lack of access, and he responded
that “the staff was directed not to help you.” Id. ¶ 139. She states that she then contacted
another staff member, Pedro Matias, and asked him to run and e-mail her a report that she
needed to complete the assignment since she did not have access, and Mr. Matias told her that
“George told us not to help you” and “you know what George would do if he found out.” 19 Id.
On January 22, 2013, Ms. Richardson submitted a letter of resignation. See Hines Aff.
Ex. E, ECF No. 40-5. In her letter, Ms. Richardson stated that her “complaints of race and
sexual discrimination have fallen on deaf ears” and that she could “no longer tolerate the
working conditions under discrimination, harassment and retaliation I reported several times
previously.” Id. at JHU00326. She also wrote that her lack of “access to the necessary system
and inability to communicate with staff that have been directed ‘not to help or communicate with
Sharon’ is a ‘NO WIN’ situation.” Id. She stated that JHU had therefore forced her to resign.
See id.
19
Defendants argue that Mr. Matias’s purported statement is inadmissible hearsay that the
Court cannot consider. The Court disagrees. Mr. Matias’s statement, as well as the statement by
Mr. Elahi, plainly fall within Federal Rule of Evidence 801’s definition of an opposing party’s
statements that are not hearsay. See Fed. R. Evid. 801(d)(2)(D) (providing that statements
offered against an opposing party that were “made by the party’s agent or employee on a matter
within the scope of that relationship and while it existed” are not hearsay).
22
J. Final Internal Appeal and the Present Action
Ms. Richardson also appealed Mr. Kunka’s decision to uphold the Final Written Warning
in accordance with JHU’s internal procedures and denied additional factual allegations. See
Defs.’ SOF ¶ 77. On March 8, 2013, after Ms. Richardson had resigned, JHU’s Vice President
for Human Resources accepted the recommendation of JHU’s Appeal Panel and amended the
Final Written Warning to delete the reference to it being a “Final” Written Warning. See Defs.’
Ex. 31, ECF No. 40-32. The Appeal Panel found that Mr. Petasis’s February 2012 memorandum
made “no reference to it being a discipline” and that, therefore, the Final Written Warning was
“the first discipline she received.” Id. at SDR001058. As a result, the Appeal Panel stated that
the written warning “should not have been elevated to a final warning.” Id. The Appeal Panel
also found, however, that based upon its review of the documents provided in the Final Written
Warning, Ms. Richardson “failed to meet expectations stated in the February 29, 2012,
memorandum” and was “accountable for her communication.” Id.
On June 3, 2013, Ms. Richardson commenced the present action.
III. ANALYSIS
Defendants argue that they are entitled to summary judgment on all counts of the
Amended Complaint. See Mem. Supp. Defs.’ Mot. Summ. J. at 1, ECF No. 40-1. The Court
begins its analysis by setting forth the legal standard for resolving motions for summary
judgment. The Court then addresses whether JHU is entitled to summary judgment on Ms.
Richardson’s various claims of discrimination and retaliation before turning to Ms. Richardson’s
claims against each of the Individual Defendants for aiding and abetting the alleged
discrimination and retaliation.
23
A. Legal Standard for Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant summary
judgment if “the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “material” fact is
one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a
reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380
(2007). The inquiry under Rule 56 is essentially “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See id. at 323. In response, the non-movant must point to specific facts in the
record that reveal a genuine issue that is suitable for trial. See id. at 324. In considering a
motion for summary judgment, a court must “eschew making credibility determinations or
weighing the evidence,” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), and all
underlying facts and inferences must be analyzed in the light most favorable to the non-movant,
see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without any
evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d
671, 675 (D.C. Cir. 1999).
24
B. Discrete Discriminatory Actions
Ms. Richardson brings claims against JHU for discrete racially discriminatory
employment actions on the basis of disparate treatment through Counts I, II, and III of her
Amended Complaint. 20 See Am. Compl. ¶¶ 121–32. Count I is brought under Section 1981 of
the Civil Rights Act of 1866, 42 U.S.C. § 1981. See id. ¶¶ 121–24. Count II is brought under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. See id. ¶¶ 125–28. Count III is
brought under the DCHRA. See id. ¶¶ 129–32. “Where, as here, the plaintiff has proffered no
direct evidence of intentional discrimination, race discrimination claims under both the DCHRA
and Section 1981 are evaluated using the same framework as claims arising under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000).” Lemmons v. Georgetown Univ.
Hosp., 431 F. Supp. 2d 76, 86 (D.D.C. 2006) (citing Mungin v. Katten Muchin & Zavis, 116 F.3d
1549, 1553 (D.C. Cir. 1997)).
If a Title VII plaintiff proffers only indirect evidence of discrimination at summary
judgment, courts apply the three-part burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003). Under
McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination by
showing that: “(1) she is a member of a protected class; (2) she suffered an adverse employment
action; and (3) the unfavorable action gives rise to an inference of discrimination.” Czekalski,
475 F.3d at 364 (internal quotation omitted). “The burden of establishing a prima facie case of
20
The language of Counts I, II, and III of the Amended Complaint broadly incorporates all
forms of unlawful discrimination on the basis of race. See Am. Compl. ¶¶ 121–32. Ms.
Richardson’s claim for hostile work environment, though a form of unlawful discrimination, is
brought separately under Count VI. See id. ¶¶ 145–50. The parties construe Counts I, II, and III
to therefore concern tangible employment actions, and the Court does the same. As discussed,
infra, however, the Court also treats Ms. Richardson’s claim of constructive discharge, which is
not pleaded as a separate count, as falling within Counts I, II, and III.
25
disparate treatment is not onerous.” Texas Dep’t Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981). See also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (describing the
requirements for establishing a prima facie case as “minimal”); Pope v. ESA Servs., Inc., 406
F.3d 1001, 1007 (8th Cir. 2005) (“A minimal evidentiary showing will satisfy this burden of
production.”).
Once the plaintiff establishes a prima facie case, then the burden of production shifts to
the employer to articulate a legitimate, non-discriminatory reason for its action; and finally, if the
employer meets that burden, then the plaintiff must show that the employer’s asserted reason was
a pretextual cover for discrimination. See McDonnell Douglas, 411 U.S. at 802–05. If, however,
the plaintiff has suffered an adverse employment action and her employer asserts a legitimate,
non-discriminatory reason for the action, then the Court must forgo the McDonnell Douglas
burden-shifting framework. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008). Instead, the Court “must resolve one central question: Has the employee produced
sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory
reason was not the actual reason and that the employer intentionally discriminated against the
employee on the basis of race . . . .?” Id.
Here, Ms. Richardson claims that she suffered three separate tangible adverse
employment actions: 21 (1) removal of her supervisory duties in September 2012; (2) permanent
21
In her opposition to Defendants’ motion for summary judgment, Ms. Richardson does not
claim that the Final Written Warning in September 2012, which preceded and laid the foundation
for her suspension, was a discrete discriminatory action, only that it was an unlawful act of
retaliation. See Pl.’s Opp. at 19–22 (arguing that the three “[a]ctionable changes in Plaintiff’s
employment” for purposes of her discrimination claims were the removal of her supervisory
duties, her reassignment to the Service Desk, and her suspension); id. at 25–26 (arguing that the
Final Written Warning was a materially adverse employment action for purposes of her
retaliation claims). In their motion for summary judgment, Defendants anticipatorily argued—
presumably because the Complaint does not specify which actions are allegedly discriminatory
26
reassignment to the Service Desk in September 2012; and (3) her administrative suspension from
December 2012 to January 2013. See Pl.’s Opp. Defs.’ Mot. Summ. J. at 19–22, ECF No. 42.
Defendants argue that none of these events constitute an adverse employment action and that Ms.
Richardson cannot show an inference of discrimination necessary to establish a prima facie case.
Defendants also proffer two legitimate, non-discriminatory reasons for Ms. Richardson’s
administrative suspension. 22 The Court applies the legal framework to each of these purported
actions separately.
1. Removal of Supervisory Duties in September 2012
Ms. Richardson claims that she suffered her first discriminatory adverse employment
action when Ms. Grandval announced during a meeting with the IT Operations staff on
September 11, 2012 that Mr. Petasis “granted her decision making authority in IT Operations,”
Richardson Aff. ¶ 67, and that, as a result, she was forced to seek Ms. Grandval’s permission
when utilizing her staff members. See Richardson Aff. ¶¶ 67–71. Because Defendants do not
proffer any legitimate, non-discriminatory reasons for the alleged action, the Court considers
only whether Ms. Richardson has made the minimal evidentiary showing to establish a prima
facie case of disparate treatment discrimination.
and which are allegedly retaliatory—that neither the Final Written Warning nor the suspension
were actionable adverse employment actions for purposes of Ms. Richardson’s discrimination
claims. See Defs.’ Mem. Supp. at 24–29. In accordance with Ms. Richardson’s presentation of
her case on summary judgment, the Court does not treat the Final Written Warning as a separate
alleged discriminatory action but rather as relevant to its analysis of Ms. Richardson’s
suspension. The Court need not take a position on whether the Final Written Warning could
have been actionable as a discriminatory adverse employment action.
22
Defendants do not dispute that Ms. Richardson is a member of a protected class, the first
element of a prima facie case.
27
a. Adverse Employment Action
Defendants challenge Ms. Richardson’s claim that her supervisory duties were removed
in September 2012 as “unfounded” and argue that, even if true, it would not constitute an adverse
employment action. See Defs.’ Reply Supp. Mot. Summ. J. (“Defs.’ Reply”) at 16–17, ECF No.
46. The Court disagrees on both of these issues.
First, the Court finds that Defendants fail to establish the absence of a genuine dispute as
to whether Ms. Grandval assumed Ms. Richardson’s supervisory duties on September 11, 2012
with Mr. Petasis’s authorization. Defendants argue that Ms. Richardson’s factual claim is
undermined by an e-mail that Mr. Petasis sent to Ms. Richardson and Ms. Grandval on the same
day in which he referred to Ms. Richardson having a “management responsibility” to oversee the
Service Desk. See Defs.’ Ex. 33, ECF No. 46-2. But this e-mail does not put Ms. Richardson’s
claim beyond dispute. The e-mail primarily concerns Ms. Richardson’s second alleged adverse
action, her purported permanent reassignment to the Service Desk, and does not appear to
directly concern Ms. Grandval’s alleged announcement or Mr. Petasis’s alleged authorization.
Defendants do not provide any other evidence in their effort to disprove Ms. Richardson’s
factual claim. They do not, for example, provide the Court with any testimony from Mr. Petasis
or Ms. Grandval on this issue. Nor do they provide testimony from any of Ms. Richardson’s
staff members who were allegedly present at the meeting, were the audience of the
announcement, and worked with Ms. Richardson and Ms. Grandval following the alleged
announcement. Defendants do, however, provide the Court with Ms. Richardson’s testimony on
this issue, as well as an e-mail that she sent to herself summarizing this meeting, which support
her claim. See Richardson Dep. Tr. 343:7–20; Defs.’ Ex. 19. Viewing the evidence in the light
most favorable to Ms. Richardson, the Court concludes that a reasonable juror could find that
28
Ms. Grandval assumed Ms. Richardson’s supervisory duties in September 2012 with the
authorization of Mr. Petasis.
The Court next considers whether, if true, Ms. Grandval’s assumption of Ms.
Richardson’s supervisory duties with Mr. Petasis’s authorization would constitute an adverse
employment action, the second prong of the prima facie analysis. “An ‘adverse employment
action’ is ‘a significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing significant
change in benefits.’” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (quoting Taylor,
350 F.3d at 1293)). The employee must “experience[] materially adverse consequences affecting
the terms, conditions, or privileges of employment or future employment opportunities such that
a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d
1127, 1131 (D.C. Cir. 2002). The D.C. Circuit has stated that, among other things, “withdrawing
an employee’s supervisory duties constitutes an adverse employment action.” Stewart v.
Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003) (citing Burke v. Gould, 286 F.3d 513, 522 (D.C.
Cir. 2002)).
Defendants argue that Ms. Grandval’s announcement cannot serve as an adverse
employment action because Ms. Grandval was Ms. Richardson’s co-worker and “did not have
supervisory authority over or the authority to hire, fire, promote or demote Richardson.” Defs.’
Reply at 16. Defendants misconstrue Ms. Richardson’s claim. Ms. Richardson alleges that Mr.
Petasis, who indisputably had supervisory authority over Ms. Richardson, authorized Ms.
Grandval’s assumption of her supervisory duties. See Richardson Aff. ¶¶ 67–71; id. ¶ 161; Am.
Compl. ¶¶ 82–84; Defs.’ SOF ¶ 45. If Mr. Petasis authorized Ms. Grandval to assume Ms.
Richardson’s supervisory duties and make decisions on behalf of Operations, as Ms. Richardson
29
alleges and a reasonable juror could conclude on the record before the Court, then that would
constitute an adverse employment action.
b. Inference of Discrimination
Turning to the final prong of the prima facie analysis, the Court considers whether Ms.
Richardson has established that the alleged removal of her supervisory duties gives rise to an
inference of discrimination. In her opposition to Defendants’ motion for summary judgment,
Ms. Richardson offers a myriad of evidence in an effort to satisfy this burden. The Court finds
that, although most of this evidence is ineffective, Ms. Richardson presents evidence sufficient to
create an inference of discrimination.
Ms. Richardson opens the “Statement of Facts” section of her opposition with the
following statement: “Defendant George Petasis does not like strong Black women.” Pl.’s Opp.
at 3 (citing Pl.’s Ex. 6, ECF No. 42-9). Her sole citation for this dramatic statement is what
appears to be an incomplete and undated photocopied printout of an unidentified website (with
the URL partially obscured) containing an anonymous post providing an opinion regarding
employment at a company called “Advanced Technology Associates.” 23 See Pl.’s Ex. 6. In one
of the reviews, the anonymous author writes, regarding a person named George Petasis: “And
George does not like women, particularly black women – who excel or have the potential to
excel beyond him.” Id. As Defendants observe, the exhibit provides no identifying information
for either the author of the statement or the web site itself, and Ms. Richardson does not offer any
such evidence. See id. Ms. Richardson does not even provide any evidence demonstrating that
23
The declaration of Ms. Richardson’s counsel attaching this exhibit describes this
document as “a web critique of Architect of the Capital [sic].” Decl. John Christopher Luke, Jr.
¶ 7, ECF No. 42-1. This description appears plainly incorrect from the face of the document.
Mr. Luke does not provide any further description of or explanation for this document.
30
the person referenced in the review is the same George Petasis that is a defendant in this action. 24
As Ms. Richardson clearly attempts to use the anonymous post for the truth of the matter
asserted, it is, as Defendants argue, pure hearsay, and it has no value. See Greer v. Paulson, 505
F.3d 1306, 1315 (D.C. Cir. 2007) (“[S]heer hearsay . . . counts for nothing on summary
judgment.” (internal quotation omitted)).
Ms. Richardson next points to Mr. Petasis’s use of the term “boys” to refer to male staff
members as “independent evidence of discriminatory statements or attitudes on the part of the
employer.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998). The Supreme Court
has stated that “[a]lthough it is true that the [word ‘boy’] will not always be evidence of racial
animus, it does not follow that the term, standing alone, is always benign. The speaker’s
meaning may depend on various factors including context, inflection, tone of voice, local
custom, and historical usage.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006). To show
context, Ms. Richardson cites Mr. Daniel’s statements that, during his very brief employment,
Mr. Daniel never heard Mr. Petasis refer to any Caucasians as “boys.” Daniel Aff. ¶¶ 12–13.
Ms. Richardson’s own account, however, provides further context that cuts against her
position. She testified that Mr. Petasis referred to an employee of Filipino origin and an
employee of Iranian origin as “his boys” or asked her, “How is your boy?” Richardson Dep. Tr.
at 263:14–18; id. at 270:14–18; id. at 272:8–274:18. This usage of the term is common and
innocuous, and, given that Mr. Petasis appears to have used the term primarily to refer to non-
24
For example, the Court is unable to locate any evidence in the Record indicating that Mr.
Petasis was previously employed by Advanced Technology Associates, the Architect of the
Capitol, or “SAIC” or that he required a Green Card in order to maintain a job in the United
States, as the person is described in the anonymous review. See Pl.’s Ex. 6.
31
African-Americans, he does not appear to have used it with any racial connotation. 25 Even to the
extent that this evidence could be reasonably interpreted to suggest that Mr. Petasis had some
generalized racial prejudices, it would be insufficient to establish a prima facie case, because Mr.
Petasis’s alleged statements did not pertain to Ms. Richardson and were entirely disconnected
from the decision-making process concerning the alleged removal of her supervisory duties. See
Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J., concurring) (stating that
neither “stray remarks in the workplace” nor “statements by decisionmakers unrelated to the
decisional process itself, [can] suffice to satisfy plaintiff’s burden”); Straughn v. Delta Air Lines,
Inc., 250 F.3d 23, 36 (1st Cir. 2001) (stating that the “probativeness” of discriminatory stray
25
In her opposition, Ms. Richardson states that she “will spare [the Court] a dissertation on
the usage of the word ‘boy’ when applied to Philippine, Iranian, and Ethiopian men.” Pl.’s Opp.
at 18 n.8. First, as discussed, supra, there is no indication in the record that Ms. Richardson had
raised issues concerning Mr. Petasis’s use of the term with respect to three staff members, in
addition to Mr. Daniel. The record indicates that she discussed only two. In her memorandum,
she wrote that one staff member was of “[Philippians [sic] Origin] and another is [Ethiopian
Nationality].” Defs.’ Ex. 8 at SDR000992. During her deposition, she testified that the second
staff member was Mr. Elahi, who she said was of Iranian origin. See Richardson Dep. Tr. at
263:13–18; id. at 270:11–16. Second, while the Court does not need a “dissertation,” the
Supreme Court stated in Ash that the significance of the term “boy” in a discrimination case
depends on context, including local custom and historical usage. See Ash, 546 U.S. at 456.
Without context regarding usage of the term towards men of Philippine and Iranian national
origin, Ms. Richardson has great difficulty showing any inference of racial animus. It is also
notable that Ms. Richardson testified that neither Mr. Berbano nor Mr. Elahi told her that they
found the term “boy” to be derogatory because of a connotation to slavery and that Ms.
Richardson said that she “interjected that word.” Richardson Dep. Tr. at 271:18–272:1. Indeed,
while the terms “boy” and “boys” have historically been used in a racially derogatory manner,
the terms have also long been used informally, even if offensively, without any negative racial
connotation. See “boy,” Dictionary.com Unabridged, http://dictionary.reference.com/browse/boy
(last visited November 25, 2015) (providing alternate informal definition as “a grown man,
especially when referred to familiarly”); see, e.g., Seinfeld: The Marine Biologist (NBC
television broadcast Feb. 10, 1994) (“So I started to walk into the water. I won’t lie to you boys.
I was terrified!”); Bob Dylan, Bob Dylan’s 115th Dream, on Bringing It All Back Home
(Columbia Records 1965) (“Boys, forget the whale / Look on over yonder / Cut the engines /
Change the sail”); Ella Fitzgerald & Louis Armstrong, They Can’t Take That Away From Me, on
Ella and Louis (Verve Records 1956) (“Swing it, boys”); Muddy Waters, Louisiana Blues (Chess
Records 1950) (“Let’s go back to New Orleans boys”).
32
remarks “is circumscribed if they were made in a situation temporally remote from the date of
the employment decision or . . . were not related to the employment decision in question”
(internal quotation omitted) (ellipses in original)); Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th
Cir. 1993) (holding in an age-discrimination case that a decision-maker’s statement to plaintiff
that “[we] don’t necessarily like grey hair,” unconnected to plaintiff’s termination, was a stray
remark insufficient to defeat summary judgment for the employer).
Ms. Richardson similarly points to Mr. Petasis’s alleged battery of Mr. Daniel as
independent evidence of a discriminatory attitude. Specifically, Mr. Daniel states that he never
witnessed Mr. Petasis strike any Caucasians “with the same force or frequency” that he struck
him. 26 Daniel Aff. ¶ 13. There is no other evidence to suggest that Mr. Petasis’s alleged battery
of Mr. Daniel was motivated by racial discrimination, as, for example, neither Mr. Daniel nor
Ms. Richardson provide evidence indicating a connection between Mr. Petasis’s use of the term
“boy” and his alleged battery of Mr. Daniel. Moreover, as with Mr. Petasis’s use of the term
“boy,” even to the extent that his alleged battery of Mr. Daniel could be probative of whether he
harbored general racial prejudices, it is insufficient to establish Ms. Richardson’s prima facie
case, because the alleged battery bears no connection to the decision-making process concerning
the alleged removal of Ms. Richardson’s supervisory duties, or any other relevant decision made
with respect to Ms. Richardson.
26
Mr. Daniel states that he was employed in the IT Department of SAIS for less than two
months. See Daniel Aff. ¶ 1. Given his highly limited context, the probative value of his
observation is questionable. The value of this observation is further undercut by Ms.
Richardson’s own report that other non-African-American staff members complained about Mr.
Petasis inappropriately grabbing their shoulders and shaking them and that when Mr. Petasis
walked into a room “[t]hey jump and respond like frightened children, becoming very nervous.”
Defs.’ Ex. 8 at SDR000993.
33
Ms. Richardson’s evidence of Mr. Petasis’s disparate treatment of Ms. Grandval, who is
outside Ms. Richardson’s protected class, is much more effective at creating an inference of
discrimination. See Pl.’s Opp. at 13. “A plaintiff can establish an inference of discrimination
‘by demonstrating that she was treated differently from similarly situated employees who are not
part of the protected class.’” Augustus v. Locke, 934 F. Supp. 2d 220, 232 (D.D.C. 2013)
(quoting George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005)). “‘[T]o be deemed ‘similarly-
situated,’ the individuals with whom the plaintiff seeks to compare his/her treatment must have
dealt with the same supervisor, have been subject to the same standards and have engaged in the
same conduct without such differentiating or mitigating circumstances that would distinguish
their conduct or the employer’s treatment of them for it.’” Phillips v. Holladay Prop. Servs.,
Inc., 937 F. Supp. 32, 37 (D.D.C. 1996) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583
(6th Cir. 1992)).
Ms. Richardson’s attempt in her opposition brief to establish that she and Ms. Grandval
were similarly situated employees is admittedly limited: “Plaintiff and Defendant Grandval both
were supervised by Defendant Petasis. Since hired around the same time [sic] they both served
under the same standards. They were on the same level.” Pl.’s Opp. at 12. Her only citation to
the record is to an exhibit containing excerpted portions of Ms. Hines’s deposition testimony.
See id. (citing Pl.’s Ex. 5, ECF No. 42-8). Nothing in the excerpted portions of Ms. Hines’s
testimony, however, indicates that Ms. Richardson and Ms. Hines were similarly situated
employees. See Pl.’s Ex. 5. Despite Ms. Richardson’s weak effort to demonstrate that she and
Ms. Grandval were similarly situated, however, Defendants, for their part, wholly fail to address
the argument. The Court therefore finds that, analyzing all underlying facts and inferences in the
light most favorable to Ms. Richardson, Ms. Richardson and Ms. Grandval were similarly
34
situated employees. This finding is supported by the record before the Court, notwithstanding
Ms. Richardson’s failure to cite it. 27 For example, it is undisputed that she and Ms. Grandval
both reported to Mr. Petasis during the relevant time period, and documentary evidence indicates
that the two were considered to be on the same level in terms of the hierarchy for SAIS’s Office
of Information Technology. See, e.g., Pl.’s Ex. 14, ECF No. 42-17 (organizational chart for
SAIS’s Office of Information Technology showing Ms. Richardson and Ms. Grandval on a
parallel level below Mr. Petasis).
It is also clear from the record—and Defendants do not argue otherwise—that Mr. Petasis
treated Ms. Grandval more favorably than he treated Ms. Richardson. As discussed, supra, a
reasonable juror could find, based on the record before the Court, that Mr. Petasis authorized Ms.
Grandval to assume Ms. Richardson’s supervisory duties. Many of Ms. Richardson’s other
allegations of disparate treatment are unchallenged and unexplained. For example, Ms.
Richardson alleges that, a few months before shifting her supervisory duties to Ms. Grandval,
Mr. Petasis removed her access to the shared Microsoft Outlook calendar while maintaining Ms.
Grandval’s access. See Richardson Aff. ¶ 153. Similarly, she alleges that Mr. Petasis frequently
excluded her from meetings that were important to her job function but included Ms. Grandval.
See, e.g., Richardson Aff. ¶¶ 45–52; Defs.’ SOF ¶ 29. Ms. Richardson also alleges that when she
brought complaints about Ms. Grandval’s conduct to Mr. Petasis, he did not take action but that
27
The Court acknowledges that other portions of the record, not cited by Defendants with
respect to this issue, might suggest that Ms. Richardson and Ms. Grandval were not nearly
identical. For example, it is undisputed that Mr. Petasis did not hire Ms. Grandval for Ms.
Richardson’s Director of Operations position due to her qualifications but that he subsequently
hired her for a different position. See Defs.’ SOF ¶¶ 7–9; id. ¶ 33. This might suggest that the
two occupied different positions with different qualifications and responsibilities. Given
Defendants’ decision to not rely upon this evidence or otherwise challenge Ms. Richardson’s
argument that she and Ms. Grandval were similarly situated, this evidence does not alter the
Court’s conclusion here.
35
when Ms. Grandval brought him complaints about her, he did take action. See Richardson Aff.
¶¶ 37–40; id. ¶¶ 57–59.
Ordinarily, this type of uncontroverted evidence would unquestionably give rise to an
inference of discrimination. In this case, the inquiry is somewhat muddied by the undisputed
fact that Mr. Petasis originally selected Ms. Richardson over Ms. Grandval for her position,
which potentially implicates the so-called “same actor inference.” In an employment
discrimination case in which a plaintiff challenges her termination and “‘the person who made
the decision to fire [the plaintiff] was the same person who made the decision to hire’”—a type
of case not too dissimilar from Ms. Richardson’s claims in this case—the D.C. Circuit has
recognized that “‘it is difficult to impute to [that person] an invidious motivation that would be
inconsistent with the decision to hire,’ especially ‘when the firing has occurred only a short time
after the hiring.’” Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011)
(quoting Waterhouse v. District of Columbia, 298 F.3d 989, 996 (D.C. Cir. 2002) (alteration in
original)).
For several reasons, however, the Court is unable to find that JHU is entitled to summary
judgment on the basis of the same actor inference. First and foremost, Defendants do not even
reference the same actor inference in their motion for summary judgment, let alone rely upon it.
Second, courts have recognized that the same actor inference is “just that, an inference, which
cannot immunize the defendant from liability for subsequent discrimination.” Ragsdale v.
Holder, 668 F. Supp. 2d 7, 23 (D.D.C. 2009) (internal quotation omitted). It does not alone
suffice for summary judgment, and it is simply “probative evidence” against a finding of
discrimination. See Vatel, 627 F.3d at 1247. Third, as the D.C. Circuit stated in Vatel, the
inference is particularly appropriate to apply when the alleged discriminatory action occurred
36
“only a short time after the hiring.” Id. (internal quotation omitted). Here, by contrast, over a
year passed between the time that Mr. Petasis hired Ms. Richardson and the time that he
allegedly removed her supervisory duties. Finally, courts that have employed the inference have
generally done so at the pretext stage of the McDonnell Douglas analysis following proffered
legitimate, non-discriminatory reasons for the conduct at issue. See, e.g., Vatel, 627 F.3d at
1246–49; Waterhouse, 298 F.3d at 993–97. Here, Defendants have not proffered a legitimate,
non-discriminatory reason for the alleged removal of Ms. Richardson’s supervisory duties (or
any other alleged instance of Mr. Petasis treating Ms. Grandval more favorably than Ms.
Richardson) and Ms. Richardson therefore only needs to make a minimal showing to create an
inference of discrimination.
The Court’s role at summary judgment is not to weigh evidence or make credibility
determinations. See Czekalski, 475 F.3d at 363. Instead, the Court must analyze all underlying
facts and inferences in the light most favorable to Ms. Richardson. See Anderson, 477 U.S. at
255. While the evidence may ultimately show that race played no factor in Mr. Petasis’s alleged
decision to permit Ms. Grandval to assume Ms. Richardson’s supervisory duties, the evidence
presented regarding the disparate treatment of Ms. Grandval is sufficient to meet the minimum
threshold to establish an inference of discrimination at the prima facie stage, particularly in light
of Defendants’ failure to address that argument. Accordingly, JHU is not entitled to summary
judgment on this aspect of Ms. Richardson’s discrimination claims.
2. Permanent Reassignment to the Service Desk in September 2012
Ms. Richardson alleges that she suffered her second discriminatory adverse employment
action when Mr. Petasis permanently reassigned or demoted her to the Service Desk in
September 2012. See Pl.’s Opp. at 20–21; Richardson Aff. ¶ 80 (alleging that Mr. Petasis
37
“permanently placed my [sic] at the help desk”); id. ¶ 161 (“I was working at the help desk as
directed by Mr. Petasis and Ms. Grandval, not as a supervisor, but, a help desk associate, because
I was demoted to the help desk.”). Ms. Richardson does not claim that she suffered any
reduction in pay or diminution in benefits as a result of this reassignment. Because Defendants
do not proffer any legitimate, non-discriminatory reasons for the alleged action, the Court
considers only whether Ms. Richardson has made the minimal evidentiary showing to establish a
prima facie case of disparate treatment discrimination.
a. Adverse Employment Action
Defendants challenge Ms. Richardson’s factual claim that she was permanently
reassigned to the Service Desk in September 2012 and argue that she cannot show that she
suffered an adverse employment action.
First, the Court finds that Defendants fail to establish the absence of a genuine dispute as
to whether Ms. Richardson was reassigned or demoted when she was assigned to work at the
Service Desk. Defendants argue that Mr. Petasis neither reassigned nor demoted Ms. Richardson
because she was not assigned to work at the Service Desk full-time and work at the Service Desk
fell within the scope of her duties as the Director of Operations. In making this argument,
Defendants rely solely upon one e-mail exchange between Mr. Petasis, Ms. Richardson, and Ms.
Grandval. See Defs.’ Ex. 33. On September 11, 2012, Mr. Petasis wrote to Ms. Richardson and
Ms. Grandval:
I’ve asked that Sharon handles [sic] the assignment of all unassigned
tickets when she gets to work in the morning and whenever Pedro is
not around. This allows Sharon a better insight as to what’s going
at the Service Desk and ticket loads in general – besides the fact that
ticket assignment/oversight is a management responsibility.
38
Defs.’ Ex. 33 (emphasis added). When Ms. Richardson responded by suggesting that Mr. Petasis
assign someone else, he responded, in part, that “our SD manual calls for supervisory oversight
of that function and until we change it we should be following it.” Id.
While this exchange is probative of whether Ms. Richardson’s assignment to the Service
Desk fell within her normal job responsibilities and whether that assignment could be considered
a demotion, it is insufficient to put the issue beyond dispute. As a preliminary matter,
Defendants do not make clear whether this e-mail exchange occurred before or after Ms.
Richardson’s alleged reassignment. If it was sent before, then it is of limited, if any, value.
Moreover, Defendants offer no evidence to counter the variety of other factual allegations that
Ms. Richardson makes concerning her reassignment. For example, they do not challenge her
claim, for which she provides specific dates and times, that she was forced to work at the Service
Desk for full days and long periods “alone or with minimal assistance” and that Mr. Petasis
removed staff members that would normally assist her. See Richardson Aff. ¶ 81. Nor do they
challenge her claim that her work at the Service Desk was located in another building and
“impacted [her] job” in several specific ways. See id. ¶¶ 82–106. Given this failure to address
key factual allegations, the Court finds that a genuine dispute exists as to whether Ms.
Richardson was permanently reassigned to the Service Desk in September 2012.
Whether the reassignment, assuming that it occurred, constitutes an adverse employment
action, turns on the resolution of those factual allegations. The Supreme Court stated in
Burlington Industries v. Ellerth that a “reassignment with significantly different responsibilities”
generally constitutes an adverse employment action. 524 U.S. 742, 761 (1998). “A drastic
reduction in responsibilities is an ‘objectively tangible harm’ even where a plaintiff does not
suffer a reduction in grade, pay, or benefits.” Thomas v. Vilsack, 718 F. Supp. 2d 106, 122
39
(D.D.C. 2010) (quoting Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)). By contrast,
“[p]urely subjective injuries, such as dissatisfaction with a reassignment,” do not constitute
adverse employment actions. Forkkio, 306 F.3d at 1130–31. “Mere idiosyncrasies are not
sufficient to state an injury.” Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003) (quoting
Brown v. Brady, 199 F.3d 446, 457 (D.C. Cir. 1999)). Given the open factual questions, the
Court is unable to determine whether the assignment to the Service Desk left Ms. Richardson
with “significantly different responsibilities” or whether it was simply a staffing decision that she
did not like, which does not constitute an adverse employment action for purposes of a
discrimination claim. See Baloch v. Kempthorne, 550 F.3d 1191, 1197 (D.C. Cir. 2008) (“[W]e
have previously underscored our hesitancy to engage in judicial micromanagement of business
practices by second-guessing employers’ decisions about which of several qualified employees
will work on a particular assignment.” (internal quotation omitted)).
b. Inference of Discrimination
JHU, therefore, is only entitled to summary judgment with respect to the alleged
reassignment if Ms. Richardson cannot meet the minimal threshold for establishing an inference
of discrimination.
The evidence that Ms. Richardson offers in support of the inference of discrimination is
largely the same that she offers with respect to the alleged removal of her supervisory duties. As
discussed, supra, the Court has found the evidence of Mr. Petasis’s disparate treatment of Ms.
Grandval to be sufficient to create an inference of discrimination with respect to the removal of
Ms. Richardson’s supervisory duties. While that evidence does not directly concern his alleged
decision to reassign Ms. Richardson to the Service Desk with diminished responsibilities, the
Court finds that it is also sufficient to raise an inference of discrimination here. Although Ms.
40
Richardson claims that the reassignment constituted a separate discriminatory action, the Court
finds it difficult, on the record before it on summary judgment, to separate evidence concerning
the motivation for one action from the motivation for the other. The record is clear that Mr.
Petasis made both decisions, and he appears to have made these decisions within the same mid-
September time period, if not simultaneously. Without any proffered legitimate, non-
discriminatory reasons for the purported reassignment, this evidence is sufficient.
Accordingly, JHU is not entitled to summary judgment on this aspect of Ms.
Richardson’s discrimination claims.
3. Paid Administrative Leave in December 2012
Ms. Richardson alleges that she suffered a third and final discriminatory adverse
employment action when she was placed on paid administrative leave, which can also be
considered a suspension, from December 21, 2012 to January 29, 2013. See Pl.’s Opp. at 21–22.
Defendants present two arguments at summary judgment. First, they argue that Ms.
Richardson’s suspension did not constitute an adverse employment action as a matter of law.
Second, they argue that, even assuming that it did constitute an adverse employment action,
Defendants have asserted legitimate, non-discriminatory reasons for it and that Ms. Richardson
cannot demonstrate those were not the actual reasons or that Defendants intentionally
discriminated against Ms. Richardson on the basis of race. See Defs.’ Mem. Supp. at 23–25; id.
at 28–29. The Court addresses these issues in turn.
a. Adverse Employment Action
In support of their argument that Ms. Richardson’s suspension did not constitute an
adverse employment action as a matter of law, Defendants cite a line of cases in this District that
have held or opined in dicta that certain suspensions with pay did not constitute adverse
41
employment actions. Defs.’ Mem. Supp. at 24 (citing Brown v. Georgetown Univ. Hosp.
Medstar Health, 828 F. Supp. 2d 1, 9 (D.D.C. 2011); Roberson v. Snow, 404 F. Supp. 2d 79, 93
(D.D.C. 2005); Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66, 79 (D.D.C. 2002); Boykin v.
England, Civ. No. 02-960 (JDB), 2003 WL 21788953, at *4 n.5 (D.D.C. July 16, 2003)). Many
of these courts appear to have reached their conclusions, at least in part, by considering the
duration of the suspension. See, e.g., Brown, 828 F. Supp. 2d at 9 (concluding that a suspension
did not constitute an adverse employment action in part because the suspension was “brief”);
Boykin, 2003 WL 21788953, at *4 n.5 (“[C]ase law suggests that an employee’s placement on
paid administrative leave for a limited period does not constitute an adverse employment
action.”). As Ms. Richardson observes, her suspension of approximately 39 days, 28 was longer
than many of the suspensions that were at issue in the relevant cases. See, e.g., Brown, 828 F.
Supp. 2d at 9 (suspension of 11 days pending an investigation); Dickerson, 238 F. Supp. 2d. at
78–79 (suspensions that were rescinded after less than one month).
The Court finds that Ms. Richardson’s suspension constituted an adverse employment
action. The Court reaches this conclusion upon its consideration of not only the unusually long
duration of the suspension but also its conditions. Unlike a typical suspension, Ms. Richardson’s
continued employment was explicitly conditioned upon her completion of certain tasks that was
satisfactory to Mr. Petasis, see Defs.’ Ex. 32 at JHU00582, and, as discussed, infra, Ms.
Richardson has presented uncontroverted evidence that Mr. Petasis prevented her from
completing one of those necessary tasks. The lengthy suspension and the unusual nature of Ms.
28
Ms. Richardson’s argument states that her suspension was for 35 days. See Pl.’s Opp. at
22. This would place the intended termination of her suspension at January 25, 2013. As
discussed, supra, the parties are in agreement that the suspension was to run through January 29,
2013. See Defs.’ SOF ¶ 78; Pl.’s Stmt. Facts ¶ 78.
42
Richardson’s continued employment sufficiently “affect[ed] the terms, conditions, or privileges
of [her] employment or future employment opportunities such that a reasonable trier of fact
could find objectively tangible harm.” Forkkio, 306 F.3d at 1131. The Court therefore turns to
the motivations for the suspension.
b. Defendants’ Proffered Reasons and Evidence of Pretext
Defendants present two legitimate, non-discriminatory reasons for the suspension: Ms.
Richardson’s “insubordination” and her “unsatisfactory performance.” Defs.’ Mem. Supp. at
28–29. These are commonly asserted legitimate, non-discriminatory reasons for taking an
adverse employment action. See, e.g., Smith v. District of Columbia, 430 F.3d 450, 455 (D.C.
Cir. 2005) (affirming that an employee’s “negligence and insubordination (including
discourteous treatment of her supervisor)” were legitimate, non-discriminatory reasons for
discipline); Drewrey v. Clinton, 763 F. Supp. 2d 54, 63 (D.D.C. 2011) (“An employee’s
insubordination and his failure to perform his duties are legitimate, nondiscriminatory reasons
for adverse employment actions.”); Akonji v. Unity Healthcare, Inc., 517 F. Supp. 2d 83, 95
(D.D.C. 2007) (“Insubordination and violation of company rules are widely accepted non-
discriminatory reasons for termination.”); Nichols v. Billington, 402 F. Supp. 2d 48, 73 (D.D.C.
2005) (finding that an employee’s failure to attend meetings, poor job performance, refusal to
complete critical projects, and “persistently uncooperative attitude, insubordination, and
misconduct” were legitimate, non-discriminatory reasons to seek the employee’s removal).
In support of these justifications, Defendants cite Ms. Hines’s letter to Ms. Richardson
informing her of her suspension. See Defs.’ Ex. 32. The letter stated that Ms. Richardson had
failed to make progress in each of the four key areas of improvement described in her Final
Written Warning in September 2012, which included Ms. Richardson’s failure to “follow the
43
instructions and directives” of her supervisor, her failure to “work effectively and efficiently
without close supervision,” and her failure to “engage in professional and courteous
communications.” Id. at JHU00581. The prior Final Written Warning provided more detailed
descriptions of Ms. Richardson’s unprofessional behavior, attaching contemporaneous
documentation as evidence. See Defs.’ Ex. 27. In support of their factual claim that the quality
of Ms. Richardson’s work was poor, Defendants provide an affidavit from Mr. Elahi, one of Ms.
Richardson’s staff members, stating that Ms. Richardson “did not have the technical skills to
assist the IT team with Service Desk tickets” and that “[o]n several occasions, I assisted
Richardson with technical aspects including: logging into her Microsoft Outlook account;
helping her to detect and remove viruses from her own computer; accessing the SAIS network
while she was working remotely; and Microsoft SharePoint tasks including creating forms and
maintaining the SharePoint links.” Aff. Mohammad Elahi ¶¶ 10–11, Defs.’ Ex. 15 (“Elahi
Aff.”), ECF No. 40-17.
Given that Defendants have asserted legitimate, non-discriminatory reasons for
suspending Ms. Richardson, the Court must determine whether Ms. Richardson has produced
sufficient evidence for a reasonable jury to find that Defendants’ asserted reasons were not the
actual reasons for her suspension and that Defendants instead suspended her on the basis of her
race. See Brady, 520 F.3d at 494. “There are multiple ways in which circumstantial evidence
may support an inference that an employer’s stated reason for a challenged employment action
was not the actual reason, and that the real reason was prohibited discrimination or retaliation.”
Allen v. Johnson, 795 F.3d 34, 40 (D.C. Cir. 2015). Ms. Richardson presents a variety of
evidence in her attempt to support the requisite inference.
44
Ms. Richardson cites the way in which Mr. Petasis treated Ms. Grandval as evidence of
pretext. See Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015) (“A plaintiff may support
an inference that the employer’s stated reasons were pretextual, and the real reasons were
prohibited discrimination . . . by citing the employer’s better treatment of similarly situated
employees outside the plaintiff’s protected group . . . .”); Allen, 795 F.3d at 40 (stating that a
plaintiff may point to disparate treatment of similarly situated employees to support an inference
of pretext). This comparison is less helpful here than in the context of the removal of her
supervisory duties in September 2012. Ms. Richardson does not put forward any evidence
showing that Ms. Grandval “engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or the employer’s treatment of
them for it.’” Phillips, 937 F. Supp. at 37 (internal quotation omitted). While she claims that
Ms. Grandval “was responsible for a complete shutdown of Astra whereas no one on campus
could schedule a meeting or a classroom,” Pl.’s Opp. at 12, she does not provide the Court with
any context to understand what that means. 29 In any case, it is unclear from the record presented
whether Ms. Grandval engaged in the same type of behavior that Defendants cite as the reasons
for Ms. Richardson’s suspension.
Ms. Richardson argues more convincingly that JHU failed to follow its own established
procedures for disciplinary action. See Walker, 798 F.3d at 1092 (“A plaintiff may support an
inference that the employer’s stated reasons were pretextual, and the real reasons were prohibited
discrimination . . . by citing . . . its deviation from established procedures or criteria.”); Allen,
795 F.3d at 40 (stating that a plaintiff may point to evidence “that the employer failed to ‘follow
29
Ms. Richardson’s only citation is to an inexplicably excerpted e-mail exchange dated
August 24, 2012 that references “ASTRA” but does not indicate a “complete shutdown” or
otherwise explain what occurred. See Pl.’s Ex. 51, ECF No. 43-4.
45
established procedures or criteria’” (quoting Brady, 520 F.3d at 495)). Ms. Richardson’s
suspension was founded upon her failure to “meet, fully, partially and/or consistently, corrective
actions and performance improvements as outline [sic] in the Final Written Warning.” Defs.’
Ex. 32 at JHU00581. Through JHU’s internal appeals process, however, JHU’s Vice President
for Human Resources determined that the Final Written Warning “should not have been elevated
to a final warning.” Defs.’ Ex. 31 at SDR001058. Though JHU considered only the
appropriateness of the Final Written Warning and did not discuss the resulting suspension, its
determination that it did not follow its own established procedures and criteria for issuing a Final
Written Warning undermines the notion that JHU acted properly in suspending Ms. Richardson,
rather than issuing her another written warning or taking some other form of discipline. 30
On the other hand, JHU cites its disciplinary policy as stated in its Staff Handbook. See
Defs.’ Ex. 5 at JHU00466–67, ECF No. 40-7. The policy makes no mention of a “final” written
warning and speaks in permissive terms as to its progressive counseling and disciplinary action
30
In their briefs, the parties also dispute whether Defendants’ discipline of Mark Golding,
Ms. Richardson’s Caucasian predecessor, establishes an inference of discrimination. Ms.
Richardson presents an affidavit from Mr. Golding in which he states that he went through
JHU’s progressive discipline procedure, receiving two verbal warnings, a written warning, and
probation before resigning his position in March 2011. See Aff. Mark Golding, Pl.’s Ex. 19,
ECF No. 44-1. Ms. Richardson also provides the written warning that Mr. Petasis issued to Mr.
Golding in April 2010. See Pl.’s Ex. 20, ECF No. 42-21. Surprisingly, however, Ms.
Richardson simultaneously argues that “[i]t is unclear exactly if they were under the same
standards” and that “[w]hile it is clear that Defendant Petasis took issues with Mr. Golding’s
work that is where the comparison should end.” Pl.’s Opp. at 11. In light of this startling
concession, the Court does not consider the evidence related to Mr. Golding here. The Court
therefore does not reach Defendants’ argument that Ms. Richardson should not be permitted to
introduce the Golding affidavit because she failed to disclose him as a witness during the
discovery process. See Defs.’ Reply at 4–5. Nevertheless, the Court cannot help but note that
Ms. Richardson only offers the affidavit to rebut Defendants’ argument that Mr. Petasis treated
Mr. Golding just as harshly for his poor performance as he treated Ms. Richardson. See Defs.’
Mem. Supp. at 11. It is highly doubtful that Defendants could plausibly claim to be prejudiced
by Ms. Richardson’s introduction of this evidence.
46
policy. See id. (“If the problem has not been corrected after counseling, your supervisor can give
you a written warning. . . . In cases where deemed appropriate, the university can suspend or
terminate a staff member immediately without proceeding through progressive discipline.”). The
fact that JHU enjoyed wide discretion under its internal policy is insufficient; instead, JHU “must
articulate the reasons underlying the exercise of its discretion.” Ibrahim v. N.Y. State Dep’t of
Health, Office of Health Sys. Mgmt., 904 F.2d 161, 166 (2d Cir. 1990). Defendants do not
specifically articulate the reasons in their briefing, but they offer evidence suggesting that both
Mr. Petasis and Ms. Hines genuinely believed that Mr. Petasis’s February 2012 memorandum
constituted a first written warning, contrary to JHU’s subsequent conclusion in its internal
appeals process. See, e.g., Petasis Dep. Tr. at 36:21–37:3 (testifying that a portion of his
memorandum “was guidance that, in my mind, was – was prescribing the course of action she
had to take, corrective action she had to take”); Hines Aff. ¶ 3 (“In or about February 2012,
George Petasis issued Sharon Richardson a memorandum counseling her on ways she needed to
improve her performance.”). The Court, however, cannot make credibility determinations at
summary judgment, and, in any case, the fact remains that JHU itself determined that it did not
follow its own standard procedures.
Ms. Richardson also attacks some of Defendants’ factual claims underlying her Final
Written Warning and suspension. See Allen, 795 F.3d at 40 (stating that a plaintiff may raise an
inference of pretext by showing that the employer is “lying about the underlying facts” (quoting
Brady, 520 F.3d at 495). She points to justifications that Mr. Petasis provided during JHU’s
internal appeals process as supposed “mistruths.” For example, the record indicates that during
Ms. Richardson’s appeal of the Final Written Warning to Mr. Kunka, “Mr. Petasis alleged that
Ms. Richardson had ‘redlines’, such as: not working after 5:00 p.m. . . . .” Pl.’s Ex. 9 at
47
JHU00519. Ms. Richardson, however, provides extensive and unchallenged documentation in
the form of calendar entries for the year of 2012 indicating that she frequently worked past 5:00
p.m. See Pl.’s Ex. 29, ECF No. 42-29. Defendants do not address this evidence in their motion
for summary judgment, and, to the extent that they have abandoned the “red line” justification,
that only further supports an inference of pretext. See Allen, 795 F.3d at 40 (stating that
“‘changes and inconsistencies’ in the employer’s given reasons for the decision” support an
inference of pretext (quoting Brady, 520 F.3d at 495)). Ms. Richardson also challenges
Defendants’ factual claim that she walked out of meetings. See Richardson Aff. ¶ 146
(“September 2012 or any other month, I never stomped or walked out of any meeting during my
employment with JHU SAIS.”).
Conversely, a closer inspection of the record indicates that several of Ms. Richardson’s
other accusations of “mistruths” during JHU’s internal appeals process are unfounded. For
example, Ms. Richardson claims that Mr. Petasis somehow lied about whether she and Mr.
Daniel knew each other by sensationally stating that “[a]ll African Americans do not know each
other.” Pl.’s Opp. at 16. The cited evidence indicates that Mr. Petasis in no way stated or
implied that Ms. Richardson and Mr. Daniel must have known each other because they are both
African-American. See Pl.’s Ex. 9 at JHU00520–21. 31 Rather, the record indicates that Mr.
Petasis said that, among other things, Ms. Richardson recommended Mr. Daniel for his position
and later worked with him and that Mr. Daniel made comments about Ms. Richardson teaching
him things. See id. 32
31
Ms. Richardson actually cites Plaintiff’s Exhibit 23, which consists solely of a
handwritten note referring to Plaintiff’s Exhibit 9. See Pl.’s Ex. 23, ECF No. 42-24.
32
Similarly, Ms. Richardson makes the baseless claim that Mr. Petasis’s reported statement
during the investigation that Ms. Richardson “was not forthcoming” about whether she received
a training certification when asked was an “egregious misstatement.” Pl.’s Opp. at 14 (quoting
48
Moreover, the contemporaneous evidence, particularly e-mails that Ms. Richardson sent
to Mr. Petasis and her co-workers, offer support for Defendants’ claim that she was
insubordinate and unprofessional, particularly around the time of her Final Written Warning and
suspension. 33
Pl.’s Ex. 9 at JHU00518). Ms. Richardson cites Plaintiff’s Exhibit 24 for support, which she
states is an e-mail from Mr. Petasis. See id. (citing Pl.’s Ex. 24). But Ms. Richardson did not
file an Exhibit 24. Even if Ms. Richardson’s description of the supposed exhibit is accurate, it
appears that Mr. Petasis merely referenced the training Ms. Richardson received and made no
mention of whether she received a certificate. See id. Ms. Richardson also cites her own self-
serving affidavit (generally, without any pincite) for the proposition that she “personally thanked
Defendant Petasis for the opportunity after completing and receiving [the] certification.” Id. Yet
it is unclear what portion of the affidavit she references or how it indicates that Mr. Petasis was
untruthful.
Ms. Richardson’s claims regarding Ms. Hines provide another apt example. Ms.
Richardson claims that Ms. Hines had “selective memory” regarding “violence on the JHU-SAIS
campus.” See Pl.’s Opp. at 15. Ms. Richardson claims that Ms. Hines testified during her
deposition that she could recall only one instance of violence on campus, which was Ms.
Richardson’s apparent statement to Ms. Grandval on one occasion that they should “take it
outside,” and could not recall Ms. Richardson’s complaint regarding Ms. Grandval threatening
her life. See id. As support, Ms. Richardson inexplicably provides the Court with only a very
brief excerpt of Ms. Hines’s deposition transcript that does not contain Ms. Hines’s full
testimony on this issue. See Pl.’s Ex. 5 at 64:2–22, ECF No. 42-8. In the excerpt, Ms. Hines
testified that she had received “allegations of workplace violence,” and that, when asked who
made those allegations, her first response was “I had one from Deborah Grandval.” See id. at
64:10–16. In this excerpt, she did not state that Ms. Grandval’s complaint was the only
complaint she received or that she could not recall any complaint by Ms. Richardson.
33
See, e.g., Defs.’ Ex. 27 at JHU00380 (August 13, 2012 e-mail to Mr. Petasis, copying
others: “I know how to put an Out of Office Message…..(that M.B.A. paid off) . . . .” (emphasis
in original)); id. at JHU00385 (August 13, 2012 e-mail to Mr. Petasis and Ms. Grandval: “My
‘shredding’ information is missing!!!! That would have been helpful in writing procedures….Oh
well….It walked away!!!!!!”); id. at JHU00388 (August 20, 2012 e-mail to Ms. Grandval,
copying others: “I have no time for nonsense . . . . If this is a priority, come out of your meeting
and let’s talk about details . . . .”); id. at JHU00392 (e-mail to Ms. Grandval, copying others: “I
WILL NOT ACCEPT OWENRSHIP [sic] OF PROBLEMS/ISSUES THAT INCURRED [sic]
DURING MY NON-INVOLVEMENT OR ABSENCE ….nor am I going through every email, I
don’t have that bandwidth…. And I can ‘speak/communicate’ not only read….” (emphasis in
original)); id. at JHU00404 (September 7, 2012 e-mail exchange in which Mr. Petasis writes to
Ms. Richardson, copying Ms. Hines, that her comment to him that if he did not respond to her e-
mail by 5 p.m. that she would “make [her] own decisions and [Mr. Petasis] would have to live
with them” was “highly inappropriate and should not be repeated”); Defs.’ Ex. 18 (September
11, 2012 e-mail in which Mr. Petasis writes to Ms. Richardson after she copies a staff member
49
The upshot of the Court’s review of the record before it, eschewing credibility
determinations and viewing the evidence in the light most favorable to Ms. Richardson, is that
the evidence is not “so one-sided that one party must prevail as a matter of law.” Anderson, 477
U.S. at 251–52. A reasonable juror could conclude, based upon this evidence, that Defendants’
proffered reasons for suspending Ms. Richardson in December 2012 were pretextual.
“Typically, successful rebuttal of an employer’s stated reason counts as evidence of the invidious
motive that is a required element of a disparate treatment or retaliation claim.” Allen, 795 F.3d at
40. The Supreme Court has recognized an exception for cases in which “the plaintiff’s evidence
calling the employer’s proffered reason into doubt is weak, and the record also contains
‘abundant and uncontroverted independent evidence that no discrimination has occurred.’” Id.
(quoting Reeves, 530 U.S. at 148). This is not such a case. Nor is it a case in which “the
plaintiff’s showing of fabrication by her employer ‘conclusively demonstrates that the real
explanation for the employer’s behavior is not discrimination, but some other motivation.’” Id.
(quoting Aka, 156 F.3d at 1290–91).
Accordingly, the Court finds that Ms. Richardson has successfully satisfied her burden of
producing “sufficient evidence for a reasonable jury to find that the employer’s asserted non-
discriminatory reason was not the actual reason and that the employer intentionally discriminated
against the employee on the basis of race.” Brady, 520 F.3d at 494. JHU is not entitled to
summary judgment on this aspect of Ms. Richardson’s discrimination claims.
on a reply to Mr. Petasis that he “asked you on multiple occasions to not share my emails with
your employees as often these discussions are meant to stay at a management level”).
50
C. Other Discrimination Claims
In addition to the three discrete discriminatory actions discussed, supra, Ms. Richardson
also alleges that JHU discriminated against her on the basis of her race in two similar, yet
distinct, ways that are less tangible: first, she claims that JHU, through the conduct of the
Individual Defendants, created a hostile work environment; and second, she claims that, as a
culmination of the hostile work environment and the terms of her suspension, her resignation
constituted a constructive discharge.
1. Hostile Work Environment
Count VI of Ms. Richardson’s Amended Complaint is a claim against JHU for creating a
hostile work environment through discrimination brought under Section 1981, Title VII, and the
DCHRA. 34 See Am. Compl. ¶¶ 145–50. Hostile work environment claims under Section 1981,
Title VII, and the DCHRA are analyzed using the same standards. See Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1114 n.3 (D.C. Cir. 2000) (“[T]he same framework is used for
evaluating claims under 42 U.S.C. § 1981” and Title VII); Ali v. District of Columbia, 697 F.
Supp. 2d 88, 92 n.6 (D.D.C. 2010) (stating that the D.C. Court of Appeals “has made clear that
federal case law addressing questions arising in Title VII cases is applicable to the resolution of
analogous issues raised regarding DCHRA claims” (citing Howard Univ. v. Green, 652 A.2d 41,
45 & n.3 (D.C. 1994)).
34
Though the Amended Complaint separately brings claims for discrimination under
Section 1981, Title VII, and the DHCRA under Counts I, II, and III, the parties construe Count
VI as also being brought under those statutes, though the Amended Complaint is not specific,
and the Court does the same. The Amended Complaint alleges only that the hostile work
environment was motivated by race discrimination and does not allege that it was motivated by
retaliation. See Am. Compl. ¶ 146.
51
To establish a prima facie hostile work environment claim, Ms. Richardson must show
that: (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment;
(3) the harassment occurred because of her race; and (4) the harassment affected a term,
condition, or privilege of her employment. See Nurriddin v. Goldin, 382 F. Supp. 2d 79, 107
(D.D.C. 2005); Kelley v. Billington, 370 F. Supp. 2d 151, 156 (D.D.C. 2005); see also Elam v.
Bd. of Trs. Of Univ. of D.C., 530 F. Supp. 2d 4, 21 n.7 (D.D.C. 2007) (“The elements of a hostile
work environment claim under the DCHRA mirror the federal requirements.” (citing Lively v.
Flexible Packaging Ass’n., 830 A.2d 874, 889 (D.C. 2003))). Defendants argue that Ms.
Richardson cannot establish that the unwelcome harassment she alleges occurred because of her
race or that it affected a term, condition, or privilege of her employment. See Defs.’ Mem. Supp.
at 15–22. The Court first summarizes the alleged unwelcome harassment and then addresses
each of these issues in turn.
a. Unwelcome Harassment
Defendants do not challenge whether Ms. Richardson was subject to unwelcome
harassment. Nevertheless, it is helpful for the Court to briefly summarize the conduct that Ms.
Richardson alleges constituted harassment. In addition to the discrete discriminatory actions of
removing her supervisory duties, reassigning her to the Service Desk, and suspending her, Ms.
Richardson describes the following “[i]ncidents of abusive behavior” that are not independently
actionable. See Pl.’s Opp. at 28–29.
Ms. Richardson alleges that the harassment began almost immediately when Mr. Petasis
“yelled and screamed at [her] in a physically hostile manner” on May 5, 2011. Richardson Aff. ¶
11. See also Defs.’ Ex. 7 (handwritten note dated May 11, 2011 describing the incident). She
alleges that the harassment continued in September 2011 when Mr. Petasis touched her shoulder
52
in a way that made her feel uncomfortable. 35 See Richardson Dep. Tr. at 235:17–241:17.
According to Ms. Richardson, Mr. Petasis’s harassment of her continued when, in January 2012,
he yelled at her for requesting a meeting with Human Resources. 36 See Richardson Aff. ¶ 28;
Pl.’s Ex. 11. She alleges that Mr. Petasis’s yelling was frequent. See Richardson Aff. ¶ 10
(“Defendant Petasis frequently invaded my personal space by yelling and screaming while
simultaneously slamming his fist on the desk.”).
Ms. Richardson alleges that the harassment became more serious when Ms. Grandval
threatened her with physical violence and Mr. Petasis and Ms. Hines did nothing about it. Ms.
Richardson claims that Ms. Grandval first engaged in threatening behavior on February 22, 2012
when she entered her office and lunged in her face while yelling at her. Ms. Richardson
discussed this incident with Mr. Petasis and Ms. Hines during a meeting soon thereafter, and Ms.
Richardson claims that Ms. Hines observed Mr. Petasis yell at her during the meeting. See
Defs.’ Ex. 11; Pl.’s Ex. 50, ECF No. 43-5 (undated memorandum authored by Ms. Richardson
characterizing this meeting as “just heated yelling and misrepresentation of facts”). According to
Ms. Richardson’s deposition testimony, Ms. Grandval’s behavior escalated when, on May 9,
2012, Ms. Grandval came into her office following a meeting with Mr. Petasis and threatened to
hurt her and take her job. See Richardson Dep. Tr. at 334:14–336:9. She alleges that she
35
In her opposition to Defendants’ motion for summary judgment, Ms. Richardson refers to
this incident by stating that Mr. Petasis “sexually harassed Plaintiff by an unwelcome sexual
conduct.” Pl.’s Opp. at 28. Ms. Richardson’s hostile work environment claim, however, rests
solely on a claim of racial discrimination. Ms. Richardson does not bring a claim for sexual
harassment against Mr. Petasis, despite this characterization.
36
In her opposition to Defendants’ motion for summary judgment, Ms. Richardson quotes
Mr. Petasis as yelling, “What the hell did you request a meeting with human resources for?”
Pl.’s Opp. at 28. The citation for this quote is Ms. Richardson’s affidavit and no pincite is
provided. The Court cannot locate any source in the record for this quotation.
53
reported this threat to Mr. Petasis and told him that she did not feel safe or comfortable around
Ms. Grandval and that Mr. Petasis did nothing about it. See Defs.’ Ex. 13.
Ms. Richardson claims that the harassment continued when, on June 4, 2012, Mr. Petasis
“yelled and screamed” at her again and “invited Defendant Grandval to join in his interrogation
of [her] and she did.” Richardson Aff. ¶¶ 54–55. She alleges that Mr. Petasis threatened to take
her to Human Resources in response to a complaint that Ms. Grandval made about her. See id.
¶¶ 57–59. Ms. Richardson states that, as a result of this meeting, she had to be taken to a
hospital in an ambulance and missed work. See id. ¶ 59. She states that due to all of this
harassment, she was forced to seek mental health treatment and take a leave of absence from
work in the summer of 2012. See Richardson Aff. ¶¶ 63–65.
Ms. Richardson alleges that the harassment continued until the end of her employment, as
Mr. Petasis gave her supervisory duties to Ms. Grandval, reassigned her to the Service Desk,
issued her a Final Written Warning, and ultimately suspended her. Ms. Richardson also states
that Mr. Petasis’s “battery” of Roger Daniel shortly before her suspension was abusive towards
her, because she witnessed it. See Pl.’s Opp. at 29.
b. Evidence of Racial Motivations
In order to survive summary judgment on her hostile work environment claim, Ms.
Richardson must offer evidence from which a reasonable jury could find that “the hostile work
environment was the result of discrimination based on a protected status.” Kilby-Robb v.
Spellings, 522 F. Supp. 2d 148, 163 (D.D.C. 2007).
Inexplicably, in the section of her opposition to Defendants’ motion for summary
judgment concerning her hostile work environment claim, Ms. Richardson focuses exclusively
on Mr. Petasis’s use of the term “boy” to refer to male staff members, coupled with his alleged
54
battery of Mr. Daniel, to support this element of her hostile work environment claim. See Pl.’s
Opp. at 30. The Court has already discussed the insufficiency of this evidence with respect to
Ms. Richardson’s claims for discrete discriminatory actions, finding that it does not raise an
inference of discrimination. That evidence is also insufficient here, particularly because it bears
no linkage or correlation to the other alleged harassing actions. Cf. Bryant v. Brownlee, 265 F.
Supp. 2d 52, 64 (D.D.C. 2003) (“[W]ith the exception of [two incidents], none of the events
described in plaintiff’s 21-page complaint have any racial or age-related overtones. They are
completely neutral with regard to these protected classifications.”). In fact, Ms. Richardson
admits that no JHU employee ever made any racially derogatory marks to her during her
employment at JHU. See Defs.’ SOF ¶ 46; Pl.’s Stmt. Facts ¶ 46.
Nevertheless, the Court must also consider here the evidence that it considered in
connection with Ms. Richardson’s claims of discrete discriminatory actions, because Ms.
Richardson’s hostile work environment claim encompasses those discrete discriminatory actions,
and the remainder of her hostile work environment claim primarily concerns Mr. Petasis’s
conduct. The Court considered evidence that Mr. Petasis treated Ms. Grandval, who was
similarly situated to Ms. Richardson, different from how he treated Ms. Richardson without any
proffered justification by, among other things, inviting Ms. Grandval to certain meetings and
excluding Ms. Richardson from them, removing Ms. Richardson’s access to a shared calendar
but maintaining Ms. Grandval’s access, and giving Ms. Richardson’s supervisory duties to Ms.
Grandval. The Court also considered evidence that, among other things, Ms. Richardson was not
disciplined in accordance with JHU’s normal procedures and that Mr. Petasis previously
provided at least one false justification for Ms. Richardson’s Final Written Warning. Based upon
all of this evidence, the Court held that that Ms. Richardson has presented sufficient evidence to
55
raise an inference of race discrimination and to support a finding that the proffered reasons for
her suspension were pretextual. The Court’s reasoning is equally applicable here. Accordingly,
the Court concludes that Ms. Richardson has, at least for purposes of opposing summary
judgment, sufficiently shown that the alleged harassment she suffered was due to her race.
c. Effect on Terms of Employment
The Court therefore turns to the final element of Ms. Richardson’s hostile work
environment claim: whether the alleged harassment affected a term, condition, or privilege of
her employment.
The Supreme Court has held that, in order to satisfy this element, the alleged harassment
must be so “severe or pervasive” as to “alter the conditions of [the plaintiff’s] employment and
create an abusive working environment.” Faragher v. City of Boca Raton, 524 U.S. 775, 786
(1998) (internal quotation omitted). “In order to be actionable under [Title VII], a[n] . . .
objectionable environment must be both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be
so.” Id. at 787 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993)). To determine
whether an environment is objectively abusive, courts consider the totality of the circumstances,
including the “frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance.” Harris, 510 U.S. at 23. See also Baloch, 550 F.3d at
1201. “[I]solated incidents . . . will not amount to discriminatory changes in the ‘terms and
conditions of employment.’” Faragher, 524 U.S. at 788.
There is no doubt here that the harassment that Ms. Richardson alleges was subjectively
abusive, as it is uncontested that, even before the actionable discrete discriminatory actions, the
56
alleged harassment caused her to seek urgent medical attention and, for medical reasons, take a
leave of absence. Though the issue of whether the harassment was objectively abusive is less
clear, the Court’s consideration of the totality of the circumstances leads it to conclude that,
viewing the evidence in the light most favorable to Ms. Richardson and without making any
credibility determinations, a reasonable juror could conclude that it was. This is not a case that
involves isolated, infrequent instances of harassment. Rather, Ms. Richardson alleges that she
suffered repeated and frequent harassment throughout the duration of her employment. The
severity and physical nature of the alleged harassment is also highly relevant. Beyond simply
screaming and invading her personal space, she also alleges that she was the victim of threats of
physical violence and that Mr. Petasis and the other Individual Defendants did nothing in
response to ensure her safety or assuage her fears. Assuming the veracity of these allegations, a
reasonable person in Ms. Richardson’s position would find that conduct, particularly in
combination with the removal of her supervisory duties, reassignment, Final Written Warning,
and suspension—all of which took place within the span of a few months—to be abusive.
The Court is not persuaded by Defendants’ arguments to the contrary. In their motion for
summary judgment, Defendants largely rely on Clemmons v. Academy for Educational
Development, 70 F. Supp. 3d 282 (D.D.C. 2014), in which the court held that the plaintiff’s
claims that she received rude e-mails and that her co-workers rolled their eyes at her and spread
false rumors about her did not affect the terms, conditions, and privileges of her employment.
See 70 F. Supp. 3d at 298–300. The allegations in this case, which involve much more severe
forms of harassment, are plainly distinguishable. Moreover, the court in Clemmons reached its
holding after first finding that the plaintiff received assurances of her job security. See id. at 299.
In stark contrast, Ms. Richardson’s employment was explicitly and formally threatened, and, as
57
discussed, infra, she may have been constructively discharged. Defendants do not even address
these distinctions in their motion. Instead, they seem to conflate the elements of a hostile work
environment claim, arguing only that Ms. Richardson “cannot establish that her conflict with
Petasis or Grandval affected the terms or conditions of her employment” because she cannot
demonstrate a connection between the harassment and her race. Defs.’ Mem. Supp. at 22.
Accordingly, JHU is not entitled to summary judgment on Ms. Richardson’s hostile work
environment claim.
2. Constructive Discharge
Ms. Richardson’s Amended Complaint also claims that, though she resigned from JHU in
January 2013, she was constructively discharged “due to discriminatory harassment by Mr.
Petasis.” Am. Compl. ¶ 116. See also id. ¶ 119. The Amended Complaint does not plead
constructive discharge as a separate count, and, therefore, the Court construes this claim as
falling within Counts I, II, and III brought under Section 1981, Title VII, and the DCHRA,
respectively, alleging discrimination. 37 See Pa. State Police v. Suders, 542 U.S. 129, 142–43
(2004) (holding that “Title VII encompasses employer liability for a constructive discharge”);
Harris v. Wackenhut Servs., Inc., 590 F. Supp. 2d 54, 80–81 (D.D.C. 2008) (constructive
discharge claim brought under the DCHRA); Villines v. United Brotherhood of Carpenters &
Joiners of Am., AFL-CIO, 999 F. Supp. 97 (D.D.C. 1998) (constructive discharge claim brought
under Section 1981). As discussed, supra, discrimination claims brought under Section 1981
and the DCHRA are evaluated using the same framework as claims brought under Title VII. See
Lemmons, 431 F. Supp. 2d at 86 (citing Mungin, 116 F.3d at 1553).
37
As discussed, infra, the Court also reads the Amended Complaint to allege that Ms.
Richardson was also constructively discharged in retaliation for protected activity.
58
In order to prevail on her claim of discriminatory constructive discharge in this Circuit,
Ms. Richardson must show that intentional discrimination existed, her employer deliberately
made working conditions intolerable, and aggravating factors justified her conclusion that she
had no option but to end her employment. See Hendrix v. Napolitano, 77 F. Supp. 3d 188, 193
(D.D.C. 2015) (quoting Carter v. George Wash. Univ., 180 F. Supp. 2d 97, 111 (D.D.C. 2001)).
“‘Aggravating factors’ are those aspects of a discriminatory work environment that, by making
the workplace so disagreeable, prevent the reasonable employee from seeking remediation on the
job.” Veitch v. England, 471 F.3d 124, 130 (D.C. Cir. 2006) (citing Mungin, 116 F.3d at 1558).
The Court has already found that, with respect to her hostile work environment claim,
Ms. Richardson has demonstrated, at least for purposes of opposing a motion for summary
judgment, that she was subjected to intentional discriminatory harassment and that the
harassment affected the terms and conditions of her employment. Ms. Richardson’s constructive
discharge claim, therefore, turns on “whether a reasonable person in the employee’s position
would have felt compelled to resign under the circumstances.” Aliotta v. Bair, 614 F.3d 556, 566
(D.C. Cir. 2010).
Defendants rely heavily on Kalinoski v. Gutierrez, 435 F. Supp. 2d 55 (D.D.C. 2006). In
that case, the court observed that “absent some indication that an employer was trying to drive
the employee from the workplace entirely or that the employee ‘quit just ahead of the fall of the
axe,’ the law will not permit a resignation to be transformed into a discharge.” Kalinoski, 435 F.
Supp. 2d at 78 (quoting Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998)). The
plaintiff in that case argued that her employer’s denial of her medical leave requests following a
reassignment and an accompanying decision to place her on leave without pay constituted a
constructive discharge. See id. at 79. The court disagreed, finding that “[t]he personnel
59
decisions, even if found to be unlawful under Title VII, may have been career-harming, but there
has been no evidence offered to show that they were essentially career-ending.” Id. at 79
(emphasis in original). The court based its conclusion on several facts. The court observed that
there was no evidence that “the adverse actions would be interpreted by a reasonable person as a
sign of imminent termination or even as an indication that defendant no longer wanted plaintiff
to continue working at the agency.” Id. at 80. On the contrary, in that case, “all the evidence
indicate[d] that defendant wanted plaintiff to remain as an employee.” Id. The court also found
that, though the plaintiff had been placed on leave without pay, she “had the option of resuming
work in her new position or staying out on leave without pay until such time as she was
terminated.” Id. Defendants here argue that, similar to Kalinoski, “[t]he paid administrative
leave was not a sign of imminent termination, but an opportunity for Richardson to improve and
do her job satisfactorily.” Defs.’ Mem. Supp. at 28.
The Court does not share Defendants’ view of the record. The Court has already found,
supra, that a reasonable juror could conclude that, among other things, Mr. Petasis removed Ms.
Richardson’s supervisory duties and reassigned her to a lesser position while preventing her from
succeeding at that position by forcing her to work without the necessary assistance of other staff
members. More importantly, Ms. Richardson was suspended and informed that she would only
be permitted to continue her employment if she satisfactorily completed two tasks by a certain
date. Even assuming that those actions alone would be insufficient to support a constructive
discharge claim, Ms. Richardson presents uncontroverted evidence that Mr. Petasis prevented her
from completing one of the two tasks by removing her access to necessary systems and by
instructing staff members not to provide her with necessary information. See Richardson Aff. ¶¶
139–41. Defendants do not challenge these factual allegations. They do not, for example,
60
provide any testimony from Mr. Petasis disputing Ms. Richardson’s claim that he instructed staff
members not to provide her with necessary information. Nor do Defendants provide any
testimony from Mr. Elahi, whom Ms. Richardson quotes as stating that “the staff was directed
not to help you,” Richardson Aff. ¶ 139, though they provide an affidavit from him concerning
other issues. See Elahi Aff. Instead, Defendants simply argue that whether Mr. Petasis
prevented Ms. Richardson from completing one of the two tasks is immaterial, because “she does
not assert that she ever attempted to comply with the second condition of her return to work.”
Defs.’ Reply at 20. This argument is illogical. Even if Ms. Richardson had completed the
second condition in stellar fashion, by the very terms of her suspension, she would have been
terminated. See Defs.’ Ex. 32 at JHU00582 (stating that the tasks were “part of your return to
work and without them you will not have met the criteria to return to work” and that “[f]ailure by
you to meet expectations will result in termination”).
Unlike the plaintiff in Kalinoski, a reasonable employee in Ms. Richardson’s position
could interpret her employer’s actions as “a sign of imminent termination” and as an indication
that Defendants no longer wanted her to remain an employee of JHU. Also unlike the plaintiff in
Kalinoski, Ms. Richardson did not have the option of returning to work. Instead, her
unchallenged evidence indicates that the terms of her suspension and Mr. Petasis’s actions left
her with no means of returning to work at JHU. These facts, if found by a jury, would constitute
the necessary aggravating factors for a constructive discharge claim. See Clark, 665 F.2d at
1174 (holding that aggravating factors were present because the plaintiff was “essentially locked
into a position from which she could apparently obtain no relief”). Cf. Harris, 590 F. Supp. 2d at
81 (granting summary judgment in favor of defendant in part because the plaintiff had “presented
no evidence that even suggests that the defendant was seeking to end his career by transferring
61
him to a position his supervisors knew he could not perform and was therefore predestined to
fail”).
Accordingly, JHU is not entitled to summary judgment on the constructive discharge
aspect of Ms. Richardson’s discrimination claims.
D. Retaliation
Count V of the Amended Complaint is a claim for retaliation brought under Section
1981, Title VII, and the DCHRA. See Am. Compl. ¶¶ 141–44.
Retaliation claims brought under these statutes are subject to the same burden-shifting
framework under McDonnell Douglas as claims for discrimination. See Allen, 795 F.3d at 39. A
plaintiff bringing a retaliation claim under Title VII based on circumstantial evidence establishes
a prima facie case by showing: “(1) that he engaged in statutorily protected activity; (2) that he
suffered a materially adverse action by his employer; and (3) that a causal link connects the
two.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (citing Wiley v. Glassman, 511
F.3d 151, 155 (D.C. Cir. 2007)). A materially adverse action for purposes of a retaliation claim
is one that a reasonable employee would find to be materially adverse, meaning that it “might
have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation
omitted).
As with discrimination claims, once the employer proffers a legitimate, non-retaliatory
reason for the challenged employment action, “the burden-shifting framework falls away, and the
‘central question’ becomes whether ‘the employee produced sufficient evidence for a reasonable
jury to find that the employer’s asserted non-discriminatory or non-retaliatory reason was not the
actual reason and that the employer intentionally discriminated or retaliated against the
62
employee.’” Allen, 795 F.3d at 39 (quoting Brady, 520 F.3d at 494) (alterations omitted). The
Supreme Court has ruled that Title VII retaliation claims, unlike status-based discrimination
claims, “require proof that the desire to retaliate was the but-for cause of the challenged
employment action,” rather than merely a “motivating factor.” Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2528 (2013).
Here, Ms. Richardson claims that she suffered several distinct materially adverse
employment actions in retaliation for several protected activities. She claims: (1) Mr. Petasis
yelled at her on January 24, 2012 in retaliation for requesting a meeting with Human Resources
to discuss his conduct earlier that month; (2) Mr. Petasis excluded her from at least one meeting
in June 2012 in retaliation for complaining to him about Ms. Grandval’s threatening conduct the
previous month; (3) Mr. Petasis authorized Ms. Grandval to assume Ms. Richardson’s
supervisory duties in September 2012 in retaliation for her first EEOC complaint in August
2012; (4) the Final Written Warning, together with her reassignment to the Service Desk, in
September 2012 was also in retaliation for her first EEOC complaint; and (5) she was suspended
in December 2012 in retaliation for complaining about Mr. Petasis’s battery of Mr. Daniel three
days prior and for her other protected activity. See Pl.’s Opp. at 24–27.
Defendants argue that, of these activities, only Ms. Richardson’s complaints to the EEOC
were statutorily protected activity and that, even assuming that Ms. Richardson suffered
materially adverse actions, she cannot establish the requisite causal link between those actions
and her protected activity. See Defs.’ Mem. Supp. at 29–31. The Court addresses each of Ms.
Richardson’s claims of retaliation in turn.
63
1. Mr. Petasis’s Yelling in January 2012
Ms. Richardson claims that on January 24, 2012, Mr. Petasis yelled at her in retaliation
for requesting a meeting with Human Resources. See Pl.’s Opp. at 24–25; Richardson Aff. ¶ 28.
Defendants do not proffer a legitimate, non-retaliatory reason for Mr. Petasis’s conduct, and,
therefore, Ms. Richardson must establish a prima facie case of retaliation under the McDonnell
Douglas framework.
Ms. Richardson must first show that her request for a meeting with Human Resources
was a statutorily protected activity. “An activity is protected for the purposes of a retaliation
claim if it involves opposing alleged discriminatory treatment by the employer or participating in
legal efforts against the alleged treatment.” Lemmons, 431 F. Supp. 2d at 91 (internal quotation
omitted). The “alleged discriminatory treatment” cannot be “generic; rather, the plaintiff must
be opposing an employment practice made unlawful by the statute under which she has filed her
claim of retaliation.” Id. at 91–92 (citing Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.
Cir. 2006) (stating that the complaint “must in some way allege unlawful discrimination”)).
Therefore, Ms. Richardson only engaged in protected activity for purposes of her retaliation
claim if, in her request to meet with Human Resources, she alleged harassment or discrimination
on the basis of race in violation of Section 1981, Title VII, or the DCHRA.
Ms. Richardson provides no evidence to support a finding that her request to meet with
Human Resources in mid-January 2012 was to discuss harassment or discrimination on the basis
of race. Though Ms. Richardson states in her opposition to Defendants’ motion for summary
judgment that she requested this meeting in order to “discuss [Mr. Petasis’s] continued reference
to minority men of color as ‘boy,’” no citation is provided for that factual assertion. Pl.’s Opp. at
24–25. The limited evidence that the Court can locate in the record concerning Ms.
64
Richardson’s mid-January 2012 request does not indicate that it was to discuss Mr. Petasis’s use
of the term “boy” or any other allegations of race discrimination. 38 In her affidavit, Ms.
Richardson simply states that “[o]n January 22, 2012, Defendant Petasis yelled at me for
requesting a meeting with human resources” without further detail. 39 Richardson Aff. ¶ 28. A
memorandum that Ms. Richardson appears to have written two days after the alleged yelling
incident indicates that, contrary to her naked assertion opposing summary judgment, she had
requested to meet with Human Resources to discuss staffing issues and provided Mr. Petasis
with only two hours’ notice, which prompted his yelling. See Pl.’s Ex. 11. She wrote:
You grilled me about why I didn’t talk to you first before setting up
a meeting with Human Resources, Shanna Hines. You were
provided two hours prior notification for a matter of serious
importance. . . . . You indicated that you did not need HR to make
decisions for us regarding IT staffing. “You are not going to be
blackmailed by Chris.” Your voice was extremely loud and to the
point of yelling. Abrasively, you asked, why are we meeting about
Chris? I told you that this was not just about Chris: I simply
coordinated with Shanna Hines/HR, in her office, first checking
your availability and disseminated a meeting invite to bring closure
and clarity regarding the open requisition and IT staffing needs.
38
Ms. Richardson admits in response to Defendants’ Statement of Facts that she actually
raised issues concerning Mr. Petasis’s use of the term “boys” during her September 2011
meeting months earlier with Mr. Kunka and Ms. Hines in which she generally discussed her and
her staff’s concerns about Mr. Petasis’s behavior. See Defs.’ SOF ¶¶ 22–23; Pl.’s Stmt. Facts ¶¶
22–23. As discussed, supra, during that meeting, Ms. Richardson appears to have relayed Mr.
Berbano’s complaint that he did not like being referred to as Mr. Petasis’s “boy” because he was
a “grown-ass man.” Richardson Dep. Tr. at 273:13–274:7. See also Defs.’ Ex. 8 at SDR000992.
Her memorandum summarizing the meeting does not indicate that she expressed to Mr. Kunka
and Ms. Hines her personal feelings that the term was offensive due to its association with the
history of slavery, and, during her deposition, she testified that, to the best of her knowledge, the
account provided in the memorandum was true and complete. See Richardson Dep. Tr. at
275:20–276:5. In any case, Ms. Richardson does not claim that Mr. Petasis or anyone else
retaliated against her for discussing this issue in September 2011. Nor does she present any
evidence that Mr. Petasis even knew about the issues that she raised with Mr. Kunka and Ms.
Hines.
39
Ms. Richardson’s statement conflicts with other accounts of the yelling incident
occurring on January 24, 2012. See Pl.’s Ex. 11.
65
Id. at JHU00246 (emphasis added). 40 Similarly, a memorandum that Mr. Petasis wrote to Ms.
Richardson in response also indicates that Ms. Richardson’s request to meet with Human
Resources concerned staffing issues, rather than allegations of racial discrimination, and that Mr.
Petasis was upset about being provided with a last minute notice. See Pl.’s Ex. 22 at JHU00235
(“Discussion in the IT Conference Room on 1/24/2012 with regards to your appointment for a
meeting at 4pm sent to me around 2pm of the same day instructing me to attend a meeting with
HR on IT Staffing Solutions without offering me an agenda, despite a critical 4:30pm meeting
with a tight deadline, telling me that it needs to happen.”). 41
Ms. Richardson provides no evidence to establish that Mr. Petasis yelled at her on
January 24, 2012 in retaliation for engaging in protected activity, and therefore, JHU is entitled
to summary judgment as to this aspect of Ms. Richardson’s retaliation claims. 42 See, e.g.,
Lemmons, 431 F. Supp. 2d at 92–93 (granting summary judgment in favor of defendants because
the only protected activity that plaintiff identified was a complaint that alleged harassment
generally); Coleman v. Potomac Elec. Power Co., 422 F. Supp. 2d. 209, 213–14 (D.D.C. 2006)
(agreeing with defendant that because plaintiff “complained about the evaluation process, his
supervisors and harassment but not about matters protected by anti-discrimination laws,” he did
not establish that he engaged in statutorily protected activity).
40
In this memorandum, Ms. Richardson also wrote, regarding Mr. Petasis yelling at her on
January 24, 2012: “Is this rough and harsh behavior because of my gender, race or ethnicity?”
Pl.’s Ex. 11 at JHU00246. The Court need not decide whether asking this question constituted
statutorily protected activity, because it was made after and in response to the yelling incident.
Ms. Richardson does not claim that she suffered any retaliation for asking this question.
41
Mr. Petasis’s memorandum references a relevant e-mail exchange attached as an
appendix to the memorandum. See Pl.’s Ex. 22 at JHU00235. Ms. Richardson does not,
however, provide the appendix to the Court, which would have been helpful.
42
The Court does not reach the issue of whether Mr. Petasis’s yelling constituted a
materially adverse action.
66
2. Exclusion from a Meeting on June 4, 2012
Ms. Richardson claims that on June 4, 2012, Mr. Petasis excluded her from an important
meeting in retaliation for reporting Ms. Grandval’s alleged threat of physical violence on May 9,
2012. 43 Defendants do not proffer a legitimate, non-retaliatory reason for Mr. Petasis’s
exclusion of Ms. Richardson from the meeting, and, therefore, Ms. Richardson must establish a
prima facie case of retaliation under the McDonnell Douglas framework.
Ms. Richardson fails to establish that her complaint to Mr. Petasis and Human Resources
regarding Ms. Grandval was a statutorily protected activity. She provides no evidence
whatsoever indicating that she raised issues concerning race discrimination in her complaint. On
the contrary, the record before the court, including an e-mail from Ms. Richardson to Mr. Petasis
and Ms. Hines informing them of the incident and a memorandum summarizing her subsequent
conversation about the incident with Mr. Petasis and Ms. Hines, indicates that, while she
complained about Ms. Grandval being threatening and indicated that she feared for her safety,
she made no mention of any potential racial issue. See Defs.’ Ex. 12 (e-mail to Ms. Hines and
Mr. Petasis informing them of the incident); Defs.’ Ex. 13 (memorandum summarizing
discussion with Mr. Hines and Mr. Petasis regarding the incident). Ms. Richardson provides no
evidence to establish that Mr. Petasis excluded her from the meeting on June 4, 2012 in
retaliation for engaging in protected activity, and therefore, Defendants are entitled to summary
judgment on this claim of retaliation. 44
43
Ms. Richardson also states in a footnote in her opposition brief that “[t]his also occurred
at or around October 17, 2012 when Defendants Grandval and Petasis attended an IT related
event to Bologna, Italy.” Pl.’s Opp. at 25 n.13. Ms. Richardson provides no citation for this
factual claim and she does not allege that she was excluded from this trip in retaliation for her
complaint regarding Ms. Grandval or for any other activity.
44
The Court need not reach the issue of whether Ms. Richardson’s exclusion from the
meeting constituted a materially adverse employment action.
67
3. Removal of Supervisory Duties in September 2012
Ms. Richardson claims that on September 11, 2012, Mr. Petasis authorized Ms. Grandval
to assume her supervisory duties in retaliation for filing her first EEOC complaint for
discrimination 29 days earlier on August 13, 2012. As discussed, supra, with respect to Ms.
Richardson’s claim that this action was also discrimination, Defendants do not proffer a
legitimate, non-retaliatory reason for the action, and, therefore, Ms. Richardson must establish a
prima facie case of retaliation under the McDonnell Douglas framework.
a. Statutorily Protected Activity and Materially Adverse Action
There is no dispute that Ms. Richardson’s filing of a formal EEOC complaint was a
statutorily protected activity, the first prong of the prima facie analysis. The Court also found,
supra, that there is a genuine dispute as to whether Mr. Petasis authorized the removal of her
supervisory duties and that this action, if true, would constitute an adverse employment action
for purposes of a discrimination claim. This analysis holds true with respect to whether the
action would constitute a materially adverse action for purposes of a retaliation claim, the second
prong of the prima facie analysis, which encompasses a broader range of actions than the anti-
discrimination provision of Title VII. The alleged removal of Ms. Richardson’s supervisory
duties “might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington Northern, 548 U.S. at 68 (internal quotation omitted).
b. Evidence of Causal Link
Ms. Richardson’s claim, therefore, turns on whether she can establish, for purposes of
satisfying the third prong of the prima facie analysis, a causal link between her filing of the
EEOC complaint on August 13, 2012 and the removal of her supervisory duties on September
11, 2012. For purposes of making a prima facie case of retaliation, a plaintiff need not provide
68
any direct evidence of a causal connection. Rather, a plaintiff may establish the requisite
causation by “showing that the employer had knowledge of the employee’s protected activity,
and that the adverse personnel action took place shortly after that activity.” Mitchell v.
Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985). See also Singletary v. District of Columbia, 351
F.3d 519, 525 (D.C. Cir. 2003) (“[T]his circuit has held that a close temporal relationship may
alone establish the required causal connection.”).
Here, the very close temporal proximity between Ms. Richardson’s protected activity and
the materially adverse action is quite plain. Ms. Richardson filed her EEOC complaint on
August 13, 2012, and, at or around the same time, she filed a complaint with JHU’s Office of
Institutional Equity. See Defs.’ SOF ¶ 67; Richardson Aff. ¶ 66. Ms. Richardson alleges that
Mr. Petasis removed her supervisory duties on September 11, 2012, less than one month later.
See Richardson Aff. ¶¶ 67–68. This falls within the generally accepted range for establishing a
causal connection. See Brodetski v. Duffey, 141 F. Supp. 2d 35, 43 (D.D.C. 2001) (“[C]ourts
generally have accepted time periods of a few days up to a few months . . . .”). None of the
Individual Defendants claim that they were unaware of Ms. Richardson’s EEOC filing and her
internal complaint at the time that the alleged removal of her supervisory duties occurred. 45 In
the absence of a proffered legitimate, non-retaliatory justification, the combination of temporal
proximity, uncontested knowledge of protected activity, and the frequency of other alleged
materially adverse actions is sufficient to raise an inference of retaliatory motive.
45
In addition, as discussed, infra, the record shows that Mr. Petasis was aware of Ms.
Richardson’s EEOC filing and internal complaint at least as early as September 17, 2012, see
Defs.’ Ex. 30 at SDR000996, and Ms. Hines stated during the internal appeals process that Ms.
Richardson informed her of her first EEOC filing upon returning to work in August 2012. See
Pl.’s Ex. 9 at JHU00514.
69
Accordingly, JHU is not entitled to summary judgment as to this aspect of Ms.
Richardson’s retaliation claims.
4. Final Written Warning and Reassignment to the Service Desk in September 2012
Ms. Richardson claims that the combined actions of issuing her a Final Written Warning
on September 13, 2012 and reassigning her to the Service Desk was in retaliation for filing her
first EEOC complaint on August 13, 2012.
a. Materially Adverse Action
Though Defendants argue that the Final Written Warning was not an adverse
employment action for purposes of Ms. Richardson’s discrimination claim, it is unclear from
their briefing whether they also challenge whether the Final Written Warning was a materially
adverse action for purposes of a retaliation claim, the definition of which encompasses a broader
range of actions. See Defs.’ Mem. Supp. at 30 (arguing that “the alleged actions of retaliation
against Richardson are limited to the Final Written Warning” and the suspension and arguing
that “[e]ven assuming that the Final Written Warning” and the suspension were “adverse
employment actions,” Ms. Richardson cannot establish the requisite causation). Nevertheless,
the Court addresses this issue for clarity.
The D.C. Circuit addressed whether letters of reprimand and negative performance
reviews may constitute materially adverse actions for retaliation purposes in Baloch. See 550
F.3d at 1199. The court held that the letters and negative performance reviews in that case did
not constitute materially adverse actions because the letters “contained no abusive language, but
rather job-related constructive criticism, which ‘can prompt an employee to improve her
performance’” and the plaintiff did not produce evidence demonstrating that the negative
performance reviews “could affect his position, grade level, salary, or promotion opportunities.”
70
Id. (quoting Whittaker v. N. Ill. University, 424 F.3d 640, 648 (7th Cir. 2005)). The court also
cited with approval a Seventh Circuit decision holding that certain evaluations and written
warnings were not adverse actions because “none had tangible job consequences.” See id.
(quoting Whittaker, 424 F.3d at 648). Summarizing the precedent in this Circuit, one court has
stated that “[a] letter of counseling, written reprimand, or unsatisfactory performance review, if
not abusive in tone or language or a predicate for a more tangible form of adverse action, will
rarely constitute materially adverse action under Title VII.” Hyson v. Architect of the Capitol,
802 F. Supp. 2d 84, 102 (D.D.C. 2011). Courts have also recognized that there is no rule that
letters of reprimand are per se non-actionable, but, rather, “the case law is clear that the ‘material
adversity’ inquiry is necessarily context-specific and ‘is simply not reducible to a comprehensive
set of clear rules.’” Herbert v. Architect of the Capitol, 766 F. Supp. 2d 59, 75 n.16 (D.D.C.
2011) (quoting Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175 (2011)).
The Court finds that Ms. Richardson’s Final Written Warning was an actionable,
materially adverse action. Though the Final Written Warning contained no abusive language,
the record is clear that it was used as a predicate for Ms. Richardson’s suspension, which had a
tangible impact on the terms of Ms. Richardson’s employment. Context also compels the
Court’s conclusion. Ms. Richardson received the Final Written Warning within days of the
alleged removal of her supervisory duties and her reassignment to the Service Desk. The Court
has already found that these actions independently constitute adverse employment actions, and
the combined impact of those actions and the Final Written Warning certainly “might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington Northern, 548 U.S. at 68 (internal quotation omitted).
71
b. Defendants’ Proffered Reasons and Evidence of Pretext
Defendants proffer the same legitimate, non-retaliatory reasons for issuing Ms.
Richardson the Final Written Warning that they offer to justify her suspension: her
insubordination and poor performance. See Defs.’ Mem. Supp. at 28–29. The question,
therefore, is whether Ms. Richardson has produced sufficient evidence for a reasonable jury to
find that those reasons were not the actual reasons for the Final Written Warning and that JHU
retaliated against her. The D.C. Circuit has stated that “[t]he temporal proximity of an adverse
action close on the heels of protected activity is a common and highly probative type of
circumstantial evidence of retaliation.” Allen, 795 F.3d at 40 (citing Hamilton v. Geithner, 666
F.3d 1344, 1357–59 (D.C. Cir. 2012)). Here, the Final Written Warning came approximately
one month after Ms. Richardson filed her EEOC claim.
Defendants argue that Ms. Richardson cannot establish the requisite causation, because
“she cannot dispute that Petasis first disciplined her informally in February 2012, or that Petasis
and Hines started discussing the need for the Final Written Warning in June 2012, six months
and six weeks prior to Richardson filing the Charge, respectively.” Defs.’ Mem. Supp. at 30.
Defendants’ argument alludes to the Supreme Court’s statement in an arguably analogous
context that “[e]mployers need not suspend previously planned transfers upon discovering that a
Title VII suit has been filed, and their proceeding along lines previously contemplated, though
not yet definitively determined, is no evidence whatever of causality.” Clark Cnty. Sch. Dist.,
532 U.S. at 272.
Defendants’ argument, however, is undercut by JHU’s own internal finding that Ms.
Richardson’s Final Written Warning was the “first discipline she received.” Defs.’ Ex. 31 at
SDR001058. Moreover, the only evidence submitted in support of the claim that Ms. Hines and
72
Mr. Petasis began contemplating a Final Written Warning in June 2012 is Ms. Hines’s self-
serving affidavit in which she states that she advised Mr. Petasis to prepare one. See Hines Aff.
¶ 5. Defendants do not provide any testimony from Mr. Petasis or any contemporaneous
evidence on this issue. Nor do Defendants offer any details as to whether Mr. Petasis or Ms.
Hines took any action to prepare the Final Written Warning or whether they had any further
discussions about it until after Ms. Richardson filed her EEOC complaint.
In any case, even to the extent that the value of the temporal proximity between Ms.
Richardson’s protected activity and the Final Written Warning is diminished for purposes of a
causation analysis, Ms. Richardson has presented other evidence sufficient to support an
inference of pretext and retaliation. The Court has already held that Ms. Richardson has
presented sufficient evidence for a reasonable jury to find that Defendants’ justifications for her
suspension were pretextual, based largely on evidence indicating that JHU did not follow its
normal procedures in issuing the Final Written Warning and indicating that Mr. Petasis presented
at least one false justification for taking the action. That evidence even more strongly supports a
finding of pretext here, since it is directly connected to the adverse action at issue. See Allen,
795 F.3d at 40 (stating that a plaintiff may prove an “invidious motive” of discrimination or
retaliation by, among other things, pointing to evidence that “the employer is ‘lying about the
underlying facts’ of its decision” and that “the employer failed to ‘follow establish procedures or
criteria’” (quoting Brady, 520 F.3d at 495)). In addition, the fact that the Final Written Warning
occurred within days of the alleged removal of Ms. Richardson’s supervisory duties and her
reassignment to the Service Desk, actions that Defendants do not claim to have contemplated
prior to Ms. Richardson’s protected activity, further supports a finding of pretext. The record
also indicates that Mr. Petasis and Ms. Hines were aware of Ms. Richardson’s protected activity
73
when they issued her the Final Written Warning, and Defendants do not argue otherwise. See
Defs.’ Ex. 30 at SDR000996; Pl.’s Ex. 9 at JHU00514. The Court therefore concludes that Ms.
Richardson has presented sufficient evidence for a reasonable jury to find that Defendants’
proffered reasons for her Final Written Warning were not the real reasons and that the real reason
was retaliation.
JHU is not entitled to summary judgment on this aspect of Ms. Richardson’s retaliation
claims.
5. Suspension in December 2012
Ms. Richardson claims that her suspension on December 17, 2012 was also an act of
unlawful retaliation. The Court has already found that the suspension was an adverse
employment action for purposes of Ms. Richardson’s discrimination claim, and that analysis also
suffices for finding that the suspension was a materially adverse action for purposes of a
retaliation claim. The remaining issue, therefore, is causation.
In her opposition to Defendants’ motion for summary judgment, Ms. Richardson claims
that she was suspended in retaliation for complaining to Mr. Petasis about his alleged battery of
Mr. Daniel three days prior. She does not, however, establish that her complaint to Mr. Petasis
was statutorily protected activity. The sole evidentiary support that Ms. Richardson provides for
her claim that she complained to Mr. Petasis about his alleged battery of Mr. Daniel at all is one
sentence from her affidavit in which she stated only: “December 18, 2012, I spoke to Defendant
Petasis regarding hitting Mr. Daniel.” Richardson Aff. ¶ 124. Ms. Richardson does not provide
any evidence whatsoever that her purported complaint to Mr. Petasis alleged that he struck Mr.
Daniel with a racially discriminatory motive. Her claim of retaliation on this basis, therefore, is
without merit.
74
More compelling, however, is the proposition that Ms. Richardson was suspended in
retaliation for her EEOC filings. On October 17, 2012, Ms. Richardson filed a second EEOC
charge, this time alleging retaliation. See Richardson Aff. ¶ 110. She was suspended just over
two months later. Defendants argue that Ms. Richardson cannot establish the necessary
causation between her EEOC filing and her suspension, because the temporal proximity is not
close enough. See Defs.’ Mem. Supp. at 30–31. As support, Defendants rely upon the Supreme
Court’s approval in Clark of circuit cases that rejected temporal proximities of three and fourth
months as evidence of causation, see Clark Cnty. Sch. Dist., 532 U.S. at 273, as well as the D.C.
Circuit’s subsequent rejection of a two-and-one-half month time period as sufficient to infer a
retaliatory motive in Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009).
Defendants’ argument misses the mark. First, of course, the temporal proximity here of
two months is shorter than the temporal proximity in those cases. In addition, the D.C. Circuit
has since clarified that there is no bright-line rule with respect to temporal proximity. See
Hamilton, 666 F.3d at 1357–58 (“Although the Supreme Court has cited circuit decisions
suggesting that in some instances a three-month period between the protected activity and the
adverse employment action may, standing alone, be too lengthy to raise an inference of
causation, neither the Supreme Court nor this court has established a bright-line three-month
rule.”). Indeed, the D.C. Circuit has explicitly interpreted its decision in Taylor as standing for
the proposition that it “evaluate[s] the specific facts of each case to determine whether inferring
causation is appropriate.” Id. at 1358 (citing Taylor, 571 F.3d at 1322).
Most importantly, Defendants’ argument is premised on the false assumption that there is
no other evidence supporting causation. See Defs.’ Mem. Supp. at 31 (arguing that Ms.
Richardson cannot establish causation “[i]n the absence of any other evidence of causation”).
75
The Court has already found, with respect to Ms. Richardson’s claim that the suspension was
discriminatory, that she has presented sufficient evidence for a reasonable jury to conclude that
Defendants’ proffered reasons for the suspension were pretextual. Here, that analysis is only
bolstered by the close temporal proximity between Ms. Richardson’s second EEOC filing and
the suspension, as well as the other alleged materially adverse actions. It is also clear that Mr.
Petasis, Ms. Hines, and Mr. Kunka were well aware of Ms. Richardson’s protected activity
before the suspension. See Defs.’ Ex. 30 at SDR000996; Pl.’s Ex. 9 at JHU00514. For all these
reasons, the Court finds that a reasonable jury could conclude that JHU suspended Ms.
Richardson in retaliation for her protected activity.
Accordingly, JHU is not entitled to summary judgment as to this aspect of Ms.
Richardson’s retaliation claims.
6. Constructive Discharge
Finally, the Court interprets Ms. Richardson’s allegation of a constructive discharge as
also falling within her retaliation claim under Count V of her Amended Complaint. Though
Defendants do not appear to treat it as so, “[r]etaliation can be the basis for a constructive
discharge claim.” Robinson v. Ergo Solutions, LLC, 85 F. Supp. 3d 275, 283 (D.D.C. 2015)
(citing Carter, 387 F.3d at 883). The analysis for a constructive discharge claim on the basis of
retaliation mirrors the analysis in the discrimination context. See id.
The Court has already held, with respect to Ms. Richardson’s discrimination claim, that
Ms. Richardson has presented sufficient evidence for a reasonable jury to find that she was
constructively discharged. The Court has also held that she has presented sufficient evidence for
a reasonable jury to conclude that Defendants removed her supervisory duties, reassigned her,
gave her a Final Written Warning, and suspended her in retaliation for her protected activity.
76
The same analysis applies here, as those actions form the foundation for her constructive
discharge claim. Accordingly, JHU is not entitled to summary judgment as to this aspect of Ms.
Richardson’s retaliation claims.
E. Liability of the Individual Defendants for Aiding and Abetting
The Court has held that JHU is not entitled to summary judgment on the majority of Ms.
Richardson’s discrimination and retaliation claims in this action. In addition to these claims
against JHU, Ms. Richardson also brings claims under the DCHRA against the Individual
Defendants for aiding and abetting JHU’s unlawful discrimination and retaliation. See Am.
Compl. ¶¶ 133–40. The Court first addresses the legal standards for individual liability under the
DCHRA’s aiding and abetting provision and then addresses each Individual Defendant in turn.
1. The DCHRA’s Aiding and Abetting Provision
Under the DCHRA, it is “an unlawful discriminatory practice for any person to aid, abet,
invite, compel, or coerce the doing of any of the acts forbidden under the provisions of [the
DCHRA] or to attempt to do so.” D.C. Code § 2-1402.62. The case law concerning this
provision of the DCHRA is underdeveloped, and the Court’s application of the provision to this
case is frustrated by the parties’ failure to adequately address the issues. Nevertheless, the Court
is guided by a limited set of decisions by the District of Columbia Court of Appeals and
interpretations of the provision by courts of this District.
The leading case concerning the aiding and abetting provision is Wallace v. Skadden,
Arps, Slate, Meagher & Flom, 715 A.2d 873 (D.C. 1998). In Wallace, the D.C. Court of
Appeals held that partners of a law firm could be held individually liable under the DCHRA for
both direct violations of the statute as “employers” and for aiding and abetting the law firm’s
discrimination by “carr[ying] out the allegedly discriminatory acts.” Id. at 888. Looking to the
77
standards for aiding and abetting in the criminal context, the Court stated that “[a]n aider and
abettor is one who ‘in some sort associates himself with the venture, participates in it as
something he wishes to bring about, and seeks by his action to make it succeed.’” Id. at 888
(quoting Roy v. United States, 652 A.2d 1098, 1104 (D.C. 1995) (internal punctuation omitted)).
The Court explained that even if “the individual partners are not employers, and thus not
principals in the alleged discrimination,” they could be liable under the aiding and abetting
provision if they “participated in the discrimination and sought to make it succeed.” Id.
Most importantly with respect to this case, the Court in Wallace also cited with approval
the Third Circuit’s holding that, under an analogous Pennsylvania statute, a supervisor is liable
for aiding and abetting sexual harassment if he knew or should have known about the harassment
and refused to take prompt action to end it. See id. (citing Dici v. Pennsylvania, 91 F.3d 542,
553 (3d Cir. 1996)). Since Wallace, courts in this District have recognized that supervisors may
be liable under the DCHRA for aiding and abetting if they knew or should have known about the
discriminatory or retaliatory conduct and failed to stop it. See Martin v. District of Columbia,
968 F. Supp. 2d 159, 165 (D.D.C. 2013) (quoting King v. Triser Salons, LLC, 815 F. Supp. 2d
328, 332 (D.D.C. 2011)). As discussed in greater detail, infra, with respect to Ms. Richardson’s
claim against Ms. Grandval, the standard, if any, to be applied to a non-supervising co-worker is
unclear.
Finally, of course, an individual cannot be liable under the aiding and abetting provision
absent an underlying direct violation of the DCHRA. See Gaujacq v. EDF, Inc., 601 F.3d 565,
576 (D.C. Cir. 2010) (holding that because the employer did not discriminate against the
plaintiff, it was clear that an individual defendant “did not aid and abet any unlawful
discrimination”). Accordingly, the Individual Defendants are entitled to summary judgment with
78
respect to the two alleged retaliatory actions on which JHU is entitled to summary judgment:
Mr. Petasis’s yelling in January 2012 and Ms. Richardson’s exclusion from a meeting in June
2012.
2. George Petasis
All of Ms. Richardson’s surviving claims of discrimination and retaliation against JHU
concern actions taken directly by Mr. Petasis: his authorization of the removal of her
supervisory duties, his decision to reassign her to the Service Desk, the issuance of her Final
Written Warning, her suspension, and her constructive discharge. Thus, on the record before the
Court, a reasonable jury could conclude that Mr. Petasis “carried out the allegedly discriminatory
acts” and therefore “aided and abetted the employer’s discrimination” in violation of the
DCHRA. Wallace, 715 A.2d at 888.
Defendants’ arguments to the contrary are limited. They argue only that Mr. Petasis is
entitled to summary judgment, because Ms. Richardson “has offered no evidence that his
conduct was discriminatory.” Defs.’ Mem. Supp. at 34. As support, they cite Ms. Richardson’s
testimony during her deposition that she did not know Mr. Petasis’s motivations for yelling at her
for the first time in May 2011, her testimony in which she did not attribute Mr. Petasis’s
touching of her in September 2011 as racially motivated, and her testimony that Mr. Petasis
never made a racially derogatory mark towards her. See id. at 34–35. This evidence, while
certainly probative of whether Mr. Petasis’s conduct was racially motivated, is inconclusive.
The Court has already found that there is sufficient evidence in the record, including evidence of
disparate treatment and evidence suggesting pretext, for a reasonable jury to conclude that Mr.
Petasis’s conduct was motivated by race. Moreover, Defendants entirely fail to address whether
Mr. Petasis was motivated by retaliation.
79
Accordingly, Mr. Petasis is not entitled to summary judgment for aiding and abetting any
of the surviving claims against JHU.
3. Shanna Hines
As a preliminary matter, the Court must determine the legal standard to apply to Ms.
Richardson’s claims against Ms. Hines. Though Ms. Hines, as the Human Resources Manager,
was not Ms. Richardson’s direct supervisor, the Court finds, based upon the context of this case,
that it is appropriate to apply the supervisory aiding and abetting standard to Ms. Hines, and
Defendants do not argue otherwise. The Court’s analysis is grounded in the record, which shows
that Ms. Hines held a managerial function and was responsible for, in many respects, supervising
Ms. Richardson’s relationship with Mr. Petasis and that she counseled Mr. Petasis on
disciplinary action against Ms. Richardson. The Court therefore considers whether a reasonable
jury could find that Ms. Hines knew or should have known about discrimination or retaliation
against Ms. Richardson and failed to stop it.
The record indicates that Ms. Hines was actively involved in Ms. Richardson’s Final
Written Warning and her suspension. 46 Ms. Hines even testified to her involvement in the
decision to “go outside the standard disciplinary process” with respect to the Final Written
Warning. Hines Dep. Tr. at 30:11–31:11, Pl.’s Ex. 5, ECF No. 42-8. The record also indicates
that Ms. Richardson brought numerous complaints regarding Mr. Petasis’s allegedly harassing
conduct to Ms. Hines’s attention, and Ms. Richardson alleges that Ms. Hines failed to take action
46
See, e.g., Hines Aff. ¶ 5 (stating that she advised Mr. Petasis to prepare the Final Written
Warning); Defs.’ Ex. 30 at SDR000996 (letter from Mr. Kunka stating that Ms. Richardson
received the Final Written Warning in a meeting with Mr. Petasis and Ms. Hines); Defs.’ Ex. 32
(letter signed by Ms. Hines informing Ms. Richardson of her suspension and its asserted
reasons).
80
in response to stop the conduct. 47 Ms. Richardson has also presented evidence that Ms. Hines
told JHU’s internal investigators during the appeal of Ms. Richardson’s Final Written Warning
that “she viewed Mr. Petasis’ behavior as a risk from a HR perspective.” Pl.’s Ex. 9 at
JHU00510. This evidence provides sufficient grounds for a reasonable jury to find that Ms.
Hines knew about or should have known about the alleged discrimination and retaliation against
Ms. Richardson and may even support a finding that she helped carry out at least some of the
alleged discrimination and retaliation. There is no evidence, however, indicating that Ms. Hines
knew about or had any role with respect to the alleged removal of Ms. Richardson’s supervisory
duties or her reassignment to the Service Desk.
Defendants’ arguments with respect to Ms. Hines are also limited and focus exclusively
on discrimination, ignoring retaliation. In their brief filed in support of their motion, Defendants
argue only that Ms. Hines is entitled to summary judgment because Ms. Richardson testified
during her deposition that Ms. Hines never made a racially derogatory remark and that she did
not know why Ms. Hines allegedly failed to schedule a meeting in response to a complaint that
Ms. Richardson made. See Defs.’ Mem. Supp. at 33. As with respect to Mr. Petasis, this
47
See, e.g., Hines Aff. ¶ 4 (stating that she met with Ms. Richardson and Mr. Petasis in
February 2012 “to try to help them resolve their conflict”); Defs.’ Ex. 11 (March 2012 e-mail
from Ms. Richardson to Ms. Hines following up on the February 2012 meeting); Richardson Aff.
¶ 26 (stating that Ms. Hines told her that “she is tired of getting complaints about George,
Myron’s not doing anything”); id. ¶ 33 (alleging that Ms. Hines “ignored my meeting requests”);
id. ¶ 154 (alleging that Ms. Hines responded to a complaint about Mr. Petasis by stating that
“George is just being petty”); Pl.’s Ex. 9 at JHU00510 (internal investigative report stating that
“Ms. Hines stated that Ms. Richardson described her interactions with Mr. Petasis as ‘being in an
abusive relationship or marriage’”); id. at JHU00512 (“[Ms. Hines] said she would meet with
Ms. Richardson and Mr. Petasis regularly.”); id. (“Ms. Hines alleged that Ms. Richardson would
say that she had to respect the position, not the person in the position, that she was a ‘watchdog’
for others, and that she ‘wanted a harassment free workplace.’”); id. at JHU00515 (“Ms. Hines
was asked if she was an advocate of Mr. Petasis. She responded that she was an advocate in that
she saw the side of Ms. Richardson that Mr. Petasis got.”).
81
evidence, while probative, does not entitle Ms. Hines to summary judgment and does not address
the issue of whether Ms. Hines had knowledge of the alleged discrimination and retaliation and
whether she attempted to stop it. 48
Accordingly, Ms. Hines is not entitled to summary judgment with respect to her alleged
aiding and abetting of the Final Written Warning, suspension, hostile work environment, and
constructive discharge. She is entitled to summary judgment with respect to the removal of Ms.
Richardson’s supervisory duties and Ms. Richardson’s reassignment to the Service Desk.
4. Myron Kunka
The supervisory aiding and abetting standard is also applicable to Mr. Kunka, who was
responsible for overseeing both the Office of Information Technology and Human Resources,
and Defendants do not argue otherwise.
The record indicates that Mr. Kunka’s involvement in or awareness of the alleged
discriminatory and retaliatory conduct was more limited than the other Individual Defendants.
Mr. Kunka participated in the meeting with Ms. Hines and Ms. Richardson on September 29,
2011, in which they discussed Ms. Richardson’s general complaints about Mr. Petasis’s behavior
and his use of the term “boys” to refer to male staff members. See Defs.’ SOF ¶ 22; Defs.’ Ex. 8.
48
The Court notes that Defendants partly address this issue in their reply brief, arguing that
Ms. Richardson has “at most . . . establish[ed] that Hines understood Petasis to pose a possible
risk to SAIS because he was a bad manager, not that she thought he posed a possible risk
because he was engaging in discriminatory conduct.” Defs.’ Reply at 21–22. “[I]t is a well-
settled prudential doctrine that courts generally will not entertain new arguments first raised in a
reply brief.” Lewis v. District of Columbia, 791 F. Supp. 2d 136, 139 n.4 (D.D.C. 2011) (quoting
Aleutian Pribilof Islands Ass’n, Inc. v. Kempthorne, 537 F. Supp. 2d 1, 12 n.5 (D.D.C. 2008)).
In any event, the Court does not share this narrow view of the record and observes that
Defendants still fail to address whether Ms. Hines was aware of the alleged retaliation. The
Court also notes that, though Ms. Hines is of the same race as Ms. Richardson, Defendants do
not offer this fact as grounds for granting judgment in favor of Ms. Hines for aiding and abetting
the discrimination. The Court does not raise this issue on its own.
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The Court has found, however, that neither Ms. Richardson’s statements during that meeting nor
Mr. Petasis’s use of the word “boys” support her claims of discrimination or retaliation.
It is unclear what further involvement, if any, Mr. Kunka had prior to the issuance of Ms.
Richardson’s Final Written Warning in September 2012. The record indicates that Ms. Hines
stated during the internal appeals process that she recommended to Mr. Kunka that “Mr. Petasis
get an Executive Coach or attend the Leadership Development program” but that “Mr. Kunka
was resistant to her guidance and that he spoke to Mr. Petasis about his style.” Pl.’s Ex. 9 at
JHU00510. See also Richardson Aff. ¶ 26 (stating that Ms. Hines told her that “she is tired of
getting complaints about George, Myron’s not doing anything”). It is unclear, however, when
this occurred.
In his letter upholding the Final Written Warning on October 24, 2012, Mr. Kunka stated
that he was involved in the preparation of the Final Written Warning. See Defs.’ Ex. 30 at
SDR000996 (“The final written warning was prepared after thoughtful consideration,
deliberation and in consultation with the Office of the General Counsel, Human Resources, and
me.”). He also stated in the letter that he was “fully aware of the formal complaints you have
filed with Johns Hopkins University’s (JHU) Office of Institutional Equity (OIE) and the U.S.
Equal Employment Opportunity Commission (EEOC) against JHU Paul H. Nitze School of
Advanced International Studies (SAIS) alleging harassment, discrimination based on gender and
race and retaliation.” Id. The Court is unable to locate evidence in the record concerning Mr.
Kunka’s involvement in Ms. Richardson’s suspension, but, given his self-described level of
involvement in Ms. Richardson’s Final Written Warning, it would be reasonable to infer that he
should have known about it. There is no evidence that he knew about or should have known
83
about the alleged removal of Ms. Richardson’s supervisory duties or her reassignment to the
Service Desk.
This evidence provides sufficient grounds for a reasonable jury to find that, with respect
to the Final Written Warning, suspension, alleged hostile work environment, and constructive
discharge, Mr. Kunka knew about or should have known about the alleged discrimination and
retaliation against Ms. Richardson and that he failed to stop it. Again, Defendants’ arguments
with respect to Mr. Kunka are weak, citing only Ms. Richardson’s testimony during her
deposition that Mr. Kunka was in a position of authority with a responsibility to protect
employees from harm, that he “concur[ed]” with the discrimination and constructive discharge,
that he did not respond to her requests for a meeting, and that she understood from Ms. Hines
that he was aware of Mr. Petasis’s behavior. Defs.’ Mem. Supp. at 32–33 (quoting Defs.’ SOF ¶
74). Defendants do not challenge Ms. Richardson’s factual claims. Instead, they argue that Ms.
Richardson has presented “no other evidence that Kunka was motivated by racial animus” and
that Ms. Richardson acknowledged that Mr. Kunka did not make any racially derogatory
comments to her in her presence. As with respect to Ms. Hines, Defendants fail address the
central issue of whether Mr. Kunka knew about or should have known about the alleged
discriminatory and retaliatory conduct and whether he did anything to stop it. Defendants also
focus exclusively on the discrimination claims and ignore the issues in this case concerning
retaliation.
Accordingly, Mr. Kunka is not entitled to summary judgment with respect to his alleged
aiding and abetting of the Final Written Warning, suspension, hostile work environment, and
constructive discharge. He is, however, entitled to summary judgment with respect to the
84
removal of Ms. Richardson’s supervisory duties and Ms. Richardson’s reassignment to the
Service Desk.
5. Deborah Grandval
It is clear that Ms. Grandval was not responsible for supervising Ms. Richardson or Mr.
Petasis. Indeed, Ms. Richardson explicitly argues that “Defendant Grandval was not Plaintiff’s
supervisor,” Pl.’s Opp. at 5, and a significant piece of evidence in support of Ms. Richardson’s
discrimination claims—Mr. Petasis’s disparate treatment of Ms. Grandval—hinges on Ms.
Richardson’s factual claim that she and Ms. Grandval were similarly situated employees. It is
therefore improper to apply the aiding and abetting standard for supervisors, which imposes a
duty to end any known discriminatory or retaliatory practices, on Ms. Grandval, as Ms.
Richardson appears to suggest. See Pl.’s Opp. at 34 (“Defendants Hines, Kunka, and Grandval
were all aware of what was happening and did nothing to intervene.”). After all, under this
theory, it would seem that virtually any employee of SAIS familiar with the relationship between
Mr. Petasis and Ms. Richardson who failed to act could be liable for aiding and abetting in this
case. But the statute does not seem to reach such co-worker liability.
Although the parties do not address the issue, it is not entirely clear whether Ms.
Grandval, as a non-supervisory co-worker, may be liable at all for aiding and abetting under the
DCHRA. Though the statute prohibits “any person” from aiding and abetting unlawful
discrimination or retaliation, the Court observes that, to the Court’s knowledge, the provision has
never been applied to any individual employees except for supervisors and upper management.
See, e.g., Purcell v. Thomas, 928 A.2d 699, 714–16 (D.C. 2007) (applying the DCHRA as a
whole to the president, chief operating officer, controlling shareholder, and director of the
employing entity); Wallace, 715 A.2d at 888–89 (applying the statute to partners of a law firm);
85
Martin, 968 F. Supp. 2d at 164–65 (applying the aiding and abetting provision to the chairman of
the board responsible for overseeing the employing regulatory agency). The Court also notes
that federal district courts have held that Pennsylvania’s aiding and abetting statute, which the
D.C. Court of Appeals considered to be a counterpart to the DCHRA in Wallace, only permits
liability for supervisors. See, e.g., Holocheck v. Luzerne Cnty. Head Start, Inc., 385 F. Supp. 2d
491, 497 (M.D. Pa. 2005) (“Supervisory employees, however, may be held liable under § 955(e)
on the theory that only supervisors can share the discriminatory purpose and intent of the
employer that is required for aiding and abetting.”). Nevertheless, given Defendants’ failure to
raise this argument and the lack of developed case law in this area, the Court assumes without
deciding that the aiding and abetting provision is applicable to Ms. Grandval in this case.
The Court thus considers whether Ms. Richardson has presented sufficient evidence for a
reasonable jury to find that Ms. Grandval associated herself with JHU’s allegedly discriminatory
and retaliatory practices, participated in those practices as something that she wished to bring
about, and sought by her actions to make them succeed. See Wallace, 715 A.2d at 888. Though
Ms. Grandval plays an important role in Ms. Richardson’s factual claims, there is little evidence
in the record to suggest that she intentionally acted to effect or further JHU’s alleged
discrimination and retaliation. For example, Ms. Richardson alleges that Ms. Grandval yelled at
her, threatened to hurt her, threatened to take her job, and then assumed her supervisory duties at
the direction of Mr. Petasis, but she does not provide any evidence showing that Ms. Grandval
was motivated by discrimination in taking any of these actions. Indeed, Ms. Richardson makes
no such argument based on the record in her brief opposing summary judgment, and, when asked
during her deposition what facts she relied upon to form her belief that Ms. Grandval was
motivated by racial animus, she discussed Ms. Grandval’s time living in Europe and that she
86
“didn’t have any black friends, and yet she wanted [me] to move in with her because she thought
we would get along.” Richardson Dep. Tr. at 327:10–18. No reasonable jury could find based
on this evidence that Ms. Grandval was motivated by racial animus.
In her brief opposing summary judgment, Ms. Richardson takes the alternate position that
Ms. Grandval is not entitled to summary judgment for aiding and abetting, because she was
“simply the cat’s paw or the conduit of Defendant Petasis’s prejudice.” Pl.’s Opp. at 34. But
there is no legal authority suggesting that any employee who serves merely as a passive
“conduit” of her supervisor’s discrimination—while having no discriminatory animus herself—is
liable for aiding and abetting. Ms. Richardson’s reference to the “cat’s paw” theory and her
unexplained citation to the Supreme Court’s discussion of that theory of liability in Staub v.
Proctor Hosp., 562 U.S. 411 (2011), is also misguided. See Pl.’s Opp. at 34. First, the Court
notes that although several federal courts of appeal have applied Staub to Title VII actions, the
D.C. Court of Appeals has not yet applied the theory to the DCHRA. See Bryant v. District of
Columbia, 102 A.3d 264, 268 n.3 (D.C. 2014). Even assuming the theory is applicable here, it is
wholly inapplicable to Ms. Grandval. If the cat’s paw theory was applied to the DCHRA, under
the Supreme Court’s definition in Staub, it would be as follows: “if a supervisor performs an act
motivated by [discriminatory or retaliatory] animus that is intended by the supervisor to cause an
adverse employment action, and if that act is a proximate cause of the ultimate employment
action, then the employer is liable under the [DCHRA].” 562 U.S. at 422 (emphasis in original).
Ms. Richardson has this theory exactly backwards. Here, she is attempting to hold Ms. Grandval
liable for the discriminatory intent of her employer, rather than the other way around.
Finally, Ms. Richardson has not presented any evidence indicating that Ms. Grandval had
any role in issuing Ms. Richardson’s Final Written Warning, reassigning her to the Service Desk,
87
suspending her, or constructively discharging her. Nor has Ms. Richardson presented any
evidence that Ms. Grandval harbored any retaliatory animus, let alone that she knew of Ms.
Richardson’s protected activity.
Ms. Grandval, therefore, is entitled to summary judgment on the entirety of Count IV.
IV. CONCLUSION
For the foregoing reasons, the Court will GRANT IN PART AND DENY IN PART
Defendants’ Motion for Summary Judgment (ECF No. 40). An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: December 7, 2015 RUDOLPH CONTRERAS
United States District Judge
88
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2144
CHARLIE RICHARDSON,
Plaintiff - Appellant,
v.
RAY MABUS,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:13-cv-01207-AW)
Submitted: January 21, 2014 Decided: January 23, 2014
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charlie Richardson, Appellant Pro Se. Tarra R. DeShields-
Minnis, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charlie Richardson appeals the district court’s order
granting Ray Mabus’s motion to dismiss or, in the alternative,
for summary judgment, on Richardson’s discrimination and
retaliation claims brought pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17
(West 2003 & Supp. 2012), and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C.A. §§ 621 to 634
(West 2008 & Supp. 2013). We have reviewed the record and find
no reversible error. Accordingly, we affirm the district
court’s order. Richardson v. Mabus, No. 8:13-cv-01207-AW (D.
Md. Aug. 16, 2013). We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
2
|
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3575
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Antonio Villanueva-Basurto, also *
known as Antonio Basurto Villanueva, * [UNPUBLISHED]
also known as Miguel Rivera Monrroy, *
*
Appellant. *
___________
Submitted: May 5, 2003
Filed: May 9, 2003
___________
Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD, and SMITH, Circuit
Judges.
___________
PER CURIAM.
Antonio Villanueva-Basurto pleaded guilty to illegal reentry after deportation
following conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), and
the district court1 sentenced him to 41 months imprisonment. On appeal, counsel
moved to withdraw under Anders v. California, 386 U.S. 738 (1967), and filed a brief
1
The HONORABLE JAMES M. ROSENBAUM, Chief Judge, United States
District Court for the District of Minnesota.
raising one argument: that application of 8 U.S.C. § 1326(b)’s enhanced penalties for
deportation after conviction for an aggravated felony violates the Sixth Amendment.
In a pro se supplemental brief, Villanueva-Basurto argues that his sentence is unfair,
because he did not know he was breaking the law by returning to the United States
and his family needs him.
We reject both arguments. First, we previously have held that the penalties in
section 1326(b) do not violate the Sixth Amendment. See United States v. Kempis-
Bonola, 287 F.3d 699, 701-02 (8th Cir.), cert. denied, 123 S. Ct. 295 (2002). Second,
this court does not review the extent of the district court’s downward departure, see
United States v. McFarlane, 309 F.3d 510, 516 (8th Cir. 2002), and in any event,
Villanueva-Basurto stipulated in his plea agreement to a sentence greater than the one
he received, see United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995).
Further, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues.
Accordingly, we grant counsel’s motion to withdraw, and we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-
|
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
S. Sargent Visher Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JOSEPH T. GARNER, )
)
Appellant (Defendant Below), )
)
v. ) Cause No. 49S00-9709-CR-502
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton-Pratt, Judge
Cause No. 49G01-9512-CF-195507
December 18, 1998
SHEPARD, Chief Justice.
A jury found appellant Joseph Garner guilty of murder and the trial court sentenced him to serve sixty-five years in prison, with three years suspended to probation.
Garner raises three issues in this direct appeal:
I. Whether the defense of insanity should have prevailed;
II. Whether the trial court erred in permitting the jury to consider evidence of Garner's state of mind after he had received treatment and medication; and
III. Whether the sixty-five year prison sentence is unreasonable.
Facts
Joseph Garner was living in his car behind a fast food restaurant. After a long period of separation, Joseph went to the home of his adoptive father, Paul Garner, on Christmas Eve of 1995. Paul welcomed Joseph into his home and introduced him to his neighbor Amanda, who included both Paul and Joseph in her family Christmas celebration that evening. At the party, Joseph discussed religion and spiritual topics. On Christmas Day, Amanda and Paul had dinner at Amanda's apartment. Paul left between 9:30 and 10 p.m.
At 3 a.m. the next morning, Joseph went to Amanda's house to ask if he could stay with her but Amanda declined. When Amanda asked if Paul was all right, Joseph responded "Okay? What's okay? No, he's not okay. Did you know that he was married four times and he sodomized me as a child?" (R. at 549.) Joseph proceeded to explain to Amanda that his alter ego, Greg, had sucked the spirit out of China, and that his father was angry and was picking on him. Paul then called and asked Amanda to send Joseph home. Joseph left Amanda's residence claiming that he was going to erase his own "name from the book of life." (R. at 554-55.) Later that morning, Amanda tried twice to call to warn Paul of Joseph's odd behavior but there was no answer. Then she heard a knock at her door and found her Christmas wreath thrown to the floor. At 9:30 a.m., Amanda learned that Paul was dead.
At 8 a.m. that same morning, Joseph arrived at the door of Pastor Mike Abbot, barefoot, wrapped in a blanket, and asking for help "in the name of Jesus Christ." (R. at 603-06.) Abbot drove Joseph to the police station. On the way there, Joseph explained that he had killed a man. Joseph's hands were lacerated and bloody. Without prompting, Joseph told an officer that he killed his father. The officer advised Joseph of his
Miranda
rights, and Joseph then revealed the location of the body. He also gave a statement describing the killing in detail. A pathologist determined that Paul had been beaten, cut, and stabbed with a knife and a dowel rod. Part of the body was skinned post mortem. A portion of a dowel rod was found in Paul's head, and some brain tissue was found outside the body.
Both of the court-appointed psychiatrists testified that Joseph was unable to appreciate the wrongfulness of the murder when he committed it. The State's expert agreed. In rebuttal, the State offered the deposition of Joseph's ex-wife, which was admitted over defense counsel's remoteness, hearsay, and privilege objections, and which recounted incidents of domestic violence and alcohol abuse. Next, the mother of Joseph's son testified that Joseph said the way to keep social security disability benefits is to "know the right answers, act crazy." (R. at 1218, 1231.) Finally, the State presented letters to relatives written by Joseph while he was in jail awaiting trial. In the letters, Joseph expressed guilt and remorse, and he claimed temporary insanity.
I. The Defense of Insanity
Joseph Garner admitted at trial that he killed his father but asserted insanity as an affirmative defense. Now, Garner claims that the trial court erred in denying his motion for judgment on the evidence because he claims he met his burden of proving insanity and the State did not present evidence to overcome his proof. Garner also argues that his motion was incorrectly denied because the State did not establish that he could appreciate the wrongfulness of his actions when he committed them.
Indiana places the burden of proof on the defendant to establish the defense of insanity by a preponderance of the evidence. Ind. Code Ann. § 35-41-4-1(b) (West 1998).
Furthermore, in order to prevail on appeal, "[a] convicted defendant who claims his insanity defense should have prevailed at trial is in the position of one appealing from a negative judgement. We will reverse only when the evidence is without conflict and leads to but one conclusion which the trier of fact did not reach."
Rogers v. State
, 514 N.E.2d 1259, 1260 (Ind. 1987).
The trial court correctly denied Garner's motion. First, although Garner offered evidence of mental illness, the State has no obligation to offer evidence which disproves mental illness in order to meet
its
burden of proving Garner guilty beyond a reasonable doubt.
Cate v. State
, 644 N.E.2d 546, 548 (Ind. 1994). To require the State to disprove mental illness would shift the burden of proof of insanity, controverting the General Assembly's placement of that burden on the defendant. Ind. Code Ann. § 35-41-4-1(b) (West 1998).
Second, the trial court did not err in denying Garner's motion because sufficient probative evidence suggested that the defendant was not insane at the time of the murder. The determination of insanity is a question for the trier of fact, who may elect to credit the testimony of lay witnesses over that of medical experts.
Gambill v. State
, 675 N.E.2d 668 (Ind. 1996). In
Gambill
, this Court upheld a verdict finding no mental illness when four medical experts testified that the appellant was legally insane and two lay witnesses testified otherwise.
Id.
Similarly in this case, despite the testimony of the medical professionals, the jury could
have found that Garner was not insane based on the other evidence available.
The State offered evidence showing that Garner was not insane at the time of the crime. First, the State presented evidence that Garner remembered the alleged childhood sexual abuse well before the murder, rather than directly before the act as Garner alleges. This evidence included a statement Garner made to Amanda that his father had sodomized him as a child and a statement Garner made to Doris McMoningle, who later testified, discussing his previous childhood sexual abuse. Second, the State introduced evidence of prior physical altercations between Garner and his father which demonstrated a hostile relationship. Third, one of the psychiatrists testified on cross-examination that during the assault which led to the murder, Garner's father asked him to leave and he did for a brief time, suggesting that Garner could tell right from wrong. The jury was free to rely on any one of these pieces of evidence and disregard the testimony of the expert witnesses.
Gambill
, 675 N.E.2d 668;
see also
Dean v. State
, 551 N.E.2d 452, 454 (Ind. 1990) (jury may credit lay testimony over that of expert witnesses).
Despite the fact that Garner presented ample evidence of his insanity, the court was within its discretion to deny Garner's motion because the jury had sufficient evidence to reject Garner's claim.
II. Evidence of Garner's State of Mind
Before the Crime and After
Treatment and Medication
Garner objected at trial and now challenges on appeal the admission of (1) a deposition by his ex-wife concerning prior domestic and alcohol abuse; (2) testimony by his son's mother that he feigned "craziness" to keep social security benefits, and (3) letters to family members written while he was in jail awaiting trial, expressing guilt and claiming insanity. His objections include remoteness in time, hearsay, character propensity, undue prejudice, and relevance.
When the defense of insanity is raised, evidence which may otherwise be inadmissable may be admitted.
Gregory v. State
, 540 N.E.2d 585, 591 (Ind. 1989). "Once a defendant offers an insanity plea, all [relevant] evidence is deemed admissible. Even evidence which is otherwise incompetent or immaterial may be admitted to show the mental state of the defendant."
Id.
(quoting
Wood v. State
, 512 N.E.2d 1094, 1098 (Ind. 1987)). Evidence need only be relevant to the claim of insanity to be admissible.
Anderson v. State
, 615 N.E.2d 91 (Ind. 1993).
Relevant evidence is evidence having any tendency to make a fact of consequence more or less probable. Ind.Evidence Rule 401. That Garner's previous relationship with his wife was marked with violence strengthens the State's proposition that the rage towards his father is less attributable to insanity. Allegations of faking "craziness" to claim benefits may establish a pattern that Garner feigns mental illness, thereby raising doubt about the sincerity of his insanity claim. The letters Garner wrote from jail discuss the onset of his alleged insanity and are therefore relevant to that issue. Because the evidence Garner contests does make his claim of insanity more or less probable, that evidence is relevant and was therefore properly admitted.
III. The Sixty-Five Year Sentence
Garner argues that his sentence should be reduced because it is extreme and unreasonable. He further asserts that some of the aggravating circumstances found by the court were products of his mental illness and should not have been considered.
The presumptive sentence for the crime of murder is fifty-five years, and it is within the discretion of the trial court to either add or subtract ten years for aggravating and mitigating circumstances. Ind. Code Ann. § 35-50-2-3(a) (West 1998);
Morgan v. State
, 675 N.E.2d 1067, 1073 (Ind. 1996). In this case the trial court found the following aggravating circumstances: the risk Garner will commit another violent crime, Garner's history of delinquent activity, Garner's need of correctional or rehabilitative treatment that can best be provided in prison, Garner's danger to society, and the advanced age of the victim. The court found Garner's mental illness as a mitigating factor and concluded that the aggravating factors outweigh the mitigating factors. Accordingly, it added ten years to the presumptive sentence with three years to be served on probation in an in-patient mental treatment facility.
This Court has the authority to review and revise criminal sentences. Ind. Const. art VII, § 4. We exercise that authority under the restraint of Indiana Appellate Rule 17, which declares that revision should occur only when the sentence is "manifestly unreasonable" in light of the nature of the offense and the character of the offender. The trial court is not required to accept Garner's formulations of what constitutes mitigating circumstances.
Ross v. State
, 676 N.E.2d 339, 347 (Ind. 1996). It is apparent from the record that the trial court considered Garner's mental illness. In light of the multiple aggravating factors, we conclude that it was not manifestly unreasonable to add ten years to the presumptive sentence.
Conclusion
We affirm the judgment of the trial court.
Dickson and Boehm, JJ., concur.
Sullivan, J., with whom Selby, J., joins, concurs except as to part three, from which he dissents believing that a sentence of this magnitude was not justified given the jury's unanimous finding that the defendant was mentally ill.
|
585 F.2d 518
Mitchellv.Willie#
No. 77-1177
United States Court of Appeals, Fifth Circuit
11/9/78
1
M.D.La.
AFFIRMED
# Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966.
|
Filed 5/19/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Siskiyou)
----
THE PEOPLE, C078233
Plaintiff and Respondent, (Super. Ct. No.
MCYKCRBF140270)
v.
ALLEN RAY SILVA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Siskiyou County, Laura J.
Masunaga, Judge. Reversed with directions.
Barbara Coffman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri,
Supervising Deputy Attorney General, George M. Hendrickson, Deputy Attorney
General, for Plaintiff and Respondent.
1
Defendant Allen Ray Silva pleaded no contest to a number of felony offenses and
one misdemeanor petty theft charged in connection with two separate events. The parties
agreed to a maximum sentence of six years eight months. The trial court sentenced
defendant to the negotiated term of six years eight months on the felonies, but added a
consecutive sentence of 30 days on the misdemeanor petty theft, which the trial court
subtracted from defendant’s presentence custody credits. Defendant contends the trial
court did not properly advise him he could withdraw his plea if the court was inclined to
impose a higher sentence than the agreed maximum and contends the error requires
specific performance of the plea.
We conclude that neither the trial court nor the Judicial Council plea form used in
this case properly advised defendant of his right to withdraw his plea as required by Penal
Code section 1192.5.1 However, specific performance is not the appropriate remedy in
this case. We reverse and remand the matter for further proceedings described more fully
post.
FACTUAL AND PROCEDURAL BACKGROUND2
In February 2014, a utility company sent an employee to defendant’s home to shut
off the power. When the employee explained to defendant why he was at the property,
defendant responded by ordering the employee off the property. Defendant grabbed a
large stick, held it over his head, and advanced toward the employee. He then put the
stick down, spit at the employee, and continued to yell at him, “ ‘get the fuck out of
here,’ ” “ ‘you’re not gonna cut my power,’ ” and “ ‘get the fuck off my property.’ ” The
employee thought he was going to be struck so he left and called law enforcement. Law
enforcement arrested defendant.
1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
2 The facts underlying the charged offenses are from the probation report.
2
Defendant failed to appear for his arraignment in July 2014, and a bench warrant
was issued.
In July 2014, Walmart personnel stopped defendant and Stephanie Mendoza,
suspecting them of theft. They asked defendant and Mendoza to step into the store
security office and Mendoza complied, but defendant became hostile. Thereafter, law
enforcement was contacted. During the incident, defendant pulled an eight-inch knife
from his pocket. He brandished the knife at the Walmart personnel and said that he
“ ‘was not going any fucking where.’ ” Defendant then invited the Walmart personnel to
step outside and stated, “ ‘I will take both of you out.’ ” The Walmart personnel felt
threatened and were afraid of defendant, so they told him to leave, which he did. An
arrest warrant was issued and defendant was arrested on July 27, 2014.
A consolidated information charged defendant with making criminal threats
against the Walmart personnel (§ 422, subd. (a) (counts 1 & 2)), commercial burglary
(§ 459 (count 3)), receiving stolen property (§ 496, subd. (a) (count 4)), petty theft with a
prior as a felony (§ 666, subd. (b) (count 5)), carrying a dirk or dagger (§ 21310 (count
6)), failure to appear while on bail (§ 1320.5 (count 7)), assault with a deadly weapon
against the utility company employee (§ 245, subd. (a)(1) (count 8)), and exhibiting a
deadly weapon (§ 417, subd. (a)(1) (count 9)). As to the assault, the information further
alleged it was a serious felony (§ 1192.7, subd. (c)(23)). The information also alleged as
to counts 1 through 8 that defendant had a strike conviction (§§ 1170.12, subds. (a)-(d),
667, subds. (b)-(i)), as to counts 1 through 5 and 8, that defendant had a prior serious
felony conviction (§ 667, subd. (a)(1)), and as to counts 1 through 7, that defendant
committed the offenses while released on bail (§ 12022.1).
3
As part of a plea agreement, defendant pleaded no contest to: count 1 -- criminal
threats3; count 8 -- assault with a deadly weapon; count 7 -- felony failure to appear; and
count 5 -- petty theft with a prior, which was reduced to a misdemeanor as part of the
plea agreement. He also admitted the strike allegation as to counts 1, 7, and 8, and also
the allegation that he committed the assault on the utility company employee while
released on bail (§ 12022.1). The trial court dismissed the remaining counts and
allegations with a Harvey waiver for sentencing.4 The parties agreed to a “lid on
immediate state prison of six years and eight months at 80 percent.”5
Just before the trial court took defendant’s plea, the prosecution offered the court
an example of how the negotiated lid could be calculated, which did not include any
sentence on the misdemeanor, but did include a dismissal of the strike allegation as to
3 As part of the plea agreement, count 1 was amended to name both victims from the
incident at Walmart within that single count.
4 People v. Harvey (1979) 25 Cal.3d 754.
5 In addition to the oral representation of counsel made to the court just prior to
defendant’s plea concerning the terms of the agreement, the terms of the negotiated
resolution are set forth on the written plea form signed by defendant, defense counsel,
and the prosecutor. The chart in paragraph 1 of the plea form shows the counts to which
defendant was going to plead, the “Total Maximum Time” for each count, including “1
y” for the misdemeanor petty theft and the “Aggregate Maximum Time of Imprisonment”
for all of the counts of “12 y 8 mo + 1 yr C/J.” Next to paragraph 2, which is entitled
“Plea Agreement,” the words “2 options available” are handwritten with arrows pointing
to paragraphs 2.a. and 2.b. The state prison box is checked in paragraph 2.a. and
paragraph 2.a.(1) reads: “6 years and 8 months lid if not granted probation.” Paragraph
2.b. reads: “Probation for 3-5 years under conditions to be set by the court, including:
[¶] up to 365 days in the county jail.” Further, defendant acknowledged on the form that
if he was granted probation and he violated any condition of probation, he could be
sentenced to state prison for up to the aggregate maximum time set forth in the chart in
paragraph 1. Under paragraph 2.i., titled “Other Terms,” the form reads: “Lid of 6 y 8
mos if court, as initial sentence, imposes state prison. If probation is granted the lid will
not apply. Parties agree Romero motion for prior strike must be granted as to some
counts to achieve a 6 y 8 mo term.”
4
count 7, failure to appear, and striking the punishment on the section 12022.1
enhancement. The prosecutor told the court it had discretion to achieve the sentencing lid
by calculating the sentence in other ways and added, “It’s not going to be a challenging
lid in the sense of impossible.”
In taking defendant’s plea, the trial court did not orally advise defendant under
section 1192.5 of his right to withdraw his plea if the court withdrew its approval of the
plea.6 Defendant executed a plea form published by the Judicial Council.7 Paragraph
6.e. of the form is titled “Discovery of New Facts” and reads: “I understand that the plea
agreement in item 2 (on pages 1 and 2) is based on the facts before the court, and if the
court discovers new facts, such as an additional prior felony conviction not listed on this
form, the court may refuse to accept the plea agreement. If the court discovers new facts
and refuses to accept this plea agreement, I understand that I will be allowed to withdraw
my plea.” (Italics added.) Defendant initialed the box next to paragraph 6.e.,
acknowledging that he understood.
6 Section 1192.5 provides in pertinent part: “Where the plea is accepted by the
prosecuting attorney in open court and is approved by the court, the defendant, except as
otherwise provided in this section, cannot be sentenced on the plea to a punishment more
severe than that specified in the plea and the court may not proceed as to the plea other
than as specified in the plea. [¶] If the court approves of the plea, it shall inform the
defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at
the time set for the hearing on the application for probation or pronouncement of
judgment, withdraw its approval in the light of further consideration of the matter, and (3)
in that case, the defendant shall be permitted to withdraw his or her plea if he or she
desires to do so. The court shall also cause an inquiry to be made of the defendant to
satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis
for the plea. [¶] If the plea is not accepted by the prosecuting attorney and approved by
the court, the plea shall be deemed withdrawn and the defendant may then enter the plea
or pleas as would otherwise have been available.”
7The plea form is CR-101, revised January 1, 2013, and is approved by the Judicial
Council for optional use.
5
Subsequently, defendant filed a Romero8 motion, requesting that the court dismiss
defendant’s strike allegation. The prosecution filed an opposition to defendant’s motion
wherein it suggested a sentencing calculation on the felonies and enhancements to
achieve the six-year eight-month lid without dismissing the strike, but again did not
mention the misdemeanor. The Romero motion was denied.
Prior to sentencing, defendant filed a motion to withdraw his plea for good cause,
on the ground that shortly before entering the plea, he had begun taking two drugs for
mental health issues and those drugs affected his thinking, such that he did not
understand the potential state prison consequences of the plea. The trial court denied the
motion.
While the motion to withdraw the plea was pending, the prosecution filed a brief
regarding sentencing on count 5, misdemeanor petty theft with a prior. For the first time,
the prosecution contended the trial court was required to sentence defendant on that count
consecutively under section 667, subdivision (c)(6) and (7),9 and People v. Newsome
(1997) 57 Cal.App.4th 902. In Newsome, this court said consecutive sentences are
required for any felony or misdemeanor conviction not committed on the same occasion
and not arising from the same set of operative facts as the current felony convictions
8 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
9 Section 667 provides in pertinent part: “(c) Notwithstanding any other law, if a
defendant has been convicted of a felony and it has been pled and proved that the
defendant has one or more prior serious and/or violent felony convictions as defined in
subdivision (d), the court shall adhere to each of the following: [¶] . . . [¶] (6) If there is
a current conviction for more than one felony count not committed on the same occasion,
and not arising from the same set of operative facts, the court shall sentence the
defendant consecutively on each count pursuant to subdivision (e). [¶] (7) If there is a
current conviction for more than one serious or violent felony as described in paragraph
(6), the court shall impose the sentence for each conviction consecutive to the sentence
for any other conviction for which the defendant may be consecutively sentenced in the
manner prescribed by law.” (Italics added.)
6
when the current felonies include more than one serious/violent felony offense.
(Newsome, at pp. 910-911.) Since defendant admitted two serious felonies here, the
prosecution belatedly contended that the trial court was required to sentence him
consecutively on the misdemeanor unless it found the misdemeanor was committed on
the same occasion or arising from the same facts as count 1, criminal threats involving
the Walmart personnel.
At the sentencing hearing, the prosecution argued that because there was a lid on
the felony, and no discussion about how much credit defendant would get against that
sentence, and the misdemeanor had to be sentenced consecutively, the trial court had to
allocate some of defendant’s presentence credits to the misdemeanor. Defendant
responded that count 1, criminal threats, and count 5, misdemeanor petty theft with a
prior at Walmart, were committed on the same occasion and arose from the same
operative facts and therefore section 667, subdivision (c)(6) and (7), did not require
consecutive sentences. Defense counsel then stated, “If the Court is inclined to somehow
find that this was on a different occasion, I think we run into the problem that -- the
agreement was that [defendant] received an aggregate sentence of 6 years, 8 months as a
lid. And so to oppose [sic] anything that significantly goes beyond that would violate
that term and we would be back into the situation with a motion to withdraw plea. So
with that I’ll submit.” The trial court indicated that whether the misdemeanor petty theft
from Walmart was part of the same operative facts from the criminal threats on the store
personnel was “a close issue” and that, “It’s sort of in between there, between ones that
very clearly are not and ones that are.” Ultimately, the trial court found that count 1 and
count 5 were not committed on the same occasion and did not arise from the same
operative facts.10 Based on that finding, the court said it would impose a consecutive
10 Defendant does not challenge the trial court’s finding in this appeal.
7
sentence of 30 days on the misdemeanor. After the prosecutor confirmed the sentence
was within the trial court’s discretion in light of the requirement for consecutive
sentencing, the trial court asked defense counsel if he had “[a]nything else.” Counsel
said he did not.
Following the recommendation of the prosecution contained in the prosecutor’s
Romero opposition, the trial court sentenced defendant to a total of six years eight months
on the felonies, calculated as follows: on count 8, assault with a deadly weapon, four
years (the low term of two years, doubled); on count 1, criminal threats, 16 months (one-
third the midterm, eight months doubled); on count 7, failure to appear, 16 months, (one-
third the midterm, eight months doubled).11 Accepting the prosecutor’s argument that
the trial court had to impose a consecutive sentence on the misdemeanor and deduct that
sentence from defendant’s presentence credits, the trial court sentenced defendant to a
consecutive 30 days on count 5 and awarded defendant 332 days of presentence custody
credits, 30 of which were credited towards the misdemeanor petty theft jail sentence.
DISCUSSION
Defendant contends the trial court erred by failing to give the admonishment
required by section 1192.5 and failing to provide him the opportunity to withdraw his
plea when it imposed a sentence 30 days more than the agreed upon sentencing lid.12 He
further contends the remedy for this error is specific performance of the plea.
Alternatively, he contends if we do not remand for specific performance of the plea, he
11 The trial court struck the punishment on the section 12022.1 allegation as
recommended by the prosecution.
12 Defendant does not challenge the fact that the trial court denied dismissal of the strike
conviction, even though the dismissal was listed as a term of the plea agreement on the
plea form signed by defendant, defense counsel and the prosecutor. (See fn. 5, ante.)
Consequently, we do not address the propriety of making the dismissal of a strike part of
a plea bargain or the failure to adhere to that term in the plea agreement.
8
must be allowed to withdraw his plea. The People contend the Judicial Council plea form
advised defendant of his rights under section 1192.5 and defense counsel did as well.
Consequently, defendant’s failure to object to the sentence and move to withdraw his plea
forfeited his claim on appeal. Alternatively, the People argue the 30-day sentence on
count 5 did not violate the plea agreement because the agreement purportedly did not
include the misdemeanor sentence. We conclude that defendant was not properly advised
of his section 1192.5 rights and the sentence imposed by the trial court violated the plea
agreement.
“When a guilty plea is entered in exchange for specified benefits such as the
dismissal of other counts or an agreed maximum punishment, both parties, including the
state, must abide by the terms of the agreement. The punishment may not significantly
exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013,
1024 (Walker), overruled on other grounds in People v. Villalobos (2012) 54 Cal.4th 177,
183 (Villalobos).) This is a rule of constitutional dimension, implicating due process
concerns. (Villalobos, at p. 182; Walker, at p. 1024.) Due process requires that both
defendant and the prosecution, abide by the terms of the plea agreement and that the
punishment imposed not significantly exceed that which the parties agreed upon.13
(Villalobos, at p. 182.)
13 The People appropriately do not contend that the additional 30-day sentence
effectuated by reducing defendant’s presentence credit is not a significant variance from
the agreed upon sentence. To warrant relief, the deviation from the negotiated plea must
be “ ‘significant’ in the context of the plea bargain as a whole.” (Walker, supra, 54 Cal.3d
at p. 1024.) And the punishment must not be “more severe” than whatever the defendant
agreed to. (§ 1192.5; Walker, at p. 1024; People v. Kim (2011) 193 Cal.App.4th 1355,
1359 (Kim); People v. Brown (2007) 147 Cal.App.4th 1213, 1221.) In Walker, the court
gave an example of an insignificant variance. It suggested that adding a standard
condition of probation not part of the express negotiations would not be a significant
variance. (Walker, at p. 1024.) In contrast, a loss of liberty of an additional 30 days by
deducting time already served can hardly be considered insignificant to the person who
9
However, there is an out for the trial court. The court may withdraw its initial
approval of the plea at the time of sentencing and decline to impose the agreed upon
sentence, “so long as the parties can be restored to their original positions.” (Kim, supra,
193 Cal.App.4th at p. 1360; § 1192.5.) If the court withdraws its initial approval, it must
inform the defendant that he or she has the right to withdraw the plea and allow the
defendant to do so; it cannot merely alter the terms of the agreement by imposing
punishment significantly greater than that originally bargained for. (§ 1192.5; Walker,
supra, 54 Cal.3d at p. 1026.) Put another way, the trial court may not “unilaterally
modify[] the terms of the bargain without affording . . . an opportunity to the aggrieved
party to rescind the plea agreement and resume proceedings where they left off.” (Kim,
at p. 1361.) This rule is not new. It has long been the rule that if the trial court
disapproves of the negotiated disposition and seeks to modify it, the court must expressly
tell the defendant he or she can withdraw the plea if the defendant is unwilling to accept
the modified terms. (People v. Johnson (1974) 10 Cal.3d 868, 872 & fn. 3 (Johnson).)
“The required explanation and defendant’s right to have his plea withdrawn apply both at
the time of entering the plea and at sentencing.” (People v. Jackson (1980)
103 Cal.App.3d 635, 638 (Jackson).)
These holdings are based on section 1192.5 (see fn. 6, ante), which provides that
when a plea bargain entered into by the parties is approved by the court, the defendant
“cannot be sentenced on the plea to a punishment more severe than that specified in the
plea and the court may not proceed as to the plea other than as specified in the plea.”
(Italics added.) Section 1192.5 further provides that the court “shall inform the defendant
prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time
set for the hearing on the application for probation or pronouncement of judgment,
must serve that time. The variance here does not fall into the same category as a standard
condition of probation.
10
withdraw its approval in the light of further consideration of the matter, and (3) in that
case, the defendant shall be permitted to withdraw his or her plea if he or she desires to
do so.” (§ 1192.5, italics added.) Implicit in this statutory language “is the premise that
the court, upon sentencing, has broad discretion to withdraw its prior approval of a
negotiated plea.” (Johnson, supra, 10 Cal.3d at p. 873.) “ ‘Such withdrawal is permitted,
for example, in those instances where the court becomes more fully informed about the
case [citation], or where, after further consideration, the court concludes that the bargain
is not in the best interests of society.’ ” (People v. Simmons (2015) 233 Cal.App.4th
1458, 1467, italics added [trial court’s post-plea decision to reject package plea bargain
involving multiple defendants and proceed to trial affirmed].)
Here, at the time of the plea, the trial court did not orally advise defendant that its
approval of the plea agreement was not binding and if, after further consideration, it
could not accept the plea, defendant had the right to withdraw it. The People contend that
paragraph 6.e. of the Judicial Council plea form executed by the parties provided the
requisite advisements. We disagree. In the paragraph titled, “Discovery of New Facts,”
the plea form advised defendant that if the court discovered new facts, it could refuse to
accept the plea, and in that single situation defendant could withdraw his plea. The plea
form gives the discovery of a previously unknown prior conviction as an example of a
new fact. The discovery of new facts is one circumstance under which a trial court could
reject a negotiated agreement, but section 1192.5 is not limited to that one circumstance.
Thus, the plea form does not adequately convey the admonishments in section 1192.5.
The form does not inform defendants that the court’s approval of the negotiated
disposition is not binding and that the court could withdraw its approval simply upon
“further consideration” as stated in section 1192.5. (See fn. 6, ante.) Here the court did
not refuse to accept the plea based on the discovery of new facts. Rather, the prosecution
miscalculated how the sentence could be calculated to arrive at the sentencing lid it
negotiated with defendant.
11
The People contend that it is inconceivable defendant would have believed he
could not withdraw his plea based on a distinction between new facts and a new point of
law and in any event, because of defense counsel’s comments, the record shows
defendant knew he could withdraw his plea. Thus, according to the People, defendant
forfeited any claim under section 1192.5 by failing to move to withdraw his plea after the
trial court indicated it would impose the additional 30 days. In support of this contention,
the People rely on Walker, supra, 54 Cal.3d 1013 and Villalobos, supra, 54 Cal.4th 177.
In Walker, our high court held, “Whether or not a defendant waives an objection to
punishment exceeding the terms of the bargain by failure to raise the point in some
fashion at sentencing depends upon whether the trial court followed the requirements of
section 1192.5.” (Walker, supra, 54 Cal.3d at p. 1024, italics added; accord, Villalobos,
supra, 54 Cal.4th at p. 182; People v. Cruz (2013) 219 Cal.App.4th 61, 65, fn. 3.) The
Walker court went on to say, “Absent compliance with the section 1192.5 procedure, the
defendant’s constitutional right to the benefit of his bargain is not waived by a mere
failure to object at sentencing. ‘Of course, there can be no waiver of a constitutional right
absent “an intentional relinquishment or abandonment of a known right or privilege.”
[Citation.] No less should a court presume from mere silence that defendant is waiving
implementation of the consideration that induced him to waive his constitutional
rights.’ ” (Id. at p. 1025.) Thus, as this court has previously noted, when the trial court
fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing
does not waive his claim on appeal. (Cruz, at p. 65, fn. 3, citing Walker, at pp. 1024-
1026, 1030.)
Apparently recognizing that defense counsel did “raise the point in some fashion,”
(Walker, supra, 54 Cal.3d at p. 1024, italics added), the People advance the novel
argument that Walker “did not hold that an objection to punishment without a request to
withdraw the plea was sufficient to preserve the issue.” From this, the language of
section 1192.5 and the notion defendant knew of his right to withdraw the plea, the
12
People maintain that a request to withdraw the plea was required to preserve the claim.
The People’s argument is based on two false premises about Walker. First, the Walker
court said whether a defendant has waived the plea bargain violation depends on
“whether the trial court followed the requirements of section 1192.5” (Walker, at
p. 1024), not whether defense counsel’s statements somehow show defendant personally
knew he could withdraw his plea. Second, contrary to the People’s argument, the Walker
court expressly stated a motion to withdraw the plea is not required where there has been
no compliance with section 1192.5. Specifically, the court said, “We have held that
absent a section 1192.5 admonition, a defendant’s ‘failure affirmatively to request a
change of plea should not be deemed a waiver of his right to do so. Since he was never
advised of his rights under section 1192.5, he should not be held to have waived them.’ ”
(Walker, at p. 1025, citing Johnson, supra, 10 Cal.3d at p. 872.) The People appear to
advance the idea that when defense counsel, not defendant, demonstrated an
understanding that the plea may be withdrawn, both an objection and a motion to
withdraw is required. But such a rule would be inconsistent with the Walker court’s
observation that the waiver of the constitutional right to the benefit of the original bargain
must reflect “ ‘ “an intentional relinquishment or abandonment” ’ ” of that right by the
defendant. (Walker, at p. 1024.) In other words, when there has been no prior 1192.5
admonition, a defendant must personally waive his or her section 1192.5 right to
withdraw the plea.
The People also contend that because defense counsel acknowledged on the plea
form that he had “ ‘explained each of the items in the form, including the defendant’s
constitutional and statutory rights, to the defendant,’ ” that acknowledgment necessarily
shows that defense counsel informed defendant of the right to withdraw the plea under
section 1192.5 if the bargain is rejected by the court. But section 1192.5 requires that the
court, not counsel, give the admonishment and that did not happen here. We will not
assume defendant knew he had a right to withdraw his plea in the absence of a section
13
1192.5 admonition by the trial court.14 (Walker, supra, 54 Cal.3d at p. 1026.) The court
must expressly inform defendant of his right to withdraw his or her plea. (Ibid.; Johnson,
supra,10 Cal.3d at p. 872; Kim, supra, 193 Cal.App.4th at p. 1361; Jackson, supra, 103
Cal.App.3d at p. 638.)
The People also contend that any motion to withdraw the plea that could be read
into defense counsel’s comments to the trial court was impliedly rejected by the court on
the ground that the sentence did not violate the plea. According to the People, the reason
the plea was not violated is because the sentencing lid to which the parties referred in
their bargain related only to the felonies and furthermore, the sentence on the
misdemeanor had to be consecutive. The People assert that defendant has not presented
“competent evidence that he believed the ‘lid’ would apply to county jail as well as state
prison.” But the plea form signed by defendant, defense counsel and the prosecutor
clearly indicated that the sentence on the misdemeanor was within the scope of the
sentencing lid promise.15
“From a defendant’s point of view, the purpose of a sentence lid is to protect the
defendant from a greater sentence. Thus, a sentence lid provision in a plea agreement
14 The section 1192.5 admonitions can be oral or they can be provided in a written plea
form provided by the court in which defendant acknowledges his receipt and
understanding of the admonitions. As we have pointed out, the 2013 form approved by
the Judicial Council for optional use does not contain the admonitions set forth in section
1192.5. It is recommended that the Judicial Council consider rewording the
admonishment in paragraph 6.e. of the plea form to conform to section 1192.5.
15 The executed plea form signed by defendant, defense counsel and the prosecution sets
forth two sentencing options: (1) a sentencing lid of 6 years 8 months or (2) three to five
years’ probation with conditions of probation including 365 days in county jail. Even
though the sentence for the misdemeanor was listed in the sentences showing the
maximum sentence to which defendant was exposed, nothing on the form suggests that
the sentence for the misdemeanor was not included in either of the two options set forth
in the agreement or that it would be treated separately. (See fn. 5, ante.)
14
necessarily implies the defendant’s understanding and belief that in its absence the trial
court might lawfully have imposed a greater sentence. . . . [¶] From a prosecutor’s point
of view, a sentence lid necessarily implies an understanding and belief that the sentence
lid is itself a sentence that the trial court may lawfully impose. If the prosecutor
understood or believed that the trial court lacked authority to impose the lid sentence,
there would be no utility or benefit to specifying that particular length of time as the
maximum sentence. [¶] Thus, the specification of a maximum sentence or lid in a plea
agreement normally implies a mutual understanding of the defendant and the prosecutor
that the specified maximum term is one that the trial court may lawfully impose and also
a mutual understanding that, absent the agreement for the lid, the trial court might
lawfully impose an even longer term.” (People v. Shelton (2006) 37 Cal.4th 759, 768.)
Here, the parties’ agreed that the maximum period of time to which defendant
could be sentenced was six years eight months and according to the plea form, the
misdemeanor sentence was included in this sentencing lid. The plea discussions make
clear the parties did not account for the fact that the trial court was required to impose a
consecutive sentence on the misdemeanor. The trial court imposed the six-year eight-
month sentence on the felony counts and then imposed an additional 30-day sentence on
the misdemeanor, which it deducted from defendant’s presentence credit. Defendant’s
actual punishment exceeds the plea agreement lid. The trial court was not authorized to
reform the plea agreement and unilaterally impose a greater punishment than the plea
agreement contemplated. Rather, when presented with the information that it had to
sentence the misdemeanor consecutively, the trial court’s options were to impose an
authorized sentence less than the lid or refuse to accept the plea and give defendant the
opportunity to withdraw the plea.
This brings us to the matter of remedy. We do not agree with defendant that
specific performance of the plea agreement is the correct remedy. Specific performance
would require modification of the sentence to bring it below the sentencing lid. But
15
specific performance may only be ordered “ ‘when it will implement the reasonable
expectations of the parties without binding the trial judge to a disposition that he or she
considers unsuitable under all the circumstances.’ ” (Kim, supra, 193 Cal.App.4th at
p. 1362, quoting People v. Mancheno (1982) 32 Cal.3d 855, 861.) Here, the trial court
has already exercised its discretion not to dismiss the strike allegation, and we will not
modify the sentence to bring it under the agreed upon lid under such circumstances.
(Kim, at p. 1362 [refusing to order specific performance when the trial court exercised its
discretion to impose additional terms].) The sentence the trial court ultimately imposed
consisted of a low term doubled and two mandatory consecutive terms doubled, leaving
no room under the lid for a mandatory consecutive misdemeanor sentence.
Consequently, given the state of the pleadings, specific performance is barred because a
legally authorized sentence cannot be reached under the circumstances. Accordingly, for
this additional reason, specific performance is not the appropriate remedy. (Id. at
pp. 1362-1363 [specific performance is barred when the sentence to which the parties
agreed, based on the present state of the pleadings, violates the sentencing laws].)
Similar to the situation in Kim, the present appeal would have been obviated had
the prosecutor ensured that the agreed upon sentence was authorized by law or
conformed the pleadings to the agreed upon sentence so that the latter would be
authorized by law, and “[t]he prosecutor compounded these omissions by affirmatively
urging the court to impose greater punishment than defendant agreed to.” (Kim, supra,
193 Cal.App.4th at p. 1365.) But the problem the prosecution created can be
ameliorated. On remand, the prosecution can move to amend the information to dismiss
the misdemeanor petty theft with a prior conviction which resulted in the additional 30
day sentence. (See ibid. [appellate court suggested that a plea withdrawal could be
avoided by the prosecution amending the indictment to omit enhancement allegations
triggering the additional required sentence].)
16
Thus, on remand, if the prosecution dismisses count 5, misdemeanor petty theft
with a prior, and the trial court once again approves of the agreed upon sentencing lid, the
defendant is not entitled to withdraw his plea. Or if the trial court concludes that in the
proper exercise of its discretion it can impose a legally authorized sentence that does not
exceed the sentencing lid (e.g., by dismissing the strike as to one or more counts), it may
vacate the current sentence and resentence defendant to that new sentence. In that
circumstance, defendant is likewise not entitled to withdraw his plea. But if the
misdemeanor is not dismissed and the trial court, in the exercise of its discretion does not
approve of a sentence that is no longer than the maximum sentencing lid, then the court
must expressly offer defendant the opportunity to withdraw his plea. If defendant
declines the opportunity to withdraw his plea, the court may impose the same sentences it
previously imposed.
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court for further
proceedings.
MURRAY , J.
We concur:
ROBIE , Acting P. J.
MAURO , J.
17
|
19 F.3d 1099
62 USLW 2639
UNITED STATES of America, Plaintiff-Appellee,v.Annette SPARKS, Defendant-Appellant.
No. 93-3677.
United States Court of Appeals,Sixth Circuit.
Submitted March 4, 1994.Decided March 22, 1994.
Blas E. Serrano, Asst. U.S. Attorney (briefed), Office of the U.S. Atty., Cleveland, OH, for plaintiff-appellee.
John B. Gibbons (briefed), Daniel T. Todt & Associates, Cleveland, OH, for defendant-appellant.
Before: KENNEDY and GUY, Circuit Judges; and FEIKENS, Senior District Judge.*
RALPH B. GUY, JR., Circuit Judge.
1
Following a plea of guilty to a cocaine distribution offense, defendant, Annette Sparks, was given a custody sentence of 27 months, to be followed by a five-year period of supervised release.1 Sparks served her 27 months, but, while on supervised release, committed two separate robberies. She was prosecuted and convicted in state court and sentenced to terms of 4 to 15 years and 3 to 15 years, to be served concurrently.
2
As a result of committing new crimes while on supervised release, defendant was cited for a violation. A hearing was held on May 24, 1993, at the conclusion of which defendant was given a custody sentence of 24 months consecutive to her state sentence. At the hearing on the supervised release violation, counsel for Sparks stated:2
3
MR. GIBBONS: Your Honor, I don't argue with the fact that she has picked up two new convictions. And I don't argue with the calculation of the violations and the fact that this is termed a Grade A violation. Your Honor, I would point out that the underlying drug charge, the one that we are here on violation, she did 27 months plus approximately four months in a halfway house. And when she came out, she was placed on the five year term of supervised release.
4
Since that time she has picked up two state robbery charges, one in Mahoning County, and one in Trumbull County. For those offenses she receive concurrent terms of 4 to 15 years and 3 to 15 years.
5
She presently has been incarcerated in the Ohio state penal system for approximately two years. If you read the guidelines, your Honor, and I have struggled to make some sense out of this particular section, it would seem to indicate that the Court upon a finding of a supervised release violation, and it being a Class A violation, is compelled to reimpose a term of between 24 to 30 months to be commenced after she is released from the Ohio state penal system.
Counsel then went on to argue:
6
In reading the introductory commentary to the section of the sentencing guidelines on probation and supervised release violations, it's my view that there are some ambiguities which would allow the Court to exercise its discretion and run a concurrent sentence.
7
After listening to counsel and the defendant, the court ruled:
8
Accordingly, the Court sentences the defendant to the custody of the Bureau of Prisons for a period of 24 months, that time being served consecutive to any state sentence which has been imposed as a result of the criminal conduct which caused the breach of the supervised release.
9
On appeal, the issue is whether the district court erred in concluding that it had no discretion and must impose a consecutive sentence for the supervised release violation. Upon review, we conclude that the trial court erred, and we remand for resentencing.
10
At the sentencing hearing, it is clear that the government construed the provisions of Chapter 7 of the sentencing guidelines to be mandatory and urged this construction upon the court:
11
MR. SERRANO: I believe that the guidelines are clear in terms of the language under the applicable sections, that is, mandatory upon revocation section 7B1.3(f) basically reads as follows. Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release.
12
Even in the language that Mr. Gibbons cited, which is just an introductory commentary, it's not a policy or a guideline issued by the commission. They say that the policy of the commission is that the sentence shall be served consecutively.
13
I don't think that this is a matter of discretion upon the Court whether we agree or disagree with it in terms of the sentence that she received.
14
It appears equally clear that the court agreed with the government's view as to the mandatory nature of Chapter 7; otherwise, the judge's final comment to defense counsel makes no sense:
15
Mr. Gibbons, if you feel there's any merit to your view, and there may well be, this is an appealable order, and if you wish to be appointed therefore, I'll be more than happy to appoint you for that purpose. You might wish to consult with your client about that.
16
Although the parties apparently were not aware of the case, we had earlier decided this issue contrary to the position urged by the government and adopted by the court. In United States v. Cohen, 965 F.2d 58 (6th Cir.1992), we held:
17
[I]f the policy statements were as binding upon the courts as the Guidelines themselves, with respect to Chapter 7, there would have been no need for the Commission to have made this explanation, emphasizing flexibility. Therefore, we hold that policy statements in Sec. 7B1.4 of the Guidelines are not binding upon the district court, but must be considered by it in rendering a sentence for a violation of supervised release.
18
Id. at 60-61.
19
Although the decision in Cohen references only section 7B1.4 of the guidelines, the reasoning of Cohen is such that it is applicable to all of Chapter 7.3
20
In remanding, we remind the district court that the mandate of Cohen is that before imposing sentence for a violation of supervised release the guidelines' policy statements must be considered even though they are not binding.
21
REMANDED for resentencing.
*
The Honorable John Feikens, Senior District Judge, United States District Court for the Eastern District of Michigan, sitting by designation
1
The 27-months' sentence was to be served concurrently with the sentence imposed on defendant in a separate case for the offense of passing altered money orders
2
Sparks is represented on appeal by the same attorney
3
Subsequent to our decision in Cohen, the United States Supreme Court decided Stinson v. United States, --- U.S. ----, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), which held that commentary and policy statements interpreting a guideline or prohibiting a district court from taking a specified action is authoritative and binding on the courts. This decision, however, is not controlling as to Chapter 7 of the guidelines
While the Sentencing Guidelines, accompanying interpretative commentary, and some policy statements are binding on the court, Chapter 7 policy statements are a different breed. Section 7B1.3 is clearly labeled, "Policy Statement"; it is neither a guideline nor a policy statement that interprets a guideline. Chapter 7 policy statements fulfill a special advisory role. This court has found that the sentencing court is required only to "consider" Chapter 7 policy statements, United States v. Jones, 973 F.2d 605, 608 (8th Cir.1992) (citing 18 U.S.C. Sec. 3583(e)), and that "the Sentencing Commission intended the Chapter 7 policy statements to be merely advisory." Id. at 607; see also United States v. Oliver, 931 F.2d 463, 465 (8th Cir.1991) ("there are no binding guidelines addressing the sentence for a violation of a condition of supervised release, only a policy statement about a court's options in such a situation"). The Sentencing Commission expressly commented in Chapter 7 that it chose to issue advisory policy statements for the revocation of supervised release because a policy statement provides the district court with "greater flexibility" than a guideline. U.S.S.G. Ch. 7, Pt. A3(a) (stating also that after period of evaluation, the Commission intends to promulgate "revocation guidelines").
United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993).
An earlier, yet post-Stinson Seventh Circuit case, however, held that Chapter 7 policy statements are binding on district courts. United States v. Lewis, 998 F.2d 497, 499 (7th Cir.1993). We need not resolve the conflict between these two cases, because we believe Levi sets forth the rule we must follow under our fact situation. Stinson teaches that policy statements that contravene a statute would not be binding. As to the imposition of concurrent or consecutive sentences (which was not the issue in Lewis ), 18 U.S.C. Sec. 3584(a) provides in relevant part:
(a) Imposition of concurrent or consecutive terms.--If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively....
Since Congress has specifically given district courts the discretion to impose consecutive or concurrent sentences under a fact situation such as is presented in the instant case, the Sentencing Commission policy statement favoring consecutive sentences cannot be binding on the trial judge. Stinson does not dictate to the contrary. In so holding, we join the majority of circuits that have addressed this issue. For example, the court stated in United States v. O'Neil, 11 F.3d 292 (1st Cir.1993):
We are aware that the Sentencing Commission's policy statement contemplates that the new term of imprisonment will be "less than" the maximum term of imprisonment imposable upon revocation for each class of offense, U.S.S.G. Sec. 7B1.3(g)(2) p.s., but we use round numbers for simplicity's sake. Moreover, although a policy statement ordinarily "is an authoritative guide to the meaning of the applicable guideline," Williams v. United States, --- U.S. ----, ----, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992), the policy statements of Chapter 7 are unaccompanied by guidelines, and are prefaced by a special discussion making manifest their tentative nature, see U.S.S.G. Ch. 7, Pt. A, intro. comment. Hence, we today join six other circuits in recognizing Chapter 7 policy statements as advisory rather than mandatory. See United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992); United States v. Bermudez, 974 F.2d 12, 14 (2d Cir.1992); United States v. Cohen, 965 F.2d 58, 59-61 (6th Cir.1992); United States v. Lee, 957 F.2d 770, 773 (10th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991); United States v. Oliver, 931 F.2d 463, 465 (8th Cir.1991). On remand, the lower court must consider, but need not necessarily follow, the Sentencing Commission's recommendations regarding post-revocation sentencing.
Id. at 301 n. 11.
|
THE THIRTEENTH COURT OF APPEALS
13-16-00314-CV
Chantella Marie Rosales
v.
Robert Jacob Morales
On appeal from the
148th District Court of Nueces County, Texas
Trial Cause No. 2012-FAM-5741-E
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be dismissed. The Court orders the appeal
DISMISSED in accordance with its opinion. Costs of the appeal are adjudged against
appellant.
We further order this decision certified below for observance.
September 2, 2016
|
J-S92008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES EDWARD CARTER, JR.,
Appellant No. 33 WDA 2016
Appeal from the PCRA Order November 13, 2015
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000077-2012
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES EDWARD CARTER, JR.,
Appellant No. 34 WDA 2016
Appeal from the Order December 9, 2015
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000077-2012
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 24, 2017
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S92008-16
Appellant, James Edward Carter, Jr., appeals from the order denying
his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541–9546, without a hearing. We affirm.
This Court, relying on the explanation of the first PCRA court,
previously summarized the facts and initial procedural history as follows:
The above-captioned matter arises out of a series of
controlled drug transactions arranged by the Pennsylvania Office
of the Attorney General. On August 6, 2010, Agent Ronald A.
Pate of the Attorney General’s Office provided $1,500.00 to a
confidential informant for the purpose of purchasing one pound
of marijuana from Defendant James Edward Carter, Jr.
(hereinafter, “Defendant”). Later that day, while agents of the
Attorney General’s Office watched, the informant provided the
$1,500.00 to Defendant. At approximately 4:01 p.m.,
Defendant delivered to the informant a large zip-loc bag
containing approximately one pound of green vegetable matter.
The substance inside the bag was sent to the Greensburg Crime
Lab for testing, and the test results revealed that the substance
was 429 grams of marijuana.
On August 16, 2010, the informant was supplied with
$3,200 for the purpose of purchasing cocaine from Defendant.
Later that day, while agents watched and positively identified
Defendant, the informant provided the $3,200 to Defendant. On
August 30, 2010 at 1:32 p.m., Defendant delivered a baggie
containing a light-colored powder to the informant by placing it
in a sock by a stop sign and instructing the informant to pick it
up. The baggie containing the powder was subsequently sent to
the DEA Northeast Crime Lab for testing, and the test results
revealed that the powder weighed 146.9 grams and contained
cocaine.
On August 9, 2011, Agent Pate from the Pennsylvania
Attorney General’s Office and Detective Todd Naylor filed a
criminal complaint charging Defendant with four counts of
possession with intent to deliver under 35 P.S. § 780-
113(a)(30), two counts of possession of a controlled substance
under 35 P.S. § 780-113(a)(16), and one count of theft by
deception under 18 Pa.C.S.A. § 3922(a)(1). Defendant was
arrested shortly thereafter. On January 12, 2012, Defendant
-2-
J-S92008-16
waived his right to a preliminary hearing. On February 13,
2012, the Commonwealth filed an Information charging
Defendant with two counts of possession with intent to deliver,
two counts of possession, and one count of theft by deception.
After several continuances of Defendant’s trial, Defendant
and his attorney, Mr. Louis Emmi, completed the process of
selecting a jury. On March 5, 2013, before the jury was sworn,
Defendant and the Commonwealth reached an agreement in
which Defendant pled guilty to two counts of possession with
intent to deliver. In exchange, the Commonwealth reduced the
weight from 146.9 grams of cocaine to 49 grams, waived the
mandatory minimum sentence, and Defendant was not required
to report for execution of the sentence for a period of one
month. Defendant signed an A Information, pleading guilty to
the amended charges under the agreement and also signed a
waiver of arraignment. In accordance with the plea agreement,
Defendant was sentenced on the same date to a term of
imprisonment of not less than two and one-half years nor more
than five years. The Sentence Order stated that, pursuant to
Defendant’s plea agreement, execution of the sentence was
deferred to April 4, 2013 at 9:00 a.m., when Defendant was to
report to the Beaver County Jail to begin serving his sentence.
On April 4, 2013, Defendant failed to appear at the Beaver
County Jail as required. As a result, a bench warrant for
Defendant’s arrest was issued on April 5, 2013. Defendant was
subsequently arrested and incarcerated on August 4, 2013.[1]
____________________________________________
1
The trial court entered the following order on August 15, 2013:
AND NOW, this 15th day of August, 2013, having been
advised that the defendant failed to appear at the date and time
as set forth in the sentencing order of March 5, 2013, directing
him to report on April 4, 2013, and having been advised that he
was apprehended and placed in the Beaver County Jail on
August 4, 2013, it is hereby order[ed] and directed that the
effective date of this sentence be amended to August 4, 2013.
All other aspects of the sentence order of March 5, 2013,
are to remain unchanged.
(Footnote Continued Next Page)
-3-
J-S92008-16
On November 8, 2013, Defendant filed a pro se Motion for
Post Conviction Collateral Relief in which he claims that his
sentence was improperly calculated, that the “evidence is more
than questionable[,]” that his counsel was ineffective, and that
the “evidence [was] not at trial when [Defendant was] coerced
into a plea bargain “‘deal.’” Pro se PCRA Pet., at 4. As this was
Defendant’s first PCRA petition in this matter, the [c]ourt
appointed the Beaver County Public Defender to represent
Defendant in these proceedings. On March 14, 2014, Defendant,
through counsel, filed an Amended Petition for Post Conviction
Relief. In the Amended Petition, Defendant incorporates his pro
se PCRA petition by reference, and he averred that his March 5,
2013 guilty plea was not knowing, intelligent, and voluntary
because he was coerced by his counsel into accepting a plea
agreement he did not entirely understand or want. As relief,
Defendant requests a new trial, an evidentiary hearing, or
modification of his sentence. On April 22, 2014, the
Commonwealth filed an Answer to Defendant’s Post Conviction
Relief Petition in which the Commonwealth asserts that
Defendant’s plea colloquy demonstrates that he understood the
plea agreement and was not coerced into accepting it. The
Answer also contains a New Matter in which the Commonwealth
claims that Defendant failed to comply with the mandates of 42
Pa.C.S.A. § 9545(d) and, therefore, is not entitled to a hearing
or any relief.
Despite the Commonwealth’s claim in its New Matter, the
[c]ourt held a hearing in this matter on June 9, 2014. During
the hearing, Defendant was the only witness that was available
to testify. After Defendant testified, the [c]ourt issued an Order
continuing the PCRA hearing to September 3, 2014. The parties
were directed to ensure that Defendant’s prior counsel, Louis
Emmi, Esquire, and the Assistant District Attorney that
represented the Commonwealth during Defendant’s guilty plea,
Ronald DiGiorno, appear at the hearing. On September 3, 2014,
the [c]ourt resumed Defendant’s PCRA hearing, and heard
testimony from Attorney Emmi, who testified that Defendant
admitted his guilt to him and that he entered a knowing,
intelligent, and voluntary plea in order to avoid a greater
sentence.
_______________________
(Footnote Continued)
Order, 8/15/13.
-4-
J-S92008-16
The [c]ourt entered an Order denying Defendant’s PCRA
petitions on September 4, 2014. On September 5, 2014,
Defendant attempted to file pro se a Post-Sentence Motion to
reverse his conviction.1 A Notice of Appeal was then filed on
October 2, 2014. On October 6, 2014, Defendant was directed
to file a 1925(b) Concise Statement of Matters Complained of on
Appeal. Defendant moved for an extension of time in which to
file his Concise Statement, and this was granted by the [c]ourt
on October 27, 2014. On November 7, 2014, Defendant filed his
Concise Statement.
1
The Motion was disregarded by the [c]ourt as an
attempt to have hybrid representation when
Defendant was already represented by counsel.
Commonwealth v. Ali, 608 Pa. 71, 89, 10 A.3d
282, 293 (2010) (where “appellant was represented
by counsel on appeal,” “his pro se Rule 1925(b)
statement was a legal nullity.”); Commonwealth v.
Ellis, 534 Pa. 176, 626 A.2d 1137, 1139, 1141
(1993) (“There is no constitutional right to hybrid
representation either at trial or on appeal. . . . A
defendant may not confuse and overburden the court
by his own pro se filings of briefs at the same time
his counsel is filing briefs on his behalf.”).
Commonwealth v. Carter, 122 A.3d 456, 1651 WDA 2014 (Pa. Super. filed
May 22, 2015) (unpublished memorandum) (quoting PCRA Court Opinion,
11/19/14, at 1–4).
On appeal, we affirmed the dismissal of the first PCRA petition.
Carter, 1651 WDA 2014. The present PCRA court described the subsequent
procedural history as follows:
On September 21, 2015, Defendant filed his second PCRA
Petition [pro se], which is the basis for the instant proceedings.
On October 1, 2015, the [c]ourt entered an Order and Notice of
Intention to Dismiss Without Hearing in which the [c]ourt denied
Defendant’s request for appointment of counsel on this second
PCRA Petition, notified the Defendant of the [c]ourt’s intent to
dismiss this second PCRA Petition without a hearing, and
-5-
J-S92008-16
explained its reasons. Those reasons were that the issues raised
were previously litigated and/or waived and that Defendant’s
Petition was untimely and thus the [c]ourt did not have
jurisdiction. On October 23, 2015, Defendant filed a Show of
Cause, further arguing his position.
The [c]ourt then entered an Order on November 13, 2015
dismissing Defendant’s PCRA Petition without a hearing for the
reasons previously stated. On December 14, 2015, Defendant
filed a Notice of Appeal.[2] This Notice, however, did not refer to
the [c]ourt’s Order of November 13, 2015, nor did it contain the
required filing fee, nor did it contain a Petition to Proceed in
Forma Pauperis. The Clerk then mailed a letter to Defendant
dated December 14, 2015, which informed him of these
deficiencies in his filing. Then, on December 30, 2015,
Defendant filed an Application for Leave to Appeal in Forma
Pauperis along with a second Notice of Appeal.
On January 12, 2016, the [c]ourt entered an Order
directing Defendant to file a Concise Statement of Matters
Complained of on Appeal. Defendant filed his Concise Statement
on February 2, 2016.
PCRA Court Opinion, 2/12/16, at 2–3 (footnote omitted). On February 19,
2016, this Court, sua sponte, consolidated the appeals at 33 and 34 WDA
2016, noting that the appeal at 34 WDA 2016 “appear[ed] to be Appellant’s
____________________________________________
2
Appellant’s appeal was timely filed, and he is represented by private
counsel. The record reveals that Appellant placed his notice into the prison
mail on December 11, 2015. Pursuant to the “prisoner mailbox rule,” the
notice of appeal is considered filed on the date it is delivered to prison
authorities for mailing. See Commonwealth v. Wilson, 911 A.2d 942, 944
(Pa. Super. 2006) (recognizing that under the “prisoner mailbox rule,” a
document is deemed filed when placed in the hands of prison authorities for
mailing). Moreover, even utilizing the date the notice was received by the
clerk of courts, December 14, 2015, the appeal was timely. The thirtieth
day of the appeal period fell on December 13, 2015, which was a Sunday.
See 1 Pa.C.S. § 1908 (whenever the last day of any time period referred to
in a statute falls on a Saturday, Sunday, or holiday, we omit that day from
the computation.).
-6-
J-S92008-16
attempt at correcting or amending his notice of appeal filed at appeal
number 33 WDA 2016 . . . .” Order Per Curiam, 2/19/16.3 The PCRA court
complied with Pa.R.A.P. 1925(a).
Appellant raises the following issues in this appeal:
I. Did the PCRA Court err in determining that the issue of the
validity of the plea was previously litigated or waived[?]
II. Did the PCRA Court err in determining that the PCRA
Petition was untimely[?]
Appellant’s Brief at 5 (footnote omitted).
When reviewing the propriety of an order denying PCRA relief, this
Court is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA
court’s findings will not be disturbed unless there is no support for them in
____________________________________________
3
The “second” notice of appeal was an attempt to correct the deficiencies of
Appellant’s timely notice of appeal received by the clerk of courts on
December 14, 2015. A second notice of appeal was unnecessary,
Appellant’s correction of the deficiencies notwithstanding. Commonwealth
v. Williams, 106 A.3d 583 (Pa. 2014) (A timely notice of appeal triggers the
jurisdiction of the appellate court, notwithstanding whether the notice of
appeal is otherwise defective.). As the High Court stated in Williams:
The precise nature of the alleged defect in the . . . notice of
appeal is of no consequence. As Rule 902 of the Rules of
Appellate Procedure states, “failure of an appellant to take any
step other than the timely filing of a notice of an appeal does not
affect the validity of the appeal.”
Id. at 590. Thus, we quash the appeal docketed at 34 WDA 2016.
-7-
J-S92008-16
the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.
Super. 2014).
Initially, we must address whether this appeal is properly before us.
The PCRA court dismissed Appellant’s petition as untimely. “As the
timeliness of a PCRA petition is a question of law, our standard of review is
de novo and our scope of review is plenary.” Commonwealth v. Callahan,
101 A.3d 118, 121 (Pa. Super. 2014) (citation omitted). Moreover, the
timeliness of a PCRA petition is a jurisdictional threshold that may not be
disregarded in order to reach the merits of the claims raised in a PCRA
petition that is untimely. Commonwealth v. Cintora, 69 A.3d 759, 762
(Pa. Super. 2013). “Whether [a petitioner] has carried his burden is a
threshold inquiry prior to considering the merits of any claim.”
Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).
In order to be considered timely, a first, or any subsequent PCRA
petition, must be filed within one year of the date the petitioner’s judgment
of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment of
sentence “becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3).
Our review of the record reflects that Appellant pled guilty and was
sentenced on March 5, 2013. The sentencing order provided that “[p]er the
-8-
J-S92008-16
plea agreement, execution of sentence is deferred to April 4, 2013 . . . .”
Order, 3/5/13. Appellant failed to report on April 4, 2013, as ordered, and
on April 5, 2013, a Bench Warrant issued for Appellant’s arrest. Appellant
was apprehended and incarcerated on August 4, 2013, and the court issued
the August 15, 2013 order described supra n.2, wherein it directed that the
effective date of Appellant’s sentence be amended to August 4, 2013.
Appellant asserts that he is entitled to utilize August 15, 2013, as the
date to determine when his judgment of sentence became final. Just as we
would not use April 4, 2013, as the pivotal date, we cannot use August 4,
2013, let alone August 15, 2013.4 The common pleas court imposed
Appellant’s judgment of sentence on March 5, 2013. That Appellant
negotiated until April 4, 2013, to begin serving his sentence of
incarceration, or that due to his flight, Appellant’s apprehension on August 4,
2013, further delayed Appellant’s execution of his sentence of
imprisonment, does not alter the fact that the trial court imposed
Appellant’s sentence on March 5, 2013. Thus, this is the date we must
utilize to determine the timeliness of the instant PCRA petition.
Appellant did not file a direct appeal; therefore, his judgment of
sentence became final thirty days after March 5, 2013, on Thursday, April 4,
____________________________________________
4
It goes without saying that utilizing August 4, 2013, as the date of
imposition of sentence would permit Appellant to benefit from his
abscondence from the jurisdiction.
-9-
J-S92008-16
2014.5 Pa.R.A.P. 903. Thus, Appellant had until Friday, April 4, 2014, to file
a timely PCRA petition. 42 Pa.C.S. § 9545(b)(3). The instant petition, filed
September 21, 2015, is facially untimely.
Our review of the record, the briefs, and the relevant law compels our
conclusion that the PCRA court has properly, thoroughly, and succinctly
evaluated the issues, beginning with the untimeliness of the appeal and the
inapplicability of any exception to the timeliness requirement. 6 Therefore,
we rely on the February 12, 2016 opinion of the PCRA court and adopt it as
our own.7
The appeal at 33 WDA 2016 is affirmed. The appeal at 34 WDA 2016
is quashed.
____________________________________________
5
We note that the PCRA court made a computational error by one day when
determining the date when Appellant’s judgment of sentence became final
and a timely PCRA petition was due. The PCRA court determined that any
petition was due by Thursday, April 3, 2014, when in actuality, as noted, the
pivotal date was Friday, April 4, 2014. This computational error, however,
has no effect because Appellant never filed his petition until September 21,
2014, more than five months late.
6
As Appellant asserts that his petition is timely, he does not argue
applicability of any of the limited exceptions set forth in the PCRA. See 42
Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
7
We direct the parties to attach a copy of the PCRA court opinion in the
event of further proceedings in this matter.
- 10 -
J-S92008-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2017
- 11 -
Circulated 01/09/2017 11:37 AM
IN THE¢0URT OF COMMQN.PLEAS·OF BEAVER COUNTY
PENNSYLVANIA
'CRIMINAL DIVISION - LAW
COMMONWEALTH 0.F.PENNSYL VANIA
vs.
NO: 77 OF .2012
JAMES BDWARP CARTER,. JR.,
DEFENDANT
TESLA, J. ·FEBRUARY l~ ,2016
~-
RULE 19.ZS(a) ·O:PINION
FACTS AND PROCEDURAL HISTORY
This Opinion is issued to .address. Defendant's second Petition in the above-captioned
case under the Post-Conviction Relief Act (hereinafter, ·''PCRA'' or "i\yt';)'. The facts and
procedural history 'Oftht$ case are.presented in brief because they are described in .greater detail
in the Court's Order and Notice of'Intention to Dism~s.s Without Hearing and in thee Court's Rule
1 ~25 (a) Opinion from Defendant's first PCRA proceedings.1
On the eve of trial aft;er selecting .a jury; Defendant pled guilty to. two -counts .of"
Possession wifu·Jntertt to, Peli~ei-; Defelldant,signed an am~nded rtrformation;pleading guilty to
the amended .charges· .per the plea· agn~¢ment, :and also sign.e4 waiving his: Arraignment. In
accordance with the· ple~ agreement, Defendant W~s $entepe¢d on the same date to a term of
· imprisonment of not less than two and one..half years nor more than five years. The Sentence
Order stated that, pursuant to Defendant's plea .agreement, execution of the sentence was
deferred to A-p.nl 4, 2013' .at 9:00 a.m., when Defendant was to report to the Beaver County J aH to
I
A copy of the following Orders are attadie~ to this Opinion under A1>pelidfx "A" and are incorporated 'into this
Opinion as ff niJly set forth herein: ('.)rder Dismtssing· Oefendant'.s PCRA Petitior» Without Hearing, entered'
Nove1nber 13;, 2015;; OrderandNotice·ofln\entiontoDism:i;s.s Without Hearing> -ehteteci October I., 2015;and Rµle.
1925(a)Qpirtkin, eqt~redNovember 191 '20J4,
APP.B
begin serving his sentence, On April 4, 2013, Defendant faile4 to appear a:t the Beaver County
Jail as required. As a result, a bench warr~t for Deferl:dant 1 s arrestwas 1'$$Ued on April $. 2013 ,,
Defendant was· subs.equently arrested: a.nd.in¢arcerated fourmonths. later on August 4, '2013.
On Novembe, 8, :Z:013, Defendant filed pro se his fo:st Motion for Post Conviction
Co:ilateraL Relief. ])efendartf was appointed. counsel, filed an Amended Petition, and the Court
held a hearing oh two separate days on Defendant's Petition. The Court then denied Dere~dant• s
Petition and Defendant appealed that denial. On May 22, 20{ 5, the Superior Court at l 651 WDA
2014 entered an unpublished memorandum decision. A copy is attached under "Exhibit "A" per
210 Pa. Code § 65J 7(A); The Honorable Judge Shogan, writing for the Superior Court, stated:
We have ;reviewed the hriefs hf the parties, the, relevantlaw, the certified record
before us on appeal, and the thorough opinion ofthe PCRA court dated.November
19; 2014; We conclude that each ineffectiveness: claimraised by Appellant lacks
merit and the PCRA eourt's Well~crafted opinion adequately addresses
Appellant's claims on appeal, Accordingly; we affirrn on the basis ofthe PORA
court's opinion and adopt its.reasoning. as· our· own, The paracs are directed to
attach :a copy or that opinion in the: event ot.fuiflrer proceedings in this matter .
Commonwealth ,of'.P!ennsylvania v .. .i:ames Edwatd darte.t; It, J~S.20030-15, Docket No. 1651
WDA 2014> at 4(P~;Super; May 22, 2015) (mern.prandiun decision).
On Septernber.21, 2015, Defe.rtd.ant filed his second :PCRA Petition, which is the basis for
the instant proceedings. On October l~ 2015, the Court entered an Order and Notice of Intention
to Dismiss Without Hearing In which the Court denied 'Defendant's request for appointment of·
counsel on this second PCRA Petition, .notified the Defendant of the Court's intent to dismiss
this second PCRA Petitfon without a, hearing, and e~plaJned it$ reasons, Those reasons were that
the issues raised were previously litigated and/or waived and' that Defendant's Petition was
untimely and thus the Court' did not havejurisdiction .. On 'October 23, 2015, Defendant filed a
Show of Cause, further arguing his position,
The CQlirl 'then entered an Order on November 13, 2Rl 5 ·dismissing Defendant's. PCRA
Jletitiort withou~ :a heari11g· forthe reasons preyio_usJy stated. On,J)ecember 14, 20J;5i Defendant
filed a Notice of App.eat 'This Noti¢¢, 'however, did not -r¢{er to the Court' s Order of'November
13, 2015, nor di:d it' containthe required filing fee; nor did it contain a Petition to Proceed in
F onna Paµpetis.2 The Clerk then mailed. a Ietter: to befendan:t dated December 14, 2015, which
infotm.ed· him of these d:eficiende:s in bis filing .. Then,. on December 31};. 2015.,. Defendant filed an
Application for Leave to Appeal in F0n_na Paup eris along with a. second Notice ofAppeal,
On January 12; 2016; the Court. entered an Order directing Defendant to file a Concise
Statement of Matters Complained -of on Appeal, Defendant filed bis Concise Statement on
February .z, 2016. In his Concise Statement, Defendant raises two issues. Pirst, he raises as an
issue whether the Court erred' in failing to 'distihguisli b-¢twel;)11·.his· -previous argument of
ineffective assistanee of counsel and his instant argameat offacrallyattacking .the validityof the
plea, Second~ he raises an issue of whetaer' the Court erred in determining his Petition was
untimely; claiming that previous appeals tolled . the applicable time· period.
ANALYS!S
A. Defendant1.s PCRA .Pedtion was not tirnely fifed and tberefore the Court does not
havejurisdfotion to.consider the-merlts of his claims,
Before the Court can address the merits of Defendant's arguments, it must first determine
whether Defendant's. Petition was timely filed, In this case, Defendaat's petition is untimely .and
. 1 Al~hoµgh l)efendant'.s- first attetnpt~nt No.tide pf Appeal did :not contain. ei~ey the required, fee or a ];'etition to
Proceed in Forma Pauperis, and did' not corre~tly·'ide,ntify- the .pertinent {)tder-, '.thes.e .fuattflrs d<>. no't nec.essarily
affect the Jµ.dsdiction of the.·appeUa1~·.cott,.tt; bur tathet ~liow Jt·to. take any ,a:ppt'opri~t~ acttem. See, e.g; Pll.RAP,
902 :(''F'aililh~· or''tj.TI app~ilnntto ta.~e ·!JTJY $t¢p other than :the timely fifing of a .nQffoe· -of appe-a:F dees not affect the
·•laHd'ity .of the appea(-but itfa subjecti9.,s1,1_ch acMt!.as the ~ppe,Uate ceurt-deems apprepriate.; }')1 Fir.st Union· Nat
]lank K FA Realty In•lts Cbrp;l 2000'PA Super 3'60'i :~ 9:; 812' A.2d: 7'19, 722-23 e'[T]he p.err~ctiol'l. of the appeal
does notdepe11d ir1.at1ywa)"'Qn the. payment of the ftli'ng 'fee;''f ,
3
the Coutt therefore does .tiofhave jurjsdtction to consi\1er his Petition,, See, e,g., Commonwealth
· A.·,11·'·,
V, s··6'A·
· · , •··3··a. ·· · ;17·3·:, 1·,,.,7·
Cf.< ·c'll)
'Ea. -·2'··0'. :·'14·y· ·1 ···"'·· · c· omm:On\¥e
· .: \~Httttg .· ·a1'1:ti·· . V· ... ·p· a:h··y, ·s·c4.s··· p·.a.3· :1· 3· · .,. · 7·.·3··.7
. ·A
· · · •:·2a··2'1·',4
(1999)) ("PCRA time limits ate jurisdietional in nature, implicating a court's very power to
adjudicate a. controversy."). ·
Any .Petition for PCRA relief, "including a second or subsequent petition, shall be filed
within one year of the date the judgi;nent becomes final," unless the Defendant alleges and .proves
that one of three .enumerated exceptions· applies. 1+2 Pa.C.S.A. § 9545(b)(l). ''A judgment
becomes final at the eouelusion of' direct review, i11cluding. discretjona.ty review in the Supteme
Court ofthe Tltlited States and the :$,upreme·Coutt. ofPennsyl:vania, or at the expieationof.zime
for seeki11g the review," 42 pa;.;C.S .:A. § 9'545(b)(2). A,notice ofa,ppeal must be filed within.thirty
days> after Which an appellate court no longer-has jurisdiction to hear ,the case, Commonwealth v.
Bey,437 l?a.134; 136; 262 A.2d 144, 145 (1970); PaJl,A.P~ go:3;
Defendant pled guilty on March 5,, 2013 and never filed
~-'i
a direct appeal. The judgment
.. 4~· • ,.~"·-
therefeee became final. after Wednesday, April 3, 2013, thirty days later. His deadline to file a
PCRA was thus April 3, 2014, also a Thursday. The instant Petition, however, was filed on
/ .
September 21, 2015, over one year past th¢ deadline.
Because Defendant's. Petition was not filed Within one year; it is untilnely and this Court
has no jurisdictid.n to consider the arguments nt~de in his Petition unless one, ofthe enumerated
exceptions under 42 'Pa.G.8.A. § 9545(b)is satisfied. See :i&,, 1999 Pa.Super; 124, 734 A:2:d at
399-400;
Th~ exceptions for railing to fj1¢ a timely :PCM Petition provided under :Pa.C.S.A. §
9545(b) are:
of interference· by
(i) the failure to raise the claim previously was the result
government officials with the presentation. of the claim in violation of the
4
Constitution or laws of this Commonwealth or the Constitution er laws of the·
United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner
and could not have been. ascertained by the exercise of due diligence; or
(iii)the right asserted.is a constitutional right that was recognized by the Supreme
Ooµrt of the United St~t~s or the Supreme Court ·Qf Pennsylvania after the time
peripcl provided in this section and has been held by that court to apply
retroactively.
42 Pa.C.S.A. ·§ 9545(b).
At no time in his Petition does Defendant claim a retroactive constitutional :right. 42
Pa.C.S.A. ,§.9545(b)(iii)-. Thus this section does not-11pply,
In Section 5(!} of hi~ P.etitiPfi~ P.e:fo11dant .cl~frns> reg~rdinggovemmental i'nterf¢ten·ce,
"The Commonwealth }tas changed dates, event.s, an:d withheld information from the Court and
the defense." Defendant appears, as he has in the past, to her referring to the amended
Information which was previously addressed in his first PCRA Petition. Contrary to Defendant's
',
repeated assertions that he "was unaware of these charges when entering into a plea deal," the
Court explained. in its first Rule ,1925(a) Opinion that Defendant knew of the amended
Information and agreed to enter µ.is· guilty plea tq those amendmeats, deriving a substantial
benefit from.that pleaRule 1925(a) Opinion, ·atJJ-11 (Nov, 19'i· 20:14), No miscenductwasfound
then, and Defendant · neither pleads nor proves. any differ~nt or ad·clitional misconduct now.
Rather, it appears that Defendant merely wishes to telitigate issues Which have .already been
addressed. ·
To the extent that Defendant intends to argue governmental interference based upon
alleged ineffectiveness of his counsel (section 6(A) of his Petition refers to· his counsel as
"defense. attomey as counsel for the prosecutien"), ineffective assistance of counsel does not
qualify for the governmental .interference exception. 42 Pa.C.S.A .. § 9545(b)(4) fFor purposes of
5
this subchapter, "government officials" shall net include defense counsel, whether appointed or
i:etaiMd);Com. v. Crews,,. 58-1 Pa . .45, 53,, 8·63 A.2d 498., 503 {2.@04) ('1(I]t is well settled that the
atleged irieffecfi¥c:he$s of ail prior counsel.fncluding.first PCRA:cpunsel, does not fall within the
governmental interference exception.").
Regarding Rfter'-discovel'e<i evidence, Section 5(U) of Defe.11~ant's Petition claims, "The
amended charges were .a new ,set of charges, 'with different dates and events, than wh&t I was
originally beirrg pros~outed ,foe•· Agaiµ1 this iss1;1e wa.s '.already raised during the: first PCRA
Petition. FuJ:ihel\ Defendant himselfstates in bis- P~titfort tb.athis .pasis for knewing the facts on
which , he bases his. PCRA was "personal observation 9f my sentenclrrg paperwork and
sentencing transcript." Thus- ibis was not after-discovered evidence, as Defendant claims. Rather,
Defendant was physically present and aware as the proceedings in this case occursed ..
To the extent that Defendant's Petition appears to show that he is again complaining of
'ineffective assistance- of eouns,d, this :aiso 'does not excuse .a faiiJ.lre to meet the jurisdictional
timeliness requirements. See, e.g., Com. v. Edmiston1 61? Pa. 549~ 565-66, 65 _A3d J:39; 349
(2013;) cert .. den;ied, 134 s.o, .639 CU ..s. 20'13) (•![WJe have previously r~Jecte4 attempts to
circumvent the. ·tii:neliness requirem ents or the PCRA by assertln.g prior counsel's in,effectivenes$
fot failing fimelyte raise a -olairn .. A$ Wf;' have .explained, the nature of the .9onstitµtJorial
violations ·a11eg~d has ,n9 :effect on the: ,application. of the PCRA ttwe bar. Rather; 'the ·-only
cognizableexceptions are setforth at Section 9545(b,)(l}'·').
Simply stated, at no time has Defendant alleged or proven any facts or evidence that he
has since acquired which were unknown to 'him previously, or why such facts could not have
been discovered by the exercise of due diligence in the previous proceedings. See
Con1monweaith v;. Medina, 2014 Pa.Super, 1:081 92 A,3d 1210) .12.16 (2014J (''Due diligence
.
. 6.
demands that the petitioner take reasonable .steps to protect his own interests. A petitioner must
explain. why he could not havelearned the new foct(s) earlier with the exercise of due diligence,
This rule is strictly enforced.'').
Defendantin his. Cenciae Statement ap_pq:!iXS to. cla:im that·the pendency of appeals should
have :tolled· the tini~tiness te·g:urremeht. This wdttld be true ,with J~gard to ,a qh'ect appeal,
Defendant;. 'hpwevet~ did not ti1e El ilirecf appeal. Rather, he pJmceeded to file a PCRA Petition,
the pendency of which does ~10t toll the 'time ,perio.d for subsequent PCRA Petitions. Se(;; e.g;,
Com. v. Rienzi, 573 Pa. 503, 506, 827 A2d 3.6.9, 370 (2003) (quoting Com. v; Lark. 560 Pa. 487,
746 A.2d 585, 587 (2:bOOJ} ("[T]he Legislature enacted amendments to the· PCRA, 'Which
mandate that all.;petitions· fot post-convictio» relief, including second and subsequent petitions,
be filed within: one year ofthe date upon which the judgment became fina], unless .one ef three
enumerated exceptions apply.''"). Aspreviously stated, this subsequent PCRA Petition is beyond
the filing deadline.
D~fen:da:nt fails. to. plead or prove facts th~l wouJd support either the govemmental
interference' or the aftei'-discovei;ed evidence (,W¢-eptions Which he asserts ht hi$· Petition. 42
PttC.$'.A, '.§ 9545(b)(l}. His .f>etltion is theref9re;u.11tfr1;1ely. Becausehls :Petition is iltitimely. the
Court does riot have .jurisdiction to consider Defendants PCRA Petifion, and it was therefore
properly denied.
)3. The Claiins raisetl l:>y Defendant in bis Petition have been previqus,ylltigated and/or
waived a,nd heJs thereto.re ineligible for relief und,er tile Post.. Conv-icfion Relief Act.
Jn.additiontt, Def¢ndant'sfailure to ·file,a timely PQR.A Petition,. Defendant simply· is not
eligible. for PCRA relief undez the Act because, inter alia, .his claims have been. previously
litigated and/or waived.
7
To be eligible for PCRA refie~ the petition.~t niustpleadartd prove ·by a preponderance of.
the eviden~e four ge11¢taI' requite.m:ertts; 42 Pa.Ct's.A. §,~:9541~9546.. First, the petitioner must
ha:Ye been eonvicted of a crime 11ttder. Pennsylvania law and subsequently sentenced to either
incarceration. or probation. 42 Pa:.C.S.A. .§ 95430t), Second, the conviction· and sentence rnust
have resulted from at least one of the errors Md/bt violations elu6idated: in § 9543(a)(2) of the
PCRA. Id. Third, the allegation of errc:>t must nothave been previously litigate& or waived ·by the
petitioner. let Fourth, the petitioner must demonstrate. that the failure to Htigate the claim could
nothave been "the result of any rational, strategic or tactical de·cision ;by cows el." Id.
Defendant· does meet the first requirement because he was convicted of a crime under
Pennsylvania law and has been sentenced to a period of In:qiu:cerati<;ln. Regarding the second
requirement, De:fendantola1m:s errors or vio.l~tiorts tn:idet § 9543(a}(Z)(i)~(iv) of th~ PCRA, I.e.,
constitutional vt~'flation, ineffective assistance of coµnsel, unlawfully induced guilty plea, and
improper obstt'.U<i:tfa:m by government officials o:f a ri.ght to appeal, Section :6(C} of Defeadanrs
Petition states. that he is com.tplaining of '~iofations of US;C. 14th amendment. Violations of
Pa.R.Crim.P. 564 and Rule 571.. Ineffective Counsel. and invatid plea agreement." Section 6(A)
of Defendant's Petition states:
I was oflgina:lly arrested and prosecuted for crimes that.allegedly occurred on 8~1 ~
20 l.O •. After selt;:cting a j Ul'.Y on these .offenses. and before trial, defense attorney as
counsel for the prosecutiqn teacl1e~1:1 plea deal. Dµring ,a[sfoJ open colloquy, the
prosecution amended the charged by adding (2) :additional changes and .nolle pros
the tem.aining (7) counts. These new charges are of different events than
occurring on 8-1~201().. Thes~ new charges. ate fron.1 crimes. that supposedly
occurred 011. 8/6/2010 and 8/30/2010. I Was unaware of these charges when
entering into a plea deal Twas under :the. Impression l was 'pleaiilg[sicJ to crimes
from :8~1~2010. Furthermore a plea was entered ip.to. bef9re a,rtaignment
Regarding this second' requirement of the Act, Defendant has. tiot credibly. proven the
violations he pfoa,ds. I>e.fendartt was: teptesented hy counsel at his gu:ilty plea, signed' the
8
amended Information and the Guilty Plea Colloquy; entered his guilty p.h~a on the record,
received a substantiel pel)efit from the plea· including charges with reduced weight of: the drugs
as well .as a deferred :execution of sentence, wliich he then later failed to report for: Rule l925(a)
Opinion, at 9-:11 ('Nov. 19, 2014). He even claimed at the hearing on his first PCRAthat he had
lied under oath dt1tin:g his guilty plea. Id. at 9,.nA, Defendants repeated assertions that he. did
not know what he was pleading to ·are simply incredible, and he fails to prove by a
preponderance oftheevid.ence.any oftheviolationsrequiredby the PCRA.
Most clearly deficient in Defendant's Petition is his failure to meet the third requirement
under the PCRA. The claims he raises have been previously litigated :and/or waived in the prior
proceedings and thus, under the Act, they .eannot agai11 serve-as a basis. for requesting relief. 42
Pa.C. s~A. .§ 9543(a){3).
An issue lias been previously litigated if •1the bighest. a,p.pellate co:utt in which the
petitioner oouldhavehad revfowasam~tter,ofrighthas nifod,onthe xrteritsof'the issue." Id .. at §
9544~a)(2). A PCRA claim is waived "if the :petitioner could have raised it but failed to do so
before trial, at tdal, dµting unitary review, on. appeal -or in a prior state pcstconvictroa
proceeding." & at§ 9544Gb)~
Defendant wishes to argue irt his Concise ·statement that in his first Petition he only
complained: of ineffeetive assistance of counsel, and not as to the actual invalidity of the
amended Information and the entry of his plea. Defendant' s argument is· totally without merit.
The Court e1rpt'essly ac:r~r~ssed these issuss in its Qpirtibti. irt ultimately .concluding that
Defendant's ccunsel was ~ot.ineffecdve. Rtde 19:25:(aJ Qpinion,.at 11-12 (Nbv. 19, 2014).
Based on .the Court's observation ofbefen:dant's demeanor and testimony at 'the
time of his .plea compared with his later incredible. recanted testfrnony, :based on
the credibility of Mr. Emmi's testimony, and considering' the favorable terms of
the plea agreement Mr. Emmi secured for Defendant, this Court finds. that
. 9
Defep.da11t has n:0t met his burden•9f ptovf~g. that he. was uiilaw:fµlly· imfoced into
c;nterlng his .pl¢a. Nor ·is.th~ Coart· convinced that n.efend~t did not u11detsta11d ·
tllat he was plead.fog te reduced charges as outlined in the plea agreeinent, placed
on the record, and memorialized by Defendant when he signed' the amended
Inf~miatfon in. oren COU11, waiving .his arraignment to the redu~ed charg~s. N.T.
3/5/13, at 22-24. The record clearly shows that Defendant was Infcrmed in open
court of the reduced charges he was pleading to; the substantial benefit he
obtained from pleadingto those.reduced eharges.mteems.ofthe.reduced weight
and avoidance .of[the]mandatory· 111inimunt sentence. was .ex;p:lained to him, and
he hims¢{f signed the: atnended.Infonn.aticm and•waived his arraignment.,Based ()11'
these fo'¢ts• clearly ptese11t. fuothe tecord1 .J)efettdarlt's a.tguni~ntthat Mt, En1nii·did
not explain -to him thafhe was pleading to an, amended lnfcmnation qoes 11.ot even
meet· the ar.gual;,le, merit pron;g for :ineffocJiv:e . assistance. counsel. S~e. S:needi 899
A:2d at t07:Ct - · ·
Rather, based on the evidence and the record, this Court finds tha; Defendani's
plea was indeed knowingly, intelligently, and· voluntarily made; Because his plea
was knol;i,!f'ng/y; .'int¢#(gtnt{y; andvoluntar.ilymade, D¢fendt1.n,ti· arguments thathe
wa,s- tnef!ectt;v.~~ t.epresente.d1iJJl counsel wtth r~gardto his en.tering a guilty plea
have-11,r>,nefl:t. S~~Willis,.2(H3 Pa.Super;· 14l'i.68 A.3datlOot.:02.
ld. ·(emphasiS a;dded).
Defendant simply wishes to argue again regarding the amended Information and his
waiver of Arraignment. These issues were already unambiguously addressed by the Court in the
firstPCRA Proceedings. and by the Court's Opinion. Id. That Opinion was appealedand.affirmed
. .
by the Superior
. Court, which ad.opted the Court's
. reasomng . in its f'frst 1925(a) Opinion. Thus
these matters are previously
. litigated
. and cannot; again ·.serve as a basis for requesting PCRA
relief.
Furth~\ the issµes of ah amended Information and Arraigronent were .also waived by
failin,g to ·properly include them withln Defendant's first PCRA Petition, C.omn1onwealth v .
.Williams, 2006-Pa.S\iper; 121~ 900 A.2d.9.Q6, . 9d9(2006)(fiiilure to.ralse'lssueat PCRA Petition
stage waives .is~ue a:nd. precludes it on appeal). Indeed, the! issues of the amended Information
and Atraignmertt werl$ first waived when Defendant entered his guilty plea. Com. v: Eisenberg,
98 A.3d · 1268,. 1275 (Pa. 2014) ('1[lJJpon.entty of a guilty plea, a defendant waives· all claims and
ro
defenses other than those sounding in the jurisdiction of the court; the validity of the plea, and
what has .been termedthe 'legality' ofthe semence imposed ... ."); Com. v. Jones, 593 Pa, 295,
307, 929 A.2d 205, 212 (2007). (Defendant who plead guilty waived right to . challenge alleged
defectin Information); Com. v. Montgomery,. 48'5 Pa.. 110, H4, 401 A.2cl 318, 319-20 (1979)
(Defendant who .pled guilty waived ·right to challenge alleged defect in Indictment): Com. v. Hill;
427 Pa. t514',
.
617,. 235 A.2d 347, 349 (1967). {Defendant who plecl guilty waived right to
'
challenge validity of'erraignment.]
Because Defendant's arguments have already be~fitai:sedin this Court and its decision
reviewed and affirmed' :by the- StiJ:Yerior Court, they are ptevi0usly litigated .. By entering a guilty
plea and by failing to raise them at. earlier stages in his criminal proceedings; Defendant's issues
are also waived. Because his issues are previously litigated and/or waived, they are not eligible
for relief under the PCRA. 42 Pa.C.S.A. § 9543(a)(3). Therefore Defendant's Petition was
properly denied without a hearing.
C 'There was 'neither a vfo'httion of the Rules of Criminal Procedure nor prejudice to
Defendant and therefc:,re be is not eJ.ttitledt~ relief,
Even if D¢fe~.danf's .Petition was notuntimelY and even if the issues heraises were not
previously Htigat(;d l\ncl/Qr waived1 still there was ne.violation o:fllules $64 or 571 as he alleges,
nor has he .beerr prejuclfoe~L The COutt notes the legal authbdties whtch Defendant cites in his
petition, to Wit,,.Corrt. v. Bricker, 20@5 PA Super 3'07; $82A.2d 1008, and Pa.R.Crim.P. $64,
'
571. Unfortunately for Defendant, the authorities hecites cut directly against his .arguments,
Pa.R.Crim.P, 571(I>) states that a defendant may waive his arraignment where be is
represented by counsel and the defendant signs. and . files a written waiver meeting certain
11
requirements. Defendant did exactly that; as this Court has _previously observed. Thus the rule
was not violated.
Pa.R.Ci:im.P. 564 :states that an information may be amended "provided the information
as amended does .nor dharge an additional. or different offense," In Bricker> the case which
Defendant cites> the. S4p'edor Court. explaj:11s preci.sely: the me?Lrtin:g :and pu11J)ose .of this rule.
We 'have st~tedthat the putpo$.ie qfRt.i1e5l54 '~is.to .ensut.e that a· defendant is ftilly
apptised ~f:the charges,. and to. :avoid pt~judiceby prohibiting the Iast minute
addition ¢f ·aJ~f:'ged ,crhnfaal acts of which the defendant is. urtinforme~."
CammortWMlth v: Dctvctlos, 779 A.2d lt90, 1194 {Pa:Super2001) (citation
omitted). The test to be applied is!
[Wjhether the crimes specified in the original indictment or
information involve the same basic elements and evolved out of
the same factual situation as the crimes specified it1 the amended
indictment· or i11fot'm~tion. If so, then the defendant is deemed· to
have been .p1ac~4 on notice reg~tdihghis alleg~cl ctimJnal conduct.
r£;. however; th¢ amended' provistOn alleg~s a different set of
events; or the eleme11t's qr defenses to the ajnended crime are
materially different from the elements o.t defeases to the crime
originally 9hatg¢d, · such that the defendant would be prejudieed: l;'>y
the· change, th~ the amendment fa not: permltted.
Bricker, 2005 PA Super 3~7, if 27, :882. A.2d at 10.rn (citi11;g· Commonwealth v. Davalos, 779
A;2d 119'0, 1194 (Pa.Super, 2001)). See also Com. v.Jvfentzer,;2:01J PA Supet 62, 18A.3d 1200,
In this case, Defendant was not cltarged· with additio1::tal crimes in the aniended
Information. Rather, in accordance with the plea. agreement, he was charged with fewer and less
serious crimes. In this case, the weight of the cocaine Defendant was charged with was reduced
from 146,9 gtams to 49 grams, with Defendant.receiving only a thirty to sixty month sentence
instead of the seventy~two to ninety month sentence indicated by the Sentencing Guidelines.
Rule 1925(a) 'Opinion, at 10 (Novi 19, %01:4). This reduction, in addition to other considerations
such as the Commcnwealtf not requestirtga;pplication ofthe.mand.atory 111.inhnum sentence; was
12
to · effectuate the· plea agreement from which Defendant ,plainly derived a substantial be)1eflt.
Further; Defendant was capably tepresentecl at :th~ time of his plea, S-ee Jones, 59'.3 P·a, at 3'07,
929 A.2d at 212 (''It :is clear that fa. defendant] .and his connsel, [are]well aware of the .charges'f
when they have ''hegotfated Er·plea bargah1 :witll.Jb.e GomtnofiWealth:'').
Despite Ms ·$lihs~quertt -dissati~factfon with his decision to enter a guilty plea, "the law
does not require that'[~ defendant] be pleased with the-outcome.of his c:lecfsion to enter a.plea of
guilty .. , ." Comtrtenwealth v .. Willis, 2013 Pa.Super. 143~ 68 A.3d 997, i002 {citing
Commonwealth· v. Anderson, 995 A.2d 1184~ 1192 (P~.Super. 2010)); Defendant fails to
demonstrate eitherthat there. was a violation of Rule 564 as explained by the Court in Bridker, or
that he has been prejudiced.
Because there has been no violation of either Rule 564· or Rule 571 and .because
Defendant, with the assistance.of courtsel,waived his Arraignment and agreed witll the amended
Informatien in accorid.ance With a plea agreern¢nt front which h.e .greatly benefitted by
were properly·.de11ied.
CONCLUSION
For the aforementioned reasons, the issues which Defendant raises were ~r.operly denied
and th¥ decision.of'this Court. should be affirmed .. OJ
~··
...,
tt
M
n
0
c
•::i:J
...,
J.
|
429 F.Supp.2d 1109 (2006)
UNITED STATES of America, Plaintiff,
v.
Kim Darby SAENZ, Defendant.
No. CR 03-4089-MWB.
United States District Court, N.D. Iowa, Western Division.
April 24, 2006.
Jamie D. Bowers, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.
Joseph J. Hrvol, Council Bluffs, IA, for Defendant.
*1110 MEMORANDUM OPINION AND ORDER REGARDING THE GOVERNMENT'S MOTION FOR CORRECTION OF SENTENCE
BENNETT, Chief Judge.
On March 23, 2006, the court entered its Memorandum Opinion And Order Regarding Resentencing (docket no. 55) following remand from the Eighth Circuit Court of Appeals. See United States v. Saenz, 429 F.Supp.2d 1081 (N.D.Iowa 2006). In that order, the court sentenced defendant Kim Darby Saenz, now known as Kimberly Edwards, to 20 months imprisonment on Count 1 of the Information, with credit for time served.[1] This sentence was precisely the same as the sentence originally imposed on the defendant, which the Eighth Circuit Court of Appeals had reversed and vacated on the government's appeal on the ground that this court's reduction in the sentence for the defendant's "substantial assistance" (from a Guidelines minimum sentence of 63 months) was "excessive" and "unreasonable" under the circumstances presented. United States v. Saenz, 428 F.3d 1159, 1164-65 (8th Cir. 2005). However, on remand, on the basis of recent data from the United States Sentencing Commission, this court found that the Eighth Circuit Court of Appeals was mistaken in the notion that a 50 percent reduction in sentence for substantial assistance was "extraordinary," and that the circumstances presented in this case, including evidence of threats and intimidation suffered by the defendant and her family members as the result of her cooperation with authorities, which had not been presented at her original sentencing, made a reduction of 68 percent, from 63 months to 20 months, entirely appropriate, where the record now firmly established that the defendant's assistance was "extraordinary." An Amended Judgment (docket no. 56) entered accordingly on March 27, 2006.
This matter comes before the court pursuant to the government's March 30, 2006, Motion For Correction Of Sentence (docket no. 57). In its motion, the government points out that Rule 43(a) of the Federal Rules of Criminal Procedure requires that the defendant be present at sentencing. Therefore, the government requests that the court impose sentence with the defendant present in open court. On April 18, 2006, finding that the defendant had made no timely response to the government's motion, the court ordered the defendant to respond by April 21, 2006. See Order of April 18, 2006 (docket no. 60). That same day, the defendant filed a resistance to the government's motion (docket no. 61), in which she asserts that her presence at the resentencing hearing on March 3, 2006, satisfied the requirements of Rule 43(a), and that she need not be present at the entry of the subsequent written order, citing United States v. Weir, 724 F.2d 94 (8th Cir.1984). Therefore, she requests that the government's motion be overruled, because it is without merit.
The unedited "real time" transcript (Transcript) of the March 3, 2006, resentencing hearing reveals that, shortly after the hearing began, the court stated its intention to take the sentencing under advisement and subsequently to enter a written ruling imposing sentence and, further, that the court offered the parties the opportunity to object to such a procedure, as follows:
THE COURT: Okay. Well, before we get to that, I do have a couple of questions for you, Mr. Fletcher. I didn't want tothere are a couple things I want to mention. I think you all know I've been quite ill, and I'm kind of behind *1111 the eight ball. I don't think I'm prepared to announce my sentence at the end of the sentencing today. And I'm going to take it under advisement. And I've looked at the rule, and I think I have a right to take it under advisement, and other judges have taken sentencings under advisement. It's just too complicated. I haven't been able to give it all the thought that it needs, and I'm just not going to rule off the top of my head, and I'm probably going to enter a pretty thorough written ruling that would actually impose a sentence. So I wanted to actually raise that, see if anybody had any objection to it. And then we can talk about how to do it at the end, if we should all come back or if I should just file it or we can talk about those issues later on.
Transcript at 6-7. Shortly thereafter, the government responded to the court's statement of its plan to take the resentencing under advisement and subsequently to enter a written ruling, as follows:
MR. FLETCHER: Yes, Your Honor. First of all, on the issue of you wanting to take this under advisement, as you recall, Monday with what was going on with your health and also trying your other commitments, we had attempted to move this, but I believe Mr. Hrvol's email address [I] recollect we'd had some problem getting ahold of him, and I appreciate you allowing me to file my brief late, but I called your office and then webecause of the witnesses coming here, it's probably better we get their evidence on today anyway.
THE COURT: Yes.
MR. FLETCHER: So I have no problem with that. I think that's the first issue you've raised.
THE COURT: Okay. I appreciate that.
Transcript at 8. Thus, assuming for the moment that the government had any right to demand imposition of sentence in open court, the Transcript clearly shows that the government waived that right during the resentencing hearing.
Unfortunately, there is no such express waiver by the defendant in the Transcript. There is, at best, an implicit waiver by the defendant: At the conclusion of the hearing, the court asked defense counsel if there was "[a]nything further," and defense counsel responded, "No, Your Honor. Thank you." Transcript at 74. At that point, the hearing was adjourned. Id. Even it was clear to the court at the time that the court raised the issue that the defendant concurred in the court's suggested procedure, and the defendant never raised any objection at any time to the court taking the resentencing under advisement and subsequently entering a written ruling actually imposing sentence.
Rule 43(a) of the Federal Rules of Criminal Procedure, upon which the government relies, provides for the "Defendant's Presence" during criminal proceedings, as follows:
(a) When Required. Unless this rule, Rule 5, or Rule 10 provides otherwise, the defendant must be present at:
(1) the initial appearance, the initial arraignment, and the plea;
(2) every trial stage, including jury impanelment and the return of the verdict; and
(3) sentencing.
(b) When Not Required. A defendant need not be present under any of the following circumstances:
(1) Organizational Defendant. The defendant is an organization represented by counsel who is present.
(2) Misdemeanor Offense. The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant's *1112 written consent, the court permits arraignment, plea, trial, and sentencing to occur in the defendant's absence.
(3) Conference or Hearing on a Legal Question. The proceeding involves only a conference or hearing on a question of law.
(4) Sentence Correction. The proceeding involves the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c).
(c) Waiving Continued Presence.
(1) In General. A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances:
(A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;
(B) in a noncapital case, when the defendant is voluntarily absent during sentencing; or
(C) when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom.
(2) Waiver's Effect. If the defendant waives the right to be present, the trial may proceed to completion, including the verdict's return and sentencing, during the defendant's absence.
FED.R.CRIM.P. 43. A defendant likewise has a due process right to be present "`at any stage of the criminal proceeding that is critical to the outcome if his presence would contribute to the fairness of the procedure.'" United States v. Parrish, 427 F.3d 1345, 1347 (11th Cir.2005) (quoting United States v. Novaton, 271 F.3d 968, 998 (11th Cir.2001)); United States v. Jacques, 321 F.3d 255, 262 (2d Cir.2003) ("Both the Constitution and the Federal Rules of Criminal Procedure grant a criminal defendant the right to be present during sentencing."). However, this due process right has been held to be narrower than the right to be present under Rule 43. Id. (citing United States v. Boyd, 131 F.3d 951, 953 n. 3 (11th Cir.1997), which in turn cites United States v. Washington, 705 F.2d 489, 497 n. 5 (D.C.Cir.1983); United States v. Christopher, 700 F.2d 1253, 1262 (9th Cir.1983); United States v. Alessandrello, 637 F.2d 131, 138 (3d Cir.1980); United States v. Brown, 571 F.2d 980, 986-87 (6th Cir.1978)).
It is plain that the right at issue here belongs to the defendant. See, e.g., United States v. Arrous, 320 F.3d 355, 360 (2d Cir.2003) ("The current rule arises out of respect for a defendant's right to be present at a sentencing proceeding, to allocute, and to respond to the definitive decision of the sentencing judge.") (citing United States v. Behrens, 375 U.S. 162, 167-68, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963) (Harlan, J., concurring), and United States v. Johnson, 315 F.2d 714, 717 (2d Cir. 1963)); see also United States v. Alvarez-Pineda, 258 F.3d 1230, 1241 (10th Cir. 2001) ("`The imposition of punishment in a criminal case affects the most fundamental human rights: life and liberty.'") (quoting United States v. Villano, 816 F.2d 1448, 1452 (10th Cir.1987) (en banc) (dicta)). Thus, the court has considerable doubt that the government even has standing to complain that the sentence must be imposed with the defendant personally present. Moreover, while the defendant's waiver of her right to be present when her sentence is actually imposed may not be explicit on the record made at the March 3, 2006, hearing, the government's waiver of a further proceeding to impose sentence, with the defendant present, could not be clearer. See Transcript at 6-8 (as *1113 quoted above, the government expressly agreed to the court taking the resentencing under advisement and entering a written order after the hearing). The government's waiver makes the court particularly skeptical of the government's motivation in moving to "correct" the sentence by requiring the defendant to be present when sentence is imposed, where the defendant is in California and would have to appear in Iowa for another sentencing proceeding at her own expense. Under the circumstances, the government's motion is, at the very least, mean spirited, and at worst, appears to be motivated by a punitive intent, where the resentencing proceedings resulted in imposition of exactly the same sentence as the court had originally imposed, rather than the considerably longer sentence that the government wanted.
Turning to the defendant's right to be present at imposition of sentence, that right has been strictly construed by the courts. Indeed, the few Circuit Courts of Appeals to consider the question have ruled that sentencing via video conference violates the "presence" requirement of Rule 43. See United States v. Torres-Palma, 290 F.3d 1244, 1248 (10th Cir.2002) ("[V]ideo conferencing for sentencing is not within the scope of a district court's discretion."); United States v. Lawrence, 248 F.3d 300, 301 (4th Cir.2001) (reaching the same conclusion); United States v. Navarro, 169 F.3d 228, 239 (5th Cir.1999) (reaching the same conclusion). Nevertheless, "the right to be present at one's sentencing `does not translate into a right to be present whenever judicial action modifying a sentence is taken.'" Parrish, 427 F.3d at 1347 (quoting United States v. Jackson, 923 F.2d 1494, 1496 (11th Cir. 1991)). Also, a defendant in a non-capital case can waive this right, and a disruptive defendant can forfeit it. See United States v. Alvarez-Pineda, 258 F.3d 1230, 1241 n. 8 (10th Cir.2001) (citing then FED. R.CRIM.P. 43(b), which is now FED. R.CRIM.P. 43(c)).
There is no suggestion here that the defendant forfeited her right to be present at the imposition of her sentence. See id.; see also FED.R.CRIM.P. 43(c)(1)(C). Nor is the defendant "voluntarily absent," because she "absconded" prior to the imposition of sentence. See Lawrence, 248 F.3d at 305 (identifying "absconding" as one circumstance that satisfies the "voluntary absence" condition of then Rule 43(b)(3), now Rule 43(c)(1)(C)). On the other hand, this case does fit the "voluntary absence" condition in the sense of a defendant who makes a "knowing and understanding waiver" of her presence at the imposition of sentence. See id. at 304 ("voluntariness" within the meaning of the waiver provisions of Rule 43 includes a "knowing and understanding waiver" of the right to be present, citing Ricketts v. Adamson, 483 U.S. 1, 8-11, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987)). Here, the court finds that the defendant was well aware of and understood the court's suggestion that the court take the sentencing under advisement and subsequently enter a written order imposing sentence, and was also aware and understood that the court was inviting her to make any objections she might have to that suggestion, because the court clearly stated both its suggestion and its invitation to object during the March 3, 2006, resentencing hearing. See Transcript at 6-7. The defendant just as clearly never voiced any objection to proceeding in that fashion and clearly, though implicitly, indicated her intention to waive her presence at a further proceeding to impose sentence. See Transcript at 74 (the defendant had nothing further to assert at the conclusion of the hearing, after the court had made clear at the outset of the hearing that it wished to know if any party had an objection to taking the sentencing under advisement and subsequently entering a *1114 written order imposing sentence)[2] Certainly, the defendant is now operating under the belief that her presence is not required at the imposition of sentence, where she was present at the resentencing hearing, and only the imposition of sentence was to occur by subsequent written order, because she has cited United States v. Weir, 724 F.2d 94 (8th Cir.1984), in her resistance to the government's motion for the proposition that her presence at the imposition of sentence was not required where she had been present for the resentencing hearing.[3]
Moreover, the court is not convinced that the defendant's presence at the imposition of sentence in open court would be required under the circumstances of this case, while the court is convinced that her presence at the resentencing hearing on March 3, 2006, has already satisfied the requirements and rationale of Rule 43. These matters warrant further exploration.
The defendant's presence is not required for the correction of an illegal sentence pursuant to Rule 35, correction of a clerical error in a sentence pursuant to Rule 36, or resentencing pursuant to a mandate from the appellate court to resentence the defendant to the same sentence originally imposed, while correcting other errors. Parrish, 427 at 1347-48; see also United States v. Bly, 328 F.3d 1262, 1265 (10th Cir.2003) (citing cases holding that corrective, non-discretionary increases to sentences may be summarily imposed in § 2255 proceedings to offset previously granted reductions, but generally it is a "`central principle of the criminal justice system'" that a defendant has a right to be present at sentencing) (quoting Torres-Palma, 290 F.3d at 1248). More to the point here, as the Second Circuit Court of Appeals has explained,
The law recognizes a distinction between a proceeding by which the district court corrects or changes a pre-existing sentence, and one where the district court re-enters a sentence which has been vacated or set aside by the Court of Appeals. See United States v. Suleiman, 208 F.3d 32, 40-41 (2d Cir.2000); United States v. Londono, 100 F.3d 236, 242 (2d Cir.1996); United States v. Moree, 928 F.2d 654, 655-56 (5th Cir.1991). In the former situation, we have held that a defendant need not be present; while in the latter, a defendant has a constitutional right to be present, because technically a new sentence is being imposed in place of the vacated sentence. See United States v. Johnson, 315 F.2d 714, 716-17 (2d Cir.1963) (recognizing defendant's fundamental right to be present when new sentence is imposed).
United States v. Arrous, 320 F.3d 355, 359 (2d Cir.2003). In the case before it, the Second Circuit Court of Appeals held that, "[s]ince [the defendant's] sentence has *1115 been vacated and remanded, his presence cannot be excused under Rule 43(c)." Id. at 359-60. Similarly, here, Saenz's original sentence was vacated and the case was remanded by the Court of Appeals for resentencing; thus, at least at first blush, her presence at the imposition of a new sentence would appear to be required.
However, that is not the end of the matter. The Supreme Court has held that "enlarging the sentence in the absence of the [defendant] . was so plain [an error] in light of Rule 43" that it should be dealt with even when the error has not been alleged. Bartone v. United States, 375 U.S. 52, 53, 84 S.Ct. 21, 11 L.Ed.2d 11 (1963). In this case, the court did not ultimately "enlarge" the defendant's sentence, so that this case does not involve the sort of "plain error" abhorred in Bartone. Furthermore, the Fifth Circuit Court of Appeals has held that, "`where the entire sentencing package has not been set aside, a correction of an illegal sentence does not constitute a resentencing requiring the presence of the defendant, so long as the modification does not make the sentence more onerous.'" United States v. Erwin, 277 F.3d 727, 731 (5th Cir.2001) (quoting United States v. Pineda, 988 F.2d 22, 23 (5th Cir.1993)). This is so, even if the defendant is generally entitled to be present when the district court is imposing a new sentence after the original sentence has been set aside, rather than merely modified. Id. at 731. Thus, in Erwin, the court held that the defendant was not entitled to be present for the imposition of a new sentence, after the court had reversed the defendant's conviction on one count, and the district court only reduced the sentence in light of reversal of that count. Id. Here, the Eighth Circuit Court of Appeals did not set aside "the entire sentencing package," because it left intact everything but the extent of the court's downward departure for substantial assistance. Also, the defendant's presence at the actual imposition of sentence would not be required under Erwin, because the court did not make the sentence more onerous, but instead, imposed exactly the same sentence as it had originally imposed. Id.
Finally, the court finds that the purposes of the "presence" requirement in Rule 43 have already been served here. As the Eleventh Circuit Court of Appeals has explained, "The rationale for requiring a defendant to be present at sentencing is `to ensure that at sentencinga critical stage of the proceedings against the accusedthe defendant has an opportunity to challenge the accuracy of information the sentencing judge may rely on, to argue about its reliability and the weight the information should be given, and to present any evidence in mitigation he may have.'" Parrish, 427 F.3d at 1347-48 (quoting Jackson, 923 F.2d at 1496). Similarly, the Second Circuit Court of Appeals has explained that "[t]he current rule arises out of respect for a defendant's right to be present at a sentencing proceeding, to allocute, and to respond to the definitive decision of the sentencing judge." Arrous, 320 F.3d at 360 (citing United States v. Behrens, 375 U.S. 162, 167-68, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963) (Harlan, J., concurring); United States v. Johnson, 315 F.2d 714, 717 (2d Cir.1963)). Here, the rationale identified by the Eleventh Circuit Court of Appeals has been fulfilled, because the defendant was present at the resentencing hearing on March 3, 2006, and had the opportunity at that critical stage of the proceedings to challenge the accuracy of any information presented by the government or on which the court might otherwise rely, the opportunity to argue about the reliability and weight such information should be given, and to present her mitigating evidence. Parrish, 427 F.3d at 1347-48. Moreover, the defendant's right to be present at the critical *1116 phase of sentencing has been respected, at least to the extent that her presence at the resentencing hearing on March 3, 2006, afforded her the opportunity to present or challenge information presented during the resentencing hearing and to allocute. Arrous, 320 F.3d at 360. In short, the court believes that the defendant has been fully and fairly heard on all sentencing issues. Moreover, from a due process perspective, the court cannot find that the defendant's "`presence [at the imposition of sentence in this case] would contribute to the fairness of the procedure.'" Parrish, 427 F.3d at 1347 (stating the narrower, due process standard, quoting Novaton, 271 F.3d at 998).
THEREFORE, the government's March 30, 2006, Motion For Correction Of Sentence (docket no. 57) is denied. The court will not impose upon the defendant the onerous and unnecessary burdens of returning to this forum for the imposition of sentence in open court, when she has waived her presence at the imposition of sentence and has agreed to imposition of sentence by written ruling after a thorough resentencing hearing at which she was present. The court's March 23, 2006, order imposing sentence and the March 27, 2006, Amended Judgment following from that order shall stand.
IT IS SO ORDERED.
NOTES
[1] The court also directed that the additional terms and conditions imposed in the June 9, 2004, judgment in this case should remain in full force and effect.
[2] The court could "perfect" or "confirm" the defendant's waiver by scheduling a hearing to impose sentence in open court, and if the defendant did not appear, find that she was "voluntarily absent." However, doing so would seem to the court to be an unnecessary elevation of form over substance.
[3] The court is not convinced that Weir stands for as broad a proposition as the defendant asserts. In Weir, the defendant was present at the sentencing hearing when the magistrate judge orally imposed a sentence of six months imprisonment for failure to file an income tax return, but objected to his absence when a written order of sentence was subsequently executed. Weir, 724 F.2d at 95. The Eighth Circuit Court of Appeals held that the defendant was not prejudiced, "[b]ecause the oral sentence and not the written order constitutes the actual judgment of the court." Id. In the present case, there was no oral imposition of sentence followed by a written order executing the sentence; rather, the court took the final sentence under advisement, intending to impose the sentence by written order only.
|
347 F.2d 823
CITY OF CHESTERv.William ANDERSON et al., Appellants.COMMONWEALTH OF PENNSYLVANIA,v.William ANDERSON et al., Appellants.
Nos. 15014, 15015.
United States Court of Appeals Third Circuit.
Argued April 23, 1965.Decided May 10, 1965, Rehearing Denied July 13, 1965.
Anthony G. Amsterdam, Philadelphia, (Caleb Foote, Philadelphia, Pa., on the briefs), for appellants.
Philip A. McMunigal, Jr., City Sol., City of Chester, chester, Pa. (Lawrence H. Jacobson, Asst. City Sol., City of Chester, on the briefs), for appellee City of Chester.
Vram Nedurian, Jr., Asst. Dist. Atty., Media, Pa. (Jacques H. Fox, Dist. Atty., Domenic D. Jerome, First Asst. Dist. Atty., Paul R. Sand, Asst. Dist. Atty., Media, Pa., on the briefs), for appellee Commonwealth of Pa.
Before McLAUGHLIN, STALEY and SMITH, Circuit Judges.
PER CURIAM.
1
These cases concern petitions for removal based on alleged violations of civil rights under 28 U.S.C. 1443(1) and (2).1 In this court appellants abandoned their theory that 'by reason of public hostility, precipitous trial and other circumstances attending the state prosecutions, defendants could not obtain a fair trial in the state courts.'
2
Appellants' claim under 1443(2) is without foundation on its face. As stated in People of State of New York v. Galamison, 342 F.2d 255, 264 (2 Cir. 1965), cert. den., 85 S.Ct. 1342, April 26, 1965.
3
'A private person claiming the benefit of 1443(2) * * * must point to some law that directs or encourages him to act in a certain manner, not merely to a generalized constitutional provision that will give him a defense or to an equally general statute that may impose civil or criminal liability on persons interfering with him.'
4
Admittedly appellants cannot come within 1443(1) unless they have been denied or cannot enforce their alleged 'federally protected equal civil rights in the state courts * * *.' No showing has been made by appellants to that effect. Galamison, supra, pp. 266, 267; Rachel v. State of Georgia, 342 F.2d 336, 340 (5 Cir.1965).
5
The order of remand will be affirmed.
On Petition for Rehearing
6
Before BIGGS, Chief Judge, and McLAUGHLIN, KALODNER, STALEY, GANEY, SMITH and FREEDMAN, Circuit Judges.
7
PER CURIAM.
8
Rachel v. State of Georgia, 342 F.2d 336 (5 Cir. 1965), petition for certiorari filed 33 U.S.L. Week 3376 (5/15/65), was cited in our opinion in this case because there a claim was stated which was properly removable under Section 1443(1). In Rachel the petitioners were allegedly engaged in activities specifically protected by the 1964 Civil Rights Act and so within a law providing for equal civil rights under the removal statute. People of State of New York v. Galamison, 2 Cir., 342 F.2d 255, 268, cert. den. 380 U.S. 977, 85 S.Ct. 1342, 14 L.Ed.2d 272 (1965); see also Peacock v. City of Greenwood, Mississippi, 5 Cir. 1965, 347 F.2d 679.
9
In the appeals before us appellants assert that the First Amendment, protecting freedom of speech, is a law covering equal civil rights. They therefore contend that prosecutions resulting from their alleged exercise of that Constitutional guarantee are removable under Section 1443. Galamison does soundly hold removal in these circumstances is improper under Section 1443 (2). Galamison also plainly and rightly states that removal sought on the basis of freedom of speech is not within the '* * * laws providing for 'equal' civil rights to which 1443 is confined. * * * Congress thus recognized the existence of a special body of laws providing for equal rights distinguishable from the universal protections of the Constitution. It was these equal rights laws, which had been referred to in the removal section as enacted in 1866 and were carried forward into the Revised Statutes, that furnished a basis for removal.' Galamison, supra, 342 F.2d pp. 266-268. Nothing now presented on behalf of appellants validly controverts this. See also Peacock v. City of Greenwood, Mississippi, supra.
10
On the question involved Galamison stands strong and straight as before. The effect if any of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) on Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943) is here irrelevant.
11
The petition for rehearing is without merit and will be denied.
12
BIGGS, Chief Judge (dissenting).
13
The appellants' petition on its face states adequate grounds for removal of the State Court prosecutions to the United States District Court for the Eastern District of Pennsylvania pursuant to the provisions of 28 U.S.C. 1443(1). I agree with the position expressed by Chief Judge Tuttle in Rachel v. State of Georgia, 342 F.2d 336 (5 Cir. 1965), petition for cert. filed, 33 U.S.L. Week 3376 (5/15/65), that a state prosecution is removable to a United States district court where state statutes have been applied discriminatorily as alleged here. As I read the decision of the Court of Appeals for the Second Circuit in People of State of New York v. Galamison, 342 F.2d 255, cert. denied, 380 U.S. 977, 85 S.Ct. 1342, 14 L.Ed.2d 272 (1965), relied on in the opinion of this court, no issue arising under Section 1443(1) was adjudicated. On the contrary the Second Circuit Court of Appeals, by way of dictum, took a broad view in respect to the reach of Section 1443(1), indicating that it might be applicable under circumstances such as those presented by the instant case. See 342 F.2d at 271-272.
14
Moreover, the recent decision of the Supreme Court in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), seems to have sapped the strength of the reasoning of the Galamison decision. Cf. 342 F.2d at 269. See also Dilworth v. Riner, 343 F.2d 226 (5 Cir. 1965).
15
The appeals at bar present questions of great public importance and have not been decided heretofore by this court. The decision reached by this court seems erroneous. For the reasons stated I must respectfully dissent from the order denying rehearing before the court en banc.
16
I am authorized to state that Judge KALODNER and Judge FREEDMAN join in this dissent.
1
'1443. Civil rights cases
'Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
'(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
'(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.'
|
281 F.Supp.2d 1008 (2003)
Michael RYAN, Petitioner,
v.
Harold W. CLARKE, Director of the Nebraska Department of Correctional Services, Respondent.
No. 4:99CV3318.
United States District Court, D. Nebraska.
September 11, 2003.
*1009 *1010 *1011 *1012 Michael A. Nelsen, Hillman, Forman Law Firm, Omaha, NE, Steven E. Achelpohl, Omaha, NE, for Petitioner.
J. Kirk Brown, Attorney General's Office Nebraska, Lincoln, NE, Jon C. Bruning, Attorney General's Office Nebraska, Kimberly A. Klein, Attorney General's Office Nebraska, Lincoln, NE, for Respondent.
MEMORANDUM AND ORDER
KOPF, District Judge.
This is a death penalty habeas corpus case. It involves the most horrendous torture and sickening murder imaginable. There is not the slightest doubt about the petitioner's guilt. If any man deserves to be put to death, that man is Michael Ryan.
Michael Ryan (Ryan or the petitioner) was sentenced to death for torturing and then killing James Thimm. Ostensibly in the name of his God, and over a period of two days, Ryan and others at his direction tied and chained Thimm in a hog confinement shed; on several occasions sodomized Thimm with a shovel handle or a pick handle to the point that the man's guts ruptured; whipped and beat Thimm; shot off some of the victim's finger tips; partially skinned Thimm alive; and caused the man's bones to be broken, once using a piece of lumber and a block of wood to complete the fracture of a leg with one blow. After that, Ryan stomped Thimm to death. Although a five-year-old child, Luke Stice, was also killed a month or so earlier as the events culminating in Thimm's death boiled up, Ryan did not receive the death penalty for that crime.[1]
Pending before me is the 93-page final report and recommendation of Magistrate Judge Piester (Filing 202).[2] Following a thorough and extensive review, including an independent mental evaluation of the petitioner at a Federal Medical Center and an evidentiary hearing on the petitioner's competency, Judge Piester recommends that I deny the petition for a writ of habeas corpus.
*1013 After de novo review, I agree with Judge Piester. Given the excellent quality of his work, I fully adopt the report and recommendation. In the interests of judicial economy, I will not discuss Judge Piester's careful exposition of most of the facts and the law. I only add the following to clarify and amplify my views.
I. BACKGROUND
A. The Crime for Which the Death Penalty was Imposed
With only a few exceptions, the facts of how Ryan killed James Thimm and Luke Stice are not disputed even by Ryan. Although excruciating, a careful reading of the details of Ryan's crime is fundamental to the proper resolution of this case.
Before doing so, however, it is important to understand the defense at trial. The evidence against Ryan was overwhelming. With Thimm's mutilated body located and the subject of a thorough autopsy, testimony from cooperating eye witnesses, and physical evidence derived from a raid conducted by federal and state law enforcement agents, the prosecution's case was very strong.
While always personally contending that he was sane, Ryan's defense at trial included a claim of insanity. His two lawyers, one of whom had a lot of experience in defending first-degree murder cases,[3] decided, with Ryan's agreement, that the best, and perhaps only, way for Ryan to avoid the death penalty was to minimize Ryan's involvement in the final act that killed Thimm and, at the same time, present the defense of insanity. Ryan and the lawyers agreed that the best way to do that was to have him testify. Essentially, the defense was this: Buttressed by the testimony of the petitioner and mental health experts, Ryan did not do the specific act that killed Thimm, and, besides, no sane man could have done what Ryan was alleged to have done; even though he claimed to be sane, Ryan's own testimony and bizarre beliefs would prove him otherwise.
I next quote from the full, fair, and accurate summary of the facts presented at Ryan's jury trial for the Thimm murder as set forth by the Nebraska Supreme Court. While the quotation is very long, every word is important to the discussion which will follow:
The record shows the following. Defendant was described as the leader of a group, characterized at trial as both a religious cult and a band of criminals, living on a farm outside of Rulo, in Richardson County, Nebraska. The cult largely developed out of the teachings of Rev. James Wickstrom, the self-proclaimed leader of a group which called itself the "Posse Comitatus." See Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973). Defendant met Wickstrom at a Bible lecture in Hiawatha, Kansas.
Wickstrom's teachings centered around Anglo Saxon supremacy, the unconstitutionality of income taxes, and the coming Battle of Armageddon. Although Ryan did not agree with all of Wickstrom's teachings, particularly with regard to tax matters, Wickstrom's ideology was the catalyst that formed the Rulo cult's belief system. As a result of his involvement with the Posse Comitatus, defendant met James Haverkamp, John David Andreas, Ora Richard (Rick) *1014 Stice, and James Thimm during 1982 and 1983. In June of 1983, Ryan and some of the other members of the group met with Wickstrom at a large meeting of the Posse Comitatus in Wisconsin.
During the Hiawatha meeting, Wickstrom showed Ryan what was known as the arm test. That test was described as follows. Defendant would face a group member, who would extend his right arm out at approximately a 90 degree angle from his or her body. Defendant would then place his left hand on the member's right shoulder and place his right hand on the member's right wrist. After asking Yahweh (the name used by defendant and his group for God) a question, defendant would apply pressure to the person's right arm. If the arm dropped, the answer to the question being asked of Yahweh was "no"; if the person's arm stayed up, the answer was "yes." As time went on, others in the group used this arm test, and after awhile every aspect of the lives of the Rulo group was controlled by the use of the arm test.
Sometime in 1983, defendant began telephoning the individuals who later constituted the Rulo group with "orders from headquarters." Defendant would tell the person he called that he (defendant) had "talked to Yahweh and [the men were] supposed to go out and do some stealing...." If any of the men refused to go on these stealing raids, defendant would remind them that their families would not be safe if they angered Yahweh.
The men, in keeping with the group's plans to build a "base camp," converted the spoils of these thefts into weapons, ammunition, and clothing and began to stockpile those items in preparation for the Battle of Armageddon. These stealing raids were conducted in the states of Kansas, Missouri, and Nebraska. The thefts involved the stealing of cattle, hogs, and various large items of farm machinery and construction equipment. Many of those items, including all the stolen livestock, were sold, and the proceeds financed the stockpiling mentioned above. At the time of defendant's arrest, officers recovered stolen property with a value in excess of $120,000 at the Rulo farm.
By the summer of 1983, it was determined, through the arm test, that defendant had the spirit of the Archangel Michael. Defendant also told the group that he could communicate directly with Yahweh through his mind.
The group began to meet each Saturday to study the Bible. These meetings were conducted by defendant and were usually attended by James Haverkamp; his sisters Cheryl Gibson and Lisa Haverkamp; his mother, Maxine Haverkamp; defendant's wife, Ruth; and defendant's three children. James Haverkamp's younger brother and father would also attend, as did Thimm, Andreas, Rick Stice, Stice's children, and Stice's girlfriend.
During these meetings, defendant would read and interpret various verses of the Bible. He told the group that "the Jews added" any passages that disagreed with his teachings. During these meetings, verses of the Bible were rewritten to conform to the group's beliefs. At the conclusion of these meetings, the group would smoke marijuana.
At one of these meetings, held in Kansas, where defendant and his family then lived, defendant took Cheryl Gibson aside and told her that Yahweh wanted her to leave her husband. Defendant used the arm test to determine that in Yahweh's eyes Gibson was not married to her husband, who was "on Satan's side." Defendant also told her that if she did not stay with defendant and *1015 Ruth Ryan, her husband and children would be killed in an automobile accident.
Gibson eventually left her husband, and for a time she and her children lived with Michael and Ruth Ryan. In May of 1984, a cult service was held, with Rick Stice officiating, where defendant and Gibson were married in Yahweh's eyes.
In June of 1984, defendant told his wife, Ruth, and Gibson that Yahweh wanted them to get better acquainted by going to the Rick Stice farm outside of Rulo. During the summer of 1984, defendant, Ruth Ryan, the three Ryan children (including Dennis), Rick Stice and his three children, Cheryl Gibson and her five children, James Haverkamp, Lisa Haverkamp, and James Thimm moved to the Rulo farm. In August 1984, John David Andreas and, in October, Timothy Haverkamp, a cousin of the Haverkamps, moved to the farm. This group of 7 adult men (including Dennis Ryan), 3 adult women (Ruth Ryan, Gibson, and 15 year old Lisa Haverkamp), and 10 young children constituted the basic Rulo group. Maxine Haverkamp was a regular visitor.
In the meantime, in June of 1984, defendant officiated at the cult wedding of Rick Stice and Lisa Haverkamp, and, in August of 1984, defendant took his second cult wife by marrying Cheryl Gibson's mother, Maxine Haverkamp.
The Rulo farmstead included two trailer houses. Rick Stice was determined to be the high priest of the group, and he and Lisa Haverkamp shared a bed in the south trailer. During this period, the remainder of the group lived in the north trailer. The men slept in a large room known as the barracks, and the women and children slept in various other rooms of the north trailer.
By August of 1984, daily life on the farm was established. The women would consult Yahweh through the arm test in order to determine meal plans, including how long to boil water, and Ryan would use the arm test to find out if any members of the group needed to fast or do penance that day.
Defendant acted as the leader of the group. He would assign tasks for the day and then spend most of his time watching television. During the evenings, defendant would direct the men on stealing raids. Apparently, defendant himself did not participate in the raids.
The group believed that the Battle of Armageddon would take place in the Rulo area, since the Battle of Armageddon was also known as the "Battle of the Wheat Fields." Defendant had observed that there were several wheat fields in the area, and concluded from this that the final battle would be waged near Rulo.
Defendant gave each of the men a military title, and within a few months all of the men were generals, some having attained five star general status, with the exception of Rick Stice, the owner of the farm, who was a six star general and the high priest.
By the fall of 1984, the group had acquired over 75,000 rounds of ammunition and dozens of weapons, including several that were fully automatic. The group also stockpiled seed, charcoal, and enough food to fill a room 20 feet wide by 35 feet long.
During the later part of 1984, Stice lost the Rulo farm due to financial difficulties. The farm was purchased by James Haverkamp and Lynn Thiele, partially with money stolen from James Haverkamp's father. During this same period, defendant determined that Yahweh was angry with Rick Stice; that Stice had raped Stice's cult wife, Lisa Haverkamp; and that Stice was having *1016 "bad thoughts." It would appear that one of Stice's more serious transgressions was losing the farm. Defendant demoted Stice and moved Lisa to the north trailer, where she shared a bed with Ruth Ryan and Cheryl Gibson.
In December of 1984, defendant took Lisa Haverkamp as his third cult wife, and on June 25, 1985, Ryan took his fourth cult wife by marrying Debra Thiele, the sister of Cheryl and Lisa. By this time, defendant was considered married to Cheryl, Lisa, and Debra and to their mother, Maxine Haverkamp, and Ruth Ryan, whom he married in a conventional ceremony in about November of 1967. Maxine did not live on the farm, but would come to the farm twice a month, apparently to perform her conjugal activities.
In December of 1984, defendant announced that Lisa Haverkamp was the queen of Israel. On New Year's Eve, defendant told the group that he and Lisa had spoken to Yahweh, and Yahweh had said that there were going to be changes on the farm. After the group smoked marijuana, defendant informed them that unless the jealousy stopped the law would come and that the children would be taken away. Defendant told the group that each individual had to make a decision on whether to remain or leave the farm; that Yahweh had indicated that anyone who elected to leave would "burn in hell"; and that if an individual elected to stay, he or she would have to stay with the group forever. Defendant said that if anyone decided to stay and then left, he would "hunt [them] down and kill [them]."
During a Saturday Bible meeting, James Thimm stated that he was not sure there was a Yahweh and expressed doubts in the arm test. Rick Stice's 5 year old son, Luke Stice, also apparently had expressed doubts about Yahweh. After these incidents, in January or February of 1985, Thimm, Rick Stice, and Luke Stice were moved to the south trailer. Both Thimm and Rick Stice were demoted to "slaves," and Luke was called "dog," "mongrel," "gook," or "dogshit." During January and February, apparently as part of the changes Ryan had foretold, Rick Stice and Thimm were made responsible for most of the guard duty, washing of dishes, and care of the chickens and goats.
Evidence showed that about this time, defendant began to abuse Thimm, Rick Stice, and Luke Stice. Defendant threatened to amputate Rick Stice's penis and threatened to skin and then burn Luke Stice alive, and both Thimm and Rick Stice were forced to do calisthenics. In March, defendant instructed Thimm to have anal sex with Rick Stice, and told Thimm "to make him hurt." Defendant also forced Rick Stice to perform oral sex on his son Luke and forced Luke to perform oral sex on his father while the other men watched. Ryan told the others that Yahweh wanted these acts performed in order to humiliate Thimm and Rick and Luke Stice as punishment for their having "bad thoughts."
Luke Stice died around March 25, 1985, after defendant repeatedly shoved him, causing Luke's head to strike a cabinet. Luke was knocked unconscious the third time defendant shoved him and died sometime during the night. Luke was buried the following morning in an unmarked grave that defendant forced Rick Stice and Thimm to dig.
After Luke's death, defendant forced Rick Stice to copulate with a goat on three different occasions.
During March, defendant and Lisa Haverkamp went to Kansas City for a honeymoon. Defendant left his son Dennis and Timothy Haverkamp in charge at Rulo. While defendant was *1017 gone, Rick Stice escaped. After defendant returned, James Thimm was kept chained to the south trailer porch.
After leaving the farm, Stice began to worry about "eternal damnation" and returned to the farm after 7 days. Upon his return, defendant had both Rick Stice and Thimm kept chained to the porch of the south trailer.
On April 4, 1985, Rick Stice escaped a second time after Timothy Haverkamp had taken Stice into town on defendant's orders, so that Stice could cash his Social Security check. Stice did not return to the farm and did not contact authorities until June 26, 1985.
After Stice's escape in April, the treatment Thimm received from defendant continued to deteriorate. Thimm was forced to sleep chained to the porch, was fed small birds the men shot, and was also forced to copulate with a goat. On April 27, 1985, after being accused of poisoning a turkey, Thimm was beaten by the men and taken to the hog confinement building, where he was kept chained for the night. At this time, the adult men present on the Rulo farm were: defendant; Dennis Ryan; Timothy Haverkamp; James Haverkamp; John David Andreas; and the victim, James Thimm. Ruth Ryan, Cheryl Gibson, and Lisa Haverkamp were the adult women there, and there were nine young children.
On April 28, 1985, defendant sent Andreas out to Thimm with a bowl of granola cereal. Defendant informed the men during breakfast that "Yahweh would be pleased if [Thimm] lasted four or five days." At about mid-morning, defendant and the rest of the adult men went to the hog confinement building. Defendant instructed Thimm to disrobe and to bend over a farrowing crate.
Defendant then told Thimm that he was going to be sexually assaulted with a shovel handle. Defendant then inserted a shovel handle into a grease cartridge and told the men that Thimm had not done a good enough job with the goat and that Yahweh wanted Thimm "probed." Defendant then inserted the shovel handle about 5 or 6 inches into Thimm's rectum and "probed" Thimm for about 30 seconds. When Thimm would not stop fidgeting, defendant tied Thimm's arms to the farrowing crate with baling wire.
Defendant then informed the men that Yahweh had said that he wanted the handle inserted between 8 and 10 inches and had given defendant the order in which each man was to probe Thimm. A tape measure was then used, and the shovel handle was marked. While defendant had the handle inserted in Thimm's rectum, he told Thimm, "I ought to shove this thing up to your heart." (One of the examining pathologists testified that, in fact, the shovel handle was inserted some 2 feet into Thimm.) Each of the remaining four men then took their turns probing Thimm's rectum with the shovel handle. After Thimm screamed a couple of times, defendant kicked Thimm in the head and had furnace tape put over Thimm's mouth so that the men would not have to hear Thimm's cries.
After the probing, defendant instructed Thimm to sign his car title over to Timothy Haverkamp. Thimm did so, and apparently defendant told Timothy Haverkamp that Thimm's car was his birthday present.
Each man, beginning with defendant, probed Thimm again. During this second round of probing Thimm's rectal wall was ruptured. Defendant decided that the handle was being inserted too far and that they needed an object that was bigger around. Defendant then greased the fat end of a pick handle and inserted it into Thimm's rectum about 3 inches. After this second round of probing, *1018 the men left to do some chores and left Thimm chained in the hog confinement shed.
That afternoon defendant told the men that Thimm had not been punished enough. The men returned to the hog confinement building, and Thimm was removed from the farrowing crate and bound to an overhead auger. Each of the five men then gave Thimm 15 lashes with a leather whip. Defendant began the whipping, and with each lash one of the cult members' names was called out. During this whipping Thimm said, "I'm sorry, Yahweh, please forgive me what I've done. Please stop this." Whereupon defendant said, "Well, you don't need to worry about that, because Yahweh's given up on you. You don't have any hope any more."
After this whipping Thimm was untied, given his sleeping bag, and chained up for the night.
During breakfast of the following morning (April 29, 1985), defendant told the men that Thimm had still not been punished enough. The men returned to the hog confinement building, and Thimm was again tied to an overhead auger. Beginning with defendant, each man gave Thimm 15 lashes with the leather whip.
After Thimm had received 75 lashes, defendant said that Thimm had still not received enough punishment. Thimm was forced to lie with his freshly whipped back on the floor. Thimm was then bound to a pipe, and each of the five men lashed Thimm's chest and stomach 15 times.
Defendant then had Thimm's left hand placed and bound palm up on a block of wood. Thimm began to moan, and defendant told him things would only get worse if he did not shut up. Defendant then shot one of Thimm's fingertips off with a pistol. Michael Ryan then instructed each man to shoot off one of Thimm's remaining left hand fingers and his thumb.
After the men had shot off Thimm's fingers, they returned to the north trailer for lunch. At lunch defendant told the men that Yahweh wanted Thimm dead by that afternoon. The men returned to the hog shed; defendant told Andreas to disk over the field to prepare an area to bury Thimm and told Andreas that he should go say goodbye to his friend James Thimm. When Andreas said goodbye, Thimm was still alive and able to say that he was "sorry."
Defendant then kicked and broke Thimm's arm and told Thimm that he was going to skin a part of him. Defendant put on a pair of yellow kitchen gloves and used a razor blade to make incisions in Thimm's leg, and then used a pliers to pull off strips of Thimm's skin. Thimm was still alive at the time. Defendant then told Dennis Ryan that he could break one of Thimm's legs. Dennis took a rough-cut 2 by 4 board about 7 feet long and proceeded to strike Thimm's leg in the knee area until Thimm's leg broke. Defendant told Dennis Ryan and Timothy Haverkamp that there was an easier way to break a leg. Defendant then placed a block of wood under Thimm's leg and told Timothy Haverkamp to hit Thimm's leg with the 2 by 4. Timothy Haverkamp hit the leg once and it broke.
Defendant then bent down and asked Thimm if he thought Yahweh meant business. Thimm was alive at this time. Defendant then said, "I'll cave his chest in.... That's sure to kill him." Defendant then proceeded to stomp on Thimm's chest with his cowboy boots.
Defendant then had James Haverkamp get Thimm's sleeping bag. Timothy Haverkamp testified that Thimm was dead before James Haverkamp returned with the sleeping bag. Defendant placed Thimm's body and clothing *1019 into the sleeping bag. Three or four hours later, defendant told the men that Yahweh wanted the grave to be "six foot long by three foot wide and six foot deep." The men dug the grave. Thimm's body was placed in the unmarked grave, and defendant told Timothy Haverkamp to shoot Thimm's body in the head so it would look like an execution. After Thimm's body had been shot in the head, it was covered with dirt.
An autopsy of the body was conducted for the State by George Gamel, M.D., on August 19, 1985, and by William Eckert, M.D., on behalf of the defendant, on September 3, 1985. Both autopsies revealed the following injuries: The anus was markedly dilated; the left hand's fingertips had gunshot-type injuries; the left arm was broken; both legs were fractured at the thigh level; the head had a gunshot wound, which shot had shattered the left side of the skull; there were multiple rib fractures on both the left and right sides of the chest and back; a blunt object had been inserted far up into the body cavity through the anus, causing damage to the liver; the colon was torn; linear bruises were on the body; and skin had been stripped from one of the legs. The victim's wrists and ankles were still bound with baling wire. The only disagreement between Drs. Gamel and Eckert was whether the victim's penis and scrotum had been cut away or had decomposed. Both pathologists reported that the cause of death was multiple traumatic injuries. Dr. Gamel testified the tear in the colon, the "whipping-like injuries," the gunshot wound to the head, the shock from the broken legs, and the crushed chest were all capable of causing the victim's death independently.
On June 25, 1985, James Haverkamp and Andreas were apprehended while attempting to return to the Rulo farm with a sprayer rig stolen in Kansas. While incarcerated, these men gave law enforcement officials information that was used to secure a search warrant. A team of law enforcement officers composed of FBI agents, Bureau of Alcohol, Tobacco, and Firearms agents, Nebraska State Patrol officers and investigators, and Richardson County sheriff's personnel, assisted by James Haverkamp and Andreas, searched the Rulo farm on August 17 and 18, 1985. On August 18, 1985, James Thimm's nude, partially decomposed body was found, and on September 25, 1985, the defendant was charged with Thimm's murder.
The foregoing facts were testified to by each of the five men involved in the murder. James Haverkamp, Timothy Haverkamp, John David Andreas, Dennis Ryan, and defendant himself each testified, in detail, as to the specific instances of probing, whipping, shooting, kicking, and beating. There is surprising agreement in the detailed facts related by each man.
Defendant's testimony is reflected in 291 pages of the record herein.[4] He sets out his participation in the horrifying acts committed on Thimm and does not deny that the testimony of the other four criminals is generally true. In his testimony, defendant made the following points as to the testimony of the others, setting out his disagreements with the testimony of the other four. Defendant testified that James Haverkamp was the instigator of most of the thefts, that defendant did not force Andreas to go to the Rulo farm, that the victim and Andreas were not best friends, that defendant *1020 did not always lead the Bible studies, that Cheryl Gibson testified against defendant only because she was threatened by the FBI, that defendant did not want to steal, that defendant was tired of the people on the farm and wanted to leave, that Lisa Haverkamp had more power than defendant, that Rick Stice was responsible for the abuse of his son Luke, that it was not defendant's idea for Stice and Thimm to have homosexual relations, and that defendant tried to stop the homosexual activities.
The denials, of course, were as to essentially peripheral activities at the farm. As to the murder incident itself, defendant did not deny and, indeed, specifically testified to the torture itself and to Thimm's death. Defendant did testify, in contradiction to the testimony of others, as to some specific instances. Defendant testified that Yahweh, not defendant, had Thimm chained in the hog shed; that Thimm agreed to his torture; that defendant did not kick Thimm in the head; that Yahweh would not allow the group to drive Thimm off the farm; that Timothy Haverkamp "tore" Thimm open while probing him; that defendant did not stomp on Thimm's chest with his boots; that Andreas and James Haverkamp stomped on Thimm's chest, and Thimm was not breathing after this; that defendant told the group to leave Thimm alone; and that James Haverkamp had the idea of shooting Thimm's fingers off.
Defendant further testified that everyone came to the Rulo farm of their own free will and that he, the defendant, did not intend to kill Thimm.
State v. Ryan, 233 Neb. 74, 444 N.W.2d 610, 617-23 (1989) (Ryan I).
B. Procedural History
1. Conviction, Sentencing, and Direct Appeal
April 10, 1986. Ryan is convicted of first-degree murder for killing James Thimm.
October 16, 1986. Ryan is sentenced to death by District Judge Robert T. Finn, who presided over Ryan's trial in the District Court of Richardson County, Nebraska.
August 11, 1989. The Nebraska Supreme Court, after considering 60 assignments of error, affirms Ryan's conviction and sentence. See State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989) (Ryan I).[5]
February 15, 1990. The Nebraska Supreme Court denies Ryan's motion for rehearing.
*1021 October 1, 1990. The United States Supreme Court denies Ryan's petition for writ of certiorari. Ryan v. Nebraska, 498 U.S. 881, 111 S.Ct. 216, 112 L.Ed.2d 176 (1990).
2. First Post-Conviction Relief Proceeding
October 19, 1990. Ryan files a motion for post-conviction relief in the District Court of Richardson County, Nebraska, which subsequently is referred to retired District Judge Dewayne Wolf.[6]
July 21, 1995. The Nebraska Supreme Court affirms Judge Wolf's denial of post-conviction relief. State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995) (Ryan II).[7]
September 27, 1995. The Nebraska Supreme Court denies Ryan's motion for rehearing.
*1022 3. First Habeas Corpus Proceeding
November 17, 1995. Ryan files a pro se petition for writ of habeas corpus in this court. (Ryan v. Hopkins, Case No. 4:CV95-3391; Box 10, Filing 1.)
April 1, 1996. Ryan, through his court-appointed counsel, files an amended petition for writ of habeas corpus. The amended petition contains 14 counts or claims.[8] (Box 10, Filing 24.)
May 21, 1996. Ryan, through counsel, files a motion for leave to file a second amended petition to assert a new claim that Judge Finn participated in an ex parte communication with members of James Thimm's family, thereby violating Ryan's rights under the Due Process Clause of the Fourteenth Amendment.[9] (Box 10, Filing 32.)
July 31, 1996. Judge Piester, in considering Ryan's motion for leave to amend, finds (1) that the restrictions imposed by 28 U.S.C. § 2266(b)(3)(B)[10] do not apply because Nebraska is not in compliance with the requirements of § 2261 for appointment of counsel, (2) that the amendment is not precluded by "undue delay," (3) that although the legal basis for the proposed new claim was fairly presented to the Nebraska Supreme Court, the factual bases for the claim were not, (4) that the "arguable factual commonality" exception to the fair presentment requirement should not be applied, (5) that it is unclear whether there are any non-futile state court remedies available by which to pursue the claim, and (6) that, absent a waiver of any exhaustion requirement by the respondent, Ryan will be given the option of either withdrawing the motion for leave to amend or else dismissing the action without prejudice, so as to permit the proposed new claim to be presented to the state courts.[11] (Box 10, Filing 48.)
August 15, 1996. The respondent states that he is not prepared to waive *1023 exhaustion of any of Ryan's claims, and suggests that the question of whether Ryan has any state court remedies available should be certified to the Nebraska Supreme Court. (Box 10, Filing 50.)
September 4, 1996. The respondent states that if the court does not certify the question of availability of state court remedies, he is prepared to waive exhaustion with respect to five claims, including three claims that concern Ryan's competence, an Eighth Amendment claim concerning the length of time Ryan's death sentence has been pending, and the proposed new claim concerning the ex parte communication with James Thimm's family. It is further stated, however, that the respondent does not waive any objection regarding the propriety of a Rule 8 evidentiary hearing on such claims. (Box 10, Filing 66.)
October 18, 1996. Judge Piester denies the respondent's request to certify to the Nebraska Supreme Court the question of availability of state court remedies, denies Ryan's motion for leave to file a second amended complaint, and directs Ryan to make an election under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), of whether to proceed on the first amended petition or to dismiss the action. (Box 10, Filing 80.)
October 29, 1996. Ryan moves to dismiss his petition without prejudice. (Box 10, Filing 83.)
October 31, 1996. I grant Ryan's motion to dismiss. (Box 10, Filing 85.)
4. Second Post-Conviction Relief Proceeding
November 7, 1996. Ryan files a second motion for post-conviction relief in the District Court of Richardson County, Nebraska, which subsequently is referred to District Judge Gerald R. Moran.
September 10, 1999. The Nebraska Supreme Court affirms Judge Moran's denial of post-conviction relief. State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999) (Ryan III).[12]
*1024 May 1, 2000. The United States Supreme Court denies Ryan's petition for writ of certiorari. Ryan v. Nebraska, 529 U.S. 1100, 120 S.Ct. 1836, 146 L.Ed.2d 780 (2000).
5. Second Habeas Corpus Proceeding
December 10, 1999. Ryan files his petition for writ of habeas corpus. Seventeen counts are alleged. (See discussion infra, at 26-33.) (Filing 1.)
February 17, 2000. The respondent answers. It is alleged that all claims except Claim III (regarding Judge Finn's ex parte meeting with members of James Thimm's family) are barred by the applicable statute of limitations, and that procedural default bars consideration of Claims VII, VIII, and IX (regarding Ryan's competence), Claim XIV (regarding the existence of mitigating circumstance 2(g)), Claim XV (regarding proportionality review), Claim XVI (an Eighth Amendment claim regarding the lapse of time since Ryan's death sentence was imposed), and Claim XVII (an Eighth Amendment claim regarding death by electrocution). (Filing 13.)
February 23, 2000. The respondent files the state court records. (Filing 15.)
March 22, 2000. Ryan moves to expand the record to include all federal court records in his previous habeas corpus case, No. 4:CV95-3391, and to conduct an evidentiary hearing regarding his competence claims and his claim that death by electrocution is cruel and unusual punishment. (Filing 20.)
March 30, 2000. Ryan moves for certain discovery regarding the issue of death by electrocution. (Filing 22.)
May 5, 2000. Judge Piester orders, pursuant to the parties' joint stipulation, that all documents in Case No. 4:CV95-3391 shall be part of the record in this case. (Filings 28 & 29.)
May 18, 2000. Ryan moves for a stay of proceedings pending completion of a study by the Nebraska Legislature concerning the death penalty. (Filing 32.)
*1025 June 2, 2000. Judge Piester denies Ryan's motion for stay of proceedings. (Filings 32 & 39.)
July 18, 2000. On appeal by Ryan, I sustain Judge Piester's order denying a stay of proceedings. (Filings 39, 42 & 45.)
August 22, 2000. Judge Piester enters a memorandum and order that (1) finds this case to be a continuation of the 1995 habeas corpus proceeding, such that the AEDPA's one-year statute of limitations, 28 U.S.C. § 2244(d)(1), does not apply; (2) finds six claims to be procedurally defaulted, including the competence claims for which an evidentiary hearing was requested; and (3) denies Ryan's motions for an evidentiary hearing and for discovery on the issue of death by electrocution. (Filings 20, 22 & 49.)
September 6, 2000. Ryan moves for leave to amend his petition, following the issuance of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to include a claim that Nebraska's sentencing scheme for the death penalty is unconstitutional. (Filing 51.)
September 11, 2000. Ryan appeals Judge Piester's findings of procedural default and denial of the evidentiary hearing and discovery. (Filings 49 & 54.)
September 14, 2000. Judge Piester denies Ryan leave to amend, finding that the proposed amendment would be futile. (Filings 51 & 55.)
September 25, 2000. Ryan appeals Judge Piester's denial of leave to amend. (Filings 55 & 57.)
November 22, 2000. I deny Ryan's most recent appeal and sustain Judge Piester's order denying him leave to amend by observing that the majority opinion in Apprendi "does not overrule or indicate disapproval of the holding in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), that the Constitution does not require a jury to determine the existence of aggravating and mitigating circumstances in capital cases." (parallel citations omitted).[13] (Filings 55, 57 & 68.)
December 29, 2000. I sustain Ryan's objections with respect to Judge Piester's finding that his competence claims are barred by the procedural default doctrine, and I direct Judge Piester to prepare a report and recommendation regarding these three claims; in all other respects, I deny Ryan's appeal and affirm Judge Piester's order, including his finding that three other claims are barred by procedural default and his refusal to permit discovery or an evidentiary hearing on the issue of death by electrocution.[14] (Filings 49, 54 & 74.)
February 13, 2001. Judge Piester informs the parties that he will defer consideration of the procedural default issues on the competence claims until he has fully considered those claims on the merits, and he directs the respondent to brief those claims and also the request for an evidentiary hearing. (Filings 20 & 81.)
May 4, 2001. Judge Piester grants Ryan's request for an evidentiary hearing and states that, in addition to addressing whether Ryan can show "prejudice" to excuse the procedural default, he will consider whether Ryan's alleged incompetence was a "cause" of the default. (Filings 20 & 89.)
May 17, 2001. Judge Piester clarifies that he intends to take evidence on both *1026 the "cause" and "prejudice" procedural default issues. (Filing 96.)
August 16, 2001. Judge Piester opens the evidentiary hearing. (Filing 120.)
November 21, 2001. Judge Piester, on his own motion, directs that Ryan shall be transported to the Federal Medical Center in Springfield, Missouri, to undergo a comprehensive psychiatric examination to determine his competency to proceed on his own behalf or to waive any claims he may have in this habeas corpus proceeding, and, to the extent possible, his competency during the acts of which he stands convicted, during the trial, and during the post-conviction proceedings. (Filing 134.)
December 10, 2001. On an appeal by Ryan, I sustain Judge Piester's order. The appeal did not seek to prevent the court-ordered psychiatric examination, but, rather, objected to certain statements that Judge Piester made in an accompanying memorandum. (Filings 134 & 136.)
January 18, 2002. Judge Piester clarifies his memorandum and order regarding the psychiatric examination. (Filings 134 & 146.)
July 31August 1, 2002. Judge Piester concludes the evidentiary hearing. (Filings 183 & 186.)
December 13, 2002. Following briefing, Judge Piester issues his report and recommendation. (Filing 202.)
December 20, 2002. Ryan files objections to the report and recommendation. (Filing 203.)
February 14, 2003. Ryan files his supporting brief. (Filing 211.)
June 27, 2003. The respondent files his opposing brief. (Filing 243.)
August 27, 2003. Ryan files his reply brief, and the matter is deemed submitted. (Filing 247.)
C. Ryan's Claims and Judge Piester's Recommendations Regarding Those Claims
As a preliminary matter, Judge Piester finds that Ryan is and has been competent during these federal habeas corpus proceedings. (Filing 202, at 8-31.) He also finds that Ryan was competent at the time of trial, and thus cannot demonstrate prejudice to excuse his procedural default regarding the competence claims. (Filing 202, at 34-49.) Finally, he finds that Ryan was competent during his direct appeal and during the two state court proceedings for post-conviction relief, such that it cannot be claimed that any procedural default was caused by incompetency. (Filing 202, at 49-50.) Each of Ryan's 17 claims, and Judge Piester's recommended disposition thereof, is summarized below.
1. Claim I (Trial Court Misconduct)
It is alleged that during much of Ryan's trial testimony Judge Finn turned his back to Ryan. Ryan claims that such conduct violated his right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments.
Judge Piester recommends that Claim I be denied because the Nebraska Supreme Court determined in Ryan I, and reiterated in Ryan II and Ryan III, that Judge Finn's conduct was not prejudicial, and such determination is entitled to deference under 28 U.S.C. § 2254(d). (Filing 202, at 52-67.)
2. Claim II (Trial Court Misconduct)
It is alleged that Judge Finn, who was also the sole sentencing judge, had an ex parte communication with members of the Luke Stice family prior to sentencing Ryan to death. Ryan claims that such ex parte communication violated his right to due process under the Fourteenth Amendment.
*1027 Judge Piester recommends that Claim II be denied because Judge Moran found, and the Nebraska Supreme Court affirmed his finding in Ryan III, that there was no judicial bias or prejudice to Ryan. (Filing 202, at 67-78.)
3. Claim III (Trial Court Misconduct)
It is alleged that Judge Finn also participated in an ex parte communication with members of the James Thimm family prior to sentencing. It is again claimed that Ryan's due process rights were violated.
Judge Piester recommends that Claim III be denied, essentially for the same reasons as Claim II. (Filing 202, at 67-78.)
4. Claim IV (Ineffective Assistance of Counsel)
It is alleged that Ryan's trial counsel failed to investigate and to develop the record regarding Judge Finn's ex parte communications with members of the Luke Stice and James Thimm families. Ryan claims that he was thus denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments, and due process of law as guaranteed by the Fourteenth Amendment and by Article I, section 2, of the Nebraska Constitution.[15]
Judge Piester treats Claim IV as abandoned under NELR 39.2,[16] due to Ryan's failure to discuss the claim in his brief on the merits. (Filing 202, at 78.)
5. Claim v. (Trial Court Misconduct)
It is alleged that Judge Finn abused his discretion in failing to convene a three-judge sentencing panel. Ryan claims a denial of due process under the Fourteenth Amendment.
As with Claim IV, Judge Piester treats Claim V as abandoned under NELR 39.2. (Filing 202, at 78.)
6. Claim VI (Cumulative Trial Court Misconduct)
It is claimed that the cumulative effect of Judge Finn's alleged misconduct was to deny Ryan due process of law under the Fourteenth Amendment.
Judge Piester recommends that Claim VI be denied because the "cumulative effect" of trial errors or attorney errors is not a recognized ground for habeas relief, and because there is no merit to Ryan's further argument that he was denied a fair trial as a result of Judge Finn repeatedly disparaging his trial counsel and his defense before the jury. (Filing 202, at 79-81.)
7. Claim VII (Ineffective Assistance of Counsel)
It is alleged that Ryan's trial counsel failed to request an evidentiary hearing or to move for a judicial determination of his competency to stand trial. A Sixth Amendment violation is claimed.
Judge Piester recommends that Claim VII be denied because of procedural default. (Filing 202, at 49-50.)
8. Claim VIII (Fair Trial and Due Process)
It is alleged that Judge Finn should have ordered a competency hearing sua sponte. Ryan claims that without such a hearing he was denied a fair trial and due process under the Sixth and Fourteenth Amendments.
Judge Piester recommends that Claim VIII be denied because of procedural default. (Filing 202, at 49-50.)
*1028 9. Claim IX (Competency to Stand Trial)
It is alleged that Ryan was not competent to stand trial. This claim is made under the Sixth and Fourteenth Amendments.
Judge Piester recommends that Claim IX be denied because of procedural default. (Filing 202, at 49-50.)
10. Claim X (Ineffective Assistance of Counsel)
It is alleged that Ryan's trial counsel failed to advise him adequately of the adverse consequences of a joint trial with his son, Dennis Ryan, or to object to the joint trial. A Sixth Amendment claim is presented.
Judge Piester recommends that Claim X be denied because the state courts found in Ryan II and Ryan III that the performance of Ryan's trial counsel was not deficient, and because Ryan cannot claim prejudice based on the alleged failings of counsel. (Filing 202, at 81-86.)
11. Claim XI (Errors in Sentencing)
It is alleged that aggravating circumstance 1(d) under Neb.Rev.Stat. § 29-2523 is unconstitutionally vague and overbroad, either on its face or as applied. This claim is made under the Eighth and Fourteenth Amendments.
Judge Piester recommends that Claim XI be denied as a matter of law. (Filing 202, at 86-88.)
12. Claim XII (Errors in Sentencing)
It is alleged that Judge Finn's consideration of the "unconstitutional portion" of aggravating circumstance 1(d) was not harmless error.[17] This claim also is made under the Eighth and Fourteenth Amendments.
Judge Piester recommends that Claim XII be denied as a matter of law. (Filing 202, at 86-88.)
13. Claim XIII (Errors in Sentencing)
It is alleged that aggravating circumstance 1(a) under Neb.Rev.Stat. § 29-2523 is unconstitutionally vague and overbroad as applied to Ryan because the Nebraska Supreme Court interpreted it so as to include serious assaultive or terrorizing acts committed by others and "vicariously" imputed to Ryan. The claim is made under the Eighth and Fourteenth Amendments.
Judge Piester finds that the record supports the facts that were relied upon by the sentencing judge, and he recommends that Claim XIII be denied as a matter of law. (Filing 202, at 89-92.)
14. Claim XIV (Errors in Sentencing)
It is alleged that Judge Finn erred in failing to find the existence of mitigating circumstance 2(g) under Neb.Rev.Stat. § 29-2523, involving diminished capacity. Such failure is claimed to have violated Ryan's rights under the Eighth and Fourteenth Amendments.
Judge Piester recommends that Claim XIV be denied because of procedural default. (Filing 202, at 50.) Judge Piester also made a finding to this effect on August 22, 2000, which I affirmed on appeal. (Filings 49 & 74.)
15. Claim XV (Lack of Proportionality Review)
It is alleged that Ryan was deprived of his right to a statutorily mandated proportionality review of sentences imposed in criminal homicide cases. This claim once again is made under the Eighth and Fourteenth Amendments.
*1029 Judge Piester recommends that Claim XV be denied because of procedural default. (Filing 202, at 50.) Judge Piester also made a finding to this effect on August 22, 2000, which I affirmed on appeal. (Filings 49 & 74.)
16. Claim XVI (Cruel and Unusual Punishment)
It is alleged that Ryan has been forced to await death by electrocution since his sentencing in 1986. This circumstance is claimed to violate Ryan's rights under the Eighth Amendment.
Judge Piester recommends that Claim XVI be denied because of procedural default. (Filing 202, at 49-50.)[18] Once again, Judge Piester also made a finding to this effect on August 22, 2000, which I affirmed on appeal. (Filings 49 & 74.)
17. Claim XVII (Cruel and Unusual Punishment)
Finally, it is claimed that death by means of electrocution is cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments.[19]
Judge Piester treats Claim XVII as abandoned under NELR 39.2, due to Ryan's failure to discuss the claim in his brief on the merits. (Filing 202, at 93.)
II. ANALYSIS
As noted before, I need not discuss most of Judge Piester's careful findings of fact and conclusions of law. They are correct and well stated, and except for several additional comments, it is enough that I now adopt them and the recommended decision as my own.
A. Applying the AEDPA Standards of Review
Ryan loses many of his claims in this court because Judge Piester correctly found that we must give deference to the findings of fact and conclusions of law of the Nebraska courts, as required by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-32, 110 Stat. 1214 (AEDPA). AEDPA, effective April 24, 1996, increased the traditional deference federal courts give when reviewing the decisions of state courts in habeas corpus cases. Weaver v. Bowersox, 241 F.3d 1024, 1029 (8th Cir.2001) (discussing and applying the AEDPA deference standards). Ryan contends that it is both legally wrong and unfair to apply the increased AEDPA deference standards to him. On both counts, I disagree.
Under AEDPA, and for many cases, the factual findings and legal conclusions of state courts are nearly "bullet proof." For factual decisions, and subject to rebuttal by the petitioner, I must presume the factual decision is correct, see 28 U.S.C. § 2254(e)(1), and overturn such a factual decision only if it was unreasonable based upon the evidence presented in the state court proceedings, see 28 U.S.C. § 2254(d)(2). For legal decisions, the decision of the state court must stand unless it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States...." 28 U.S.C. § 2254(d)(1).
A state law decision is "contrary to" the law as determined by the Supreme Court if it applies a legal rule that contradicts the Supreme Court's prior holdings or if it reaches a different result from one of the Court's cases despite confronting indistinguishable *1030 facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state law decision involves an "unreasonable application" of the law as determined by the Supreme Court if the state court identifies the correct governing legal principle from the Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id. at 407-08, 120 S.Ct. 1495.
The AEDPA standards of deference have overarching significance to Ryan. As Judge Piester fully explains in his report and recommendation, the Nebraska courts approached Ryan's claims very carefully and not unreasonably as to both questions of fact and questions of federal law. See, for example, Judge Piester's thorough discussion of this topic regarding Ryan's claim that Judge Finn, by turning his back to Ryan during some of his trial testimony, violated the Due Process Clause of the Fourteenth Amendment because that conduct allegedly denied Ryan a fair trial by a fair judge. (Filing 202, at 56 & 63.) So, even if I would otherwise find or conclude that the Nebraska courts were conceivably wrong either factually or legally (and I do not), I would still be required to deny Ryan relief since he is unable to overcome the AEDPA deference standards as to any claims reviewed by the Nebraska courts.
I now turn to Ryan's argument that he should be relieved of the AEDPA standards of deference. Initially, he argues that the law does not require application of AEDPA to his case because, despite the fact that he started this case after AEDPA, he initiated the federal habeas process in an earlier suit before AEDPA was enacted. Further, he points out that he only dismissed the earlier action for the purpose of exhausting his state court remedies. Then, he argues, much like an equitable tolling defense to a statute of limitations assertion, that Nebraska should not be able to take advantage of his efforts to exhaust all his claims and then apply AEDPA to him because he would not have needed to exhaust his claims if Judge Finn had been honest. That is, Ryan claims that application of the AEDPA standards of review to his case is unfair.
Regarding Ryan's legal argument, the law is squarely against him. He clearly filed this action after AEDPA even though it is true that before AEDPA he had filed a habeas petition that he dismissed without prejudice so that he could exhaust his state court remedies. The Eighth Circuit has held that the AEDPA deference standards apply in this precise situation. Weaver, 241 F.3d at 1029 (AEDPA standards of deference applied to habeas petition filed after its effective date even though the petitioner, before the effective date, filed a habeas petition which was dismissed without prejudice for failure to exhaust state remedies, and despite contention that the second filing constituted a mere continuation of the first filing). Despite Ryan's suggestion that a better rule has been articulated in the Ninth Circuit, I am not free to disregard my Court of Appeals' decision in Weaver.[20]
*1031 I turn next to Ryan's fairness argument. Ryan argues that he would never have had to dismiss his earlier federal suit if Judge Finn had not signed an untrue affidavit in 1993 denying that the judge had an ex parte meeting with the Thimm family. Ryan argues, and it is undisputed (as discussed more fully later), that Judge Finn gave Ryan's former lawyer an affidavit that turned out to be in error. When Ryan's counsel in this case learned of that error, they sought and were given leave to dismiss the pending federal habeas action to pursue a claim related to Judge Finn's meeting with the Thimm family. It is also true that the State of Nebraska, while agreeing to waive exhaustion of that issue in this court, would not stipulate to a federal court evidentiary hearing to make a record on Finn's conduct. Thus, Ryan argues that "[b]ut for Judge Finn's concealment and the State's litigation tactics, no claim could be made now that AEDPA governs the standard of review here." (Petr's Initial Br. (Filing 211, at 10).)
This "fairness" argument fails for at least three reasons. First, as I later independently find and conclude, while Judge Finn was mistaken in his affidavit, his mistake was not intentional. (See infra note 41.) Thus, Ryan's "fairness" argument is substantially weakened as there was no intentional concealment. Second, there is no "unfairness" in applying AEDPA deference standards to Ryan no matter the reason for Ryan's decision to dismiss his earlier case. Deference standards, of one sort or the other, have long been a principle of federal habeas corpus jurisprudence. See, e.g., Brown v. Allen, 344 U.S. 443, 465, 73 S.Ct. 397, 97 L.Ed. 469 (1953) ("As the state and federal courts have the same responsibilities to protect persons from violation of their constitutional rights, we conclude that a federal district court may decline, without a rehearing of the facts, to award a writ of habeas corpus to a state prisoner where the legality of such detention has been determined, on the facts presented, by the highest state court with jurisdiction ....")(partially abrogated on other grounds by 28 U.S.C. § 2254(d) and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Clearly, Ryan cannot suffer any legally cognizable prejudice by expansion of the venerable and salutary principle of deference. Thirdly, and most importantly, there is no precedent to support Ryan's argument that equitable tolling or equitable estoppel notions should be applied to AEDPA standards-of-review questions.
In summary, Judge Piester was correct in applying the AEDPA standards of review to this case. It was not unfair to do so. Judge Piester was also correct in each and every particular application of those deference standards to Ryan's claims.
B. Independent Review of the Competency and Ex Parte Meeting Claims
Notwithstanding my agreement with Judge Piester regarding questions of procedural default and AEDPA standards of deference, I have also independently reviewed the merits of two categories of claims asserted by Ryan as if the procedural default and AEDPA rules did not apply. I have done so out of an abundance of caution because these two categories of claims are the essence of whether Ryan received the fundamental fairness that is required by the Due Process Clause of the Fourteenth Amendment.
1. The Competency Claims
Most basically, Ryan's counsel argues that the petitioner sincerely held and *1032 now holds fanatical religious beliefs, and those strange notions (like God speaking directly to him) controlled Ryan's every legal decision up to and including the legal strategy being pursued in this case. Thus, for example, "[i]t is incomprehensible how he could have made a `rational' decision whether to testify or not, or rationally [make] other trial decisions if he thought, as his own counsel and everybody else believed he thought (except Dr. Kenney), that Yahweh [God] was dictating everything he did." (Petr's Initial Br. (Filing 211, at 48).)
To start with, the jury rejected Ryan's insanity plea and the views of his mental health experts in that regard, and Ryan has always personally claimed that he is and was competent and never insane. But assuming for the moment that Ryan truly held and now holds each and every one of the extreme beliefs attributed to him by his able counsel,[21] and further assuming that those beliefs truly controlled his legal decision-making process, Ryan was not and is not now incompetent. As repeated objective psychological testing of Ryan continually proved,[22] and world events like "9/11" starkly corroborate, the pursuit of fanatical religious beliefsquite often at the explicit command of the true believer's Godis not the same as incompetence. See, e.g., Ford v. Bowersox, 256 F.3d 783, 787 (8th Cir.) (despite the fact that the evidence revealed that (1) petitioner's mother and another fellow parishioner told him they had visions of his acquittal, (2) the petitioner also received a vision directing him to fast for 35 days and he would be delivered, (3) from these visions, the petitioner developed the theory that God's angels would assure his acquittal, and (4) in a symbolic act of devotion, the petitioner stood on his Bible in the holding area outside the courtroom, following the Bible's directive to "stand on [God's] word," the Court of Appeals declined to label petitioner's deeply held religious beliefs "preposterous," "irrational," or "bizarre," and instead held that he was competent to reject a plea agreement in a murder case), cert. denied, 534 U.S. 1068, 122 S.Ct. 671, 151 L.Ed.2d 584 (2001). One can be both odd and evil but not crazy or incompetent.
In particular, I fully agree with Dr. Christina A. Pietz, a highly trained and very experienced clinical psychologist at the Federal Medical Center, who is board certified in forensic psychology and truly independent of Ryan or the State of Nebraska. After having the opportunity to see Ryan in a locked ward setting for two months, she wrote: "[I]t is my opinion that there is absolutely no evidence Mr. Ryan ever suffered from any form of psychosis or any other mental illness, or that he currently suffers from one." (Box 9, Ex. 113, at 15.)
Still further, the evidence reveals that Ryan had no trouble effectively dealing with his lawyers. As one of Ryan's former lawyers said, "what delusions [Ryan] had *1033 about Yahweh ... never seemed to interfere with our conversations or his understanding of the case or what was at stake." Ryan III, 601 N.W.2d at 481-82 (quoting from the testimony of defense lawyer Richard Goos) (Box 7 (Proceedings before Judge Moran), Vol. III, Tr. 542.)
Most importantly, there is every reason to believe Ryan quite rationally, but deceitfully, attempted to shift the blame to others for the act that ultimately killed Thimm. According to his son, who testified at one of the post-conviction proceedings, Ryan told the boy to lie at trial by blaming others for Ryan's conduct in stomping James Thimm to death in order that Ryan could avoid the death penalty:
Counsel for the State: Q. As to Michael Ryan's involvement in the death of James Thimm, what did Michael Ryan tell you to do in your testimony?
Dennis Ryan: Q. What did he say to lie about?
Counsel: Q. Yes.
Dennis Ryan: A. He said not to tell about that he was the one that was stomping, you know, doing the chest and stuff and that Jimmy and Dave did that. Just different things like that.
Counsel: Q. Correct me if I am wrong, basically what it is[,] is Michael Ryan told you not to testify about certain things he had done; is that correct?
Dennis Ryan: A. To blame it on somebody else.
Counsel: Q. Did he ever explain to you why he wanted you to do this?
Dennis Ryan: A. Because he didn't because he didn't want to get the electric chair.
(Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 380-81.)
Beyond any reasonable doubt, and regardless of the factual findings or legal conclusions of other judges, Ryan was (and is) a fanatic, but he has always been a completely competent (and deadly dangerous) one. Ryan was at all times fully able to consult with his lawyers and he had a rational understanding of both the legal process and the facts. See, e.g., Ford, 256 F.3d at 786 (a person is incompetent if he lacks a "`sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him.'") (quoting Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (in turn quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960))).
2. The Ex Parte Meeting Claims
It is undisputed that Judge Finn, the trial and lone sentencing judge, held conferences in his chambers at the courthouse with family members of Ryan's victims prior to imposing the death sentence on Ryan. This conduct, although motivated by a humanitarian instinct,[23] was improper under Nebraska law. Ryan III, 601 N.W.2d at 486 (describing a recusal rule, premised upon Nebraska Rule of Evidence 605 (concerning the testimony of a judge as a witness), that prohibits a judge from initiating or receiving an "ex parte communication"[24] concerning a "pending" or "impending" proceeding). While Judge Finn's conduct was improper under Nebraska law, it did not come close to the gravity of judicial misbehavior that is required to trigger the Due Process Clause of the *1034 Fourteenth Amendment. See, e.g., Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (in a death penalty case, the habeas petitioner stated a claim entitling him to discovery when the judge who sentenced him to death, and who was later convicted of taking bribes in other murder cases, was alleged to have had an interest in the petitioner's conviction-that is, deflecting suspicion from the judge's illegal activities.)
"[M]ost questions concerning a judge's qualifications to hear a case are not constitutional ones, because the Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, not a uniform standard." Id. at 904. Therefore, the pertinent question under the Due Process Clause is not whether Judge Finn should have met with the victims' families, but, despite these meetings, whether Ryan received "`a fair trial in a fair tribunal, ... before a judge with no actual bias against the defendant or interest in the outcome of his particular case.'" Id. (internal citation omitted). In that regard, the evidence falls far short of establishing that Finn had a "bias" against Ryan, or an "interest" in Ryan's case.
After Ryan had been found guilty by the jury of Thimm's murder, but prior to sentencing Ryan to death, Judge Finn had two meetings with family members of Ryan's two victims.[25] Condensed, the following is the core chronology of what happened:
In 1986, Ryan was convicted in two separate proceedings of the murder of James Thimm and Luke Stice. A jury found him guilty of the first-degree murder of Thimm, and shortly after that, Ryan entered a "no contest" plea to the second-degree murder of Stice. His son, Dennis Ryan, was also convicted with the petitioner in a joint jury trial for the murder of Thimm.[26]
To be specific, in April of 1986, after a jury trial, Ryan was found guilty of the first-degree murder of Thimm. As a part of the trial regarding the death of Thimm, the evidence revealed in detail how Stice died. A sentencing hearing for Ryan on the Thimm murder was set for September 15, 1986.[27]
On May 9, 1986, a sentencing hearing was held for Dennis Ryan, Ryan's son.[28] Although a juvenile, and although he was convicted by the jury of second-degree murder, Dennis Ryan was originally sentenced to life in prison for the murder of Thimm.[29] On that same day, and in the courthouse, Judge Finn met with at least two members of the Thimm family (Daneda Heppner[30] and Karen Schmidt[31]) after he sentenced Dennis Ryan. Also *1035 accompanying them to the meeting was Garnetta Butrick, Luke Stice's grandmother.[32] These family members, and Dennis Ryan's mother, Ruth Ryan, were asked by Judge Finn's bailiff if they would like to meet with the judge to talk about any questions they might have regarding the Dennis Ryan proceedings. While Dennis Ryan's mother declined, the others took the judge up on his offer. The evidence indicates that Judge Finn and these family members discussed: (1) the high costs and lawyer fees associated with the various trials and Judge Finn's view that they were excessive; (2) Michael Ryan's power over other cult members; (3) that Thimm had not been raised to believe in the kind of things practiced by the cult; (4) why more cult members were not charged; (5) why more had not been done to protect the Stice child; (6) that Judge Finn thought that none of the defendants seemed truly sorry for their actions; (7) Judge Finn's view that a life sentence usually meant that a defendant served about 14 to 15 years before becoming eligible for parole; and (8) that someone should write a book about the case, and Judge Finn offered to make the public record available to one of the family members if she decided to write about it.
On July 28, 1986, Ryan pled "no contest" to a charge of second-degree murder for the death of Luke Stice. About a month later, he was sentenced to life in prison for this crime.[33]
On August 28, 1986, Ryan's sentencing hearing for Stice's murder was held. On that same date, but probably after sentencing, Judge Finn met with members of the Stice family in the courthouse. Part of the time, the prosecuting attorney was present. Essentially, the Stice family wanted to know why the Thimm murder trial preceded the resolution of the Stice murder charge since young Stice died before Thimm, and one of the participants also had a question in regard to the "no contest" plea bargain that Ryan had entered into with the State of Nebraska regarding the death of Stice.[34]
Sentencing hearings were conducted over two days on September 15 and September 16, 1986, on the question of whether to impose the death penalty on Ryan for the Thimm murder.[35]
Judge Finn imposed the death sentence on October 16, 1986, for the murder of Thimm.[36] Among other *1036 things, Finn found that (1) the Luke Stice murder could not be used as a statutory aggravator because it occurred prior to Thimm's death, but Ryan's assaultive behavior toward Luke could be considered as a statutory aggravator along with evidence of other assaults on Richard Stice, James Thimm, a teacher, a principal, and six military police officers[37]; and (2) Ryan's torture and related abusive and humiliating treatment of Thimm before Thimm's death could be used as a statutory aggravator.[38] In mitigation, the judge found Ryan, while not insane, suffered from a mental or emotional disturbance within the meaning of Neb.Rev.Stat. § 29-2523(2)(c) ("The crime was committed while the offender was under the influence of extreme mental or emotional disturbance.")[39]
On April 27, 1993, Finn signed an affidavit prepared by one of Ryan's lawyers stating in effect that he "did not have any contacts with members of the Thimm family during the course of the proceedings involving Michael Ryan."[40] However, in 1997, Finn admitted, in testimony before Judge Moran, that such a meeting must have taken place. He explained that he continued to have no memory of the meeting, but he believed it took place because he had been shown a letter from one of the participants to the May, 1986, meeting, written contemporaneously with the meeting, in which a participant described the meeting and who was there, and part of the information contained in the letter must have come from Finn.[41]
With this background in mind, I turn to the petitioner's claims. In particular, I make three independent findings of fact or conclusions of law.
First, and independent of any of the factual findings of other judges, I find as a matter of fact, and beyond a reasonable doubt, that Judge Finn was not presented with any material information about issues pertinent to Ryan's death sentence during the Thimm or Stice family meetings that *1037 had not already been presented to Judge Finn in earlier court proceedings. Those legal proceedings were: (1) Ryan's jury trial for the Thimm murder, which trial also fully disclosed the details of the Stice murder; (2) the sentencing proceedings of the petitioner's co-defendant and son, Dennis Ryan, for the murder of Thimm; and (3) the court proceedings related to Ryan's "no contest" plea to, and life sentence for, the Stice murder.
In particular, during the meeting in May, there was no discussion about the facts surrounding Ryan's murder of Thimm. (E.g., Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 301 (Daneda Heppner: "Q. At any time during the meeting, do you remember a discussion regarding what Michael Ryan did that caused the death of James Thimm? A. No, we didn't discuss that at all. Q. Do you remember any discussion during the meeting regarding the evidence that came out during the trial? A. No, we weren't concerned with that."); Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 346 (Karen Schmidt: "Q. During the May 9th, 1986 meeting were there any discussions, to the best of your current memory, regarding the nature of the crime that had been committed by Michael Ryan? A. No.").) The same was true for the August meeting. (Box 7 (Proceedings before Judge Moran), Vol. III, Tr. 467 (Garnetta Butrick: "Q. Do you remember any discussion at all in regard to Michael Ryan and the facts surrounding the death of James Thimm? A. No.").)
In other words, what very little Finn heard at the May and August meetings with the Thimm and Stice family members that was in any way conceivably material to the question of whether Finn should impose the death penalty was no different than what Finn already knew as a result of the proper exercise of his judicial duties either as a trial or sentencing judge for Ryan or his son. Any information relayed to Finn during these meetings was, to use the vernacular, "old news."
Second, and independent of any of the factual findings of other judges, I find as a matter of fact and beyond a reasonable doubt, that nothing was said at the meetings, either by Judge Finn or the family members, which evidences any bias on Finn's part, or attempt to bias Finn on the part of the family members, relating to the critical question of whether to impose the death penalty on Ryan.
In particular, Judge Finn was never asked to express, and never expressed, any opinion about the propriety of the death penalty for Ryan during any of these meetings with the family members. Indeed, I find beyond a reasonable doubt that Judge Finn made it very plain on at least one occasion (at the beginning of the May meeting) that he could not and would not discuss the question of Ryan's sentencing for the Thimm murder. (Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 300 (Ms. Heppner: "At the very beginning of the meeting he said that he would not be able to answer any questions about Michael Ryan so he did not want us to ask any.").)
Still further, I find beyond a reasonable doubt that the Thimm and Stice family members were not asked to offer, and did not offer, an opinion on what Ryan's sentence should be for the Thimm murder. E.g., Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 302 (Ms. Heppner: "Q. During this meeting on May 9th of 1986, did you or any of the other people in attendance ever state your opinions or beliefs as to what would be an appropriate sentence for Michael Ryan? A. No, we did not."); Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 301-302 (Ms. Heppner: "[N]o one" discussed the potential sentences for Michael Ryan; "[t]hat did not *1038 come up."); Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 346 (Ms. Schmidt: "Q. During the May 9th, 1986 meeting do you have any memory of any discussions occurring regarding what, if any, sentence should be imposed on Michael Ryan? A. No."); (Box 7 (Proceedings before Judge Moran), Vol. III, Tr. 468 (Garnetta Butrick regarding the August meeting: "Q. Do you remember any discussion at that meeting regarding the sentence that Michael Ryan should receive as a result of his participation in the death of James Thimm? A. No. Q. Do you remember anyone at that meeting expressing an opinion in regard to what they believed would be an appropriate sentence of Michael Ryan as a result of his participation in the death of James Thimm? A. No.").)
Ryan's zealous lawyers focus upon stray statements made by Judge Finn, such as the judge not believing that any of the defendants felt sorrow for their crimes. While that statement and others like it indicate Judge Finn's strong views about the culpability of all those who participated in, and who had then been found guilty of, the murders, such a "bias" did not come from an extra-judicial source (the meetings), but was derived from his judicial duties while listening to the testimony of Ryan and others as they described their ruthless behavior during the jury trial. More to the point, this statement, and others like it relied upon by Ryan, prove absolutely nothing about bias on the critical question of whether Finn thought the death sentence should be imposed on Ryan under the specific statutory limitations of Nebraska's death penalty scheme. Finn made it absolutely clear that he would not discuss that question of sentencing, and no one lobbied him to impose the death penalty.
Regarding the actual sentencing, Judge Finn's written sentencing opinion, excluding five pages of appendices, is 16 pages in length.[42] It reveals a thoughtful analysis of the elements and a full appreciation of the limitations of Nebraska's death penalty scheme and the two days of evidence that the judge had taken regarding that matter. That careful decision evidences not the slightest hint of an improper bias.
Third, I independently conclude that because of the foregoing facts, there was no federal constitutional error. To be specific, the meetings between Judge Finn and the family members of the victims established no "structural error" where bias must be presumed, and they evidenced no actual bias either. See, e.g., United States v. Walker, 920 F.2d 513, 516-17 (8th Cir. 1990) (no actual bias shown even though unreported assets were shown to the sentencing judge by the prosecutor prior to the sentencing in an ex parte proceeding without the knowledge or presence of the defendant or his counsel, particularly because of the "duplication" of the evidence "between the open court and ex parte viewing" and because of the "absence of any inference of prejudicial ex parte conversation"); United States v. Earley, 746 F.2d 412, 415-19 (8th Cir.1984) (in a prosecution for aggravated bank robbery resulting in the death of two people, ex parte submission by the government to the judge of a 55-page brief, containing the outline of the expected testimony of 120 prospective witnesses that was not revealed to defense counsel prior to trial despite a request, was an improper ex parte communication, but it was not prejudicial, particularly because the information revealed to the judge in the brief was similar to that presented to the judge during trial), cert. denied, 472 U.S. 1010, 105 S.Ct. 2707, 86 L.Ed.2d 723 (1985). Cf. Dyas v. Lockhart, 705 F.2d 993, 995-97 (8th Cir.1983) (in a capital felony murder *1039 case, there was no structural error upon which bias would be presumed even though the trial and sentencing judge was the uncle of the head prosecutor and the brother and father of the two assistant prosecutors who participated in the trial).
To reiterate and summarize, Finn learned nothing material to the death sentence at these meetings that he did not already know through the proper exercise of his judicial duties; he expressed no opinion on whether to impose a death sentence; and he was not lobbied to impose the death sentence. While the niceties of Nebraska's rules on judicial conduct were unintentionally and technically breached, there was manifestly no violation of the Due Process Clause of the Fourteenth Amendment.
C. Other Objections to, and Further Supplementation of, the Report and Recommendation
In over 150 pages of briefing, Ryan's counsel raise numerous objections to Judge Piester's final report and recommendation that have not been previously discussed in this opinion. While I have fully considered and rejected all of the objections, I will only comment further upon their contention that Claims IV (ineffective assistance of counsel), V (trial court misconduct), and XVII (cruel and unusual punishment) should not be treated as abandoned, and that they should still be permitted to brief these claims.
The reason "[w]e did not brief these issues," counsel state, is "simply because other more pressing issues needed to be briefed at length." (Petr's Initial Br. (Filing 211, at 139).) My gentle response is that counsel have had several years to research and refine these claims (regarding the alleged ineffectiveness of Ryan's trial counsel in failing to pursue the ex parte communication issues, Judge Finn's failure to convene a three-judge sentencing panel, and the constitutionality of death by electrocution), and, whether or not they intended to abandon these claims, they effectively did so by failing to brief them. I am confident, in any event, that none of these abandoned claims has merit.
I conclude my review of Judge Piester's report and recommendation with two additional observations. Both concern recent case law developments.
First, Judge Piester references the fact that a decision by a panel of the Eighth Circuit in Moore v. Kinney, 278 F.3d 774 (8th Cir.2002), was vacated for rehearing on March 28, 2002. On February 10, 2003, the Court of Appeals ruled en banc that the "exceptional depravity" aggravating circumstance, as narrowed, is constitutional. See Moore v. Kinney, 320 F.3d 767, 772-75 (8th Cir.), cert. denied, ___ U.S. ___, 123 S.Ct. 2580, 156 L.Ed.2d 609 (2003). Thus, I supplement Judge Piester's report with the following: Whether narrowed by Moore and other earlier cases or applied as written, the "exceptional depravity" portion of the aggravating circumstance found in Neb.Rev.Stat. § 29-2523(1)(d) clearly fits Ryan even if it is treated separate and apart from the other portion of the statute dealing with murders which are "especially ... cruel." I so find and conclude. Also, to the extent that there was no narrowing construction of "exceptional depravity" at the time Ryan was sentenced, and to the extent one assumes that "exceptional depravity" was considered, whether separately or together, at sentencing, I independently find and conclude that any such alleged error was harmless beyond any reasonable doubt. See, e.g., Joubert v. Hopkins, 75 F.3d 1232, 1245-47 (8th Cir.1996) (evidence established beyond a reasonable doubt that the constitutionally narrowed "especially heinous, atrocious, and cruel" part of the aggravator would have been applied to defendant even had the allegedly *1040 unconstitutional vague portion regarding "exceptional depravity" not been considered). To be specific, I arrive at these decisions without giving deference to the Nebraska Supreme Court on this issue.
Second, and finally, on June 24, 2002, the United States Supreme Court ruled in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), that the Sixth Amendment requires a jury to make findings of fact regarding the applicability of aggravating circumstances in death penalty cases. Although this decision was rendered prior to submission of the claims to Judge Piester for his final report and recommendation, Ryan did not renew his request for leave to amend his petition to assert such a claim. Had such a renewed request been made, though, it would have been unavailing. Absent an express declaration by the Supreme Court that Ring is retroactive (and there has been none), the Eighth Circuit has held that it is not. Moore v. Kinney, 320 F.3d at 771 n. 3. But see Summerlin v. Stewart, 341 F.3d 1082 (9th Cir.2003) (applying Ring retroactively, despite lack of express pronouncement by the Supreme Court).
III. THE COURT THANKS RYAN'S LAWYERS
At the beginning of the federal habeas process, and given the awful nature of the case, Judge Piester and I conferred regarding the appointment of counsel. Knowing full well the terrific burden that would be imposed on any lawyer appointed by the court, we selected Steven E. Achelpohl and Michael A. Nelsen to represent Ryan. We made the particular selection of these two men because Ryan's case demanded the absolute best the legal profession had to offer. As we expected, their service to the interests of justice, and their representation of Ryan, have been both exemplary and extraordinary. In short, Mr. Achelpohl and Mr. Nelsen have made the rest of our honorable profession proud. On behalf of the court, I thank them.
IV. CONCLUSION
Remembering that Ryan humiliated, tortured, and stomped Thimm to death in the name of Yahweh (Jehovah), the God of the Old Testament, I conclude by pondering the following passage from that ancient text:
And the judges shall make diligent inquisition...
Then shall ye do unto him, as he had thought to have done unto his brother: so shall thou put the evil away from among you.
And those which remain shall hear, and fear, and shall henceforth commit no more any such evil among you.
And thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot.
Deuteronomy 19:18-21 (King James version).
Accordingly,
IT IS ORDERED that:
1. The report and recommendation (Filing 202) is adopted. The petitioner's objection to the report and recommendation and appeal (Filing 203) are denied.
2. By separate document, judgement will be entered for the respondent and against the petitioner providing that the petitioner shall take nothing from the respondent, this case is dismissed with prejudice, and the stay of execution is dissolved.
REPORT AND RECOMMENDATION
PIESTER, United States Magistrate Judge.
Before the court for consideration is the petition for writ of habeas corpus of petitioner Michael Ryan. Filing 1. After an *1041 evidentiary hearing, and upon reviewing the merits of petitioner's claims, I conclude that habeas relief should be denied in all respects.
BACKGROUND
On April 10, 1986, following a jury trial in the District Court for Richardson County, Nebraska,[1] petitioner Michael W. Ryan was convicted of first degree murder, in connection with the torture killing of James Thimm on a farm outside Rulo, Nebraska.[2] On October 16, 1986 the district court judge, Honorable Robert T. Finn, sentenced petitioner to death. Petitioner appealed his conviction and sentence to the Nebraska Supreme Court raising numerous grounds. The Nebraska Supreme Court affirmed both the conviction and sentence on August 11, 1989, State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989) ("Ryan I"), and denied petitioner's motion for rehearing on February 15, 1990. The United States Supreme Court denied a subsequent petition for writ of certiorari. Ryan v. Nebraska, 498 U.S. 881, 111 S.Ct. 216(Mem), 112 L.Ed.2d 176 (1990).
On October 19, 1990 petitioner filed a pro se motion for postconviction relief in the District Court for Richardson County, pursuant to Neb.Rev.Stat. § 29-3001 et seq. On December 17, 1991 petitioner, through court-appointed counsel, filed a second amended motion for postconviction relief raising numerous grounds. Following an evidentiary hearing the district court denied petitioner's motion for post-conviction relief. The Nebraska Supreme Court affirmed that denial on July 21, 1995, State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995) ("Ryan II"), and overruled petitioner's motion for rehearing on September 27, 1995.
On October 25, 1995 the Nebraska Supreme Court ordered that execution of the sentence be carried out on December 7, 1995. Petitioner filed a pro se motion for stay of execution with the Nebraska Supreme Court on October 31, 1995, alleging that the United States Supreme Court would be unlikely to have an opportunity to grant a writ of certiorari to review the denial of his motion for postconviction relief before the scheduled December 7, 1995 execution date. See Ryan v. Hopkins, 4:CV95-3391, filing 3, Exhibit B. On November 1, 1995 the Nebraska Supreme Court denied the motion for a stay of execution. See id., Exhibit C.
On November 17, 1995 petitioner filed in this court a pro se petition for writ of habeas corpus, id., filing 1, and a motion for stay of execution, id., filing 3. On November 20, 1995 the Honorable Richard G. Kopf granted petitioner's motion for stay of execution. See id., filing 5. Eventually, on October 31, 1996, this court dismissed petitioner's habeas action without prejudice in order to allow him to exhaust his state remedies on certain issues. See id., filing 85.
On November 7, 1996 petitioner filed his second motion for postconviction relief in the District Court of Richardson County, Nebraska. After a bench trial the district court found against the petitioner on all the issues he presented. The district court's order was affirmed by the Nebraska Supreme Court on September 10, 1999. See State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999) ("Ryan III").
On December 10, 1999 the petitioner filed the present petition for habeas relief. Filing 1. I entered a Memorandum and Order on August 22, 2000 in which I addressed *1042 the procedural issues of this petition. Filing 49. There I concluded that claims I through VI, X through XIII, and XVII are properly before this court, while the rest were exhausted by unexcused procedural default and, thus, barred from this court's consideration. Id. In that Memorandum and Order I also denied petitioner's Motion for Discovery and Motion for Evidentiary Hearing with respect to claim XVII, and a Sealed Motion. Id. Petitioner filed an appeal objecting to portions of my Memorandum and Order. Filing 54. Judge Kopf issued a Memorandum and Order on December 29, 2000 in which he sustained petitioner's objections with respect to my conclusions on petitioner's competence claims (claims VII, VIII, and IX), directed me to make more specific findings regarding the procedural default of those same claims, and sustained my Memorandum and Order in every other respect. See filing 74.
SCOPE AND SUMMARY OF THIS REPORT AND RECOMMENDATION
Petitioner is not procedurally defaulted from raising claims I through VI, X through XIII, and XVII. (See August 22, 2000 Memorandum and Order, filing 49, sustained by Judge Kopf in his December 29, 2000 Memorandum and Order, filing 74). The merits of these claims are discussed in the latter portion of this Report and Recommendation.
I had previously concluded that petitioner had failed to show cause and prejudice sufficient to excuse his procedural default of claims XIV, XV, and XVI. I had also concluded that petitioner had failed to prove prejudice to excuse his procedural default on Claims VII, VIII, and IX ("Competence Claims"), see filing 49. I was directed by Judge Kopf to make more definite findings on petitioner's claim of incompetency and how that claim relates to the procedural default issues raised by Ryan's § 2254 petition. See filing 74.
Judge Kopf's Memorandum and Order clarified that if petitioner was mentally incompetent at the time of his direct appeal and his first state post-conviction proceeding, that incompetence may establish "cause" sufficient to excuse his failure to raise appeal and postconviction relief claims for state court review. The Eighth Circuit has held that mental illness may constitute cause if there is a "conclusive showing that mental illness interfered with a petitioner's ability to appreciate his or her position and make rational decisions regarding his or her case at the time during which he or she should have pursued post-conviction relief." Holt v. Bowersox, 191 F.3d 970, 974 (8th Cir.1999)(citing Garrett v. Groose, 99 F.3d 283, 285 (8th Cir.1996); Nachtigall v. Class, 48 F.3d 1076, 1080-81 (8th Cir.1995)).
The issue of Ryan's competency during his 1986 trial was heard and ruled on in the 1997 second state post conviction proceeding. However, the issue of whether petitioner was competent during the appeal process and his first postconviction proceeding, time periods during which he failed to raise issues for state court review, has not been previously decided by any court. Mental examination reports provided to this court and issued after the 1997 hearing addressed these issues. An evidentiary hearing was necessary to determine if incompetence was the cause of petitioner's failure to raise his procedurally defaulted claims, (VII, VIII, IX, XIV, XV, and XVI) in the state courts.
The previous Memorandum and Order, filing 49, concluded that Judge Moran was presumptively correct in holding that petitioner was competent to stand trial and therefore, even absent procedural default, petitioner's competency claims were without merit. In the interest of addressing and resolving all issues in order to avoid *1043 time-consuming remands, Judge Kopf's Memorandum and Order directed me to elaborate on this finding and my determination that petitioner could show no prejudice on claims VII, VIII, and IX.
Finally, after Judge Kopf issued the Memorandum and Order for further evidentiary analysis, the petitioner, through his counsel and the reports of mental health experts, raised the threshold issue of Ryan's competence in this federal habeas proceeding. Before reaching the petitioner's claims for habeas relief set forth in his § 2254 petition, therefore, I concluded I must resolve whether Ryan has the current capacity to appreciate his position in this proceeding, assist his counsel, and make rational decisions or whether, on the other hand, he is suffering from a mental disease, disorder, or defect which may substantially affect that capacity. Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966).
An evidentiary hearing was held to address Ryan's current competence, whether incompetence "caused" Ryan's procedural default of habeas claims, and whether Ryan can show "prejudice" on the competency claims raised for habeas review.[3] Filing 89. At the close of the July 31-August 1, 2002 evidentiary hearing, the parties were given leave to submit post-hearing briefs. The transcript of the evidentiary hearing was prepared and filed, and after several continuances granted at the request of both parties, the matter was fully submitted to the court for consideration on October 16, 2002.
In accordance with Judge Kopf's Memorandum and Order, and in light of the issue regarding petitioner's current competence, this Report and Recommendation discusses the following findings:
1) Petitioner is competent and was afforded due process during these federal habeas proceedings;
2) Ryan was competent and afforded a full and fair hearing on his second motion for postconviction relief; Judge Moran's resulting decision finding that Ryan was competent to stand trial was supported by the record and is "presumptively correct,"; and Ryan therefore cannot show prejudice on Claims VII, VIII, and IX;
3) Petitioner was competent during the appeal and first state postconviction relief proceeding, and therefore incompetence did not "cause" him to waive state appellate and postconviction review of claims VII, VIII, IX, XIV, XV, and XVI; and,
4) The remainder of Petitioner's claims, I through VI, X through XIII, and XVII, should be denied on the merits.
In reaching these determinations I have considered the evidence submitted in this federal habeas proceeding, as well as the evidence and court filings from Ryan's 1986 trial (Ryan I), and his first and second state postconviction relief proceedings, (Ryan II and Ryan III).[4]
*1044 DISCUSSION
THRESHOLD ISSUE: RYAN'S COMPETENCY DURING THESE FEDERAL HABEAS PROCEEDINGS
Just prior to the scheduled evidentiary hearing on the competency issues alleged in Ryan's § 2254 petition, counsel for petitioner raised the issue of whether petitioner was and is competent to fully participate in the habeas proceedings pending before this court. See filing 116. Counsel for both parties obtained mental health evaluations of Ryan, and the court further ordered a mental health evaluation of Ryan by the Medical Center for Federal Prisoners in Springfield, Missouri. The two-day evidentiary hearing included testimony from mental health experts concerning Mr. Ryan's competency during these federal habeas proceedings.
Mental health reports provided by the parties and reviewed by the court indicated that Ryan had expressed some doubt with pursuing his federal habeas proceedings. "Concerning post-conviction proceedings, Mr. Ryan stated he didn't like it.... He has no idea whether he will continue to pursue appeals but states, `I'll cross that bridge when I come to it. I'll see what Yahweh has in mind.'" T, Exhibit 107, 2001 Logan report, at p. 15. Mr Ryan "does not agree with [his counsel's] strategy regarding putting his mental state at issue, as he believes he is not mentally ill." T, Exhibit 109, Martell report, at p.6. These references in the records placed the court on notice that Ryan, at some point during the proceedings, may request that all or parts of his petition for habeas relief be abandoned, or that his appointed counsel withdraw from the case. Had Ryan made such a request, the evidence adduced at the hearing would have been considered to determine whether he was competent to knowingly and voluntarily waive these federal proceedings for post-conviction relief.
The petitioner did not request that his federal habeas proceedings be dismissed or that his counsel withdraw. The evidence from the hearing was considered to determine Ryan's competence at the various stages of his litigation, including these habeas proceedings, as well as, to the extent applicable, the merits of his claims.
As to the initial question of whether Ryan is and has been competent during these federal habeas proceedings, the court must determine if Ryan is suffering from a mental disease, disorder, or defect that adversely affects his ability to understand his circumstances and make rational decisions about his case. Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966) (examining psychiatrist's detailed report which concludes that defendant is not competent requires the court to conduct a full competency hearing); Smith v. *1045 Armontrout, 812 F.2d 1050, 1053 (8th Cir. 1987). When a prisoner seeking habeas relief in federal court is incompetent, he must be represented by an attorney, with his interests pursued through "either a counsel of record or a `next friend,'" to argue that he lacked the capacity to make decisions during the post-conviction proceedings. O'Rourke v. Endell, 153 F.3d 560, 569 (8th Cir.1998). Without such an advocate on the prisoner's behalf, the competency hearing is not full and fair, and does not comport with due process. Id. at 569.
For the reasons discussed more fully below, I find that Ryan has been competent during the course of these federal habeas proceedings, and although he chose not to attend the evidentiary hearing, (see filing 131, affidavit of Michael Ryan), this choice was rationally made. His interests herein were fully, fairly, and zealously advocated by highly qualified counsel, and supported with evidence offered by his mental health experts, William S. Logan, M.D., and Robert Schulman, Ph.D., who have continued to provide expert testimony on his behalf dating back to the time of his 1986 trial.[5]
To assess Ryan's current competency, both Dr. Logan and Dr. Schulman, who provided testimony in support of Ryan's insanity defense at his 1986 trial, re-evaluated Ryan's mental state prior to testifying. T, 32:1-3, 33:23-34:11, 138:2-20, Exhibits 104, 2002 Schulman report & Exhibit 107, 2001 Logan report. Ryan was also evaluated in 2001 by an expert for the State, Dr. Daniel A. Martell, Ph.D, and, pursuant to this court's order, he was independently assessed in 2002 at the Federal Medical Center in Springfield, Missouri by Dr. Christina Pietz, Ph.D. T, Exhibits 109, Martell report & 113, Pietz report. Like Dr. Logan and Dr. Schulman, these experts were highly competent and qualified to evaluate and render opinions regarding Ryan's competency.[6]
*1046 While the testimony offered in the federal habeas proceeding substantially mirrored that offered at the 1986 trial and 1997 hearing, the import of that evidence was more focused in this habeas proceeding on the credibility of Ryan's statements regarding his religious beliefs, and if those statements were credible, the distinction between religious beliefs and delusional thinking. Specifically, was Ryan feigning mental illness by professing that his actions were guided by the voice of God and if so, when is hearing the voice of God, relinquishing one's life to a higher power, and obeying its commands a competent decision, and when is it the product of an incompetent delusional and psychotic state? The mental health profession has attempted to respond in part to this issue in published commentary set forth in the DSM-IV-TR:
A clinician who is unfamiliar with the nuances of an individual's cultural frame of reference may incorrectly judge as psychopathology those normal variations of behavior. Belief, or experience that are particular to the individual's culture. [sic] For example, certain religious practices or beliefs ... may be misdiagnosed as manifestations of a Psychotic Disorder.
T, Exhibit 109 at p. 6 (Martell report) (quoting DSM-4-TR, p. xxxiv).
Based on their prior 1986 assessments of Ryan, and supplemented by their recent evaluations of his current mental state, Dr. Logan and Dr. Schulman each stated that Ryan is neither malingering nor feigning mental illness but truly believes that Yahweh speaks to him, commands his life, and determines his future. T, 28:4-20, 29:15-30:7, 149:24-150:20. They state that while belief in God is not irrational, Ryan's act of fully relinquishing all decisions to his deity, which he refers to as "Yahweh" or "Yahweh God," in the hope of being found worthy to enter heaven is obsessive, not the product of a rational mind, and evidence of a psychotic and incompetent mental state. T, 64:23-65:7, 77:7-11, 143:2-144:25.
According to Ryan's experts, since as early as 1983, Ryan has been delusional, with grandiose ideas that he can read other people's minds and influence their thoughts supernaturally. T, 140:11-141:14. His mental state exhibits rigidity *1047 in thinking and entrenchment in his belief system, and he portrays the appearance of "being together" through his delusional thinking. T, 24:24-25:18, 29:9-14. While Ryan's reliance on scripture to guide his beliefs and conduct is not itself delusional, according to Dr. Schulman, how he executes that belief is delusional. He cannot listen to others' points of view, executes his beliefs to an extreme, and is obsessed that others must believe as he does. Ryan professes believing that Yahweh controls the course of all events, that certain things happen to certain types of people, that hell exists and some people go there, and that, on these issues, there is no room for discussion. T, 64:19-68:5 & Exhibit 104, 2002 Schulman report, at p.2.
Dr. Logan and Dr. Schulman both assert that as a result of Ryan's delusional thinking and psychosis, Ryan does not take part in any decision-making on his own behalf, but abdicates that responsibility to his attorneys. They believe that throughout the numerous stages of this litigation, including presently, Ryan has been unable to rationally make decisions because his decision-making processes are based on delusions and not reality. Ryan claims his attorneys have been sent by Yahweh, accepts what they do, and believes he has nothing to add. Ryan states that his lawyers, Dr. Logan, and Dr. Schulman were sent to him as messengers from Yahweh. For example, Ryan claims that Dr. Schulman, who is Jewish, was specially sent to Ryan so that Dr. Schulman could hear Yahweh's message and be a witness to the Jewish people. T, 32:4-22, 69:22-71:1, 89:2-6.
According to his statements to Dr. Logan and Dr. Schulman, Ryan has not agreed with his counsels' advice to assert mental illness at any stage of the litigation against him, but has acquiesced in their arguments, placing his faith in God rather than the courts, and asserting that the only reality that matters is what Yahweh wants. Ryan has told the mental health experts that the current legal proceedings are under Yahweh's controlYahweh will protect him, whether Ryan participates in the process or not. T, 25:1-24, 28:21-29:14, 30:14-31:1, 32:25-33:22, 46:15-47:1, 64:23-65:7, 74:2-18, 85:19-86:3, 145:3-146:20, 159:17-23, 165:16-166:7, 170:22-171:8, 175:17-176:21, 348:19-350:14 & Exhibit 107, 2001 Logan report, at p. 7, 17. See also, Ryan III, 765:12-766:11, 770:1-771:10, 775:6-18, 780:4-780:14, 784:22-24.
When asked why Ryan continues to pursue the habeas proceedings, Dr. Logan explained that Ryan claims he has not resolved whether Yahweh would consider it suicide to stop the proceedings and not challenge his death sentence. Ryan looks to the Bible to answer this question. He also performs research in the law library. T, 159:24-160:3, 163:13-16, 171:9-173:5 & Exhibit 107, 2001 Logan report, at 14-15.
Dr. Logan and Dr. Schulman stated that Ryan describes persistent delusional thoughts that he hears Yahweh's voice. Although his claims of delusion have not changed since 1986, Ryan is now in a structured environment and is more controlled in expressing his beliefs. T, 30:14-31:19. Ryan currently denies hearing voices or ever stating that he was an archangel. T, 84:21-85:4. Dr. Logan explains this discrepancy as an act of false humility consistent with Ryan's attempt to further aggrandize himself. Ryan states that he believes he is special in Yahweh's eyesit is others that believe he is an archangel. T, 148:7-149:23, 166:8-167:6, 168:8-169:12, 180:7-21. See also, Ryan III, 785:21-789:24, 790:24-791:7.
According to the experts who testified, a question raised in assessing Ryan's mental state is whether his beliefs are "delusions" or "shared sub-cultural religious beliefs espoused within the Christian Identity *1048 Movement, and adopted by the other members of his group at the ranch." (T, Exhibit 109, Martell report, at p. 6). Both Dr. Logan and Dr. Schulman conclude that Ryan is delusional. Dr. Martell and Dr. Pietz disagree.
As explained below, I conclude that Dr. Martell and Dr. Pietz offered the more credible, scientifically based, and convincing evidence concerning Ryan's competence. The testimony of Dr. Schulman and Dr. Logan, and their opinions that Ryan has been and is incompetent, are not convincing. Dr. Schulman's current opinion is inconsistent with his own prior testimony, as well as the opinions reached by other experts, and is not based on objective and reliably scored psychological testing. Dr. Logan's current opinion that Ryan was incompetent in 1986 is contradicted by the report he authored in 1986, wherein he describes Ryan as able to appreciate his position and understand the proceedings and their consequences. Dr. Logan disregards the results of three MMPIs but accepts at face value the interview statements of Ryan. Finally, despite their current attempts to prove Ryan was not competent at trial, Dr. Schulman and Dr. Logan were Ryan's experts at that trial and did not advise the trial court or Ryan's attorneys that Ryan was incompetent. This fact significantly undermines their credibility.
Dr. Schulman states that Ryan's religious beliefs are consistent with a bizarre belief system and not a shared belief system. Although Ryan wanted his beliefs to be accepted by others on the Rulo farm, Dr. Schulman claims that this fundamental religious belief was an "extremely concrete and narrow view practiced by a few individuals and their interpretation of the Bible and how the Bible should direct ones' lives." T, 47:18-49:4, 64:24-25, Exhibit 104, 2002 Schulman report, at p.1. Dr. Schulman now believes Ryan cannot be properly diagnosed as a paranoid schizophrenic, (T, 54:25-55:9), contradicting his 1997 testimony that Ryan's diagnosis was "schizophrenia, paranoid type." Ryan III, 129:7-13, 135:7-18, 142:13-19. Dr. Schulman's current Axis I diagnosis for Ryan is Delusional Disorder, Grandiose Type (Religious), with an Axis II diagnosis of Paranoid Personality Disorder. T, 39:6-40:23, 47:12-14 & Exhibit 104, 2002 Schulman report, at p.3. While the symptoms of schizophrenia may wax and wane over time, even with treatment (which Ryan has not received), the disease cannot be cured. Ryan III, 785:21-786:3; T, 164:19-165:5 & Exhibit 107, 2001 Logan report, at p.12. (See also, testimony of Maurice Temerlin, Ph.D at Ryan I, 2999:15-23). Dr. Schulman offered no convincing explanation for testifying in 1997 that Ryan had schizophrenia while abandoning that diagnosis in this federal habeas proceeding.
Under the DSM-IV, Dr. Schulman's 2002 diagnosis for Ryan is inconsistent with Dr. Logan's diagnosis of schizophrenia the diagnosis endorsed by Dr. Schulman during his 1997 testimony, and the diagnosis Dr. Logan has adhered to throughout the several stages of petitioner's litigation concerning his sanity and competency. T,54:25-55:9, 161:13-162:9, 224:21-225:15.
In addition to contradicting his former testimony and the current opinion of Dr. Logan, Dr. Schulman used psychological testing procedures that are unreliable and undermine the credibility of his opinions relying on that testing. Dr. Schulman's diagnostic impressions are based, in large part, on draw-a-person, TAT, and Rorschach psychological testing. However, according to Dr. Martell, these tests were widely used in 1986 but were later found to be subjective, unreliable, and invalid instruments for assessing psychopathology. T, 199:3-20. Specifically as applied to the *1049 Rorschach test, Dr. Martell explained that the method of scoring was standardized by Exner in the 1970s to validate the testing and eliminate the subjective results, and that absent such scoring, the test results are not reliable. However, Dr. Schulman admitted that he did not use the Exner scoring method, and although the raw testing data still exists, Dr. Martell could not re-score Dr. Schulman's 1986 Rorschach data to arrive at a reliable score because the data collection was not consistent with Exner's requirements. T, 58:17-62:9, 199:16-200:6.
Dr. Schulman's psychological testing methods are not considered valid or reliable, and his diagnosis for Ryan has vacillated between delusional disorder and schizophrenia, without any reasonable explanation. He testified before Judge Moran in 1997 that Ryan had schizophrenia while his contemporaneous report belied that diagnosis. (Compare, T, Exhibit 102, 1996 Schulman with Ryan III, 129:7-13. See also, footnote 10, infra.). Dr. Schulman testified in 1997 that he formed his schizophrenia diagnosis when the testing was completed in 1986, but his 1986 testimony contradicts that statement, (Ryan I, 4328:2-18, 4332:5-10), as does his 1996 report. I do not find Dr. Schulman's testimony to be convincing.
Dr. Martell explained that valid and objective psychological testing provides "checks and balances" to determine the veracity of statements made during the interview portion of a mental health evaluation, (T, 194:9-195:1), thereby increasing the reliability of any mental health diagnosis reached. Without the benefit of such testing, and disregarding the 1985 MMPI testing done by the State which indicated no mental illness, Dr. Logan concluded that Ryan has candidly related his religious beliefs and has experienced delusions since before James Thimm's murder. Dr. Logan states that Ryans's beliefs are not consistent with any shared belief system, including the Christian Identity Movement, and are delusions and hallucinations arising from paranoid schizophrenia.
Prior to his arraignment for the murder of James Thimm, and before being interviewed by Dr. Logan, Ryan was incarcerated as a pretrial detainee by the Nebraska Department of Corrections on a charge of possessing automatic weapons. During this period of incarceration he completed a state-administered Minnesota Multiphasic Personality Inventory II ("MMPI") test. T, 196: 23-197:5. Dr. Martell explained that the MMPI is used by mental health providers to reveal psychopathology, including Axis I disorders, which are more acute and severe psychiatric problems and illnesses. It also discloses evidence of Axis II personality disorders, which are long-standing character pathologies, such as antisocial personality or borderline personality, that characterize a person from early adolescence through most of their life and reflect pathological ways of dealing with the world. T, 324:1-11. Dr. Martell testified that the state's 1985 testing report on Ryan revealed an MMPI "completely within normal limits. It was valid. ... [T]here was no evidence of mental disorder. All the scales were within normal limits...." (T, 196:6-10).
Disregarding the 1985 MMPI testing performed only weeks before he initially interviewed Ryan, and relying primarily on Ryan's interview statements, Dr. Logan concluded that Ryan experiences daily and continuing hallucinations as a result of his paranoid schizophrenia. However, as reported by Dr. Martell, the hallucinations seen in schizophrenia typically follow a course of exacerbation and remission, which is not consistent with the daily visual and auditory experiences described by Ryan over the course of the last eighteen years. T, Exhibit 109, Martell report, at *1050 p.6. Dr. Martell further explained that hallucinations occur when one sees or hears things from the vantage of a "blank state" or out of "whole cloth." T, 204:6-15. However, Ryan saw signs and symbols in the clouds, (Ryan I, 3955:3-17; 2988:14-22), and ascribed an underlying meaning to these formations and other events he experienced. Ryan admits that hearing Yahweh speak directly to him may be a product of his own conscience, or it may be wishful thinking. Contrary to Dr. Logan's assessment, (T, 109:18-113:2, 115:23-117:19), Dr. Martell explained that this "wishful thinking," (T, 204:13-15, 205:10-25), is not a schizophrenic delusion but an illusion, and, in this case, the product of a shared sub-cultural religious belief espoused by the Christian Identity Movement. T, 203:11-204:5, 217:5-22.
Although Dr. Logan testified that, unlike Ryan, members of the Christian Identity Movement do not use the arm test to make routine daily decisions; do not endorse stealing from their neighbors; do not profess receiving audible messages from God; and do not plan for immaculate births within the membership, his characterization of the Christian Identity Movement does not take into consideration the published research and the sub-cultures within that movement. According to the research performed by the FBI Behavioral Science Unit, and relied on by Dr. Martell in formulating his opinions, the cult-like behavior of isolation, manipulation, and control performed by Ryan with the Rulo group is prominent in the Christian Identity Movement and to a lesser extent, the Posse Comitatus. The Rulo group's use of theft to fund its preparation for the Battle of Armageddon is discussed in the FBI's literature and is considered acceptable within the Christian Identity Movement, especially if it targets minorities and Jewish people. T, 222:1-224:20.
Within the Rulo cell, the members had a shared religious belief that Armageddon was imminent, that they were special and chosen by Yahweh, and that they were to prepare for the upcoming battle. Dr. Martell testified that although these beliefs are unusual, they are part of a shared religious belief and, under the DSM-IV, are not to be considered evidence of psychosis. T, 203:11-204:5, 217:5-22, 222:1-224:20, 229:18-231:8.
A significant basis of Dr. Logan's diagnosis of schizophrenia rests on believing Ryan's statements while simultaneously disregarding the results of three MMPI tests finding no mental illness, as well as other reliable psychological tests which substantiate that Ryan is not incompetent. Dr. Martell reports that Ryan's initial MMPI, obtained in 1985 and only weeks before Dr. Logan's first examination of Ryan, indicated no mental illness was present. T, 196:17-198:2 & Exhibit 109, Martell report, at p.3. The experts testified that the MMPI is a significant and routinely used psychological testing instrument. If Dr. Logan and Dr. Schulman actually believed the State's 1985 testing was unreliable, Dr. Schulman could have repeated the testing in 1986 to obtain results that were reliable in assessing Ryan's sanity. Dr. Schulman never administered MMPI testing to Ryan.
Like the 1985 MMPI testing, the MMPI administered by Dr. Martell in 2001, and the MMPI testing of Ryan in 2002 by Dr. Pietz indicated that Ryan was not mentally ill. T, Exhibit 109, Martell report, at p. 6; Exhibit 113, Pietz report, at p. 13. Thus, despite the story Ryan has related to every expert who has evaluated him throughout his litigation, Ryan's objective psychological testing reveals no mental illness.
Dr. Logan stated that Ryan's mental state has not changed substantially over the last fifteen years. Yet in his 1986 *1051 report, Dr. Logan described Ryan as understanding the nature of the charges against him, the potential consequences, and the proceedings. Now, however, he states that Ryan is delusional and incapable of rational thought. His testimony is not convincing, and it is not consistent with the opinions of the experts I find to be persuasive in this case.
Dr. Martell and Dr. Pietz independently arrived at the same conclusion: Ryan is competent. Their opinions were based on interviewing Ryan and reviewing the vast historical records in this case, and also on properly scored and objective psychological testing. Dr. Schulman criticizes both these experts because "psychologists these days" fail to "actually engage the person" in favor of only "paper and pencil tests," (T, 26:19-27:3). Dr. Pietz' testimony was particularly persuasive because she not only administered testing and interviewed Ryan, but also had opportunities to observe and speak with Ryan outside the interview process, and benefitted from round-the-clock observations of Ryan by FMC staff for over two months. Although petitioner's counsel challenged the level of her background and experience, she has an extensive background in forensic psychology, greater opportunities to observe and interact with Ryan over time, and an objective perspective.
Of particular note was Dr. Pietz' observation that Ryan had been displaced from the Nebraska Department of Corrections to an admittedly chaotic and loud FMC psychiatric ward. Contrary to what psychologists anticipate when schizophrenic patients are removed from their structured environments and routines, (see testimony of Dr. Schulman, T, 35:16-37:2), Ryan did not respond by decompensating and exhibiting psychotic behavior. He showed no signs of mental illness.
The observations by Dr. Pietz and Dr. Martell are consistent with Ryan's psychological testing results. The results of the MMPI testing by these witnesses were substantially consistent, with neither test providing evidence of mental illness or incompetence. Ryan's 2001 and 2002 MMPI tests also coincided with other psychological tests performed and with the MMPI testing Ryan completed over fifteen years ago. All such testing revealed no mental illness or delusional thinking.
Dr. Martell's Personality Assessment Inventory ("PAI") testing indicated that Ryan is hostile, suspicious, and resentful with poor interpersonal skills and an inability to form close relationships. According to the PAI testing, Ryan holds grudges and feels estranged and mistreated by others; may have difficulty concentrating and entertains ideas that people find unusual; is plagued by thoughts of worthlessness, hopelessness, and personal failure; and feels depressed but has relatively few physiological signs of depression. This testing provided no evidence of active psychotic symptoms, but corresponded with Ryan's MMPI configuration of a suspicious, distrustful, hypersensitive, rigid, stubborn, and angry person who blames others for his problems. According to Dr. Martell, neither the MMPI nor the PAI testing reflected an Axis I diagnosis of mental illness or, more specifically, schizophrenia. T, 211:10-213:25, 215:8-19, 219:8-220:7 & Exhibit 109, Martell report, at p. 7.
Dr. Martell's evaluation of Ryan revealed a man with a "chip on his shoulder," whose thoughts were not disorganized, but were logical, coherent, and consistently racist and right-wing. T, 194:12-20, 203:3-16. Dr. Martell concluded that Ryan is lying when he states he hears the voice of Yahweh, "[a]nd he lies for a purpose, and that purpose is to garner the mystique of special powers, a special connection to God that enables him to remain at the top of *1052 the pecking order, to be the leader of the cult at the Rulo farm." T, 221:21-25. With this power, Ryan maintained his ability to control and manipulate those living on the farm. T, 206:1-6.
Dr. Martell concluded that Ryan has no Axis I diagnosisno serous mental disorder involving loss of contact with reality. He has an Axis II "antisocial personality" diagnosis of Personality Disorder with Narcissistic and Schizotypal features, and he may also have a Paranoid Personality Disorder. Dr. Martell testified that these disorders are long-term and intractable without significant psychotherapy, but they rarely interfere with thinking, do not reflect a psychotic state, and did not render Ryan incompetent at trial, direct appeal, the state collateral proceedings, or presently. T, 217:23-219:7, 220:8-221:3, 225:3-227:14, 240:11-16, 244:16-247:5 & Exhibit 109, Martell report, at p. 6-7. See also, Ryan I, 4414:13-4415:23 (testimony of Emmet Kenney, M.D.).
The opinions of Dr. Martell are supported by the testing, observations, evaluation and opinions of Dr. Christina Pietz. Of the experts who testified, Dr. Pietz' testimony was the most persuasive because it was based on a significant depth of knowledge and experience in the area of forensic psychology; thoroughness in evaluating Ryan; neutrality in that evaluation process and in providing testimony before this court; and extensive observations of Ryan's ability to cope daily and with stressful environmental changes.
Dr. Pietz personally interacted with and witnessed Ryan on a day-to-day basis. He was housed at FMC for sixty-four days and was randomly assigned to Dr. Pietz for evaluation. During that time she informally and frequently had contact with Ryan in the hall, the prison yard and through the door of his cell. Staff nurses monitored his status at the facility, reporting their observations and opinions to Dr. Pietz through their charted progress notes and verbal communications. (See T, Exhibit 114, FMC medical records). In addition, Dr. Pietz performed four formal clinical interviews and conducted objective psychological testing of Ryan. T, 255:15-256:19, 265:9-24, 275:4-276:21, 279:6-19.
Dr. Pietz described Ryan as initially very frustrated and angry with the overcrowding and noise at FMC, a complaint Dr. Pietz regarded as accurate, reasonable, and justified. However, overall he was very cooperative with her and the FMC staff. While the records of prior mental health providers stated that Ryan did not trust or like mental health professionals, he exhibited a significant level of trust in Dr. Pietz and the FMC staff and did not present as paranoid during the sixty-four days he spent at FMC. No signs of mental illness were seen by Dr. Pietz or reported to her by the FMC staff. T, 301:21-304:13, 305:18-20 & Exhibit 113, Pietz report.
Ryan's personal interviews were conducted in a separate interview room. Ryan appeared at ease during the interviews and readily responded to Dr. Pietz' questions, elaborating on answers and voluntarily clarifying answers provided during past interviews as appropriate. T, 277:22-279:2.
Dr. Pietz stated that Ryan takes his religious beliefs very seriously and is offended when someone labels those beliefs as crazy. He stated to her that within the Nebraska Department of Corrections, he had access to mental health care and staff, either by self-referral or through referrals from prison officials, but he had not been referred by prison staff and he did not personally want or believe he needed that assistance. Although psychotic symptoms are usually exacerbated in the stressful circumstances of incarceration, during his seventeen years in the Nebraska Department *1053 of Corrections, Mr. Ryan reported that he had never decompensated to the point of requiring impatient mental health care. Dr. Pietz stated that if he were genuinely psychotic, that would be highly unlikely. T, 307:8-309:14.
In addition to personal interaction with Ryan, Dr. Pietz administered the following objective testing: Shipley Institute of Living Scale; Validity Indicator Profile; and the MMPI-II. Ryan's IQ tested in the average range and he should have no difficulty understanding simple and most complex issues. The Validity Indicator Profile reflected that Ryan made a valid effort to perform well and honestly on the testing. As previously stated, his MMPI testing revealed no evidence of any mental illness. T, 250:8-255:14.
Dr. Pietz also reviewed the extensive records received from counsel for the state and for Ryan, which included Ryan's prior mental health records and evaluation reports, audio and video tapes of prior mental health interviews, transcripts of testimony, and letters and testimony related to Ryan's cooperation and advice from counsel. Dr. Pietz testified that prior videotapes of Ryan's psychological evaluations in the late 1980s reflected a younger Michael Ryan whose speech and thoughts were not disorganized and who maintained appropriate focus and eye contact. Dr. Pietz saw no evidence of hallucinations or delusions on the videotapes, and her review of Ryan's historical writings, when he was not focusing on "holding it together" for a mental health interview, did not reflect disorganized thinking, cognitive slippage, or bizarre statements. She noted that the transcripts of the testimony of Ryan's previous counsel indicated he had been able to communicate with them and understood the proceedings. T, 290:1-291:25 & Exhibit 113, Pietz report.
Dr. Pietz opines that Ryan's religious beliefs are or were shared by other members of his subculture, and that his communication with Yahweh, rigidity in thinking, and belief in the Battle of Armageddon and the "end times" are not a hallucination but the result of his cultural beliefs. Dr. Pietz explained that a belief that one can communicate with God through prayer, and receive instruction and direction for daily life is not characterized by mental health professionals as hallucinating or the sign of a mental disorder. T, 316:3-24.
Although Ryan has abdicated the decision-making in his case to his lawyers, Dr. Pietz states that this conduct is not a result of mental illness. She explained that it is not uncommon for deeply religious people to believe that those sent to assist them, such as Ryan's counsel, have been sent as messengers from God and that adherence to their advice is part of God's ultimate plan. Further, based on her extensive experience at FMC, even outside the religious context, it is not uncommon for prisoners to relinquish their appeals to the trusted skill of their lawyers. Finally, Ryan's reasons for not wanting to attend his competency hearing including his lack of personal participation, the trust he has in his counsel, the discomfort of being restrained, and the disruption of his daily routineprovided a reasoned explanation for not attending. T, 313:24-316:24, 320:9-321:12, 328:21-25.
Dr. Pietz summarized the question posed regarding Ryan's mental health as follows:
[I]t seems that the question facing mental health professionals evaluating Mr. Ryan is whether or not certain beliefs held by Mr. Ryan are representative of symptoms of a psychotic disorder. Furthermore, if it is determined that the beliefs held by Mr. Ryan are symptoms of a mental disorder, the question then becomes whether or not those symptoms *1054 interfere(d) with his capacity either to comprehend the nature and purpose of the proceedings or to cooperate with counsel in his own best interest.
T, Exhibit 113, Pietz report, at p. 13.
Dr. Pietz found that Ryan had no mental illness, and no Axis I diagnosis was appropriate. She believes Ryan has an Axis II diagnosis of "Personality Disorder NOS (paranoid and grandiose traits)." It is her opinion that Ryan is currently competent to participate in these habeas proceedings. Dr. Pietz states that there is absolutely no evidence that Ryan currently has any psychotic disorder or mental illness. Based on that finding, her interaction with Ryan, and her review of the previous records and recordings of his mental evaluations, Dr. Pietz also concluded that Ryan was competent at all times during the trial, appeals and collateral state court proceedings. 257:21-259:19, 295:5-21, 300:15-301:19, 319:1-15.
Not every manifestation of mental illness demonstrates mental incompetence. The petitioner must present evidence that his mental state prevented him from being able to consult with his lawyer and from having a rational understanding of the proceedings against him. United States v. Jimenez-Villasenor, 270 F.3d 554, 559 (8th Cir.2001). Every expert agrees that Ryan has grandiose, self-centered, paranoid, and hostile thought processes, that he professes a rigid and unusual religious belief in Yahweh, and that he claims to receive audible messages from Yahweh which control his actions. The experts disagree on whether mental illness is the cause. I find that it is not. I further find that even assuming Ryan suffers from paranoid schizophrenia, throughout these legal proceedings he has consistently maintained an ability to communicate with his counsel, understand his circumstances, and rationally make decisions on his own behalf.
Experts acting on behalf of Ryan assert that his religious beliefs are delusional and interfere with his ability to make rational decisions. I disagree. Sincerely held religious beliefs do not equate with incompetence. See, Ford v. Bowersox, 256 F.3d 783, 787 (8th Cir.2001). As confirmed by the testimony of Dr. Martell and Dr. Pietz, "clinicians are very careful in characterizing religious beliefs as delusional, ... especially when the religious views are shared by others." Id. (internal citations omitted).[7]
Assuming the veracity of Ryan's statements regarding his religious beliefs, and recognizing that Ryan is not a member of *1055 a mainstream religious denomination, his acts of fully relinquishing his life to Yahweh in the hope of life eternal; constant vigilance to hear and follow Yahweh's voice and instruction; rigid adherence, as well as strict interpretation of the scriptures; and reliance on divine intervention are neither delusional nor incompetent. Many people legitimately base important decisions on religious faith, and place that faith in God rather than the legal system. Id. at 788. In this case Ryan perceives that his attorneys, and perhaps his mental health experts, have been sent by Yahweh to assist him. The belief that people on earth are sent by God to provide assistance is also not delusional or incompetent.
Ryan's counsel and experts claim that he exhibits incompetence by abdicating his legal decisions to his attorneys. This statement is contradicted by the fact that Ryan performs his own legal research. However, assuming he did abdicate decisions in this proceeding and his prior proceedings to his lawyers, that act does not necessitate a finding of incompetence. Completely rational people, with an understanding of their case and its consequences, choose to let their attorneys make necessary decisions without significant personal input, especially when they trust their attorneys, the matter is complex, and their own understanding and access to legal resources is limited. Ryan is mentally capable of making a rational decision to abdicate decisions about his case to his counsel. His act of doing so does not indicate incompetence.
Based on the evidence adduced at the hearing before me (which included all the prior mental competence testing and testimony, plus the parties' experts' updated review of their past work, and Dr. Pietz's testing, observations, and testimony), there is simply no credible evidence that petitioner suffers from a mental disease, disorder, or defect which has substantially affected his ability to appreciate his position in this proceeding or to make rational decisions on his own behalf. Holt v. Bowersox, 191 F.3d at 974.
I therefore conclude that during the course of this federal habeas proceeding, petitioner has had the capacity to participate and assist his counsel. He has been and remains able to advise his lawyers of his choices in prosecuting this case, and equally able to rationally choose to abdicate the decision-making to his lawyers, leaving them to raise and handle any and all legal issues without his personal involvement. Therefore, this court may now proceed to address the remaining issues of his § 2254 petition for habeas relief.
EXHAUSTION AND PROCEDURAL DEFAULT (CLAIMS VII, VIII, IX, XIV, XV, AND XVI)
A petitioner's procedural default may be excused if he shows cause and prejudice for the default or, alternatively, actual innocence. See Stanley v. Lockhart, 941 F.2d 707, 710 (8th Cir.1991) (citing Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). "Mental illness prejudices a petitioner if it interferes with or impedes his or her ability to comply with state procedural requirements, such as pursuing post-conviction relief within a specific time period." Holt, 191 F.3d 970, 974 (8th Cir.1999) (citing Malone v. Vasquez, 138 F.3d 711, 719 (8th Cir.1998)). A defendant is not competent to waive post-conviction remedies if he or she is suffering from a mental disease, disorder, or defect that may substantially affect his capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation. Id. (citing Anderson v. White, 32 F.3d 320, 321 (8th Cir.1994)); see cf. Nachtigall v. Class, 48 F.3d at 1080-81 (finding that even where petitioner showed *1056 he was mentally ill at the time of his conviction, he did not show cause to support review of successive and abusive habeas claims because he presented no evidence that he was incompetent to present his claims at time he brought his first two petitions); Stanley v. Lockhart, 941 F.2d at 708-10 (petitioner did not show cause for failing to timely appeal state trial court's denial of postconviction relief because despite psychiatrist's diagnosis of schizophrenia and statement that petitioner "might not have been able to participate effectively in his own defense or may not have been informed enough to understand the legal time frames and the limits under which he had to file his appeal," court held psychiatrist's report was not conclusive in establishing that petitioner was incompetent at the time he should have filed his appeal).
Therefore, if during the time of the appeal and the first post conviction proceeding, Ryan was not competent to make rational decisions, he lacked the ability to knowingly and voluntarily waive his right to appellate and postconviction review of not only his competency claims (VII, VIII, and IX), but also sentencing claims XIV, XV, and XVI. See, Holt, supra., Smith v. Armontrout, 865 F.2d 1502, 1506 (8th Cir. 1988). Under such circumstances, incompetence would constitute "cause" sufficient to excuse Ryan's procedural default on those claims. However, even if Ryan was incompetent during his direct appeal and postconviction proceedings, and his incompetence was a cause sufficient to excuse his procedural default, a finding of competence at the time of his 1986 murder trial would defeat any claim that he was prejudiced by the failure to raise claims VII, VIII, and IX (the competence claims) for appellate and postconviction review.
Thus, Ryan's competence at the time of trial is relevant to determining whether Ryan was prejudiced by his failure to raise Claims VII, VIII, and IX during direct appeal and his first post-conviction proceeding and also, if considered, the merits of Claim IX. Ryan's competence during the direct appeal and first postconviction proceeding must be assessed to determine if incompetence was the cause of his procedural default on competency claims VII, VIII, and IX, and sentencing claims XIV, XV, and XVI. Ryan's competence during the 1997 second postconviction relief proceeding is relevant to determining if he was afforded due process during the hearing where his competency to be tried in 1986 was decided. In effect, since litigation by Ryan and on his behalf has been ongoing since his 1985 arraignment, the question is whether he has ever been incompetent in any of these proceedings; if so, when, and did that incompetence prejudice him so as to excuse his procedural defaults. As more fully explained hereafter, I conclude that petitioner Michael Ryan was competent and afforded due process during all state trial, appeal and postconviction proceedings.
Ryan's Competence to be Tried in 1986
I previously concluded that Ryan could not show "prejudice" resulting form his failure to appropriately raise claims VII, VIII, and IX for state appeal or post-conviction review, because Judge Moran's conclusion that Ryan was competent was well-reasoned, fully supported by the record, and not subject to re-litigation in the federal. Filing 49 at p. 12-13. I now amplify that conclusion.
The issue of Ryan's competence to be tried in 1986 was not litigated until the 1997 second state post-conviction proceeding, Judge Gerald Moran presiding. Judge Moran found that Ryan was competent to be tried in 1986. See, Ryan III, Memorandum and Order at 66.
*1057 A habeas court's review of this decision is subject to the limitations set forth in 28 U.S.C § 2254.
[A] factual determination made by the state court, after a hearing, that is `evidenced by a reliable and adequate written indicia' generally is entitled to a presumption of correctness by the federal habeas court. ... A state court's conclusion regarding a defendant's competency is entitled to such a presumption. The presumption does not attach to the finding, however, if `the material facts were not adequately developed at the State court hearing,' or if `the applicant did not receive a full, fair, and adequate hearing in the State court proceeding,' or if `the applicant was otherwise denied due process of law in the State court proceeding.'"
O'Rourke, 153 F.3d at 567 (quoting 28 U.S.C. § 2254(d)(3), (6), (7)) (internal citations omitted). The inquiry in this habeas action is therefore whether Judge Moran's determination that Ryan was competent to be tried was sufficiently explained in his written judgment, supported by the record, and based on adequately developed facts derived from a full and fair hearing at which Ryan was afforded due process. If these criteria have been met, Ryan is not entitled to habeas relief absent proving that this ruling arises from an unreasonable application of clearly established federal law, or presenting clear and convincing evidence that "the factual determination by the State court was erroneous." O'Rourke, 153 F.3d at 569.
The petitioner claims a right to habeas relief because he was incompetent to be tried in 1986, (claim IX), his counsel was constitutionally ineffective in failing to raise petitioner's competence and request a competence hearing at the time of trial, (claim VII), the trial court's violated his rights by failing to raise the competency issue sua sponte and hold a competency hearing, (claim VIII). If the petitioner was competent to be tried, claim IX fails on the merits, and the petitioner cannot show prejudice by the failure of his attorneys or the trial judge to initiate a competency hearing.
In reaching his judgment on Ryan's trial competency, Judge Moran considered and analyzed the evidence existing at the time of the 1986 murder trial as well as the testimony and evidence adduced during the six-day second state postconviction hearing. Ryan was represented by the same highly qualified counsel representing him in this federal habeas action, and presented expert and lay testimony in support of his claim of incompetence to be tried. Ryan III, Memorandum and Order at 74. Judge Moran's factual bases and reasoning supporting his finding of competence were set forth in great detail in his memorandum and order. See, Ryan III, Memorandum and Order at 41-66. Judge Moran considered not only the evidence presented at the 1997 hearing, but Ryan's past mental health evaluations and testimony to assess his past competence, his credibility, the opinions of the experts, and his mental state at the time of trial. As the following analysis of the evidence explains, the record fully supports Judge Moran's findings.[8]
In November 1985, approximately one month after Ryan was arraigned for the murder of James Thimm, Dr. Logan met *1058 with Ryan for eight hours at the request of Louie Ligouri, Ryan's counsel, to determine Ryan's competency to stand trial and sanity at the time of Thimm's murder. Dr. Logan met with Ryan again for one and one-half hours in January 1986. Because psychological testing is administered by psychologists, Dr. Logan, a psychiatrist, did not administer any such tests. Ryan III, 705:22-706:3-5, 738:21-740:12. See also, T, 106:22-108:1.
According to Dr. Logan, his 1985 and 1986 evaluation revealed that Mr Ryan was introduced to the teachings of the Christian Identity Movement through Reverend Gale Wickstrom in 1982. By 1983, Ryan reported forming a group of fellow believers who lived together on a farm near Rulo, Nebraska. According to the information received by Dr. Logan, Ryan professed a belief that the "end time" was near, and that he and the members of his group had been chosen by God, referred to as Yahweh, to be part of the select group of 7000 warriors who would fight Satan at the Battle of Armageddon in the wheat fields of the Midwest. Ryan described performing the "arm test" to make routine daily decisions, with others in the Rulo group asking Yahweh questions through him. Ryan claimed he was organizing the men, not to include himself, to perform thefts, the proceeds of which funded purchases of food and weapons. Ryan professed that this theft was appropriate given the group's special status as warriors for Yahweh. Ryan explained that he gave members of the group special assignments to prepare for the Battle of Armageddon. Ryan stated that in late 1983, he first heard the voice of Yahweh gently speaking directly to him, but later this voice became part of his daily routinea running commentary of the day's events, including how to respond to Dr. Logan's examination. Ryan III, 742:24-748:11, 757:2-758:1, XXXXX-XXX:11. See also, T, 113:15-120:11.
Based on the explanation provided to Dr. Logan, the murder of James Thimm occurred because Ryan received a message from Yahweh that James Thimm was lacking in faith and must be punished. Yahweh had told Ryan that the Rulo farm needed to be purified to become a holy birthplace in preparation for the immaculate birth of Lisa Havercamp's child. As part of the purification process, Ryan led the group in torturing and murdering Thimm. According to Dr. Logan, Ryan believed and advised the other group members not to worry about the outcome of punishing Thimm because Yahweh did not love Thimm and whatever happens is "the will of God." (Ryan I, 4218:5-22; Ryan III, 753:14-755:12 758:16-18; T,122:1-123:8; 124:22-25; 127:3-5). (See also testimony of Michael Ryan at Ryan I, 4011:13-19, 4053:2-22).
Dr. Logan asked Dr. Schulman to perform psychological testing on Ryan. In February 1986, prior to the murder trial, Dr. Schulman spent 5-6 hours administering a psychological examination which included personally interviewing Ryan and the following battery of testing: Draw-a-Person test (a screening test for psychomotor skills and evaluation of intellect); Wechsler Adult Intelligence Scale Revised, ("WAIS") (an interactive intelligence testing); Wide Range Achievement Test ("WRAT") (which tests reading ability); Suicide Probability Scale; Rorschach Test (evaluates personality through projective testing); Thematic Apperception Test, ("TAT"); Story Recall (tests memory); and Word Association test. Dr. Schulman did not readminister MMPI testing in 1986, and has done no further testing on Ryan since 1986. Dr. Schulman's examination focused on psychological testing at the request of Dr. Logan, and therefore, his interview of Ryan was somewhat abbreviated. Dr. Logan performed the more extensive interview. Ryan I, 4319:7-4320:17; *1059 Ryan III, 28:6-30:14, 34:10-19, 35:13-38:2, 130:6-19, 625:25-726:5. See also, T:17:18-19, 20:3-21:25, 63:1-13, Exhibit 102, 1996 Schulman report.
At Ryan's 1986 trial, relying on this interview history, Dr. Logan testified that Ryan experienced auditory hallucinations, delusions, and psychosis arising from his mental illness of paranoid schizophrenia.[9]Ryan I, 4216:19-4219:23, 4285:6-8, 4220:2-4222:25. Dr. Logan also explained to the jury that although Ryan denied being mentally ill during his own trial testimony, (see, Ryan I, 3898:23-3899:14), people with paranoid schizophrenia often do not recognize that they are ill. Ryan I, 4225:10-4226:16. Dr. Logan explained that although Ryan likely knew that the murder of James Thimm was illegal and punishable under Nebraska law, due to his mental illness and resulting psychotic experience of hearing the voice of Yahweh directing him to torture and murder James Thimm, Ryan was obeying the commands of Yahweh in killing Thimm and could not distinguish between right and wrong. Ryan I, 4229:4-4230:25, 4232:2-14. (See also, testimony of Ryan at 4049:15-4053:22).
The opinions of Dr. Maurice Temerlin, Ph.D., who also testified on Ryan's behalf, were substantially in accord with those of Dr. Logan, although Dr. Temerlin expressed some uncertainty with the diagnosis. Ryan I, 2988:1-2991:18, 2992:25-2995:7; 3000:6-21.
Dr. Logan's diagnosis and opinions were also supported by the trial testimony of Dr. Schulman. Although Dr. Schulman did not diagnose paranoid schizophrenia in 1986, he concluded that Ryan had a paranoid personality disorder and a paranoid disorder characterized by active delusional thinking. Ryan I, 4321:6-4322:15, 4323:9-24. While an individual with these disorders may, under stressful situations, decompensate to paranoid schizophrenia, based on his psychological testing and extensive interviewing of Ryan, Dr. Schulman did not conclude that Ryan had schizophrenia. Ryan I, 4326:16-4327:6, 4328:2-18, 4330:12-18, 4332:5-10. Although Dr. Schulman reached these opinions in 1986, he stated that he was not asked in 1986 to render an opinion on petitioner's competency to stand trial, and offered no such opinion to defendant's counsel or the trial court. In fact, he provided no written report of his psychological testing until the second state postconviction hearings were initiated over ten years later. Ryan III, 138:19-23, 142:20-144:16, 154:23-25; T, 19:14-21:25 & Exhibit 102, 1996 Schulman report.
Dr. Logan was, however, retained to conduct "[a]n evaluation in regards to [Ryan's] competency to stand trial and insanity at the time of the offense," (Ryan III, Exhibit 1022, February 10, 1986 deposition of Logan at 7:22-23), and he issued a written report of his findings. (Ryan III, Exhibit 1024) (March 31, 1986 Logan report). Like Dr. Schulman, Dr. Logan did not advise the trial court or Ryan's counsel that Ryan was incompetent to be tried.
Two months prior to the trial, Dr. Logan testified that "[o]n the issue of competency to stand trial, [Ryan] generally had an accurate understanding of what he was charged with and the complications if he were found guilty." Ryan III, Exhibit 1022, February 10, 1986 deposition of Logan at 59:5-7. His later testimony explained:
Mr. Ryan appears to fit the criteria for a mental disorder, schizophrenia paranoid type as described in DSM-III, and that condition seems to be active at present *1060 and to have existed since at least sometime in late 1983, perhaps earlier.... [H]e has major beliefs that distort his perception of the world and influenc[e] his thinking in significant ways, both as it relates to his competency to stand trial and his sanity at the time of the offense. Whether that would be significant enough to render him incompetent to stand trial would be something a judge would need to decide, but we try to describe that in fairly concrete ways in which he might be affected.
Ryan III, Exhibit 1022, February 10, 1986 deposition of Logan at 60:7-19. This opinion was reached before Dr. Logan was informed of Dr. Schulman's psychological testing results. Ryan III, Exhibit 1022, February 10, 1986 deposition of Logan at 15:4-9.
Dr. Logan finalized the report of his conclusions regarding Ryan's insanity defense and competency to stand trial on March 31, 1986, the day that Michael Ryan began testifying (see Ryan I, 3737:1-3, 3839:18-24), and three days prior to Dr. Logan's testimony before the jury. Ryan I, 4171:1-14, Ryan III, Exhibit 1024, March 31, 1986 Logan report. Dr. Logan stated at the 1997 second postconviction trial, (and in this federal habeas proceeding), that he believed in 1986 that Ryan was not competent to be tried. Ryan III, 737:8-25; T, 132:22-25. However, his 1986 written report stated:
Mr. [Ryan], despite having a mental illness, schizophrenia, has an accurate understanding of the charges against him, the available pleas and possible penalties. He was able to describe the various procedures in his case and their meaning. He also had an appreciation of the gravity of the penalty that could be imposed if convicted. His understanding of the roles of the various officers of the court was adequate. After many hours of contact, he appears to have a workable relationship with one of his attorneys, although he still distrusts the second attorney. He can provide sufficient information regarding the events which transpired to allow his attorneys to formulate a defense. It could not be predicted how he might respond in court, but at least in several prior appearances [he] has demonstrated no unmanageable behavior. He appears to have the capacity to testify to the extent of his ability.
Mr. [Ryan], however, is still delusional. He views the trial as being ultimately in the hands of Yahweh, not in fact influenced by the judge or jury. If punishment is imposed, he would view it as coming at Yahweh's indulgence. If punishment is imposed, he would view it as a trial of God or as retribution for his own group's denial of Yahweh and not as an indication of his own personal wrongdoing in the offense of murder.
Given this significant reservation, Mr. [Ryan] otherwise would appear to have capacity to understand the charges against him and the ability to cooperate with his attorneys in the preparation of a rational defense.
Ryan III, Exhibit 1024 (March 31, 1986 Logan report) at p. 15. Although Dr. Logan did conclude that Ryan had schizophrenia, Dr. Logan did not state in his pre-trial deposition, report issued during trial, or trial testimony that Ryan was not competent to be tried. Ryan III, 738:738:1-7. Further, he never stated such an opinion to Ryan's trial counsel until after the trial was over. Ryan III, 505:18-25; 523:4-16, 620:4-6.
Dr. Logan's diagnosis of schizophrenia was challenged at trial by Dr. Emmet Kenney, M.D., a psychiatrist who testified on behalf of the State. Dr. Kenney evaluated Ryan and concluded he was not mentally ill and was able to understand and appreciate his actions and their consequences. *1061 Dr. Kenney further explained that even those with schizophrenia are often still aware of and accountable for their actions. Ryan I, 4408:19-4409:9. Dr. Kenney concluded that Ryan did not have any mental illness, understood the nature and extent of his actions when he murdered James Thimm, understood that what he was doing was wrong, and exhibited no evidence of psychosis. Ryan I, 4470:17-25, 4479:4-4483:18.
The issue of trial competence was first raised in Ryan's 1996 second state postconviction motion for relief. Between 1986 and 1996, neither Dr. Logan nor Dr. Schulman had contact with Ryan or any counsel acting on his behalf. In preparation for the 1997 hearing on the second postconviction motion, Dr. Schulman was retained to address the issue of whether Michael Ryan was competent in 1986 to be tried. Ryan III, 130:6-23. His testimony at that hearing focused on the process, purpose, and results of his 1986 psychological testing of Ryan, and the meaning of those results in the context of Ryan's competency.
Based on the 1986 testing data, Dr. Schulman testified that Ryan was not competent to stand trial. Ryan III, 134:23-135:6. Despite this conclusion, Dr. Schulman testified that Ryan was able to provide for his own basic human needs, respond coherently to questions, and follow directions. According to Dr. Schulman, by 1997 standards, Ryan's 1986 mental state would be treated on an outpatient basis. Ryan III, 145:19-146:8, 151:15-24.
Although Dr. Schulman had testified in 1986 that he could not reach a diagnosis of schizophrenia, at the 1997 hearing Dr. Schulman testified that Ryan had "schizophrenia, paranoid type," the same diagnosis reached by Dr. Logan. Ryan I, 4328:2-18, 4332:5-10; Ryan III, 129:7-13, 135:7-18, 142:13-19. Between the time of initial testing in 1986, and until offering his testimony in 1997, Dr. Schulman performed no further testing on Ryan. His change in diagnosis, and the findings of psychosis expressed in his 1997 testimony, arose from re-examining the 1986 testing material "more thoroughly and from a different perspective." Ryan III, 148:16-149:4.[10] While Dr. Schulman's 1997 testimony coincided with Dr. Logan's diagnosis of schizophrenia, Dr. Schulman asserted that his conclusion was derived independently of Dr. Logan's and through different evaluative techniques.
*1062 Dr. Logan's diagnosis of schizophrenia was derived from interviewing Ryan, and performing a psychiatric evaluation of Ryan in the context of information obtained from interviewing family members and others, as well as from documentary sources of background information, all prior to the 1986 trial. No further evaluation of Ryan was performed by Dr. Logan prior to his 1997 testimony before Judge Moran. Ryan III, 719:5-721:22 & Exhibit 1024, March 31, 1996 Logan report, at p. 2-3. See also, T, 106:22-108:1. Dr. Logan's 1986 competency determination was discussed in his 1986 report (Ryan III, Exhibit 1024, March 31, 1996 Logan report previously quoted herein at p. 21-22), and no additional report was referenced or offered during the proceedings of Ryan III.
In 1997 Dr. Logan testified that Ryan's paranoid schizophrenia resulted in delusional thinking that "undoubtedly" affected his perception of the trial for the murder of James Thimm. Ryan III, 786:4-8. Dr. Logan acknowledged that in 1986, he believed Ryan had an accurate understanding of the charges against him and the available pleas and possible penalties; had an appreciation of the gravity of the penalty that could be imposed if convicted; had a workable relationship with at least one of his attorneys; had provided sufficient information regarding the events that transpired in order to formulate a defense; and sat passively through the proceedings without interrupting the trial or demonstrating conduct that would prejudice his case. Ryan III, 806:23-808:22 & Exhibit 1024 (March 31, 1996 Logan report).
Nonetheless, Dr. Logan opined in 1997 that Ryan's paranoid schizophrenia, and the delusions, hallucinations, and psychosis arising from that disease, rendered Ryan not only insane at the time of the murder, but also incompetent to be tried in 1986. Ryan III, 790:24-791:7. According to Dr. Logan, Ryan was experiencing active and ongoing hallucinations that God, or Yahweh, was audibly speaking to him and providing him with instructions on how to conduct his daily life, including how to respond to the issues raised during his trial. Dr. Logan concluded that Ryan was delusional in believing he could hear the voice of Yahweh directing his life, and that any punishment he received, including execution, would be for the lack of faith by those on the Rulo farm, and not for his own moral and legal culpability in killing James Thimm. Ryan III, 749:19-750:11, 758:24-759:138, 760:14-761:20.
In addition to testimony of experts, Judge Moran received evidence of Ryan's personal participation in his 1986 trial and the first state postconviction proceeding. That evidence supported his finding that Ryan took an active role in his defense and was able to follow the advice of his counsel.
First, Ryan's experienced counsel at trial and his first postconviction proceeding believed Ryan was competent. According to his attorneys, Ryan expressed full knowledge of the trial and proceedings, could provide detailed information, advised his counsel when he believed they or other witnesses were incorrect, and was clearly able to provide assistance to his attorneys. Ryan took copious and accurate notes during his trial, and provided those notes to his counsel at the end of each trial day. His conduct during trial was well mannered. Ryan III, 447:10-448:17, 472:10-473:20, 525:11-526:12, 541:13-547:19, 548:3-25, 612:25-622:6.
Second, prior to trial and after being warned that his statements were not confidential, Ryan followed the advice of his counsel by refusing to respond to questioning by the State's psychiatric expert, Dr. Kenney, about his involvement in the events surrounding the torture and death *1063 of James Thimm. Ryan I, 4466:9-22, 4473:9-15; Ryan III, 802:2-11.
Third, Ryan attended the non-expert depositions prior to his trial, taking notes throughout. After speaking with his son and trial counsel, Ryan stated that he wanted a joint trial with his teenage son, Dennis Ryan, so he could assist his son at the trial. Ryan III, 376:2-381:11, 610:25-612:11.
Fourth, Ryan attempted to avoid execution by convincing Dennis Ryan to lie on the witness stand during that joint trial by refuting the testimony of others from the Rulo farm and blaming them for the acts that led to the death of James Thimm. Ryan III, 376:2-381:11, 610:25-612:11.
Based on the Ryan I and Ryan III records, Judge Moran found that the competency opinions offered by Dr. Logan and Dr. Schulman were not credible, especially since these opinions had not been stated by either expert in 1986 even though each expert had an opportunity to do so. Ryan III, Memorandum and Order at 61-65. Judge Moran further noted that the attorneys present throughout Ryan's trial, appeal, and first post-conviction proceeding believed Ryan was competent. Ryan III, Memorandum and Order at 61, 65-66. Finally, and most persuasive to Judge Moran, was the evidence of petitioner's attempt to avoid execution by successfully urging sixteen-year-old Dennis Ryan to lie on the witness stand and downplay his father's personal role in the death of James Thimm. (Ryan III, 376:2-381:11). This evidence alone was sufficient to convince Judge Moran that Michael Ryan was fully aware of the gravity of the charges against him, the possible punishment he was facing, and that he was competent and participating in the trial proceedings. Ryan III, Memorandum and Order at 56-58.
Due process prohibits the trial and conviction of a defendant who is mentally incompetent, but absent some contrary indication, trial judges may presume that defendants are competent. Jimenez-Villasenor, 270 F.3d at 559. The burden of persuasion rested with Ryan to show by a preponderance of the evidence that he was incompetent to stand trial, (id.), and the test is whether the defendant had "a sufficient present ability to consult his lawyer with a reasonable degree of rational understanding and whether the defendant had a rational as well as factual understanding of the proceedings against him." Id. (citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)).
Consistent with the Dusky standard, Judge Moran considered whether Ryan was able to understand the nature and object of the proceedings, comprehend his own condition with reference to those proceedings, and assist in a rational defense. See, Ryan III, Memorandum and Order at 53. Judge Moran ruled that Ryan was competent to stand trial in 1986. This judgment was fully supported by the record, affirmed on appeal, (Ryan III, 257 Neb. 635, 601 N.W.2d 473 (1999)), and is "entitled to a presumption of correctness by the federal habeas court." O'Rourke, 153 F.3d at 567. Ryan has produced no "convincing evidence that the factual determination by the State court was erroneous," and has failed to rebut the presumption of correctness. Ford, 256 F.3d at 788; O'Rourke, 153 F.3d at 569.
Even absent the "presumption of correctness," the evidence elicited during the federal evidentiary hearing, including additional testimony from Dr. Logan and Dr. Schulman, serves to further support Judge Moran's finding that "the trial judge and the attorneys did not overlook the issue of [Ryan's] incompetency; there simply was no issue of incompetency." Ryan III, *1064 (Memorandum and Order at 45) (emphasis in original).[11]
Ryan's competence claims, VII, VIII, and IX, were not raised on direct appeal or during the petitioner's first state postconviction motion. Filing 1, ¶¶ 54, 60, and 64. Since Ryan was competent to be tried in 1986, he cannot successfully assert prejudice with reference to habeas claim VII (counsel's failure to request a competency hearing), claim VIII (the court's failure to hold a competency hearing), or claim IX (being tried while incompetent). These claims are procedurally defaulted.
Ryan's Competence on Appeal, and During the First State Post-conviction Proceeding
Ryan argues that incompetence at the time of his appeal and first postconviction proceeding is sufficient to excuse his failure to raise claims VII, VIII, IX, XIV, XV, and XVI. I previously made no finding regarding whether Ryan was incompetent during these stages of his litigation.
Mental incompetency may constitute cause for Ryan's failure to raise appeal and postconviction claims if he proves that, during time periods when he could have pursued appeal or post-conviction relief, mental illness interfered with his ability to appreciate his position and make rational decisions regarding his case. Holt, 191 F.3d at 974.
I have concluded that Mr. Ryan was competent during these federal habeas proceedings, and based on my independent review of the record, I concur with Judge Moran's decision that he was competent in 1986. The petitioner's experts acknowledge that Ryan's mental state has remained virtually unchanged since before James Thimm's murder to the present. T, 53:21-54:6, 149:2-14. Having reviewed the evidence in this vast record, along with the additional evidence received in this proceeding, I conclude that Ryan has no mental illness or mental disorder rendering him incompetent. I further conclude that he has been competent during all stages of his litigation, from the present and dating back to his initial arraignment.
I therefore conclude that incompetency was not a cause for Ryan's procedural default of Claims VII, VIII, IX, XIV, XV, and XIV. Accordingly, petitioner has procedurally defaulted on Claims VII, VIII, IX, XIV, XV, and XIV, and those requests for habeas relief should be denied.
MERITS OF CLAIMS I through VI, X through XIII, and XVII
STANDARD OF REVIEW
I have previously found that Ryan is not procedurally defaulted from raising claims I through VI, X through XIII, and XVII. See filing 49, August 22, 2000 Memorandum and Order. This finding was sustained by Judge Kopf. See filing 74, December 29, 2000 Memorandum and Order. The merits of these claims must therefore be reviewed in accordance with the terms of the Antiterrorism Effective Death Penalty Act ("AEDPA").
*1065 Petitioner filed his original habeas petition in this court on November 17, 1995, see Ryan v. Hopkins, 4:CV95-3391, filing 1, which was well before the enactment of AEDPA. Although I have concluded that the present habeas petition is merely a continuation of petitioner's first petition because the latter had not been adjudicated on the merits, see filing 49, that does not mean that the pre-AEDPA standards apply. The Eighth Circuit has held that the AEDPA's provisions apply to all petitions filed after the act's effective date, "even when a prisoner's original petition was filed prior to AEDPA's effective date and [was] dismissed without prejudice for failure to exhaust state remedies."[12]Weaver v. Bowersox, 241 F.3d 1024, 1029 (8th Cir.2001) (citing Barrientes v. Johnson, 221 F.3d 741, 751 (5th Cir.2000); Mancuso v. Herbert, 166 F.3d 97, 101 (2d Cir.1999)). Because the present petition was clearly filed after AEDPA's effective date, the new standard of review applies.[13]
Under the provisions of the AEDPA, a federal court is bound by the state courts' findings on questions of fact unless the state court made a "decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C.A. § 2254(d)(2) (West Supp.2001). Additionally, a federal court must presume that a factual determination made by the state court is correct, unless the petitioner "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C.A. § 2254(e)(1) (West Supp.2001).
Section 2254(d)(1) states that a federal court may not grant a writ of habeas corpus unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1). As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), a state court acts contrary to clearly established federal law if it applies a legal rule that contradicts the Supreme Court's prior holdings or if it reaches a different result from one of that Court's cases despite confronting indistinguishable facts. Id. at 399, 120 S.Ct. 1495. I apply these standards in considering petitioner's claims.
MERITS
Claim ITrial Judge Turning His Back During Petitioner's Testimony
In this claim petitioner argues that he was denied his due process right to a fair trial when the trial judge turned his back to him in the presence of the jury during at least one third of his seven-hour testimony. Specifically, petitioner contends that such action communicated to the jury that the court despised the petitioner, did not believe his insanity defense, and *1066 agreed with the prosecution's argument that petitioner was faking his insanity. In respondent's answer, the State admits that petitioner raised and exhausted this claim in the state courts. Filing 13, ¶ 13. It is properly before this court for habeas review.[14]
The Due Process Clause guarantees a state criminal defendant the right to a "`fair trial in a fair tribunal' with an impartial court." Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997).
There is no question that the law on judicial bias is clearly established: a criminal defendant is constitutionally required to be tried before an impartial judge, and the likelihood or appearance of bias, even in the absence of actual bias, may prevent a defendant from receiving a fair trial.
Kinder v. Bowersox, 272 F.3d 532, 540 (8th Cir.2001)(citing Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). The Supreme Court has often cautioned about the impact a trial judge may have on a jury and its fact-finding function. The Court has stated that "[t]he influence of the trial judge on the jury `is necessarily and properly of great weight' and `his lightest word or intimation is received with deference, and may prove controlling.'" Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933)(quoting Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 38 L.Ed. 841 (1894)). The Eighth Circuit has recognized that by reason of the judge's role, the judge is a figure of influence whose every change in facial expression and word is attentively noted by a jury. Rush v. Smith, 56 F.3d 918, 922 (8th Cir.1995)(held new trial warranted on § 1983 excessive force claim where trial court's comments implied that plaintiff and witnesses testified consistently out of racial solidarity).
Federal courts, however, will not review challenges to judicial misconduct by a state judge unless it has "infringe[d] upon a specific constitutional right or [was] so prejudicial that [it] den[ied] due process." Harris v. Lockhart, 743 F.2d 619, 620 (8th Cir.1984)(citing Rhodes v. Foster, 682 F.2d 711, 714 (8th Cir.1982); Maggitt v. Wyrick, 533 F.2d 383, 385 (8th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976)). "The record must either `disclose actual bias on the part of the trial judge or leave the reviewing court with an abiding *1067 impression that the judge's remarks and questioning of witnesses projected to the jury an appearance of advocacy or partiality.'" Warner v. Transamerica Ins. Co., 739 F.2d 1347, 1351 (8th Cir.1984)(quoting United States v. Singer, 687 F.2d 1135, 1141 n. 10 (8th Cir.1982)). A court should be slow to set aside a conviction for alleged judicial misconduct "`unless it appears that the conduct was intended or calculated to disparage [a party] in the eyes of the jury and to prevent the jury from exercising an impartial judgment upon the merits.'" Rush, 56 F.3d at 922 (quoting La Barge Water Well Supply Co. v. United States, 325 F.2d 798, 802 (8th Cir.1963))(emphasis added).
The Supreme Court has noted a "judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person." Liteky v. U.S., 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). A judge may, during the course of the trial, learn of an "obscure religious sect, and acquire[] a passionate hatred for all its adherents." Liteky, 510 U.S. 540, 550, 114 S.Ct. 1147 (1994). However, the judge is not deemed partial and thereby incapable of administering a fair trial because he or she, on the basis of the evidence, forms an opinion, unless the judge "displays a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky, 510 U.S. at 555, 114 S.Ct. 1147.
[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.
Id.
Therefore, in determining the prejudicial effect of a judge's conduct or comments, the court must balance the nature and seriousness of the alleged misconduct against the context in which it occurred to determine whether the conduct or comments "adversely affected the overall fairness of the trial." Kinder, 272 F.3d at 538 (citing Walker v. Bishop, 408 F.2d 1378, 1382 (8th Cir.1969); United States v. Bland, 697 F.2d 262, 265 (8th Cir.1983)). On Ryan's direct appeal of his conviction and sentence, the Nebraska Supreme Court held that Ryan had not been prejudiced by the trial judge's conduct of turning his back to the jury. Ryan I, 233 Neb. at 122, 444 N.W.2d at 641. This decision provided the basis for that Court's denial of state postconviction relief in Ryan II and Ryan III. See, Ryan II, 248 Neb. at 460, 534 N.W.2d at 800; Ryan III, 257 Neb. at 658, 601 N.W.2d at 491.
Under the facts developed in this case I conclude that the decisions of the Nebraska Supreme Court do not constitute an "unreasonable application" of clearly established federal law as determined by the United States Supreme Court, nor that its decisions were "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
First, none of the Nebraska Supreme Court's rulings in Ryan I, Ryan II, or Ryan III "directly contradicts Supreme Court precedent" or "reaches a result opposite to a result reached by the Supreme Court on `materially indistinguishable' facts." Kinder, 272 F.3d at 538. An "unreasonable application" of the law is not the same as an incorrect application. Kinder, 272 F.3d at 538 (citing Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 *1068 L.Ed.2d 9 (2001)). Under AEDPA, "[t]he state court's application might be erroneous, in our `independent judgment,' yet not `unreasonable.'" Id. (quoting Williams v. Taylor, 529 U.S. at 411, 120 S.Ct. 1495).
Petitioner argues that the Nebraska court's harmless error analysis incorrectly focused on the evidence of his participation in the murder of James Thimm when the real issue was his insanity.[15] He states that trial counsel did not put him on the stand to refute his participation in the events leading to the murder. In fact, adds the petitioner, he, for the most part, admitted his participation in such events during his testimony. Petitioner argues that the only reason his attorney asked him to testify was to give the jury "a firsthand impression of his mental illness" and that by turning his back, the trial judge put into question the credibility of his testimony and ratified the State's position that he was feigning insanity.
Ryan testified at trial for two reasons: 1)his counsel believed the testimony would be persuasive on the insanity defense; and, 2) to support a claim that someone else killed James Thimm, that is, others who testified had lied about Ryan's involvement in James Thimm's death. Ryan II, 203:10-19, 339:18-341:7. Ryan's counsel thought Ryan's fervent belief that Yahweh was telling him to do everything on the Rulo farm "was something that ought to be conveyed to the jury," and was totally consistent with the testimony of his mental health experts. Ryan II, 205:4-25. In addition, Ryan had presented his counsel with extensive notes taking exception to the trial testimony of other witnesses and expressing his desire to "get the truth out" to the jury. Ryan II, 2071-10.
Ryan's testimony was consistent with these stated purposes. Much of Ryan's testimony was devoted to stating that he was not personally involved in the acts which led to James Thimm's death, and that others had lied to the jury in blaming him for those acts. He explained his religious beliefs and how those beliefs arose to the jury. As he explained the details of the torture inflicted on James Thimm, he testified that acts he witnessed, committed, and permitted others to commit were approved by Yahweh, with Yahweh's approval conveyed to Ryan through the arm test. Ryan I, 3960:13-4108:17. This belief was consistent with the testimony of Ryan's mental health experts who stated that Ryan was delusional, psychotic, and legally insane when the murder occurred.
The record establishes that the trial judge did turn his back to Ryan during the particularly graphic portions of Ryan's testimony. Ryan I, 1332:21-1333:5; Ryan III, 83:14-84:10. No objection was made to this conduct at the trial. At the close of the evidence, the jurors were instructed that they were the "sole judges of the credibility of the witnesses and the weight to be given to their testimony." Ryan I, transcript at p. 282. The jury was also instructed:
You must not construe any statements, actions or rulings of the Court in the trial of these cases, nor any of the inflections of the voice in reading these instructions, as reflecting an opinion of the Court as to how this case should be decided.
. . . . .
The law does not permit me to comment on the evidence, and I have not intentionally done so. If it appears to you that I have so commented, either during the trial or the giving of these instructions, *1069 you must disregard such comment entirely.
Ryan I, transcript at p. 252 (emphasis added). During deliberations, the jury requested the transcribed testimony of all the psychologists and psychiatrists who testified, and an opportunity to again hear the cross-examination of Dennis and Michael Ryan. Ryan I, transcript at p. 287, 294 (emphasis in original). These requests were fully accommodated. Ryan I, transcript at p. at 291-92, 2940.
Following the guilty verdict and sentencing, at the motion for new trial, Ryan's primary trial counsel, Richard Goos, raised for the first time a claim that Ryan was denied a fair trial because the trial judge turned his back to Ryan while testifying. Mr. Goos stated that he did not object because he "wasn't paying that much attention," but was informed by others that it occurred and, at the time of the motion for new trial, estimated that it occurred for fifty percent of Ryan's testimony. The prosecuting attorney responded by noting that this conduct by the trial judge occurred with reference to prosecution witnesses, but could not recall seeing the judge turn his back during Ryan's testimony. Ryan I (proceedings)[16], 1332:6-20, 1333:6-1334:5.
When this issue was raised to the Nebraska Supreme Court on direct appeal, petitioner argued that, by virtue of the trial judge turning his back to Ryan while he testified, the jury was "told not to believe Defendant's testimony, rendering his trial fundamentally unfair. . . ." Ryan II, Exhibit 3, appellate brief of Michael Ryan at p. 59. The Nebraska Supreme Court held:
The fact that the trial judge turned away from the defendant in an attempt to hide his expressions from the jury while the defendant described, in detail, the atrocities of his crime was inappropriate, but does not constitute prejudicial error in this case. There are cases when such conduct by a judge might constitute prejudicial error in a criminal trial, but in this case, where the evidence of defendant's guilt is so over-whelming,[17] we hold that the trial judge's actions did not constitute reversible error. It would have been better had the judge observed all witnesses while they testified about the sickening events, as the jury was required to do, but the judge's conduct does not constitute prejudicial error in this case. If it be considered that defendant is attacking the judge's conduct as affecting the guilt-innocence portion of the trial, there are separate reasons why that conduct does not require reversal of this cause on that issue.
Ryan I, 233 Neb. at 122, 444 N.W.2d at 641.
Ryan filed a motion for state postconviction relief which alleged ineffective assistance of counsel in that his trial attorney did not timely object to the trial judge's conduct of turning his back to the jury during Ryan's testimony. During the first *1070 postconviction motion hearing, which occurred seven years after the trial, Mr. Goos testified that Judge Finn turned his back to Ryan "for about one-third of the man's testimony and he did it to no other witness, and it was very graphic and it was deliberate." Ryan II, 480:4-16. During the trial Ryan was seated to the left of the judge, and immediately in front of the jury. His counsel was seated in a position "towards the end of the row" and could observe the jurors through the course of the trial. According to Mr. Goos, when the judge turned his chair to the window, Ryan was silhouetted against the high back of the chair. Ryan II, 283:13-20, 480:20-481:2. Mr. Goos stated he "was quite aware of it" when this conduct occurred, and that others in the courtroom asked him why the judge was doing this. Mr. Goos acknowledged that he did not make a record of how often, for how long, or during what portions of the testimony this conduct occurred. Ryan II, 481:8-15.
Judge DeWayne Wolf, who presided over this proceeding, held:
Defendant's counsel raised this issue on motion for new trial and the judge explained that he turned away from the jury so the jury would not see his reaction to the testimony about the defendant forcing a shovel handle up the victim's rectum.
The Nebraska Supreme Court addressed this complaint on direct appeal. That court said "there are cases where such conduct by a judge might constitute prejudicial error, but in this case, where the evidence of defendant's guilt is so overwhelming, we hold that the trial judge's actions do not constitute reversible error."
Unless it would reasonably appear the appellate decision would have been different had the objection been made earlier, there is no basis for the claim of ineffective assistance of counsel on this ground.
Ryan II, Memorandum and Order at p. 74.
On appeal from that order, Ryan did not articulate that the judge's conduct prejudicially impacted the defendant's insanity defense. Citing Goos' testimony, Ryan argued that the judge's conduct told the jury that the presiding judge was biased and could not "stand" or "stomach" Ryan. See, State of Nebraska v. Ryan, Case No. 94-207, appellant's brief at pp. 108-118. The Nebraska Supreme Court noted that it had already, on direct appeal, considered the issue of whether the trial judge's conduct of turning away from the defendant during his testimony denied Ryan's right to a fair trial. Having previously held that the judge's conduct did not constitute prejudicial error, the Supreme Court denied Ryan's motion for postconviction relief alleging that defendant's counsel was ineffective for not objecting to the conduct. Ryan II, 248 Neb. at 460, 534 N.W.2d at 800.
In Ryan's second state postconviction motion, he attempted to re-define the claim by asserting that the judge's conduct of turning his back to Ryan was part of the cumulative judicial misconduct that denied Ryan a fair trial on the insanity defense. The second postconviction hearing provided no further information of the extent or timing of Judge Finn's conduct. Judge Randall Rehmeier, who at the time of the 1986 trial was one of the prosecutors for the state, testified that he recalled the trial judge, Judge Finn, "turning at an angle away from Mr. Ryan" during his testimony. Ryan III, 697:23-698:3. Judge Finn testified that this probably occurred to some extent with every witness, but he had no recollection of it occurring during one-third to one-half of Ryan's testimony. Ryan III, 84:6-10, 84:24-85:4.
*1071 Ryan argued that "[d]ue to the conflicting expert testimony presented at trial, Mr. Ryan's trial counsel determined that the best evidence to support the insanity defense was the testimony of Ryan himself." State of Nebraska v. Ryan, Case No. 97-1035, appellant's brief at p. 36. "Throughout this crucial testimony, when the jury had its first real opportunity to examine Mr. Ryan to determine whether Mr. Ryan was insane, Judge Finn turned his back to Mr. Ryan." Id. This claim was denied.
On appeal of this second postconviction determination, the Nebraska Supreme Court did not reconsider the prejudicial impact of the judge's conduct as it related specifically to Ryan's insanity defense. The Court held:
Ryan cannot raise the issues that counsel litigated on direct appeal concerning the impact of Judge Finn's turning his back during Ryan's testimony simply by rephrasing this as being cumulative judicial misconduct.
Ryan III, 257 Neb. at 658, 601 N.W.2d at 491.
The Nebraska Supreme Court held on direct appeal that the record overwhelming supported the jury's conclusion that Ryan had committed acts leading to James Thimm's death, and the judge's alleged conduct did not prejudice Ryan's right to a fair trial on the issues of guilt or innocence. Ryan I, 233 Neb. at 122, 444 N.W.2d at 641. The court further held that, on the "guilt-innocence portion of the trial, there are separate reasons why that conduct does not require reversal of this cause on that issue." Id. The Court did not explain the "separate reasons" it considered in affirming Ryan's conviction.
Ryan bears the burden of proving by clear and convincing evidence that the state courts' decisions were contrary to clearly established federal law or were based on an unreasonable factual determination. 28 U.S.C. § 2254(d) & (e)(1). He has not met this burden.
Ryan was constitutionally entitled to a jury determination of his insanity defense unaffected by prejudicial judicial misconduct. However, determining what constitutes judicial misconduct sufficient to prejudice the defendant's rights requires closely analyzing the seriousness of the court's conduct; the weight of the evidence in support of the jury's verdict; and the trial court's instructions or other attempts to cure any prejudice. See, e.g., discussion and cases cited in Nature and Determination of Prejudice Caused by Remarks or Acts of Federal Trial Judge Criticizing, Rebuking, or Punishing Defense Counsel in Criminal Case as Requiring New Trial or Reversal, 178 A.L.R. Fed. 381 (2002); Gestures, facial expressions, or other nonverbal communication of trial judge in criminal case as ground for relief, 45 A.L.R. 5th 531 (1997). "[E]ach case of allegedly prejudicial comments made by the trial judge `must turn on its own circumstances.'" Rush, 56 F.3d at 922 (quoting United States v. Singer, 710 F.2d 431, 436 (8th Cir.1983)(en banc)).
The Nebraska Supreme Court's determination that Ryan was not denied a fair trial by the trial judge turning his back to Ryan, while perhaps ambiguous, does not directly contradict Supreme Court precedent. The determination is also not inconsistent with a result reached by the Supreme Court or the circuits on materially indistinguishable facts. Kinder, 272 F.3d at 538 (citing 28 U.S.C. § 2254(d)(1)).
Further, Ryan has failed to show that the Nebraska Court's decisions were "based on an unreasonable determination of the facts in light of the evidence presented" in the state courts. 28 U.S.C § 2254(d)(2), for three reasons.
*1072 First, the record contains no specific and credible evidence to assess the severity of the trial judge's conduct. After the trial and during the motion for new trial, defendant's counsel admitted he was not "paying attention" but was reporting what others had noticed, and stated that Judge Finn turned his back to Ryan during half of his testimony. The prosecutor did not recall seeing this conduct. Ryan I (proceedings)[18], 1332:6-20, 1333:6-1334:5. Ryan has not explained how the conduct of a trial judge turning his back to the defendant's testimony could deliver a clearly prejudicial message to the jury, while the same conduct did not capture the attention of either the defendant's counsel or the prosecutor during the trial.
By the time of the first state postconviction proceeding seven years later, defendant's counsel testified that he was "quite aware of" this "very graphic" and "deliberate" conduct by the trial judge during one-third of Ryan's testimony, that others had also brought it to his attention during the trial, and that he nonetheless failed to object. Ryan II, 480:4-16. At the second state postconviction proceeding, the prosecutor recalled that Judge Finn turned at an angle to Ryan during his testimony, and Judge Finn admitted turning his back to witnesses (not just Ryan), but the severity of this conduct remained in dispute. Ryan III, 84:6-10, 84:24-85:4, 697:23-698:3.
This record presents insufficient factual support for a claim of judicial misconduct warranting habeas relief. Ryan was seated immediately to the left of the trial judge while being questioned by the prosecutor and defense counsel. Ryan's counsel, Mr. Goos, is the source of information concerning the extent of Judge Finn's conduct in turning his back to Ryan while testifying. Mr. Goos' statements at the motion for new trial raise serious doubts as to whether he testified in Ryan II on the basis of his personal observation of Judge Finn's conduct (rather than relying on what others had told him), and whether he could accurately recall the extent and impact of this conduct. Under such circumstances, the Nebraska courts would not be unreasonable in concluding that Ryan had failed to prove prejudicial misconduct by Judge Finn.
Second, the jury specifically requested an opportunity to review the testimony of the mental health experts. This confirms that it did not overlook its obligation to consider the evidence submitted on the insanity defense in deciding the case.
Third, the jury was instructed that it was the sole judge of the credibility of the witnesses and to disregard any conduct or comment by the judge in performing that function. "[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." Bruton v. U.S., 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). However, absent such circumstances or direct evidence to the contrary, it is presumed that jurors have followed court's instructions and determined the case on the evidence properly before it. Tunstall v. Hopkins, 306 F.3d 601, 609 (8th Cir. 2002) (citing Jones v. United States, 527 U.S. 373, 394, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999)) (denying habeas claim of unfair trial where juror was seen reading newspaper during trial, but jury had been admonished to avoid exposure to media coverage regarding the case).
The jurors for Ryan's trial were instructed on their obligation to decide the *1073 facts of the case without regard to any conduct or comment made by the judge. Ryan has presented no evidence that this instruction was ignored, or that Judge Finn's conduct was of such a severe and disparaging nature that a curative instruction would be disregarded by a jury. Based on the evidence, the jury concluded that Ryan was guilty of murdering James Thimm. Although Judge Finn's conduct in turning his back to Ryan during Ryan's testimony was improper, the evidence does not support finding that Ryan was thereby unconstitutionally denied a fair trial. See, Louisell v. Director of Iowa Dept. of Corrections, 178 F.3d 1019, 1024 (8th Cir.1999) (denying habeas relief where, although prosecutor made improper remarks to jury, considering the strength of the state's evidence and the curative instructions provided by the trial court, defendant not denied a fair trial).
Ryan has failed to prove that the Nebraska Supreme Court's denial of appellate or postconviction relief on Claim I was contrary to clearly established Supreme Court law, or the result of an unreasonable factual determination. Claim I of his motion for habeas relief should therefore be denied.
Claims II and IIIEx-parte Meetings with the Stice and Thimm Families
In claims II and III petitioner argues that the trial judge's ex-parte communications with the Stice and Thimm families, respectively, after his conviction for first-degree murder of James Thimm and before his sentencing hearing, deprived him of his right to Due Process of law as guaranteed by the Fourteenth Amendment. In more specific terms, petitioner contends that the judge's comments during the ex parte communications reflect the judge's bias, and that he should have disqualified himself after receiving information and arguments from family members relevant to his sentencing decision. These claims were raised and exhausted in the state courts, (see, filing 13, State Answer, ¶¶ 20, 21, 24, 25), and they are properly before this court for habeas review.
A trial before a biased judge is considered "presumptively unfair" and such unfairness is reason enough to grant habeas relief. Walker v. Lockhart, 763 F.2d 942, 960 (8th Cir.1985).
There is no question that the law on judicial bias is clearly established: a criminal defendant is constitutionally required to be tried before an impartial judge, and the likelihood or appearance of bias, even in the absence of actual bias, may prevent a defendant from receiving a fair trial.
Kinder, 272 F.3d at 540.
However, "most questions concerning a judge's qualifications to hear a case are not constitutional ones." The Due Process Clause establishes a constitutional floor, not a uniform standard, and "these questions are, in most cases, answered by common law, statute, or the professional standards of the bench and bar." Bracy, 520 U.S. at 904, 117 S.Ct. 1793. The Supreme Court has, however, recognized two main instances that merit a conclusive presumption of actual bias because they carry such a high probability of judicial bias: first, where the judge has a pecuniary interest in the outcome of a trial; and second, where the judge has been "the target of personal abuse or criticism from the party before him." Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975).
Petitioner has not established that Judge Finn had "a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case." Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927). While the comments made by the judge during his meeting with James Thimm's family regarding *1074 his opposition to the defense attorneys' fees is arguably evidence of some pecuniary interest, (Ryan III, Exhibit 1041, Heppner letter, at p.5), I agree with the Nebraska Supreme Court's assessment that "this is not the type of direct pecuniary interest" needed for a conclusive presumption of prejudice. See Ryan III, 257 Neb. at 655, 601 N.W.2d at 489. See, e.g. Fero v. Kerby, 39 F.3d 1462, 1479 (10th Cir.1994) (finding trial judge had no direct, pecuniary interest sufficient to require disqualification where prosecutor employed judge's son to work as a law clerk on defendant's case).
Further, Ryan has neither alleged nor proved that the probability of actual bias on the part of the judge is too high to be constitutionally tolerable because Judge Finn was "`the target of personal abuse or criticism from a party before him.'" Kinder, 272 F.3d at 540 (quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)).
The question is therefore "whether the state court unreasonably determined the facts when it declared that Judge [Finn] was not actually biased and that his impartiality could not reasonably be questioned." Kinder, 272 F.3d at 540. See also, See Dyas v. Lockhart, 705 F.2d 993, 996-97 (8th Cir.1983). In considering a claim of this nature, the court must at all times presume the judge's honesty and integrity. Dyas, 705 F.2d at 996 (citing Withrow, 421 U.S. at 47, 95 S.Ct. 1456). The due process test to determine if presumption of judicial bias is proper is whether, "realistically considering psychological tendencies and human weaknesses, the judge would be unable to hold the proper balance between the state and the accused." Id. (citing Tumey, 273 U.S. at 532, 47 S.Ct. 437; Withrow, 421 U.S. at 47, 95 S.Ct. 1456; Taylor, 418 U.S. at 501, 94 S.Ct. 2697). Under the standards discussed above, disqualification of a judge is constitutionally required only in the most extreme cases of bias or prejudice. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986)(cited in Kinder, 272 F.3d at 539).
Ryan has failed to prove entitlement to habeas relief under 28 U.S.C. § 2254(d)(1).
To the extent that the issue of judicial bias may be a mixed question of law and fact, the state court's determination that [Ryan's] right to due process was not violated as the result of judicial bias or the appearance of bias is neither contrary to nor does it result from an unreasonable application of clearly established federal law.
Kinder, 272 F.3d at 541 n. 8. Ryan has also not proven that the Nebraska courts' finding was unreasonable under § 2254(d)(2). A federal court may independently find that a judge was biased or appeared to be biased, but "in evaluating the application of clearly established law, that a federal habeas court might believe the findings of the state court to be incorrect does not mean they are unreasonable under § 2254(d)(2)." Kinder, 272 F.3d at 541.
The issue of judicial bias arising from or evidenced by Judge Finn's meetings with the Stice and Thimm families prior to sentencing was raised, litigated, and decided in the second state postconviction hearing.[19] Although Judge Moran also found *1075 that Ryan's claims arising form the ex parte meetings had previously been litigated and were not based on "newly discovered" information,[20] he nonetheless reviewed the merits of these claims. The factual determination made by a state court is entitled to the "presumption of correctness" so long as the material facts were adequately developed during a full, fair, and adequate due process hearing in the state court, and resulted in a "reliable and adequate written indicia," (O'Rourke, 153 F.3d at 567), of the opinion reached by the court.
Upon review of the record, I find that this standard has been met; Judge Moran's decision is presumptively correct; and Ryan has failed to rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Judge Moran held:
The evidence in the record from the trial, presentence investigation, and sentencing proceeding, as reflected in the sentencing order in this case, in no way supports a contention that the trial judge was moved to impose a sentence of death for any reason other that a consideration of properly admissible and properly received evidence. The evidence reflects that the trial court extended the offer to meet the victim's family in an effort to answer procedural questions and provide information, as opposed to gaining information about Michael Ryan, James Thimm, or anything else connected with this case. The sentencing order findings are based upon documented evidence and the record before the trial court at the time of sentencing.
Understand, the defendant's interpretation and the conclusions he draws from the May 9, 1986, meeting are that the presumption of prejudice has not been rebutted by the State beyond a reasonable doubt. However, the court finds to the contrary. The topics mentioned at the meeting, when examined in light of what point the case had reached (after the facts of the case had been presented in open court), convincingly demonstrate that the trial judge did not receive any input that prejudiced the defendant's due process rights at sentencing; nor did the trial judge invite, or receive, an ex parte communication as an extrajudicial source of information, concerning defendant's pending sentencing. I conclude, therefore, that no violation of State v. Barker, 227 Neb. 842, 420 N.W.2d 695 (1988), occurred. Accordingly, defendant is not entitled to any relief on this claim.
Ryan III, Memorandum and Order at p. 39-40.
Judge Moran thoroughly analyzed and outlined the evidence supporting his opinion. Ryan III, Memorandum and Order at p. 32-40. Judge Moran noted that "[t]here is little doubt that an improper ex parte meeting did occur on May 9, 1986," when Thimm and Stice family members entered the judge's chambers to ask questions, *1076 and that this meeting "immediately raises questions." Ryan III, Memorandum and Order at p. 37. He found, however, that Judge Finn had advised those present that Michael Ryan could not be discussed, (Ryan III, 300:19-301:10), and the trial evidence and sentence to be imposed on Ryan were not discussed. The meeting participants were not asked, and did not offer an opinion on what Ryan's sentence should be. The meeting focused on Dennis Ryan, and Judge Moran found that "the evidence demonstrates with absolute certainty that the trial judge did not receive any input or extrajudicial ex parte communication or information from any other person at the meeting on this subject." Ryan III, Memorandum and Order at p. 37-38. (See Ryan III, 221:23-222:14, 231:21-232:1, 240:17-242:2, 250:1-251:16, 254:15-255:17, 295:9-12, 297:20-23, 346:2-12 & Exhibit 1041, Heppner letter).
Ryan argues that judicial bias was evident in the following acts and comments by Judge Finn, and influenced his sentencing findings:
1) Actively concealing the May 1986 meeting and the substance of the conversations at that meeting; (Petitioner's Brief on the Merits at p. 29-31),
2) Hearing comments on the impact of James Thimm's death on his family; (Petitioner's Brief on the Merits at p. 31-32),
3) Commenting on a factor relevant to a statutory mitigating circumstance under Neb.Rev.Stat. § 29-2523(2)(b); (Petitioner's Brief on the Merits at p. 32-34), and
4) Expressing animosity toward Ryan, his family and counsel, while showing favoritism toward the prosecutor. (Petitioner's brief on the Merits at p. 34-36).
Based on Ryan's letter to his son, Judge Moran found that Ryan was informed of the ex parte meeting issue prior to his first postconviction proceeding. Ryan III, Exhibit 1047. Ryan's letter to his son establishes that Ryan knew Judge Finn had engaged in an ex parte meeting, but it does not establish that he knew the judge had met with members of the Thimm family. Nonetheless the alleged concealment of the details of the meeting is insufficient to defeat the presumption of judicial evenhandedness, honesty, and integrity, (Dyas, 705 F.2d at 996), especially when the record reveals that the aggravating factors found by Judge Finn, including the factors relevant to Luke Stice, were fully supported by the trial and sentencing evidence. See, Ryan II, Exhibit 2B at 410-11 (order of sentence); Ryan I, 1172:18-1176:15, 1645:11-24, 1878:10-1889:4, 3118:17-3129:12, 3975:13-3978:22; Ryan I (proceedings)[21], 1376:20-1400:25, 1452:22-1453:24, 1472:8-1478:17, 1528:8-1529:2, 1552:14-23, 1559:9-1562:19.
It is true that a statement by Ms. Heppner that her aunt and uncle had "received a life sentence too," (see, Ryan III, Exhibit 1041, Heppner letter), could be construed as a plea to find aggravating factors and impose a more severe sentence than life imprisonment. In light of the significant evidence to support the judge's findings, however, there is no evidence that the judge disregarded his obligation to consider only the evidence properly presented in reaching his sentencing decision.
Ryan further argues that Judge Finn obtained information in the ex parte meeting relevant to his denial of the mitigating circumstance set forth in Neb.Rev.Stat. § 29-2523(2)(b); whether the offender acted under unusual pressures or influences *1077 or under the domination of another person. In finding no evidence to support this mitigating factor, Judge Finn concluded that "[t]he evidence would show, if anything, that other people on the Rulo farm acted under the domination of Michael W. Ryan." Ryan II, Exhibit 2B at 416 (order of sentence). According to Daneda Heppner's letter, Judge Finn had commented to the family before sentencing that he was baffled at "how Ryan could have such power over" the others on the Rulo farm. Ryan III, Exhibit 1041, Heppner letter, at p. 7. Karen Schmidt, Thimm's foster sister, testified that in that meeting, she stated that James Thimm had changed radically after moving to the Rulo farm. Ryan III, 330:6-332:6.
Noting the substantial evidence in the record that Ryan "was the unquestioned leader of the group on the Rulo farm." Ryan III, Memorandum and Order at p. 38, see, e.g., Ryan I, 1139:18-1164:15 (testimony of Cheryl Gibson), 4199:14-4203:16 (testimony of Dr. Logan), Ryan I (proceedings)[22], 1375:13-1400:25 (testimony of Ora Richard "Rick" Stice). Judge Moran found "no evidence even remotely suggesting that the trial judge received ex parte information ... which would elevate a `Ryan's power over others' comment to the level of an extra-judicial source of information" that prejudiced Ryan and violated his due process rights. Ryan III, Memorandum and Order at p. 39. Having heard the overwhelming evidence of Ryan's domination at the Rulo farm, Judge Finn was fully aware of the testimony that Ryan was not the victim of domination by others, but had in fact influenced others to act on his command. There is no evidence to support a claim that any comments in the May 9, 1986 meeting influenced his decision.
Finally, petitioner argues that the judge showed a "deep and personal bias" against the petitioner, his family, and his counsel through the comments he made during the meeting. Judge Moran described Judge Finn's derogatory statements toward Ryan's ex-wife and his attorneys, and his statement of sympathy for the prosecutor as "idle musings" but not evidence that judicial bias influenced him to impose the death penalty. Ryan III, Memorandum and Order at p. 39. This finding is presumptively correct.
Judge Moran noted the several comments set forth in the letter of Daneda Heppner, Ryan III, Exhibit 1041, Heppner letter, including:
The judge's comment that none of the defendants were sorry for their crime, "because to be really sorry they would have to face what they have done, and how could they live with themselves then?" Ryan III, Exhibit 1041, Heppner letter, at p. 6;
His statement that "anyone who lets their religious convictions govern their actions is in trouble." Ryan III, Exhibit 1041, Heppner letter, at p. 7;
His expression of dislike for Ruth Ryan, petitioner's wife, when he declared that he was relieved when she declined to attend the meeting after the deputy clerk had mistakenly invited her. Ryan III, Exhibit 1041, Heppner letter, at p. 7;
His statement that he "was irate to see Ruth Ryan eating [seafood] in the bar [at the hotel] on the taxpayers' tab," and commented on her testimony by saying that "she's just switched from blaming Yahweh to blaming Satan." Ryan III, Exhibit 1041, Heppner letter, p. 5;
*1078 His comment that he would challenge defense counsels' fees all the way to the Supreme Court because "even though Dennis [Ryan] confessed to being guilty just days after being arrested, his lawyers still had to drive all over Kansas and Nebraska trying to find evidence to prove he was innocent." Ryan III, Exhibit 1041, Heppner letter, at p. 6.
Judge Moran had the opportunity to observe the witnesses at the second postconviction hearing and gauge their demeanor. His evaluation of the evidence is supported by the record and is presumptively correct. Petitioner has not shown by clear and convincing evidence why it should be disregarded.
Were I to make an independent finding, I would agree that petitioner has not shown that his sentence resulted from any bias held by Judge Finn. I agree that the evidence of what transpired during the meeting with the Thimm family tends to show bias towards the petitioner, but I conclude it is insufficient to overcome the presumption that the judge was impartial and relied only on the evidence during sentencing. These comments were made after Judge Finn had heard graphic and extensive evidence of the brutal treatment inflicted on James Thimm and others on the Rulo farm. While his comments were not appropriate, even judges sometimes display "expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women." Liteky, 510 U.S. at 555, 114 S.Ct. 1147. The "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. "Not all unfavorable disposition towards an individual (or his case) is properly described by the terms bias or prejudice." White v. Luebbers, 307 F.3d 722, 731 (8th Cir.2002)(quoting Liteky, 510 U.S. at 550, 114 S.Ct. 1147)(holding that a judge was not disqualified because he had formed and voiced tentative impressions of the merits on a habeas death penalty case). Although the judge's comments during the May 9 meeting were inappropriate and did evidence some personal bias against the petitioner, his family, and counsel, that does not mean the judge was not able to set aside that personal bias when he imposed his sentence.
Petitioner cites to Walker v. Lockhart, 763 F.2d 942 (8th Cir.1985), to support his argument that extrajudicial comments may establish a judge's bias against a defendant. However, there is no comparison between the comments made by the judge in this case and those made by the judge in Walker. In that case, having granted defendant's request to be allowed to be baptized, the judge told the deputy sheriff that if the defendant "made a move to shoot him down, because he didn't want him brought back to him because he intended to burn the S.O.B. anyway." Walker, 763 F.2d at 946. The Eighth Circuit held that those comments, along with a number of other comments adverse to the defendant during his retrial, deprived the defendant of a fair trial. Id. at 961. Clearly, the comments in this case were not so extreme, nor did they reveal such deep-rooted revulsion and hatred towards the petitioner to establish that the judge could not set aside his personal bias, and sentence petitioner in accordance with the evidence and applicable law.
Judge Moran's factual determinations are supported by the record and are not unreasonable. His ruling is not contrary to clearly established federal law. I therefore conclude that petitioner's claims II and III should be denied.
*1079 Claim IV and V Ineffective Assistance of Counsel for Failure to Investigate Ex-Parte Meetings, and Abuse of Discretion
Because petitioner has failed to discuss either claims IV or V in his brief on the merits, those claims are considered abandoned pursuant to Local Rule 39.2.[23]See Norfolk v. Houston, 941 F.Supp. 894 (D.Neb.1995).
Claim VI Cumulative Trial Misconduct
In this claim petitioner argues that even if the court were to find that none of the instances in claims I, II, or III standing alone would be sufficient to require a new trial or new sentencing hearing, the cumulative effect of those errors deprived the petitioner of his due process rights. I disagree.
Errors that are not unconstitutional individually cannot be added together to create a constitutional violation. Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir.1996) (citing United States v. Stewart, 20 F.3d 911, 917-18 (8th Cir. 1994)). Neither the cumulative effect of trial errors nor the cumulative effect of attorney errors are grounds for habeas relief. Id. (citing United States v. Stewart, 20 F.3d 911, 917-18 (8th Cir.1994); Wharton-El v. Nix, 38 F.3d 372, 375 (8th Cir. 1994); Griffin v. Delo, 33 F.3d 895, 903-04 (8th Cir.1994)). "[E]ach habeas claim must stand or fall on its own." Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir.1990). Therefore, I conclude petitioner's argument that the cumulative effect of the judge's misconduct entitles him to habeas relief lacks merit.
My analysis, however, does not end there. Petitioner also argues in this claim that the trial judge gratuitously disparaged his trial counsel and his defense before the jury and, thus, deprived him of his right to a fair trial. Respondent argues that this argument has not been properly presented to the Nebraska courts. Respondent, however, is incorrect. Petitioner raised a claim that was similar, legally and factually, to the present argument on his direct appeal to the Nebraska Supreme Court, see Ryan I, 233 Neb. at 94-96, 444 N.W.2d at 625-627, and has thus given the highest court of the state a "fair opportunity" to review this argument. Consequently, I address the merits of this argument.
The Eighth Circuit has held that comments by a trial judge may at times be sufficiently one-sided and distractive to a defendant's case that they may deprive him of a fair trial. United States v. Van Dyke, 14 F.3d 415, 418 (8th Cir.1994). However, judgment of conviction will rarely be disturbed "by reason of a few isolated, allegedly prejudicial comments of a trial judge, particularly in a long trial." Id. at 417 (quoting United States v. Lueth, 807 F.2d 719, 727 (8th Cir.1986)). The court must "`balance and weigh the comments of the judge against the overall fairness of the trial ... [and conclude that] the balance is adversely tipped against the defendant in a criminal trial where the judge's role loses its color of neutrality and tends to accentuate and emphasize the prosecution's case.'" Id. at 417-18 (citations omitted).
In support of his argument, petitioner cites to the following four instances where the judge made disparaging remarks to his trial attorney:
*1080 (1) Judge stated during cross-examination of Richard Stice "Who gives a damn whether he was a high priest or not, for God's sake? ... [co-defendant's counsel] went at him for 45 minutes on the high priest deal. Are you going on for another 45 minutes?... That's enough on the high priest business." Ryan I, 3204:17-3205:7.
(2) During the same cross-examination the judge stated "Mr. Ligouri, [Stice is] making you look like a fool and the State is not going to bail you out, so just consider that when you keep going and going and going." Ryan I, 3268:14-16.
(3) During the cross-examination of Herbert Modlin the judge said to the attorneys, "I don't mean to laugh. I've got to apologize, first off." Ryan I, 3613:14-15.
(4) Finally, when petitioner's trial counsel tried to introduce into evidence audio tapes of speeches by James Wickstrom, the Judge said "[a]ren't you afraid that if you lock the jury with all of those tapes, they will come out seeing things and stuff?" Ryan I, 4341:4-6.
Reading these comments out of context, they certainly sound as prejudicial as the petitioner argues. It is critical to note, however, that each comment was made at side bar. Ryan I, 3204:17-3205:7, 3268:14-16, 3613:14-15, 4341:4-6. Thus, based on the evidence before me, it is unlikely the jury heard any of those comments, and Ryan has failed to prove that the jury's deliberations and decision were influenced by these comments. See, U.S. v. Turner, 975 F.2d 490 (8th Cir.1992) (finding no prejudice where, although trial judge was sarcastic and disparaging toward defense counsel, these comments and arguments were made outside the jury's presence). I conclude that Claim VI has no merit.
Claim X Ineffective Assistance of Counsel for Failure to Properly Advise Petitioner Regarding a Joint Trial.
In this claim petitioner argues that his trial counsel was ineffective for failing to adequately advise him of the adverse consequences of a joint trial with his son, for failing to provide him with an adequate assessment of how a joint trial could prejudice his defense, and for failing to timely or properly object to the joinder of his case with that of his son.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-part test for evaluating ineffective assistance of counsel claims. In order to demonstrate that counsel was constitutionally ineffective, a petitioner must show that his counsel's performance was so deficient that it fell below an "objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. "[R]eview of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation." Id. at 687, 104 S.Ct. 2052. In addition to demonstrating that counsel's performance fell outside the "wide range of reasonable representation," petitioner must also show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.
Trial counsel's advice to the defendant must be within the range of competence demanded from criminal lawyers. McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Whether the advice given is erroneous "depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys *1081 in criminal cases." McMann, 397 U.S. at 770, 90 S.Ct. 1441. Furthermore, an error in advice provided by counsel, "even if an unprofessional error, does not constitute ineffective assistance of counsel unless the defendant was prejudiced by the error." Country v. Foster, 806 F.2d 182, 184 (8th Cir.1986). (citing Strickland v. Washington, 466 U.S. 668, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Holtan v. Parratt, 683 F.2d 1163, 1167 (8th Cir. 1982)).
Following an evidentiary hearing on Ryan's first state motion for postconviction relief, Judge Wolf concluded that there was insufficient evidence to support a finding of ineffective assistance of counsel on the issue of failing to explain to Ryan the risks of a joint trial. Ryan II, Memorandum and Order at p. 10. Ryan's testimony contradicted that of his counsel on the issue, but Judge Wolf found:
At the post-conviction hearing, defendant's counsel explained that defendant Michael W. Ryan asked to be tried with his son, Dennis. Defendant's counsel granted defendant's request, knowing there were other benefits from a joint trial, including no death qualification of the jury and precluding the State from trying the defendant Michael Ryan on both first degree murders at the same trial. Michael's hope for a warm relationship between father and son did not materialize, however. Dennis Ryan's counsel used the joinder for Dennis' benefit by physically separating the two and placing the blame on Michael. Although one of Michael's purposes of joinder failed, it did accomplish part of the goal. Choosing joinder, then, was a reasonable choice. Joinder or no joinder would not have changed the result.
Ryan II, Memorandum and Order at p. 10. This determination was supported by the record. See, Ryan II, 202:24-203:4, 254:12-257:24, 325:5-336:21. (Compare to Ryan's testimony at Ryan II, 44:19-51:13, 142:23-144:7). Judge Wolf assessed the witness' credibility and reached a conclusion. This finding was supported by evidence produced at a full and fair hearing at which Ryan testified and was represented by counsel. Judge Wolf's factual determination was not unreasonable.
Evidence on the issue was also received in the second state postconviction proceeding. At that hearing, although Ryan testified to the contrary, his trial counsel, Louie Ligouri, testified that he had discussed with Ryan whether he and his son should have a joint trial. Ryan III, 610:25-612:11. Ryan was aware that Dennis' counsel was preparing to prove that Dennis had acted under the commands of his father. Prior to trial Ryan was complaining to his son Dennis that Dennis' counsel, Rod Rehm, "was out to get him" by trying to show that Michael Ryan had control over his son. The petitioner nonetheless decided that he wanted to be tried with his son, stating to his lawyer that he could thereby assist Dennis at trial. Ryan III, 376:2-381:11. Upon review of the record, and assessing the credibility of the testifying witnesses, Judge Moran found that Ryan was a highly manipulative and competent man who was actively involved in his trial process.[24] As evidence of that behavior, Judge Moran found:
Contrary to his later assertions on appeal that he wanted his and Dennis' trial to be severed, the record reflects that the defendant insisted that they be tried together. It is readily apparent to this court that defendant's motivation for *1082 wanting to be tried together with his son was so that he could exert his influence over Dennis' testimony.
Ryan III, Memorandum and Order at p. 59. This finding of fact is supported by the record and is presumptively correct.
Petitioner's trial counsel, Richard Goos, also testified at the second postconviction hearing, and further explained the tactical reasons supporting a joint trial of Dennis and Michael Ryan. He testified that he believed a joint trial would preclude the state from death qualifying the jury. Goos further stated that a joint trial with Dennis Ryan would preclude the state from trying the petitioner for both the Luke Stice and the James Thimm murder at the same time because Dennis Ryan was charged only with the death of James Thimm and not the Luke Stice murder. Goos explained that a trial against Michael Ryan for both the Stice and Thimm murders would have probably prejudiced the jury against the petitioner and negatively affected his trial for the Thimm murder because the Stice murder involved the physical abuse and death of a five-year-old boy. Finally, Goos testified that he thought a joint trial would be beneficial because the jury would be able to see petitioner and his son interact. He explained that such interaction would serve to mitigate petitioner's negative image, namely that he was a brusque and forceful character. Ryan III, 196:7-199:12, 453:13-25.
Based on the foregoing it is clear the state courts' factual and legal conclusions are not unreasonable or incorrect. The performance of Ryan's counsel did not fall below an "objective standard of reasonableness." First, they acted in accordance with their client's statement that he wanted to be tried with his son. There is no showing that the motives for that decision, whether that was to assist his son or to influence his son to lie, would have been dispelled had Ryan received additional advice on the risks of a joint trial. Second, even assuming Ryan's counsel failed to thoroughly explain the pros and cons of a joint trial, all of the reasons stated by his counsel for not initially objecting to the joint trial were reasonable strategic decisions. See e.g., Beran v. U.S., 580 F.2d 324, 327-28 (8th Cir.1978) (plausible strategic reasons to justify decision not to sever trial are generally not second guessed by a reviewing court, and absent evidence that the motion to sever would have likely been granted, defendant can show no actual prejudice); McQueen v. Scroggy, 99 F.3d 1302, 1316 (6th Cir.1996) (holding that an attorney's decision not to seek a separate trial was a reasonable tactical decision because it was based on the hope that a joint trial would cloud the issue of guilt by allowing the defendant to hide behind his less culpable half-brother).
In addition, petitioner has not established that he was prejudiced by his counsel's "unprofessional errors." It is established that "[a] habeas petitioner is not entitled to relief on the grounds that he was entitled to a severance unless he can show that a joint trial was fundamentally unfair." Hood v. Helling, 141 F.3d 892, 896 (8th Cir.1998) (citing Jenner v. Class, 79 F.3d 736, 741 (8th Cir.1996)). A petitioner establishes fundamental unfairness where the mutually antagonistic defense of his co-defendant "compromised a specific trial right or prevented the jury from making a reliable determination of guilt or innocence." Id. "Mutually antagonistic defenses are those which force the jury to disbelieve the core of one defense in order to believe the core of the other." Id. (citing United States v. Gutberlet, 939 F.2d 643, 645-46 (8th Cir.1991)). No such showing has been made here.
The core of petitioner's defense was that he was legally insane at the time of James *1083 Thimm's murder. Ryan II, 171:7-18. Although Dennis Ryan's defense presented testimony that petitioner exerted control over Dennis and the other people in the farm, (see, e.g., Ryan I, 2869:7-11, 2885:6-14), his core defense was also insanity. While Dennis Ryan's trial strategy introduced evidence that was prejudicial to the petitioner, such as the physical abuse inflicted on Luke Stice by the petitioner and others on the farm, both defenses were not mutually antagonistic. The jury could have believed Dennis Ryan's defense without having to disbelieve petitioner's insanity defense. See Hood, 141 F.3d at 896. Claim X is meritless.
Claims XI and XII Constitutionality of Neb.Rev.Stat. § 29-2523(1)(d) and its Application
In these claims petitioner challenges the constitutionality of the aggravating factor set forth in Neb.Rev.Stat. § 29-2523(1)(d), both on its face and as it was applied in this case.
Section 29-2523(1)(d) provides as follows:
The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence.
Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1995). The Nebraska Supreme Court has interpreted § 29-2523(1)(d) to describe two separate circumstances in the disjunctive that may operate in conjunction with or independent of one another: (1) that the murder was especially heinous, atrocious, or cruel; and (2) that the murder manifested exceptional depravity by ordinary standards of morality and intelligence. See State v. Moore, 210 Neb. 457, 470, 316 N.W.2d 33, 41 (1982). Although the Supreme Court held in Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), that the words "heinous," "atrocious," and "cruel" are unconstitutionally vague, the Eighth Circuit has recognized that the first prong in this aggravating circumstance has been constitutionally limited by the Nebraska Supreme Court to mean "unnecessarily torturous to the victim."[25]See Harper v. Grammer, 895 F.2d 473, 478 (8th Cir. 1990).
The second prong, "exceptional depravity," has spawned a plethora of litigation. The Eighth Circuit held in Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990) that the language is unconstitutionally vague on its face. Id. at 1229 (quoting Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). The question remains as to whether this prong, as subsequently interpreted by the Nebraska Supreme Court, is still unconstitutionally vague. See discussion in Moore v. Kinney, 119 F.Supp.2d 1022, 1032 (D.Neb.2000), overruled by, Moore v. Kinney, 278 F.3d 774 (2002) (vacated for rehearing en banc on March 29, 2002).
In this case petitioner specifically argues that he is entitled to a remand for a new sentencing hearing because the sentencing court made a series of findings of fact without specifying whether those findings applied to the constitutional first prong or the invalid second prong when it concluded that the § 29-2523(1)(d) aggravator applied to his case. See Ryan II, Exhibit 2B at 412-414 (order of sentence). I disagree.
The Eighth Circuit held in Harper, a case where the sentencing judge and the Nebraska Supreme Court had applied *1084 § 29-2523(1)(d) based on both of its prongs, that there was no need to resentence the petitioner because the "unconstitutional vagueness of the second prong does not diminish the virility of the first prong." Harper, 895 F.2d at 479. The court explained that "[t]he two prongs are not separate factors [but that] each of the prongs simply purports to be justification for application of the aggravating factor." Id.
In this case, even if I were to conclude that at the time of petitioner's sentencing there was no constitutionally valid construction of the "exceptional depravity" language, the application of § 29-2523(1)(d) in this case was still proper because it was based not only on the invalid second prong, but also on the constitutionally valid first prong. As the Eighth Circuit concluded "the invalidity of the second portion of (1)(d) does not vitiate the efficacy of the first portion." Id.
Claim XIII Constitutionality of Application of NEB. REV. STAT. ANN. § 29-2523(1)(a)
Petitioner also argues that his death sentence violated the Eighth and Fourteenth Amendments to the United States Constitution because it was based upon § 29-2523(1)(a),[26] which is an unconstitutionally vague and overbroad statutory aggravating circumstance. Specifically, petitioner argues that the second clause of 29-2523(1)(a) ("substantial history of serious assaultive or terrorizing criminal activity") is vague and overbroad, particularly as applied to his case.
Addressing the constitutionality of this second clause of the 29-2523(1)(a) aggravating circumstance, the Eighth Circuit held in Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990) that "[t]he Nebraska Supreme Court [had] provided sufficient guidance to sentencing bodies, concerning this particular aggravating circumstance, to prevent the arbitrary and capricious infliction of the death penalty ...." Id. at 1234. In reaching this conclusion, the court accepted the Nebraska Supreme Court's construction that the "substantial history" clause refers to events and incidents that happened before and were not part of the events that gave rise to the charge under which the petitioner was tried, such as an earlier murder. Id. (citing State v. Joubert, 224 Neb. 411, 412-13, 426, 399 N.W.2d 237, 241, 248 (1986) (per curiam), cert. denied, 484 U.S. 905, 108 S.Ct. 247, 98 L.Ed.2d 205 (1987); State v. Rust, 197 Neb. 528, 535, 250 N.W.2d 867, 872-73 (1977)). The Nebraska Supreme Court has further specified that this clause applies "irrespective of whether the offender was convicted for the conduct creating the history." State v. Bird Head, 225 Neb. 822, 836, 408 N.W.2d 309, 318 (1987). The second clause of the 29-2523(1)(a) aggravating circumstance has a constitutionally valid narrowing construction.
The next issue is whether it was applied constitutionally in this case. Under § 2254(d), the limited question before this court is whether the Nebraska court findings with regard to the existence of aggravating and mitigating factors constituted an unreasonable determination of the facts in light of the evidence presented to the state court. 28 U.S.C. 2254(d)(2). See also, Kinder, 272 F.3d at 538 (on death penalty habeas review, factual findings of court reviewed for clear error, while legal *1085 issues or mixed questions of law and fact are reviewed de novo.)
In this case the sentencing court found that the following acts supported, beyond a reasonable doubt, its finding that Michael W. Ryan had a substantial history of serious assaultive or terrorizing criminal activity:
(a) Michael W. Ryan either spanked and beat Luke Stice, or directed others to do this;
(b) Michael W. Ryan either administered cold showers to Luke and held him under cold water or directed that this be done to Luke;
(c) Michael W. Ryan directed others to sexually abuse Luke Stice;
(d) Michael W. Ryan used Luke Stice as an ashtray;
(e) Michael W. Ryan rolled Luke around in the snow without any clothes on or directed others to do this to Luke;
(f) Michael W. Ryan spit in the mouth of Luke Stice;
(g) Michael W. Ryan shot chickens in the presence of Luke Stice to create in him a fear of guns or directed that this be done to Luke;
(h) Michael W. Ryan terrorized Luke Stice by placing a gun in his mouth and also by shooting him in the arm;
(i) Michael W. Ryan either shoved Luke against the wall on three different occasions or directed others to shove Luke against the wall, which acts ultimately resulted in the death of Luke Stice;
(j) Michael W. Ryan either held Luke off the ground with a belt around his neck or directed others to do this to Luke;
(k) Michael W. Ryan either shot cigarettes himself from Luke's mouth or directed others to do this; and
(l) Michael W. Ryan told Luke that he would be castrated, and that he would be placed on a brush pile and burned alive by him.
Ryan II, Exhibit 2B at 410-411 (order of sentence).
The sentencing court further found:
[D]efendant assaulted both Richard Stice and James Thimm leading up to, and prior to the time of, the events involving the death of James Thimm. These acts would further support the finding that the defendant had a substantial history of serious assaultive or terrorizing criminal acts prior to the death of James Thimm.
Ryan II, Exhibit 2B at 411 (order of sentence).
Finally, the sentencing court stated that the following additional facts supported "finding that the defendant had a substantial history of serious assaultive or terrorizing criminal activity."
(a) Shortly before Michael W. Ryan left high school, he assaulted a teacher;
(b) According to Michael W. Ryan's own testimony, he assaulted a principal at his high school;
(c) According to Michael W. Ryan's accounting to Dr. Logan, he was discharged from the military as a result of fighting with six [military police officers].
Ryan II, Exhibit 2B at 411 (order of sentence).
The record clearly supports all of the facts relied upon by the sentencing judge. See, Ryan II, Exhibit 2B at 410-11 (order of sentence); Ryan I, 1172:18-1176:15, 1645:11-24, 1878:10-1889:4, 3118:17-3129:12, 3975:13-3978:22; Ryan I (proceedings)[27], 1376:20-1400:25, 1452:22-1453:24, *1086 1472:8-1478:17, 1528:8-1529:2, 1552:14-23, 1559:9-1562:19. His findings are again presumed correct and petitioner has not shown by any clear and convincing evidence that they are unreasonable.
Petitioner further argues that the sentencing judge expanded the meaning of the 29-2523(1)(a) aggravator by attributing to him actions committed by others. See facts (a)-(c), (e), (g), and (i)-(k). The Nebraska Supreme Court's interpretation of this state law issue is binding on this court. The Nebraska Supreme Court rejected these arguments and that ruling is the final word on interpreting the statutes in the absence of a constitutional claim.
Claim XVII Constitutionality of Method of Execution
Because petitioner failed to discuss this claim in his brief on the merits, I find he has abandoned this claim under Local Rule 39.2. See Discussion of Claims IV and V, supra.
IT THEREFORE HEREBY IS RECOMMENDED to the Honorable Richard G. Kopf, Chief United States District, pursuant to 28 U.S.C. § 636(b)(1)(B), that the petitioner's Petition for Writ of Habeas Corpus, filing 1, be denied in all respects.
The parties are notified that a failure to object to this recommendation in accordance with the local rules of practice may be held to be a waiver of any right to appeal the district judge's adoption of this recommendation.
NOTES
[1] After his conviction for the Thimm murder, he entered a plea of "no contest" to the Stice murder and was sentenced to life in prison.
[2] Filed in 1999, this case was originally styled Ryan v. Hopkins, but Warden Hopkins was removed from the case in 2000 and Warden Kenney was substituted. Warden Kenney was removed from the case in 2002 and Director Clarke was substituted. At this time (but see below), there are ten boxes of exhibits and records pertinent to this case. Boxes 1-8 contain the state court records. Box 9 contains the documents regarding Ryan's competency evaluations and related hearing in this court. Box 10 contains the court file in Ryan's voluntarily dismissed 1995 habeas proceeding in this court, styled Ryan v. Hopkins, 4:95CV3391. For ease of location, and changing the citing convention of Judge Piester, when a specific reference to one of these documents is necessary, the box number will first be identified. In addition, references to filing numbers (as in "Filing-") refer to documents contained in the court file in this case. In the event of an appeal, the Clerk shall place the remaining portions of the court file and exhibits in a box and number it 11.
[3] With another lawyer, Richard Goos was appointed to defend Ryan. Goos was "loaned" from the Lancaster County Public Defender's office in Lincoln, Nebraska. Goos had been a defender since 1971. By the time of the Ryan case, he had defended nine first-degree murder cases, including two for which the State sought the death penalty. State v. Ryan, 248 Neb. 405, 534 N.W.2d 766, 774 (1995) (Ryan II).
[4] Ryan's trial testimony is found in Box 2, Vol. XXII, Tr. 3839-3951, and Vol. XXIII, Tr. 3952-4130 (page references are to the stamped page numbers on the top right).
[5] In his direct appeal, Ryan assigned as error (1) the termination of one of his court-appointed attorneys; (2) the trial court's interference with counsel; (3-5) the failure to sever his trial from the trial of his son, Dennis Ryan; (6) the admission of evidence of uncharged crimes; (7) the failure to instruct on the consequences of an insanity verdict; (8) the failure to give a diminished capacity instruction; (9-10) the failure to require the state to prove Ryan's sanity beyond a reasonable doubt; (11) non-compliance with a witness sequestration order; (12) the failure to sequester the jury during the trial; (13) instructing the jury on aiding and abetting; (14) the admission of the testimony of accomplices; (15) insufficient evidence of an intent to kill; (16-17) misconduct by the trial judge (ex parte communications with victims' families and turning his back during Ryan's testimony), and his failure to disqualify himself from sentencing; (18-20) the failure to convene a three-judge sentencing panel; (21) the unconstitutionality of the sentencing statute, Neb.Rev.Stat. § 29-2522 (Reissue 1985), for its failure to have the jury make fact findings; (22-23) the failure to give Miranda-type warnings prior to Ryan's examination by the state's psychiatrist; (24-29) the use of the trial record during the sentencing phase; (30-32) the admission of deposition testimony at the sentencing hearing; (33) lack of advance notice regarding the state's claim of aggravating circumstances; (34-35) the sentencing judge's failure to make all fact findings beyond a reasonable doubt; (36) "double counting" of some factors in determining aggravating circumstances; (37-38) aggravating circumstance 1(a) of Neb.Rev.Stat. § 29-2523 ("The offender was previously convicted of another murder or a crime involving the use or threat of violence to the person, or has a substantial history of serious assaultive or terrorizing criminal activity.") is vague and overbroad; (39-40) aggravating circumstance 1(d) of Neb.Rev.Stat. § 29-2523 ("The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence.") is vague and overbroad; (41) the failure to require the state to prove the absence of any mitigating circumstances; (42-46) the sentencing judge's failure to deal with non-statutory mitigating circumstances; (47-48) the non-uniform treatment of "equally culpable" participants in the crime; (49-52) the excessiveness of Ryan's sentence; (53-58) the denial of various motions relating to the death penalty; (59) the "cumulative effect" of the assigned errors; and (60) the page limitation imposed by the Nebraska Supreme Court on Ryan's brief.
[6] Thirty-seven issues were raised by Ryan in this first post-conviction relief proceeding: "(1) unconstitutionality of aggravating circumstance (1)(d) as applied to Ryan, (2) unconstitutionality of aggravating circumstance (1)(a) as applied to Ryan, (3) unconstitutional reliance of aggravating circumstance (1)(a) on `vicarious' findings, (4) proportionality review, (5) lack of standards for impaneling a three-judge panel, (6) unconstitutionality of death by electrocution, (7) trial judge's refusal to recuse himself from sentencing, (8) insufficient evidence to support aggravating circumstance (1)(d), (9) insufficient evidence to support aggravating circumstance (1)(a), (10) failure to advise on all possible defenses, (11) failure to advise on insanity defense, (12) unreasonable assertion of the insanity defense, (13) failure to object to joint trial, (14) failure to advise on testifying at trial and sentencing, (15) deposition misconduct, (16) failure to call witnesses, (17) failure to cross-examine one of the female cult members, (18) failure to reply to false trial testimony of defense psychiatric expert regarding an army induction incident, (19) discharge of [court-appointed counsel] Ligouri, (20) failure to conduct a voir dire examination of judge regarding a three-judge sentencing panel, (21) failure to consult with Ryan in preparation for sentencing, (22) failure to develop all statutory and nonstatutory mitigating circumstances, (23) failure to meet the burden of proof on mitigating circumstances, (24) entry of a no contest plea in the Luke Stice case, (25) failure to object to sentencing evidence, (26) prosecutorial misconduct, (27) reasonable doubt instruction, (28) failure to object to the reasonable doubt instruction, (29) state of the appellate record, (30) judicial misconduct during trial, (31) judicial misconduct at sentencing, (32) judicial interference with right to counsel, (33) failure to object to a jury instruction, (34) violation of sequestration order by experts, (35) jury misconduct (juror falling asleep), (36) jury misconduct (juror reading newspaper), and (37) cumulative effect of errors." State v. Ryan, 248 Neb. 405, 534 N.W.2d 766, 776 (1995) (Ryan II).
[7] Ryan argued on appeal that "the postconviction trial court erred in (1) prohibiting the use of expert testimony to establish claims of ineffective assistance of counsel; (2) striking several of Ryan's claims; (3) failing to find that Ryan had been denied effective assistance of counsel at his trial with respect to advisement of all available defenses, the assertion of the insanity defense, the assertion of the insanity defense over Ryan's objection, the failure to object to a joint trial with Dennis Ryan, and Michael Ryan's decision to testify at trial; (4) failing to find that Ryan had been denied effective assistance of counsel at sentencing because counsel failed to respond to false testimony and permitted Ryan to testify at trial; (5) failing to find that Ryan had been denied effective assistance of counsel in connection with the preparation and presentation of issues at sentencing, including development of all statutory and nonstatutory mitigating circumstances, meeting statutory aggravating circumstances, making all available constitutional challenges to the death penalty, and formulating a reasonable trial strategy with respect to sentencing issues; (6) failing to find that aggravating circumstance (1)(d) of Neb.Rev.Stat. § 29-2523 (Reissue 1989) was unconstitutional on its face and as applied to Ryan; (7) failing to find that aggravating circumstance (1)(a) of § 29-2523 was unconstitutional on its face and as applied to Ryan; (8) failing to find that Ryan's constitutional rights were violated at sentencing by the lack of standards for the impaneling of a three-judge panel, the trial judge's refusal to recuse himself, and the trial judge's refusal to convene a three-judge panel; (9) failing to find that the evidence was insufficient to support the application of statutory aggravating circumstances (1)(d) and (1)(a); (10) failing to find that Ryan was denied his right to a statutory proportionality review on appeal; (11) failing to find that deposition misconduct by the prosecution deprived Ryan of his rights to due process of law; (12) failing to find that Ryan had been deprived of his right to counsel by the firing of one of his trial attorneys; (13) failing to find that the cumulative effect of all the errors in this case deprived Ryan of a fair trial; and (14) failing to grant Ryan postconviction relief." Ryan II at 775.
[8] These claims directly correspond to Claims I and II, and V through XVI of Ryan's habeas petition in the present case.
[9] The claim is included in the present habeas petition as Claim III.
[10] This statutory provision, which was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-32, 110 Stat. 1214 (AEDPA), states that "[n]o amendment to an application for a writ of habeas corpus under this chapter shall be permitted after the filing of the answer to the application, except on the grounds specified in section 2244(b)."
[11] Reported as Ryan v. Hopkins, No. 4:CV95-3391, 1996 WL 539220 (D.Neb. July 31, 1996).
[12] Ryan's assignments of error were summarized by the Nebraska Supreme Court, as follows:
"First, Ryan contends, regarding the ex parte communication between Judge Finn and members of the Thimm family, that the district court erred in (1) its legal conclusion that the May 9, 1986, meeting between Judge Finn and members of the Thimm family did not violate State v. Barker, 227 Neb. 842, [420 N.W.2d 695 (1988)], or Ryan's due process rights regarding sentencing; (2) its legal conclusion that any claim arising out of the May 9 meeting was procedurally barred and that the May 9 meeting did not require that Ryan be resentenced; (3) its factual finding that Ryan and his lawyers knew about the May 9 meeting during trial and during subsequent appeals; (4) not finding that Judge Finn attempted to conceal the May 9 meeting; (5) finding that trial evidence was not discussed at the May 9 meeting and that the Thimm family did not discuss their feelings about the possible sentences to be imposed on Ryan; (6) finding that statements made by Judge Finn at the May 9 meeting did not reflect prejudice and bias on Judge Finn's part; and (7) finding that the presumption of prejudice raised by the May 9 meeting was rebutted beyond a reasonable doubt by the State".
Regarding the cumulative effect of the ex parte conversation, Ryan contends that the trial court also erred in (8) its conclusion that the cumulative effect of Judge Finn's misconduct, in particular, turning his back on Ryan, did not violate Ryan's due process rights; (9) finding that the letter regarding the May 9, 1986, meeting was not new evidence; (10) concluding that it was not plain error for Judge Finn to turn his back on Ryan while Ryan was testifying; and (11) finding that Ryan was not prejudiced by the May 9 meeting.
Ryan also contends that the trial court erred in (12) concluding that a claim for ineffective assistance of counsel regarding the ex parte meeting was procedurally barred; (13) finding that the grounds for this claim, i.e., the letter regarding the May 9, 1986, meeting, were known or discoverable prior to 1996; (14) finding that Ryan was not prejudiced by trial counsel's failure to properly investigate the facts regarding the alleged ex parte meetings; and (15) failing to consider whether trial counsel's failure to investigate the ex parte conversations more fully rendered trial counsel's performance constitutionally deficient.
Regarding the issue of competency, Ryan contends that the trial court erred in (16) its legal conclusion that trial counsel's failure to request a competency hearing did not violate Ryan's right to effective assistance of counsel; (17) concluding that the issue regarding failure to request a competency hearing claim was procedurally defaulted by Ryan's failure to address this in his direct appeal or first postconviction appeal; (18) concluding that it was not plain error for trial counsel not to have requested a competency hearing; (19) finding that Ryan's psychiatrist did not timely disclose his opinion that Ryan was incompetent to stand trial, or timely disclose serious reservations about his competency to stand trial; (20) finding that trial counsel did not observe anything which would cause them to suspect Ryan's incompetence, report this to the judge, and request a competency hearing; (21) its legal conclusion that the failure of the trial judge to order a competency hearing sua sponte did not violate Ryan's due process rights; (22) its conclusion that the claim that the judge should have ordered a competency hearing was procedurally defaulted; (23) its conclusion that failure of the judge to order sua sponte a competency hearing was not plain error; (24) its conclusion that the facts as presented to Judge Finn did not establish sufficient doubt as to Ryan's competency, requiring him to order a competency hearing; (25) its conclusion that the trial of Ryan did not violate substantive due process because Ryan was not incompetent at the time of trial; (26) its conclusion that it was not plain error to allow Ryan to stand trial while incompetent; (27) its conclusion that the substantive due process claim regarding competency was procedurally defaulted; and (28) its factual finding that Ryan was in fact competent at the time of trial."
Ryan III, 601 N.W.2d at 482-83.
[13] The United States Supreme Court, of course, has since overruled Walton. See Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
[14] Reported as Ryan v. Kenney, 125 F.Supp.2d 1149 (D.Neb.2000).
[15] This claim was not alleged in Ryan's first habeas petition.
[16] This local rule provides, in relevant part, that "[w]hen a judge has set a time for submitting a brief, the failure to submit a brief or to discuss an issue in the brief submitted may be treated as an abandonment of that party's position on any issue not discussed." NELR 39.2(c).
[17] The alleged "unconstitutional portion" of aggravating circumstance 1(d) is the "exceptional depravity" prong. See Ryan II, 534 N.W.2d at 794 (citing Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990)).
[18] I note that the report and recommendation contains typographical errors at page 50, where Claim XVI is twice erroneously identified as Claim XIV.
[19] This claim was not alleged in Ryan's first habeas petition.
[20] I would not even if I could. The AEDPA deference standards are consistent with, and a logical extension of, principles of federalism that have long been applied in the federal courts. Therefore, these standards of deference are unlike time deadlines or other arbitrary rules for which equitable leniency might reasonably be given. On the contrary, these rules of deference relate directly to the basic structural relationship between the central government and the state governments. Thus, had there been any doubt (and there was none) in this case, I would have applied the AEDPA's standard of review without Weaver. Still further, because of the subsequent decision in Weaver, Judge Piester's August 22, 2000, comments (Filing 49) about this case being a "continuation" of earlier proceedings are wrong to the extent that the "continuation" language is now applied to the deference question by Ryan. Similarly, Judge Piester's previous comments about the AEDPA statute of limitations are irrelevant to the extent that Ryan uses them in support of the appropriate standard of review. They related to an entirely different question than whether the AEDPA deference standards applied.
[21] There was certainly no agreement on this by the experts. At least two of the them thought that Ryan was faking all or part of his rigid reliance upon religion.
[22] Those tests included at least three administrations of the Minnesota Multiphasic Personality Inventory (MMPI), the "gold standard" for objective psychological testing. While some of them showed an odd personality, none of them showed a mental illness. In 1985, one such test was conducted shortly prior to Ryan's original trial. (Box 9, Ex. 109, at 3 (quoting the 1985 classification study describing the 1985 MMPI).) During these proceedings, two others were conducted. (Box 9, Ex. 109, at 5-7 (describing Dr. Martell's 2001 administration of the MMPI); Box 9, Ex. 113, at 13 (describing Dr. Pietz's administration of the MMPI in 2002).) Over a period of about 17 years, no objective psychology testing showed that Ryan suffered from mental illness.
[23] Finn made it a practice of allowing members of a victim's family to ask questions after a conviction and sentencing for the purpose of explaining the legal process and to "interject a little humanism" into it. (Box 7 (Proceedings before Judge Moran), Test. of Judge Finn, Vol. I, Tr. 97.)
[24] Because it is a matter of state law, and even though Finn's meetings involved other cases and apparently took place after those cases had been resolved, I must accept the Nebraska Supreme Court's conclusion that Finn's conduct involved improper "ex parte communications" because Ryan had not yet been sentenced for the murder of Thimm.
[25] The lawyers and the other judges have referred to the two groups of people who met with Judge Finn as the Thimm and Stice families. I, too, follow that practice, but I note that two of the Thimm family members were not actually related by blood, marriage, or adoption to the victim.
[26] Ryan III, 601 N.W.2d at 478-79.
[27] Id.
[28] Id. at 640, 601 N.W.2d 473.
[29] State v. [Dennis] Ryan, 226 Neb. 59, 409 N.W.2d 579 (1987). Dennis Ryan later received post-conviction relief because of a change in the state law regarding the requirement that a jury must be instructed to determine "malice" before it may convict someone of second-degree murder. State v. [Dennis] Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996).
[30] For the testimony of Daneda Heppner, see Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 239-326.
[31] For the testimony of Karen Schmidt, see Box 7 (Proceedings before Judge Moran), Vol. II, Tr. 327-351.
[32] She also attended the second meeting with Finn and other members of the Stice family on August 28, 1986. For the testimony of Garnetta Butrick, see Box 7 (Proceedings before Judge Moran), Vol. III, Tr. 460-472.
[33] Ryan III, 257 Neb. at 639, 601 N.W.2d 473.
[34] The question about the plea bargain dealt with the meaning of a "no contest" plea. Judge Finn responded to the question by stating that as a judge, he did not make the plea bargains. (Box 7 (Proceedings before Judge Moran), Test. of Judge Finn, Vol. III, Tr. 463.) He then called the prosecutor into his chambers and asked the prosecutor to explain. The prosecutor then explained that a no contest or nolo contendere plea had the same effect as a guilty plea, except it cannot be used as an admission in a civil proceeding. (Box 7 (Proceedings before Judge Moran), Test. of Douglas Merz, Vol. IV, Tr. 658.)
[35] Ryan III, 257 Neb. at 639, 601 N.W.2d 473.
[36] Finn had another meeting with Thimm family members, but it was after he sentenced Ryan. (Box 7 (Proceedings before Judge Moran), Test. of Karen Schmidt, Vol. II, Tr. 341.) Petitioner and Respondent spend little time on this meeting, and I will follow their lead. Suffice it to say that there was no discussion of Michael Ryan or his case, but only the procedures that had occurred in court. (Box 7 (Proceedings before Judge Moran), Test. of Hilda Schmidt, Vol. II, Tr. 231.)
[37] Box 8 (in "red rope" folder), "Order on Sentence," at pages 409-11.
[38] Box 8 (in "red rope" folder), "Order on Sentence," at pages 413-14.
[39] Box 8 (in "red rope" folder), "Order on Sentence," at pages 416-17 & 421.
[40] Box 7 (Proceedings before Judge Moran), Vol. I, Tr. 65.
[41] Box 7 (Proceedings before Judge Moran), Vol. I, Tr. 67 & 73. Since Finn had openly admitted meeting with the Stice family members when questioned by defense counsel immediately prior to Ryan's death sentence in 1986, Judge Moran and the Nebraska Supreme Court concluded that Finn had not intentionally lied about meeting the Thimm family when he signed the erroneous affidavit in 1993. Independently, I come to the same finding and conclusion. I, too, agree that Finn did not intentionally mislead anyone when he signed the incorrect affidavit some six years after the fact. That Finn's memory was faulty about the specific meeting, participants, and their familial relationships probably resulted from the fact that he made a common practice of meeting with interested lay people to explain the process (not the substance) of legal proceedings. (Box 7 (Proceedings before Judge Moran), Vol. I, Tr. 96-97.) Because of this practice, and recognizing that one member of the Stice family also attended a meeting with members of the Thimm family in May of 1986, its likely that the familial relationships blurred in Finn's memory. Therefore, there is no reason to infer bias from Finn's erroneous 1993 affidavit, which was given more than six years after the fact, particularly when he openly acknowledged in 1986 meeting with the Stice family. Bluntly put, there was no reason for Finn to lie about one meeting when he openly admitted the other.
[42] Box 8 (in "red rope" folder), "Order on Sentence," at pages 407-22.
[1] On petitioner's motion, the trial was actually held in Omaha, Douglas County, Nebraska.
[2] Following the trial, petitioner pleaded guilty to a charge of second degree murder in connection with the death of Luke Stice. That conviction is not at issue in this case.
[3] I entered a separate order on May 16, 2001 clarifying that the hearing was related to the procedural default issues on the competence claims, but added that the court would consider evidence on the substance of those claims to the extent that such evidence was related to the "prejudice" inquiry. Filing 96.
[4] References herein to pages and line numbers within the state court bill of exceptions, and exhibit numbers therein, are consistent with the references to the Nebraska Supreme Court opinions reviewing that evidence as follows:
Ryan I the 1986 murder trial and direct appeal (testimony and exhibits from the trial are located in green-covered volumes);
Ryan I (proceedings) -the blue-covered volumes of the 1986 trial record contain the transcription of all matters other than the evidence presented before the jury, including, as it relates to this habeas petition, the argument on Ryan's motion for new trial and the sentencing hearing evidence.
Ryan II-the first state postconviction proceeding and appeal (testimony in blue-covered volumes I through III).
Ryan III-the second state postconviction proceeding and appeal. (testimony and exhibits in white-covered volumes I through XII).
The Order of Judge DeWayne Wolf on petitioner's first state postconviction relief proceeding, case number 94-207, is included within Volume I of Exhibit 1001 for the Ryan III proceeding. It is hereinafter referred to as Ryan II, Memorandum and Order.
The Memorandum and Order setting forth Judge Gerald Moran's ruling on the second state postconviction hearing is found within the Nebraska Supreme Court, Case 97-1035 appeal transcript at Bates-stamped pages 22-97. It is referred to by its Bates-stamped pages as Ryan III, Memorandum and Order.
The transcript for evidence presented in this federal proceeding is referred to as "T," followed by the page or exhibit number.
[5] The petitioner's experts were fully qualified to evaluate the petitioner and provide testimony regarding Ryan's competency.
Dr. Schulman has been a clinical psychologist for 42 years, and has been affiliated with the Topeka Psychiatric Center since 1978. His testimony and resume reflect his experience in sanity determinations, especially from 1968 through 1975 while a staff psychologist in law and psychology for the Menninger Foundation, its Director of Forensic Psychology, and a consultant for the Medical Center for Federal Prisoners. Approximately fifteen percent of his professional work is in forensic psychology, with the remainder devoted to clinical psychology. (T, 11:1-17:9; Exhibit 101, Schulman resume).
Dr. Logan graduated from medical school in 1977, completed his three-year residency in psychiatry in 1981, and became board certified in "Psychiatry and Neurology" in 1982. From 1981 through 1984, he was employed at the Medical Center for Federal Prisoners in Springfield, Missouri, and his duties included performing competency evaluations at the request of the courts. He completed a one-year post-residency fellowship in Forensic Psychiatry through the Menninger Foundation in 1985, after which he became the Director of the Law and Psychiatry Department for the Menninger Clinic, serving in that position until 1993. In that capacity, he performed several hundred evaluations of mental competency and criminal responsibility. From 1993 to the present, he has been in the private practice of general and forensic psychiatry as the president of Logan & Peterson, P.C. He provides consultation services to the Menninger Clinic, and teaches at the Karl Menninger School of Psychiatry and Mental Health Services. Throughout the years, he has attended many post-residency conferences and has provided consulting services to many penal institutions. He has testified extensively on the issue of competency to stand trial and the defense of insanity. (T, 90:16-106:21; Exhibit 105, Logan curriculum vitae).
[6] Dr. Martell completed a one-year internship in forensic psychology and a one-year fellowship in forensic neuropsychology through the Kirby Forensic Psychiatric Center, Bellevue Medical Center, New York University, before obtaining his Ph.D. in Clinical Psychology Research in 1989 from the University of Virginia. From 1987 through 1991, he was a clinical instructor of psychiatry at the New York University School of Medicine, a research consultant in forensic psychiatry clinic for the Criminal and Supreme Courts in New York City, and the director of the Forensic Neuropsychology Laboratory for the Kirby Forensic Psychiatry Center. Since 1994, he has been an assistant clinical professor of psychiatry for the UCLA School of Medicine and has been affiliated with the private forensic consultation practice of Dr. Park Dietz and Associates. He has published many articles, papers and presentations on the relationship between mental illness, forensic evaluations, violent crime, and the criminal law, and also has several projects in progress on the issue of competency to stand trial and restoration of competency. T, 189:12-191:12 & Exhibit 108, Martell curriculum vitae.
Dr. Pietz received her Doctor of Philosophy in 1989, with her major in Counseling Psychology in a program approved by the American Psychological Association. She is a Diplomate in Forensic Psychology with the American Board of Professional Psychology, and a Fellow of the American Academy of Forensic Psychology. Since 1990 she has been a staff psychologist at the United States Medical Center for Federal Prisoners in Springfield, Missouri, ("FMC") with a significant portion of her work focused on forensic evaluations of competency to stand trial, criminal responsibility, and expert services to the federal courts in these areas. She estimates completing approximately 400 competency evaluations during her twelve years at the Federal Medical Center. She was the Director of Clinical Training at FMC from 1991 through 2000, and is currently the Director of Forensic Training for the Forest Institute of Psychology. T, 261:1-262:6 & Exhibit 112, Pietz curriculum vitae.
[7] So are courts. In Ford, the court rejected a habeas petitioner's claim of incompetence to stand trial. His attorney contended that his religious beliefs "colored his judgment" and affected his ability to make a rational decision. The petitioner believed that if the case were tried, God's angels would guide the jury to an acquittal. Despite this belief, he continued to be actively involved in trial proceedings, made notes during witness testimony, and conferred with his attorney, demonstrating the continued ability to understand and assist in his defense throughout trial. He did not appear detached from reality or disruptive. Ford believed in receiving and obeying visions sent by the Lord, a belief based on the teachings of the Assembly of God denomination. He claimed he had received a vision directing that if he fasted for thirty-five days, he would be "delivered." From this vision, he developed the belief that God's angels would assure his acquittal. The court held:
In sum, the evidence indicates [Ford's] actions and beliefs are the result of his serious-minded adherence to a recognized religious view rather than his incompetence to stand trial. Unlike [Ford's] attorney in this habeas appeal, we decline to label [his] deeply held religious beliefs "preposterous," "irrational," and "bizarre." ... [His] trust in God as the ultimate decisionmaker and mover in the universe is a belief espoused by millions of people, though few, perhaps, would act on this trust as completely as has [Ford.]
Ford, 256 F.3d at 787.
[8] I have attempted to compartmentalize the evidence in a somewhat chronological order, but Judge Moran's determination of Ryan's competency to stand trial was based on evidence from the 1986 trial supplemented by evidence adduced during the 1997 second postconviction hearing. Therefore, where necessary, the Ryan I and Ryan III records and testimony are discussed together to provide the full context of the evidence underlying Judge Moran's decision.
[9] The factual history relied on by Dr. Logan at trial is substantially identical to that relied on in both the federal and 1997 state postconviction proceedings. (compare, Ryan I, 4195:1-4202:25, Ryan III, 742:24-748:11, 757:2-758:1, 763:22-765:11, and T, 113:15-120:11).
[10] Of note, despite Dr. Schulman's definitive statement that Ryan had "schizophrenia paranoid type" when testifying before Judge Moran in 1997, this Axis I diagnosis was not stated with any certainty in Dr. Schulman's 1996 report prepared for that proceeding. T, Exhibit 102, 1996 Schulman report. Dr. Schulman testified in 1997 that he formed his schizophrenia diagnosis when the testing was completed in 1986, but his 1986 testimony contradicts that statement, (Ryan I, 4328:2-18, 4332:5-10), as does his 1996 report. The diagnostic impressions outlined in the 1996 report references schizophrenia as a possible diagnosis that should be "ruled out," but reaffirms the diagnosis expressed by Dr. Schulman at Ryan's trial ten years earlier by stating:
To be ruled out at the time of the examination, is whether or not this patient is suffering from schizophrenia, paranoid type. At the present time, under present diagnostic criteria, one might think about this as being a delusional disorder.
(T, Exhibit 102, 1996 Shulman report, at p.3).
During the second post-conviction hearing, the State objected to Dr. Schulman reading his report as he testified during the trial. Dr. Schulman's psychological examination report (presumably the same report received as exhibit 102 in this habeas proceeding) was marked as exhibit 1033 and used by him extensively to "refresh his recollection" while testifying, but was not offered and received into evidence. Dr. Schulman did not read or reference in his testimony the portion of the report setting forth his diagnostic impressions. Ryan III, 30:2-32:3, 154:23-25.
[11] The purpose of the habeas evidentiary hearing was not to determine petitioner's competence at trial, but to determine his present competence, his competence (and its implication on his due process rights) during the 1997 second postconviction proceeding, and whether incompetence excused the procedural default of claims he failed to raise on direct appeal or in the first state motion for postconviction relief. I recognize that, assuming Ryan was competent during the 1997 hearing, permitting an expanded hearing on petitioner's competence at trial may not comport with the present provisions of Section 2254; nevertheless, since the competency claims and evidence overlapped significantly, and because it is more efficient in this type of habeas litigation to make a complete record, even if some of it must later be disregarded, I received evidence on Ryan's competence from the time of arraignment to present.
[12] Petitioner's habeas claim is not considered a second or successive petition. See, Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (applying AEDPA, habeas petition filed after initial petition was dismissed for failure to exhaust state remedies is not a "second or successive petition.")
[13] Petitioner argues in his brief that because I had concluded that the present habeas petition is a continuation of his first petition, the pre-AEDPA section 2254(d) "applies in its entirety to this case." While that may have been the case at the time petitioner submitted his brief on the merits, which was December 6, 2000, in light of the Weaver decision, that position is incorrect. I must note, however, that my conclusion that the present petition is the continuation of the first petition, filing 49, is not affected by Weaver. The Eighth Circuit held in Weaver that "`whether a petition' is a `second or successive' application under the AEDPA is an entirely different question' than whether AEDPA applies to a petition filed after the Act's effective date." Weaver, 241 F.3d at 1029 (citations omitted).
[14] Under Nebraska rules of appellate practice, to be considered by an appellate court, a claimed prejudicial error must not only be assigned, but must be discussed in the brief of the asserting party. Brewer v. Brewer, 244 Neb. 731, 733, 509 N.W.2d 10, 12 (1993). A criminal conviction will not be set aside on appeal unless the defendant meets his burden of showing that the error claimed created not merely a possibility of prejudice but, rather, that it worked to his actual prejudice. State v. Gore, 212 Neb. 287, 290, 322 N.W.2d 438, 440 (1982).
Ryan's appellate brief merely asserted that he was denied a fair trial because the trial judge turned his back to Ryan during his testimony, thereby signaling the jury to disbelieve Ryan's defense. Neither the appellate brief nor the trial court record, however, advised the Court that Ryan's testimony (and the significant admissions therein) was offered to prove insanity, nor how the trial judge turning his back during defendant's testimony influenced the outcome of that issue. Thus, Ryan's claim of prejudice may not have been asserted with the specificity required under Nebraska's procedural law. However, the Nebraska Court chose to discuss it, and the State has alleged that Ryan exhausted his state court remedies on this claim, (filing 13 at p.3), thereby waiving any procedural defense to reviewing the merits in this habeas action. Travis v. Lockhart, 925 F.2d 1095, 1097 (8th Cir.1991). Therefore, it is now properly before the court for habeas review.
[15] I note that this alleged mis-focus by the Nebraska Supreme Court can be attributed to the ambiguity of Ryan's brief on direct appeal. See footnote 14.
[16] The arguments at the motion for new trial cited herein are located in Volume VI of the blue-covered "proceedings" volumes of Ryan I.
[17] The wording of this phrase is unfortunately puzzling, for it is not clear whether the Court intended "guilt" to refer to the evidence of petitioner's factual involvement in the acts causing the victim's death, or on the other hand, to refer to a legal interpretation of "guilt" which would include rejection of petitioner's insanity defense. The evidence using the former interpretation was truly "overwhelming." The evidence using the latter interpretation, however, in my opinion, was not. This ambiguity therefore raises the question of whether the Nebraska Supreme Court did in fact limit its consideration of this issue to only an assessment of the evidence of petitioner's involvement in the murderous acts.
[18] The arguments at the motion for new trial cited herein are located in Volume VI of the blue-covered "proceedings" volumes of Ryan I.
[19] Ryan alleged that he was not aware of Judge Finn's statements during the meetings between Judge Finn and the Thimm and Stice families until after obtaining "newly discovered" information (i.e., Ryan III, Exhibit 1041, Daneda Heppner letter), following the first state postconviction proceeding. See Ryan III, appeal transcript, "Defendant's Second Amended Second Motion for Postconviction Relief at p. 6 ¶¶ 17, 23". (See also, filing 1, Petition for Writ of Habeas Corpus, Claim IV which alleges ineffective assistance of counsel for failing to investigate the ex parte meetings and develop the trial record). Ryan pursued and exhausted the claims in the second state postconviction proceeding.
[20] Judge Moran determined that Ryan's claim of bias and resulting prejudice arising from the ex parte meetings had been previously litigated in Ryan I and Ryan II and was therefore barred from re-litigation in the second postconviction relief proceeding. Ryan III, Memorandum and Order at p. 36. However, in both Ryan I and Ryan II the Nebraska Court's analysis discussed the lack of prejudice arising from exparte meetings with the Luke Stice family, and noted that there was no evidence that Judge Finn had spoken with the family of the murder victim in that case, James Thimm, prior to the sentencing. See Ryan I, 233 Neb. at 121, 444 N.W.2d at 640 (holding law does not condone trial judge's ex parte communication with victim's family members, however, record showed meeting with Stice family but not Thimm family); Ryan II, 248 Neb. at 461, 534 N.W.2d at 800 (holding communication with Stice family did not prejudice Ryan in sentencing for death of Thimm).
[21] This sentencing testimony is located in Volume VII of the blue-covered "proceedings" volumes of Ryan I.
[22] This sentencing testimony is located in Volume VII of the blue-covered "proceedings" volumes of Ryan I.
[23] Local Rule 39.2. provides in relevant part that "[w]hen a judge has set a time for submitting a brief, the failure to submit a brief or to discuss an issue in the brief submitted may be treated as an abandonment of that party's position on any issue not discussed." NELR 39.2(c)
[24] See extensive discussion and citations to the record supporting Judge Moran's decision herein at pages 34-49.
[25] This limited construction has been applied by the Nebraska Supreme Court since 1977, see State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977). It therefore existed at the time petitioner was sentenced.
[26] Section 29-2523(1)(a) provides that the following may be considered an aggravating circumstance by a sentencing court:
The offender was previously convicted of another murder or a crime involving the use or threat of violence to the person, or has a substantial history of serious assaultive or terrorizing criminal activity.
Neb.Rev.Stat. § 29-2523(1)(a) (Reissue 1995).
[27] This sentencing testimony is located in Volume VII of the blue-covered "proceedings" volumes of Ryan I.
|
NUMBER 13-05-067-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
_______________________________________________________
IN RE GRIFFITH LAND SERVICES, INC.
_______________________________________________________
On Petition for Writ of Mandamus
_______________________________________________________
MEMORANDUM OPINION
Before Justices Hinojosa, Rodriguez, and Wittig
Per Curiam Memorandum Opinion
Relator, Griffith Land Services, Inc., filed a petition for writ of mandamus on
February 2, 2005, and a motion for emergency temporary relief on February 11, 2005.
On February 11, 2004, this Court granted the motion for emergency relief and ordered
any and all trial proceedings stayed pending further order of this Court. Pursuant to
this Court’s request, the real parties in interest, William Saguto, Jr., Lawrence Saguto,
Donald L. Ruehman, and Robert J. Ruehman, Jr., filed a response to the petition on
February 22, 2005, after seeking and receiving an extension of time. Both relator and
real parties have subsequently filed additional briefing.
The Court, having examined and fully considered the petition for writ of
mandamus and all associated briefing, is of the opinion that relator has not shown
itself entitled to the relief sought and the petition for writ of mandamus should be
denied. See Tex. R. App. P. 52.8. Accordingly, the stay is hereby ordered LIFTED.
The petition for writ of mandamus is DENIED.
PER CURIAM
Memorandum Opinion delivered and filed
this 14th day of March, 2005.
|
660 So.2d 775 (1995)
William Wayne DAVIS, Petitioner,
v.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, STATE OF FLORIDA, Respondent.
No. 94-2908.
District Court of Appeal of Florida, First District.
September 18, 1995.
*776 William Fisher, IV of Merritt & Ratchford, Pensacola, for petitioner.
Enoch J. Whitney, General Counsel; Rafael E. Madrigal, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for respondent.
BENTON, Judge.
When William Wayne Davis sought judicial review of an administrative decision cancelling his (already restricted) driving privilege, the circuit court declined to reach the merits of his petition for writ of certiorari on grounds "the petition was not filed in a timely manner and the Court has no jurisdiction to rule on this matter." We conclude that the petition for writ of certiorari Mr. Davis filed in circuit court was not late under the law in effect at the time. We therefore grant the subsequent petition for writ of (common law) certiorari he filed in this court, quash the order dismissing the original petition, and remand for a determination of the merits of the original petition.
Common Law Certiorari
Although original in form, a certiorari proceeding in circuit court to review administrative action is "appellate in character in the sense that it involves a limited review of an inferior jurisdiction." Haines City Community Dev. v. Heggs, 658 So.2d 523, 525 (Fla. 1995). Review of such circuit court decisions is available in a district court of appeal, if at all, only by petition for writ of common law certiorari. City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982). After appellate consideration in circuit court, there is no right to a second appeal to a district court of appeal.
"[C]ertiorari jurisdiction of the district court may be sought to review final orders of circuit courts acting in their review capacity." Vaillant, 419 So.2d at 626. The standard of review in common law certiorari proceedings in a district court of appeal "when it reviews the circuit court's order under Florida Rule of Appellate Procedure 9.030(b)(2)(B) ... has only two discrete components." Education Dev. Ctr., Inc. v. City of West Palm Beach Zoning Bd. of Appeals, 541 So.2d 106, 108 (Fla. 1989) (emphasis omitted). "The inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law." Heggs, 658 So.2d at 529; Combs v. State, 436 So.2d 93 (Fla. 1983).
While not every legal error is of sufficient magnitude to warrant correction on petition for writ of common law certiorari, an erroneous refusal to exercise jurisdiction does constitute "the commission of an error so fundamental in character as to fatally infect the [circuit court's] judgment," State v. Smith, 118 So.2d 792, 795 (Fla. 1st DCA 1960), making relief by writ of common law certiorari appropriate.
Administrative Proceedings
In accordance with section 322.28(2)(a)3., Florida Statutes (1991), William Wayne Davis' driver's license was revoked upon his third conviction for driving under the influence in violation of section 316.193, Florida Statutes. Some two years later, he became eligible "for reinstatement of his driving privilege" on a basis "restricted to business or employment purposes only." § 322.271(2)(b), Fla. Stat. (1993). Once reinstated, petitioner had "to be supervised by a DUI program licensed by the department, and to report to the program at least three times a year." § 322.271(2)(b), Fla. Stat. (1993).
*777 Lakeview Center, Inc. (Lakeview) in Pensacola operated the DUI program that supervised petitioner. A urine sample he submitted to Lakeview in November of 1993 tested positive for cocaine metabolites. Lakeview relayed this information to the Department of Highway Safety and Motor Vehicles (DHSMV), which entered a form order dated January 20, 1994, cancelling petitioner's restricted driving privilege. The form order advised:
HOW TO APPLY FOR ADMINISTRATIVE HEARING TO REVIEW YOUR RECORD: If you believe that you have any legal basis to show cause why this action is unjustified, you may request a RECORD REVIEW at which time any argument, other than the validity of a conviction, may be presented to a hearing officer for review. A request for a record review shall not toll the time in which to file a writ of certiorari in accordance with S. 322.31 F.S.
Section 322.31, Florida Statutes (1993), provides that orders denying, cancelling, suspending or revoking driver's licenses "shall be reviewable in the manner and within the time provided by the Florida Rules of Appellate Procedure only by a writ of certiorari issued by the circuit court." The form order of cancellation advised that "[a]ppeals ... may be initiated within 30 days ... by following the procedure specified in S.322.31 F.S."
By letter dated January 28, 1994, petitioner wrote Barbara Lauer, Director of DHSMV's DUI Programs Section, alleging "a false positive urinalysis," and seeking "to enroll in another program at Avalon Center [Avalon] in Santa Rosa County." Ms. Lauer responded, outlining the procedure for obtaining a hearing at Avalon. The hearing at Avalon resulted in what the circuit court described as "the decision of the DUI Evaluator made at an appeal hearing which occurred between February 10 and March 23 of 1994." In this decision, according to the petition for writ of certiorari filed here, the DUI Evaluator gave no weight to petitioner's four- or five-year history of negative urinalysis results or to the "cross reactivity potential" of over-the-counter medications petitioner was allegedly taking in November of 1993.
On March 24 and 28, 1994, petitioner again wrote Ms. Lauer. By letter in reply dated April 26, 1994, she asserted on behalf of DHSMV that "the positive urinalysis in November 1993 served as justification for immediate cancellation," and stated:
You do have one option regarding another appeal. 322.31, Florida Statutes contains a writ of certiorari, which provides for a review of the department's decision that cancelled your driving privileges. Should you wish to explore this option, it would behoove you to retain the services of an attorney.
With the assistance of counsel, petitioner did file a petition for writ of certiorari in circuit court. Although the petition was filed within thirty days of April 26, 1994, the circuit court dismissed the petition as untimely on the theory that "the decision of the DUI Evaluator made at [the] appeal hearing" constituted a final order "of the department." § 322.31, Fla. Stat. (1993). The present petition for writ of certiorari seeks to overturn this dismissal.
Final Order of the Department
Under section 322.31, Florida Statutes (1993), review is available in circuit court only if a petition for certiorari is filed within thirty days of entry of a final DHSMV order. Fla.R.App.P. 9.100(c). The same time limit applies even if the circuit court review proceeding is viewed as an appeal of "administrative action ... provided by general law." Fla.R.App.P. 9.030(c)(1)(C). See Fla.R.App.P. 9.110(a)(2). "In appeals of final administrative action, controlling appellate rules require the filing of a notice of administrative appeal, Fla.R.App.P. 9.900(e), with the agency, and specify that `the appellant shall ... file the second copy of the notice with the court.' Fla.R.App.P. 9.110(c)," Baillie v. Department of Natural Resources, Div. of Beaches and Shores, 632 So.2d 1114, 1116 n. 3 (Fla. 1st DCA 1994), review denied, 642 So.2d 1362 (Fla. 1994), "within 30 days of rendition of the order to be reviewed." Fla. R.App.P. 9.110(b). Filing either place within thirty days meets jurisdictional requirements. *778 Magnolias Nursing and Convalescent Center v. Department of Health and Rehabilitative Servs., Office of Licensure and Certification, 428 So.2d 256 (Fla. 1st DCA 1982), review denied, 449 So.2d 265 (Fla. 1984).
DHSMV argued below that the "order to be reviewed" was its January 20, 1994, form order of cancellation. The trial court rejected this contention. In light of the administrative proceedings that took place after entry of the form order, as contemplated by advice to litigants set out in the form order, we agree with the learned trial judge on this point. The subsequent administrative proceedings belie DHSMV's claims of finality for the form order. The letter of April 26, 1994, invited judicial review. See generally Latin Express Serv., Inc. v. State of Florida, Dep't of Revenue, 660 So.2d 1059 (Fla. 1st DCA 1995); Denson v. Sang, 491 So.2d 288 (Fla. 1st DCA 1986); Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977). Under the statutes and rules in effect at the time, the form order was not an order of the department (as opposed to action by a "DUI Evaluator" not even employed by the Department).
We conclude that the letter of April 26, 1994, from the Director of DHSMV's DUI Programs Section, should be deemed the final order "of the department." § 322.31, Fla. Stat. (1993). The opinion in Keith v. Corbin, 346 So.2d 1223 (Fla. 1st DCA 1977), cert. denied, Corbin v. Keith, 352 So.2d 170 (Fla. 1977), seems to support this view. There, after a driver's license was revoked, "and following an administrative hearing the revocation was affirmed by letter of 25 June 1976." Id. at 1224. If, as has been held, a circuit court with conceded "authority to direct the department to revoke [a] driver's license, ... [nevertheless lacks] the authority to suspend or revoke the license itself," Crawford v. State, 651 So.2d 731 (Fla. 4th DCA 1995), surely no "DUI Evaluator" has such authority, sans rule or statute.
Although we do not decide the question, we feel obliged to point out that current Florida Administrative Code Rule 15A-10.031(1) might dictate a different result in a case arising on or after January 4, 1995. Effective January 1, 1994, DUI programs were transferred from the Supreme Court to DHSMV. In re Amendments to the Florida Rules of Traffic Court, 621 So.2d 1063 (Fla. 1993). Effective January 4, 1995, DHSMV adopted administrative rules supplanting the prior Florida Rules of Traffic Court, viz., Florida Administrative Code Rules 15A-10.000, et seq. §§ 322.271(4)(e) and 322.292(2)(a), Fla. Stat. (1993).
In the present case, however, we grant the petition for common law certiorari, quash the trial court's order on (i.e., dismissing) petition for writ of certiorari, and remand for further proceedings consistent with this opinion.
WEBSTER and MICKLE, JJ., concur.
|
539 U.S. 982
Madiganv.Nabisco Brands, Inc./RJ Reynolds Co., Inc., ante, p. 959.
No. 02-1562.
Supreme Court of United States.
August 25, 2003.
1
Petition for rehearing denied.
|
579 F.2d 1298
99 L.R.R.M. (BNA) 2547, 84 Lab.Cas. P 10,827
GULF STATES MANUFACTURERS, INC., Petitioner, Cross-Respondent,v.NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
No. 77-2406.
United States Court of Appeals,Fifth Circuit.
Sept. 15, 1978.
James F. Smith, Gary R. Kessler, Atlanta, Ga., for petitioner, cross-respondent.
Elliott Moore, Deputy Assoc. Gen. Counsel, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, Marion Griffin, Jesse L. Etelson, Attys., N.L.R.B., Washington, D. C., for respondent, cross-petitioner.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before SKELTON*, Senior Judge, and FAY and RUBIN, Circuit Judges.
SKELTON, Senior Judge.
1
This case is before the Court upon the petition of Gulf States Manufacturing, Inc., (hereafter referred to as the "Company"), pursuant to Section 10(f) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 88 Stat. 395, 29 U.S.C. sec. 151, Et seq.) to review and set aside an order of the National Labor Relations Board issued on June 28, 1977, and reported at 230 NLRB No. 81. The Board filed a cross-application for enforcement. The charging party is the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (hereinafter referred to as the "Union").
2
In its decision, the Board held that the Company interferred with, restrained and coerced its employees in violation of Section 8(a)(1) of the Act; that the Company violated Section 8(a)(5) of the Act by refusing to bargain in good faith with the Union; and that the Company violated Section 8(a)(3) of the Act by laying off employees because of their Union membership and by failing to properly or timely recall or reinstate employees after a strike.1
3
The underlying facts giving rise to this controversy are generally as follows. The company manufactures prefabricated metal buildings in a highly competitive industry that is seasonal in character. Because of a depression and business slump in the industry in the early part of 1975, the Company froze all wages on March 1, 1975, and began laying off workmen from time to time in order to meet the economic pressures it was encountering. All of this was done long before there was any labor union activity among its employees.
I. The Withdrawn Charges Issue
4
On July 21, 1975, the Union filed a petition seeking to represent the employees of the Company at its Starkville, Mississippi plant as their bargaining agent. An election was ordered to be held on September 12, 1975. On September 11, 1975, the night before the election, the general manager of the Company, Clayton Richardson, made a speech to the employees in which he spoke of the wage freeze of the Company and the freeze on wages existing because of the union election and how long the freezes might last. He also commented on possible changes in work schedules that allowed employees to ride in car pools to and from work if the Union won the election.
5
The election was held on September 12, 1975, in which a majority of the employees voted for Union representation. The Company filed timely objections on September 17, 1975, in Case No. 26-RC-5064, challenging election procedures and alleging failure to protect the secrecy of the ballot at the election. The Union responded by filing unfair labor charges against the Company in Case No. 26-CA-5812, stating in pertinent part as follows:
6
"h. The above-named employer has engaged in and is engaging in unfair labor practices within the meaning of section 8(a), subsections (1) and (3) and (5) of the National Labor Relations Act, and these unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act.
7
"2. Basis of the Charge (Be specific as to facts, names, addresses, plants involved, dates, places, etc.)"Since on or about September 15, 1975, the above-named Employer, by its officers and agents, has temporarily laid off the following employees and others because of their membership in and activities on behalf of International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, a labor organization:
Joe Kimbrough Jessy Stallings
Jack Griffin Willie Buford
Henry Vaughn Johnny Oswalt
Odell Roberson Aaron Mitchell
Bruce Davis Steve Carmichal
Oddie Harris Timmy Harrelson
Fred Williams
8
The above-named Employer, by its officers and agents, refused to bargain with the above-named labor organization on and after September 15, 1975, by unilaterally changing terms and conditions of employment, specifically laying off employees contrary to its prior practice.
9
By the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act."
10
The Union filed additional charges against the Company in Case No. 26-CA-5786. The document containing these charges is not in the record and for that reason we are unable to relate the charges verbatim. However, the Company represents that the charges complained of: (1) the aforesaid speech of general manager Richardson; (2) statements made by supervisor Joe Starnes on September 15, 1975, regarding future enforcement of existing Company rules pertaining to work that had not been strictly enforced before the election; (3) the layoffs by the Company of 20 workmen between September 15 and October 1, 1975, when there had been no layoffs in the four months just before the election; (4) the statement made by supervisor, Ervin Perrigan, to certain employees shortly after the election that he would not be able to help them any more and that in the future they would have to go through their stewards and the President of their Union; (5) the statement made about two weeks after the election by supervisor John Hayes to employee Joe Malone that the Union had his automatic raise frozen and if the Union had not gotten in he probably would have gotten his raise, and that he might get it if he got a group of people to sign a petition to vote the Union out; (6) the statement of supervisor Hayes to employee Jack Griffith that the Union had the wages frozen; (7) the answer of supervisor Perrigan to employee Richard Harris in November, 1975, who asked about a raise, that "the Union's got things tied up now;" (8) and the statement of Perrigan to Philip Parker that he would not get a raise until the contract was negotiated.
11
We accept the fact that the above charges of the Union against the Company were contained in Case No. 26-CA-5786 for several reasons. The Company says they were and the Board does not deny it. Such charges were considered as unfair labor practices of the Company by the Administrative Law Judge (ALJ) who tried the case, and they are now urged as such by the Board in its brief. Furthermore, it is significant that all of the events mentioned in the charges occurred before the settlement was made and the charges were withdrawn by the Union with the approval of the Board's Regional Director on November 11, 1975, as shown below. Even if the charges were not described in detail or with specificity on the forms used by the Union and furnished by representatives of the Board in filing the charges, they are deemed to have been included because of the "catch-all" phrase on the forms which stated:
12
"By the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act."
13
This court held in N. L. R. B. v. Central Power & Light Co., 425 F.2d 1318 (5 Cir. 1970) that the "catch-all" phrase "by other acts and conduct" in the charges was sufficient to include other acts and conduct if they are sufficiently related to the specific acts alleged. In that case a charge of an unlawful reprimand of an employee and other violations was held to be sufficient to include a non-solicitation rule even though it was not mentioned in the charges. There the court stated:
14
"Accordingly, general allegations such as that the employer 'by other acts and conduct * * * interfered with, restrained and coerced its employees in the exercise of their rights guaranteed in section 7 of the Act,' as the charge here alleged, Are legally sufficient to cause inclusion of other acts if they are sufficiently related to the specific acts alleged. And sufficient relation has generally been found between acts that are part of the same course of conduct, such as a single campaign against a union. Texas Industries, Inc. v. NLRB, 5th Cir. 1964, 336 F.2d 128, 132; * * * ." (Emphasis supplied) 425 F.2d 1320.
15
"In this case, since, the events complained of were all part of the same alleged anti-union campaign, were close together in time, and were clearly covered by the general language of the formal charge, there is little merit to any argument that the first charge did not authorize the Board to complain of the no-solicitation rule." 425 F.2d 1321.
16
In Texas Industries, Inc. v. N. L. R. B., 336 F.2d 128 (5 Cir. 1964), the court held that charges filed by the Union that alleged generally that the company had "engaged in * * * unfair labor practices within the meaning of" Section 8(a)(1) and (3), and then alleged specifically various acts of coercion against a named employee was sufficient to include unfair labor practices by the company against other employees which were not mentioned in the charges. In that case the court held:
17
"The original charge filed by the union in this case alleged generally that the company had 'engaged in * * * unfair labor practices within the meaning of' § 8(a)(1) and (3), and then went on to allege specifically a discriminatory discharge and various acts of coercion with respect to employee Tadlock. The company maintains that the charge is addressed only to unfair labor practices committed against Tadlock. * * * The Board contends that the general allegation of § 8(a)(1) and (3) violations was sufficient to cover the interrogation of employees other than Tadlock. We agree with the Board.
Section 10(b) of the Acts provides:
18
'Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board * * * shall have power to issue * * * a complaint stating the charges in that respect * * * .' "
19
"It is established that this section precludes the Board from issuing a complaint on its own initiative, and that a charge is a prerequisite to the institution of proceedings before the Board. N. L. R. B. v. Kohler Co., 7 Cir. 1955, 220 F.2d 3. However, the charge is not a formal pleading, and its function is not to give notice to the respondent of the exact nature of the charges against him. N. L. R. B. v. Fant Milling Co., 1959, 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243; Consumers Power Co. v. N. L. R. B., 6 Cir., 1940, 113 F.2d 38. This is the function of the complaint."
20
"In the light of these principles, we feel that the general allegation in the charge of violations of § 8(a)(1) was sufficient (to include violations not described)." 336 F.2d 132.
21
In the instant case, the charges filed by the Union in Case No. 26-CA-5812 contained a general charge that "the above-named employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a), subsections (1) and (3) and (5) of the National Labor Relations Act." The charges in such case also included the "catch-all" phrase of "by the above and other acts, the above-named employer has interfered with, restrained, and coerced employees." We assume that Case No. 26-CA-5786 was filed by the Union on the standard printed form of the Board and that it contained the same general charges and allegations. Consequently, as in Texas Industries, Inc. v. N.L.R.B., supra, and N.L.R.B. v. Central Power & Light Co., supra the general charges and allegations were sufficient to include all existing related charges of unfair labor practices whether they were specifically described or not. Such charges were close together in time, and the events were all a part of the alleged anti-union campaign of the company, and were covered by the general language of the formal charges.
22
On November 11, 1975, the Company and the Union settled this part of the controversy by executing the following stipulation:This stipulation was submitted by the parties to Raymond A. Jacobson, the Regional Director of the Board in Memphis, Tenn., who approved it on November 11, 1975, by mailing letters to the parties in which he stated:
23
"This is to advise that I have approved the Withdrawal Request submitted in this matter."
24
On the same date, the Regional Director certified the Union as the bargaining representative of the Company's employees, in accordance with the stipulation, by issuing a written Certification of Representative, on which appeared the following notation:
25
"The employer filed objections to the election and exceptions to the Region's findings but by stipulation of the parties, the employer withdrew its objections and exceptions on November 11, 1975, which was approved on this date."
26
As shown by the stipulation, the Company withdrew all objections and exceptions to the election in case No. 26-RC-5064 with prejudice, and the Union withdrew all unfair labor charges in cases Nos. 26-CA-5786 and 26-CA-5812 with prejudice and represented there were no other unfair labor practice charges pending against the employer by the Union. The Quid pro quo of the agreement was the certification of the Union as the employees' bargaining representative. This settlement was approved, as shown above, by the Regional Director in two different written instruments dated November 11, 1975.
27
At the trial, the Board made a motion to withdraw the approval by the Regional Director of the above settlement and withdrawal by the Union of its unfair labor charges against the Company described in the stipulation, but the ALJ properly denied the motion.
28
In the meantime the Union filed unfair labor charges against the Company on February 17, 1976, in case No. 26-CA-6007, in which it attempted to reinstate some of the withdrawn charges. The only new charge in this filing was an allegation that the Company had failed and refused to bargain in good faith with the Union. These charges were amended by the Union on March 19, 1976, and again on April 20, 1976, and again on July 2, 1976. In these various charges, the Union realleged and attempted to reinstate all of the withdrawn charges. The Union filed an additional charge on March 11, 1976, in case No. 26-CA-6049 in which it charged the Company with refusing to reinstate named employees who participated in a strike against the Company.
29
The Board issued a complaint against the Company on April 20, 1976. This complaint was amended on June 28, 1976, and again on July 2, 1976. The ALJ consolidated all of the charges and complaints before the trial. The Board included all of the withdrawn charges in its consolidated complaint of July 2, 1976. The Company made a motion to strike the withdrawn charges from the consolidated complaint on the grounds that the Union had withdrawn them with prejudice and could not reinstate them, and the Board could not reinstate them because they were barred by the six months statute of limitation.2 The ALJ found and concluded that the reinstitution of the withdrawn charges was improper because of the statute of limitations. In addition, he found that while it was the policy of the Board to permit reinstatement of withdrawn charges, beyond the limitations period, where it was warranted by equitable considerations, which policy he must follow, notwithstanding the decision of the court denying enforcement in NLRB v. Silver Bakery, Inc., 351 F.2d 37 (1 Cir. 1965), which the Board does not accept, that there were no equitable considerations in this case to warrant a circumvention of the statutory limitations period. Nevertheless, he allowed the reinstatement of the withdrawn charges on the basis that the charge filed by the Union on February 17, 1976, within the limitations period, was broad enough to allow the Board to include the withdrawn charges in its amended complaint filed July 2, 1976, which was beyond the limitations period, and, therefore, denied the Company's motion to strike. We disagree.
30
It will be recalled that the Union withdrew the charges with prejudice, the effect of which was to forever bar it from reinstating such charges. Consequently, the Union could not and did not reinstate the charges by filing the charge on February 17, 1976. Therefore, when the Board amended its complaint on July 2, 1976, to include the withdrawn charges, there were no Union charges that had been filed within the limitations period which included or could include the withdrawn charges, either specifically or by means of the "catch-all" phrase on the form, when the Board included them in its July 2, 1976, amendment. Under these circumstances, the Board became the charging party, which is contrary to the plain provisions of the Act, as well as to the decided cases. This court held in Texas Industries, Inc. v. NLRB, supra :
31
"Section 10(b) of the Act provides:
32
'Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board * * * shall have power to issue * * * a complaint stating the charges in that respect * * *.'
33
It is established that this section precludes the Board from issuing a complaint on its own initiative, and that a charge is a prerequisite to the institution of proceedings before the Board. N.L.R.B. v. Kohler Co., 7 Cir., 1955, 220 F.2d 3." 336 F.2d 132.
34
In thus becoming the charging party on July 2, 1976, the Board alleged new charges that were barred by the statute of limitations.
35
Furthermore, the Union was not only bound by its agreement to withdraw the charges with prejudice, which prohibited its reinstatement of the charges, but it was also estopped from doing so. The Union represented to the Company that it was withdrawing the charges with prejudice, and it intended for the Company to rely on such representations. The Company did rely upon them and changed its position to its detriment, with a corresponding benefit to the Union. The Union was and is estopped from reinstating the withdrawn charges. Also, the Board is legally and morally bound by the withdrawal arrangement, because it approved the agreement, through its duly authorized Regional Director, who acted within the scope of his authority, and who, at the same time, certified the Union as the bargaining agent as required by paragraph 6 of the stipulation. This made the Board a party to the agreement.
36
The facts in the instant case are much like those in N.L.R.B. v. Electric Furnace Co., 327 F.2d 373 (6 Cir. 1964). In that case the Union filed an unfair labor charge against the company regarding an event that took place on September 8, 1960, and on January 6, 1961, the Regional Director issued a complaint on the charge. Later, the Union withdrew the charges with the approval of the Regional Director, who, in turn dismissed the complaint. On February 10, 1961, the Union filed another charge. On May 5, 1961, the Regional Director issued a complaint, revoked his previous withdrawal approval and complaint dismissal, and reinstated the previous charge and complaint and consolidated the cases for hearing. The court held that the initial charge was barred by the six months statute of limitations (§ 10(b) of the Act, 29 U.S.C. § 160(b)). The court held:
37
"This section, which has the effect of a statute of limitations, would clearly prevent a complaint issued in May, 1961, from alleging an unfair labor practice committed in September, 1960. Here, however, the problem is not quite so simple. A timely complaint has been issued on January 7, 1961, but subsequently the charge was withdrawn and that complaint dismissed. Then on May 5, 1961, eight months after September 8, 1960, the Regional Director attempted to retract his withdrawal and reinstate this earlier timely charge. We are of the opinion that his action in doing so is barred by § 10(b). The Board has held that A withdrawn charge cannot support allegations of unfair labor practices, and to allow its reinstatement would circumvent the meaning of § 10(b). Olin Industries, Inc., 97 N.L.R.B. 130; Square D Company, 105 N.L.R.B. 253. See Local Lodge No. 1424, International Association of Machinists v. N. L. R. B., 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832; Wausau Bldg. & Constr. Trades Council, 123 N.L.R.B. 1484. Thus after the January 7 complaint had been withdrawn and dismissed, it could not be reactivated after the statutory six-month period of limitations had expired." 327 F.2d 375. (Emphasis supplied).
38
It will be noted that even the dates in that case are about the same as those in the instant case. However, the facts in our case are stronger for the Company than those in that case because here the charges were withdrawn "with prejudice."
39
In the case of N. L. R. B. v. Silver Bakery, Inc., supra, which the Board has refused to accept or comply with, the court held that Section 10(b) of the Act has been applied consistently to bar "reinstated" charges after withdrawal of an original timely charge with the approval of the Board. The court stated:
40
"Section 10(b) is clearly an ordinary statute of limitations. Cf. Local Lodge No. 1424 v. N. L. R. B., 1960, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832. It has been applied, consistently, so far as we can discover, to bar 'reinstated' charges after withdrawal of an original, timely charge. Cf. NLRB v. Electric Furnace Co., 6 Cir., 1964, 327 F.2d 373; Olin Industries, Inc., 1951, 97 N.L.R.B. 130. There was no statutory basis in the Act for holding the statute to be tolled, and no other ground. The Board's broad proposition that once a complaint has been filed and dismissed only so-called equitable principles determine when it can be revived was created out of whole cloth. From the standpoint of respondents, for whom section 10(b) was enacted, we can think of no good reason why the mere filing of a charge which is withdrawn with the consent of the Board, so that no proceedings are pending, should leave in the Board a roving discretion to determine that so-called equities warrant the reinstitution of the proceedings without limit of time. The fact that the Board may feel that its discretion is benignly exercised cannot answer the clear purpose of a statute of limitations. The order may not be enforced."
41
This court held in N.L.R.B. v. Central Power & Light Co., supra, that "A withdrawn charge is no charge at all." (Emphasis supplied).
42
Finally, it appears from the record that the Board violated its own rules and regulations contained in Section 10120.5 of the Board's Case Handling Manual under the caption of "Refiling of Same Allegation" which provides:
43
"A closing of a C case pursuant to a withdrawal request constitutes a disposition of the issues without prejudice; however, the 10(b) period will apply with respect to any refiling of the same allegations. The matter, if reopened, should be considered and handled as a new charge."
44
When this regulation was called to the attention of the ALJ at the trial by the Company's attorney in objecting to a consideration of the withdrawn charges, counsel for the Board stated:
45
"A quick answer to that, your Honor, is that it is not a refiling, it's a reinstatement."
46
Of course, the answer of the Board's counsel was a semantic play on words, as the regulation refers to "refiling" withdrawn allegations and a "reopened" charge. We see no practical difference between "reopening" and "reinstating" the charges. However, the answer of the attorney for the Board is significant for at least two reasons. In the first place, it shows that the Board did not comply with its own rules and regulations. Had it done so, it would have been required to refile or reopen the allegations as "new charges". In that case, Section 10(b) would have barred them. Secondly, the attorney's statement shows that the Board actually reopened charges that had been withdrawn and that were not pending at the time the Board reinstated them. This made the Board the charging party in violation of the provisions of the Act.
47
It is well settled that an Executive Agency of the Government is bound by its own regulations, which have the force and effect of law, and the failure of an agency to follow its regulations renders its decision invalid. See United States v. Nixon, 418 U.S. 683, 694-696, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957) (State Department); Cunningham v. United States, 423 F.2d 1379, 191 Ct.Cl. 471 (1970) (Air Force); Piccone v. United States, 407 F.2d 866, 186 Ct.Cl. 752 (1969) (Navy Dept.); Watson v. United States, 162 F.Supp. 755, 142 Ct.Cl. 749 (1958) (War Dept.); and Hanifan v. United States, 354 F.2d 358, 173 Ct.Cl. 1053 (1965) (Civil Service Commission).
48
The Administrative Procedure Act (APA) requires each agency to publish in the Federal Register rules of procedure, and substantive rules of general applicability, and statements of general policy adopted by the Agency.3 However, in 1967 Congress added Pub.L. 90-23, 81 Stat. 54, which provides:
49
"Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published." 5 U.S.C. § 552(a)(1).
50
The record in this case does not show whether or not the above regulation contained in Section 10120.5 of the Board's Case Handling Manual was published in the Federal Register. In any event, it was not necessary for it to be so published in order for it to be binding on the Board in view of the above 1967 exception.
51
Congress intended by this exception to provide that no person should be adversely affected by a regulation required to be published in the Federal Register but not so published.4
52
It was not material whether the regulation was substantive or procedural in order to bind the Board, so long as its non-observance adversely affected the Company in this case. The Supreme Court considered these questions in Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) where the Bureau of Indian Affairs (BIA) failed to follow its regulations contained in 66 Indian Affairs Manual 3.1.4 (1965) which it admitted were internal and procedural in character, in denying assistance benefits to Indians living "near" a reservation instead of "on" it. The court relied on the above exception to the APA in deciding the case in favor of the Indians, saying:
53
"Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required. Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 539-540, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959)."
54
"Before the BIA may extinguish the entitlement of these otherwise eligible beneficiaries, it must comply, at a minimum, with its own internal procedures." 415 U.S. 235, 94 S.Ct. 1074, 39 L.Ed.2d 294.
55
In Service v. Dulles, supra, and Vitarelli v. Seaton, supra, the Supreme Court held procedural rules to be binding on the State Department and Department of the Interior, respectively. See also Davis, Administrative Law of the Seventies, Sections 5.03-5, Cum.Supp., July, 1977.
56
In the instant case, the Board's regulations aforesaid required it to refile or reopen the withdrawn charges as new charges, and to handle and consider them as new charges. When it failed to do so it violated its own internal procedures. This violation adversely affected the rights of the Company by depriving it of the defense of limitations afforded by Section 10(b), and was error.
57
The Company argues that in any event the withdrawn charges were not unfair labor practices by the Company that violated any of the provisions of the Act. We do not find it necessary to decide this question in view of our disposition of this part of the case.
58
Accordingly, we hold that when the charges were withdrawn with prejudice by the Union on November 11, 1975, they were thereafter null and void and were eliminated from the case and could not be reinstated by the Union at any time, nor by the Board as a charging party before or after the limitations period had run. Therefore, such charges are not before us for decision and we will not consider them. These withdrawn charges include all those events complained of by the Union that occurred prior to November 11, 1975. The Board erred in considering such withdrawn charges and in holding that they were unfair labor practices by the Company that violated Sections 8(a)(1) and (3) of the Act. We deny enforcement of the Board's decision on this part of the case.
II. The Good Faith Bargaining Issue
59
Contract negotiations began between the Company and the Union on November 21, 1975. At the first and second sessions on November 21 and December 5, 1975, the Union presented a 19-page contract containing their demands under the following comprehensive headings:
1. Union recognition and jurisdiction
2. Union security
3. Checkoff of Dues
4. Management functions
5. Agents of the Union and responsibility
6. Hours of work and overtime
7. Work day defined
8. Work week defined
9. Pay week
10. Overtime pay
11. Double time
12. Holiday overtime pay and no pyramiding
13. Overtime notice
14. Overtime equalization
15. Reporting pay
16. Call-in pay
17. Grievance procedure
18. Arbitration
19. Seniority defined
20. Seniority list
21. Probationary period
22. Transfers
23. Accident and illness
24. Shift preference
25. Military Service
26. Loss of seniority
27. Lay off and recall record
28. Transfers or promotions
29. Leave of absence
60
(a) Personal leave
61
(b) Union business
30. Working conditions
62
(a) Safety and health
63
(b) Safety committee
64
(c) Medical treatment
31. Holidays and holiday pay
32. Vacations
33. Wages and job classifications
34. Jury duty
35. Funeral pay
36. Christmas bonus
37. Restoration of employee Erwin
38. Insurance
39. Pensions
40. Vending machine profits
65
The Company presented its proposals at the third meeting held on December 17 and 18, 1975. It was evident from the start that the parties were far apart and that hard bargaining would ensue. This was especially true in view of the divergent proposals and the depressed economic condition of the Company. Also, since the Company had no previous bargaining experience, it naturally sought to include adequate provisions in the contract for the protection of the Company. The differences between the parties were described by the Company generally as follows:
66
The Union demanded, Inter alia, the strongest "Union Security" allowed by law. It offered the Company a "Management Functions" clause which did not specify management prerogatives. The Union proposals included daily overtime; double pay after twelve hours, and double pay for Sunday work and call-ins, and triple pay for hours worked on holidays, more holiday and vacation benefits and liberalized practices, reporting and call-in pay improvements; new leave policies requiring union approval; seniority changes; expanded and changed insurance and pension coverage; extended jury service and funeral leave and pay, and guaranteed Christmas "bonuses"; and a grievance and arbitration provision making all disputed matters subject to arbitration without exception. A "no-strike" commitment by the Union was absent. (The omission was later alleged to have been an "oversight" by the union negotiator.) Wage demands, later proposed, began at 18% "across-the-board" the first year, cost of living adjustments, and would have telescoped wage progressions.
67
Company proposals afforded the Union such benefits as checkoff for union dues, bulletin board space, and leaves for its union officers to attend conventions. Revised and improved policies and benefits proposed by the Company included premiums for Saturday and Sunday work and advance notice on overtime and work scheduling; improved vacation scheduling; jury pay extension; detailed seniority, transfer and wage protection provisions which extended seniority retention on layoff from 30 days to two months and reduce the length of a probationary period from 120 to 100 days; holiday protection was proposed, with a fixed practice to permit holiday pay to count as hours worked for purposes of computing overtime pay; pension and insurance programs were continued (all costs paid by Company); and many other items of importance to both parties. The Company made a firm proposal on each benefit topic. It elected not to contractually guarantee, as demanded by the Union, the practice of giving Thanksgiving turkeys and Christmas gifts. Company wage proposals were to end the wage "freeze" and to increase rates in classification by 5% The first year. The proposal was improved by adding a new productivity pay system which could provide increases of an additional 9%. Wage increases in the second and third years were also proposed. The proposals of both parties are shown more fully in the discussion below of the 20 meetings they attended.
68
In order to show the intensity of the bargaining by both parties, and the difference between their proposals, the sessions held on the following indicated dates are described in detail:
69
(1) November 21, 1975: This first meeting was primarily introductory. The Union was represented by Mr. Orman who presented the first half of its proposals, received certain information previously requested, and requested additional information.
70
Mr. Smith, representing the Company, pointed out the adverse economic conditions which the Company faced and asked the Union to keep its proposals reasonable. They agreed to withhold negotiations on economic issues until language issues were resolved.
71
(2) December 5, 1975: The Union presented the remainder of its proposals and these were discussed. The Company complied with the Union's request for information on fringe benefits. The Company rejected the Union's request, made at the first meeting, that Union personnel be paid for the time spent in negotiations. The Company did agree to a scheduling of meetings designed to prevent the employees on the Union Committee from losing work time, or at least limiting the time lost.
72
(3) and (4). December 17 and 18, 1975: The Company presented its written proposals. These were discussed and the Union pointed out those portions to which it objected.
73
(5) and (6). January 7 and 8, 1976: Mr. Watson was substituted for Mr. Smith as bargaining attorney for the Company. Mr. Watson asked that the initial proposals be gone over again. The parties had by now had time to study each other's proposals and additional questions were brought out on both sides.
74
At these meetings the Company proposed a preamble (to which the Union stated that it had no objections), a statement of recognition (to which the Union tentatively agreed), a Purpose and Scope of Agreement Article (to which the Union sought an Amendment inserting a non-discrimination clause; the Company agreeing to the amendment, and the Union thereupon agreeing to the proposal).
75
The Company's holiday proposal was also discussed. There was agreement as to the number of holidays and the time of each, except for one "floating holiday." The Company sought Company designation of the time of this holiday after consultation with the Union. The Union wanted the time to be set by mutual agreement. The bulk of the disagreement which remained unresolved as to this article was providing who qualified for the holiday and what was to be the rate of pay for holidays. This second holiday proposal of the Company differed from the first proposal in that it provided that holidays were to be included in time worked when figuring overtime. This change answered an earlier Union objection.
76
In this meeting the Union and the Company also compromised so as to reach agreement with regard to Reporting and Call-In Pay. In section 1 of that article, dealing with Reporting Pay, the Company proposal provided for 2 hours and straight time. The Union objected and wanted 4 hours. In section 2, dealing with Call-In Pay, the Company had upped its initial offer of 2 hours to 3 hours and was still proposing straight time. With regard to both sections, the Union wanted pay at "the appropriate rate," meaning pay would vary for these hours due to overtime, holidays, and other rates provided in the contract. The Company then agreed to raise its Reporting Pay proposal to 3 hours and to change from straight time to "appropriate rate" with regard to both Reporting Pay and Call-In Pay. Agreement was reached on these terms.
77
Most of the other proposals were discussed during this meeting with neither side giving much from its original stance.
78
(7) and (8). January 19 and 20, 1976: During this meeting the Union proposed that the Company pay 1/2 of the cost of protective glasses and safety boots worn by employees. The employees currently paid all such expenses themselves and the Union's initial proposal had been that the Company pay all of such expenses.
79
The bulletin board issue was also agreed upon at this meeting. The Company submitted a typed proposal it had brought to the meeting and with one amendment sought by the Union, this was what was agreed upon.
80
The Company also submitted another proposal on the Grievance and Arbitration Procedure. The Union objected that 5 days was "too long" a period to give the department superintendent to supply his written answer, yet asked for 5 days in which to allow an employee to orally take his grievance to his immediate supervisor, saying the two days proposed by the Company was not enough time for this step.
81
At this meeting Mr. Orman stated that the Union had no disagreement with the strike and lockout proposal offered by the Company except that it referred to the arbitration and grievance article which was as of yet unsettled.
82
The Union offered no formal proposals at this meeting. The Union did, however, in response to the Company's proposal of voluntary arbitration with right to strike, say that they desired mandatory final and binding arbitration with a no-strike, no lock-out provision.
83
The Union stated that they were in a hurry to reach an agreement and the Company agreed to meet on the 27, 28, 29 and 30th of January.
84
The Company asked the Union to prepare a written wage proposal for the next meeting.
85
(9). January 27, 1976: The Union did not prepare a written proposal on wages, but gave only an oral proposal. This was the only wage proposal given by the Union. The Company, however, submitted written proposals.
86
At this meeting agreement was reached as to sections 3 and 5 of the Representation article. Section 5 was new and proposed by the Company to provide for additional union shop stewards, if and when new shifts were created.
87
The Company also made a minor change in their checkoff proposal, in response to union requests, providing that the Company would give notice to the Union when an employee notified the Company that he wished to quit having the dues deducted from his check. There remained disagreement as to the major matters of arrearages and revocability.
88
The Company also changed its proposals concerning Hours of Work and Overtime. They added language providing for time and a half for Saturday and Sunday work provided the employee worked all scheduled hours during the week. The previous proposal provided only for time and a half after 40 hours, with no distinction as to Saturday and Sunday. The Union had objected to the Company's initial proposal asking for time and a half on Saturday and double time on Sunday, regardless of whether or not the employee had worked 40 hours during the week.
89
With regard to the Seniority article, section 2, the Company lowered the probationary period from 120 to 100 days.
90
The Union made two oral offers: (1) Place the probationary period at 90 days, and (2) Change the Company proposal allowing temporary layoffs for up to 14 days without regard to seniority, by adding for just cause and limiting the term to 7 days. Neither was accepted.
91
The Union asserted that the Company had reduced its proposals in section 6 of the Seniority article. Originally, § 6(d) has been 4 days, the Union asked for 5, and the new Company proposal was for 3. In § 6(f) the Company had offered 1 year, the Union asked for 2 years, and the Company now proposed 2 months. The Company said this last change was to make this provision consistent with the leave of absence article, such inconsistency previously having been pointed out by the Union, but the change did not solve this question, as the leave of absence article provided for 1 month with up to 1 year upon proven inability to work.
92
As to § 7 of the Leave of Absence article, the original Company proposal had been to allow employees to reschedule their vacations so as to use vacation time for Union conventions and other Union business. The Company now proposed to allow up to 2 weeks duration per year, provided there remained sufficient personnel to run the Company, without this being part of the employee's vacation, although it was to be without pay by the Company.
93
(10). January 28, 1976: The Company added to their proposal on Hours of Work Overtime a section guaranteeing "Supervisors or persons excluded from the bargaining unit" the right to continue to do the same type of work and to perform the same type of duties as were performed prior to recognition.
94
The Union wanted to "clear up some alleged inequities in the classification" as follows: (1) Quality Control man go from a 6 to a 7; (2) Press Operator from a 5 to a 6; (3) Shear Cutback Helper from 2 to a 3; Warehouseman from a 4 to a 5.
95
The Company, in conjunction with its wage proposal, also desired to clear up some alleged inequities in the classifications, and gave the Union a list of 22 employees whose ratings should be cut, as they were in higher classifications than those provided for their jobs.
96
The Union also proposed that all employee reprimands be wiped clean so that the employees' records would start clean with the new contract. The Company also submitted a wage proposal.
97
(11). January 29, 1976: The Company submitted a second wage proposal. In its initial wage proposal the Union had sought an 18% Across the board increase the first year with wage adjustments tied to the cost of living in the 2nd and 3rd years. The Company initially proposed a wage increase of approximately 5% The first year and across the board increases of 5% In the 2nd and 3rd years. The Union, noting that the Company's proposals included additional pay steps (some 40 total steps, although men were working at only 18 different steps at that time), proposed a 17% Across the board increase the 1st year and 6% In each of the 2nd and 3rd years. The second wage proposal submitted by the Company offered approximately 4% Pay raises the 1st year (reduced from the Company's original proposal of approximately 5 per cent) and raises of approximately 5% In the 2nd and 3rd years. In addition, however, the Company was offering productivity pay, to be paid quarterly, based on the number of man-hours required for each ton of shipped buildings. The payments were to range from .3% At 12.9 man-hours per ton to 9% If the required man-hours were reduced to 9.7 per ton or less. The Union was not at all receptive to this proposal, saying They did not consider it as good as the first proposal because they did not like the idea of productivity pay. The Union was opposed to productivity pay because "a number of things could happen that would cut productivity." The Company lowered its original proposal 1% The first year and did not lower it at all for the second year, yet provided for productivity pay which could exceed this 1% Figure in each of the years. Furthermore, if the productivity pay amounted to 1% In years 2 and 3, then, when coupled with the 5% Liquidated raise it would equal what the Union was seeking in years 2 and 3.
98
At the end of this meeting on the 29th Mr. Watson, attorney for the Company, informed the Union that he had been in touch with Company officials during the break and that the Company would like to meet again on Saturday for a couple of hours and see if the Company could come up with another proposal.
99
(12). January 30, 1976: The Company offered its 3rd wage proposal. This was basically the same as the second Company offer, offering only very small increases in pay. At this time, however, the Company orally proposed to drop the demand submitted in conjunction with their previous wage proposals that the wages of 22 employees be reduced. At this time the Company sought to "red-circle" these employees, meaning their present wage scale would not be reduced but they would not receive any wage increase until the salary for their particular job caught up with the salary they were presently being paid. This was in response to very adamant opposition by the Union to the lowering of these employees' salaries.
100
The Company stated that this was their very tops on money and asked that it be submitted to the membership. The Union agreed, but said that they would not recommend approval. The Union committeemen suggested to the Union, prior to the vote, that the Company felt like the employees would accept anything they offered, and if it was turned down, maybe they would come back with a proposal that would be acceptable.
101
(13). February 1, 1976: The Union informed the Company that the membership, having been informed by its committeemen of the Company's wage proposal, voted overwhelmingly to reject it, and also authorized a strike.
102
(14). February 10, 1976: The Company agreed to concede on three points: (1) Cut probationary period down to 90 days (which was the time the Union had earlier solicited from the Company), but retain the provision that stated that insurance coverage would not start for 120 days; (2) on Hours of Work, delete "as schedule dictates" and add "as need requires" (the Union had previously objected to "the Company being able to change the schedule without any reason"); and (3) change the 14-day temporary layoff so as to add "for just cause" (the Union had previously said they would agree to this provision if the Company would add "for just cause" and cut the term to a week).
103
During this meeting the Company presented another wage proposal to improve the productivity pay formula. The Company also added a provision to the Safety and Health article that for on-the-job injuries an employee would be paid through the end of his shift.
104
The Union asked Mr. Hudson, the Federal mediator who was present at this meeting for the first time, to set another meeting.
105
(15). February 13, 1976: The Union, for the first time, took affirmative action regarding the entire contract and gave the Company a list of 5 items saying that if the Company would agree to these 5 items the Union would drop their objections to those items in the Company's latest proposals to which there had not been an agreement. These 5 items were as follows: (1) Grievance and Arbitration, (2) Hours of Work, (3) Seniority, (4) Checkoff, and (5) Wages. The Union had made some concessions with regard to these 5 items, yet did retain their basic original position (as to wage increase, they dropped their first year demand to 9% And left the 2nd and 3rd years at 6%). The Company caucused and returned saying their final proposal was on the table. That night, at a prearranged meeting, the membership voted to go out on an unfair labor strike.
106
(February 14-20, 1976, the employees were out on strike. During this period the Company hired replacement employees and gave all employees the raise in wages it had offered the Union, which was the first wage increase in 17 months. On February 20th the Union informed the Company that they were ready to return to work, having called the strike off. They were to be ready to return to work on Monday, the 23rd of February.)
107
(16). February 27, 1976: The Company asked the Union if it would be willing to meet. The Company took all of its proposals off of the table to reassess them on account of the work stoppage. The Union announced that if the Company was going to take all of its proposals off the table so would the Union.
108
(17). March 17, 1976: In response to a question from the Company, as to what proposals were presently on the table, the Union announced that only its original proposals were on the table. The Union then asked what the Company had on the table and was told by Mr. Watson that he felt sure that the work stoppage would not affect all of their proposals, but that the Company was still assessing proposals in light of the work stoppage.
109
(18). April 16, 1976: The Union informed the Company that the 5-item proposal last submitted by the Union was a "one-shot deal" and was not now on the table subject to acceptance by the Company.
110
The Union and the Company then went through the last proposals offered by the Company. Thus, although not directly stated in the record, it appears that even though the Union refused to place its one-shot 5-item proposal back on the table, the Company had placed its latest proposal back on the table. Mr. Orman, chief negotiator for the Union, said:
111
(1) That while there was still some disagreement, they were much closer to agreement on Management Rights.
112
(2) Complete agreement was affirmed as to Preamble.
113
(3) Mr. Jackson, for the Company, physically marked out the $7,500 salary limitation, which had so bothered the Union and had been mentioned so often, affecting the group insurance plan.
114
(4) They were closer to agreement on jury pay.
115
There was also some discussion on employees who had been recalled to work but at a lower classification than they had occupied prior to the strike. The Company responded that recall was by seniority and as jobs opened up. The Company stated that the employees who refused to return at the lower levels would not be penalized and would be called back when their former positions became available.
116
(19). May 14, 1976: The Union made some minor concessions as to Union security, hours of work, safety equipment payment, vending machine profits, and reinstatement of a discharged employee.
117
(20). June 15, 1976: For the first time, other than their 5-item proposal, the Union took the responsibility of submitting written proposals. Only minor changes were made from the Union's previous oral proposals. This was the final meeting.
118
In the meantime, during the contract negotiations, the Union, in addition to instigating and conducting a strike for 6 days, filed 5 charges of unfair labor practices against the Company. Also, during the same period, the Union caused the Board to issue three complaints of unfair labor practices against the Company. During the strike the employees hired by the Company were subjected to many unpleasant and disturbing experiences, including insulting telephone calls, slashing and cutting of automobile tires, threats and insults from the picket lines as they came to and from work, and other harassing incidents. When the strike was called off by the Union, the Company stopped hiring employee replacements and immediately began to re-hire the striking workers on a seniority basis. By April, 1976, all of the employees who took part in the strike who wanted to be re-employed had been placed in jobs at the Company's plant, although some of them were placed in positions that paid lower wages than the positions they held before the strike. This was caused by the hiring of replacements to fill their previously held positions during the strike. The Company refused to discharge the replacement employees after the strike ended, but did allow the striking employees to resume their old positions as the jobs opened up.
119
Based upon the foregoing complicated chain of events, the Board held that the Company failed to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. We do not agree. If the actions of the parties were weighed on hypothetical scales of good faith bargaining, the scales would tilt heavily against the Union and in favor of the Company. As a matter of fact, both parties engaged in hard bargaining and used every economic weapon at their disposal. This they had a right to do. In NLRB v. Ins. Agents, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960) the Supreme Court held that it is permissible for both the employer and the Union to exert economic pressure during bargaining negotiations, and that such activities do not constitute bad faith and are not inconsistent with good faith bargaining. The court said:
120
"(T)here is simply no inconsistency between the application of economic pressure and good-faith collective bargaining." 361 U.S. 495, 80 S.Ct. 430, 4 L.Ed.2d 467.
121
While an employer is obligated to bargain in good faith so is the Union. The statute imposes this obligation on both parties. Section 8(d) of the National Labor Relations Act provides:
122
"(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession." 29 U.S.C.A. § 158(d).
Also, Section 8(a)(5) provides:
123
"It shall be an unfair labor practice for an employer to refuse to bargain collectively with the representative of his employees." 29 U.S.C.A. § 158(a) (5).
While Section 8(b)(3) provides:
124
"It shall be an unfair labor practice for a labor organization or its agents to refuse to bargain collectively with an employer." 29 U.S.C.A. § 158(b)(3).
125
It is clear from the plain words of these provisions of the Act that neither the employer nor the Union can be forced to agree to a proposal of the other party, nor to even make a concession with reference thereto.
126
In the instant case the Board correctly stated:
127
"No contention was made that Respondent (the Company) engaged in dilatory tactics, failed to furnish information upon request or committed other 'technical' violations sometimes found in surface bargaining cases. Respondent was willing to meet frequently and for adequate lengths of time; it assumed the bulk of the responsibility for preparing proposals and writing up agreements."
128
Accordingly, the Company did not technically violate Section 8(a)(5), since it "was willing to meet frequently and for adequate lengths of time" with representatives of the Union. The record shows that it never at any time refused to meet and confer with the Union during the period of the negotiations extending from November 21, 1975, through June 15, 1976.
129
It appears that the basis of the Board's holding that the Company did not bargain in good faith was its dislike for and disapproval of the substantive provisions of the Company's proposals on disputed items on which the parties could not agree. These items, and the positions of the parties with regard to them, are briefly described by the Company as follows:
130
(1) Wage Increase The Union wanted 9% "across the board" to each employee the first year, with 6% each succeeding year. The Company remained firm on schedule adjustments averaging 5%, 4% and 4% each year, with productivity justifying additional increases of up to 9% each quarter; 22 employees above the rates were "red circled" until increases matched or exceeded their current pay; and the wage freeze instituted the previous March 1 was to be lifted.
131
(2) Dues Checkoff The Union wanted a checkoff that would be "irrevocable" for one year. The Company preferred that employees be allowed to revoke, which is consistent with the Mississippi "Right to Work" law.
132
(3) Seniority The entire article was agreeable to the Union, except for the length of seniority retention. The Union wanted one year. The practice had been 30 days. The Company offered 2 months.
133
(4) Hours of Work Again the entire article, which had included Company concessions on weekend overtime premiums, was acceptable to the union, except that it wanted "daily overtime" after eight hours. The Company remained firm in its position that this was an exceptionally unwise provision for any "job shop" operation, the cost of which is not within effective control.
134
(5) Grievance and Arbitration Here, the Union's position was to demand either the right to strike or compulsory arbitration of all disputes. The Company had offered the former, emphasizing the need for specificity and clarity in labor agreements to arbitrate. Rather than risk being bound by an arbitrator's ruling on matters crucial to its economic health, the Company proposed voluntary arbitration and the right to strike where arbitration was rejected as a determinant of the dispute. Union negotiator Orman professed his "disagreement" with the "limiting" ten-day limit for strike action. No counter-proposal was made by the Union to extend the time period.
135
(6) Management Rights The Company wanted the right to subcontract work, change work schedules, impose discipline for just cause, change work rules and to move, sell or consolidate the plant and to separate the employees. The Union objected to subcontracting, unilateral setting of work schedules and the changing of work rules unless reasonable. The Union also wanted the right to strike.
136
(7) Christmas Bonuses and Thanksgiving Turkeys The Union wanted the Company to be required to pay a Christmas bonus and to give the employees Thanksgiving turkeys as had been the custom of the Company on a voluntary basis in the past. The Company refused to be bound to make such payments and gifts and insisted they remain on a voluntary basis as gifts by the Company.
137
The Board's criticism and rejection of the substantive provisions of the Company's proposals is an attempt by the Board to sit in judgment on the terms of the agreement and to dictate the provisions the parties must include in the contract. This is shown by the following excerpts from its decision:
138
(1) "The management rights clause which Respondent (the Company) proposed and adhered to throughout negotiations, required that the Union yield all bargaining rights on such basic items as sub-contracting, discipline and discharge, the creation of new job classifications and the wage rates applicable thereto - - - scheduling of hours, the closing or consolidation of part or all of the plant, the separation of the employees if the plant were to be partially or totally closed or consolidated, and the setting of safety and work rules. - - - Respondent's bargaining stance - - - would strip the Union of any effective method of representing its members on the issues of safety and work rules - - - excluding it from any participation in decisions affecting important conditions of employment - - -."
139
These substantive proposals of the Company on management rights were of no concern of the Board. The Company had the right to make them and could insist on them to impasse without violating the Act. NLRB v. American Nat'l Ins. Co., 343 U.S. 395, 409, 72 S.Ct. 824, 96 L.Ed. 1027 (1952), and Section 8(d) of the Statute. Furthermore, the Board had no authority to force the Company to change its proposals. Whether or not the Union could effectively represent its members under the Company's proposals was a matter for the Union to decide and not the Board. The stance of the Board in this regard smacked of partisanship in favor of the Union in an effort to give the Union what it wanted rather than what the parties could agree to. The proper role and function of the Board is to act as a referee and to watch over the bargaining process and not dictate nor guarantee its results. H. K. Porter v. NLRB, 397 U.S. 99, 109, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970); and NLRB v. Ins. Agents, supra.
140
(2) "Respondent's attempt to exclude the Union from meaningful participation in the role to which the statute entitles it is revealed in its representation, grievance, and Christmas bonus proposals. - - - Respondent's proposals would have excluded the Union from anything more than notification that these wage items were going to be discontinued."
141
(3) "Respondent's representation proposal prohibited stewards, without written permission, from investigating grievances during the 'normal work day' and 'normal work shift' or on plantsite. It is difficult to conceive of restrictions which would more inhibit the filing and Investigation of grievances." (Emphasis supplied).
142
(4) "Assuming that a grievance (narrowly defined by Respondent) surfaced notwithstanding the foregoing restrictions, its future, and the Union's role therein, would be narrowly proscribed. The Union was excluded from the first step of the grievance procedure and was required, under the proposal, to strictly adhere to the time requirements or suffer waiver. Arbitration was to be voluntary, would impose heavy and uneven financial burdens on the Union, and the Union's right to strike rather than arbitrate was not at its own option. It required, and was dependent upon, Respondent's refusal to arbitrate. The right to strike was further encumbered by notice provisions which could seriously weaken the strike as an alternative economic weapon. The notice provision would have required not only notification of the intent to strike, but of the specific date that the strike was to commence. It was thus more stringent than the strike notice requirement incorporated by Section 8(g) into the Act for the Health Care Industry. Moreover, Respondent offered no special justification (such as is present in the Health Care Industry) why it would need such specific notice."
143
(5) "In the instant case, as in Tomco Communications, an 'evaluation of all the Respondent's proposals herein clearly shows that Respondent was determined to force the Union and its members to abandon their right to be consulted regarding practically any and all disputes that might arise during the term of the contract . . . to waive their statutory rights to bargain collectively.' Even where it could bargain, in those areas not excluded from the grievance procedure, its rights were closely circumscribed by the grievance, arbitration and no-strike provisions."
144
(6) "I conclude that Respondent's opposition to irrevocable checkoff was intended to frustrate agreement."
145
(7) "Finally, in assessing the totality of Respondent's actions, it is relevant to consider its wage proposal. While on the surface appearing to have made three successive offers, analysis reveals that the offers were essentially the same. Respondent, as Jackson admitted, knew from the outset what it intended to offer and framed its successive proposals to reach that point. Basically, the three wage offers juggled the same monies, and the last offer would have left most of the employees with a lower wage at the end of 3 years than the earlier offers. The productivity plan, ostensibly providing up to 9 percent in wage increases, in reality offered little if the employer's experience with man-hours per ton of product shipped in the past 3 years is to be any guide."
146
(8) "The Act, Section 8(d) provides that 'the obligation to bargain collectively does not compel either party to agree to a proposal or require the making of a concession.' However, it is both permissible and necessary to examine the totality of the employer's actions to determine motivation. My examination of that totality leads me to conclude that, as in Tomco Communications, supra, Respondent's proposals, from first to last, would have required the Union to abdicate its representational rights and duties, compensating the employees essentially not at all for their loss. I cannot accept the contention that Respondent, in good faith, believed that such proposals could be accepted by the Union or intended to present proposals which stood any chance of acceptance."
147
"That other unions, in other circumstances, might have accepted some of these terms, or that this union indicated that it would accept some of them if it received something in return, is no evidence of good faith. - - -."
148
The Board relied heavily on its decision in Tomco Communications, Inc., 220 NLRB No. 87 (1975) in deciding the good faith bargaining issue in this case, citing it three times in its decision on such issue. However, the Ninth Circuit Court of Appeals reversed the decision in that case in NLRB v. Tomco Communications, Inc., 567 F.2d 871, decided on January 16, 1978, denying enforcement of the Board's entire decision. It is significant that the court in that case ruled adversely to the decision of the Board on practically every issue that is also present in the case before us. Of particular significance is the decision of that court reversing the holding of the Board that the final offer of the company contained "terms which no self-respecting union could be expected to accept." The court in Tomco held:
149
"The Board's approach is best illustrated when it condemns the Company's final offer as 'terms which no self-respecting union could be expected to accept.' 220 N.L.R.B. at 637. The quotation is from Reed and Prince, supra, 205 F.2d (131) at 139 (1st Cir.), a case with whose result we have no quarrel, but which contains language we have questioned once before. See NLRB v. MacMillan Ring-Free Oil Co., 394 F.2d 26, 29 (9th Cir., 1968). The utility and appropriateness of a 'self-respecting union' standard are still doubtful. As an analytic tool, the phrase seems rather better suited to conclude inquiry than to advance it. As a test of good faith under the National Labor Relations Act, it directs first attention to the bargaining position of the party whose interests are opposed to the employer. Thus, it comes perilously close to determining what the employer should give by looking at what the employees want. More relevant in judging of good faith and reasonableness, it seems to us, are other facts such as the employer's economic position and the past level of employee benefits. By those standards, as we have indicated, the Company's proposals cannot be characterized as surface bargaining."
150
The term "self-respecting union" is at most a vague and general term that has little meaning in the context used by the Board in Tomco. We assume that all unions are self-respecting. Therefore, when the Board stated in Tomco that no self-respecting union would accept the company's proposals, it was in effect saying that no union would accept them. In our case the Board, in following its decision in Tomco, took substantially the same position when it said it could not "accept the contention that Respondent, in good faith, believed that such proposals could be accepted by the Union or intended to present proposals which stood any chance of acceptance." This was the same as saying that no union would accept them. However, the Company proved at the trial that this was incorrect. It produced bargaining contracts that had been accepted and approved by the following unions that contained substantially the same provisions and terms that were embodied in the Company's proposals here:
151
Textile Workers Union of America Agreement dated January 19, 1976; International Leather Goods, Plastics and Novelty Workers Union Agreement, expiring 11-1-77; United Steelworkers of America Agreement dated December 18, 1973; Textile Workers Union of America Agreement effective December 10, 1972; United Wholesale & Production Workers Union, affiliated with Retail, Wholesale & Department Store Union of America, dated 1969-1972; International Ladies Garment Workers Union Agreement; International Molders and Allied Workers Union Agreement; and American Federation of Government Employees Agreement with the U.S. Equal Opportunity Commission. Other agreements that are part of the record include the 1976 agreement of United Steelworkers Union, where negotiations were concluded by the Company's chief negotiator and that Union during the time bargaining was continuing with the Union in this case.
152
As a matter of fact, the Company's witnesses testified that its proposals in the instant case were taken for the most part from the language in the above approved union contracts. When confronted with this evidence, the ALJ (and the Board) took a different tack and in effect admitted that unions had accepted the same proposals in other contracts, but then held that this was no evidence of good faith. This holding appears to be inconsistent with, if not contrary to, the holding of the Supreme Court in NLRB v. American Nat'l. Ins. Co., supra, where the court approved this method of showing good faith by an employer. The court stated in that case:
153
"As a matter of fact, a review of typical contract clauses collected for convenience in drafting labor agreements shows that management functions clauses similar in essential detail to the clause proposed by respondent have been included in contracts negotiated by national unions with many employers."
154
"H.Doc.No.125, 81st Cong., 1st Sess. 3-10 (1949) (U.S. Dept. of Labor Bull.No. 908-12); Collective Bargaining Contracts (B.N.A. 1941) 363-368; Thirty-Seven Classified Provisions of Collective Bargaining Agreements for Wage Earners in the Iron and Steel Industry (American Iron & Steel Inst. 1948) 68-73; Tested Clauses for Union Contracts (Labor Relations Inst. 1945), 11-16; Welty, Labor Contract Clauses (1945), 76-82; Hoebreckx, Management Handbook for Collective Bargaining (1947), 177-182; Smith, Labor Law Cases and Materials (1950), 1008-1011; Industrial Relations Research Service Study No. 1, Management's Prerogatives (1945), App.; Pace, Management Prerogatives Defined in Union Contracts (Calif.Inst.Tech. 1945); Teller, Management Functions under Collective Bargaining (1947), 427-437 (23 out of 53 collective bargaining agreements examined by the author contained management functions clauses)." 343 U.S. 405, 72 S.Ct. 830, 96 L.Ed. 1037-8.
155
In that case good faith bargaining was the main issue before the court.
156
Thus, the theory of the Board that no union would accept the Company's proposals in the instant case, is factually incorrect. Its holding that even if other unions had accepted them, such acceptance would not be evidence of good faith, appears to be legally incorrect.
157
It is evident that, for all practical purposes, the Board has substituted itself for the Union at the bargaining table in the following particulars, among others. It has approved what the Union wants and has rejected what the Company is willing to give. By indirection and innuendo, it has required the Company to include proposals in the contract, favorable to the Union, to which the Company has not agreed. By its decision, the Board has attempted to force the Company to make concessions when the law does not require the Company to do so. The Board has assumed the authority to decide what is good and what is bad for the Union, and what the Union would accept, when these are matters for the Union to decide. The Board has condemned the Company of bad-faith bargaining because it has disapproved the substantive contents of the Company's proposals. These partisan actions of the Board show that it has abdicated its role as referee of the bargaining process and has assumed the role of judge of what provisions the bargaining agreement should contain. Substantive collective bargaining proposals are matters to be decided by the employer and the Union and not by the Board or the courts. If there is any principle in labor law that is well settled and firmly established by statute and by the decisions of the courts it is that the Board has neither the authority nor the power to determine, decide, or dictate the substantive terms or conditions of a collective bargaining agreement. As stated above, its role is that of a referee or supervisor of the bargaining process and not that of deciding the substantive issues. These decisions are reserved to the parties involved. The following decisions of this court, the Supreme Court, and other courts make this abundantly clear.
158
In American National Ins. Co. v. N. L. R. B., 187 F.2d 307 (5 Cir. 1951), affd., N. L. R. B. v. American Nat'l Ins. Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952), we held:
159
"We agree with the petitioner: that the provisions of the contract assailed by the board are not illegal or in anywise forbidden or prohibited; that petitioner had a right to urge and insist upon them; and that the evidence, viewed as a whole, does not * * * show any refusal of the petitioner to engage in collective bargaining, as that term is defined in the act and in the decisions of the courts."
160
"While, as the event showed, the union and the petitioner were able to at last agree on a prerogative clause in somewhat modified terms, the union continued throughout to be as vigorously opposed to any clause of that kind as the employer was in favor of it. It was not, therefore, as the board finds, the steadfastness of the employer alone, in insisting on its point. It was the steadfastness of employer and union, the one in proposing, the other in opposing, a clause of this kind, which the employer felt it ought, and the union felt it ought not, to have, which prolonged the negotiations. It was not any general unwillingness on the part of the petitioner to negotiate a contract satisfactory to itself as well as the union."
161
"Before the enactment of the National Labor Relations Act, as amended, there was, despite the decisions of the courts to the contrary, some understandable confusion as to what was 'collective bargaining' required of employers. This was due to the persistence of the board in asserting and pressing its view that the use in the National Labor Relations Act of the words 'collective bargaining' meant that the employer had to agree to terms proposed by the union, if in the opinion of the board these terms were reasonable, and that a failure to agree to such terms was a basis for a finding that the employer was not bargaining in good faith. Since, however, that term has been defined in the National Labor Relations Act, as amended, 29 U.S.C.A. § 158(d), there is no longer any basis for differences of opinion as to what it means or for board orders in effect requiring the employer to contract in a certain way." 187 F.2d 309, 310.
162
In footnote 3 of that case we stated further:
163
"It is argued further, however, that the intransigeance of respondent is, in itself, evidence of bad faith that respondent, by its refusal to grant more than minor or meaningless concessions had demonstrated that it did not approach the bargaining table with an open mind that its conduct has not been that of one seeking agreement. But 'open mind' need not mean a mind without conviction nor need it mean a mind easily swayed by argument." n.3, 187 F.2d 309.
164
In affirming our decision in that case, the Supreme Court held:
165
"The National Labor Relations Act is designed to promote industrial peace by encouraging the making of voluntary agreements governing relations between unions and employers. The Act does not compel any agreement whatsoever between employees and employers. Nor does the Act regulate the substantive terms governing wages, hours and working conditions which are incorporated in an agreement. * * * In 1947, the fear was expressed in Congress that the Board 'has gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counter-proposals that he may or may not make. (H.R.Rep.No. 245, 80th Cong., 1st Sess. 19 (1947)). Accordingly, the Hartley Bill, passed by the House, eliminated the good faith test and expressly provided that the duty to bargain collectively did not require submission of counterproposals. (H.R.3020, 80th Cong., 1st Sess., Sec. 2 (11) (1947)). As amended in the Senate and passed as the Taft-Hartley Act, the good faith test of bargaining was retained and written in § 8(d) of the National Labor Relations Act. That Section contains the express provision that the obligation to bargain collectively does not compel either party to agree to a proposal or require the making of a concession. * * * And it is equally clear that the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements." 343 U.S. 401, 72 S.Ct. 828, 96 L.Ed. 1035-1037.
166
"Congress provided expressly that the Board should not pass upon the desirability of the substantive terms of labor agreements. Whether a contract should contain a clause fixing standards for such matters as work scheduling or should provide for more flexible treatment of such matters is an issue for determination across the bargaining table, not by the Board." 343 U.S. 409, 72 S.Ct. 832, 96 L.Ed. 1039. (Emphasis supplied.)
167
In N. L. R. B. v. Ins. Agents, supra, the Supreme Court held:
168
"Since the Board was not viewed by Congress as an agency which should exercise its powers to arbitrate the parties' substantive solutions of the issues in their bargaining, a check on this apprehended trend was provided by writing the goodfaith test of bargaining into § 8(d) of the Act." * * * 361 U.S. 486, 80 S.Ct. 425, 4 L.Ed.2d 462.
169
"The same problems as to whether positions taken at the bargaining table violate the good-faith test continue to arise under the Act as amended. See N. L. R. B. v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027; N. L. R. B. v. Wooster Div. Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 722, 2 L.Ed.2d 823, 828. But it remains clear that § 8(d) was an attempt by Congress to prevent the Board from controlling the settling of the terms of collective bargaining agreements. N. L. R. B. v. American National Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027, 1037."
170
" * * * Congress intended that the parties should have wide latitude in their negotiations, Unrestricted by any governmental power to regulate the substantive solution of their differences. See International Brotherhood of Teamsters, C.W. & H v. Oliver, supra, 358 U.S. 283, at 295, (79 S.Ct. 297, 3 L.Ed.2d 312)." 361 U.S. 487, 80 S.Ct. 426, 4 L.Ed.2d 463 (Emphasis supplied).
171
This court held in N. L. R. B. v. I.B.S. Manufacturing Co., 210 F.2d 634, 637-638 (5th Cir. 1954):
172
". . . Long before its opinion in the American National Insurance case (American National Ins. Co. v. N. L. R.B.), 5 Cir., 187 F.2d 307, affirmed 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027, This Court had held without varying that the Board could not compel employers and employees to agree to particular provisions in a contract. It emphatically, therefore, rejects the view put out by the Board and apparently sustained by the court in Wilson & Co. v. N. L. R. B., 8 Cir., 115 F.2d 759, That a refusal to agree to what, in the opinion of the board, reasonable and fair-minded men ought to be willing to do may be taken to be any indication of a lack of proper intent or of good faith in collective bargaining. It rejected this for the reason which it made plain in the American National Insurance case in this court and which the Supreme Court in that case, made even more plain. This reason is that the recognition of such a rule would put the board in the position of devising contracts for, and forcing their acceptance upon, employers and employees in accordance with what the board deemed reasonable and fair.
173
"It is one thing to say that the employer must make a reasonable effort in some direction to compose his differences with the union, if Section 8(a)(5) is to be read as imposing any substantial obligation at all, N. L. R. B. v. Reed & Prince Mfg. Co., 1 Cir., 205 F.2d 131, and It is entirely another to say that the board may determine what agreements employers ought to make and may then find that if they will not make them they are refusing to bargain in violation of the section. This ought not to be, it is not the law. American National Insurance Co., supra, and Majure v. N. L. R. B., supra (5 Cir., 198 F.2d 735) . . ." (Emphasis supplied).
174
The Ninth Circuit Court stated in NLRB v. Tomco Communications, supra:
175
"A finding of bad faith would require the Company to yield despite the Union's inability to enforce its will through the classic economic weapons of labor relations. But the obligation to bargain collectively 'does not compel either party to agree to a proposal or require the making of a concession.' 29 U.S.C. § 158(d); American National Insurance, supra, 343 U.S. at 404, 72 S.Ct. 824; Queen Mary Restaurants, supra, 560 F.2d (403) at 411. Nor may the Board, 'directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.' American National Insurance, supra, 343 U.S. at 404, 72 S.Ct. at 829, cited in H.K. Porter, supra, 397 U.S. at 106, 90 S.Ct. 821; NLRB v. Insurance Agents' Union, 361 U.S. 477, 487, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960). While the parties' freedom of contract is not absolute under the Act, allowing the Board to compel agreement when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract. H.K. Porter, supra, 397 U.S. at 108, 90 S.Ct. at 826.
176
"On the central issue of bargaining intent, the events in question resolve into a case of hard bargaining between two parties who were possessed of disparate economic power: a relatively weak Union and a relatively strong Company. The Company naturally wished to use its advantage to retain as many rights as possible. That desire is not inconsistent with its statutory duty to bargain in good faith. Chevron Oil Co. c. (sic) NLRB, 442 F.2d 1067, 1073 (5th Cir. 1971)." Bureau of Nat'l Affairs No. 34, P. E-6.
177
Finally, on this issue, we quote from our holding in Chevron Oil Co. v. NLRB, 442 F.2d 1067 (5th Cir. 1971) as follows:
178
"As legal justification for its bargaining attitude and conduct Chevron relies upon National Labor Relations Board v. American National Insurance Company, 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952), wherein the Supreme Court declared that a management rights clause is an appropriate subject for bargaining. 11 The Board, while conceding that Chevron's position on the management rights clause is not in itself evidence of a refusal to bargain in good faith, points out that the management rights provision, when coupled with no-strike, no-arbitration clauses, severely restricts the area in which the Union may effectively represent and protect the employees. The Board reasons that the Company's insistence on a combination of clauses that would, in the Board's view, 'undermine the Union's status, authority and prestige as an employee representative' constitutes evidence of the Company's bad faith.
179
"Although § 8(d) of the Act imposes upon the parties the obligation to meet and confer in good faith with respect to wages, hours and other terms and conditions of employment with a view to the final negotiation and execution of an agreement, the statute specifically provides that this obligation 'does not compel either party to agree to a proposal or require the making of a concession. Adamant insistence on a bargaining position, then, is not in itself a refusal to bargain in good faith. Indeed, we stated in National Labor Relations Board v. Herman Sausage Company, supra (275 F.2d 229), 'If the insistence is genuinely and sincerely held, If it is not mere window dressing, it may be maintained forever though it produce a stalemate. Deep conviction, firmly held and from which no withdrawal will be made, may be more than the traditional opening gambit of a labor controversy. It may be both the right of the citizen and essential to our economic legal system * * * of free collective bargaining. The Government, through the Board, may not subject the parties to direction either by compulsory arbitration or the more subtle means of determining that the position is inherently unreasonable, or unfair, or impracticable, or unsound.' 275 F.2d at 231.
180
"An argument similar to the one made here by the Board was presented to and rejected by this Court in National Labor Relations Board v. Cummer-Graham Company, 5th Cir. 1960, 279 F.2d 757. In that matter the company insisted upon the inclusion of a no-strike clause in the contract. The union's acceptance of the clause was contingent upon the inclusion of an arbitration provision, a concession the company refused to make. The Board found that the company had refused to bargain with the union in good faith. We said,
181
* * * It may be that most no-strike clauses are accompanied by arbitration provisions. It may be too, that if we were entitled to an opinion, which we are not, we would believe that arbitration would normally be a desirable adjunct of a commitment not to strike. These are matters for management and labor to resolve, if they can, at the bargaining table. If they cannot there be decided, then neither Board nor Court can compel an agreement or require a concession. N. L. R. B. v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027; White v. N. L. R. B., 5 Cir. 1958, 255 F.2d 564; N. L. R. B. v. Taormina, 5 Cir. 1957, 244 F.2d 197. We do not think that the Supreme Court held, or intended to hold, in Lincoln Mills, that a no-strike clause and an arbitration clause were so much one that a persistent demand for the one without acquiescing in the other is a refusal to bargain in good faith.
182
Contracts containing covenants against strikes are not unknown in the field of labor-management relations. N. L. R. B. v. Norfolk Shipbuilding & Drydock Corporation, 4 Cir. 1952, 195 F.2d 632; Scullin Steel Company, 65 N.L.R.B. 1294. The same contention was made in White v. N. L. R. B., 5 Cir. 1958, 255 F.2d 564, as the Board urges here. In the White case a finding could have been made that the employer insisted upon a contract by which the employees would surrender their right to strike, and giving to management the right to hire, fire and fix wages without a binding arbitration clause. This insistence, it was held, was not a failure to bargain in good faith. The Sixth Circuit, in a like case, reached a like result. N. L. R. B. v. United Clay Mines Corporation, 6 Cir. 1955, 219 F.2d 120. * * * If the respondent had, and we say it did have, the legal right to insist upon the terms of its proposal, we think it cannot be said that the exercise of the right is evidence of bad faith. * * * (Emphasis in text) 279 F.2d at 759-760.
183
"In view of the principles stated above, we are unable to agree with the Board's contention that the Company's position with regard to the management rights, no-strike, no-arbitration clauses warrants a finding of bad faith. Nor can we agree with the Board's argument that the Company's rejection of the Union's proffered concessions and proposals evidences a refusal to bargain in good faith. The Act does not require an employer to abandon a position because of either the quantity or quality of concessions offered by the Union in the hope of securing that abandonment. N. L. R. B. v. United Clay Mines Corp., 6th Cir. 1955, 219 F.2d 120.
184
"Collective bargaining by its very nature is 'an annealing process hammered out under the most severe and competing forces and counteracting pressures.' N. L. R. B. v. Dalton Brick & Tile Corp., 5th Cir. 1962, 301 F.2d 886, 895. The Board is charged with the responsibility of overseeing and refereeing the bargaining process, but is not empowered to compel either directly or indirectly, concessions or otherwise sit in judgment upon the substantive terms of the agreement. H. K. Porter Co., Inc. v. N. L. R. B., supra; N. L. R. B. v. Insurance Agents' Intern. Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960); N. L. R. B. v. American National Insurance Co., supra; M. R. & R. Trucking Co. v. N. L. R. B., 5th Cir. 1970, 434 F.2d 689; N. L. R. B. v. Herman Sausage Co., supra. It follows that 'It is not for the Board to balance the scales or equalize or neutralize pressures in the name of lack of good faith.' M. R. & R. Trucking Co. v. N. L. R. B., supra at 695." 442 F.2d 1072-1074. (Emphasis supplied).
185
The Board should not be allowed to emasculate and render ineffective Section 8(d) of the Act by an arbitrary finding that the Company had a "bad state of mind" or "improper motivation," simply because it disapproved of the Company's proposals and the long period of time the Company insisted upon their adoption. As Judge Hutcheson stated in speaking for this court in N. L. R. B. v. I. B. S. Manufacturing Co., supra: "This ought not to be, it is not the law."
186
We conclude, as we did in Chevron Oil Co. v. N. L. R. B., supra, that in our opinion the matter at hand resolves itself into purely a question of hard bargaining between two parties who used every economic weapon and pressure available to them at the bargaining table. An examination of the detailed description of the bargaining sessions set forth above reveals that they were give and take meetings wherein both parties made concessions on many questions and agreements were reached on many disputed issues. Actually, the parties were not far apart on a complete agreement when the final session was held.
187
We hold that there is not substantial evidence on the record as a whole to support the Board's finding and conclusion that the Company failed to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. Accordingly, we deny enforcement of this part of the Board's order.
188
III. The Strike, The Wage Increase, and The Re-Hiring of Striking Employees
189
On February 14, 1976, 90 employees went out on strike. The night before the strike began Mr. Orman, the Union negotiator, called a meeting of the Union members. At the meeting, he told the members that the Union had not been able to reach an agreement with the Company. He solicited instances of unfair labor practices by the Company and some of the members obliged. Mr. Orman recommended that the employees engage in a strike. He wanted instances of unfair labor practices so that the strike could be called an "unfair labor strike" rather than an "economic strike." The strike lasted six days, after which the striking workmen reported to the gates of the plant asking to be put back to work at their old jobs.
190
The overwhelming preponderance and weight of the evidence in the record as a whole indicates that the strike was an economic strike and not an unfair labor strike. The fact that Orman said it was an unfair labor strike did not make it one. Obviously, the only purpose of the strike was to use it as an economic weapon to exert economic pressure on the Company to yield to the demands of the Union at the bargaining table. The Supreme Court in NLRB v. Insurance Agents, supra, held that a strike during bargaining negotiations was a legitimate use of an economic weapon by a union to exert economic pressure on an employer, and that its use did not show a failure to bargain in good faith. There does not appear in the record any other purpose or reason for the strike. The fact that the strike only lasted six days is a strong indication that its only purpose was to put economic pressure on the Company.
191
After the strike began, the Company lifted its self-imposed wage freeze that had been in effect since March 1, 1975, due to its depressed economic condition, and unilaterally granted the same wage increase to all employees that it had offered the Union and which the Union had rejected. The Board held that this wage increase was an unfair labor practice of the Company. We do not agree. The wage increase was granted only after a valid bargaining impasse had been reached and the Union members were out on strike. Furthermore, the increase was exactly the same that had been offered to the Union and rejected by it. Under these circumstances the Company had the right to increase the wages without being guilty of an unfair labor practice. See NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, n.12, 8 L.Ed.2d 230 (1962); NLRB v. Crompton-Highland Mills, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320, 1327; NLRB v. Bradley Washfountain Co., 192 F.2d 144 (7 Cir. 1951); NLRB v. Florida Citrus Canners Cooperative, 288 F.2d 630, 639 (5 Cir. 1961); and NLRB v. Landis Tool Co., 193 F.2d 279 (3 Cir. 1951). Actually, the Board agreed that this was true when it stated in its opinion:
192
"Had Respondent implemented that last offer after a valid bargaining impasse had been reached Respondent's action would have been lawful. Midwest Casting Corporation, 194 N.L.R.B. 523, 1971."
193
However, the Board found the increase to be illegal by holding:
194
"No such impasse can exist in the presence of bad faith bargaining, such as is found herein."
195
We have held Supra that there was no bad-faith bargaining in this case. Consequently, the holding of the Board that the wage increase was unlawful because of bad-faith bargaining cannot be enforced.
The ALJ found further:
196
"As I have found that Respondent bargained in bad faith prior to the strike, and unlawfully instituted the wage increase at the beginning thereof, I conclude that the strike was an unfair labor practice strike from its inception."
197
This finding, which was adopted by the Board, cannot stand. As can be seen above, we have held that the Company did not bargain in bad faith and that the wage increase was not unlawful.
198
The ALJ found further that the alleged Section 8(a)(1) violations (coercion of employees described below) had no causal connection with the strike. He held:
199
"Although Orman was careful to bring out at the February 13 meeting evidence of the Section 8(a)(1) violations occurring since the election, so as to attempt to ensure a finding that this was an unfair labor practice strike, I cannot conclude that those violations substantially contributed to the cause or duration of the strike."
200
This finding was correct and was adopted by the Board.
201
It is well settled that in order for a strike to be an unfair labor strike there must be a causal connection between an unfair labor practice and the strike. See NLRB v. Birmingham Publishing Co., 262 F.2d 2, 9-10 (5 Cir. 1959); and General Drivers and Helpers Union v. NLRB, 112 U.S.App.D.C. 323, 325, 302 F.2d 908, 911 (1962). Since there was no bad-faith bargaining, and the wage increase was lawful, and there was no causal connection between the alleged Section 8(a)(1) violations and the strike, there was no unfair labor practice in the case that had any causal connection with the strike or its duration. Therefore, there was no basis on which the strike could be an unfair labor strike. Actually, the General Counsel for the Board did not appear to be convinced that the strike was an unfair labor strike, as he pleaded in the alternative that it was an economic strike.
202
We hold on the record as a whole that the strike was an economic strike and not an unfair labor strike and that the Board's holding to the contrary cannot be enforced.
203
When the strike began, the Company hired permanent replacements for 21 of the employees who went on strike in order to finish work in progress and keep the company operating. The strike occurred without notice to the Company and it had no way of knowing whether it would last for a week, a month, or a year. The strike took place when the business of the Company was at a seasonal low, and it was necessary for prefabricated buildings nearing completion to be shipped before the end of the Company's fiscal year on March 1, 1976. Consequently, with resources limited, it was necessary for the Company to hire replacements in order to keep its doors open. This court has held that an employer has the right to maintain its operations during a strike and may hire permanent replacement workers in order to do so. M.R. & R. Trucking Co. v. NLRB, 434 F.2d 689 (5 Cir. 1970); and NLRB v. Florida Citrus Canners Cooperative, supra.
204
When the strike was called off after six days and the strikers reported for work, the Company ceased hiring other employees and began to re-employ the strikers on a seniority basis (by agreement with the Union), and without penalty, as jobs became available. However, some of them were not placed in their former positions and received less pay than that previously paid to them. The Union demanded that the replacements be discharged and that the strikers be given their old jobs with the same pay. The Company refused, but did continue re-hiring the strikers as jobs became available, paying them wages fixed for the jobs occupied by them, including the wage increase described above. (At this point the Union did not object to the wage increase, as the workers were glad to get it). By April 12, 1976, all 90 strikers who wanted to return to their jobs had been re-hired.
205
The Board held that the Company was guilty of an unfair labor practice in violation of Section 8(a)(3) and (1) of the Act because it did not promptly discharge the replacement employees and reinstate all strikers in their old jobs with the same shifts and rates of pay. The Board held further that the strikers were entitled to back pay and to be made whole for their losses during the strike, but left the amounts to be determined in later compliance proceedings.
206
The Board erred in its decision on these questions. We held in NLRB v. Florida Citrus Canners Cooperative, supra, that where the employer had not failed to bargain in good faith at the time of the strike, and the strikers having been replaced, they were not entitled to reinstatement. In that case we stated:
207
"We think it is clear that the respondent had not failed in its duty to bargain at the time of the strike. This being so, and the strikers having been replaced and discharged before requesting reinstatement, they are not entitled to reinstatement. N.L.R.B. v. United States Cold Storage Corporation, 5 Cir. 1953, 203 F.2d 924, certiorari denied 346 U.S. 818, 74 S.Ct. 30, 98 L.Ed. 344; American Federation of Grain Millers, A.F. of L. v. N.L.R.B., supra (5 Cir., 197 F.2d 451)." 288 F.2d 638.
208
In M. R. & R. Trucking Co. v. NLRB, supra, we held:
209
"The refusal of the company to reinstate strikers was not a violation of the Act, since the strike was not an unfair labor practice strike." 434 F.2d 696.
210
Under the circumstances of this case, the Company was not required to reinstate the strikers, but by April 12 all of them had been re-hired. Thus, it appears that the Company was fair and considerate in its re-employment policy and did more in that regard than the law required.
211
We hold that substantial evidence on the record as a whole does not support the decision of the Board that: (1) the strike was an unfair labor strike; (2) that the wage increase by the Company violated Section 8(a)(5) of the Act; (3) that the failure of the Company to discharge the replacement employees and reinstate the strikers in their old positions with corresponding shifts, rates of pay and back pay, plus other losses during the strike, was a violation of Section 8(a)(3) and (1) of the Act; and (4) that the strikers are entitled to be placed in their former positions with the same shifts and rates of pay together with back pay and compensation for other losses during the strike period, the amounts to be determined in later compliance proceedings. The decision of the Board on these issues is denied enforcement.
IV. Post-Strike 8(a)(1) Violations
212
The ALJ held that supervisors of the Company had interfered with, restrained and coerced its employees in the exercise of their rights under Section 7 of the Act and in so doing had violated Section 8(a)(1) of the Act, as follows:
213
"About March 16, supervisor Everett Pepper told strike replacement Ralph Borden 'that if any of the boys was to ask me about joining the Union, or to mess with me in any way, don't pay any attention to them and to come and tell him.' Pepper was not called to deny this statement. About mid-April, according to Borden, Wick Malone, the production superintendent, asked him if any of the employees had asked him to join the Union. Malone told him that if they did, he should tell them that he did not know if he had a permanent job. Malone went on to tell Borden that if he did join, he wouldn't have any job because the Company did not want the Union in there.
214
"Fred Hill, who had been hired during the strike and who, at the time of the hearing was one of Respondent's supervisors, related a similar conversation with Malone. According to Hill, in early April Malone asked him if the employees had been bothering him about the Union. Hill said 'No.' Malone told him that if they did, he should put them off by saying that he might not complete his probationary period. Malone went on to say that all the Union wanted was his name on a card, and cared nothing for him. He concluded by telling Hill that it had been since September 'and it looks like they would understand something . . . They haven't done any good so far . . . It would not do them any good.'
215
"Malone denied speaking to Borden about the Union and testified that his conversations with Hill related to reporting or preventing alleged harassment by the former strikers. Noting particularly that Hill was a supervisor testifying contrary to his employer's interest a factor highly indicative of credibility that he did not appear eager to testify, that the testimonies of Hill and Borden were so similar as to lend corroboration to both of them, and finding both Hill and Borden to have presented more demeanors than Malone, I credit their versions of the conversations.
216
"Accordingly, I find that by the directions of Pepper to Borden to report solicitations by other employees and of Pepper and Malone to Borden and Hill to avoid joining the Union, Malone's interrogation of Borden as to whether he had been asked to join the Union and his threat of job loss if Borden joined, and Malone's implied statement that union representation would be futile, Respondent had violated Section 8(a)(1) of the Act."
217
These were credibility findings by the ALJ and we are usually bound by such determinations even though we might have made different findings had the matter been before us de novo, NLRB v. Monroe Euipment Co., 392 F.2d 559 (5 Cir. 1968) and cases cited therein. Pepper did not deny Borden's statement and, accordingly, the ALJ was justified in finding it to be true. Hill and Borden's testimony about their conversations with production superintendent Malone was denied by Malone but on a credibility basis, the ALJ chose to believe Hill and Borden. We cannot say that the ALJ's findings, adopted by the Board, are not supported by substantial evidence. Therefore, considering the record as a whole, we conclude that there is substantial evidence to support the Board's findings that the Company interfered with, restrained and coerced employees Borden and Hill in violation of Section 8(a)(1) of the Act. The Board's order on this part of the case is enforced.
218
The Board's order is enforced in part and denied in part.
219
ALVIN B. RUBIN, Circuit Judge, concurring in part and dissenting in part:
220
Because my brethren, albeit at great length, have, in my opinion, failed to adhere to the mandate of Universal Camera Corporation v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, with respect to factual conclusions and the proper role of this court in reviewing labor policy determinations made by the Board, I must respectfully dissent.
I. The Withdrawn Charges Issue
221
The Administrative Law Judge held that charges, based on September, 1975, events and withdrawn in November, 1975, could be considered because they were reasserted in a New proceeding filed by the union on February 17, 1976, which was timely. Under the NLRB regulation relied upon by my brethren, quoted at p. 1308, Supra, the withdrawal simply amounted to a dismissal without prejudice. None of us would say that such a dismissal of a lawsuit (without prejudice and with the court's approval) would bar filing a new suit. It is difficult for me to understand why the similar dismissal of NLRB charges is governed by different principles, and, if it is, by what authority we should undertake to prescribe those principles in this situation.
222
If I read the majority opinion correctly, it appears to assert:
223
1. No valid unfair labor charge by the union underlay the complaint filed in 1976 because:
224
a. The union was barred by its stipulation from reasserting its withdrawn charges.
225
b. The union was estopped, once it achieved recognition without company objection, from reasserting the withdrawn charges.
226
c. The Board "became a party" to the stipulation when its Regional Director approved the withdrawal of charges and certified the union.
227
2. The Board could not conduct proceedings based on the February 17, 1976 charge in any event because:
228
a. When the old charges were asserted in a new proceeding, this was not really a new matter because the charges asserted were old charges.
229
b. NLRB regulations require the filing of "new" allegations to be treated as a "new" charge for limitations purposes.
230
c. Thus, the new proceeding was really not being treated as a new charge, as required, and the Board, in violation of accepted principles of administrative law, violated its own regulations.
231
Let us discuss the second matter first. The majority does not appear to me to read the regulations correctly. The withdrawal of charges disposes of them Without prejudice. If they should again be asserted, this must be in a new proceeding. The limitations period must be applied to the subsequent filing; therefore, a new filing, if itself untimely, cannot be deemed timely because the identical charges were once timely filed and then withdrawn. The second filing is not a Refiling of the same proceeding, but the institution of the identical charges in a new proceeding. The regulation does not refer to " 'refiling' withdrawn allegations and a 'reopened' charge," as my brethren assert, p. 1308, Supra ; it refers to the refiling of withdrawn allegations and a reopened Matter, and says that the two must be treated as a new charge. The Board treated the 1976 filing in just that manner, as a new charge.
232
That brings us to the question first addressed by the majority: could the Board properly hear charges in the proceeding when the union filed charges in 1976 alleging both the events recited in the prior proceeding and the subsequent refusal of the company to bargain in good faith? In my opinion, the Board acted within the range of its discretion.
233
The November 5 stipulation, standing alone, should not affect the Board in any way. Even if the stipulation was a contract, and if the filing of charges violated the contract, there is no statute that prevents the Board from acting merely because the charging party filed in violation of a contractual obligation. This did not constitute an unfair labor practice. My brethren cite no authority for their conclusion that the sanction for such a breach of contract is the automatic invalidity of any subsequent proceeding based on charges withdrawn pursuant to a stipulation. Moreover, it is at least arguable that, if the stipulation was a contract, it was bilateral, implied an obligation to bargain in good faith, and that the alleged failure of the company to do so was itself such a breach of contract as to terminate the union's agreement.
234
Nor do I perceive the basis for invoking an estoppel. It is not evident to me that a company, having withdrawn its objections to certification in return for the withdrawal of charges, is entitled, as a matter of equity, to perpetual immunity from those charges if, having agreed to formal certification, it then arguably refuses to bargain in good faith with the union. To me, the national labor policy embodied in the Act suggests the opposite conclusion.
235
The Regional Director's letter constituted merely approval of the withdrawal of charges, not approval of the stipulation or an agreement to be bound by it. It reads in full: "This is to advise that I have approved the Withdrawal Request submitted in the above matter." Nor did certification of the union render the Board a party to the stipulation; the company having withdrawn its objections to certification, the NLRB was bound by law to certify the union. Contrary to the assertion in the majority opinion, I find no basis to conclude, "(T)he Board (was) legally and morally bound by the withdrawal arrangement." P. 1307, Supra.
236
The NLRB takes the position that it is not estopped from considering charges withdrawn pursuant to a settlement unless the settlement itself has Board approval. John F. Cuneo Co., 1965, 152 NLRB 929, 931 n. 4. The Sixth Circuit has accepted the Board's discretion in such matters, NLRB v. Zimnox Coal Co., 6 Cir. 1964, 336 F.2d 516, and my brethren cite no contrary authority. Of course, we are not bound by the Sixth Circuit's decision, but it lends support to my own belief that, absent persuasive reason to the contrary, this type of question is within the Board's discretion. NLRB v. Electric Furnace Co., 6 Cir. 1964, 327 F.2d 373 is inapposite. In the Electric Furnace Co. case, a timely charge was filed, a timely complaint issued, the charge was withdrawn, and the complaint was then dismissed. The issue was whether the Timely complaint could support a later Untimely complaint on the same charges absent the filing of any timely charge by the union. Here both the first and the second charges were timely.
II. Refusal to Bargain
237
This analysis requires me to consider whether the Board properly concluded, on the basis of the once-withdrawn charges, as amplified by the allegations of the company's subsequent failure to bargain, that the Company violated Section 8(a) (1) of the Act. In my opinion, the record contains substantial evidence to buttress the ALJ's opinion and the Board's order based on the charges he reviews. The record contains substantial evidence also that the employer refused to bargain in good faith, in violation of Section 8(a)(3) of the Act.
238
The ALJ's opinion on good-faith bargaining can be read, in portions, as relying on an assessment of the substantive terms offered by the employer. However, where a charge of bad faith is predicated on accusations of "surface bargaining," some reference to what the company actually proposes is inevitable. Further, unlike NLRB v. Tomco Communications, Inc., 9 Cir. 1978, 567 F.2d 871, this case seems to me to present substantial independent evidence of anti-union animus and "gamesmanship," as the ALJ called it. There is much to be said for the company's position, and the majority opinion fully says it. Certainly there is not a preponderance of evidence to the contrary. There need not be; there was substantial evidence, and that is enough.
239
Because, in my opinion, the Board properly concluded that the impasse in bargaining was the result of bad-faith bargaining, it properly decided that the company's unilateral wage increase was an unfair labor practice. Similarly, I find substantial evidence to support its conclusion that the strike was motivated by an unfair labor practice, bad-faith bargaining, and that, therefore, the company's failure immediately to reinstate the employees was itself an unfair labor practice.
240
With respect to the final issue, post-strike violations of Section 8(a)(1), I concur with the disposition in Section IV of the majority opinion.
241
It is not our function to make labor policy or to second-guess the NLRB. We are Universal-Camera -bound to view the facts through the Board's lens. I respectfully suggest that the majority has failed to do so.
*
Senior Judge of the United States Court of Claims, sitting by designation
1
29 U.S.C.A. § 158(a)(1) provides:
(a) "It shall be an unfair labor practice for an employer * * * (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 157 of this title."
29 U.S.C.A. § 158(a)(3) provides:
(a) "It shall be an unfair labor practice for an employer * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * * ."
29 U.S.C.A. § 158(a)(5) provides:
"(a) It shall be an unfair labor practice for an employer * * * (5) to refuse to bargain collectively with the representatives of his employees . . . "
Section 8(d) of the Act, 29 U.S.C.A. § 158(d) defines the obligations of the collective bargaining as follows:
(d) "For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, . . . such obligation does not compel either party to agree to a proposal or require the making of a concession . . . "
2
Section 10(b) of the Act provides in part:
"(N)o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made * * * ." 29 U.S.C., § 160(b).
3
5 U.S.C. § 552(a)(1)
4
The House report accompanying this provision stated:
"An added incentive for agencies to publish the necessary details about their official activities in the Federal Register is the provision that no person shall be 'adversely affected' by material required to be published or incorporated by reference in the Federal Register but not so published." H.R.Rep.No. 1497, 89th Cong., 2d Sess., 7 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2418, 2424. See S.Rep.No. 813, 89th Cong., 1st Sess., 6 (1965); S.Rep.No. 1219, 88th Cong., 2d Sess., 12 (1964).
" The Supreme Court, faced with a broad management rights clause and the company's refusal to permit matters relating to hiring, discharging, hours, and working conditions to be submitted to grievance procedures or arbitration, stated, 'Whether a contract should contain a clause fixing standards for such matters as work scheduling or should provide for more flexible treatment of such matters is an issue for determination across the bargaining table, not by the Board. If the latter approach is agreed upon, the extent of union and management participation in the administration of such matters is itself a condition of employment to be settled by bargaining.
"Accordigly, we reject the Board's holding that bargaining for the management functions clause proposed by respondent was, Per se, an unfair labor practice. 343 U.S. at 409, 72 S.Ct. at 832, 96 L.Ed. at 1039.
|
Filed 7/26/17; on remand
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
CROSSROADS INVESTORS, L.P., C072585
Plaintiff and Respondent, (Super. Ct. No.
CV CV 12-1067)
v.
OPINION ON REMAND
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Yolo County, Daniel P.
Maguire, Judge. Reversed with directions.
Buchalter Nemer, Buchalter, Jeffrey S. Wruble, Efrat M. Cogan, and Oren Bitan
for Defendant and Appellant.
Law Offices of Melinda Jane Steuer and Melinda Jane Steuer for Plaintiff and
Respondent.
1
This appeal challenges the trial court‟s denial of defendant‟s special motion to
strike the complaint under Code of Civil Procedure section 425.16, otherwise known as
the anti-SLAPP statute.1 Defendant Federal National Mortgage Association (Fannie
Mae) initiated nonjudicial foreclosure proceedings against property owned by plaintiff
Crossroads Investors, L.P. (Crossroads), but Crossroads filed for bankruptcy protection,
staying the proceedings. Its proposed reorganization plan called for selling the property
to a third party, who would reinstate the loan but on different material terms less
favorable to Fannie Mae. Fannie Mae would not be paid what it was owed in full. The
bankruptcy court called the plan “dubious,” and Crossroads‟ counsel agreed they were
“trying to have our cake and eat it too.”
Crossroads alleges while the bankruptcy stay was in effect and afterwards, it
requested accountings from Fannie Mae under Civil Code section 2924c to learn the
amount required to reinstate or pay off the defaulted loan. It also tendered performance
both to reinstate and pay off the loan as authorized under Civil Code section 2924c.
Fannie Mae did not respond to the requests for accountings except in response to an
interrogatory served on it as part of the bankruptcy action. It also refused to accept the
tenders.
Crossroads failed to obtain confirmation of a reorganization plan, and the
bankruptcy court granted Fannie Mae relief from the stay. Crossroads alleges Fannie
Mae promised in a telephone conversation with Crossroads‟ counsel to notify Crossroads
of the date it intended to sell the property. Fannie Mae shortly thereafter sold the
property, and it did so without providing prior notice to Crossroads.
Crossroads filed this action against Fannie Mae for wrongful foreclosure, breach
of contract, fraud, and other tort and contract causes of action. Fannie Mae filed an anti-
1 “SLAPP” is an acronym for strategic lawsuit against public participation.
2
SLAPP motion, contending the actions on which Crossroads based its complaint arose
from the exercise of its constitutional rights of speech and petition; specifically,
statements and omissions made in, or concerning issues under review in, the bankruptcy
action. It also argued Crossroads could not establish a prima facie case in support of its
claims. The trial court disagreed and denied the motion. In an earlier opinion, we
affirmed the trial court‟s order.
The California Supreme Court granted Fannie Mae‟s petition for review,
depublished our original opinion, and transferred the matter to us to reconsider the appeal
in light of Baral v. Schnitt (2016) 1 Cal.5th 376 (Baral). The parties have filed
supplemental briefs which we have considered.
We now reverse the trial court‟s ruling and direct it to grant the anti-SLAPP
motion. Except for claims based on one of Fannie Mae‟s actions discussed below, all of
Crossroads‟ claims arose from Fannie Mae‟s constitutionally protected actions that were
taken as part of, or related to, the bankruptcy action. Further, Crossroads did not
establish a prima facie case in support of those claims, as all of its tort claims based on
protected activity attacked statements privileged under Civil Code section 47, and its
contract claims arising from protected activity were barred as a matter of law.
FACTS
In 2005, Crossroads borrowed $9 million subject to a promissory note. The note
was secured by a deed of trust recorded against an apartment building Crossroads owned
in Woodland. Fannie Mae became the beneficiary of the deed.
The note imposed on Crossroads a prepayment premium (sometimes referred to as
yield maintenance or a prepayment penalty) should Crossroads pay the unpaid principal
before the note‟s maturity date or should Crossroads default and Fannie Mae accelerate
the loan.
Crossroads defaulted on the note in late 2010. Fannie Mae served Crossroads with
a notice of default, and it accelerated the loan. On February 1, 2011, Fannie Mae
3
initiated nonjudicial foreclosure proceedings by recording the notice of default against
the property. The notice stated Crossroads could reinstate the loan by paying all past due
payments plus costs and expenses permitted by statute. It informed Crossroads that as of
December 30, 2010, that amount was $286,900.10.
As required by Civil Code section 2924c (section 2924c), the notice of default
informed Crossroads it could reinstate the loan by tendering the amount it owed to bring
its payments current no later than five business days before the date Fannie Mae intended
to sell the property. It informed Crossroads that after the expiration of that time period,
the only way to stop the foreclosure was to pay off the loan before the sale occurred. It
also informed Crossroads it could learn how much it owed either by submitting a written
request for a written itemization or by contacting Fannie Mae‟s trustee. It provided the
trustee‟s address and phone number.
In addition to recording the notice of default, Fannie Mae instituted state court
litigation against Crossroads and secured a receiver to take control of the property.
On April 15, 2011, Crossroads entered into a contract to sell the property to
Ezralow Company, LLC (Ezralow) for $10.95 million. On May 9, 2011, Crossroads and
Ezralow proposed to Fannie Mae that Ezralow would assume Crossroads‟ obligations and
pay off the loan on condition Fannie Mae agreed to waive the prepayment premium.
Fannie Mae refused to waive the premium, and it rejected the proposal.
Fannie Mae recorded a notice of trustee‟s sale against the property on June 24,
2011. The notice stated the property would be sold on July 19, 2011. It also stated the
total unpaid amount of Crossroads‟ obligations and reasonable estimated costs, expenses
and advances as of the notice‟s date was estimated to be $10,525,126.40. The notice
stated prepayment premiums, accrued interest and advances “will increase this figure”
prior to the sale, and it provided a Web site address and telephone number for Crossroads
to use to obtain updated sale information.
4
On July 18, 2011, the day before the property was scheduled to be sold,
Crossroads filed for Chapter 11 bankruptcy protection. It did so in part “to restructure the
Loan so that it can consummate the sale of the Property to [Ezralow] and assumption of
the Loan by [Ezralow].” In its petition, Crossroads asserted it owed Fannie Mae
approximately $8.7 million. When Crossroads declared bankruptcy, the state court action
was stayed but not dismissed. (11 U.S.C. § 362.)
On the following day, July 19, Crossroads entered into an amended and restated
contract to sell the property to Ezralow for $10.95 million. This agreement conditioned
the sale on the filing by Crossroads of a Chapter 11 bankruptcy proceeding, which it had,
and on Crossroads seeking, and the bankruptcy court approving, a reorganization plan
under which Ezralow would assume and reinstate the loan, and the loan‟s terms would be
restructured to eliminate the prepayment premium and vary the interest rate and the
maturity date. The agreement required Ezralow to approve the proposed reorganization
plan before Crossroads submitted it to the court. If Ezralow disapproved the proposed
plan, the agreement was automatically terminated. Also, Ezralow could terminate the
agreement and cancel escrow if the bankruptcy court did not approve eliminating the
prepayment premium as part of the reorganization plan.
Crossroads filed its first disclosure statement and proposed reorganization plan
with the bankruptcy court, and it based its plan on the terms of the July 19, 2011 sale
agreement with Ezralow.2 Crossroads‟ proposed plan asked the court to approve the sale
to Ezralow for $10.95 million, but it also proposed eliminating the prepayment premium.
2 In bankruptcy proceedings, a disclosure statement provides detailed information
regarding a proposed reorganization plan. The plan proponent prepares the statement.
The bankruptcy court must approve the statement before it may be sent to all creditors
and parties in interest along with the reorganization plan. (11 U.S.C. § 1125(b).) “ „The
primary purpose of a disclosure statement is to give the creditors the information they
need to decide whether to accept the plan.‟ [Citation.]” (In re Diversified Investors Fund
XVII (Bankr. C.D.Cal. 1988) 91 B.R. 559, 561.)
5
The bankruptcy court rejected Crossroads‟ first disclosure statement in part because it
failed to acknowledge Fannie Mae‟s full claim.
Fannie Mae filed a proof of claim in the bankruptcy action for $10,447,090.43.
The claim included $1,590,616.61 for the prepayment premium. Crossroads objected to
the claim, contending, among other things, the prepayment premium was an unreasonable
liquidated damages provision unenforceable under Civil Code section 1671.3 At a
hearing on February 6, 2012, the bankruptcy court disagreed and overruled Crossroads‟
objection. It ruled the prepayment premium was enforceable under California law, and
Fannie Mae could claim it in the bankruptcy proceeding.4
On the same day it ruled Fannie Mae was entitled to claim the prepayment
premium, the bankruptcy court conditionally granted Fannie Mae relief from the
bankruptcy stay. The court had disapproved Crossroads‟ first disclosure statement, and
Crossroads had made no effort to prosecute plan confirmation until only recently when it
filed a second statement. The court granted Fannie Mae relief from the stay to be
effective three months later on May 15, 2012, provided Crossroads had not obtained
confirmation of its reorganization plan by that date.
3 We grant Fannie Mae‟s request for judicial notice of Crossroads‟ objection to the
claim. (Evid. Code, § 452, subd. (d).)
4 The bankruptcy court ruled prepayment premiums triggered by the debtor‟s
default are enforceable under California law if the prepayment is voluntary. (See In re
Imperial Coronado Partners, Ltd. (Bankr. 9th Cir. 1989) 96 B.R. 997.) The payment is
not voluntary if, as of the date the debtor petitioned for bankruptcy, the debtor was in a
position where it had to pay the accelerated loan or lose the property. However, the
payment is voluntary if the debtor, as of the petition date, could either reinstate the loan
under state law or decelerate the loan under bankruptcy law. The court noted that neither
Crossroads nor Fannie Mae briefed Crossroads‟ right under state law to reinstate the loan
on the petition date, but it ruled the prepayment premium was voluntary, and thus
enforceable under California law, and Fannie Mae could claim it because Crossroads
could decelerate the loan under bankruptcy law as part of its reorganization plan.
6
After the bankruptcy court rejected Crossroads‟ objection to the prepayment
premium, Crossroads served an interrogatory in the bankruptcy action on Fannie Mae
that asked for the amount required “under state law” to cure the loan as of June 1, 2012.
Fannie Mae responded by stating it could not provide an accurate response because the
interrogatory sought an amount that was contingent upon future events; it would provide
a response on June 1, 2012.
At the bankruptcy hearing on its second disclosure statement, Crossroads
contended its July 19, 2011 sale agreement with Ezralow was still the operating
agreement for purposes of its reorganization plan. It asked the court to rule on whether
its plan under that agreement to eliminate the prepayment premium and decelerate the
loan had a chance of being accepted. The court called the Ezralow agreement “dubious.”
It explained: “You are trying to have your cake and eat it too. You are trying to sell this
to somebody else and avoid calling it a sale to somebody else, right? That is what is
going on here. [¶] I mean, your client—this debtor is going to retain a small piece and is
going to sell it to someone else, and the reason your client is holding on to a small piece
is you are trying to avoid calling it a sale so you don‟t have to do a sale clause or
acceleration clause or whatever.”
Crossroads‟ counsel agreed with the court‟s summary, saying, “We are trying to
have our cake and eat it too.” The court said it lacked sufficient information to declare at
that point in time whether Crossroads‟ proposed plan could be confirmed. The court
disapproved the second disclosure statement and granted Crossroads time to file an
amended statement. The following month, the court rejected Crossroads‟ third disclosure
statement.
Ezralow‟s senior vice president stated in a declaration that Ezralow was
committed to purchasing the property and reinstating or paying off the loan in full,
including prepayment penalties, if necessary. Ezralow had the financial wherewithal to
do so.
7
Similarly, Crossroads‟ bankruptcy counsel, Kenrick Young, stated in a declaration
that while the bankruptcy action was pending from July 2011 to May 2012, Crossroads
informed Fannie Mae many times it was ready, willing, and able to cure the default or
pay off the loan upon being provided the amount necessary to do so. Crossroads had the
ability to fulfill its tender offers because Ezralow had agreed to pay those funds on its
behalf. Although it opposed the prepayment premium, Crossroads informed Fannie Mae
that if the bankruptcy court determined Fannie Mae was entitled to the prepayment
premium, Crossroads would pay Fannie Mae‟s claim in full because the contracted sales
price was sufficient to pay it. Young did not specify when or where Crossroads relayed
this information to Fannie Mae.
Young also stated in his declaration that while the bankruptcy action was pending,
Crossroads asked Fannie Mae many times to provide the amount required to cure the
default or pay off the loan. Crossroads alleges in its verified complaint that Fannie Mae
refused to accept Crossroads‟ tenders and provided no response to Crossroads‟ requests
for an accounting. Young did not specify when or where Crossroads made these requests
or Fannie Mae refused to accept tender.
In April 2012, Crossroads filed its fourth disclosure statement, which the court
conditionally approved.5 Crossroads also filed a motion to continue the stay.
While the motion to continue the stay was pending, Young e-mailed a settlement
offer to Fannie Mae‟s attorney, Anthony Napolitano, on May 2, 2012. Crossroads
offered to pay Fannie Mae $9 million to compromise Fannie Mae‟s bankruptcy claim.
Fannie Mae rejected the offer.
The bankruptcy court heard the motion to continue the stay on May 14, 2012, and
took the matter under submission. After the hearing, Young asked Napolitano if
5 By then, Fannie Mae had filed an amended claim for $10,335,603.15, which
included the prepayment premium of $1,590,616.61.
8
Crossroads would still be willing to entertain a settlement offer. He also asked if Fannie
Mae would notify him if it intended to foreclose on the property. Napolitano told Young
he wanted to wait for the court‟s ruling on the motion to continue the stay before
engaging in any further discussions.
The bankruptcy court denied the motion to continue the stay. It had given
Crossroads ample time to obtain a confirmed reorganization plan, and it was apparent
Crossroads‟ proposed plan was “likely unconfirmable.” Despite the court‟s previous
approval of Fannie Mae‟s claim for the prepayment premium, Crossroads was still
seeking to sell the property to Ezralow as part of its reorganization without providing for
payment of the premium. The bankruptcy court found no legal way for Crossroads to
accomplish its objective through bankruptcy, and thus concluded Crossroads‟ plan did
not have a reasonable possibility of being confirmed within a reasonable time.6
Fannie Mae‟s relief from the bankruptcy stay became effective on May 15, 2012,
as Crossroads had not obtained an approved reorganization plan by that date.
On May 17, 2012, Young spoke with Napolitano by telephone. The two attorneys
remembered the call differently, but for our purposes, we assume the truth of Young‟s
testimony where there is conflict. Young asked if Fannie Mae would be willing to hold
off on foreclosing and support a sale to Ezralow under a provision of the Bankruptcy
Code. Fannie Mae would be paid the full amount of its claim, but the sale would not
close for two months. Young asked for a payoff amount to pay the loan in full. Young
6 According to the bankruptcy court, there were only two options under bankruptcy
law for Crossroads to obtain plan confirmation without Fannie Mae‟s consent: it could
reinstate (or decelerate) the loan as part of its reorganization plan, or it could “cram
down” on (i.e., modify the terms of) the secured claim if the claim qualified for that
treatment under bankruptcy law. The court found Crossroads, by still seeking to sell the
property subject to the lien but without the prepayment premium, was not attempting to
reinstate the loan, and the transaction as structured could not legally qualify as a cram
down.
9
also asked Napolitano if he would agree to notify Crossroads of any scheduled sale date
by a reasonable time prior to its occurrence. Young stated in his declaration that
Napolitano agreed to provide notice of a sale.
Later that day, Napolitano by e-mail asked to inspect the property. Young
responded by e-mail that Crossroads wished to sell the property to Ezralow and pay
Fannie Mae. He asked if Fannie Mae would agree to a consensual sale of the property to
Ezralow on condition Fannie May received the amount it claimed in its amended
bankruptcy claim. Young said Crossroads was looking at a July or early August 2012
close of escrow. Crossroads alleged Napolitano did not respond to this e-mail.
Young contacted Napolitano by telephone on May 22, 2012. He asked Napolitano
to provide him with the amount required to cure the default. He also proposed that
Crossroads would dismiss its bankruptcy action to allow for a faster sale to Ezralow and
payment in full to Fannie Mae. He stated Crossroads was ready, willing, and able to cure
the default or pay Fannie Mae in full upon receiving the amount of its demand.
Napolitano stated that in this call, Young also asked him to confirm in writing that Fannie
Mae would give him notice before foreclosing. Napolitano told Young he could not
provide him with the confirmation but he would relay Young‟s request for a
reinstatement quote to Fannie Mae and get back to him.
On May 24, 2012, the trustee sold the apartment complex at a nonjudicial
foreclosure sale. The sale took Crossroads by surprise. Young believed Napolitano
would have honored his promise to notify him of any scheduled sale prior to the sale
date.
Crossroads objected to the trustee‟s sale and asked the trustee to set it aside and
not record a new deed. It also dismissed its bankruptcy action in June 2012. It filed this
action against Fannie Mae and the trustee and recorded a lis pendens. However, the
trustee recorded a trustee‟s deed upon sale.
10
PROCEDURAL HISTORY
Crossroads‟ first amended complaint alleges seven causes of action against Fannie
Mae: wrongful foreclosure, breach of contract, breach of the implied covenant of good
faith and fair dealing, negligence, fraud, promissory estoppel, and intentional interference
with a contractual relationship.7 It seeks to rescind the trustee‟s sale and to recover
damages. Crossroads alleges the conduct by Fannie Mae from which all of its causes of
action arise consists of: (1) Fannie Mae‟s repeated failure to provide, in response to
Crossroads‟ requests and its interrogatory, a timely and accurate accounting of the
amount needed to reinstate the loan or pay the loan in full, in violation of section 2924c;
(2) its refusal to accept Crossroads‟ tenders of the amount required to cure the default or
pay the loan in full, in violation of section 2924c; and (3) its falsely stating it would
provide Crossroads with advance notice of a trustee‟s sale, and its actual failure to
provide that notice.
Fannie Mae filed an anti-SLAPP motion and a demurrer against the complaint.
The trial court denied the motion. It ruled Fannie Mae had not shown Crossroads‟ action
arose from Fannie Mae‟s protected activity. The court wrote: “The gravamen of
plaintiff‟s first amended complaint is its contention that defendant wrongfully foreclosed
upon the subject property in an illegally conducted non-judicial foreclosure.” The court
also overruled the demurrer.
DISCUSSION
Fannie Mae contends the trial court erred when it denied its anti-SLAPP motion.
It argues it submitted sufficient evidence to establish that Crossroads was suing based on
Fannie Mae‟s protected activities, and that Crossroads failed to show it was likely to
7 The complaint also named as defendants the trustee, Fidelity National Title, Inc.,
and the purchasers of the apartment complex, JCM Properties, LLC, and Daylight Assets
II, LLC. These additional parties and the allegations against them are not before us.
11
succeed on the merits. We agree, except with regard to any claims arising from Fannie
Mae‟s rejection of the May 2011 settlement proposed by Crossroads and Ezralow. Those
claims did not arise from protected activity.
I
Scope and Standard of Review
A. Law of the case doctrine
Before proceeding, we must address an issue Crossroads raises about our scope of
review. Crossroads contends our current review is subject to the law of the case doctrine.
It argues our prior opinion continues to be the law of this case on all points it decided
except the issues impacted by Baral, and that the scope of our current review is limited
accordingly. We disagree. The law of the case doctrine does not apply in this instance
because our prior opinion was never a final judgment and is no longer considered to exist.
“ „ “The doctrine of the law of the case is this: That where, upon an appeal, the
[reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law
necessary to the decision, that principle or rule becomes the law of the case and must be
adhered to throughout its subsequent progress, both in the lower court and upon
subsequent appeal . . . and this although in its subsequent consideration this court may be
clearly of the opinion that the former decision is erroneous in that particular.” ‟ ” (People
v. Stanley (1995) 10 Cal.4th 764, 786, quoting People v. Shuey (1975) 13 Cal.3d 835, 841
(Shuey).)
The law of the case doctrine applies only if the prior decision became a final
judgment. It is the fact the decision became final that renders it the law of the case on a
retrial and a subsequent appeal from the retrial. As a result of the Supreme Court‟s grant
of review, however, our prior opinion never became final and it no longer exists as a
judgment in this case. When the high court granted review and transferred the case to us,
“our decision and the opinion filed by us became a nullity. [Citations.] . . . [T]he matter
12
is now before us again on all issues as if it had never been decided.” (Gillaizeau v. Bank
of America (1986) 179 Cal.App.3d 836, 839.)
“[I]t is a well-established principle of law that a grant of review by the Supreme
Court nullifies the opinion and causes it to no longer exist. (Knouse v. Nimocks (1937) 8
Cal.2d 482, 483-484; People v. Ford (1981) 30 Cal.3d 209, 215-216.) In Knouse v.
Nimocks, the Supreme Court granted review because the record showed that a justice who
wrote the opinion in the Court of Appeal had ruled upon the case‟s demurrer in the trial
court, and was therefore disqualified from participating in the appeal. (Knouse v.
Nimocks, supra, at p. 483.) The Supreme Court stated, „Just what effect this
disqualification . . . might have had upon the decision of the District Court of Appeal, had
we not granted a transfer of said cause, is now a matter of no consequence. The opinion
and decision of the District Court of Appeal, by our order of transfer, have become a
nullity and are of no force or effect, either as a judgment or as an authoritative statement
of any principle of law therein discussed.‟ (Id. at pp. 483-484.) Without some further act
of approval or adoption by the Supreme Court, the opinion and decision were „of no more
effect as a judgment or as a precedent to be followed in the decision of legal questions
that may hereafter arise than if they had not been written.‟ (Id. at p. 484.) Though a
depublished opinion, unlike an opinion for which review was granted, still governs the
dispute between the parties involved, the effect is the same for the purposes of
precedential value: depublication nullifies the opinion as precedent and it is as if the
opinion had not been written.” (Farmers Ins. Exchange v. Superior Court (2013) 218
Cal.App.4th 96, 109-110, italics added, fn. omitted.)
By depublishing our prior opinion, the Supreme Court nullified the opinion as
precedent outside of this case. And by granting review of the prior opinion, the high
court nullified it as any kind of judgment or precedent binding on the parties to this case
or on us. It is as if we never wrote that opinion.
13
Crossroads relies on Romo v. Ford Motor Co. (2003) 113 Cal.App.4th 738
(Romo), to contend the law of the case doctrine applies here. Romo does not persuade us.
In that case, the Court of Appeal in its original opinion addressed and rejected numerous
issues raised by the defendant concerning the award of compensatory damages and
punitive damages in a wrongful death judgment. All of the issues on appeal involved
state law except one; a federal due process challenge to the amount of punitive damages.
(See Romo v. Ford Motor Co. (2002) 122 Cal.Rptr.2d 139, cert. granted and judgment
vacated by Ford Motor Co. v. Romo (2003) 538 U.S. 1028 [155 L.Ed.2d 1056].) After
the California Supreme Court denied review, the defendant filed a petition for certiorari
in the United States Supreme Court. That court granted the petition, vacated the
judgment, and remanded the matter to the Court of Appeal for further consideration in
light of a recent opinion the high court had filed. (Ibid.) The recent authority established
a federal due process limitation on the measure of punitive damages. (Romo, supra, 113
Cal.App.4th at p. 749.)
On remand, the Court of Appeal applied the new authority to its de novo review of
the punitive damage award. However, it concluded the law of the case doctrine barred it
from reconsidering any other aspect of its prior opinion. The appellate court wrote:
“Although the judgment in this case was vacated by order of the United States Supreme
Court, that action affected only limited—albeit important—portions of the case. Our
original opinion, except for the section of the discussion entitled „Review Under Federal
Constitution‟ . . . , was not affected by the Supreme Court‟s action: the decision retains
the ordinary precedential value of a published opinion of an intermediate appellate court
and it remains the law of the case on all points other than the federal constitutional issue.
(See generally [Shuey, supra,] 13 Cal.3d [at p.] 841; Yu v. Signet Bank/Virginia (2002)
103 Cal.App.4th 298, 309 [Yu].)” (Romo, supra, 113 Cal.App.4th at p. 744, fn. 1.)
Romo does not apply here. It concerned the grant of certiorari by the United States
Supreme Court, not the grant of review by the California Supreme Court. The federal
14
high court‟s jurisdiction over final state court judgments is limited to those judgments
that concern the validity of a federal treaty or statute, the validity of a state statute under
federal law, or a claim arising under federal law. (28 U.S.C. § 1257(a).) Those portions
of its prior opinion the Romo court found subject to the law of the case doctrine were not
subject to the United States Supreme Court‟s jurisdiction.
Here, by contrast, the California Supreme Court had jurisdiction on review to
address all of the issues raised in our prior opinion, and it granted review of that opinion
without limiting the issues it would consider. Having done so and transferred the matter
to us without limitation, we now proceed on a clean slate.
B. Standard of review
The anti-SLAPP statute provides a “procedural remedy to dispose of lawsuits that
are brought to chill the valid exercise of constitutional rights.” (Rusheen v. Cohen (2006)
37 Cal.4th 1048, 1055-1056.) Consequently, “the anti-SLAPP statute is to be construed
broadly.” (Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495, 508.)
We review the trial court‟s ruling de novo. (Flatley v. Mauro (2006) 39 Cal.4th
299, 325.) We consider “the pleadings, and supporting and opposing affidavits stating
the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd.
(b)(2).)
We evaluate an anti-SLAPP motion using a two-step process. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises).)
We first determine “whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity.” (Navellier v. Sletten
(2002) 29 Cal.4th 82, 88 (Navellier).) A defendant meets this burden by showing the
plaintiff‟s claim arises from acts the defendant took “in furtherance of the right of petition
15
or free speech under the United States Constitution or the California Constitution in
connection with a public issue . . . .” (Code Civ. Proc., § 425.16, subd. (b)(1).)8
As relevant here, the anti SLAPP statute defines an “act in furtherance of a
person‟s right of petition or free speech” to include: “(1) any written or oral statement or
writing made before a . . . judicial proceeding . . . , [and] (2) any written or oral statement
or writing made in connection with an issue under consideration or review by a . . .
judicial body . . . .” (Code Civ. Proc., § 425.16, subd. (e)(1), (2).)
In deciding whether a cause of action arises from protected activity, “the critical
point is whether the plaintiff‟s cause of action itself was based on an act in furtherance of
the defendant‟s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29
Cal.4th 69, 78 (City of Cotati), original italics.) There is “a distinction between activities
that form the basis for a claim and those that merely lead to the liability-creating activity
or provide evidentiary support for the claim.” (Park v. Board of Trustees of California
State University (2017) 2 Cal.5th 1057, 1064 (Park).) To be subject to the anti-SLAPP
statute, “the prior protected activity [must] supply elements of the challenged claim.”
(Ibid.) “[A] claim may be struck only if the speech or petitioning activity itself is the
wrong complained of, and not just evidence of liability or a step leading to some different
act for which liability is asserted.” (Id. at p. 1060, original italics.)
8 When the SLAPP statute refers to a “cause of action,” it is not referring
specifically to a pleaded cause of action or a primary right. Rather, it refers to
“allegations of protected activity that are asserted as grounds for relief. The targeted
claim must amount to a „cause of action‟ in the sense that it is alleged to justify a remedy.
By referring to a „cause of action against a person arising from any act of that person in
furtherance of‟ the protected rights of petition and speech, the Legislature indicated that
particular alleged acts giving rise to a claim for relief may be the object of an anti-
SLAPP motion. ([Code Civ. Proc.,] § 425.16[, subd.] (b)(1), italics added.) . . . Neither
the form of the complaint nor the primary right at stake is determinative.” (Baral, supra,
1 Cal.5th at p. 395, original italics.)
16
When we take this first step and determine whether the plaintiff‟s claims arise
from defendant‟s protected activity, we do not consider the legitimacy of the plaintiff‟s
claims. (City of Costa Mesa v. D’Alessio Investments, LLC (2013) 214 Cal.App.4th 358,
371.)
“[T]he moving defendant bears the burden of identifying all allegations of
protected activity, and the claims for relief supported by them. When relief is sought
based on allegations of both protected and unprotected activity, the unprotected activity is
disregarded at this stage.” (Baral, supra, 1 Cal.5th at p. 396.) If the defendant fails to
establish the plaintiff‟s claim is based on defendant‟s protected activity, then the claim
survives and is not subject to the anti-SLAPP statute. (Haight Ashbury Free Clinics, Inc.
v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550.)
If the court determines relief is sought based on allegations arising from activity
protected by the statute, it proceeds to the second step. At this step, “the burden shifts to
the plaintiff to demonstrate the merit of the claim by establishing a probability of success.
We have described this second step as a „summary-judgment-like procedure.‟ [Citation.]
The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is
limited to whether the plaintiff has stated a legally sufficient claim and made a prima
facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff‟s
evidence as true, and evaluates the defendant‟s showing only to determine if it defeats the
plaintiff‟s claim as a matter of law. [Citation.]” (Baral, supra, 1 Cal.5th at pp. 384-385,
fn. omitted.) Plaintiff must “demonstrate that each challenged claim based on protected
activity is legally sufficient and factually substantiated. . . . If [it is] not, the claim is
stricken. Allegations of protected activity supporting the stricken claim are eliminated
from the complaint, unless they also support a distinct claim on which the plaintiff has
shown a probability of prevailing.” (Id. at p. 396.)
“Only a [claim] that satisfies both prongs of the anti-SLAPP statute—i.e., that
arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP,
17
subject to being stricken under the statute.” (Navellier, supra, 29 Cal.4th at p. 89,
original italics.)
II
First Prong: Claims Arising from Protected Activity
We begin with the first step. As mentioned, the parties agree Crossroads‟ claims
against Fannie Mae arose from the following alleged actions:
(1) Fannie Mae‟s failure to provide, in response to Crossroads‟ requests, a timely
and accurate accounting of the amount needed to reinstate the loan or pay the loan in full,
in violation of section 2924c;
(2) Fannie Mae‟s refusal to accept Crossroads‟ tenders of the amount required to
cure the default or pay the loan in full, in violation of section 2924c; and
(3) Fannie Mae‟s falsely stating after being relieved from the bankruptcy stay it
would provide Crossroads with advance notice of a trustee‟s sale, and its failure to
provide that notice.
We review each action to determine if it was an exercise by Fannie Mae of speech
or petition rights protected under the anti-SLAPP statute. We conclude the actions in all
instances but one were protected activity.
A. Responses to requests for accountings
A debtor on a loan secured by a deed of trust on real property has at least two
ways under state law to prevent a foreclosure sale. He may either reinstate, or cure, the
loan by bringing his payments current no later than five business days before the
scheduled sale (§ 2924c, subds. (a)(1), (e)), or he may redeem, or pay off, the loan by
paying off the entire amount owed before the sale occurs. (Civ. Code, §§ 2903, 2905.)
Section 2924c requires a recorded notice of default to inform the debtor that he
may obtain the amount required to pay off or reinstate the loan by communicating with
the lender or beneficiary. He may make a written request to the lender for a written
itemization of the entire amount required to pay off the loan, or, to find out either the pay
18
off amount or the amount required to stop the foreclosure, he may simply contact the
lender. The notice provides the lender‟s mailing address and telephone number.
(§ 2924c, subd. (b)(1).)
Crossroads contends it requested, orally and by the interrogatory, the amounts
necessary for it to reinstate and redeem the loan. The interrogatory was made in the
bankruptcy action, and the oral requests were made while the bankruptcy action was
pending both before and after relief from the stay was granted. Crossroads claims Fannie
Mae responded only to the interrogatory, and its response did not provide the requested
information. It alleges Fannie Mae‟s response to the interrogatory and lack of responses
to all of its oral requests violated section 2924c. In opposition to the anti-SLAPP motion,
Crossroads contends Fannie Mae‟s responses were not protected activity.
Fannie Mae contends its responses to the requests were protected activity because
(1) its response to the interrogatory was a “writing made” in the bankruptcy action; and
(2) its omissions were “made in connection with an issue under consideration or review
by” the bankruptcy court. (Code Civ. Proc., § 425.16, subd. (e)(1), (2).) We agree with
Fannie Mae.
Had Crossroads made its requests when no bankruptcy action was pending, our
analysis would be short. The anti-SLAPP statute does not apply to claims of wrongful
foreclosure arising from actions taken in a nonjudicial foreclosure proceeding. Such
proceedings are not judicial or official proceedings under the anti-SLAPP statute, and a
creditor‟s pursuit of a nonjudicial foreclosure and compliance with its statutory
procedures do not involve the exercise of protected speech or petitioning activity.
(Garretson v. Post (2007) 156 Cal.App.4th 1508, 1520-1525.) Crossroads, however,
filed for bankruptcy. In this case, that makes all the difference.
1. Interrogatory response
We have no difficulty concluding Fannie Mae‟s response to the interrogatory was
protected. (Code Civ. Proc., §425.16, subd. (e)(1).) The response was a writing made in
19
the bankruptcy action and directed to persons who had an interest in that proceeding.
(See Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1055.)
2. Responses during bankruptcy action before stay was lifted
We also conclude Fannie Mae‟s omissions to respond to the requests made while
the bankruptcy action was pending and prior to Fannie Mae being relieved from the stay
were protected activity because they were made in connection with issues under review
in the bankruptcy proceeding.9 “A statement is „in connection with‟ an issue under
consideration by a court in a judicial proceeding within the meaning of clause (2) of
[Code of Civil Procedure] section 425.16, subdivision (e) if it relates to a substantive
issue in the proceeding and is directed to a person having some interest in the proceeding.
9 In our prior opinion, we concluded the claims for failure to provide an accounting
outside of the interrogatory did not arise from protected activity in part because they
challenged nonexpressive conduct, and we ruled a defendant‟s silence was not protected
conduct under the express language of the anti-SLAPP statute. Since then, Division 4 of
the Second District Court of Appeal concluded the anti-SLAPP statute applies to
omissions and concealments made in litigation or settlement. (Suarez v. Trigg
Laboratories, Inc. (2016) 3 Cal.App.5th 118.) Relying on Supreme Court precedent, the
court stated: “In Navellier, supra, 29 Cal.4th at page 89, anti-SLAPP protection was
applied to an action alleging „misrepresentations and omissions‟ in connection with the
signing of a release in an underlying federal action. Defendant allegedly failed to
disclose that he was secretly not in agreement with the terms of the release, which
induced plaintiffs to file an amended federal action; defendant then claimed he did not
release, and did not intend to release his claims. The Supreme Court found that each of
defendant‟s „acts or (omissions) . . . falls squarely within the plain language of the anti-
SLAPP statute.‟ (Id. at p. 90.) Misrepresentation or failure to disclose can be protected
petitioning activity for purposes of [Code of Civil Procedure] section 425.16.
“This is consistent with established free speech jurisprudence. The right to
freedom of speech under the First Amendment to the United States Constitution and
under article I, section 2 of the California Constitution, encompasses what a speaker
chooses to say, and what a speaker chooses not to say; it is a right to speak freely and also
a right to refrain from doing so at all. (Beeman v. Anthem Prescription Management,
LLC (2013) 58 Cal.4th 329, 342; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468,
491.)” (Suarez v. Trigg Laboratories, Inc, supra, 3 Cal.App.5th at pp. 123-124.) We
agree.
20
[Citation.]” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1167,
italics added.)
Both the payoff and cure amounts were substantial issues in the bankruptcy action,
and it was Crossroads that placed them at issue. Crossroads put the payoff amount at
issue by challenging the prepayment premium‟s validity under California law when it
objected to Fannie Mae‟s proof of claim. Crossroads contended in the bankruptcy action
the prepayment premium was an unreasonable liquidated damages provision
unenforceable under Civil Code section 1671. With this objection, Crossroads in effect
asked the bankruptcy court to determine the payoff amount allowed under California law.
Indeed, in its objection to Fannie Mae‟s proof of claim, Crossroads argued to the
bankruptcy court that “[a]n early determination of the amount of the Fannie Mae debt is
essential because the Debtor has already entered into a purchase [and] sale
agreement . . . .”
The bankruptcy court considered and resolved the legality of the prepayment
premium in favor of Fannie Mae while Crossroads outside the court sought the payoff
information from Fannie Mae. Fannie Mae chose not to provide to Crossroads outside
the court the information Crossroads sought until after the court resolved Crossroads‟
objection. Crossroads‟ claim here based on its requests for the payoff amount thus
concerned Fannie Mae‟s exercise of its speech and petition rights in connection with an
issue that was under consideration in the bankruptcy court at Crossroads‟ request.
The cure amount also became a substantial issue in the bankruptcy proceeding. In
its objection to Fannie Mae‟s proof of claim, Crossroads argued the default interest and
late fees charged under the note upon a default were unlawful penalty and punitive
damages provisions under Civil Code section 1671. Moreover, each of Crossroads‟
proposed reorganization plans called for reinstating the loan, contingent on the court
eliminating the prepayment premium. Thus, at the time Crossroads asked Fannie Mae for
the cure amount, it was litigating in bankruptcy court what that amount could legally be
21
under California law. The out-of-court requests for the accountings and Fannie Mae‟s
failure to respond to them were thus made in connection with issues under consideration
by the bankruptcy court.
Crossroads contends its causes of action did not arise from protected activity
because its requests, and its tenders, were made outside of the bankruptcy proceeding. It
asserts its complaint is based on Fannie Mae‟s conducting a wrongful nonjudicial
foreclosure, not on Fannie Mae‟s exercise of its petition or speech rights in the
bankruptcy action. Crossroads states its complaint does not allege Fannie Mae acted
improperly in the bankruptcy action, nor does it allege its proposed reorganization plans
constituted the tenders on which it seeks recovery. Rather, Crossroads argues it seeks to
recover based on unprotected activity. It claims any statements and omissions Fannie
Mae made during the bankruptcy action are at most background information and
evidence of noncompliance with section 2924c and are not the activities on which it sued.
We are not persuaded. Crossroads filed bankruptcy to resolve this matter, and
now it claims the bankruptcy action was peripheral and irrelevant. To resolve an anti-
SLAPP motion, we do not rely on the form of the complaint or the name of a cause of
action. Rather, we determine the conduct from which Crossroads‟ claims arose and
whether that conduct was constitutionally protected. Here, the conduct on which
Crossroads based its lawsuit is constitutionally protected. It is not just evidence of
liability; it actually forms an element of Crossroads‟ causes of action.
Our Supreme Court very recently discussed the “arising from” element of an anti-
SLAPP motion. In Park, supra, 2 Cal.5th 1057, the high court ruled an action to recover
damages for a university‟s denial of tenure to an assistant professor due to national origin
discrimination was not subject to an anti-SLAPP motion, even though there were
numerous communications by the defendants that led up to the challenged decision.
Explaining the “arising from” requirement, the court wrote: “A claim arises from
protected activity when that activity underlies or forms the basis for the claim. (City of
22
Cotati[, supra,] 29 Cal.4th [at p.] 78; Equilon Enterprises, [supra,] 29 Cal.4th at p. 66;
Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1114.)
Critically, „the defendant‟s act underlying the plaintiff‟s cause of action must itself have
been an act in furtherance of the right of petition or free speech.‟ (City of Cotati, at p. 78;
accord, Equilon Enterprises, at p. 66.) „[T]he mere fact that an action was filed after
protected activity took place does not mean the action arose from that activity for the
purposes of the anti-SLAPP statute.‟ (Navellier [], supra, 29 Cal.4th at p. 89; see City of
Cotati, at p. 78 [suit may be in „response to or in retaliation for,‟ protected activity
without necessarily arising from it].) Instead, the focus is on determining what „the
defendant‟s activity [is] that gives rise to his or her asserted liability—and whether that
activity constitutes protected speech or petitioning.‟ (Navellier, at p. 92, italics omitted.)
„The only means specified in [Code of Civil Procedure] section 425.16 by which a
moving defendant can satisfy the [“arising from”] requirement is to demonstrate that the
defendant’s conduct by which plaintiff claims to have been injured falls within one of the
four categories described in subdivision (e) [of Code of Civil Procedure section
425.16] . . . .‟ (Equilon Enterprises, at p. 66, italics added.) In short, in ruling on an
anti-SLAPP motion, courts should consider the elements of the challenged claim and
what actions by defendant supply those elements and consequently form the basis for
liability.” (Park, supra, 2 Cal.5th at pp. 1062-1063, original italics.)
Thus, for a claim to arise from protected activity for purposes of an anti-SLAPP
motion, the actions by the defendant on which the plaintiff bases its lawsuit must qualify
as protected activity under Code of Civil Procedure section 425.16, subdivision (e), and
must supply an element of plaintiff‟s claim. If the plaintiff can establish the elements of
his claim without relying on the protected activity, the claim does not arise from
protected activity. To be subject to the anti-SLAPP statute, the protected activity must
“supply elements of the challenged claim.” (Park, supra, 2 Cal.5th at p. 1064.)
23
Crossroads‟ contention that Fannie Mae‟s failures to provide the accountings and
accept its tenders are only evidence of its causes of action is incorrect. Fannie Mae‟s
omissions supply the facts necessary to establish an element of its causes of action. For
example, the elements of a cause of action for wrongful foreclosure are: “ „(1) the trustee
or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property
pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale
(usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in
cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor
tendered the amount of the secured indebtedness or was excused from tendering.‟
[Citation.]” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394,
408, quoting Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104.)
Fannie Mae‟s failures to provide the accountings, accept the tenders, and give the
promised notice fulfill an element of this tort. They are the acts by which Fannie Mae
caused an illegal, fraudulent, or willfully oppressive sale of the property. They are the
facts that give rise to Fannie Mae‟s liability. Without alleging these facts, Crossroads has
no cause of action against Fannie Mae under section 2924c.
Because Fannie Mae‟s omissions to the requests for accounting prior to being
relieved from the stay occurred in connection with issues under consideration by the
bankruptcy court, as explained above, and form an element of Crossroads‟ causes of
action, they were activities protected under the anti-SLAPP statute.
3. Requests after relief from stay granted
As to Fannie Mae‟s actions after it was granted relief from the bankruptcy stay,
the issues of the amount to reinstate or pay off the loan were no longer being considered
by the bankruptcy court. However, the bankruptcy action remained pending, and
Crossroads‟ requests were part of its efforts to settle that matter. Indeed, Crossroads
claims that during one of these requests, its attorney proposed that Crossroads would
dismiss its bankruptcy action and pay off the loan upon receiving from Fannie Mae the
24
amount of its payoff demand. Settlement discussions made in connection with litigation
are protected activity under the anti-SLAPP statute. (Thayer v. Kabateck Brown Kellner
LLP (2012) 207 Cal.App.4th 141, 154.) Crossroads‟ claims based on Fannie Mae‟s
responses and omissions to its requests for accountings made after the stay was lifted thus
arose from protected activity.
B. Responses to tenders
If the debtor timely pays, or offers to pay, the entire amount due under section
2924c to reinstate the loan or the entire amount due to redeem the loan, the lender must
accept the payment or tender. (Civ. Code, §§ 2924c, subd. (a)(1), 2905.) Crossroads
contends it tendered payment to reinstate or pay off the loan (1) when it proposed on May
9, 2011, to have Ezralow purchase the property according to the first agreement with
Ezralow; and (2) while the bankruptcy action was pending and after the stay was lifted by
informing Fannie Mae many times it was ready, willing, and able to tender the amount
needed to reinstate or pay off the loan. Crossroads alleges Fannie Mae wrongfully
rejected the May 2011 tender and it did not respond to the other tenders. It claims Fannie
Mae‟s rejections of tender were not protected conduct for purposes of the anti-SLAPP
statute.
Fannie Mae argues its refusals to respond to or accept these tenders arose from
protected activity because they consisted of settlement discussions made in the
bankruptcy action. (Code Civ. Proc., § 425.16, subd. (e)(1).) We agree with Fannie Mae.
Fannie Mae‟s failure to respond to the tenders made during the bankruptcy
proceeding and after it was granted relief from the stay were protected activity. A tender
is an unconditional offer to perform an order to extinguish an obligation. (Still v. Plaza
Marina Commercial Corp. (1971) 21 Cal.App.3d 378, 385.) In this matter, an offer to
tender performance by paying off the loan would have settled Fannie Mae‟s proof of
claim in the bankruptcy action, and tender of the reinstatement amount would have
settled part of Fannie Mae‟s claim. Even after relief from the stay was granted, tender up
25
until the time Fannie Mae sold the property would have settled Fannie Mae‟s proof of
claim, as Crossroads did not obtain an approved reorganization plan and did not dismiss
the bankruptcy action until after Fannie Mae sold the property. As already stated, an
attorney‟s communication with opposing counsel on behalf of a client regarding
settlement of pending litigation “directly implicates the right to petition” and is subject to
an anti-SLAPP motion. (GeneThera, Inc. v. Troy & Gould Professional Corp. (2009)
171 Cal.App.4th 901, 907-908.)
Because Crossroads‟ tenders operated as proposed settlements of the bankruptcy
claim, Fannie Mae‟s rejection of those tenders were statements made in a judicial
proceeding, and because those rejections form an element of Crossroads‟ causes of
action, they were activities protected under the anti-SLAPP statute.10
We also conclude Fannie Mae‟s rejection on May 9, 2011, of the offer based on
the April 15, 2011 agreement between Crossroads and Ezralow was protected activity.
Looking back, we can see Crossroads knew it was headed to litigation. More than once,
it essentially told the bankruptcy court as much. It was going to do anything it could to
stop the nonjudicial foreclosure and change the terms of the contract to avoid paying the
prepayment premium. This scheme inevitably lead to the bankruptcy court, where
Crossroads sought a judicial order approving its plan not to pay the prepayment penalty.
The May 9, 2011 proposal, when seen in this context, was thus an action leading to, and
in furtherance of, litigation in the bankruptcy court, and Fannie Mae‟s rejection of the
proposal was related to that litigation. (See Briggs v. Eden Council for Hope &
Opportunity, supra, 19 Cal.4th at p. 1115 [“ „communications preparatory to or in
anticipation of the bringing of an action . . . are equally entitled to the benefits of [Code
10 Fannie Mae states its state court action was still pending, and its rejection of
tender would also be settlement discussions in that action. Fannie Mae has not provided
us with any records from that action, so we do not address this argument.
26
of Civil Procedure] section 425.16‟ ”; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255,
1268 [“[A]lthough litigation may not have commenced, if a statement „concern[s] the
subject of the dispute‟ and is made „in anticipation of litigation “contemplated in good
faith and under serious consideration” ‟ [citation] then the statement may be petitioning
activity protected by [Code of Civil Procedure] section 425.16”].)
We are perplexed that Crossroads would assert claims based on Fannie Mae‟s
rejection of the April 2011 agreement. As discussed in more detail below, the May 9
tender was an invalid tender, as it was conditioned on Fannie Mae accepting less than full
performance under the contract‟s terms.
C. Communications regarding advance notice of the sale
Crossroads contends its attorney‟s discussions with Fannie Mae‟s attorney after
relief from the stay was granted, wherein Fannie Mae agreed to provide notice of the sale
and then breached that agreement, did not arise from protected activity. Crossroads
argues the promise at that time related only to the nonjudicial foreclosure sale and not the
bankruptcy action. It also claims its request and Fannie Mae‟s promise were not offers or
communications to settle the bankruptcy action.
We disagree with Crossroads. The requests for notice occurred as part of its
attorney‟s discussion of settlement proposals with Fannie Mae‟s attorney. Although the
bankruptcy court was no longer considering Fannie Mae‟s claim, the action remained
pending and subject to settlement. The settlement discussions were thus protected as part
of statements made in the action.
III
Second Prong: Likelihood of Success on the Merits
We have concluded Crossroads‟ claims based on Fannie Mae‟s responses to
requests for accountings and tenders of performance, and Fannie Mae‟s promise to give
notice of a sale, arose from protected activity. We now apply the anti-SLAPP statute‟s
second prong to Crossroads‟ claims. As Baral stated, with this step, “the burden shifts to
27
the plaintiff to demonstrate the merit of the claim by establishing a probability of success.
We have described this second step as a „summary-judgment-like procedure.‟ [Citation.]
The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is
limited to whether the plaintiff has stated a legally sufficient claim and made a prima
facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff‟s
evidence as true, and evaluates the defendant‟s showing only to determine if it defeats the
plaintiff‟s claim as a matter of law. [Citation.]” (Baral, supra, 1 Cal.5th at pp. 384-385,
fn. omitted.)
“In analyzing whether the plaintiff has demonstrated a probability of prevailing on
the merits, the court measures the plaintiff's showing against a standard similar to that
used in deciding a motion for nonsuit, directed verdict, or summary judgment. The court
determines only whether the plaintiff has made a prima facie showing of facts that would
support a judgment if proved at trial.” (San Diegans for Open Government v. San Diego
State University Research Foundation (2017) 11 Cal.App.5th 477, 495-496.)
Applying this step, we conclude that, with the exception of claims based on the
oral agreement to give notice, Crossroads has not established the merits of its claims, and
the anti-SLAPP motion should have been granted. This is because the protected
statements were absolutely privileged under the litigation privilege of Civil Code section
47 against Crossroads‟ tort causes of action, and because Crossroads failed to introduce
sufficient evidence to establish a prima facie case in support of its contract causes of
action as a matter of law.
A. Litigation privilege
“The litigation privilege, found in Civil Code section 47, subdivision (b)(2),
[section 47] „applies to any communication (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the
objects of the litigation; and (4) that have some connection or logical relation to the
action.‟ (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege „immunizes
28
defendants from virtually any tort liability (including claims for fraud), with the sole
exception of causes of action for malicious prosecution.‟ (Olsen v. Harbison (2010) 191
Cal.App.4th 325, 333.) In the anti-SLAPP context, the litigation privilege presents „a
substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.‟
(Flatley v. Mauro[, supra,] 39 Cal.4th [at p.] 323.) „Any doubt as to whether the
privilege applies is resolved in favor of applying it. [Citations.]‟ (Adams v. Superior
Court (1992) 2 Cal.App.4th 521, 529.)” (Greco v. Greco (2016) 2 Cal.App.5th 810,
826.)
“For well over a century, communications with ‘some relation’ to judicial
proceedings have been absolutely immune from tort liability by the privilege codified as
section 47(b). At least since then-Justice Traynor‟s opinion in Albertson v. Raboff (1956)
46 Cal.2d 375, California courts have given the privilege an expansive reach.” (Rubin v.
Green (1993) 4 Cal.4th 1187, 1193-1194, italics added, fns. omitted.) The privilege
extends to “any publication . . . that is required [citation] or permitted [citation] by law in
the course of a judicial proceeding to achieve the objects of the litigation, even though the
publication is made outside the courtroom and no function of the court or its officers is
invoked.” (Albertson v. Raboff, supra, 46 Cal.2d at pp. 380-381.)
The litigation privilege also protects a defendant‟s silence having some relation to
a judicial proceeding when the silence is communicative. For example, courts have held
the privilege applies when circumstances impose on the defendant a duty to speak and the
defendant remains silent, thereby communicating that the circumstances do not exist.
(Silberg v. Anderson, supra, 50 Cal.3d at p. 210 [alleged failure to disclose preexisting
relationship that could impact neutrality of an agreed-upon expert]; Kupiec v. American
Internat. Adjustment Co. (1991) 235 Cal.App.3d 1326, 1333 [concealment of facts
regarding status of the plaintiff‟s art found communicative in nature].) The privilege also
applies to omissions in communications designed to prompt public authorities to initiate
proceedings for wrongdoing. (Forro Precision, Inc. v. International Business Machines
29
Corp. (9th Cir. 1984) 745 F.2d 1283, 1285 [defendant‟s omissions in its statements to
police leading to a search of plaintiff‟s property were privileged communications under
section 47(b)].)
Of importance here, “[t]he reasonable relevancy requirement of section 47 is
analogous to the „in connection with‟ standard of [Code of Civil Procedure] section
425.16, subdivision (e)(2).” (Neville v. Chudacoff, supra, 160 Cal.App.4th at p. 1266.) It
is true in some circumstances “[t]he fact that [] section 47 may apply does not mean the
anti-SLAPP statute applies.” (Garretson v. Post, supra, 156 Cal.App.4th at p. 1519,
citing Flatley v. Mauro, supra, 39 Cal.4th at p. 325 [statutory extension of litigation
privilege to nonjudicial foreclosure proceedings did not render those proceedings subject
to anti-SLAPP statute].) It is also true that acts falling within the anti-SLAPP statute
because of their connection with judicial proceedings do not “inevitably” fall within the
litigation privilege. (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770 (Navellier II).)
However, by concluding the anti-SLAPP statute applies because Crossroads‟ claims
arose from the response to an interrogatory and from statements and omissions made in
settlement discussions in the bankruptcy action and concerning issues under review in the
bankruptcy action, we readily find those statements and omissions have “some relation”
to the bankruptcy action and thus are privileged under section 47. (Seltzer v. Barnes
(2010) 182 Cal.App.4th 953, 970-971 [settlement negotiations are privileged under
section 47].) Fannie Mae‟s silent refusals to accept tender were also privileged as they
communicated Fannie Mae‟s rejection of the settlement offers and were responses to
Crossroads‟ scheme to have the court approve its plan in lieu of proceeding through
nonjudicial foreclosure. As a result, all of Crossroads‟ tort claims are barred under the
litigation privilege and should have been stricken from the complaint under the anti-
SLAPP motion except, in so far as they are based on Fannie Mae‟s oral agreement to give
notice of the sale, as discussed below.
30
B. Contract causes of action
As to Crossroads‟ contract claims, we conclude the litigation privilege does not
apply to them except as they arise from Fannie Mae‟s response to the interrogatory.
Generally, the litigation privilege precludes liability in tort, not liability for breach of
contract. (Navellier II, supra, 106 Cal.App.4th at p. 773.) If one expressly contracts not
to engage in certain speech or petition activity and then does so, applying the privilege
would frustrate the very purpose of the contract if there was a privilege to breach it. (Id.
at p. 774.) Thus, the privilege will apply to contract claims only if the agreement does
not “clearly prohibit” the challenged conduct, and if applying the privilege furthers the
policies underlying the privilege. (Vivian v. Labrucherie (2013) 214 Cal.App.4th 267,
276-277.)
Crossroads alleges Fannie Mae breached the deed of trust. That agreement
required Fannie Mae, if it conducted a nonjudicial foreclosure, to sell the property
“according to California law.” Crossroads alleges Fannie Mae violated this agreement
because it conducted the foreclosure in violation of California law. Applying the
privilege to Crossroads‟ contract claims would not further the policies underlying the
privilege. In fact, it would defeat them.
“ „The principal purpose of section [47, subdivision (b),] is to afford litigants and
witnesses [citation] the utmost freedom of access to the courts without fear of being
harassed subsequently by derivative tort actions.‟ (Silberg v. Anderson[, supra,] 50
Cal.3d [at p.] 213.) Additionally, the privilege promotes effective judicial proceedings by
encouraging „ “open channels of communication and the presentation of evidence” ‟
without the external threat of liability (ibid.), and „by encouraging attorneys to zealously
protect their clients‟ interests.‟ (Id. at p. 214.)” (Flatley v. Mauro, supra, 39 Cal.4th at
pp. 321-322.)
Applying the privilege to Crossroads‟ contract actions, instead of promoting
access to courts, would immunize Fannie Mae against any enforcement of its purported
31
violations of the deed and, in this instance, California foreclosure law. Crossroads would
never have an opportunity to go to court to enforce its contract requiring Fannie Mae to
conduct its foreclosure according to California law.
As for the response to the interrogatory, neither section 2924c nor the deed of trust
prohibited Fannie Mae from responding to the interrogatory as it did. Applying the
privilege to that activity furthers the policy underlying the privilege—encouraging the
presentation of evidence without threat of liability. Thus, the anti-SLAPP motion should
have been granted against all contract claims to the extent they arose from Fannie Mae‟s
response to the interrogatory.
We are left with determining whether Crossroads submitted sufficient evidence to
show Fannie Mae (1) breached the deed of trust by (a) not responding to the oral requests
for accountings, and (b) rejecting any valid tenders to reinstate or redeem the loan and
(2) breached the oral agreement to give notice of the sale. Initially, we conclude
Crossroads submitted sufficient evidence to establish a prima facie showing of breach of
the oral agreement to give notice. Whether the agreement was made and breached is a
sufficiently disputed issue of fact that cannot be resolved on an anti-SLAPP motion.
As for the remainder of its contract claims, Crossroads had to introduce sufficient
evidence that Fannie Mae breached the deed of trust by violating section 2924c in order
for its contract claims based on those actions to have survived the anti-SLAPP motion.
Crossroads failed to do so as a matter of law.
1. Rejection of tenders
We address first Fannie Mae‟s rejection of Crossroads‟ tenders. Crossroads
contends it submitted sufficient evidence establishing it orally tendered payment of the
amount to reinstate and redeem the loan many times, and that Fannie Mae refused to
accept each tender, in violation of section 2924c. It did not specify when any of these
tenders were made, except for the May 9, 2011 proposal.
32
Fannie Mae claims Crossroads cannot recover on its claims based on the rejection
of tender because it did not submit any evidence that established its tenders were valid.
We agree with Fannie Mae.
As stated earlier, “[a] tender is an offer of performance made with the intent to
extinguish the obligation (Civ. Code, § 1485). When properly made, it has the effect of
putting the other party in default if he refuses to accept it. [Citations.] When a party
makes a tender of full payment to the holder of a promissory note when or after it is due,
he is discharged to the extent of all subsequent liability for interest, costs and attorney's
fees. (Com. Code, § 3604; Civ. Code, § 1504.)
“However, a tender to be valid must be of full performance (Civ. Code, § 1486),
and it must be unconditional. (Civ. Code, § 1494; [citations].)” (Still v. Plaza Marina
Commercial Corp., supra, 21 Cal.App.3d at p. 385.) Tender must also be in good faith.
(Civ. Code, § 1493.) If the party making the offer is unable or unwilling to perform, the
tender is of no effect. (Civ. Code, § 1495; Karlsen v. American Sav. & Loan Assn.
(1971) 15 Cal.App.3d 112, 118.)
The May 9, 2011 tender was not a valid tender. It was conditioned on Fannie Mae
relinquishing its claim to the prepayment premium.
The tenders made before the stay was lifted also were invalid tenders, as they were
either conditional or not for full performance. Crossroads‟ entire evidentiary showing
that it tendered performance to Fannie Mae before the stay was lifted consists of the
following paragraph from Young‟s declaration: “Throughout the time in which
Crossroads‟ bankruptcy proceeding was pending, I, on behalf of Crossroads, repeatedly
advised [Fannie Mae] that Crossroads was ready, willing and able to cure the default
and/or pay off the loan, upon being provided with the amount required to cure the default
and/or pay off the loan. Crossroads had the financial ability to fulfill its tender offers
because Ezralow had agreed to pay those funds on its behalf. Although Crossroads
opposed the payment of prepayment penalties, the contracted for sales price to Ezralow
33
was sufficient to pay the entire amount demanded by [Fannie Mae]. Accordingly, I, on
behalf of Crossroads, advised [Fannie Mae], on multiple occasions, that if the bankruptcy
court determined that [Fannie Mae] was owed prepayment penalties, then Crossroads
would pay [Fannie Mae‟s] claim in full.” (Italics added.)
Young‟s statement demonstrates Crossroads‟ tenders were invalid. They either
were not for full performance or they were conditional. Young stated Crossroads would
include the prepayment premium in its tender only if the bankruptcy court determined
Fannie Mae was entitled to claim the premium. This shows all of Crossroads‟ tenders to
pay off the loan were either for less than the amount due under the terms of the contract,
or they were conditioned on the bankruptcy court ruling in Fannie Mae‟s favor.11
To be valid, a tender must be for full performance under the terms of the note and
must not be conditional. Section 2924c authorized Crossroads to reinstate the loan only
by paying what was then due under the terms of the note and deed of trust, whether or not
the legality of those terms was under review in the bankruptcy action. Crossroads could
reinstate by “pay[ing] to the beneficiary or the mortgagee . . . the entire amount due . . .
under the terms of the deed of trust or mortgage and the obligation secured thereby,” as
11 Young‟s statement is almost identical to Crossroads‟ complaint, which, framing
the issue before us, more clearly alleges Crossroads‟ tenders consisted of either amounts
not including the prepayment penalty or amounts conditioned on the bankruptcy court‟s
ruling. The verified complaint reads: “Throughout the time in which plaintiff‟s
bankruptcy proceeding was pending, Crossroads repeatedly advised [Fannie Mae] that it
was ready, willing and able to cure the default. Crossroads also advised [Fannie Mae],
on multiple occasions, that it was ready, willing and able to pay [Fannie Mae‟s] loan in
full. [Fannie Mae] refused to accept Crossroads‟ offer to tender the amount needed to
cure the default, nor Crossroads‟ tender of the full payment of principal and interest owed
on its note, because it also wanted to receive prepayment penalties. Although Crossroads
opposed the payment of prepayment penalties, the contracted for sale price to Ezralow
was sufficient to pay the entire amount demanded by [Fannie Mae]. Accordingly,
Crossroads advised [Fannie Mae], on multiple occasions, that if the bankruptcy court
determined that [Fannie Mae] was owed prepayment penalties, then it would pay [Fannie
Mae‟s] claim in full from the close of the escrow of the sale of the property to Ezralow.”
34
well as the amounts in default on recurring obligations and the costs incurred in enforcing
the obligation. (§ 2924c, subd. (a)(1), italics added.)
Similarly, Crossroads was entitled to redeem the loan only “by performing, or
offering to perform, the act for the performance of which it is a security, and paying, or
offering to pay, the damages, if any, to which the holder of the lien is entitled for delay.”
(Civ. Code, § 2905.) “It is obvious even the owner of the property cannot redeem it from
a lien without tendering the amount due under its terms, including the terms governing a
default. [Citations.]” (Pacific Trust Co. TTEE v. Fidelity Fed. Sav. & Loan Assn. (1986)
184 Cal.App.3d 817, 825, italics added [to redeem the loan, junior lienholder had to pay
all obligations required by the contract, including prepayment penalty the lienholder paid
under protest and later challenged].)
In short, Crossroads could not condition its cure or redemption of the loan based
on its contention the prepayment premium was unenforceable. Thus, any tenders that
were made for any amount other than what was due and owing under the terms of the
note and deed of trust, including the May 9, 2011 proposal, were not valid tenders for
purposes of redeeming or reinstating the loan. The anti-SLAPP motion should have been
granted against all claims based on any tenders that did not include full payment as
required under the terms of the loan or were conditioned on a ruling by the bankruptcy
court.
The remaining tenders, including those made by Young to Napolitano after the
stay was lifted, to pay Fannie Mae all it was owed under the note and deed of trust,
including the prepayment penalty, also should have been stricken. Merely stating one is
ready, willing, and able to tender payment upon learning what is owed is insufficient
tender where the notice of default informed the debtor of a minimum amount owed and
the debtor tendered no payment of at least that amount. If Fannie Mae refused to provide
Crossroads the amount required to reinstate or redeem the loan, Crossroads at a minimum
had to tender payment in a specific amount based on the information in its possession in
35
order to stop the foreclosure. “The adequacy of the tender turns on the amount owed and
the burden is placed on [the beneficiary] by [Civil Code] sections 2924 and 2924c to
inform [the trustor] correctly about the amounts „then due‟ on the obligations properly
noticed in the notice of default and the foreclosure costs. This information is in the
possession of the beneficiary. [The trustor] is under no obligation to second-guess the
amount. Given that information he is required to project the amount presently due and to
tender that amount as a cure of the default. If the tender falls short in a sum attributable
to the failure of the beneficiary to carry its burden of providing the trustor with accurate
information, the trustor is entitled to prevail on the merits.” (Anderson v. Heart Federal
Sav. & Loan Assn. (1989) 208 Cal.App.3d 202, 217, italics added [payment of tender
based on the last information debtor had received from the beneficiary was sufficient to
establish a triable issue of fact of proper tender in wrongful foreclosure action].)
Here, Crossroads had sufficient information to make a specific tender that, in light
of Fannie Mae‟s failure to respond to the requests for accountings, could have entitled
Crossroads to reinstate or redeem the loan successfully. The notice of default informed
Crossroads it had to pay at least $286,900.10 in order to reinstate the loan. And Fannie
Mae‟s proof of claim in the bankruptcy court informed Crossroads it had to pay at least
$10,335,603.15 to redeem the loan. Had Crossroads tendered payment of either of these
amounts upon Fannie Mae not providing it with the current amounts required to reinstate
or redeem the loan, it could have successfully stopped the foreclosure even if those
amounts were less than what was owed under the note. Crossroads, however, has
introduced no evidence showing it tendered payment of those amounts to Fannie Mae
even once. Because Crossroads failed to tender any specific payment in at least those
amounts, its claims based on Fannie Mae‟s rejections of tender should have been
stricken. It failed to make legally valid tender.
36
2. Not responding to requests for accountings
Crossroads contends it introduced sufficient evidence to establish a prima facie
case that Fannie Mae breached the deed of trust by violating section 2924c, which it did
by not providing the amounts required to reinstate and redeem the loan when Crossroads
requested them. We disagree, as Crossroads introduced no evidence showing its damage
was caused by Fannie Mae‟s breach.
“A cause of action for breach of contract requires pleading of a contract, plaintiff‟s
performance or excuse for failure to perform, defendant‟s breach and damage to plaintiff
resulting therefrom. [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142
Cal.App.4th 1457, 1489.)
“In breach of contract actions, damages cannot be presumed to flow from liability.
„It is essential to establish a causal connection between the breach and the damages
sought. [Citations.]” [Citation.] This rule has been codified in Civil Code section 3300,
which reads: „For the breach of an obligation arising from contract, the measure of
damages, except where otherwise expressly provided by this Code, is the amount which
will compensate the party aggrieved for all the detriment proximately caused thereby, or
which, in the ordinary course of things, would be likely to result therefrom.‟ (Italics
added.)
“Ordinarily, the issue of causation is a question of fact for the jury. [Citations.]
However, under the principles applicable to directed verdict motions [and, we may add,
by its similar nature, an anti-SLAPP motion], if there is no substantial evidence to
support a verdict in plaintiff‟s favor if such a verdict were given, and no other reasonable
conclusion is legally deducible from the evidence, the trial court is entitled to decide the
issue as a matter of law. [Citation.]” (Metzenbaum v. R.O.S. Associates (1986) 188
Cal.App.3d 202, 211-212, original italics.)
Crossroads contends Fannie Mae‟s refusal to provide the accountings damaged it
by preventing it from being able to cure the default or pay off the loan, and thereby
37
subjecting Crossroads to the complete loss of the property. Crossroads also alleges
Fannie Mae‟s actions damaged it by preventing it from being able to sell the property for
a price that would have paid Fannie Mae in full and would have provided a substantial
return to Crossroads.
There is no evidence Fannie Mae‟s refusal to provide the accountings proximately
caused damage to Crossroads. Crossroads damaged itself. From February 1, 2011, when
Fannie Mae recorded the notice of default, until May 19, 2012, five days before Fannie
Mae sold the property, Crossroads possessed and maintained the right to reinstate the
loan whether or not Fannie Mae responded to the requests, and it failed to act on that
right. It possessed the right to redeem the loan up until the moment of sale on May 24,
2012, whether or not Fannie Mae responded to the requests, and it failed to act on that
right. Fannie Mae‟s refusals, instead of damaging Crossroads, actually benefitted it. As
already stated, because Fannie Mae failed to provide the requested amounts, Crossroads
could have reinstated or redeemed the loan by tendering payment based on the
information Fannie Mae had provided in the notice of default or the bankruptcy proof of
claim. If those amounts were less than what Crossroads actually owed under the note and
deed of trust, and Crossroads paid those amounts, Fannie Mae‟s omissions damaged
Fannie Mae, not Crossroads, as paying those amounts would have stopped the
foreclosure. If those amounts were more than what Crossroads actually owed, it could
still pay them under protest to reinstate or redeem the loan in order to maintain
possession of the property, and then seek to recover the amount it overpaid. But
Crossroads tendered no payment.
Having suffered no damage from Fannie Mae‟s failure to respond to the requests
for accounting, Crossroads cannot recover on its contract claims based on those
omissions. The anti-SLAPP motion should have been granted against them.
38
DISPOSITION
The order denying Fannie Mae‟s anti-SLAPP motion is reversed. The matter is
remanded and the trial court is directed to enter an order granting the anti-SLAPP motion
and striking the allegations relating to, and all claims alleged against Fannie Mae except
those which arise from Fannie Mae‟s alleged breach of an oral agreement to provide
notice of the foreclosure sale.
Costs on appeal are awarded to Fannie Mae. (Cal. Rules of Court, rule 8.278(a).)
NICHOLSON , Acting P. J.
We concur:
ROBIE , J.
DUARTE , J.
39
|
Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-28-2009
Taylor v. Union Security Ins C
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3692
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Recommended Citation
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3692
C. RICHTER TAYLOR, Jr.,
Appellant
v.
UNION SECURITY INSURANCE COMPANY,
f/k/a FORTIS BENEFITS INSURANCE COMPANY;
TITUS & MCCONOMY LONG TERM
DISABILITY BENEFITS PLAN
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-07-cv-00528)
District Judge: Honorable David Stewart Cercone
Submitted Under Third Circuit LAR 34.1(a)
May 21, 2009
Before: FUENTES, JORDAN and NYGAARD, Circuit Judges.
(Filed: May 28, 2009)
OPINION OF THE COURT
JORDAN, Circuit Judge.
C. Richter Taylor, Jr. filed suit against Fortis Benefits Insurance Company1
(“Fortis”) and the Titus & McConomy Long Term Disability Benefits Plan (the “Plan”),
alleging that they wrongfully denied him long-term disability benefits. The United States
District Court for the Western District of Pennsylvania granted summary judgment to the
Defendants, and Taylor has appealed. Because the District Court correctly determined
that Fortis did not abuse its discretion in denying Taylor’s benefits claim, we will affirm.
I. Background
Taylor was a partner in the Pittsburgh law firm of Titus & McConomy (“Titus”)
from 1989 to November of 1995, when he was asked to withdraw from the partnership.
While at Titus, he enrolled in the Plan and received long-term disability coverage under it
until November 30, 1995. Fortis both insured the Plan and had discretionary authority to
make determinations regarding the payment of benefits under the Plan. After being
terminated by Titus, Taylor joined the law firm of Houston Harbaugh, where he was of
counsel until he was terminated in 1999. He then joined Plummer, Harty & Owsianyn
(“Plummer”) from 1999 to 2001. While working for Plumber, he suffered a manic
episode and was prescribed medication to treat his symptoms. Notwithstanding the
medication, his job performance continued to deteriorate, and he was fired in 2001.
1
Fortis is now known as Union Security Insurance Company.
2
On May 29, 2002, Taylor suffered a severe manic episode and was admitted to
Western Psychiatric Institute and Clinic (“WPIC”). During his inpatient stay at WPIC,
Taylor was formally diagnosed with bipolar disorder, dysfunction of the frontal lobe of
his brain, and sleep apnea. Taylor also began receiving treatment from Dr. Mark D.
Miller, an Associate Professor of Psychiatry at the University of Pittsburgh Medical
Center.
On February 15, 2003, Taylor filed a claim with Fortis for long-term disability
benefits, claiming that he had been disabled due to bipolar disorder and frontal lobe
dementia since November 30, 1995. Fortis denied Taylor’s claim on April 22, 2003,
explaining that his late notice prejudiced its ability to evaluate the claim and that he was
not disabled under the terms of the Plan. Taylor followed the procedures set forth in the
Plan and administratively appealed Fortis’s decision.
With that appeal, Taylor submitted a report from Dr. Miller supporting his claim.
Dr. Miller based his report on his own observations and phone conversations he had had
with individuals who had worked with Taylor at Titus and at Houston Harbaugh. He also
spoke with Dr. Scott, a psychologist, and Dr. Lobl, a psychiatrist, both of whom had
previously treated Taylor.
Dr. Miller was not, however, able to review medical records dating back to the
relevant time period because such records were unavailable. Taylor had been treated by
three doctors during the years leading up to and directly following his termination from
Titus in November 1995. Dr. Savisky, who treated Taylor in 1994, and Dr. Golding, who
3
treated Taylor beginning in 1995, are both deceased and their records were unavailable.
And Dr. Scott, who began seeing Taylor in 1995, did not have notes on her treatment of
patients prior to 1997. Despite the absence of relevant medical records, Dr. Miller stated
a conclusion regarding whether Taylor’s bipolar disorder affected his ability to work
dating back to 1995: “Mr. Taylor’s history is entirely consistent with [bipolar illness] and
is highly suggestive of the bipolar illness symptomatology interfering with his ability to
work dating back to 2000 with certainty and to 1995 with reasonable medical certainty.”
(App. F at 5.)
Fortis arranged for Dr. Stephan Kruszewski, a psychiatrist, to peer review
Dr. Miller’s report. After reviewing the relevant materials, Kruszewski “concluded that
the records don’t support that bipolar disorder was present in 1995 such as to preclude
working as an attorney.” (App. K at 4.) Patricia Neubauer, Ph.D., a Staff Psychologist at
Fortis, further analyzed Taylor’s available medical history, Dr. Miller’s report, and
Dr. Kruszewski’s peer review of Dr. Miller’s report and found that there was insufficient
evidence to conclude that Taylor was disabled in November 1995. “Based on the full
review of the file and all submitted records including the peer review, there is no support
that Mr. Taylor had a mood disorder, whether based on depression or bipolar disorder
with primary depressed presentation, that would preclude working as an attorney on
11/30/95 and persisting through a qualifying period.” (Id.)
After reviewing the opinions expressed by Dr. Neubauer and Dr. Kruszewski,
Dr. Miller issued an additional report reconfirming his previous opinion but
4
acknowledging the difficulty of retrospectively determining when Taylor became
disabled: “When one looks backwards and takes into account the gross irregularities at
work and the progressive decline in function over time, it is reasonable, in my view, to
conclude that this illness was likely operating earlier during the time of his work as a
lawyer. Where one draws the line to invoke a disability claim, I appreciate is a difficult
decision.” (App. H at 3.)
In reviews dated January 18, 2005 and September 18, 2005, Fortis upheld its
decision to deny Taylor’s benefits claim. Fortis maintained its position that Taylor had
not shown that he was disabled under the terms of the Plan and that it had been prejudiced
by the late submission of Taylor’s claim.
After exhausting the Plan appeal procedures, Taylor filed a denial of benefits suit
against Fortis pursuant to the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §§ 101, et. seq. The parties filed cross motions for summary
judgment and a Magistrate Judge recommended that the District Court grant summary
judgment to Fortis. The District Court adopted the Magistrate Judge’s Report and
Recommendation after determining that, even if it looked beyond the prejudice created by
the untimeliness of Taylor’s claim, Fortis had ample reason to conclude that Taylor was
not disabled in November 1995 and, therefore, that Fortis had not abused its discretion in
denying his claim. Taylor then filed this appeal, arguing that the District Court erred by
granting summary judgment to Fortis.
5
II. Discussion2
We exercise plenary review of the District Court’s decision to grant summary
judgment. Smathers v. Multi-Tool, Inc., 298 F.3d 191, 194 (3d Cir. 2002). Accordingly,
we review Fortis’s decision to deny benefits under the same standard applied by the
District Court. Id. In Firestone Tire & Rubber Company v. Bruch, 489 U.S. 101, 115
(1989), the Supreme Court held that an ERISA plan administrator’s decision to deny
benefits is subject to de novo review unless the plan at issue “gives the administrator ...
discretionary authority to determine eligibility for benefits or to construe the terms of the
plan.” When, as in this case, a plan grants its administrator discretionary authority to
determine eligibility for benefits, we review the denial of benefits under an arbitrary and
capricious standard.3 Post v. Hartford Ins. Co., 501 F.3d 154, 161 (3d Cir. 2007);
Smathers, 298 F.3d at 194-95.
2
The District Court had jurisdiction to hear this case under 28 U.S.C. § 1331 and 29
U.S.C. § 1132(e). We have appellate jurisdiction to review the District Court’s final
decision pursuant to 28 U.S.C. § 1291.
3
In Firestone, the Supreme Court instructed that “if a benefit plan gives discretion to an
administrator or fiduciary who is operating under a conflict of interest, that conflict must
be weighed as a factor in determining whether there is an abuse of discretion.” 489 U.S.
at 115. The Supreme Court recently clarified this instruction in Metropolitan Life Ins.
Co. v. Glenn, --- U.S. ----, 128 S.Ct. 2343, 2350 (2008), in which it explained that a plan
administator’s potential conflict of interest does not make more stringent the arbitrary and
capricious standard of review but rather serves as one of several factors that courts should
consider in applying that standard. Although the Magistrate Judge and the District Court
applied a heightened standard of review, in keeping with our pre-Glenn case law, that
actually works in Fortis’s favor at this juncture, since the conclusion that Fortis’s decision
passed muster under the heightened standard means it necessarily passes under the lower
arbitrary and capricious standard as well.
6
A plan administrator’s decision is arbitrary and capricious if “it is clearly not
supported by the evidence in the record or the administrator has failed to comply with the
procedures required by the plan.” Orvosh v. Program of Group Ins. for Salaried
Employees of Volkswagen of Am., Inc., 222 F.3d 123, 129 (3d Cir. 2000) (citation
omitted). Under this standard, we must determine whether there was a reasonable basis
for the administrator’s decision, based on the facts as known by the administrator at the
time the decision was made. Smathers, 298 F.3d at 199-200.
To qualify as disabled under the Plan, a claimant must satisfy either the
Occupation Test or the Earning Test. (App. J at 1.) A claimant satisfies the Occupation
Test when “an injury, sickness, or pregnancy requires that [he] be under the regular care
and attendance of a doctor, and prevents [him] from performing at least one of the
material duties of [his] regular occupation.” (Id.) Under the Earnings Test, “[a claimant]
may be considered disabled in any month in which [he is] actually working, if an injury,
sickness, or pregnancy ... prevents [him] from earning more than 80% of [his] monthly
pay in that month in any occupation for which [his] education, training or experience
qualifies [him].” (Id.)
Based on the record, Fortis concluded that Taylor did not provide sufficient
evidence that he was disabled, as of November 30, 1995, under the terms of the Plan. He
did not meet the Occupation Test because there was insufficient evidence that, by
November 30, 1995, Taylor’s condition prevented him from performing any of the
material duties of his occupation as a lawyer. He was employed as a lawyer for several
7
years after 1995, and Fortis could properly look to that as evidence that he did not meet
the Occupation test. Moreover, Taylor himself had identified on a February 2003 claim
form that he became disabled “two years ago,” i.e., sometime in 2001, not in 1995. (See
Supp. App. at 45.)
Taylor also failed to meet the Earnings Test because there was insufficient
evidence that, by November 30, 1995, his condition prevented him from making 80% of
his earlier monthly pay. While Taylor asserts that he made less than 80% of what he had
earned while he was a partner or shareholder in successful law firms – an assertion that
Fortis notes is unsupported by record evidence – it was not arbitrary or capricious for
Fortis to conclude that Taylor did not demonstrate that his reduced earnings were due to
his mental illness. Untangling the causes of Taylor’s career decline is not the simple
matter that Taylor now declares it to be. On the contrary, evidence in the record shows
that Taylor had serious problems in his life aside from the mental and emotional
challenges he faced. His wife was terminally ill, which he acknowledges was a terrible
burden, and Dr. Kruszewski indicated that alcohol and medication were also factors in
Taylor’s deterioration. We do not intend by these observations to minimize the impact of
mental illness in Taylor’s life, nor to imply that stressors and self-destructive behaviors
can be neatly separated from his mental state. Rather, we conclude simply that, under the
arbitrary and capricious standard we are bound to apply, and on this record, we cannot
8
overturn Fortis’s conclusion that Taylor failed to demonstrate that his income loss was
due to mental illness.4
In short, Fortis’s decision to deny Taylor’s claim for benefits is adequately
supported by the record. Dr. Kruszewski and Dr. Neubauer both opined that the record
was insufficient to conclude that Taylor was disabled by November 30, 1995 under the
terms of the Plan. Even Dr. Miller acknowledged that, given the retrospective nature of
Taylor’s claim, it was difficult to determine exactly when Taylor became disabled under
the terms of the Plan. (App. H at 3.) Fortis thus did not abuse its discretion in denying
Taylor’s claim for long-term disability benefits.
Because we have determined that Fortis’s decision to deny benefits was not
arbitrary or capricious, we need not determine whether it was prejudiced by the delay
between the alleged onset of Taylor’s disability and the filing of his claim.
III. Conclusion
As the District Court correctly concluded that Fortis did not abuse its discretion in
denying Taylor’s claim for long-term disability benefits, we will affirm.
4
We also agree with Fortis that the lack of any medical records during the ninety days
following the claimed November 30, 1995 disability onset date were appropriately
considered in deciding whether Taylor had adequately supported his disability claim.
That ninety-day period, called the “qualifying period” in the Plan insurance policy, is set
by the policy as a time during which disability must demonstrably exist in order to qualify
for benefits. (See Supp. App. at 16.)
9
|
38 So.3d 1046 (2010)
Harold J. BARBER
v.
Deborah BARBER.
No. 2009 CA 0780.
Court of Appeal of Louisiana, First Circuit.
May 7, 2010.
*1047 Mark L. James, Franklinton, Louisiana, for Plaintiff/Appellant, Harold J. Barber.
Robert A. Barnett, New Orleans, Louisiana, for Defendant/Appellee, Deborah Barber.
Before DOWNING, GAIDRY, and McCLENDON, JJ.
McCLENDON, J.
This is an appeal of a trial court judgment granting a former spouse the right to seek permanent spousal support and reimbursement based on a matrimonial agreement signed by the parties prior to their marriage. For the following reasons, we amend in part, reverse in part, and render.
FACTS AND PROCEDURAL HISTORY
Harold J. Barber and Deborah Carpenter Barber were married on November 14, *1048 1999, and established their matrimonial domicile in Washington Parish. No children were born of the marriage. The parties separated on November 4, 2006, and on November 14, 2006, Mr. Barber filed a petition for divorce. Mr. Barber alleged that the parties entered into a separate property agreement on November 12, 1999. He further desired exclusive use of the family home in Franklinton, asserting that it was his separate property. An amending and supplemental petition was filed on May 15, 2007, in which Mr. Barber sought a divorce based on the parties living separate and apart for more than six months.
On June 11, 2007, Mrs. Barber filed a rule for interim periodic spousal support and rental assessment, in which she asserted she was in necessitous circumstances and suffering from multiple sclerosis.[1] She also asserted that although she had no objection to Mr. Barber's exclusive use and occupancy of the family home, she requested that Mr. Barber be assessed a rental value for his use of the former matrimonial domicile.
Also, on June 11, 2007, Mrs. Barber filed an answer and reconventional demand. In her reconventional demand, Mrs. Barber asserted that the matrimonial agreement signed on November 12, 1999 was invalid and unenforceable as it was improperly perfected, signed under duress, and signed through misrepresentation and fraud. She further contended that she was not allowed legal representation nor given the opportunity to have the agreement reviewed by anyone. As such, Mrs. Barber requested a declaration that all property acquired during the marriage be deemed community property, entitling her to interim spousal support, permanent and final support, medical insurance coverage, reimbursement and credit of funds paid for obligations and debts during the marriage, and all fruits, revenues and increases of property belonging to the community.
Mr. Barber was granted a judgment of divorce on June 14, 2007.
On August 5, 2008, Mr. Barber filed a motion for declaratory judgment seeking a judgment declaring the prenuptial agreement valid. A trial on the motion was held on August 20, 2008. The trial court determined that the stresses and time limitations that Mrs. Barber underwent did not amount to vices of duress or error. The trial court also determined that the contract was an authentic act. The trial court then stated:
An examination of the contract reveals that the references to spousal support are contained in paragraph six of the otherwise lawful agreement. In the same sentence of that paragraph, the parties agree to waive interim and final spousal support. As was previously noted, the waiver of interim spousal support has been unlawful for thirty years, and was unlawful at the time this agreement was written. The court finds the provisions of paragraph six of the agreement to be inextricably bound, and strikes the entire paragraph. In all other regards, the contract is found to be lawful.
Judgment was signed on December 10, 2008, allowing Mrs. Barber the right to seek interim and permanent spousal support from Mr. Barber. The judgment also added the following: "That Deborah Barber is reserved the right to seek reimbursement of contribution to the estate of Harold Barber, as per law."
Mr. Barber appealed, alleging that the trial court erred in ruling that the waiver *1049 of temporary and permanent support were so "inextricably bound" so as to render the waiver of permanent support unenforceable. He also asserts that the trial court erred in ruling that Mrs. Barber had not waived her right to seek reimbursement.[2]
DISCUSSION
When parties are bound by a valid contract and material facts are not in conflict, the contract's application to the case is a matter of law. An appellate review that is not founded upon any factual findings made at the trial court level, but is based upon an independent review and analysis of the contract within the four corners of the document, is not subject to the manifest error rule of law. In such cases, appellate review is simply whether the trial court was legally correct. Boh Bros. Const. Co., L.L.C. v. State ex rel. Dept. of Transp. and Development, 08-1793, p. 3 (La.App. 1 Cir. 3/27/09), 9 So.3d 982, 984, writ denied, 09-0856 (La.6/5/09), 9 So.3d 870; Claitor v. Delahoussaye, 02-1632, p. 11 (La.App. 1 Cir. 5/28/03), 858 So.2d 469, 478, writ denied, 03-1820 (La.10/17/03), 855 So.2d 764.
Generally, legal agreements have the effect of law upon the parties, and, as they bind themselves, they shall be held to a full performance of the obligations flowing therefrom. In other words, a contract between the parties is the law between them, and the courts are obligated to give legal effect to such contracts according to the true intent of the parties. LSA-C.C. 2045; Boh Bros. Const. Co., L.L.C, 08-1793 at p. 4, 9 So.3d at 984.
The Louisiana Civil Code gives spouses, before or during marriage, the right to enter into a matrimonial agreement as to all matters that are not prohibited by public policy. LSA-C.C. art. 2329; Loftice v. Loftice, 07-1741, p. 11 (La.App. 1 Cir. 3/26/08), 985 So.2d 204, 211. However, the supreme court in Holliday v. Holliday, 358 So.2d 618, 620 (La.1978), held that prenuptial agreements in which a spouse waives his or her right to alimony pendente lite in the event of separation are null and void as against public policy. The public policy the court referred to was that a husband should support and assist his wife during the existence of the marriage. The court determined that this legal obligation of support, as well as the fact that the conditions affecting entitlement to alimony pendente lite could not be foreseen at the time prenuptial agreements are entered into, overrides the premarital anticipatory waiver of alimony.[3]Holliday, 358 So.2d at 620; Loftice, 07-1741 at p. 11, 985 So.2d at 211.
Thus, alimony pendente lite, or what is now known as interim spousal support, is based on the statutorily imposed duty of the spouses to support each other during marriage. LSA-C.C. art. 98[4]; Loftice, 07-1741 at p. 11, 985 So.2d at *1050 211. See also McAlpine v. McAlpine, 94-1594, p. 9 (La.9/5/96), 679 So.2d 85, 90. However, there is no corresponding statutory duty of support mandating permanent spousal support between former spouses. See McAlpine, 94-1594 at p. 9, 679 So.2d at 90. The court in McAlpine determined that permanent spousal support, unlike interim support, is not a law enacted for the public interest, but rather was enacted to protect individuals. Therefore, there is no prohibition against the waiver of post-divorce permanent spousal support. McAlpine, 94-1594 at p. 16, 679 So.2d at 93.
Relative to the nullity of a provision of an agreement, LSA-C.C. art. 2034 provides:
Nullity of a provision does not render the whole contract null unless, from the nature of the provision or the intention of the parties, it can be presumed that the contract would not have been made without the null provision.
According to the 1984 Revision Comments, the above article "directs the court to consider the totality of the parties' intentions before annulling the agreement when only a portion of it is null." LSA-C.C. art. 2034, 1984 Revision Comment. Accordingly, like other questions of contract interpretation, whether an agreement is severable is controlled generally by the intent of the parties as expressed by the contract terms and/or language. Hudson v. City of Bossier City, 05-0351, p. 20 (La.4/17/06), 930 So.2d 881, 894. See also Lebouef v. Liner, 396 So.2d 376, 378 (La.App. 1 Cir. 1981).
In its judgment, the trial court found the provisions of Paragraph 6 concerning interim and permanent spousal support "inextricably bound" and struck the entire paragraph. The judgment also included the reservation of Mrs. Barber's right to seek reimbursement. Except for these exclusions, the matrimonial agreement was held to be valid and enforceable as an authentic act.
While we agree with the trial court that the waiver of interim spousal support is against public policy and must be stricken from the agreement, we cannot say that the entire paragraph must be stricken. Paragraph 6 of the matrimonial agreement specifically provides:
The appearers do further hereby expressly waive one from the other any and all entitlement to interim spousal support, final spousal support, or any support payments of whatsoever kind, character or nature, each of said appearers declaring that they are not and would not be entitled to any such alimony or support in the event of a dissolution of the marriage.
Although the agreement regarding interim spousal support and final spousal support are in the same sentence, they are two distinct provisions with different interests and different requirements. It does not appear that the portion of the sentence regarding interim support is so entangled or tied up with the rest of the sentence that it cannot be deleted without striking the entire paragraph.[5] Accordingly, despite the difficult circumstances presented, we must reverse in part the judgment of the trial court insofar as it struck the entire paragraph regarding spousal support, and we amend the judgment to strike only that portion of Paragraph 6 as it concerns interim spousal support.
Mr. Barber also argues that the trial court erred in ruling that Ms. Barber had not waived her right to seek reimbursement. He asserts that Paragraph 4 of the matrimonial agreement contains a *1051 mutual waiver of the parties' respective rights of reimbursement. Thus, according to Mr. Barber, the inclusion of the reservation in the judgment that contradicted the trial court's written reasons, finding all provisions of the agreement valid except the waiver of support, was error.
Paragraph 4 of the matrimonial agreement provides:
Any increase or improvement of separate property of either appearer, as separate property as set forth in this agreement, arising or made during the marriage, as the result of common labor, expense or industry of the appearers, shall not create any right to a reward in favor of that appearer or the legal representative of that appearer to whom the property, which has been increased or improved, does not belong.
As previously stated, a contract between the parties is the law between them, and the courts are obligated to give legal effect to such contracts according to the true intent of the parties. LSA-C.C. art. 2045; Boh Bros. Const. Co., L.L.C., 08-1793 at p. 4, 9 So.3d at 984. Thus, when the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. LSA-C.C. art. 2046. Also, to determine the meaning of words used in a contract, a court should give them their "generally prevailing meaning." LSA-C.C. art. 2047.
By the plain and clear words of Paragraph 4 of the matrimonial agreement, Mrs. Barber waived her right to reimbursement. Thus, it was error for the trial court to reserve to her those rights.[6]
CONCLUSION
For the above reasons, we reverse in part the December 10, 2008 judgment of the trial court, insofar as it strikes the entire Paragraph 6 of the matrimonial agreement, and amend the judgment to only strike that portion regarding the waiver of any interim spousal support. Further, we reverse that portion of the judgment reserving to Ms. Barber the right to seek reimbursement of contribution to the estate of Mr. Barber, as per law. All costs of this appeal are assessed to Deborah Barber.
REVERSED IN PART, AMENDED IN PART, AND RENDERED.
NOTES
[1] In the rule, it was alleged that Mrs. Barber was suffering from Lou Gerhrig's disease, but it is undisputed that she has multiple sclerosis.
[2] We note that these are the only two assignments of error alleged in this matter. Although Mrs. Barber questions the validity of the matrimonial agreement, she did not appeal nor answer Mr. Barber's appeal. Thus, this issue is not before us, and we are unable to consider same.
[3] See LSA-C.C. art. 7, which provides that "[p]ersons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity."
[4] Louisiana Civil Code article 98, which provides that "[m]arried persons owe each other fidelity, support, and assistance," was enacted by La. Acts 1987, No. 886, § 1 and reproduces the source provision of LSA-C.C. art. 119 (1870) almost verbatim and does not change the law. See LSAC.C. art. 98, 1987 Revision Comment (a). Comment (e) also states that "[t]he spouses' duties under this Article, as a general rule are matters of public order from which they may not derogate by contract."
[5] The term "inextricable" has been is defined as forming a maze or tangle from which it is impossible to get free, and incapable of being disentangled or untied. Webster's New Collegiate Dictionary 590 (1974).
[6] We further note that in its written reasons, the trial court stated that, with the exception of Paragraph 6 regarding spousal support, the prenuptial agreement was an "otherwise lawful agreement" and that "[i]n all other regards, the contract is found to be lawful." Thus, the court clearly found Paragraph 4 to be a lawful provision.
|
32 Cal.2d 430 (1948)
JOHN N. GARRISON, Respondent,
v.
JOHN D. ROURKE, Appellant.
Sac. No. 5956.
Supreme Court of California. In Bank.
Aug. 20, 1948.
Frank E. Carleton for Appellant.
Carr & Kennedy and Laurence J. Kennedy, Jr., for Respondent.
SHENK, J.
J. N. Garrison and John D. Rourke were opposing candidates for the office of Assessor of Trinity County in the November 1946 general election. The official canvass of the returns showed that Garrison received 1,026 votes and Rourke 1,028 votes, whereupon the latter was declared elected. Garrison, as contestant--plaintiff, filed in the superior court a contest of the election and judgment was rendered in his favor. The defendant Rourke prosecutes this appeal.
The first asserted ground for reversal is that the trial court lost jurisdiction to enter judgment because the findings of fact and conclusions of law were not filed within the 10 days after submission as prescribed by section 8556 of the Elections Code.
The contestant filed his statement of contest with the county clerk (Elec. Code, 8530) within 30 days after the declaration of the result of the election ( 8531). A written list of alleged illegal votes was served and filed by each party before trial ( 8532). Within five days after filing of the statement of contest the county clerk notified the superior court that the contest had been filed whereupon the court ordered a special session to be held within the 20-day limitation of section 8550. The special session commenced January 14, 1947, and consumed five days. At the close of the hearing the court ordered briefs to be presented and upon the filing thereof the case to be deemed submitted. The last brief was filed on March 10, 1947, within the time allowed by the court. Findings of fact and conclusions of law dated April 16th, 1947, were filed on April 18th, 1947, declaring that the correct legal count for contestant was 1,027, and for the defendant 1,022. Judgment that the contestant was the duly elected assessor of Trinity County ( 8557) was entered the same day. A certificate of election was therefore issued to the contestant ( 8570); the judgment annulled any certificate of election previously issued to the defendant *434 ( 8571); and the contestant entered upon the performance of his duties pending the appeal ( 8575).
Section 8556 of the Elections Code reads: "The court shall continue in special session to hear and determine all issues arising in contested elections. After hearing the proofs and allegations of the parties and within ten days after the submission thereof the court shall file its findings of fact and conclusions of law, and immediately thereafter shall pronounce judgment in the premises, either confirming or annulling and setting aside the election. The judgment shall be entered immediately thereafter."
It is apparent that the court did not continue in special session "to hear and determine" all issues, but directed that the arguments of the parties be submitted on briefs; and did not file its findings and conclusions within 10 days after "submission thereof." The question is whether by this departure from the procedure the court lost jurisdiction to determine the issues and enter judgment.
The provision that the court should continue in special session to hear and determine the issues and file its findings and conclusions within 10 days after submission was added to section 1118 of the Code of Civil Procedure in 1907 (Stats. 1907, p. 643). In 1914, in Bernardo v. Rue, 26 Cal.App. 108 [146 P. 79], involving somewhat similar facts, it was contended that by the failure to file findings of fact and conclusions of law within the 10-day period the trial court lost jurisdiction to render a judgment and that the judgment entered was therefore a nullity and should be reversed. It was held that the sections of the act governing the court's action in the trial of proceedings of this character were directory in the absence of an express provision of the statute declaring them to be mandatory. The court pointed out that while the parties had valuable rights an election contest was not an ordinary adversary proceeding between private parties, but was one in which the public also had a vital interest; that provisions which were evidently intended merely to hasten the work of the court could not be deemed to deprive the parties and the public of their respective rights. The defendant does not question that that case stated the correct construction of the statute in accordance with the rule therein applied. Nor does he question the general rule that when a statute has been judicially construed and as here is reenacted in substantially the same language there is a strong presumption of a legislative intent to adopt that construction (Holmes v. McColgan, *435 17 Cal.2d 426, 430 [110 P.2d 428]; see also cases cited in Pencat v. Terwilliger, 23 Cal.2d 865 at page 871 [147 P.2d 552]). However the defendant calls attention to the reservation in the Bernardo case that the statutory provisions were to be deemed directory "in the absence of an express provision of the statute declaring them to be mandatory." He contends that when the Legislature in 1939 reenacted the same provision as section 8556 of the Elections Code, the strong presumption to adopt the prior judicial construction was conclusively rebutted by the enactment in the same year of section 15 of the same code defining the word "shall," when used in the code to be mandatory and the word "may" to be permissive. Therefore, asserts the defendant, there is here an express provision declaring the mandatory nature of the code provision, with the result contended by him.
[1] Section 5 of Article VI of the Constitution of this state (see Dudley v. Superior Court, 13 Cal.App. 271, 274 [110 P. 146]), and article 3, chapter 2, division 10 ( 8550-8557) of the Elections Code, vest in the superior court jurisdiction to hear and determine election contests, and to confirm or annul a contested election, or to declare that some other person has been elected. The jurisdiction thus vested may not lightly be deemed to have been destroyed. The intent to divest the court of jurisdiction by time requirements is not read into the statute unless that result is expressly provided or otherwise clearly intended. [2a] The consequence or penalty for the failure of the court to file findings of fact and conclusions of law within the designated period was not included in the statute. The defendant does not present a case where such a result ensued in the absence of the express requirement. That it was not to occur unless expressly provided is demonstrated by the fact that when the Legislature wished to indicate that intent it adopted the simple expedient of including an express provision to that effect. (See Code Civ. Proc., 660, limiting the time for passing upon a motion for new trial; Code Civ. Proc., 657, limiting the time when the court may file an order specifying insufficiency of the evidence as a ground for granting new trial.) The case of Thomas v. Driscoll, 42 Cal.App.2d 23 [108 P.2d 43], involved section 657 of the Code of Civil Procedure, and the correct rule is indicated in that decision as follows: A time limitation for the court's action in a matter subject to its determination is not mandatory (regardless of the mandatory nature of the language), unless *436 a consequence or penalty is provided for failure to do the act within the time commanded. (See also In re Shafter-Wasco Irr. Dist., 55 Cal.App.2d 484 [130 P.2d 755].) When McQuillan v. Donahue, 49 Cal. 157 was decided, section 632 of the Code of Civil Procedure limiting the time within which the court "must" file its written decision upon trial of a question of fact, also provided that unless the decision was filed within the prescribed time the action "must" be tried again. But it was concluded that the provision was directory only.
The result of a different conclusion in the present case would be to divest the court of jurisdiction by mere implication. [3] While the courts are subject to reasonable statutory regulation of procedure and other matters, they will maintain their constitutional powers in order effectively to function as a separate department of government. (Lorraine v. McComb, 220 Cal. 753, 756 [32 P.2d 960]; Brydonjack v. State Bar, 208 Cal. 439, 442 [281 P. 1018, 66 A.L.R. 1507].) Consequently an intent to defeat the exercise of the court's jurisdiction will not be supplied by implication. To what extent the Legislature may constitutionally enact regulations affecting procedure which will defeat or interfere with the exercise of jurisdiction or of the judicial power (see Ex parte Harker, 49 Cal. 465; Chinn v. Superior Court, 156 Cal. 478, 480 [105 P. 580]; In re Garner, 179 Cal. 409, 412 [177 P. 162]), is not necessary to determine in the absence, as here, of provisions clearly indicating that intent. [2b] It is sufficient to point to the public interest in and the general legislative intent to maintain the purity of elections and effect the speedy determination of election contests. As pointed out in Bernardo v. Rue, supra (26 Cal.App. at p. 110), the statute affords the basis for a speedy determination of an election contest. But it does not follow that the failure of the parties to invoke those provisions in the trial court could reestablish by consent a jurisdiction that had been destroyed. (See Harrington v. Superior Court, 194 Cal. 185, 188 [228 P. 15].) Furthermore, it is the public interest, not the parties' claims, which is the paramount legislative concern. (Sweeny v. Adams, 141 Cal. 558, 560 [75 P. 182]; Minor v. Kidder, 43 Cal. 229, 236; Bernardo v. Rue, supra, 26 Cal.App. 108, 115.) That interest is to ascertain the will of the people at the polls, fairly, honestly and legally expressed. The outcome of the present election contest is to give the office to the candidate shown to have been legally entitled to it; and while expedition in arriving at a determination of *437 the issues is desirable in accomplishing the objective, speed is not the primary statutory aim but is merely incidental to the main purpose of the law.
Reading the provisions of section 8556 of the Elections Code as invoked by the defendant would therefore lead to the result of defeating the aims and purposes of the statute and of raising serious constitutional questions. As indicated in the recent case of Pulcifer v. County of Alameda, 29 Cal.2d 258, 262 [175 P.2d 1], the legislative intent must be gathered from the statute as a whole, from the nature and character of the act to be done and from the consequences which would follow the doing or not doing of the act at the required time. (See also In re Shafter-Wasco Irr. Dist., supra, 55 Cal.App.2d 484.) [4] By section 5 of the Elections Code the general definition of "shall" given in section 15 governs unless the "provision or the context" otherwise requires. True, neither the provision nor the context literally otherwise requires; and such literal inconsistent requirement would not be a normal expectation. However, as noted, the provisions of the statute negative any intent to divest the court of jurisdiction and in that sense require a meaning different from the definition of section 15. Section 15 codifies the generally accepted meanings of the words "shall" and "may." Section 5 must therefore be deemed to be a codification of the well-known rule that words otherwise generally mandatory or permissive will be given a different meaning when the provisions of the statute, properly construed, require it.
We are thus brought to a consideration of the defendant's contentions concerning the alleged lack of support for the trial court's findings.
[5] The defendant asserts that the statement of contest was insufficient to justify a recount of the ballots. The initial statement was filed within the 30-day period prescribed by section 8531, and included two grounds of contest under section 8511(a) (malconduct of precinct board), one charge under section 8511(d) (illegal votes cast), and two charges under section 8511(e) (errors in the conduct of the election or canvass of the returns sufficient to change the result of the election). Amendments were filed after the expiration of the 30-day period but before the hearing on the defendant's demurrer and motion to strike. At the defendant's request the court permitted argument on the demurrer to the complaint as amended. It is apparently the defendant's contention *438 that the statement, if originally insufficient, could not be assisted by amendments filed after the expiration of the time limitation prescribed for filing the initial statement. Section 8533 requires that a statement shall not be rejected nor the proceedings dismissed for want of form, if the grounds of contest are alleged with such certainty as to advise the defendant of the particular cause for which the election is contested. It has been held that a contestant may not burden the courts with a recount upon a mere general charge of malconduct referable to all the precincts (In re Cryer, 77 Cal.App. 605 [247 P. 252]); and the cure of some deficiencies in this and other respects was no doubt intended by the amendments. The right of amendment in election contests has been recognized, and a similar contention concerning an amendment filed after the 30-day period was rejected in Hannah v. Green, 143 Cal. 19 [76 P. 708], the court stating that the code (now Elec. Code 8533) expressly dispensed with any great particularity, formality or nicety of pleading. (See also Abbott v. Hartley, 143 Cal. 484 [77 P. 410]; Minor v. Kidder, supra, 43 Cal. 229, 237.) There was no error in the ruling on the demurrer and it is not now seriously contended that the statement as amended was insufficient as against a general demurrer. Irregularities if any which might have been subject to special demurrer need not now be considered in view of the hearing on the issues raised by the amended statement and the answer thereto.
Both parties participated in the recount of ballots taken at the trial. Agreement was reached as to all except eight. There are also contentions respecting several claimed illegal votes.
[6] Ballot Exhibit B was stamped with a cross in an apparent attempt to vote for one of the candidates for the office of assessor. The printed line between the squares opposite the names of Rourke and Garrison ran just below the middle of the cross. The cross thus was placed partially in each of the squares opposite the candidates' names. The defendant insists it was properly voted in his favor because the majority of the stamp was above the line and in his square, but the court rejected it on the ground that it was impossible to ascertain which candidate was intended. Section 7050 of the Elections Code provides that a cross partly within and partly without a voting square or space does not invalidate a ballot. The provision cannot be said necessarily to include within the designation a cross partly within and partly without two voting squares. The cross was partly within and partly without *439 each of the voting squares, but obviously it cannot be counted as a vote for each candidate. Whether there was a sufficient portion of the cross in the square opposite defendant's name to count as a vote for him was a question primarily for the trial court. (People v. Town of Sausalito, 106 Cal. 500 [39 P. 937].) The ruling is in accordance with section 7052 of the Elections Code providing that if for any reason it is impossible to determine a voter's choice for any office, his ballot shall not be counted for that office.
[7] Exhibit J: A large blot appears on this ballot in the square opposite the name of the defendant. A similar large blot appears in the "No" square opposite the name of a candidate for the office of Justice of the Supreme Court. When the ballot is folded the blots apparently offset and match. There is no distinguishable stamped cross mark in either blot. There are no other marks in the squares concerning those offices. The ballot has several other blots. The same considerations apply here as to Ballot B, and no error appears in the ruling rejecting the ballot as a vote for the defendant since the trial court could reasonably conclude that any attempted choice was not clear (Elec. Code, 7052), and was not a compliance with the requirements and instruction that the voter indicate his choice by stamping a cross (Elec. Code, 3828).
[8] Exhibit 30: The voter's choice of candidates for all offices was clearly indicated by a stamped cross, but the vote on each of the various propositions was indicated by a pencil check (V). The defendant seeks rejection of the ballot as a vote for the contestant on the ground that the unauthorized method of voting the propositions was a distinguishing mark which invalidated the entire ballot. Section 7054 of the Elections Code provides that no unauthorized mark shall invalidate the ballot unless "it appears that the mark was placed there by the voter for the purpose of identifying the ballot." In Turner v. Wilson, 171 Cal. 600 [154 P. 2], and Sweetser v. Pacheco, 172 Cal. 137 [155 P. 639], it was held that the foregoing provision, first enacted in 1903 by the addition of subdivision 4 to section 1211 of the Political Code, was intended to change the previously existing law which invalidated a ballot having a distinguishing mark. Pursuant to the present law, if the mark itself does not warrant an inference that it was designedly placed by the voter for the purpose of identifying his ballot, and in the absence of other evidence of intent in *440 that regard, the ballot may not be rejected on the ground that it bears a distinguishing mark. The trial court was justified in concluding, in the absence of other evidence, that the pencil marks alone did not indicate an intent to mark the ballot for the purpose of identifying it.
[9] Ballot A-6 showed a vote for the contestant. On the reverse side it was marked "spoiled" in pencil in three places and the signatures of two clerks also appeared. There was nothing on the face of the ballot to indicate that it was spoiled, there was no testimony of the election officers regarding it, it was not among the spoiled ballots but was with the sealed ballots opened at the trial; nor was it cancelled in accordance with the requirements of section 5726 of the Elections Code. The trial court was justified in accepting it as a properly cast ballot. (Morrison v. White, 10 Cal.App.2d 266, 269-270 [52 P.2d 263]; Lester v. Fairbairn, 32 Cal.App.2d 411, 414 [89 P.2d 1091].)
[10] Ballot 32: A stamped cross appeared in the square opposite each candidate's name, with a blot accompanying the cross opposite the contestant's name. This ballot was put aside on the defendant's objection. Later he withdrew his objection on the theory that the cross and blot opposite contestant's name was an offset from a blotted cross in the "Yes" square opposite the name of the candidate for the office of Justice of the Supreme Court. The trial court concluded however that the ballot showed a vote for each candidate and could not be counted for either. The defendant now contends that the vote should have been counted for him. Since there was a clearly distinguishable cross in each square the court was justified in its determination as to this ballot. (Elec. Code, 7052.)
[11] Ballot A-11: In designating his choices on this ballot the voter drew an ink cross with the broad blunt edge of the stamp or other instrument, each line of the cross being drawn diagonally across the entire square from one corner to the opposite but without regularity or uniformity. In some squares the marks were blurred and in others the crosses or parts thereof appeared double. If valid the ballot would have counted as a vote for the defendant. The cross obviously was not made with the stamp provided for the purpose and the trial court rejected the ballot because of the invalid method of marking. There was no error in this ruling. (Lester v. Fairbairn, supra, 32 Cal.App.2d at p. 413; Morrison v. White, *441 supra, 10 Cal.App.2d at p. 270.) As pointed out in the latter case the facts in Evarts v. Weise, 176 Cal. 218 [168 P. 122], relied on by the defendant, are distinguishable because there it did not clearly appear that the mark was not made with the required stamp and the trial court's ruling was upheld on that ground.
[12] Ballot A-32 (absentee ballot): The only mark used on this ballot was a check (V) made with a lead pencil. The ballot was not marked as provided by law. (Elec. Code, 3828, 5930, 5931(c).) The only permitted mark to indicate the voter's choice on absentee ballots is a cross made with a stamp, pen and ink, or indelible pencil. Failure to comply rendered the ballot invalid. (Sweetser v. Pacheco, supra, 172 Cal. 137.) The court was justified in rejecting the ballot which if valid would have counted for the defendant.
[13] Ballot 46: This ballot clearly shows the use of a stamp with a cross impression, except that the impression was smaller and a portion of the lower end of the cross was cut off due either to an imperfection in the rubber stamp or the angle at which the stamp was used. The ballot showed a vote which was counted at the trial for the contestant. The defendant asserts that if Ballot A-11 showing a larger cross was properly rejected, this ballot showing the smaller mark should likewise be rejected. The conclusion does not follow, since there was no evidence to show either on or dehors the face of Ballot 46 that it was not the stamp provided for the purpose. (Evarts v. Weise, supra, 176 Cal. 218.)
[14] The trial court disallowed six votes as illegal. Five of them were for the defendant and one for the contestant. Illegality was found because they were cast by nonresidents of the precincts. The defendant assumes to charge the conceded residential discrepancies to the mistake of the registration officers. The qualifications of electors stated in article II, section 1, of the state Constitution include residence in the election precinct. By section 70 of the Elections Code only qualified electors are entitled to exercise the voting franchise. The record clearly establishes for whom the disqualified persons cast their ballots. Registration does not add to or alter the qualifications fixed by the Constitution. (Minges v. Board of Trustees, 27 Cal.App. 15, 16-17 [148 P. 816].) The trial court's ruling on these votes was therefore correct. (Russell v. McDowell, 83 Cal. 70 [23 P. 183]; Bush v. Head, 154 Cal. 277, 281-282 [97 P. 512]; Elec. Code, 8511, subd. (d).) *442
[15] The trial court refused to disallow the vote of another similarly disqualified voter, one Wesella, who testified that he voted for contestant, because he was impeached by pretrial inconsistent declarations and other testimony. The court's action was justified by the impeachment of the witness. (Smith v. Thomas, 121 Cal. 533 [54 P. 71].) The defendant asserts that the ruling was erroneous because the court deducted the vote for the contestant cast by the voter's wife, also disqualified; but we may perhaps observe as a matter of common knowledge that the choice indicated by one spouse is not conclusive as to the vote cast by the other.
[16] Two additional claimed disqualified persons, the Eslicks, husband and wife, who voted for contestant, were not on the defendant's list furnished to the contestant before trial and for that reason the court ruled that it could not find illegality. The defendant asserts error because their names were originally on the contestant's list, although later withdrawn. The court was apparently of the opinion that a name which was not on the defendant's list of illegal votes could not be contested by him. In Norwood v. Kenfield, 30 Cal. 393, 394, it was held that the receipt of evidence of alleged illegality of a vote for contestant was error where the voter's name was not on the list furnished before trial by the defendant to the contestant, citing the provision now included in section 8532 of the Elections Code. It was observed that that provision does not expressly require the defendant to furnish the contestant with such a list, but that where the defendant relies on illegal votes he thereby becomes a counter-contestant and every reason why the contestant is required to furnish such a list applies with equal force to the defendant. It was concluded that the intent was to require each party to give to the other notice of the votes which he intends to assail as illegal, that any other reading would result in a distinction where there ought to be none and give to one of the parties an undue advantage over the other. In Smith v. Thomas, 121 Cal. 533 [54 P. 71], the facts were the converse of those on the present record. The contestant attempted to show illegality in a vote not included in the list served by him on the defendant, although the voter's name was on the defendant's list served on the contestant. Arguments similar to those advanced here, including the knowledge of the illegality on the part of the opposing party, were rejected, the court saying that the purpose of the statute requiring notice had nevertheless not been *443 accomplished. Since in the present case the court ruled in compliance with the indicated requirement of the statute, there was no error.
[17] The court invalidated the vote of one Albiez on a finding that after receiving his ballot and before entering the booth he went outside with his ballot in his possession and talked with the defendant, then reentered the polling place and cast his ballot for the defendant. The defendant concedes the facts found but contends that the court should have believed the testimony that there was no conversation as to how the voter should cast his ballot and that they could be seen by the officials through the glass in the door of the polling place. The Albiez vote was illegal because not cast in the manner required by law. (Elec. Code, 5709; Bush v. Head, supra, 154 Cal. at pp. 281-282.) The section requires the voter on receiving his ballot "forthwith, and without leaving the enclosed space," to retire alone to one of the booths. The defendant contends that since all the booths were occupied the voter could not forthwith retire to mark his ballot. There was no showing of compliance with the requirement to retire to a booth, at least as soon as one was available, without leaving the enclosed space. There is no error in the conclusion of invalidity as to this vote.
[18] The court allowed the election officials' challenge to the Bennett husband and wife absentee ballots, which were not included in the official count, on the ground of lack of residence. The defendant claims these ballots should have been received and the votes counted for him. There was evidence that the Bennetts left Trinity County at the outbreak of World War II, and lived and worked in San Francisco since 1942; that they did not vote in Trinity County in the 1942 or 1944 elections; had not occupied a home or dwelling in the county since their removal, but on a few occasions had stopped at hotels for short stays registering from San Francisco. There was not here the evidence of permanent residence with periods of merely temporary sojourn therefrom which was shown in People v. English, 54 Cal.App. 90 [201 P. 145], relied on by the defendant. It cannot be said that the trial court erred in according weight to those elements which, applying the rules for determining residence (Elec. Code, 5651 et seq.), required a ruling adverse to the defendant's contentions.
[19] Finally it is urged that the trial court should have ruled that the polls at Lake Mountain Precinct were not kept *444 open from 7 a. m. to 7 p. m. on the day of the election and that the entire vote of that precinct should be invalidated. This precinct is in a sparsely settled mountain district and the voters, who have long distances to travel, customarily picnicked at the polling place during the noon hour. On this occasion the tables were cleared and the voting materials temporarily set aside on a stand or shelf. The testimony was conflicting as to whether Mr. and Mrs. Little, registered voters entitled to exercise their franchise but who did not do so on that day, appeared during the lunch hour and applied for their ballots. They were seen walking around, but there is evidence which could be believed by the court that they did not make a request to vote, that had they done so their request would have been granted. The polls were not in fact closed and there was evidence that the election materials were available for use. The trial court's finding that the polls were kept open is supported by the evidence.
Other contentions, such as lack of evidence in the record of the official count, do not merit detailed consideration. They are answered by the fact that the court and the parties conducted a recount of the ballots, and in the absence of error in the rulings on the ballots and the claimed illegal votes, there is no ground upon which to base a conclusion that the recount found by the trial court was incorrect.
The foregoing requires an affirmance of the judgment. It is so ordered.
Gibson, C.J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence, J., concurred.
|
89 F.3d 834
NOTICE: 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.Larita Y. JACKSON, Plaintiff-Appellant,v.Shirley S. CHATER, Commissioner of Social Security,Defendant-Appellee.
No. 95-4164.
United States Court of Appeals, Sixth Circuit.
June 12, 1996.
1
Before: MILBURN and SUHRHEINRICH, Circuit Judges; ROSEN, District Judge.*
ORDER
2
Larita Y. Jackson appeals a district court judgment affirming the Commissioner's denial of her application for supplemental security income benefits. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
3
Jackson filed an application for supplemental security income benefits alleging that she suffered from arthritis and pain in the back and right hip. Jackson also stated that due to an automobile accident, her right leg is shorter than her left which requires her to walk with a cane.
4
Following a hearing, an administrative law judge (ALJ) determined that Jackson was not disabled because she could perform her past relevant work. Therefore, the ALJ denied Jackson's application for benefits. The Appeals Council declined to review the ALJ's determination.
5
Jackson then filed a complaint seeking review of the Commissioner's decision. The parties consented to have the case reviewed by a magistrate judge. The magistrate judge affirmed the denial of benefits and granted judgment to the Commissioner.
6
Upon review, we conclude that substantial evidence exists to support the Commissioner's decision. Brainard v. Secretary of Health and Human Servs., 889 F.2d 679, 681 (6th Cir.1989) (per curiam).
7
Jackson's pro se brief is construed as arguing that the medical evidence establishes that she has been disabled since 1974. However, the opinions of numerous treating physicians indicate that Jackson's impairments are minimal. Furthermore, one treating physician specifically stated that Jackson could perform sedentary work. As Jackson's previous positions were sedentary in nature, she has failed to show that she is unable to perform her previous type of work. See Studaway v. Secretary of Health and Human Servs., 815 F.2d 1074, 1076 (6th Cir.1987).
8
Finally, Jackson has submitted numerous medical documents which were not presented to the Commissioner. Because this court's review is limited to the question of whether there is substantial evidence to support the Commissioner's decision, see Brainard, 889 F.2d at 681, this evidence is not reviewable by the court.
9
Accordingly, we affirm the district court's judgment. Rule 9(b)(3), Rules of the Sixth Circuit.
*
The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by designation
|
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
PETER E. DEUTSCH, )
)
Plaintiff, )
v. ) C.A. No. 8014-VCL
)
ZST DIGITAL NETWORKS, INC., )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: March 26, 2018
Date Decided: June 14, 2018
Theodore A. Kittila, James G. McMillan, III, HALLORAN FARKAS + KITTILA LLP,
Wilmington, Delaware; David Graff, ROBINS KAPLAN LLP, New York, New York;
Attorneys for Receiver Robert W. Seiden.
David L. Finger, FINGER & SLANINA, LLC, Wilmington, Delaware; Attorney for Non-
parties Bo Zhong and Lin Zhong.
LASTER, V.C.
ZST Digital Networks, Inc. (the “Company”) is a Delaware corporation which,
through three intermediate holding companies, owns an operating company that does
business in China and is organized under Chinese law. The Company raised capital by
accessing the public markets in the United States. It has since delisted.
Peter Deutsch owns a significant block of stock in the Company. Deutsch sought
books and records from the Company. The Company failed to appear, defaulted, and
judgment was entered against it.
Deutsch sought to enforce the default judgment. The Company failed to comply.
Deutsch demonstrated that the Company was in contempt of this court’s order.
As a coercive sanction, I appointed a receiver with the authority to cause the
Company to comply with the judgment. The receiver has spent five years and invested
significant resources attempting to cause the Company to comply. The receiver has
obtained additional orders from this court imposing further sanctions for contempt. The
receiver also has secured the assistance of other courts in multiple domestic and
international jurisdictions.
After other coercive sanctions proved ineffective, the receiver moved for the
issuance of bench warrants calling for the arrest of two senior officers of the Company.
Both are Chinese nationals, but they frequently visit the United States. Because of
arrangements that the United States government has made for the enforcement of arrest
warrants, issuing the bench warrants should result in the senior officers being arrested when
next they visit the United States.
1
The senior officers previously ignored this action. Faced with the current motion,
they hastily appeared and raised a slew of objections, which this decision rejects. This
decision nevertheless holds that the facts of the case call for additional proceedings before
issuing arrest warrants.
The receiver shall submit a form of order that specifically directs the two officers to
take or cause the Company to take the actions which the Company has failed to take to
date. The order shall require compliance within sixty days. If the officers fail to comply
with that order, then the receiver may seek the issuance of bench warrants as a coercive
sanction for contempt.
I. FACTUAL BACKGROUND
The Company defaulted in this action, with the consequence that the court “accepts
as true all the averments in the complaint, as a matter of law.”1 Other facts are drawn from
prior rulings in this case, the receiver’s periodic reports to the court, the Company’s public
filings, the current motion for contempt, and documents submitted in connection with the
motion. Because the Company and its principals have steadfastly ignored this proceeding,
the court has not yet conducted an evidentiary hearing with the benefit of adversarial
presentations. The description of the factual background in this decision, therefore, does
1
Whitwell v. Archmere Acad., Inc., 2008 WL 1735370, at *5 (Del. Super. Apr. 16,
2008); accord Campbell v. Robinson, 2007 WL 1765558, at *3 (Del. Super. June 19, 2007)
(“Upon entering default judgment, the Court accepted as true all well-pleaded allegations
in Plaintiffs’ complaint.”); Carlton Invs. v. TLC Beatrice Int’l Hldgs., Inc., 1996 WL
426501, at *1 (Del. Ch. July 24, 1996) (Allen, C.) (“The effect of a default is simply to
admit all of the well-pleaded allegations of the complaint.”).
2
not represent formal factual findings. It rather represents how the record appears at this
stage.
A. The Holding Company Structure
The Company is the ultimate parent entity in a holding company structure. Through
its subsidiaries, the Company is “principally engaged in supplying digital and optical
network equipment to cable systems operators in the Henan Province of China.”2 Bo Zhong
is the Chairman of the Board and Chief Executive Officer of the Company. His son, Lin
Zhong, is a director and Chief Financial Officer of the Company.3
The Zhongs used the Company as a vehicle for accessing the U.S. capital markets.
In October 2009, the Zhongs and the Company completed an underwritten, all-secondary
offering and listed the Company’s shares on the NASDAQ Global Market.4 The offering
raised approximately $29,976,960. After the offering, the Zhongs controlled 43.57% of the
Company’s shares.5
2
See ZST Digital Networks, Inc., Prospectus 1 (Oct. 20, 2009) [hereinafter
Prospectus]. This court can take judicial notice of public filings with the SEC. See, e.g.,
DFC Glob. Corp. v. Muirfield Value P’rs, L.P., 172 A.3d 346, 351 n.7 (Del. 2017).
3
The parties and the documents refer inconsistently to the Zhongs, at times placing
their family name first in Chinese fashion (i.e., Zhong Bo and Zhong Lin), and at other
times placing their family name second in Western fashion (i.e., Bo Zhong and Lin Zhong).
The briefs use the latter format, which this decision adopts. Because the Zhongs share a
family name, this decision refers to the father as Bo and the son as Lin. No disrespect is
intended.
4
See generally Prospectus.
5
See Prospectus at 22.
3
The Company’s principal asset is its ownership of 100% of the equity of World
Orient Universal Limited, a corporation organized under the laws of the British Virgin
Islands. World Orient in turn owns 100% of the equity of Global Asia Universal Limited,
also organized under the laws of the British Virgin Islands. Global Asia owns 100% of the
equity of EverFair Technologies, Ltd., a corporation organized under the laws of Hong
Kong. For simplicity, this decision refers to World Orient and Global Asia as the “BVI
Subsidiaries” and to EverFair as the “Hong Kong Subsidiary.”
At the base of the tower is Zhenzhou Shenyang Technology Company Limited, an
entity organized under the laws of the People’s Republic of China and controlled by the
Hong Kong Subsidiary. Directly or through additional subsidiaries of its own, Zhenzhou
Shenyang carries out the Company’s business operations. For simplicity, this decision calls
it the “Operating Company.”
B. The Company Goes Dark.
After its IPO, the Company made a series of regular periodic reports and appeared
to be financially healthy.6 That changed on March 26, 2012, when the Company announced
that its outside auditors had resigned. In their public resignation letter, the auditors stated
that the Company had obstructed their efforts to verify its cash and account balances,
preventing the auditors from satisfactorily completing their audit for fiscal year 2011 and
6
See, e.g., Dkt. 16 Ex. 3 (Company’s Form 10-Q for the quarter ending September
30, 2011, showing over $100 million in assets, only $11.1 in liabilities, and no long-term
indebtedness).
4
forcing them to resign.7 The auditors also stated that they could no longer certify the results
of their audit of the Company’s financial statements for fiscal year 2010.
On April 6, 2012, the Company announced that it was voluntarily delisting its shares
from the NASDAQ. The Company stated that its shares would continue to be available for
over-the-counter trading.8
On May 29, 2012, the Company announced the resignation of Li Zhi Tian, a director
who served on the Audit Committee and the Compensation Committee and who chaired
the Nominating Committee.9
On August 13, 2012, the Company terminated its listing with the United States
Securities and Exchange Commission.10 Following the termination, the Company was no
longer obligated to make periodic filings with the SEC.
C. The Section 220 Action
Deutsch is one of the Company’s largest outside investors. He currently holds
3,931,370 shares of the Company’s common stock.11
7
See Dkt. 16 Ex. 12 (Company’s Form 8-K announcing resignation of the auditors).
8
See Dkt. 16 Ex. 13 (Company press release announcing delisting); see also Dkt.
16 Ex. 14 (Company’s letter to investors seeking to reassure them it was making efforts to
come back into compliance).
9
Compl. ¶¶ 10-12 & Ex. C.
10
Compl. ¶ 13 & Ex. D.
11
Compl. ¶ 7; Dkt. 23 Ex. A.
5
On September 20, 2012, Deutsch sent the Company a demand for books and records
pursuant to Section 220 of the Delaware General Corporation Law (the “DGCL”).12
Deutsch provided a list of information that he sought on an attached schedule.
On October 16, 2012, the Company responded. Acting through its counsel, Pillsbury
Winthrop Shaw Pittman LLP, the Company rejected the demand as technically deficient
and demanded that Deutsch conduct any inspection in China.13
On October 18, 2012, Deutsch provided a revised demand that addressed the
technical objections. He requested that any inspection occur in New York or Delaware.14
On November 2, 2012, Pillsbury Winthrop relayed a letter from the Company reiterating
that any inspection must take place in China.15
On November 7, 2012, Deutsch filed this action and moved for an expedited
schedule. A telephonic scheduling hearing was set for November 16. Pillsbury Winthrop
declined to appear, conveniently asserting that although the firm had represented the
Company in responding to the Section 220 demand, the firm had not been retained to
represent the Company to handle the ensuing Section 220 proceeding.16 A lawyer with the
12
Compl. ¶ 16 & Ex. E.
13
Compl. ¶ 19 & Ex. F.
14
Compl. ¶ 20 & Ex. G.
15
Compl. ¶ 21 & Ex. H.
16
Dkt. 14 at 4-5 (hearing transcript).
6
Delaware law firm of Bayard, P.A. joined the conference but stressed on several occasions
that he had not yet been retained by the Company. 17
I established an expedited schedule consistent with the summary nature of the
proceeding. To facilitate a prompt disposition of the action, I ordered the Company to
answer the complaint by November 21, 2012.18 The Company did not file an answer by
this deadline.
On November 26, 2012, Deutsch moved for entry of default judgment.19 When the
Company did not make any effort to appear or respond to the motion, I held that the
Company had defaulted and entered default judgment.20
The default judgment granted Deutsch the right to inspect the books and records he
sought. It also awarded Deutsch his attorneys’ fees and costs.
D. The Appointment Of The Receiver
The Company made no effort to comply with the default judgment. On January 25,
2013, Deutsch moved to hold the Company in contempt.21 By order dated January 31, I
required the Company to show cause why it should not be held in contempt and set March
17
See id. at 3.
18
See Dkt. 7.
19
Dkt. 10.
20
Dkt. 14.
21
Dkt. 16.
7
18 as the deadline for the Company to file a response.22 The Company did not file a
response. Accordingly, by order dated March 20, I held that the Company had violated the
default judgment and was in contempt.23
The order finding the Company in contempt awarded Deutsch the relief he had
requested in his motion. That relief included (i) the attorneys’ fees and costs incurred
prosecuting the contempt claim, (ii) an option to put his shares to the Company at a price
of $8.21 (the “Put Right”), and (iii) the appointment of a receiver pursuant to Section 322
of the DGCL “for the purpose of enforcing the Company’s compliance with the Court’s
orders.”24
On March 25, 2013, Deutsch exercised the Put Right.25 He also submitted a form of
order to appoint Robert W. Seiden as the receiver. I entered the order on March 28.26 The
order empowered the receiver to “take all actions he deems appropriate to obtain [the
22
Dkt. 18.
23
Dkt. 22.
24
Id. ¶ 4; see 8 Del. C. § 322 (“Whenever any corporation shall refuse, fail or neglect
to obey any order or decree of any court of this State within the time fixed by the court for
its observance, such refusal, failure or neglect shall be a sufficient ground for the
appointment of a receiver of the corporation by the Court of Chancery.”).
25
Dkt. 23 Ex. A.
26
Dkt. 24.
8
Company’s] compliance with” the default judgment, the orders entered to date, and “such
other and further orders as the Court may enter in this action.”27
The order granted the receiver broad powers for purposes of compelling
compliance. Paragraph 3 of the order stated:
The Receiver shall have all powers generally available to a receiver
appointed pursuant to 8 Del. C. § 291, unless any such power would be
inconsistent with a specific provision of this Order, in which case this Order
shall govern. Upon the acceptance of this appointment, the Receiver shall
have full authority and control over the property and/or assets of the
Company, of whatever kind and wherever located, in the United States of
America, the People’s Republic of China or elsewhere. This includes,
without limitation, authority to seize, deal in or dispose of any property of
the Company. The Receiver shall have full and unrestricted access to all
books and records of the Company, in whatever mode maintained and
wherever located, in the United States of America, the People’s Republic of
China or elsewhere. The Receiver may assert sole control over any present
bank or other accounts of the Company and/or establish signature authority
over such accounts as the Receiver deems appropriate. The Receiver shall
have the power to commence, continue, join in, and/or control any action,
suit or proceeding, of any kind or nature, in the name of the Company or
otherwise, including without limitation proceedings to prevent or avoid
transactions of any kind or nature that may hinder the Company’s compliance
with this Court’s orders. The Receiver is authorized, in his sole discretion, to
enlist the help of the employees or agents of the Company. The directors,
officers, employees, and agents of the Company shall cooperate with the
Receiver in the performance of his duties. The Receiver is authorized, in his
sole discretion, to enlist the help of agents, employees or representatives of
the governments of the United States of America, the People’s Republic of
China, or any other nation, or of any regional or local governments therein,
or of any other regulatory body. The Receiver shall have the authority, but
shall not be required, to petition this Court for instructions at any time or
from time to time.28
27
Id. ¶ 3.
28
Id.
9
Paragraph 6 authorized the receiver “to act through and in the name of the Company to
carry out his duties.”29 The same paragraph authorized the receiver “to execute and deliver
(or cause to be executed and delivered) any document in the name of the Company,
including but not limited to contracts, deeds, other documents of title, and regulatory,
administrative and governmental filings.”30
The order also instructed the Company’s officers and directors to cooperate with the
receiver’s efforts. Paragraph 8 stated:
The appointment of the Receiver hereunder is binding upon the directors,
officers, employees, agents and stockholders of the Company, who shall
cooperate with the Receiver in the performance of his duties. Neither the
Company, nor [any] person acting or purporting to act on behalf of the
Company, nor any director, officer, employee, agent, stockholder or creditor
of the Company shall institute any proceeding in any forum other than this
Court challenging any action, recommendation or decision by the Receiver.31
Under this paragraph, the Zhongs are obligated to cooperate with the receiver.
E. The Receiver Takes Control Of The BVI And Hong Kong Subsidiaries
Using his authority, the receiver petitioned the United States District Court for the
Southern District of New York for the issuance of orders authorizing the receiver to seize
books and records held by the Company’s former CFO, its investor relations firm, and its
29
Id. ¶ 6 (the “Authority Paragraph”).
30
Id.
31
Id. ¶ 8 (the “Cooperation Paragraph”).
10
accountants. On April 16, 2013, the federal court issued the orders, and the receiver
obtained the documents.32
The receiver next began the difficult process of exercising control over the BVI
Subsidiaries, the Hong Kong Subsidiary, and the Operating Company. The boards of
directors of the BVI Subsidiaries resisted, necessitating efforts to replace those individuals
with directors who would cooperate with the receiver. To facilitate these efforts, the
receiver sought an order confirming his authority to vote the shares of the Company’s direct
and indirect subsidiaries, including to effectuate changes to their respective boards of
directors. By order dated April 19, 2013, I confirmed that the receiver had this authority.33
Exercising his authority, the receiver replaced the directors of the BVI Subsidiaries
and sought an order from a British Virgin Islands court confirming the validity of his
actions.34 On May 31, 2013, Bo filed a lawsuit in the same court contesting the receiver’s
actions.35 The British Virgin Islands court rejected Bo’s efforts, and on July 25, the Eastern
Caribbean Supreme Court dismissed his challenge.36
32
See Dkt. 34 at 3.
33
Dkt. 31.
34
Dkt. 194 ¶ 3. This docket item contains an Affidavit of Court-Appointed Receiver
Robert W. Seiden, Esq. in Support of Motion for Contempt, cited hereafter as “Seiden Aff.”
35
Dkt. 47 at 4; see also Seiden Aff. ¶ 3.
36
Dkt. 73 Ex. A.
11
The receiver next caused the second-tier BVI Subsidiary to exercise its voting power
as the sole stockholder of the Hong Kong Subsidiary to remove Xue Na, the sole director
of the Hong Kong Subsidiary, and appoint new directors. Na refused to recognize the
legitimacy of these actions. To confirm their validity, the receiver caused the Hong Kong
Subsidiary to convene an extraordinary general meeting at which Na was removed and new
directors appointed.37
F. Na’s Attempt At Intervention
On August 14, 2013, Na moved to intervene in this action in her individual capacity
as a stockholder of the Company. She sought to modify the orders holding the Company
in contempt and appointing the receiver. She argued that she had standing as a stockholder
to take these steps because the receiver’s actions were harming her. 38 Duane Morris LLP
represented Na. At the time, Duane Morris was serving as counsel to the Company in
several pending matters in other jurisdictions.
Deutsch and the receiver opposed Na’s motion. They portrayed the motion as a
thinly veiled attempt by the Zhongs to defend the action by proxy after permitting the
Company to default. They argued that the motion should be denied and conditions imposed
on the appearance of any stockholder who sought to represent the Company.39
37
Dkt. 40 at 5-6; Seiden Aff. ¶ 4.
38
Dkt. 60.
39
Dkt. 64.
12
A hearing on Na’s motion was held on August 23, 2013. I ruled that the Company,
not Na, was the proper party to seek the relief that Na requested and that Na had no standing
to intervene in her capacity as a stockholder. I granted the Company two weeks in which
to appear if it wished to seek the relief that Na had requested. I also held that the Company
should have to satisfy conditions before being able to set aside the default judgment and
litigate the case on the merits, such as paying the expenses that Deutsch and the receiver
had incurred. Rather than imposing conditions unilaterally, I instructed the parties to confer
on appropriate conditions under which the default judgment would be set aside.40
On September 6, 2013, Duane Morris entered an appearance on behalf of the
Company,41 but the parties were unable to agree on an appropriate set of conditions. 42 On
September 23, I held a status conference.43 Afterwards, the parties engaged in extensive
efforts to reach an amicable resolution that included teleconferences and in-person
meetings,44 but they could not reach agreement.45
40
Dkt. 81 at 26-27, 37-39 (transcript).
41
Dkt. 77.
42
Dkt. 83.
43
Dkt. 87.
44
See Dkts. 88, 91.
45
Dkt. 93.
13
On November 12, 2013, I entered an Order Establishing Conditions for Defendant’s
Post-Default Judgment Participation in this Action (the “Conditions Order”).46 It provided
that before the Company or any of its affiliates, including Na, Bo, or the Company’s other
directors or officers, could appear and participate in this action, the Company would have
to:
“[P]rovide [Deutsch] and [the] Receiver with (i) unaudited financial
statements (i.e., balance sheets and income statements) for the quarter
ended September 30, 2013 and (ii) audited financial statements for the
year ended December 31, 2012. On a continuing basis, [the Company]
shall provide (i) unaudited quarterly and annual financial statements
within ten calendar days following the end of each such reporting
period and (ii) audited annual financial statements within a reasonable
period of time following the end of each reporting year.”47
“[P]ay to the Receiver the sum of $2,020,000, which sum
approximates the amount of fees and expenses incurred by the
Receiver through October 20, 2013, plus interest from that date until
the date of payment, calculated at the legal rate compounded
quarterly. In the alternative, [the Company] shall post with the
Register in Chancery a bond with surety in the amount of $3 million,
in a form satisfactory to the Court, and [the Company] shall make
interim payments to the Receiver of $200,000 per month until such
time as all fees and expenses then due and outstanding are paid in full.
If [the Company] has posted a bond, then periodically but not more
frequently, [the Company] may apply to reduce the amount of the
bond by the amount paid.”48
“For the purpose of providing security for [the Company’s]
outstanding debt to [Deutsch] pursuant to the [Put Right] . . . post with
46
Dkt. 98.
47
Id. ¶ 2.
48
Id. ¶ 3.
14
the Court a bond with surety, in a form satisfactory to the Court, in
the amount of $5 million.”49
The Conditions Order gave the Company until November 29, 2013 to enter an appearance
in compliance with its terms. After that, the Company would be deemed to “again have
waived voluntarily its right to appear and participate in this action . . . [and] be deemed a
non-party for purposes of service and access to documents filed with the Court.” 50 The
Company did not enter an appearance.
G. Efforts To Sell The Operating Company
After the parties’ negotiations failed and the Company did not appear, the receiver
decided to try to sell the Hong Kong Subsidiary. In December 2013, he engaged Aegis
Capital Corporation to act as financial advisor in connection with the sale.51
On December 17, 2013, the receiver moved for the entry of an order establishing
procedures to govern the sale process.52 No one opposed the motion. I held a hearing at
which no one appeared to object. By order dated January 16, 2014, I approved the proposed
sale process.53
49
Id. ¶ 4.
50
Id. ¶ 5.
51
Seiden Aff. ¶ 7; see also Dkt. 129 ¶ 5 (the “Gazdak Aff.”).
52
Dkt. 104.
53
Dkt. 117.
15
The receiver carried out a sale process in accordance with the order. His advisors
sent teasers to over forty potential bidders.54 Five potential bidders expressed interest,
entered into nondisclosure agreements, and conducted diligence.55 One bidder submitted a
letter of intent offering to acquire the Hong Kong Subsidiary for $15 million, subject to
due diligence and other conditions.56 One condition required negotiations with Bo, Lin,
and other members of the Operating Company’s management team.57
In violation of the Cooperation Paragraph in the order appointing the receiver, Bo,
Lin, and the management team did not cooperate with the receiver’s efforts. They refused
to grant any physical access to the Operating Company’s facility or to provide the bidder
with additional financial information.58 In the face of this resistance, the potential buyer
withdrew.
Undeterred, the receiver engaged Business Development Asia (HK) Ltd., a financial
advisor that specializes in cross-border transactions involving Asian assets. With the
assistance of the new firm, the receiver conducted a new sale process.59 This time,
54
Gazdak Aff. ¶¶ 10-11.
55
Id. ¶ 12.
56
Id. ¶ 14.
57
Id. ¶¶ 16-17.
58
Seiden Aff. ¶ 7; see also Dkt. 137.
59
See Dkt. 147 at 2 & Ex. A.
16
approximately a dozen parties expressed interest.60 They too wanted current financial
information and cooperation from management.61 Again in violation of the Cooperation
Paragraph, Bo, Lin, and the management team again did not cooperate with the receiver’s
efforts.
In October 2014, the receiver and Bo met to discuss settlement. Although they did
not reach agreement, the receiver agreed to pause any enforcement efforts pending another
meeting in February 2015.62 That meeting failed to produce an agreement.63
H. Transfers Of Company Assets
On June 23, 2015, the Hong Kong Subsidiary passed a resolution (i) removing Bo
as a director and the legal representative of the Operating Company and replacing him with
the receiver’s nominee and (ii) ordering Bo to surrender the Operating Company’s
registration documents and “chops.”64 Bo responded by transferring real estate and other
assets worth approximately $3 million from the Company to Wilke Technology Co. Ltd.,
a company controlled by Lin.65
60
Dkt. 150 at 2.
61
Id.; Dkt. 153 at 2
62
Dkt. 155 at 2.
63
See Dkt. 166.
64
Seiden Aff. ¶ 9. A company’s “chops” are the Chinese equivalent of a corporate
seal, but have greater significance as a source of legal authority under Chinese law.
65
Id.
17
The receiver sued Bo in China over the transfers.66 On October 27, 2015, the
Chinese court dismissed the lawsuit for failing to comply with certain technical
requirements.67 The dismissal was affirmed in February 2016.68
In July 2016, the receiver and Bo held a face-to-face meeting in China. After a full
day of negotiations, the parties reached an agreement in principle on the terms for
settlement. But once the receiver returned to the United States, Bo reneged.69
After the failed negotiations in the summer of 2016, the receiver spent over a year
attempting to apply pressure on Bo through diplomatic channels.70 Those efforts also
failed.
I. The Contempt Motion
On January 11, 2018, the receiver moved for a Rule to Show Cause why Bo and Lin
should not be held in contempt for failing to cooperate with the receiver. By order dated
January 19, I entered an order to show cause. It stated:
1. A hearing (the “Hearing”) shall be held on March 26, 2018 at 2:00
p.m. (Eastern) before Vice Chancellor J. Travis Laster, Court of
Chancery of the State of Delaware, 500 North King Street,
Wilmington, Delaware 19801, at which time Mr. Bo Zhong and Mr.
Lin Zhong shall appear and show cause as to why they should not be
held in civil and criminal contempt for this Court’s orders pursuant to
66
Dkt. 173.
67
Dkt. 176.
68
Dkt. 179 at 2.
69
Dkt. 182.
70
See Dkts. 185, 188.
18
Court of Chancery Rule 70(b) and Rule 71, and at which time the
Court may consider such other and further relief as the Court deems
appropriate and enter an order of civil and criminal contempt;
2. Mr. Bo Zhong and Mr. Lin Zhong shall submit any papers in response
to the Receiver’s motion for an order of civil and criminal contempt
not less than 7 days before the Hearing; and
3. The Receiver shall forward a copy of this order and the pleadings
related to the motion to the last known address for [] Mr. Bo Zhong
and Mr. Lin Zhong, and shall certify to the Court the manner in which
such notice has been given.71
The receiver delivered the order and copies of his filings to Bo via email, text
message, and Federal Express.72 Bo’s assistant confirmed that he had received the
documents and had forwarded them to Bo.73 In several communications, Bo told the
receiver that he could not travel abroad to attend the hearing.74 Through his assistant, Bo
subsequently asked the receiver to postpone the hearing.75
71
Dkt. 199 ¶¶ 1-3. The Order to Show Cause was granted as proposed by the
Receiver, with a modification to add the date and time of the hearing. This text shows the
Order to Show Cause as modified.
72
See Dkt. 205 ¶¶ 3-14. This docket item contains an Affidavit of Zhenling Zhang
in Support of Reply Brief on Motion for Rule to Show Cause, cited hereafter as “Zhang
Aff.”
73
Id. ¶ 5 & Ex. A.
74
Zhang Aff. ¶¶ 7-9.
75
Id. ¶ 13.
19
On March 19, 2018, the last possible day to respond, counsel entered a limited
appearance on behalf of the Zhongs. Counsel filed a ten-page opposition advancing various
reasons why the Zhongs could not be held in contempt.
II. LEGAL ANALYSIS
The receiver seeks an order holding the Zhongs in contempt and the issuance of
bench warrants to arrest the Zhongs as a coercive sanction to compel them to comply with
this court’s orders. Courts have inherent authority to impose contempt sanctions for
violations of their orders.76 The power “is essential to the administration of justice.”77 Court
of Chancery Rule 70(a) codifies this court’s inherent authority to enter contempt sanctions.
The rule recognizes that the court may “adjudge [a] party in contempt” if the party “fails
to comply within the time specified” with “a judgment direct[ing] a party to . . . perform
any . . . specific act.”78
The Zhongs have raised a series of technical and procedural objections to the
receiver’s motion. This decision rejects each of those objections. It nevertheless concludes
that it is premature to issue bench warrants at this time and that the Zhongs will be given
one final chance to comply with this court’s orders.
76
DiSabatino v. Salicete, 671 A.3d 1344, 1348 (Del. 1996) (“Courts have ‘an
inherent contempt authority, . . . as a power necessary to the exercise of all others.’”
(quoting United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994))).
77
Id. (quoting Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 795
(1987)).
78
Ct. Ch. R. 70(a).
20
A. Satisfaction Of The Conditions Order
As a threshold matter, the receiver contends that the Zhongs cannot appear or make
any submissions without first satisfying the requirements imposed on the Company in the
Conditions Order. The receiver argues that the Zhongs’ filings should be stricken on that
basis. The Zhongs counter with the bold assertion that the Conditions Order violates the
Delaware Constitution and the Constitution of the United States of America.
Court of Chancery Rule 60(b) authorizes the court to vacate a default judgment
“upon such terms as are just.”79 As Chancellor Chandler noted while writing as a Judge on
the Delaware Superior Court, the power to impose conditions before vacating a default
judgment enables a court to protect a plaintiff by, among other things, “requiring the
defendant to post a bond for the amount of the judgment.”80 Although this court has rarely
exercised this power, federal courts have analyzed frequently the analogous Federal Rule
of Civil Procedure.81 Federal decisions hold that “[t]he imposition of conditions . . . can be
used to rectify any prejudice suffered by the nondefaulting party as a result of the default
79
Ct. Ch. R. 60(b).
80
Canton Inn, Inc. v. Sec. Ins. Co., 1986 WL 2258, at *2 (Del. Super. Jan. 31, 1986).
81
“Decisions interpreting the Federal Rules of Civil Procedure are usually of great
persuasive weight in the construction of parallel Delaware rules; however, such decisions
are not actually binding upon Delaware courts.” Cede & Co. v. Technicolor, Inc., 542 A.2d
1182, 1191 n.11 (Del. 1988) (citation omitted); see also Ross v. Ross, 1994 WL 590494, at
*2 (Del. Oct. 11, 1994) (TABLE) (“Because Rule 60(b) of the Family Court is based on
Rule 60(b) of the Federal Rules of Civil Procedure, the construction of a Federal Rule by
the federal judiciary is given great persuasive weight in the interpretation of a Delaware
counterpart.”).
21
and the subsequent reopening of the litigation.”82 “Accordingly, a number of circuits have
approved of conditioning the vacatur of defaults or default judgments on the posting of
security for payment of all or part of an eventual adjudicated judgment.”83 There is nothing
defective about the Conditions Order, which imposed conceptually similar conditions on
the ability of the Company to appear, vacate the default judgment, and litigate this matter
on the merits.
The receiver’s motion seeks to impose coercive sanctions on Bo and Lin. The
Conditions Order does not restrict their ability to appear and respond to a motion that is
directed at them. It was the Company that defaulted in this action; the Zhongs did not. In
any event, an appropriate respect for due process means that the Zhongs should have an
opportunity to respond to the receiver’s motion without first satisfying the obligations of
the Company. The Zhongs filings will not be stricken, and they will be able to appear and
defend against any further proceedings related to the receiver’s motion for contempt
against them without first satisfying the requirements of the Conditions Order.
82
10A Alan Wright et al., Federal Rules of Civil Procedure § 2700 (4th ed. 2017);
see also Serv. Empls. Int’l Union Nat’l Indus. Pension Fund v. Hamilton Park Health Care
Ctr., Ltd, 304 F.R.D. 65, 71-72 (D.D.C. 2014); Gilmore v. Palestinian Interim Self-Gov’t
Auth., 675 F. Supp. 2d 104, 114 (D.D.C. 2009); Chase Manhattan Bank v. Iridium Africa
Corp., 2004 WL 1588295, at *2 (D. Del. July 8, 2004); Capital Yacht Club v. Vessel
AVIVA, 228 F.R.D. 389, 395 (D.D.C. 2005).
83
Powerserve Int’l, Inc. v. Lavi, 239 F.3d 508, 515 (2d Cir. 2001) (collecting cases).
22
B. The Zhongs’ Non-Party Status
The Zhongs next argue that because they are not formally parties to this case, they
cannot be held in contempt. That is incorrect. An order generally binds not only the named
parties, but also “those identified with them in interest, in ‘privity’ with them, represented
by them or subject to their control.”84 This doctrine ensures that a party cannot nullify or
evade an order “by carrying out prohibited acts through aiders and abettors, although they
were not parties to the original proceeding.”85 The Court of Chancery Rules recognize that
in appropriate circumstances, an order can be enforced against non-parties.86
Under these principles, an order that applies to an entity extends to directors,
officers, and employees of the entity who are acting on behalf of the entity.87 This doctrine
recognizes that
84
Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945).
85
Id.
86
See Ct. Ch. R. 65(d) (recognizing that an order granting an injunction in binding
not only upon the parties but also upon “their officers, agents, servants, employees, and
attorneys, and upon those persons in active concert or participation with them who receive
actual notice of the order by personal service or otherwise”); Ct. Ch. R. 71 (providing that
“when obedience to an order may be lawfully enforced against a person who is not a party,
that person is liable to the same process for enforcing obedience to the order as if that
person were a party”).
87
See Fulk v. Wash. Serv. Assocs., Inc., 2002 WL 1402273, at *11 (Del. Ch. June
21, 2002) (holding that the “officers, employees or agents” of the contemnor “will all be
bound by any injunction directed against the current parties”); Arbitrium (Cayman Is.)
Handels AG v. Johnston, 1997 WL 589030, at *4 (Del. Ch. Sept. 17, 1997) (enforcing
order against individuals “in their capacity as agents of the corporation”); accord Nat’l
Spiritual Assembly of Baha’is of U.S. Under Hereditary Guardianship, Inc. v. Nat’l
Spiritual Assembly of Baha’is of the U.S., Inc., 628 F.3d 837, 847 (7th Cir. 2010)
(“[O]fficers, employees, and other agents of an enjoined party must obey the injunction—
23
[a] command to the corporation is in effect a command to those who are
officially responsible for the conduct of its affairs. If they, apprised of the
writ directed to the corporation, prevent compliance or fail to take
appropriate action within their power for the performance of the corporate
duty, they, no less than the corporation itself, are guilty of disobedience, and
may be punished for contempt.88
Put differently, “[a]n order issued to a corporation is identical to an order issued to its
officers, for incorporeal abstractions act through agents.”89
As a fallback argument, the Zhongs attempt to evade this doctrine through sophistry.
They contend that because this court appointed a receiver with power to act on behalf of
the corporation, and because the Zhongs have been resisting the receiver rather than
colluding with him, they cannot be liable for contempt as agents of the corporation. As the
Zhongs see it, the same order that imposed on them a requirement to cooperate with the
receiver liberated them from having to comply with that obligation because they could no
longer be deemed to be acting on behalf of the Company. In reality, the Zhongs have
continued to exercise actual, real-world control over the Company’s property and have
used that control to resist the authority of the receiver. That is sufficient to make them
subject to a potential finding of contempt.
even though they are not named parties—when they act in their official capacities.”); New
York ex rel. Vacco v. Operation Rescue Nat’l, 80 F.3d 64, 70 (2d Cir. 1996) (“An injunction
issued against a corporation or association binds the agents of that organization to the
extent they are acting on behalf of the organization.”).
88
Wilson v. United States, 221 U.S. 361, 376 (1911).
89
Reich v. Sea Sprite Boat Co., Inc., 50 F.3d 413, 417 (7th Cir. 1995) (Easterbrook,
J.).
24
C. Personal Jurisdiction
The Zhongs also contend that this court lacks personal jurisdiction over them and
therefore cannot hold them in contempt. They point out that a party charged with contempt
“is always at liberty to defend his disregard of the court’s order by showing that the order
was void for lack of jurisdiction.”90 Where, as here, no evidentiary hearing has been held
“the plaintiff bears the burden” of making “a prima facie showing of personal
jurisdiction.”91
The receiver has made the necessary prima facie showing that the Zhongs are
subject to personal jurisdiction under Section 3114 of Title 10 of the Delaware Code.
Section 3114 contemplates a two-pronged analysis. First, the court must analyze whether
Section 3114 “provides a proper statutory basis” for its exercise of personal jurisdiction.92
Second, it must determine “whether the exercise of personal jurisdiction . . . is consistent
with [the party’s] constitutional expectations of due process.”93
Section 3114 provides a proper statutory basis for exercising personal jurisdiction
over the Zhongs. Subsection 3114(a) states:
Every nonresident of this State who after September 1, 1977, accepts election
or appointment as a director . . . of a corporation organized under the laws of
this State . . . shall, by such acceptance . . . , be deemed thereby to have
consented to the appointment of the registered agent of such corporation (or,
90
Mayer v. Mayer, 132 A.2d 617, 621 (Del. 1957).
91
Ryan v. Gifford, 935 A.2d 258, 265 (Del. Ch. 2007).
92
Hazout v. Tsang Mun Ting, 134 A.3d 274, 292 (Del. 2016).
93
Id.
25
if there is none, the Secretary of State) as an agent upon whom service of
process may be made in all civil actions or proceedings brought in this State,
by or on behalf of, or against such corporation, in which such director, trustee
or member is a necessary or proper party, or in any action or proceeding
against such director, trustee or member for violation of a duty in such
capacity, whether or not the person continues to serve as such director, trustee
or member at the time suit is commenced. Such acceptance or service as such
director, trustee or member shall be a signification of the consent of such
director, trustee or member that any process when so served shall be of the
same legal force and validity as of served upon such director, trustee or
member within this State and such appointment of the registered agent (or, if
there is none, the Secretary of State) shall be irrevocable.94
Subsection 3114(b) provides analogous jurisdictional authority for officers of the entity.
As the Delaware Supreme Court has explained, Section 3114 permits this court to
exercise personal jurisdiction when an officer or director of a corporation “(i) is a
‘necessary or proper party’ to an action against the corporation; or (ii) violated a statutory
or fiduciary duty in his capacity as a director and officer.”95
The Zhongs are “proper” parties for purposes of the contempt proceedings. A proper
party is one “who may be joined in a case for reasons of judicial economy but whose
presence is not essential to the proceeding.”96 If the Company had complied with this
court’s orders, then contempt proceedings against the Zhongs would not be necessary. At
this point, because the Company has persisted in failing to comply with this court’s orders,
it is proper for the court to consider contempt proceedings against the Zhongs in their
94
10 Del. C. § 3114(a).
95
Hazout, 134 A.3d at 280.
96
Party, Black’s Law Dictionary (10th ed. 2014); see also Hazout, 134 A.3d at 289
n.56 (citing definition).
26
capacities as Company representatives. Indeed, exercising jurisdiction over the Zhongs is
arguably necessary for that purpose. The power to assert jurisdiction therefore exists under
Section 3114.
Exercising jurisdiction over the Zhongs comports with constitutional due process.
“The focus of this inquiry is whether [the party] engaged in sufficient ‘minimum contacts’
with Delaware to require it to defend itself in the courts of this State consistent with the
traditional notions of fair play and justice.”97 “Once it has been decided that a defendant
purposefully established minimum contacts with the forum State, these contacts must be
considered in light of other factors to determine whether the assertion of personal
jurisdiction would comport with fair play and substantial justice.”98
In my view, this is not a close call. “By becoming a director and officer of a
Delaware corporation” each of the Zhongs “purposefully availed himself of certain duties
and protections under our law.”99 This action and the potential imposition of contempt
sanctions arises from the Zhongs’ acceptance of those position. The Delaware Supreme
Court explained the implications of these facts when holding that the exercise of personal
97
AeroGlobal Capital Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 440 (Del.
2005) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
98
Sternberg v. O’Neil, 550 A.2d 1105, 1122 (Del. 1988) (citing Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 477 (1985)), abrogated on other grounds by Genuine Parts
Co. v. Cepec, 137 A.3d 123 (Del. 2016).
99
Hazout, 134 A.3d at 292.
27
jurisdiction under Section 3114 comported with due process for purposes of a derivative
action:
The instant litigation seeks to hold the defendants accountable to the
Company for their actions as directors of a Delaware corporation. Their
status as directors and their power to act in that capacity arise exclusively
under the Delaware corporation statutes. The defendants accepted their
directorship with explicit statutory notice, via § 3114, that they could be
haled into the Delaware Courts to answer for alleged breaches of the duties
imposed on them by the very laws which empowers them to act in their
corporate capacities. Moreover, the defendants, by purposefully availing
themselves of the privilege of becoming directors of a Delaware corporation,
have thereby accepted significant benefits and protections under the laws of
this State.100
The same reasoning applies to this case. When they accepted their roles as officers and
directors of a Delaware corporation, the Zhongs were on notice that they could be required
to cause the Company to comply with its obligations under Section 220. It should come as
no surprise that they are now being brought before the Court of Chancery to enforce
compliance. Exercising personal jurisdiction over the Zhongs for purposes of this contempt
proceeding comports with due process.
D. Other Due Process Concerns
Separate and apart from personal jurisdiction, the Zhongs advance a series of
arguments in which they contend that they are being denied due process. Although I believe
that the proceedings to date have satisfied the requirements of due process, this decision
100
Armstrong v. Pomerance, 423 A.2d 174, 176 (Del. 1980) (citations omitted).
28
requires that the receiver take additional steps before the court will hold the Zhongs in
contempt and issue the requested sanctions.
1. The Amount Of Process That Is Due
The amount of process that an alleged contemnor is due depends on whether the
alleged contemnor faces civil or criminal contempt. “[C]ivil contempt sanctions . . . may
be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard.”101
By contrast, “criminal contempt proceedings must meet the State and Federal
Constitutional requirements for the trial and punishment of crimes.”102
“The distinction between criminal and civil contempt is often cloudy at best but
there are commonly used parameters for distinguishing the two.” 103 The fact that a party
faces imprisonment as a potential sanction does not mean that the contempt is necessarily
criminal.104 Rather, the distinction turns on the purpose of the sanction and the means of
purging it. “[W]here the primary purpose is to punish, a contempt proceeding is criminal
101
Bagwell, 512 U.S. at 827; see also DiSabatinno, 671 A.2d at 1349 (adopting
language).
102
DiSabatinno, 671 A.2d at 1349.
103
City of Wilmington v. Gen. Teamsters Local Union 326, 321 A.2d 123, 125 (Del.
1974).
See DiSabattino, 671 A.2d at 1350 (“The sanction of imprisonment can be
104
imposed for either civil or criminal contempt of court.”); see also 10 Del. C. § 370 (“The
Court of Chancery may enforce obedience to its judgments by imprisonment of the body,
or by sequestration of lands.”).
29
in character and, where the primary purpose is to coerce, it is civil.”105 Issuing an arrest
warrant and confining a party falls under the heading of civil contempt if the court
contemplates “confining [the] contemnor indefinitely until he complies with an affirmative
command.”106 “Conversely, a fixed term of imprisonment is punitive and criminal if it is
imposed retrospectively for a past act of disobedience, and cannot be avoided or abated by
subsequent compliance with the court’s order.”107
Here, the receiver expressly seeks a finding of civil contempt and the issuance of
arrest warrants as a coercive sanction to compel compliance. He asks that the court arrest
the Zhongs and hold them in custody only until they cause the Company to comply with
this court’s orders. The receiver identifies five ongoing acts by the Zhongs that he asserts
violate the court’s orders:
Refusing to provide current financial statements of the Company;
Refusing to turn over control of the property and assets of [the
Company] and its direct (and indirect) wholly-owned and controlled
subsidiaries;
Refusing to reconstitute the Board of Directors; . . .
105
Gen. Teamsters Local, 321 A.2d at 125; see also DiSabattino, 671 A.2d at 1349-
50 (“[A] contempt sanction is considered civil if it is remedial, and for the benefit of the
complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the
authority of the court.” (internal quotation marks omitted) (quoting Bagwell, 512 U.S. at
827-28)).
106
DiSabattino, 671 A.2d at 1350 (quoting Bagwell, 512 U.S. at 828).
107
Id.
30
Refusing to surrender the corporate seals and change the legal
representative of the Company[; and] . . .
Divert[ing] the assets of the Company to a new company that resides
outside the control of the Receiver, in an attempt to circumvent this
Court’s orders and the demands of the Receiver.108
Because the requested arrest would only last until the contemptuous conduct ceases, the
receiver seeks only civil contempt. Therefore, due process requires only that the Zhongs
be afforded notice and an opportunity to be heard.
2. Notice
“[P]rior to an action which will affect an interest in life, liberty, or property protected
by the Due Process Clause of the Fourteenth Amendment, a State must provide ‘notice
reasonably calculated, under all circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections.’”109 In the case of
contempt, the notice must inform the alleged contemnor “of the contempt charges and of
the contempt hearing [and] must be explicit.”110 The standard for adequate notice is one of
108
Dkt. 197 at 1-2 (formatting altered).
109
Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795 (1983) (quoting Mullane
v. Cent. Hanover Bank & Tr. Co., 399 U.S. 306, 314 (1950)).
110
Little v. Kern Cty. Superior Court, 294 F.3d 1075, 1081 (9th Cir. 2002).
31
reasonableness.111 “Adequate notice typically takes the form of a show-cause order and a
notice of hearing identifying each litigant who might be held in contempt.”112
In my view, the Order to Show Cause already provided adequate notice to the
Zhongs to satisfy due process. It identified the Zhongs as the alleged contemnors and
identified the time and place of the hearing. The receiver provided the Zhongs with the
Order to Show Cause and his supporting brief, which identified all of the alleged acts of
contempt.
Nonetheless, the circumstances warrant taking an additional step. This proceeding
is unusual because the receiver seeks to hold the Zhongs in contempt of orders which do
not identify the Zhongs by name, and which impose broad mandates rather than specific
demands. For example, the receiver asserts that the Zhongs have violated the Authority
Paragraph, which gives the receiver authority over the Company’s books, records, and
111
See Taylor v. Hayes, 418 U.S. 488, 498-99 (1974) (explaining that the alleged
contemnor is entitled to “reasonable notice of the specific charges”).
112
Waste Mgmt. of Wash., Inc. v. Kattler, 776 F.3d 336, 340 (5th Cir. 2015). Due
process also requires that the notice be served using means “such as one desirous of actually
informing the absentee might reasonably adopt to accomplish it.” Mullane, 462 U.S. at
314-15. The “amenities of original process need not be followed.” 11A Alan Wright et al.,
Federal Rules of Civil Procedure § 2956 (3d ed. 2018). Notice can be provided “by
personal service or otherwise.” Ct. Ch. R. 65(d) (emphasis added). Here, Bo received actual
notice of the Order to Show Cause with ample time to respond and appear. Due process
does not require more than that. See, e.g., Drywall Tapers & Pointers, Local 1974 v. Local
530, Operative Plasters & Cement Masons Int’l Ass’n, 889 F.2d 389, 396 (2d Cir. 1989)
(holding “Local 530 cannot claim that its due process rights were violated” where it “had
actual notice of the [civil] contempt proceedings”); SEC v. VTR, Inc., 410 F. Supp. 1309,
1314 (D.D.C. 1975) (finding non-party President of civil contemnor “received actual notice
of these proceedings” and therefore “the requirements of due process have been met”).
32
accounts, and the Cooperation Paragraph, which requires that the Zhongs cooperate with
the receiver’s efforts. These provisions establish general obligations, rather than directing
that the Company take particular actions by a specified date. Another factor is the Zhongs’
status as foreign nationals who may not have fully understood that failing to cause the
Company to comply with this court’s orders could place them in personal jeopardy
In my view, the court would have the authority to impose sanctions on the Zhongs
at this time. Instead, on the facts of this case, the court will issue a more specific order
directing the Zhongs to take the actions that the receiver has identified. This will give the
Zhongs one final opportunity to comply with this court’s orders and avoid the issuance of
bench warrants and the potential for coercive imprisonment. Because the receiver is
invoking this court’s jurisdiction under Section 3114, the receiver shall serve the order in
accordance with that statute, in addition to using the same methods of service used
previously.
3. Opportunity To Be Heard
To satisfy due process, a party facing contempt must receive an opportunity to be
heard “at a meaningful time and in a meaningful manner.”113 In a civil contempt
proceeding, “the charged party is entitled to . . . an impartial hearing[] and an opportunity
to present a defense.”114 “Neither a jury trial nor proof beyond a reasonable doubt is
113
Barry v. Barchi, 443 U.S. 55, 66 (1979) (internal quotation marks omitted)
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
114
Nabkey v. Hoffius, 827 F. Supp. 450, 452 (W.D. Mich. 1993).
33
required.”115 Here, the Zhongs’ opportunity to brief and argue the receiver’s motion
satisfied their due process rights.
Nonetheless, I will entertain additional hearings. “In terms of procedural due
process, the Constitution sets a floor, not a ceiling.”116 If the Zhongs fail to comply with
this court’s more specific order, and if the receiver moves for the issuance of bench
warrants, then the Zhongs may appear and oppose that motion. If requested, I will hold an
evidentiary hearing at that time.117 That step is warranted because the receiver’s request for
a coercive sanction of imprisonment requires careful scrutiny.118 In addition, “[c]ontempts
involving out-of-court disobedience to complex injunctions,” such as the ones at issue here,
“often require elaborate and reliable factfinding.”119
115
Bagwell, 512 U.S. at 827.
116
Robinson v. Gov’t of the D.C., 234 F. Supp. 3d 14, 24 (D.D.C. 2017).
117
Cf. Simon v. Navellier Series Fund, 2000 WL 1597890, at *4 (Del. Ch. Oct. 19,
2000) (Strine, V.C.) (noting that for dispositive motions under Court of Chancery 12(b)
“the court has discretion to shape a process that is efficient so long as it affords the parties
a fair opportunity to take discovery and/or to have any relevant factual disputes resolved
after an evidentiary hearing if either is necessary to a fair determination of the motion”);
ASX Inv. Corp. v. Newton, 1994 WL 178147, at *2 (Del. Ch. May 3, 1994) (Allen, C.)
(suggesting desire to hold evidentiary hearing in connection with Court of Chancery Rule
11 sanctions “given the early stage in the proceedings at which the issue arose”).
118
See D.G.R. v. R.C., 2007 WL 5158162, at *1 (Del. Fam. Dec. 5, 2007) (“This
Court appreciates the severity of [imprisonment as a] sanction for civil contempt and
employs it only as a last resort.”); Watson v. Givens, 758 A.2d 510, 517 (Del. Fam. 1999)
(“The Court is mindful that with the authority to incarcerate comes the responsibility that
this authority should be used as a last resort and not a first resort to obtain compliance with
the Court’s order.”).
119
Bagwell, 512 U.S. at 833-34.
34
III. CONCLUSION
The receiver shall submit a form of order directing the Zhongs to take or cause the
Company to take specific actions to address the areas that the receiver has identified as
constituting violations of the court’s orders. The order shall give the Zhongs sixty days to
comply. Once entered, the receiver shall give the Zhongs notice of the order by using the
same methods that the receiver has used to date and by additionally serving a copy of the
order as contemplated by Section 3114(c).
If the Zhongs fail to comply, then the receiver may renew its application for an order
to show cause that would result in the issuance of bench warrants for the Zhongs’ arrest.
The Zhongs may oppose that application. If requested, the court will hold an evidentiary
hearing. In any event, the Zhongs will be able to purge the sanction of coercive
imprisonment at any time by complying with the court’s orders.
35
|
FILED
NOT FOR PUBLICATION APR 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50285
Plaintiff - Appellee, D.C. No. 5:08-cr-00021-SGL
v.
MEMORANDUM *
JUAN PASILLAS-MANRRIQUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Juan Pasillas-Manrriquez appeals from his guilty-plea conviction and 51-
month sentence for being an illegal alien found in the United States following
*
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).
deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California,
386 U.S. 738 (1967), Pasillas-Manrriquez’s counsel has filed a brief stating there
are no grounds for relief, along with a motion to withdraw as counsel of record.
We have provided the appellant with the opportunity to file a pro se supplemental
brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, we affirm the district court’s judgment.
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062
(9th Cir. 2000), we remand the case to the district court with instructions that it
delete from the judgment the incorrect reference to § 1326(b)(2). See United States
v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to
delete the reference to § 1326(b)).
Counsel’s motion to withdraw is GRANTED, the district court’s judgment
is AFFIRMED but REMANDED.
2 08-50285
|
259 F.3d 842 (7th Cir. 2001)
Eric Michael, Plaintiff-Appellant,v.St. Joseph County, et al., Defendants-Appellees.
No. 00-4200
United States Court of AppealsFor the Seventh Circuit
Argued June 6, 2001Decided August 3, 2001
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division, No. 3:99cv0495AS, Allen Sharp, Judge.[Copyrighted Material Omitted]
Before Fairchild, Bauer, and Posner, Circuit Judges.
Fairchild, Circuit Judge.
1
Eric Michael, a former employee of the St. Joseph County Health Department (the "Department"), brought this action alleging that the Department and various managers violated his First Amendment rights by suspending him for publicly criticizing the Department's water- quality policies. The district court granted summary judgment in favor of the defendants. We affirm.
2
Michael began working for the Department as a sanitarian in 1989. Eight years later Michael's supervisors began receiving complaints from local developers and other Department employees about Michael's negative attitude. On July 17, 1997, local subdivision planner John Linn sent a letter to Anthony Patton, the Department's director ofenvironmental health, expressing concern over Michael's attitude:
3
Recently, while driving through a residential subdivision site in Harris Township, Eric Michaels, [sic] happened to be at the site, so I stopped to have a casual conversation with him. At the conclusion of the discussion, I was slightly disturbed by his negative attitude and his personal antagonism toward the policies of the Local and State Health Departments with regard to septic systems and water supply in St. Joseph County.
4
If appropriate, you may wish to discuss and clearly explain the policies, goals and objectives of the Health Department with Mr. Michaels [sic].
5
(R. 22 at 4.) The next day supervisor Tony Mancuso directed Michael to return boxes to storage but Michael refused. Afterward, Michael submitted a written grievance accusing Mancuso of being rude, demeaning, arrogant and unprofessional. On August 1, Mancuso wrote a letter to George Plain, the Department's health officer, complaining about recurring acts of insubordination by Michael. In the letter, Mancuso referenced Michael's conversations with the public: "We do not need employees, such as Eric, showing disrespect for the whole department by talking to outside contacts and telling them he (Eric) thinks we (Anthony and Tony) don't know how to run a department." (R. 23 at 4.) Plain immediately referred Mancuso's complaint to Patton, who then prepared a memorandum assailing Michael's lack of professionalism. On August 4, Plain suspended Michael without pay and ordered Robert Gonderman, the Department's attorney, to investigate past complaints levied against Michael.
6
After conducting an investigation, Gonderman submitted a letter to Plain detailing various disciplinary offenses committed by Michael. On September 22, Plain wrote Michael and apprised him of the investigation. Plain informed Michael thatthe Department would be conducting a hearing to determine the need for further disciplinary action. Plain's letter referred to Michael's conversation with Linn:
7
While conducting an inspection at Fox Chase subdivision, Mr. Michael told Mr. Linn, one of the subdivision professional planners that he did not agree with the way that the State Health Department and the St. Joseph County Health department [sic] were handling the sanitary system of the subdivision and specifically that the St. Joseph County health [sic] Department does not do what it should do with respect to handling subdivision septic systems.
8
(R. 22 at 7.) On October 7, 1997, Michael resigned.
9
On August 4, 1999, Michael brought this action in St. Joseph County Circuit Court. Michael's complaint alleged under 42 U.S.C. sec. 1983 that St. Joseph County, Plain, Patton and Mancuso violated his First Amendment rights by suspending him in retaliation for his ongoing public criticism of the Department. Michael also alleged state law claims for breach of contract and promissory estoppel. Specifically, he claimed that his suspension violated the St. Joseph County Human Resources Policies and Benefits Manual, which allegedly forbids the Department from penalizing employees for filing a grievance against supervisors.
10
The defendants removed the case pursuant to 28 U.S.C. sec. 1446. After discovery the district court granted summary judgment in favor of the defendants. The court concluded that Michael failed to establish that his speech was protected by the First Amendment and that the defendants had a legitimate basis for suspending his employment. The district court also granted summary judgment in favor of the defendants on Michael's estoppel claim, concluding that he did not detrimentally rely on the county's manual.
11
On appeal Michael argues that the district court erred by granting summary judgment for the defendants on his First Amendment and promissory estoppel claims. We review the grant of summary judgment de novo. Vela v. Vill. of Sauk Vill., 218 F.3d 661, 664 (7th Cir. 2000). Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Because the purpose of summary judgment is to isolate and dispose of factually unsupported claims, Michael must respond to the defendants' motion with evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001). To successfully oppose the defendants' motion for summary judgment, Michael must do more than raise a "metaphysical doubt" as to the material facts, see Wolf v. Northwest Ind. Symphony Soc'y, 250 F.3d 1136, 1141 (7th Cir. 2001) (citation and quotation omitted), and instead must present definite, competent evidence to rebut the motion, see Albiero, 246 F.3d at 932.
12
Michael argues that he had a protected First Amendment right to criticize the Department's water-quality policies. Michael claims that his comments to Linn regarding the Department's water policies constitute public speech that is protected by the First Amendment. Government employees do not relinquish their First Amendment right to freedom of speech as a condition of public employment. See Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811(1968); Connick v. Myers, 461 U.S. 138, 142 (1983); Myers v. Hasara, 226 F.3d 821, 825-26 (7th Cir. 2000). We must analyze Michael's claim under a two-step test. First we determine whether he engaged in speech as a citizen on a matter of public concern. See Gonzalez v. City of Chicago, 239 F.3d 939, 940-41 (7th Cir. 2001) (citing Connick, 461 U.S. at 147). The First Amendment is implicated when a public employee speaks as a citizen upon a matter of public concern, but not as an employee upon matters only of personal interest. See Myers, 226 F.3d at 826. We evaluate whether an employee's speech addresses a matter of public concern by examining the content, form, and context of the speech. See Snider v. Belvidere Township, 216 F.3d 616, 620 (7th Cir. 2000). The second step under Pickering/Connick is a balancing test. If Michael engaged in speech that is a matter of public concern, we must then balance Michael's interest in expression against the Department's interest in promoting efficient public service. See id. We do not reach this balancing test, however, unless Michael establishes that he engaged in protected speech. See id.
13
Michael argues that the district court erred in granting summary judgment in favor of the defendants on his First Amendment claim because it misconstrued the facts. Specifically, he refers to the district court's statement that Michael's First Amendment claim is based on a letter that he wrote to Linn criticizing the Department. Michael, however, did not write a letter to Linn; rather it was Linn who wrote a letter expressing concern over critical comments made to him by Michael. Though this statement by the court was incorrect, we may affirm its grant of summary judgment on any ground supported by the record. See Lawson v. CSX Transp., Inc., 245 F.3d 916, 929 (7th Cir. 2001).
14
We conclude that the district court reached the right outcome regarding Michael's First Amendment claim because Michael failed to set forth evidence that he engaged in protected speech. Indeed, there is no evidence in the record definitively establishing what he said to Linn. The only evidence Michael relies on is Linn's July 17 letter, which vaguely characterizes Michael's comments, and Mancuso's letter to Plain regarding Michael's attitude. Linn's letter, however, reveals only that Michael exhibited a negative attitude and personal antagonism toward the Department's septic system and water supply policies. The letter does not recite what was said and does not reveal the circumstances surrounding the comments. What did he say? What specific Department policies were discussed? Though we need not know the precise words he used to express himself, see Jefferson v. Ambroz, 90 F.3d 1291, 1296-97 (7th Cir. 1996), the record sheds no light on even the gist of his comments. In addition to a lack of evidence relating to content, we are similarly in the dark regarding the context of his speech. Was his criticism part of his job duties-- relevant in determining whether he made protected comments as a "citizen," or merely unprotected comments made pursuant to his regular job responsibilities? See Gonzalez, 239 F.3d at 941. What are his job duties? Was Michael responding to Linn's questions or was he engaged in unsolicited soliloquy within Linn's earshot? Similarly, Mancuso's letter fails to demonstrate that Michael spoke as a citizen on a matter of public concern. Mancuso merely complained that Michael had told outside contacts that Mancuso and Plain did not know how to run the Department. The letter does not specifically refer to any matter of public interest, but instead is centered upon personnel matters and the operation of the Department (and thus outside the scope of theFirst Amendment). We simply do not have sufficient evidence in the record to determine whether Michael spoke about a matter of public concern, or whether he spoke as a citizen or as an employee. Because Michael failed to demonstrate that he engaged in protected speech, his First Amendment claim must fail.
15
Michael's promissory estoppel claim also fails for the same reason--he did not present evidence that he relied on the benefits manual to create a genuine issue for trial. Indiana law recognizes two basic forms of employment: (1) employment for a definite or ascertainable term; and (2) employment-at-will. Orr v. Westminster Vill. N., Inc., 689 N.E.2d 712, 717 (Ind. 1997). At-will employment is presumptively terminable at any time, with or without cause, by either party. Id. An employee, however, may invoke the doctrine of promissory estoppel to rebut the presumption that employment is at- will and thus require the employer to justify the adverse employment action. Id. at 718. A claim for promissory estoppel has three elements: (1) the employer made a promise to the employee; (2) the employee relied on that promise to his detriment; and (3) the promise otherwise fits within the Restatement test for promissory estoppel. Id.
16
Michael argues that the Department suspended him from his job because he filed a grievance against Mancuso, claiming this violated the St. Joseph County Human Resources Policies and Benefits Manual, which forbids the Department from retaliating against employees who file grievances. The record contains no evidence, however, to support his claim that he relied on the manual in deciding to file his grievance. Though Michael testified that he attended a meeting in which the Department reviewed the manual with employees, there is no evidence that the grievance procedure was discussed at that meeting. Michael did not present any evidence that he even read the provision in the manual relating to the grievance procedure, let alone that he relied on that provision in writing his letter complaining about Mancuso. As a result, the district court correctly entered summary judgment in favor of the defendants on Michael's promissory estoppel claim.
17
Accordingly, the judgment of the district court is AFFIRMED.
|
917 F.2d 13
31 Soc.Sec.Rep.Ser. 411, Unempl.Ins.Rep. CCH 15711ARoberta SALVADOR, Plaintiff-Appellant,v.Louis W. SULLIVAN,* Secretary of Health andHuman Services, Defendant-Appellee.
No. 88-15587.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 12, 1990.Decided Oct. 22, 1990.
Candace C. Davenport, San Rafael, Cal., for plaintiff-appellant.
Dennis J. Mulshine, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, Cal., for defendant-appellee.
Appeal from the United States District Court for the Northern District of California.
Before WIGGINS, THOMPSON and TROTT, Circuit Judges.
WIGGINS, Circuit Judge:
1
Roberta Salvador appeals the district court's grant of summary judgment to the Secretary of Health and Human Services in her action for Supplemental Security income. She contends that the Secretary's decision that she is not disabled is based on several legal errors and is unsupported by substantial evidence. We have jurisdiction under 42 U.S.C. Sec. 405(g) (1982). We reverse and remand.
STANDARD OF REVIEW
2
This court reviews an ALJ's denial of disability benefits to see if the decision rests on substantial evidence and the proper application of the correct legal standards. Davis v. Heckler, 868 F.2d 323, 325 (9th Cir.1989).
DISCUSSION
3
Salvador's arguments that the ALJ used incorrect legal standards lack merit. In determining whether Salvador could perform light work, the ALJ properly considered whether she could lift up to twenty pounds and frequently lift up to ten pounds. See 20 C.F.R. Sec. 404.1567(b) (1989). This regulation is a reasonable construction of the statute because it does not single out one particular task of one particular job, but rather sets up a general test of whether the claimant can perform various tasks within a certain range of exertion.
4
Salvador's invocation of the Dictionary of Occupational Titles to claim that her past work as a short order cook requires medium rather than light work is misplaced. The ALJ uses the Dictionary only if he determines that the claimant cannot perform her past work. See 20 C.F.R. Sec. 404.1569. Here, the ALJ determined that Salvador can perform her past work.
5
However, we accept Salvador's argument that the ALJ erred in rejecting the opinion of her treating physician, Dr. Susens, without offering specific and legitimate reasons. All the evidence indicated that Salvador had heart disease and a recent myocardial infarction. Dr. Susens felt that this condition rendered Salvador permanently and totally disabled, and he recommended she retire and do no work. The ALJ implicitly rejected Susens' opinion by concluding that Salvador is able to perform light work. Yet, the ALJ never evaluated Susens' findings or conclusions, but only summarized Susens' opinion generally without any specific reference as to why he disregarded it. This is not a sufficient statement of reasons. Compare Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir.1989) (ALJ's failure to offer any reasons as to why he disregarded the claimant's treating physician's opinion was legal error), and Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir.1987) (ALJ's mere references to minor inconsistencies in the treating physician's opinion was not a sufficient statement of reasons for rejecting the physician's opinion), with Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.1989) (ALJ's specific statement that he rejected claimant's treating physician's opinion because the physician's opinion was based on the claimant's complaints of pain, which the ALJ disbelieved, was specific and legitimate). Thus, the ALJ erred in rejecting Susens' opinion.
6
Salvador invites us to award her benefits if we find that the ALJ erred in determining that she is not disabled. We exercise our discretion not to award benefits because there may be evidence in the record to which the ALJ can point to provide the requisite specific and legitimate reasons for disregarding Susens' opinion. See McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir.1989). If the ALJ can offer such reasons, the other medical evidence in the record seems substantially to support the ALJ's decision that Salvador is not disabled. Therefore, the ALJ's decision is REVERSED and the case is REMANDED for further proceedings consistent with this decision.
7
REVERSED and REMANDED.
*
Louis W. Sullivan, M.D., is substituted for his predecessor, Otis R. Bowen, M.D., as Secretary of Health and Human Services
|
268 B.R. 739 (2001)
In re Joseph Thomas ASCUE, Debtor.
United States of America, Plaintiff,
v.
Joseph Thomas Ascue, Defendant.
Bankruptcy No. 7-97-03313. Adversary No. 7-97-00294A.
United States Bankruptcy Court, W.D. Virginia, Abingdon Division.
October 24, 2001.
*740 *741 Vincent J. Carroll, Richlands, Virginia, counsel for Joseph Thomas Ascue, debtor.
Thomas L. Eckert, Assistant United States Attorney, Roanoke, Virginia, for plaintiff.
DECISION AND ORDER
ROSS W. KRUMM, Chief Judge.
The matter before the court involves a complaint filed by the United States of America (hereinafter the Government) to determine the dischargeability of a debt listed by Joseph Thomas Ascue (hereinafter debtor) in the chapter 7 petition he filed on August 26, 1997. The Government's complaint alleges that the debtor's National Health Service Corps (hereinafter NHSC) debt in excess of $512,000 is not dischargeable under 42 U.S.C. § 254o(d)(3)(A).[1] The debtor contends that five years have past since repayment was required and that nondischarge would be unconscionable. Neither party disputes that five years have past since repayment was first required; the only question is whether it would be unconscionable to deny discharge. The Court having jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334(b) and 157(b)(2), having heard the evidence presented at trial, having observed the candor and demeanor of the debtor in trial, and having reviewed the arguments of counsel and the authorities submitted, concludes that the debtor sustained his burden of proving that denial of discharge of a portion of the indebtedness would be unconscionable and, therefore, a portion of the debt is dischargeable.
Background
The debtor attended Eastern Virginia Medical School and graduated in 1984. To finance his education, the debtor applied for a scholarship award from the NHSC. The debtor received a total of $42,017.00 in scholarship awards from 1982 through 1984.
The scholarship awards contained a contractual provision that required the debtor to provide one year of obligated service for each year he received financial support. See 42 U.S.C. §§ 254l (f)-(g). The debtor was obligated to perform the service in a health manpower shortage area, as determined by the Secretary of Health and *742 Human Services (hereinafter Secretary). See id. If the debtor failed to begin or complete the period of obligated service, the contract entitled the Government to recover liquidated damages in an amount equal to three times the scholarship funds awarded, plus interest. See 42 U.S.C. § 254o(b)(1)(A).
Upon graduation in 1984, the debtor requested and received a four-year conditional deferment to pursue a residency in Atlanta, Georgia. The debtor left the residency after one year. He then requested a one-year suspension of the service obligation due to personal and family problems. The request was granted upon the debtor's signing a Conditional Service Agreement (hereinafter CSA), which reaffirmed his original service obligation. The debtor signed the CSA. When the suspension expired, the debtor requested another suspension in order to locate a suitable domicile near his family where he could fulfill his service obligation. The suspension was effective until June 1987. The debtor signed another CSA to obtain this suspension.
The debtor was notified by the NHSC in December of 1986 that he was assigned to the Indian Health Services in Oklahoma City. Sometime in April 1987, the debtor informed the NHSC that he would not accept the appointment. Shortly thereafter, the NHSC informed the debtor that refusal to accept appointments could result in a default of his obligation, which would allow the Government to recover liquidated damages.
In September 1987, the debtor requested another deferment to pursue a residency in Norfolk, Virginia. The debtor signed another CSA. The deferment was granted through 1990. The debtor left the residency after four months.
On February 8, 1988, the debtor filed a petition for bankruptcy under Chapter 7. The bankruptcy court granted the debtor a discharge on May 25, 1988.[2] On July 15, 1988, the debtor requested and received another deferment to locate a residency in Columbus, Georgia. This deferment was scheduled to run until January 1, 1989. The debtor started his residency on October 1, 1988, but he quit after a few weeks. In November 1988, the debtor requested an additional deferment for the purpose of locating another residency. This deferment was granted and scheduled to last until June 1989, on the condition that the debtor submit monthly progress reports to the NHSC. When the debtor failed to submit the first report, NHSC rescinded the deferment.
In April 1989, the NHSC assigned the debtor to the Federal Bureau of Prisons (hereinafter BOP). He was directed to respond to BOP officials to receive his specific assignment. The debtor did not respond. The BOP assigned the debtor to a facility in Safford, Arizona, but, again, the debtor failed to respond. By September 14, 1989, NHSC notified the debtor that he was in breach of his NHSC contract because he failed to begin the period of obligated service which commenced on July 1, 1989.
On January 20, 1994, the NHSC filed a complaint in the United States District Court for the Western District of Virginia to recover $330,391.02, plus interest and administrative charges.[3] The $330,391.02 consisted of $126,051.00 (three times the debtor's original loan amount), $204,280.02 (accumulated interest), and a $60 administrative charge. The debtor argued that *743 the debt was uncollectible due to the bankruptcy discharge he received in 1988. On July 10, 1996, the District Court held that the debtor was in breach of his contract with the NHSC and ordered him to pay $330,391.02, plus interests, costs, any applicable penalties, and a ten percent surcharge of the debt pursuant to 28 U.S.C. § 3011. The court further found that the NHSC debt was not discharged in the debtor's 1988 bankruptcy case.
This Court also takes notice of the history and prospects of the debtor's income. From 1992 through 1995, the debtor worked in an emergency room in Grundy, Virginia, earning $140,000, $132,000, $272,000, and $85,000 respectively for those years. During this time he purchased a parcel of land and three cars, one of which was a $15,000 cash purchase. The debtor's individual income tax returns indicated an adjusted gross income of $71,169 in 1996, of $92,740 in 1997, and of $-4,081 in 1999.[4] His projected earnings for 2000 were between $26,000 and $29,000.
The decrease in the debtor's income after 1994 was due to a work related accident that occurred in 1995. While working in the emergency room, the debtor was injured when a patient fell and grabbed his arm. The debtor was operated on in August 1995, and was only able to work six hour shifts in the emergency room thereafter. He continued to suffer pain throughout his left arm and hand. The debtor was unable to treat the pain with medication because of allergic reactions, e.g., rashes and labored breathing. After subsequent medical evaluations, the debtor was diagnosed with cervical disc herniation with radiculopathy.
On November 24, 1998, the debtor filed an application for disability insurance benefits. The debtor's application was initially denied; on appeal, however, the debtor was found to be disabled from November 17, 1998 through December 31, 1999.[5] The Administrative Law Judge acknowledged the debtor's cervical disc herniation and further found that the debtor suffered from pain, loss of sensation, weakness, and muscle loss. The debtor's disability benefits were terminated because the debtor engaged in "substantial gainful activity," based on his projected earnings for 2000, and not because his health condition had improved.
The debtor filed the above captioned Chapter 7 bankruptcy petition on August 26, 1997. The debtor seeks to discharge his NHSC debt on the grounds that five years have lapsed from the time that the first payment was required and that repayment would be unconscionable. The parties do not dispute the fact that five years have passed; the only contention is whether nondischarge of the debt would be unconscionable.
Rulings of Law
The NHSC Scholarship program funds medical training in exchange for a voluntary commitment by the physician to provide medical care for a period of years equal to the number of years the recipient received funds under the NHSC program. The recipient agrees to provide this medical service at a location assigned by the Secretary. The program is designed to redistribute medical services to underserved areas. U.S. v. Vanhorn, 20 F.3d 104, 111-12 (4th Cir.1994); Rendleman v. Bowen, 860 F.2d 1537, 1541 (9th Cir.1988) (quoting *744 S.Rep. No. 94-887, 94th Cong., 1st Sess. 201 (1975) as stating NHSC Scholarship Program is not intended "as a mechanism solely to subsidize health professional education," but "as a means to overcome a geographic maldistribution of health professionals"). Due to the unique nature of the program, the indisputable lack of physicians in many underserved areas, and the obvious potential of many medical professionals to make a substantial income, Congress limited the ability of recipients of NHSC funds to discharge their obligations.
Discharge of an obligation under the NHSC scholarship program is specifically governed by 42 U.S.C. § 254o(d)(3).[6] Courts have unanimously viewed the strict dischargeability provisions of NHSC obligations as evidence of Congressional intent to deter debtors from knowingly violating their service obligations after entering into a prestigious and lucrative profession. See, e.g., United States v. Kephart, 170 B.R. 787, 791 (W.D.N.Y.1994) (discussing Congress's intent); Nelson v. Pennsylvania Higher Education Assistance Agency, 183 B.R. 972, 978 (Bankr.S.D.Fla.1995) (same). In addition to a mandatory five-year period before a discharge can be obtained, Congress requires the bankruptcy court to find "that nondischarge of the obligation would be unconscionable." 42 U.S.C. § 254o(d)(3)(A).[7] It is the debtor's burden to prove unconscionability. See In re Johnson, 787 F.2d 1179, 1182 (7th Cir. 1986).
Unconscionable is not defined in the statute, and to some extent the term is left to the discretion and judgment of the court. See In re Barrows, 182 B.R. 640, 650 (Bankr.D.N.H.1994) (stating courts have some discretion in defining unconscionable); In re Hines, 63 B.R. 731, 736 (Bankr.D.S.D.1986) (stating "unconscionability is likened to beauty in that it appears to the senses and is found in the eyes of the beholder"). Courts have held that this standard is significantly more burdensome than the "undue hardship" standard used to discharge educational loans under 11 U.S.C. § 523(a)(8)(B). See Matthews v. Pineo, 19 F.3d 121, 124 (3rd Cir.1994); United States v. Kephart, 170 B.R. 787, 791-92 (W.D.N.Y.1994). Numerous courts have given a dictionary definition of unconscionable as that which is "lying outside the limits of what is reasonable or acceptable, or shockingly unfair, harsh or unjust." United States v. Rice, 182 B.R. 759, 761 (N.D.Ohio 1994); In re Malloy, 155 B.R. 940, 945 (E.D.Va.1993); In re Hines, 63 B.R. 731, 736 (Bankr.D.S.D.1986). Unconscionability is determined by evaluating the totality of the facts and circumstances. Rice v. United States, 78 F.3d 1144, 1149 (6th Cir.1996); In re Malloy, 155 B.R. at 945.
In determining whether nondischarge would be unconscionable courts should consider objective factors such as the debtor's educational background, professional *745 degree, income, earning ability, health, accumulated wealth, dependents, and age. In re Malloy, 155 B.R. at 945 (citing In re Emnett, 127 B.R. 599, 603 (Bankr.E.D.Ky.1991)). Courts should also consider the size of the debt and the rate that interest is accruing. See Rice, 78 F.3d at 1149. Additionally, "the court should examine, whether, and to what extent, the debtor's current situation is likely to continue or improve." Id. (citing Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395, 396 (2d Cir.1987), as requiring the debtor to show that the current situation "is likely to persist for a significant portion of the repayment period"). Finally, the court should consider the debtor's past efforts to repay the loan, including an examination of the debtor's financial position during the years the loan was due, the debtor's acquisition of new financial burdens contemporaneous with the NHSC debt, and the relative size of the NHSC debt to the debtor's total indebtedness. See In re Rice, 78 F.3d at 1150.
The parties do not dispute that the debtor, at age 46, is relatively young and that he has no dependents. It is also undisputed that the debtor has a medical degree and that he, in fact, earned significant income from 1992 through 1998. Nor can it be disputed that the debtor utterly failed to fulfill his service obligations or to make payments on the debt. This being said, however, the debtor's present medical condition, financial affairs, and prognosis are considerably bleak and impact the determination of unconscionability in the eyes of this Court.
The debtor's negative adjusted gross income in 1999 is concededly attributed to the period he was adjudged disabled. Despite the debtor's prior income history and earning capacity, due to the persistent nature of his injury, he was projected to earn only $26,000 to $29,000 in 2000. This amount is significantly lower than the income he previously earned. Furthermore, the debtor's condition has not improved in six years, nor is there any indication that his health will ever improve. This Court is convinced that the debtor's health prevents him from earning significantly more than the above-mentioned estimates. "A medical condition that disables the debtor constitutes an extraordinary circumstance just the same as high medical bills resulting from that condition." Nelson, 183 B.R. at 977. Thus, the current health of the debtor is a significant factor in favor of discharge. Id. This Court also takes notice that the debtor is not responsible for the events giving rise to his injury. Lastly, the Court recognizes that the debtor does not now own significant assets.
Although a portion of his sizeable debt to the NHSC is attributable to the debtor's own inaction, the growth of the debt coinciding with the deteriorating state of the debtor's health is not directly attributable to the debtor's culpably ignoring his obligations to the Government. The totality of the facts and circumstances surrounding the debtor and his obligations to the Government convince this Court that to completely deny discharge would be unconscionable. It would be shockingly unfair, harsh, or unjust to require this unhealthy debtor to pay the Government the current indebtedness in excess of $500,000 dollars. In addition to the other reasons stated above, this Court finds it significant that, alone, the interest obligation on the debt may very well exceed the debtor's ability to pay. This Court does not believe the debtor could possibly amortize the entire debt based on his current and projected income. Congress did not intend to create a hopeless and futile situation by denying discharge where the *746 size of the indebtedness will only grow. The impracticality and futility of not discharging a financial burden that cannot possibly be repaid is obvious.
This Court must also inquire whether it would be unconscionable to require the debtor to take additional steps to earn more money. The debtor has been operated on and has visited numerous doctors, yet his impaired condition remains. In light of the debtor's chronic injury this Court finds that it would be unreasonable to expect the debtor to return to full employment status as a physician or in some other capacity for which he is qualified. The debtor's current health, his ability to work, his projected earning capacity, the lack of culpability for his present injured state, the size of the debt, and the negative forecast for improvements in the debtor's overall health are factors that militate in favor of a discharge.
However, the debtor's continued avoidance of his service obligation and loan repayment responsibilities and the Government's apparent willingness to allow the debtor, even in light of his medical state, to fulfill his periods of obligated service convince this Court that to deny discharge of a portion of the debt would not be unconscionable. This Court must now deal with a situation that seemingly justifies contradictory holdings. Standing alone, the debtor's behavior before he was adjudicated disabled would convince this Court, rather easily, that the debtor should be left to pay the debt as it stands. Yet, the debtor's present injured state, with its concomitant financial and employment ramifications, are factors this Court cannot ignore. The post-injury facts and circumstances weigh in favor of discharge. To satisfy the competing demands for discharge and nondischarge, this Court will grant a partial discharge.
Although this Court is compelled by the facts and circumstances in the matter sub judice to grant a partial discharge, it does so fully aware of the arguments on both sides of the "partial discharge" debate. For example, in the educational loan context, 11 U.S.C. § 523(8), a seemingly majority of courts have recognized that bankruptcy courts have the authority to grant a partial discharge. See Kapinos v. Graduate Loan Center (In re Kapinos), 243 B.R. 271, 277 (W.D.Va.2000) (stating majority view permits partial discharge and citing approximately sixteen different courts to support that position); Mort v. Tennessee Student Assistance Corp. (In re Mort), Ch. 7 Case No. 99-00407, Adv. No. 99-00077, mem.op. at 8 (Bankr.W.D.Va. 2001) (recognizing power to grant partial discharge); Bakkum v. Great Lakes Higher Educ. Corp. (In re Bakkum), 139 B.R. 680, 684 (Bankr.N.D.Ohio 1992) ("The Court, at its discretion, may excuse any portion of the debtor's student loan obligation which would create an undue hardship."). Many courts have premised the partial discharge on 11 U.S.C. § 105, as an exercise of the equitable powers of the bankruptcy court to enter any order necessary to carry out the provisions of Title 11. See Kapinos, 243 B.R. at 277; Tennessee Student Assistance Corp. v. Hornsby (In re Hornsby), 144 F.3d 433, 439 (6th Cir. 1998) (stating bankruptcy court has power to take action short of total discharge under 11 U.S.C. § 105(a)).
Other courts have taken an all-or-nothing approach based on the absence of an express grant of authority allowing a partial discharge. See United Student Aid Funds, Inc. v. Taylor (In re Taylor), 223 B.R. 747, 752-53 (9th Cir. BAP 1998) (It was significant to the court that the phrase "to the extent," as found in § 523(a)(2), (a)(5), and (a)(7), was not used in § 523(a)(8). The court then held that the absent phrase unambiguously precluded a *747 partial discharge in § 523(a)(8).). But see Great Lakes Higher Educ. Corp., et al. v. Brown (In re Brown), 239 B.R. 204, 211 (S.D.Cal.1999) (The court stated that the phrase "to the extent," merely separates debts into different categories which may or may not be discharged. "The phrase . . . describes the type of debt dischargeable rather than referring to the amount to be discharged."). Moreover, the Sixth Circuit also recognized the stymieing effect the all-or-nothing approach has on a court's ability to effectuate the purpose of the Bankruptcy Code where the facts and circumstances require judicial intervention in the financial burden on the debtor. Hornsby, 144 F.3d at 439. See also Thad Collins, Note, Forging Middle Ground: Revision of Student Loan Debts in Bankruptcy as an Impetus to Amend 11 U.S.C. § 523(a)(8), 75 IOWA L.REV. 733, 736 (1990) (stating "[i]mplicit in this practice of revising student loan debts is the notion that a rigid, all-or-nothing interpretation does not sufficiently or effectively address the array of facts and circumstances that appear before the courts.").
Obviously the case here involves the dischargeability of a debt governed by 42 U.S.C. § 254o and not 11 U.S.C. § 523(a)(8). Textually, the two statutes are different. To the extent that the bankruptcy court's power to grant a partial discharge stems from § 105(a), a textual comparison is not dispositive, nor necessarily helpful; however, it may shed some light on the Congressional intent embodied in 42 U.S.C. § 254o(d)(3)(A).
Notably, the NHSC discharge provision does not explicitly confine the court to an all-or-nothing discharge. 42 U.S.C. § 254o(d)(3)(A) states "[a]ny obligation of an individual under the Scholarship Program . . . or the Loan Repayment Program . . . for payment of damages may be released by a discharge in bankruptcy under Title 11 . . . only if the bankruptcy court finds that nondischarge of the obligation would be unconscionable" (emphasis added). An analysis of the word "any," which designates that which may be discharged under § 254o(d)(3)(A), is informative in this regard. WEBSTER'S II defines "any" as "one or some, regardless of sort, quantity, or number." WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 115 (1984). BLACK'S similarly defines "any" as "some; one out of many; an indefinite number," and states that the precise scope may depend on the context of the statute. BLACK'S LAW DICTIONARY 94 (6th ed.1990).
Based on the definition of the word "any," the plain language of the statute arguably authorizes the court to grant a discharge of all or some obligation for payment of damages that an individual owes to the Government. The statute's use of the singular noun "obligation" may also supports this interpretation. If the statute had read, "any obligations," then the court might be limited to discharge all or some of the individual's various obligations, e.g., one of three loans or all three of three loans. As it stands, the statute authorizes the court to discharge all or some of an individual's obligation to the NHSC (emphasis added).
The bankruptcy court in Kephart v. United States, 167 B.R. 767 (Bankr. W.D.N.Y.1994), granted a partial discharge on a NHSC debt based on the facts and circumstances of that case. The district court overruled the bankruptcy court on the grounds that it would not be unconscionable to deny discharge based on its evaluation of the facts, but the court did not address the propriety of a partial discharge. Kephart, 170 B.R. at 791-92. See Rice v. United States (In re Rice), 78 F.3d 1144, 1151 (6th Cir.1996) (reversing the bankruptcy court's partial discharge of a HEAL debt because nondischarge was not *748 unconscionable, and specifically leaving the open the question whether the bankruptcy court through its equitable powers can grant a partial discharge). The Sixth Circuit later held that the bankruptcy court may exercise its equitable powers to fashion a remedy to allow debtors to satisfy their obligations "while at the same time provide them some of the benefits that bankruptcy brings in the form of relief from oppressive financial burdens." Hornsby, 144 F.3d at 440 (addressing undue hardship discharge of educational debt). But see Barrows, 182 B.R. at 653 (opining that the court has power to determine only discharge or nondischarge per se, and that there is no enabling language to authorize a partial discharge for HEAL loans); Cothran v. United States Public Health Services (In re Cothran), 226 B.R. 460, 463 (Bankr.E.D.Okla.1998) (citing Barrows and Rice, and denying partial discharge of a HEAL loan).[8]
Though this Court may be inclined to discharge the entire debt based on the debtor's current condition and prospects, such a holding would seem to cut against the Congressional intent embodied in the unconscionable standard based on the debtor's past behavior. To answer the competing demands warranted by the facts and circumstances of this case, this court will divide the indebtedness into nondischargeable and dischargeable amounts. The amount claimed by the Government that exceeds the original treble damages of $126,051.00 is discharged as unconscionable.
Conclusion
The fresh start policies of the Bankruptcy Code, the facts and circumstances surrounding this debtor, coupled with the simple fact that the debtor's income is insufficient to service even the interest portion of the debt, convince this Court that it would be shockingly unfair, harsh, or unjust to deny discharge of all his debt. This Court believes that § 105(a) authorizes the bankruptcy court to grant a partial discharge and the textual analysis above lends additional support to partially discharge this debt. However, the debtor is not blameless for the failed opportunities to perform his obligation prior to his injury, nor is this Court unaware of the years wherein the debtor earned a significant income, none of which was used to repay his debt to the Government. Thus, for the reasons stated above, this Court concludes that the debtor satisfied his burden of establishing that to deny discharge of a portion of the debt would be unconscionable. Accordingly, it is
ORDERED
That the indebtedness of Joseph Thomas Ascue to the United States of America for his National Health Service Corps debts be and it hereby is determined *749 NONDISCHARGEABLE to the extent of $126,051.00 and JUDGMENT is hereby granted to the United States of America in said amount together with interest thereon at the Federal Judgment Rate from the date of the docketing of this decision and order in this proceeding until said judgment is paid in full and it is
FURTHER ORDERED
That the remaining balance of the debt owed by Joseph Thomas Ascue to the United States of America for his National Service Corps debts as determined by the United States District Court for the Western District of Virginia by order of July 10, 1996 in Case No. 91-0146 be and it hereby is DISCHARGED in this Chapter 7 proceeding.
NOTES
[1] 42 U.S.C. § 254o(d)(3)(A) states:
Any obligation of an individual under the Scholarship Program (or a contract thereunder) or the Loan Repayment Program (or a contract thereunder) for payment of damages may be released by a discharge in bankruptcy under title 11 of the United States Code only if such discharge is granted after the expiration of the five-year period beginning on the first date that payment of such damages is required, and only if the bankruptcy court finds that nondischarge of the obligation would be unconscionable.
[2] In re Joseph Thomas Ascue, No. 88-020428 (Bankr.E.D.Va.1988).
[3] United States v. Joseph Ascue, No. 91-0146 (W.D.Va.1996).
[4] The record does not contain tax returns for 1998.
[5] In re Joseph T. Ascue, Social Security Administration, Office of Hearing and Appeals (Feb. 21, 2001).
[6] Congress included the liquidated damages provision in the statute which provides for treble damages plus interest upon the recipients failure to satisfy the service obligation. 42 U.S.C. § 254o(b)(1)(A). The severe monetary penalty was intended to impress upon the recipient the serious nature of the obligation and to deter those who may want to forego the obligated period of service. See Buongiorno v. Sullivan, 912 F.2d 504, 509-10 (D.C.Cir. 1990).
[7] Loans granted under the Health Education Assistance Loan Program ("HEAL"), 42 U.S.C. § 294f(g) similarly require a showing that nondischarge would be unconscionable. Accordingly, the NHSC unconscionable standard is the same one applied in cases involving HEAL loans. See Kephart, 170 B.R. at 792.
[8] The statute providing for discharge of HEAL loans states in relevant part, the following: "[A] debt that is a loan insured under the authority of this subpart may be released by a discharge in bankruptcy . . . only if such discharge is granted . . . upon a finding by the Bankruptcy Court that the nondischarge of such debt would be unconscionable." 42 U.S.C. § 292f(g). The text of the HEAL loan discharge provision does not exactly mirror the comparable provision for NHSC loans. Notably, the HEAL loan statute refers to "a" debt, not "any" debt; thus, the textual analysis above may or may not apply in the HEAL loan context. The Court expresses no opinion as to the interpretation of the text of 42 U.S.C. § 292f(g), for it is not called upon to do so. The Court recognizes, of course, that the congressional intent behind the "unconscionable standard" applies with equal force to both HEAL debts and NHSC obligations, and it may be a curious result to contemplate a partial discharge in one debt but not the other. This potential dilemma, however, is not before the court today.
|
905 F.2d 1542
U.S.v.Armas*
NO. 89-6170
United States Court of Appeals,Eleventh Circuit.
MAY 31, 1990
1
Appeal From: S.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
|
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LANDRY'S SEAFOOD HOUSE- )
FLORIDA, INC., )
)
Appellant/Cross Appellee, )
)
v. ) Case No. 2D18-3611
)
FRANK DE LA GRANA, an individual; )
SIMON CANASI, an individual; )
ST. PETE IGUANA, INC., a Florida )
Corporation; and RICHARD )
CALDERONI, an individual, )
)
Appellees/Cross Appellants, )
___________________________________)
Opinion filed July 3, 2019.
Appeal from the Circuit Court for Pinellas
County; Jack R. St. Arnold, Judge.
Murray B. Silverstein and Brian R.
Cummings of Greenspoon Marder LLP,
Tampa, for Appellant/Cross Appellee.
Kenneth G. Turkel, Shane B. Vogt, and
Anthony Severino of Bajo, Cuva, Cohen, &
Turkel, P.A., Tampa; and David M.
Caldevilla of de la Parte & Gilbert, P.A.,
Tampa, for Appellees/Cross Appellants
de la Grana and Canasi.
No appearance for remaining Appellees.
PER CURIAM.
Affirmed.
NORTHCUTT, CASANUEVA, and BADALAMENTI, JJ., Concur.
-2-
|
229 F.3d 975 (10th Cir. 2000)
UNITED STATES OF AMERICA , Plaintiff-Appellee,v.ANTHONY A. NICHOLS , Defendant-Appellant.
No. 99-6335
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
October 5, 2000
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 99-CR-34 )[Copyrighted Material Omitted]
Submitted on the briefs:*
Vicki Zemp Behenna, Esq., Assistant United States Attorney and Daniel G. Webber, Jr., Esq., United States Attorney, Oklahoma City, Oklahoma, for Plaintiff - Appellee.
Rand C. Eddy, Esq., Eddy & Jones, P.C., Oklahoma City, Oklahoma, for Defendant - Appellant.
Before SEYMOUR, Chief Judge, KELLY, and HENRY, Circuit Judges.
KELLY, Circuit Judge.
1
Petitioner-Appellant Anthony Allan Nichols pled guilty to using a false social security number with the intent to deceive for the purpose of obtaining checking accounts at two Oklahoma banks in violation of 42 U.S.C. § 408(a)(7)(B). He was sentenced to twenty-one months imprisonment, three years supervised release, and ordered to pay restitution of $2,530.89. Mr. Nichols appeals the sentence imposed, alleging that the trial court erred in overstating the loss that Mr. Nichols intended to impose and that it erred in denying Mr. Nichols a two-level reduction for acceptance of responsibility. We affirm in part, reverse in part, and remand to the trial court for resentencing.
Background
2
Early in 1997, Mr. Nichols found himself with a poor credit history, due, in part, to the failure of a business venture he had started. He responded to a newspaper advertisement offering a manual which gave instructions on how to obtain a second social security number. Following the manual's instructions, Mr. Nichols applied for an Employer Identification Number (EIN) with the Internal Revenue Service. Mr. Nichols was assigned the EIN of XX-XXXXXXX, and began representing this as his social security number. In what he claims was an effort to reestablish a good credit history, Mr. Nichols began using this number in applications for loans and credit cards. Using this and other false social security numbers, Mr. Nichols obtained a mortgage and bought a house, attempted to purchase a car on credit, opened credit card accounts and various bank accounts, and secured a home-repair loan through a financing corporation. In calculating his offense level under the Guidelines, the trial court determined that the specific offense characteristics warranted a six-level addition pursuant to USSG §2F1.1(b)(1)(G), because Mr. Nichols intended to cause loss in excess of $70,000 but less than $120,000. The district court rejected Mr. Nichols' contention that he did not intend to cause any losses, finding that his actions belied such intent and rejecting his testimony as incredible. Specifically, the court relied upon the following facts: (1) Mr. Nichols used four different social security numbers, including his daughter's social security number on one occasion, (2) on over half the credit applications, he used some variation of his true name (Anthony Allan Nichols), i.e., Allen A. Nichols, or Allan A. Nichols, (3) he defaulted on several of the loans, and the presence of collateral does not negate his intent, and (4) but for the false social security numbers, the loans would not have been made.
3
Mr. Nichols objected to the trial court's calculation, and appeals on this basis. We consider various challenged components of the calculation individually. We then address Mr. Nichols' contention that the trial court erred in denying him a reduction of his offense level for acceptance of responsibility.
Discussion
4
We review the trial court's application of the Sentencing Guidelines de novo, but review its underlying findings of fact for clear error. See United States v. Burridge, 191 F.3d 1297, 1301 (10th Cir. 1999). The trial court's factual findings will be accepted unless the record does not support them or unless, "'after reviewing all the evidence, we are left with the definite and firm conviction that a mistake has been made.'" United States v. McAlpine, 32 F.3d 484, 488 (10th Cir. 1994) (citation omitted). We review the denial of a reduction for acceptance of responsibility for clear error. See id. at 489.
5
Sentencing Guideline § 2F1.1 governs crimes involving fraud and deceit, including violations of 42 U.S.C. § 408(a)(7)(B). Under this guideline, the offense level is calculated based in part on the dollar value of the loss involved in the criminal conduct. See USSG § 2F1.1(b)(1). If an intended loss can be determined and it exceeds the actual loss, the court should use the intended loss to calculate the defendant's offense level. See id., comment. (n.8); United States v. Smith; 951 F.2d 1164, 1166 (10th Cir. 1991). The reason the intended loss figure is used, even if it is significantly greater than actual loss, is to measure the magnitude of the crime at the time it was committed. See United States v. Janusz, 135 F.3d 1319, 1324 (10th Cir. 1998). The fact that a victim has recovered part of its loss after discovery of a fraud does not diminish a defendant's culpability for purposes of sentencing. See id. (citing United States v. Johnson, 941 F.2d 1102, 1114 (10th Cir. 1991); United States v. Westmoreland, 911 F.2d 398, 399 (10th Cir. 1990)). It is not error for a district court to count the full amount taken through fraud as an intended loss, where the victim recovers the loss through a civil suit, as opposed to through any voluntary action on the part of the defendant. See Burridge, 191 F.3d at 1301; United States v. Pappert, 112 F.3d 1073, 1079 (10th Cir. 1997). Similarly, the mere presence of collateral securing an item that was fraudulently obtained does not automatically reduce the loss calculation under §a2F1.1 where it can be shown that the defendant intended to permanently deprive the creditor of the collateral through concealment. See United States v. Banta, 127 F.3d 982, 984 (10th Cir. 1997). At the same time, our cases have insisted that calculations under §a2F1.1 accord with "economic reality," particularly considering the value of security given when the loan was made. See United States v. Moore, 55 F.3d 1500, 1502 (10th Cir. 1995); Smith, 951 F.2d at 1167-69.
6
Mr. Nichols contends that the district court erred in finding that he intended to inflict the various losses attributed to him. Although we defer to the district court's factual findings, see United States v. Ensminger, 174 F.3d 1143, 1145 (10th Cir. 1999), the government bears the burden of proving the amount of loss. See McAlpine, 32 F.3d at 487. "To meet the requirements of the Guideline, . . . the record must support by a preponderance of the evidence the conclusion that [the defendant] realistically intended a [particular] loss, or that a loss in that amount was probable." Smith, 951 F.2d at 1168 (emphasis added). We agree with Mr. Nichols that the record does not support such a finding in several of the instances in which the trial court found he intended to cause a loss, rendering the trial court's findings in those instances clearly erroneous.
A. Note Secured by Home Mortgage
7
In September 1997, Mr. Nichols purchased a home in Oklahoma City. He executed an FHA mortgage securing the loan amount of $87,515. In his application, Mr. Nichols represented his social security number to be nsa-ul-xkib which was different from his employer identification number, XX-XXXXXXX, the next to last two digits being transposed. He also identified himself as Allan A. Nichols, rather than Anthony A. Nichols. The rest of the information Mr. Nichols put on his application, such as his address and telephone number, was valid. Several months after purchasing the home, Mr. Nichols fell behind on his mortgage payments. He was unable to make payments for approximately one year, during which time he filed for Chapter 13 bankruptcy for the purpose of paying the arrearage and resuming monthly payments, so that he could keep his residence.
8
The trial court found that Mr. Nichols intended to deprive the lender of the full amount of the loan, $87,515. This finding is simply not supported by the record. The government failed to prove by a preponderance of the evidence that Mr. Nichols either realistically intended such a loss, or that a loss in that amount was probable. The home loan was fully secured by the mortgage, and in 1997, the home had been appraised at $95,000. Although the district court determined that the availability of collateral does not reduce the loss calculation, we feel it is error to ignore the contemporaneous exchange of security for the note in considering the economic reality of the transaction and any intended loss in excess of the actual loss. The security of the loan is a valid consideration in evaluating a defendant's realistic intent and the probability of inflicting the loss. See Pappert, 112 F.3d at 1078; Smith, 951 F.2d at 1169.
9
In Banta, the defendant purchased two vehicles worth almost $50,000 by submitting fraudulent loan applications. The trial court found an intent to defraud for the full $50,000 amount, despite the fact that the loans were secured by the vehicles. See id., 127 F.3d at 983. But several factors distinguish Banta from this case. The first is the mobility of vehicles as opposed to a residence. In Banta, if defendant had desired, he could have permanently deprived the bank of the collateral by concealing the vehicles, something that could not be done with a house. Even considering the mobility of vehicles, we do not presume intent to cause a total loss. See Moore, 55 F.3d at 1503. Second, there was evidence in Banta that the defendant likely intended such concealment. Not only did he provide a false social security number on the loan application, he also used an incorrect address, telephone number, and place of employment, making locating the vehicles quite difficult. During the time he possessed the vehicles, he never made a single legitimate payment on the loan. The defendant made only one payment with a worthless check. See Banta, 127 F.3d at 984.
10
In this case, it is uncontroverted that an incorrect social security number was used and we must accept the district court's findings that Mr. Nichols' transposition of his first and middle names is indicative of an intent to deceive, and that the loan would not have been made but for the false information. The fact that the loan was made under these circumstances, however, does not mean that Mr. Nichols intended to deprive the lender of the full amount of the loan. Were that the case, every false loan application would result in an intended loss in the full amount of the loan. That surely is not the case under the Guideline and our cases.
11
Mr. Nichols provided mostly correct information on his loan application, and he made a number of payments on the house. While it is true that he did not make payments on the house for one year pending Chapter 13 bankruptcy, he continued making payments even after learning that he was going to be prosecuted for using a false social security number. The house was, and continues to be, the sole residence for Mr. Nichols and his family. Nowhere did the government demonstrate that Mr. Nichols intended to deprive the lender of the full value of its loan, or that such a deprivation was probable. The government theorized in its brief that Mr. Nichols' use of a false social security number and the transposed name made it "very possible that Nichols could obtain the full proceeds of any sale of the mortgaged property to a third party and at the same time put the collateral beyond the reach of the lender." Aplee. Br. at 13. This is sheer speculation, not supported by any facts in the record, and certainly not enough to convince us that a loss in the amount of $87,515 was "probable." Smith, 951 F.2d at 1168. Accordingly, we remand to the trial court with instructions to recalculate Mr. Nichols' offense level without including the mortgage amount as an intended loss.
B. Vehicle Loan
12
The trial court also found that Mr. Nichols intended to cause a loss in the amount of $10,209 in connection with his purchase of a vehicle in April 1998. The trial court found that Mr. Nichols intended to deprive the lender of the full value of the vehicle. As with the house, this finding is not supported by the record.
13
In March 1998, Mr. Nichols applied for a vehicle loan. In the application, he used a false social security number and his middle name rather than his first name. All other information was correct, such as his address, place of employment, and home and business telephone numbers. He also made a $1,000 down payment. After taking possession of the vehicle and driving it for three weeks, Mr. Nichols was notified by the dealer that the lender would not accept the contract. He promptly and voluntarily returned the vehicle undamaged. No actual or intended loss for this transaction occurred.
14
In April 1998, Mr. Nichols signed a contract with another lender, made an additional down payment of $792, and chose another vehicle. After approximately three weeks, the lender discovered the false social security number and repossessed the vehicle. The government failed to demonstrate any intent on the part of Mr. Nichols to deprive the lender of the value of the vehicle. No evidence was presented showing that Mr. Nichols failed to make payments on the loans or damaged the vehicles or did any act consistent with concealment. In fact, the accurate information Mr. Nichols provided on his loan application allowed the lender to easily repossess the second vehicle. This case is plainly distinguishable from Banta for the reasons discussed in the previous section. The government did not show, by a preponderance of the evidence, that Mr. Nichols realistically intended to deprive the lender of the full value of the vehicle, nor was it shown that such a loss was probable. As such, the trial court's finding was clearly erroneous and we remand with the instructions to recalculate Mr. Nichol's offense level without including the value of the vehicle as an intended loss.
C. Empire Funding Corp. Loan
15
In October of 1997, Mr. Nichols applied for a $4,200 loan with Empire Funding Corp. to pay for the repair of a sewer line in his new home. In the application, Mr. Nichols used a false social security number and an alternate spelling of his middle name rather than his first name. All other information was correct. He was granted the loan, and had the repairs made. Mr. Nichols made monthly payments on the loan for almost two years, and was current on paying back the loan at the time of sentencing. The government presented no evidence to dispute the fact that Mr. Nichols made every loan payment. The trial court made no specific findings concerning this loan, but determined that Mr. Nichols intended to inflict a loss in the full amount of $4,200. This finding is likewise clearly erroneous, and we remand with the instructions to recalculate Mr. Nichols' offense level without including the value of this $4,200 loan as an intended loss.
D. MasterCard
16
In February 1997, Mr. Nichols obtained a MasterCard under the name "Allen A. Nichols," using the employer identification number previously obtained. He put up a security deposit of $1,000 to obtain the card. The district court included the high balance on the card, $2,002, as the intended loss, which was greater than the actual loss at the time the account was closed of $1,441.50. Mr. Nichols claims that, at the time of sentencing, he had been making payments on the card for over two years. The government claims that its evidence shows that he stopped making payments almost two years prior to sentencing, and the lender was required "to resort to self-help recoupment" to repay a portion of the debt. Aplee. Br. at 30. For reasons discussed previously, the district court's failure to consider the $1,000 security deposit given prior to issuance of the card is error; it appears that this is a secured credit card, and that should be considered on remand in determining the loss.
E. Bank of Oklahoma
17
In November of 1997, Mr. Nichols opened a checking account with Bank of Oklahoma, using a false social security number. He wrote a number of bad payroll checks, causing the bank to lose $2,438.70. Mr. Nichols made full restitution to the bank by March 1998, before he became aware of any criminal charges. The trial court determined that Mr. Nichols intended a loss in the full amount of $2,438.70. Mr. Nichols contends that the trial court erred in making this finding, because he had already made full restitution before even being aware of potential charges. We cannot say that such a finding by the trial court was clearly erroneous. The purpose of the intended loss rules is to measure the magnitude of the crime at the time it was committed. See Janusz, 135 F.3d at 1324. The fact that Mr. Nichols later made restitution, even before learning of criminal charges, does not absolve him. His citations to Janusz and United States v. Gennuso, 967 F.2d 1460, 1462 (10th Cir. 1992) for the proposition that a court must deduct from the loss calculation any value the defendant gave the victim at the time of the fraud is unavailing, because the restitution was made after the fraud, not in connection with it.
F. NationsBank
18
The trial court found Mr. Nichols responsible for a $4,420.85 loss from bad checks cashed or deposited at NationsBank. Mr. Nichols admits writing bad checks in the amount of $2,530.89, but claims the additional amount should not be attributed to him, because the evidence did not show that he intended the additional loss. We cannot say that the trial court's findings attributing the full amount to Mr. Nichols were clearly erroneous. The record indicates that Mr. Nichols cashed or deposited $4,420.85 in bad checks in an account that he had opened using a false social security number. The reason that the bank only had an actual loss of $2,530.89 is that is was able to recover the difference by removing it from Mr. Nichols' account. Just as Mr. Nichols' voluntary restitution discussed in the previous section did not prevent the court from finding an intended loss in the full amount of the bad checks, the fact that the bank was able to recover some of its loss on the bad checks through a setoff does not render the trial court's findings clearly erroneous.
G. Acceptance of Responsibility
19
The trial court denied Mr. Nichols an adjustment for acceptance of responsibility, finding that his testimony was not credible. We review a trial court's refusal to grant an adjustment for acceptance of responsibility for clear error. See United States v. Cruz Camacho, 137 F.3d 1220, 1226 (10th Cir. 1998) (noting that the trial court has "broad discretion" to determine whether to give a reduction under USSG § 3E1.1). We cannot say that the trial court's judgment on this issue was clearly erroneous.
Conclusion
20
For the foregoing reasons, we REVERSE with respect to the trial court's findings of intended loss concerning the loan amount secured by the home mortgage, the vehicle loan, the Empire Funding loan and the MasterCard high balance. We AFFIRM in all other respects. We REMAND with instructions to recalculate the amount of intended loss in accordance with this opinion.
Notes:
*
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore is ordered submitted without oral argument.
|
427 F.2d 476
William WATERS and Donald Samuels, each individually and on behalf of all others similarly situated, Plaintiffs-Appellants,v.WISCONSIN STEEL WORKS OF INTERNATIONAL HARVESTER COMPANY, a corporation, and United Order of American Bricklayers and Stone Masons, Local 21, an unincorporated association, Defendants-Appellees.
No. 17895.
United States Court of Appeals, Seventh Circuit.
April 28, 1970.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Judson H. Miner, Philip B. Kurland, Chicago, Ill., for appellant.
David A. Copus, Russell Specter, Acting General Counsel, David Cashdan, Washington, D. C., amici curiae.
Hammond E. Chaffetz, Thomas M. Thomas, George D. Newton, Jr., Thomas A. Gottschalk, Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., for appellee, International Harvester Co.
Benjamin L. Jacobson, Marvin Gittler, Chicago, Ill., Asher, Greenfield, Gubbins & Segall, Chicago, Ill., of counsel, for other appellees.
Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.
SWYGERT, Chief Judge.
1
This appeal raises important questions concerning the availability and scope of various federal remedies for combating racial discrimination in employment. Plaintiffs, William Waters and Donald Samuels, brought a class action seeking damages and injunctive relief against the Wisconsin Steel Works of International Harvester Company and Local 21, United Order of American Bricklayers and Stone Masons. They alleged that Harvester, with the assistance of Local 21, maintained a discriminatory hiring policy designed to exclude Negroes, including the plaintiffs, from employment as bricklayers at Wisconsin Steel Works. Plaintiffs claimed that these allegations of racial discrimination stated a cause of action under four separate statutes: section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981; Title VII of the 1964 Civil Rights Act, 42 U.S.C. § § 2000e to e-15; section 301 (a) of the Labor-Management Relations Act, 29 U.S.C. § 185(a); and the National Labor Relations Act, 29 U.S.C. § § 151 to 167.1 On the motion of defendants the district court dismissed plaintiffs' complaint. The plaintiffs appeal from the order of dismissal. We reverse and remand for trial.
2
In this appeal we must determine whether plaintiffs have stated a cause of action under any of the statutory grounds cited in their complaint. We treat the district court's dismissal of the complaint as a summary judgment for the defendants and consider the affidavits presented in the district court to supplement the bare allegations of the complaint.2
3
The facts as alleged in the complaint and supplemented by affidavits are not in material dispute. Harvester employs over forty-five hundred persons at Wisconsin Steel Works in Chicago, including a small force of bricklayers (less than fifty men). Local 21 is the exclusive bargaining representative for the bricklayers employed by Harvester.
4
The complaint alleges that prior to June 1964 Harvester, with the acquiescence of Local 21, maintained a discriminatory hiring policy which excluded Negroes from employment as bricklayers. During June 1964 five Negroes, including William Waters, were hired as bricklayers. Waters, a member of Local 21, worked in that capacity from June 13, 1964 until he was laid off on September 11, 1964. Nine other bricklayers including all of the Negroes hired in June were discharged at that time.
5
Under the collective bargaining agreement workers achieve seniority only after ninety consecutive days on the job. Thus all of the Negro bricklayers hired in June 1964 worked as probationary employees and did not acquire seniority and the accompanying right to preferential reinstatement when bricklayer jobs were again available. Plaintiffs allege that this seniority system, agreed to by Local 21, is part of a systematic attempt to exclude Negroes from employment as bricklayers.
6
In April 1966 Waters sought but was not offered reemployment with Harvester. At the same time, Donald Samuels, a member of Local 21, also applied for employment with Harvester as a bricklayer. Samuels, who had not previously worked for Harvester, was denied employment.
7
On May 20, 1966 Waters and Samuels filed charges with the Illinois Fair Employment Practices Commission alleging that Harvester refused to hire them as bricklayers on account of their race. Three days later the same charges were filed with the Equal Employment Opportunity Commission. On February 16, 1967 the EEOC found that no reasonable cause existed to believe that Harvester violated Title VII of the Civil Rights Act.3
8
In March 1967 plaintiff Waters petitioned for reconsideration of the EEOC's finding and provided the following additional allegations to support his request. In September 1965 a number of white bricklayers on layoff status elected to receive severance payments. By accepting severance pay under the collective bargaining agreement these bricklayers lost all rights to preferential reinstatement and became eligible for reemployment on the same basis as new employees. Subsequently, on June 15, 1966 Harvester and Local 21 amended their collective bargaining agreement to restore seniority to eight white bricklayers whose seniority had been lost after receiving severance pay. Three of these bricklayers were offered and accepted employment. Restoration of seniority to the remaining five workers relegated plaintiffs to a list further away from recall. As a result plaintiffs alleged that their applications for employment were not given equal consideration and that reemployment of the three white workers and restoration of seniority to all eight bricklayers perpetuated Harvester's continuing policy of hiring only white bricklayers.
9
On June 14, 1967 the EEOC granted Waters' request for reconsideration. On July 10, 1968 the EEOC withdrew its previous decision and issued a new finding that "reasonable cause exists to believe that respondent [Harvester] violated Title VII of the Civil Rights Act of 1964. * * *" On November 29, 1968 the EEOC notified Waters and Samuels that its conciliation efforts with Harvester had failed and provided them with notice of their right to sue.
10
On December 27, 1968 plaintiffs filed their complaint in the district court against Harvester and Local 21. The district court gave numerous grounds for dismissing the complaint. The court held that the Supreme Court's holding in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), could not be extended to create a cause of action for "private" racial discrimination in employment under 42 U.S.C. § 1981. The court further held that even if such a cause of action existed prior to 1964, it was, nevertheless, preempted by the enactment of Title VII of the 1964 Civil Rights Act. Furthermore, the court concluded that any action under section 1981 would be barred by the 120-day filing period of the Illinois Fair Employment Practices Act.
11
The district court disposed of plaintiffs' Title VII count against Local 21 by holding, pursuant to section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e), that Local 21 could not be joined as a defendant since plaintiffs had not previously charged the union with discriminatory practices in a proceeding before the EEOC. The court further held the action against Harvester should also be dismissed since Local 21 and individual white bricklayers could be adversely affected if plaintiffs' action continued, thereby making Local 21 and the bricklayers, parties "needed for just adjudication" under Rule 19, Federal Rules of Civil Procedure.
12
Finally, the court held that the failure of plaintiffs to exhaust the grievance and arbitration procedures under the contract precluded suit under section 301(a) of the Labor-Management Relations Act. In a footnote the court also stated that plaintiffs failed to state a cause of action under the National Labor Relations Act, since exclusive jurisdiction under that Act is vested in the National Labor Relations Board.
13
The central issue in this appeal is whether Local 21 can be sued directly in the district court without previously being charged before the EEOC. If Local 21 is properly a defendant, full relief can be granted and the applicability of Rule 19, Fed.R.Civ.P. need not be considered. We hold that a right to sue under section 1981 for "private" racial discrimination in employment existed prior to 1964. By enacting Title VII of the 1964 Civil Rights Act, Congress did not repeal this right to sue. However, in order to avoid irreconcilable conflicts between the provisions of section 1981 and Title VII, a plaintiff must exhaust his administrative remedies before the EEOC unless he provides a reasonable excuse for his failure to do so. Since we find on the basis of the material before us that plaintiffs have sufficiently justified their failure to charge Local 21 before the EEOC, we hold that the district court erred in dismissing plaintiffs' complaint against the union. Accordingly, we reverse for trial on the merits of plaintiffs' complaint against Local 21 under section 1981 and against Harvester under Title VII.
14
I. The Existence of a Right to Sue Under Section 1981.
15
In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186 (1968), the Supreme Court was asked to determine the scope and constitutionality of 42 U.S.C. § 1982.4 In its original form section 1982 was part of section 1 of the Civil Rights Act of 1866.5 The Court held that section 1 and its derivative, section 1982, prohibit "all racial discrimination, private as well as public, in the sale or rental of property * * *." Jones, supra, at 413, 88 S.Ct., at 2189. The constitutionality of section 1982 was upheld on the basis of Congress' power to enact legislation to enforce the thirteenth amendment.6
16
Plaintiffs argue by analogy to the Jones case that 42 U.S.C. § 19817 is also derived from section 1 of the Civil Rights Act of 1866; that it is a valid exercise of congressional power under the thirteenth amendment; and that it is intended to prohibit private racial discrimination in employment by companies and unions. We agree.
17
There can be little doubt that section 1981, as well as section 1982, is derived directly from section 1 of the 1866 Civil Rights Act. In this judgment we rest primarily on the views expressed by the Supreme Court in the Jones case. In footnote 78, the Court said that "the right to contract for employment, [is] a right secured by 42 U.S.C. § 1981 (* * * derived from § 1 of the Civil Rights Act of 1866 * * *.)." Jones, supra, at 442, 88 S.Ct., at 2204. This statement is buttressed by further mention of the derivation of section 1981 in footnote 28, Jones, supra, at 422, 88 S.Ct. 2186.
18
The Supreme Court's view of the genesis of section 1981 is also supported by our own analysis. In 1870 Congress reenacted section 1 of the 1866 Act as section 18 of the 1870 Civil Rights Act. As part of the 1870 Act Congress also adopted section 16 which is similar, although somewhat broader, than section 1 of the 1866 Act. For purposes of determining the derivation of section 1981 we believe the enactment of section 16 of the 1870 Act is superfluous since section 18 is sufficiently broad to include the provisions of section 1981. This conclusion is supported by the failure of defendants to present legislative history to demonstrate that Congress intended to narrow the scope of the right "to make and enforce contracts" provision of section 1 of the 1866 Act by the enactment of section 16. In fact, a contrary intent is more likely since Congress by enacting section 16 undoubtedly was attempting to insure that the right to make and enforce contracts without regard to race was supported by the fourteenth as well as the thirteenth amendment.8
19
From the discussion in the Jones case, it is also evident that section 1981, as part of section 1 of the 1866 Act, was a valid exercise of Congress' power to enact legislation under the thirteenth amendment. We rest particularly upon the Supreme Court's analysis of Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65 (1906). In Hodges a group of white workers were prosecuted under section 1981 for terrorist activities conducted against Negro employees of a saw mill. The Supreme Court reversed the defendants' conviction, holding that section 1981 was not designed to prohibit private acts of discrimination. The Court in Jones examined the decision in Hodges and ruled:
20
The conclusion of the majority in Hodges rested upon a concept of congressional power under the Thirteenth Amendment irreconcilable with the position taken by every member of this Court in the Civil Rights Cases and incompatible with the history and purpose of the Amendment itself. Insofar as Hodges is inconsistent with our holding today, it is hereby overruled. Jones, supra, at 442-443, 88 S.Ct. at 2205 n. 78.9
21
Every indicia of congressional intent points to the conclusion that section 1981 was designed to prohibit private job discrimination. The words of the statute, which are almost identical in relevant respects to section 1982, must be construed to extend beyond insuring the bare legal capacity of Negroes to enter into contracts. Thus Congress provided that: "All persons * * * shall have the same right * * * to make and enforce contracts * * * as is enjoyed by white citizens." We are not persuaded that the failure of Congress to expressly mention employment contracts makes section 1981 distinguishable from section 1982. This conclusion is supported by the legislative history of the 1866 Act which demonstrates Congress' intent that section 1 apply to employment contracts. As the Supreme Court noted in Jones:
22
The congressional debates are replete with references to private injustices against Negroes — references to white employers who refused to pay their Negro workers, white planters who agreed among themselves not to hire freed slaves without the permission of their former masters. Jones, supra, at 427, 88 S.Ct., at 2197.
23
As an example of Congress' concern are the words of Representative Windom delivered on the floor of the House:
24
Its object is to secure to a poor, weak class of laborers the right to make contracts for their labor, the power to enforce the payment of their wages, and the means of holding and enjoying the proceeds of their toil. Cong.Globe, 39th Cong., 1st Sess. 1159 (1866).
25
This explanation of the purpose of section 1 of the 1866 Act demonstrates that Congress contemplated a prohibition of racial discrimination in employment which would extend beyond state action.
26
Racial discrimination in employment by unions as well as by employers is barred by section 1981. The relationship between an employee and a union is essentially one of contract. Accordingly, in the performance of its functions as agent for the employees a union cannot discriminate against some of its members on the basis of race.10 Washington v. Baugh Construction Co., 313 F.Supp. 598 (W.D.Wash.1969); Dobbins v. Local 212, IBEW, 292 F.Supp. 413 (S.D.Ohio 1968).
27
Defendants make several arguments to refute the existence of a cause of action based on private racial discrimination in employment prior to the enactment of Title VII of the 1964 Civil Rights Act. These arguments merit only brief discussion. Defendants maintain that the Jones decision was "foreshadowed" by cases such as Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187 (1948); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917), and that, since similar "foreshadowing" is not present under section 1981, the Supreme Court would not extend its ruling in Jones to private discrimination in employment contracts. If, by foreshadowing, the defendants mean that the state action concept has sometimes been employed in a flexible fashion to achieve just results, the cases upon which they rely foreshadow the demise of the requirement of state action under section 1981 as well. Furthermore, it is mistaken to suggest that courts have not used similar means to circumvent the requirement of state action in the area of employment contracts. See Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 198-199, 65 S.Ct. 226 (1944).
28
Defendants also argue that the Jones case is distinguishable from the case at bar since property rights have traditionally been subject to greater governmental regulation than other private activity. We disagree. Labor contract relations are subject to governmental regulation nearly as extensive as property rights. Furthermore, we are unclear why defendants' assertion, even if it were true, is relevant in construing section 1981. Finally, defendants maintain that the Jones case should not be given retroactive application. This argument is sufficiently answered by the fact that the Supreme Court has already applied the Jones case retroactively in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969).
29
II. Title VII of the Civil Rights Act of 1964
30
A. Did Title VII repeal section 1981 by implication?
31
Having established the existence of a cause of action under section 1981 prior to 1964, we must now ascertain whether Congress, by the enactment of Title VII, intended to repeal the right to bring suit for racial discrimination in employment under the former section. The rules governing this determination have been stated by the Supreme Court in Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936):
32
The amending act just described contains no words of repeal; and if it effected a repeal of section 25 of the 1913 act, it did so by implication only. The cardinal rule is that repeals by implication are not favored. Where there are two acts upon the same subject, effect should be given to both if possible. There are two well-settled categories of repeals by implication: — (1) Where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest; otherwise, at least as a general thing, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue to speak, so far as the two acts are the same, from the time of the first enactment.
33
We need concern ourselves only with the doctrine of repeal by implication since Title VII does not provide for express repeal of previous legislation. Furthermore, the second category of repeal by implication noted by the Supreme Court is inapplicable since section 1981 covers rights other than the right to contract for employment.
34
Defendants argue that Title VII was intended by Congress to be a comprehensive scheme to eliminate racial discrimination in employment thereby automatically abolishing all rights previously existing under section 1981. They point first to the fact that Congress in enacting Title VII was unaware of the possibility that aggrieved persons could bring civil suits under section 1981.11 They would distinguish the Jones case on this basis since the availability of section 1982 was mentioned in debate over Title VIII of the 1968 Civil Rights Act. Jones, supra, at 413-417, 88 S.Ct. 2186. After the recent decision in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S. Ct. 400 (1969), this argument is no longer viable. In Sullivan the Supreme Court held that the right to bring suit under section 1982 was unaffected by the enactment of the Public Accommodations provision of the 1964 Civil Rights Act, even though the legislative history of that Act fails to mention section 1982. Sullivan, supra, at 237, 90 S.Ct. 400. Thus the relevant question for the purpose of determining whether rights under section 1981 were repealed by implication is not whether Congress was aware of section 1981, but whether the legislative history demonstrates that Congress would have intended repeal if it had been aware of preexisting rights under the 1866 Civil Rights Act.
35
Contrary to the assertions of defendants, the legislative history of Title VII strongly demonstrates an intent to preserve previously existing causes of action. Thus Congress rejected by more than a two-to-one margin an amendment by Senator Tower to exclude agencies other than the EEOC from dealing with practices covered by Title VII. 110 Cong. Rec. 13650-52 (1964). Courts have accordingly held that Title VII does not preempt the jurisdiction of the National Labor Relations Board to hear charges of unfair labor practices based on the union's duty of fair representation. United Packinghouse, Food & Allied Workers International Union v. NLRB, 416 F.2d 1126 (D.C.Cir. 1969); Local Union No. 12, United Rubber, etc., Workers of America v. NLRB, 368 F.2d 12 (5th Cir. 1966).
36
Defendants argue, however, that the most important indicia of intent are the provisions established in Title VII itself and that the existence of a cause of action under section 1981 would virtually destroy these provisions. In addition to the availability of immediate access to the courts, they point to large differences in the class of persons covered by Title VII and section 1981 and variations in the substantive prohibitions of the two enactments. We agree that the difficulties in reconciling section 1981 and Title VII are great and that the areas of possible conflict are numerous. Nevertheless, the Posadas case cautions that "the intention * * * to repeal must be clear and manifest" and holds that "effect should be given to both if possible." Thus we cannot conclude that the possibility of conflict demonstrates that section 1981 was wholly repealed by implication.12 We are convinced that the two acts can, in large measure, be reconciled and effect given to the congressional intent in both enactments. Therefore, we hold that conflicts must be resolved on a case-by-case basis.13 Accordingly, we turn to section 706(e)14 to determine whether plaintiffs' cause of action under section 1981 against Local 21 can be reconciled with the "charged party" language of Title VII.
37
B. The effect of section 706(e) on the right to bring suit under section 1981.
38
Previously in construing section 706 (e) this court has held that: "It is a jurisdictional prerequisite to the filing of a suit under Title VII that a charge be filed with the EEOC against the party sought to be sued. 42 U.S.C. § 2000e-5 (e)." Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (1969).
39
Other courts which have considered the question have also held that the "charged party" language of section 706(e) prohibits Title VII suits in the district court against persons not previously charged before the EEOC. Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969); Mickel v. South Carolina Employment Service, 377 F.2d 239 (4th Cir.), cert. denied, 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166 (1967); Butler v. Local No. 4 & Local No. 269, Laborers' International Union, 308 F.Supp. 528 (N.D.Ill.1969); Cox v. United States Gypsum Co., 284 F.Supp. 74 (N.D.Ind. 1968), modified, 409 F.2d 289 (7th Cir. 1969); Sokolowski v. Swift & Co., 286 F.Supp. 775 (D.Minn.1968); Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258 (E.D.La.1967); Moody v. Albermarle Paper Co., 271 F.Supp. 27 (E.D.N.C. 1967). Since these courts were not presented with arguments concerning the existence of a right to sue under section 1981, the cases cited were properly decided. They do not hold, however, that failure to charge a party before the EEOC precludes suit under section 1981. We hold such suits can be reconciled with section 706(e) and continue to exist in a limited class of cases.
40
The language of section 706(e) itself does not compel the conclusion that Congress intended to repeal the right to bring suit directly under section 1981. Even though that section, in discussing access to the courts, concentrates on the situation where an aggrieved party has first proceeded to the EEOC, there is no provision which specifically requires prior recourse before the Commission. Since Congress has expressly prohibited direct access to federal courts in similar situations under other statutes,15 we hesitate to read section 706(e) as requiring recourse before the EEOC as a jurisdictional prerequisite in all cases.
41
Furthermore, the legislative history of Title VII fails to conclusively demonstrate that section 706(e) was designed to preclude civil suits by aggrieved parties without prior recourse before the EEOC. Although statements by members of Congress from the floor during debate should be viewed with caution,16 we note the following assertion by Senator Humphrey, proponent and floor manager of the bill: "[T]he individual may proceed in his own right at any time. He may take his complaint to the Commission, he may by-pass the Commission, or he may go directly to court." 110 Cong.Rec. 14 188 (1964).
42
Despite these indications we are convinced that had Congress been aware of the existence of a cause of action under section 1981, the absolute right to sue under that section would have been modified.17 Throughout the legislative history of Title VII, Congress expressed a strong preference for resolution of disputes by conciliation rather than court action. Conciliation was favored for many reasons. By establishing the EEOC Congress provided an inexpensive and uncomplicated remedy for aggrieved parties, most of whom were poor and unsophisticated. Conciliation also was designed to allow a respondent to rectify or explain his action without the public condemnation resulting from a more formal proceeding. Furthermore, the absence of direct government coercion was thought to lessen the antagonism between parties and to encourage reasonable settlement. The need for voluntary compliance was stressed since more coercive remedies were likely to inflame respondents and encourage them to employ subtle forms of discrimination.18
43
Because of the strong emphasis which Congress placed upon conciliation, we do not think that aggrieved persons should be allowed intentionally to by-pass the Commission without good reason. We hold, therefore, that an aggrieved person may sue directly under section 1981 if he pleads a reasonable excuse for his failure to exhaust EEOC remedies. We need not define the full scope of this exception here. Nevertheless, we believe that plaintiffs in the case at bar have presented allegations sufficient to justify their failure to charge Local 21 before the Commission.
44
We rely particularly on the following allegations. The primary charge of racial discrimination made by plaintiffs is based on an amendment of the collective bargaining agreement between Harvester and Local 21. That amendment occurred in June 1966 after plaintiffs filed their charge before the EEOC. Until this amendment plaintiffs were, at least arguably, unaware of the participation of Local 21 in Harvester's alleged policy of racial discrimination. From the affidavits before us, it is evident that Local 21 was aware of the charges against Harvester, and by strong implication against itself, as early as October 1966.19 Subsequent to this time Local 21 presumably could have rectified any acts of discrimination on its part. Thus Local 21 suffered only slight prejudice from the failure of plaintiffs to charge it before the EEOC.
45
It is inconceivable that Congress would have intended to do away with the right to sue directly under section 1981 in these circumstances. To do so would bind complainants by the four corners of an informal charge and defeat the effective enforcement of the policies underlying Title VII. Cf. Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968). At the administrative stage the charge is usually drafted by laymen untrained in the law. A requirement that the complainant charge every person who may be involved in the alleged acts of discrimination would be unnecessarily harsh.20 Nor do we believe that the aggrieved party is protected by the right to amend his charge since amendment procedures are generally beyond the competence of layman complainants.21 To hold otherwise would be to deny effective relief intended by Congress solely on the basis of procedural defects before the Commission.
46
Allowing Local 21 to be sued directly in district court under section 1981 is consistent with the flexible interpretation of the requirement of conciliation recently given by other courts. Actual conciliation or even an attempt at conciliation by the EEOC no longer presents a jurisdictional barrier to filing suit in a district court. Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969); Johnson v. Seaboard Air Line R. R. Co., 405 F.2d 645 (4th Cir. 1968), cert. denied, Pilot Freight Carriers, Inc. v. Walker, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969). Moreover, courts have allowed complainants who have not been before the EEOC to join with complainants who have been before the agency as members of a class seeking relief against a common employer. Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968); Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968). We think these cases demonstrate that the policy in favor of conciliation should not be transformed into a technical device used to obstruct the enforcement of prohibitions against racial discrimination in employment and to deny relief to those Congress has sought to protect.
47
The defendants make one final contention in arguing that the district court was correct in dismissing plaintiffs' claim against Local 21. They urge that plaintiffs' action under section 1981 is barred pursuant to 28 U.S.C. § 1652 and 42 U.S.C. § 1988 by the 120-day filing period for a discrimination claim under the Illinois Fair Employment Practices Act, Ill.Rev.Stat. ch. 48 § 851 et seq., (1967). We disagree. Under those sections the statute of limitations applicable to civil rights actions is controlled by the statute of limitations which governs the most analogous state action. Jones v. Jones, 410 F.2d 365 (7th Cir. 1969). We are not convinced that the Illinois F.E.P.A. is the most analogous state action under these provisions. The Illinois act provides only for an administrative remedy and review of the F.E.P.C.'s findings in the state courts. Different considerations obviously apply to suits by private litigants in courts of law. In contrast to the Illinois F.E.P.A., the entire burden of investigating and developing a case under section 1981 lies with the private litigant. Furthermore, the short limitations period contained in the Illinois act is designed to encourage conciliation and private settlement. When an aggrieved party seeks court relief, conciliation has generally failed. Accordingly, the appropriate limitations period in this case is governed by our recent decision in Baker v. F & F Investment, 420 F.2d 1191 (7 Cir. 1970). That case held that civil actions under section 1982 are subject to the five-year statute of limitations provided in Ill.Rev.Stat. ch. 83 § 16 (1967), governing civil actions not otherwise provided for. Since we see no difference between section 1981 and section 1982 for purposes of determining the appropriate statute of limitations, plaintiffs' action against Local 21 was timely filed.
48
We hold that the district court erred in dismissing plaintiffs' complaint against Local 21. Since the relief available to plaintiffs under section 1981 is potentially as broad as that available in their action against Harvester under Title VII, Sullivan v. Little Hunting Park, Inc., supra, 396 U.S. at 238-240, 90 S.Ct. 400, we need not consider the district court's ruling concerning the applicability of Rule 19, Fed.R.Civ.P.22
49
III. Breach of Contract and the Duty of Fair Representation
50
A. Action against Harvester under section 301(a)
51
Plaintiffs argue that the allegations of their complaint also state a cause of action against Harvester under section 301 (a) of the Labor-Management Relations Act as well as under Title VII.23 We think plaintiffs misconceive the scope and purpose of section 301(a). Nevertheless, these allegations, if liberally construed, are sufficient to withstand a motion to dismiss under that section. Accordingly, we hold that the district court erred in dismissing plaintiffs' action under section 301(a) and order that their cause of action against Harvester for breach of contract be reconsidered on remand of this case.
52
Section 301(a), unlike Title VII, is not designed primarily as a remedy for racial discrimination in employment. Instead, Congress enacted section 301(a) to provide a means by which collective bargaining agreements could be enforced in federal and state courts. Suits under section 301(a) require plaintiffs to allege specifically which provisions of the collective bargaining agreement have been violated by the employer. Plaintiffs' complaint alleges that the agreement amending the collective bargaining agreement entered into by Local 21 and Harvester in June 1966 violated the seniority provisions of the contract. Since parties to a labor contract are always free to amend their agreements, we do not see how an amendment through the ordinary processes of collective bargaining can be considered a breach of contract. Humphrey v. Moore, 375 U.S. 335, 359, 84 S.Ct. 363, 11 L.Ed.2d 370 (concurring opinion of Mr. Justice Harlan) (1964). Nevertheless, the complaint along with the accompanying affidavits of plaintiff Waters, if broadly construed, may be read to include allegations that plaintiffs were treated in a discriminatory fashion by Harvester in violation of the contract between Local 21 and Harvester. This construction is sufficient to survive a motion to dismiss. Czosek v. O'Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (Feb. 24, 1970); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). On remand plaintiffs should be permitted to amend their complaint to allege with greater specificity which provisions of the collective bargaining agreement were violated by Harvester.
53
To bring an action under section 301(a) an individual employee also must exhaust the grievance provisions of his collective bargaining agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). As the Supreme Court held in Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967):
54
[T]he wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee's grievence.
55
In the instant case the affidavit of plaintiff Waters alleges in very general terms that any attempt to seek redress through the grievance mechanism of the contract would be futile.24 Harvester argues that plaintiffs cannot prove a breach of the duty of fair representation sufficient to satisfy the exhaustion requirement without at least attempting to put the grievance mechanisms into operation by a demand on union officials. We disagree. Although it may be difficult to establish such proof in this case, we can envision situations in which union representatives repeatedly have breached their duty of fair representation in previous dealings with an employee. In such cases the employee could reasonably believe that attempts to seek the aid of the union in presenting a grievance would be utterly futile, thus justifying his failure to exhaust remedies. Cf. Glover v. St. Louis, San Francisco R. R. Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969). As a result we are unable to say beyond a doubt that plaintiffs' allegations of futility are insufficient to excuse their failure to exhaust the grievance provisions of their contract. Czosek v. O'Mara, supra, 397 U.S. at 25-30, 90 S.Ct. at 772-773. On remand of this case plaintiffs should be allowed to amend their complaint to allege circumstances supporting their assertion that attempts to persuade Local 21 to pursue their grievances would be futile.
56
B. Duty of fair representation action against Local 21
57
Plaintiffs assert that Local 21 violated its duty of fair representation by participating or at least acquiescing in Harvester's discriminatory hiring policies. They maintain that this breach of duty by Local 21 states a cause of action under section 301(a). Although plaintiffs again read section 301(a) too broadly, we believe that their complaint, if liberally construed, states a cause of action under that section. Therefore, on remand of this case the district court should reconsider plaintiffs' complaint against Local 21 under section 301(a).
58
Plaintiffs are incorrect in arguing that section 301(a) is intended to provide federal jurisdiction for suits seeking relief for violation of the duty of fair representation, Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891 (S.D.Me. 1970). The origin of that duty is statutory, first recognized in cases involving racial discrimination by unions certified as exclusive bargaining agents under the Railway Labor Act. Steele v. Louisville & Nashville R. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1943); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 120, 65 S. Ct. 235, 89 L.Ed. 187 (1943). The Supreme Court subsequently held that the provisions of the National Labor Relations Act included a similar duty, Syres v. Oil Workers International Union, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1955); rev'g 223 F.2d 739 (5th Cir. 1955); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). Suits for breach of statutory duty may be brought under federal question or civil rights jurisdictional provisions. Brady v. Trans World Airlines, Inc., 401 F.2d 87 (3d Cir. 1968); Williams v. Pacific Maritime Assoc., 384 F.2d 935 (9th Cir. 1967).25
59
The duty of fair representation has only limited relevance to actions under section 301(a). A union can be joined as a defendant under that section, if by breach of its statutory duty, the union has prevented presentment or enforcement of an employee grievance under the collective bargaining agreement.26 Vaca v. Sipes, supra, 386 U.S. at 197, 87 S.Ct. 903, n. 18. In such cases a plaintiff-employee can recover only for injury which flows solely from the union's own conduct. As a result plaintiff's recovery against the union is limited in most cases to compensation for the union's failure to timely assert an employee grievance against an employer, Vaca v. Sipes, supra, at 196-198, 87 S.Ct. 903. When viewed in a light most favorable to plaintiffs, we think their complaint makes such an allegation. Accordingly, plaintiffs' cause of action against the union under section 301 (a) should be considered on remand.
60
For the reasons stated, the judgment of the district court is reversed and the cause remanded.
Notes:
1
Plaintiffs withdrew their claim under the National Labor Relations Act in the district court. Although the allegation of jurisdiction under that provision has not been stricken from the complaint, it was not reasserted on appeal. We, therefore, deem it to be waivedSee III-B, infra.
2
The district court's order of dismissal was not denominated as a summary judgment for the defendants. Nevertheless, affidavits were submitted by both sides and were not excluded by the court. From its memorandum opinion it is evident that the district court considered these affidavits. Moreover, all parties have relied on affidavits to some extent in this appeal. See Fed.R.Civ.P. 12(c)
3
On March 8, 1967 Waters and the other bricklayers discharged in September 1964 were offered reemployment. Believing that he had been unsuccessful in his action before the EEOC, Waters accepted employment and worked as a bricklayer from March 20 until May 19, 1967 when he was again discharged. In August 1967 he was again offered employment by Harvester but refused since his petition for reconsideration was then pending before the EEOC
4
42 U.S.C. § 1982 reads: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."
5
Section 1 of the Civil Rights Act of 1866 provided:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, * * * are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude * * shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
6
The thirteenth amendment provides:
Section 1:
Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2:
Congress shall have power to enforce this article by appropriate legislation.
7
42 U.S.C. § 1981 provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishments, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
8
The fourteenth amendment was not adopted until 1868
9
See generally A. Larson, New Law of Race Relations, 1969 Wis.L.Rev. 470.
10
We need not decide whether an employee possesses rights under § 1981 against the union if he is not a memberSee Steele v. Louisville & N. R.R. Co., 323 U.S. 192, 198-199, 65 S.Ct. 226, 89 L.Ed. 173 (1944).
11
They rely especially upon the following statements by Congressman Lindsay:
The situation in the law as it exists today, without the bill before us having passed, is that any individual can bring an action to invoke the protection of the 14th amendment with respect to a deprivation of a constitutionally protected right.
In other words, if there is a custom or usage * * * or if there is a practice which has the force of State power behind it, which has State involvement in it, then today an individual may bring action for an injunction. 110 Cong.Rec. 1966 (1964).
12
See generally Comment, Racial Discrimination in Employment Under the Civil Rights Act of 1866, 36 U.Chi.L.Rev. 615 (1969).
13
We intimate no views concerning the numerous conflicts between § 1981 and Title VII cited by Local 21 and confine our analysis solely to resolution of those conflicts which are before us in this case
14
42 U.S.C. § 2000e-5(e) provides in relevant part:
If within thirty days after a charge is filed with the Commission * * * the Commission has been unable to obtain voluntary compliance with this subchapter, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge * * * by the person claiming to be aggrieved.
15
See Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(d), where a civil action by a private person is expressly prohibited unless the Secretary of Labor is given sixty days notice during which time he may attempt conciliation.
16
Contrary statements were made by opponents, including Senator Ervin who described the provisions of section 706(e) as follows: "[T]he bill puts the key to the courthouse door in the hands of the Commission." 110 Cong.Rec. 14 188 (1964)
17
Our conclusion is not inconsistent with the Supreme Court's holding inJones that the right to proceed directly in federal court under § 1982 is unaffected by the enactment of Title VIII of the 1968 Civil Rights Act, 42 U.S.C. §§ 3601 to 3619. This is true because § 812 of that Act provides an aggrieved party with the alternative of by-passing the Secretary of Housing and Urban Development altogether and proceeding directly in a civil action in the district court. Nor is our decision inconsistent with the Supreme Court's holding in Sullivan that § 1982 was unaffected by the enactment of Title II of the 1964 Civil Rights Act. Section 207(b) of that title contains an express clause saving prior legislation. Sullivan, supra, 396 U.S. at 238, 90 S.Ct. 400.
18
See generally M. Sovern, Legal Restraints on Racial Discrimination in Employment (1966); Note Discrimination in Employment and in Housing: Private Enforcement Provisions of the Civil Rights Acts of 1964 and 1968, 82 Harv. L.Rev. 834 (1969).
19
We note especially the statements of James W. Quisenberry, an investigator for the EEOC, whose affidavit reads in pertinent part:
In the regular performance of my official duties, pursuant to an investigation of charges filed May 23, 1966, by William Waters and Donald Samuels against the Wisconsin Steel Works, I twice contacted Edward T. Joyce, President of Local 21, United Order of American Bricklayers and Stone Masons. The first meeting occurred in October 1966; and the second meeting took place on August 8, 1967.
In October, 1966, during my first meeting with Edward T. Joyce, I informed him fully of the nature of the charges made by William Waters and Donald Samuels. I informed Mr. Joyce that Waters and Samuels claimed that Wisconsin Steel Works had discriminatorily rejected their employment applications of April 3, 1966.
20
The harshness of such a requirement is particularly evident in this case. If this action were dismissed against both Harvester and Local 21, plaintiffs would be forced to file new charges before the EEOC. Section 706(d) of Title VII requires that charges be filed within 210 days after the occurrence of the alleged unlawful employment practice. Unless the failure to hire plaintiffs in April 1966 were considered to be a continuing violation, new charges against Harvester and Local 21 would be deemed untimely and plaintiffs would be left without a remedy
21
Defendants argue that the burden of amendment should be placed on Commission members under 42 U.S.C. § 2000e-5 (a). We think the fact that the Commission did not attempt to amend plaintiffs' charge in this case demonstrates the inadequacy of such a remedy
22
Local 21 adequately represents the interests of absent bricklayers thereby refuting the argument that individual white bricklayers are indispensable parties. Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969)
23
Section 301(a), 29 U.S.C. § 185(a) (1965), provides in relevant part:
Suits for violation of contracts between an employer and a labor organization representing employees * * * or between any such labor organizations, may be brought in any district court of the United States.
24
Waters' affidavit includes the following statements:
I have repeatedly called upon the union to represent me and to protect me against racial discrimination in employment.
Despite my complaints, the union has failed adequately and fairly to represent me in disputes with employers involving racial discrimination.
* * * * *
Because Nicholas Popovic is the official through whom I would have to channel any formal complaints * * * and because Local 21 has failed to change its policy of discriminating against black bricklayers, even after receiving numerous complaints from me, I believe that any further attempts to channel my grievances through the union would be futile.
25
We do not agree with the district court's conclusion that such suits can only be brought before the National Labor Relations Board. Although the NLRB has assumed jurisdiction and has held that breach of the duty of fair representation constitutes an unfair labor practice under § 8(b) (1) (A), Miranda Fuel Co., 140 N.L.R.B. 181, 185 (1962), enforcement denied, 326 F.2d 172 (2d Cir. 1963); Local Union No. 12, United Rubber, etc., Workers of America v. NLRB, 368 F.2d 12 (5th Cir. 1966), the Supreme Court has held that the NLRB's jurisdiction is not exclusive. Vaca v. Sipes,supra, 386 U.S. at 178-181, 87 S.Ct. 903. Since plaintiffs have waived their claim that their complaint states a cause of action under the National Labor Relations Act, see n. 1, supra, we need not consider the applicability of that Act to the allegations before us.
26
Unions also can be joined as defendants if the union is a moving force in producing a violation of the contract by the employer, Vaca v. Sipes,supra, at 197, 87 S.Ct. 903 n. 18. Cf. Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 303 (1964). We do not understand plaintiffs to so allege in this case. However, on remand leave should be granted to allow them to make such allegations.
61
FAIRCHILD, Circuit Judge (concurring).
62
I concur in reversal and remand for further proceedings against both defendants. I have reached conclusions which differ in some respects from those set forth in Chief Judge Swygert's majority opinion. They are as follows:
63
(1) Plaintiffs' right to proceed against Harvester under Title VII. Plaintiffs allege that Harvester, as an employer, is engaging in what Congress declared an unlawful employment practice. Congress authorized an action for the prevention and redress of such practice, but did not suggest that all parties responsible for the practice or all parties whose interests might be affected by its termination must be joined. In my opinion, Rule 19 (b) F.R.C.P. does not authorize dismissal of an otherwise proper Title VII action against an employer on account of the absence of the union and other employees. Such use of Rule 19 would frustrate the intent of Congress in this type of case.
64
(2) Plaintiffs' Title VII action against the union. Plaintiffs allege that the union was a party to Harvester's collective bargaining agreement, containing allegedly discriminatory seniority lists, and that (after the charges were filed with EEOC) the union agreed to a modification, allegedly for the purpose of permitting a discriminatory reinstatement. Sec. 2000e-2(c) (3) declares it an unlawful employment practice for a union "to cause or attempt to cause an employer to discriminate against an individual in violation of this section." The complaint does not use statutory language, but no argument has been made that it failed to allege an unlawful employment practice on the part of the union.
65
Assuming that the allegation is sufficient, it appears from the complaint that the union was to some degree responsible (in concert with the employer) for the practice of discrimination under attack, acted to further the practice after a charge had been filed against the employer, and had actual notice of the commission's investigation of the charge. Under all the particular circumstances of this case, I conclude that a strict reading of the statutory authorization of an action "against the respondent named in the charge" is unwarranted, and that the plaintiffs could properly bring action against both the employer and the union.
66
EEOC filed an amicus brief in which it argued that in this case plaintiffs could properly have joined the union as a defendant without having named it in the administrative charge. EEOC also suggested a procedure by which the defect, if any, could be cured. Under it, the district court would have stayed the action, pending the filing of a charge by plaintiffs against the union. EEOC could then process the charge so as to allow joinder of the union. Such an approach has been employed in other cases, e. g. Norman v. Missouri Pacific Railroad (8th Cir. 1969), 414 F.2d 73; Local U. No. 329, I.L.A. v. South Atlantic & Gulf Coast Dist. (S.D.Tex. 1968), 295 F.Supp. 599. It seems clear that these steps would obviate any jurisdictional question, but under the facts peculiar to this record, it would seem an unnecessary exercise.
67
(3) Plaintiffs' possible action under § 1981. I agree that, given the Supreme Court's Jones v. Mayer reading of § 1982 with respect to racial discrimination in the sale of property, there is no persuasive reason for reading § 1981 more narrowly with respect to racial discrimination in employment. There remains the difficult question of whether and to what extent the enactment of Title VII restricted reliance upon § 1981. It is unnecessary to resolve that question at this stage if plaintiffs are permitted to proceed against both defendants under Title VII. Perhaps the trial will develop facts which will make resolution important in this case, and I think it wiser not to attempt an answer until that point.
|
336 F.Supp. 1231 (1970)
Timothy POLLER
v.
THORDEN LINES A/B and Gustaf B. Thorden
v.
JARKA CORPORATION OF PHILADELPHIA.
Civ. A. No. 38979.
United States District Court, E. D. Pennsylvania.
February 9, 1970.
*1232 Arnold Levin, Freedman, Borowsky & Lorry, Philadelphia, Pa., for plaintiff.
Thomas Lane Anderson, Rawle & Henderson, Philadelphia, Pa., for defendant.
Frank C. Bender, Kelly, Deasey & Scanlan, Philadelphia, Pa., for third-party defendant.
MEMORANDUM AND ORDER
LUONGO, District Judge.
Timothy Poller, a longshoreman, injured his back while handling a 110 pound bag of ore. He contended that he sustained the injury when his foot slipped or turned on a piece of dunnage which was part of a "strip dunnage"[1] floor under the cargo of ore. Poller sued defendant shipowners, claiming that they had negligently failed to provide a safe place to work and, in addition, had breached their duty to furnish a safe and seaworthy vessel. At the conclusion of the evidence, Poller's counsel asked that both issues, negligence and unseaworthiness, be submitted to the jury. The request was denied and only the issue of unseaworthiness was submitted. By answer to interrogatory, the jury found that defendants did not breach the duty to furnish a safe and seaworthy vessel. Based on that answer, verdict was entered in favor of the defendants.
Before the court is plaintiff's motion for new trial. The motion is based primarily upon the court's refusal to submit the issue of negligence to the jury. The motion for new trial will be denied.
The negligence issue was not submitted because the charges of negligence and unseaworthiness were based upon precisely the same condition, the "strip dunnage" floor. The jury was instructed that the defendant's duty to furnish a safe and seaworthy vessel was absolute and that defendants could be found to have breached the duty notwithstanding lack of notice or fault on their part. The jury was instructed to consider whether the vessel was seaworthy, i. e. whether with the "strip dunnage" floor, it was reasonably fit for its intended use, a use which contemplated that longshoremen would be required to perform cargo operations in and about that area. The requested charge on negligence sought to have the jury determine whether, because of that same condition, defendants had failed to exercise reasonable care to furnish plaintiff with a reasonably safe place to work.
While the jury might properly have found unseaworthiness and no negligence, it could not have found negligence and seaworthiness. It would have been hopelessly inconsistent for the jury to have found that with the "strip dunnage" floor the vessel was seaworthy, i. e. reasonably fit for the intended use by longshoremen to perform cargo operations, but was not a reasonably safe place for longshoremen to work.
Since the charges of negligence and unseaworthiness were based upon the same condition, and since plaintiff's burden to establish unseaworthiness was far lighter than the burden to establish negligence, it was determined to submit *1233 only the issue of unseaworthiness to the jury to avoid unnecessary confusion and possibly inconsistent findings. In my view, this was well within my discretion as trial judge and plaintiff has cited no authority to the contrary.
Plaintiff has raised other points in his motion for new trial. They have been considered, but they are without merit and require no discussion.
NOTES
[1] This was the term used by counsel to describe the dunnage floor which had been laid out in strips, with space between the boards, rather than as a solid floor. The purpose of the dunnage floor was to keep the cargo from making contact with the steel deck.
|
681 F.2d 406
UNITED STATES of America, Plaintiff-Appellee,v.Gordon W. CURRY, Jr., Defendant-Appellant.
No. 81-3130.
United States Court of Appeals,Fifth Circuit.
July 29, 1982.
Steve M. Marks, Baton Rouge, La., for defendant-appellant.
C. Michael Hill, Asst. U. S. Atty., Baton Rouge, La., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Louisiana.
Before GOLDBERG, WILLIAMS and GARWOOD, Circuit Judges.
GOLDBERG, Circuit Judge:
1
Gordon Curry appeals his conviction on three counts of mail fraud,1 arguing that there was no jurisdiction under the mail fraud statute, that the evidence was insufficient to support a guilty verdict, and that the trial court erred in refusing to instruct the jury that good faith was a defense to the violations charged. While we find that the evidence was indeed sufficient to support the convictions for mail fraud, we conclude that the trial court erred in refusing to provide the requested jury charge. Accordingly, we reverse.
FACTS
2
Gordon Curry's indictment and conviction for mail fraud arise out of his activities as chairman of a citizens' political action organization during three elections in 1978 and 1979. The defendant is accused of fraudulently converting to his own use thousands of dollars received by him from electoral candidates on behalf of his political organization. In addition, the defendant is said to have mailed false documents to a state election supervisory committee in an effort to both conceal his fraudulent conversion of funds and to deny the state of Louisiana true and correct information concerning campaign finances.
3
Gordon Curry was chairman of the political action committee of an organization incorporated under Louisiana law as P.E.O.P.L.E., Inc. "P.E.O.P.L.E." was a group of black citizens in the South Baton Rouge area who performed various social, civil, charitable and political functions.2 In early 1978, a group of P.E.O.P.L.E. members formed a so-called "political action committee," ostensibly for the purpose of supporting political candidates chosen by the organization. Actually, candidates paid P.E.O.P.L.E. large amounts for its official endorsement, and for providing an array of campaign assistance services such as distributing signs and bumper stickers, printing ballots, and calling voters. P.E.O.P.L.E.'s presidents testified that any funds received from candidates over and above the cost of these election services were to be turned over to P.E.O.P.L.E.'s treasury and used to support programs to benefit youth and the elderly. Thus, P.E.O.P.L.E.'s "political action committee," served both to support the organization's political goals, and as a fund-raising vehicle for the organization's other programs.
4
Gordon Curry was chairman of P.E.O.P.L.E.'s political action committee during three elections in 1978 and 1979. P.E.O.P.L.E. supported eight candidates in the September, 1978 election; six candidates in the November, 1978 election; and two candidates in the April, 1979 election. Candidates endorsed by P.E.O.P.L.E. ran for various offices, ranging from the United States Senate to local school board. In his role as chairman of P.E.O.P.L.E.'s political action committee, Mr. Curry negotiated with, and received funds in cash and check directly from, candidates. In addition, Curry oversaw and managed P.E.O.P.L.E.'s campaign support activities. Candidates testified that P.E.O.P.L.E. workers, led by Curry, provided substantial campaign assistance: they placed signs in voters' yards, distributed bumper stickers and ballots, manned the polls and set up phone banks for contacting voters.
5
The Government contends that Gordon Curry used his position as Chairman of P.E.O.P.L.E.'s political action committee to defraud that organization of over fourteen thousand dollars. According to the Government's calculations, Curry received an aggregate of $23,777.80 on behalf of P.E.O.P.L.E. during the three elections in question, and converted $14,975.00 of this to his own personal use. Curry deposited checks from candidates into his own checking account, or cashed the checks. According to the Government, only a small fraction of these funds were ever used to pay for campaign expenses. Instead of turning the balance of funds over to P.E.O.P.L.E., as he was required to do, Curry allegedly used the money for his own personal expenses.
6
Louisiana's Election Campaign Finance Disclosure Act (hereinafter "the Election Act")3 requires political committees to report their campaign finances to a Supervisory Committee. Pursuant to the Election Act, Mr. Curry mailed4 affidavits attesting to P.E.O.P.L.E.'s campaign finances to the state's Supervisory Committee after each election. The Government contends that the affidavits mailed by Curry to the Supervisory Committee were false and fraudulent under the terms of Louisiana's Election Act. According to the Government, the false affidavits were intended by Curry to conceal from the Committee and from P.E.O.P.L.E.'s membership the true amounts of money received by Curry on P.E.O.P.L.E.'s behalf from political candidates, thereby preventing detection of Curry's scheme to defraud P.E.O.P.L.E.
PROCEEDINGS BELOW
7
Curry was indicted on three counts5 of violating the mail fraud statute, 18 U.S.C. § 1341. Defendant filed several pre-trial motions, including a motion to dismiss the indictment for lack of jurisdiction, which were denied. At the close of trial, defendant submitted a request for a "good faith" jury charge, which was also denied. The jury found Curry guilty of all three counts of mail fraud. The district court denied defendant's post-trial motions for judgment of acquittal, based on insufficiency of evidence; and for arrest of judgment, based on lack of jurisdiction. Defendant brought this appeal.6
ISSUES ON APPEAL
8
Three principal questions are presented on appeal.7 First, assuming arguendo the existence of a scheme to defraud P.E.O.P.L.E., we must determine whether there is sufficient connection between the fraudulent scheme and the affidavits mailed by Curry to constitute the federal crime of mail fraud. Second, we must examine the record to determine whether there is sufficient evidence to sustain a guilty verdict. Finally, we must decide whether the district court erred in refusing to charge the jury on the issue of defendant's good faith.
THE CRIME OF MAIL FRAUD
9
The mail fraud statute prohibits in general terms the use of the United States mails in furtherance of fraudulent schemes.8 Thus, in order to establish mail fraud, the Government must prove both the existence of a scheme to defraud, and use of the mails "for the purpose of executing" that scheme. U. S. v. Goss, 650 F.2d 1336, 1341 (5th Cir. 1981); U. S. v. Freeman, 619 F.2d 1112, 1117 (5th Cir. 1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981); U. S. v. Kent, 608 F.2d 542, 545 (5th Cir. 1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1981); U. S. v. Zicree, 605 F.2d 1381, 1384 (5th Cir. 1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980). Specific intent to defraud is an essential element of the crime. U. S. v. Goss, supra; U. S. v. Freeman, supra; U. S. v. Kent, supra at 545 n.3. See generally K. Carlyle, A Survey of the Mail Fraud Act, 8 Memphis State L.Rev. 673, 677-678 (1978) (discussing the intent requirement in mail fraud cases). Accordingly, the defendant's good faith is a defense to charges of mail fraud. U. S. v. Goss, supra.
10
The definition of a scheme to defraud is quite broad. As a learned judge of this Circuit9 once remarked in regard to the mail fraud statute, "(t)he law does not define fraud; it needs no definition; it is as old as falsehood and as versatile as human ingenuity." The language of the mail fraud statute is sufficiently flexible to encompass any conduct "which fails to match the reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society." Blackly v. U. S., 380 F.2d 665, 671 (5th Cir. 1967).
11
Moreover, a scheme to defraud need not necessarily contemplate loss of money or property to the victims. See, e.g., U. S. v. Isaacs, 493 F.2d 1124, 1149-50 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974); United States v. States, 488 F.2d 761, 764 (8th Cir. 1973); U. S. v. Mandel, 415 F.Supp. 997, 1011 (D.Md.1976), aff'd in relevant part, 591 F.2d 1347 (4th Cir. 1979), aff'd in relevant part, 602 F.2d 653 (4th Cir. 1979) (en banc), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980). Although the Government must prove that some actual harm was contemplated by the defendant, U. S. v. Regent Office Supply, 421 F.2d 1174, 1180 (2d Cir. 1970), it is well-established that a scheme which operates to deprive citizens of "intangible rights or interests" is a scheme to defraud under section 1341. U. S. v. McNeive, 536 F.2d 1245, 1248-49 (8th Cir. 1976). Thus, the mail fraud statute has been interpreted to forbid the use of the mails for schemes to defraud citizens of an elected official's honest and faithful services, see U. S. v. Isaacs, supra; U. S. v. Mandel, supra ; of political and civil rights, see, U. S. v. States, supra ; and of information relevant to public officials' duties, see, U. S. v. Mandel, 591 F.2d at 1364. See generally, K. Carlyle, supra at 679-680 (discussing schemes to defraud aimed at "intangible" rights).
12
The indictment in this case describes two separate and distinct fraudulent schemes allegedly perpetrated by Curry, each scheme involving a different set of purported victims. First, it is alleged that Curry devised a scheme to defraud P.E.O.P.L.E. of funds collected from political candidates by converting these funds to his own use. This scheme also involved defrauding P.E.O.P.L.E.' § membership of their right to Curry's honest, true and faithful services as chairman of the political action committee. Second, Curry is alleged to have defrauded the Supervisory Committee of its right to obtain true and correct financial disclosure reports as required by the Election Act.10
13
We find that the conduct described in the indictment, if supported by the evidence, would constitute two separate schemes to defraud within the context of the mail fraud statute.11 The more difficult question is whether the affidavits mailed by Curry could have been "for the purpose of executing" his scheme to defraud P.E.O.P.L.E.12
14
Since the mail fraud statute was enacted, courts have been plagued by difficulties in defining the necessary degree of connection between a mailing and a scheme to defraud.13 A number of "tests" have been formulated. Thus: "(i)t is not necessary that the scheme contemplate the use of the mails as an essential element;" it is necessary only that the mailing be "incident to an essential part of the scheme." Pereira v. U. S., 347 U.S. 1, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954); and "(t)he requisite statutory purpose exists if the alleged scheme's completion could be found to have been dependent in some way upon the information and documents passed through the mail." U. S. v. Kent, 608 F.2d at 546. A document mailed after the completion of a scheme to defraud may still be "for the purpose of executing" the scheme if the mailing was intended to conceal the fraud from the victim and "therefore make the apprehension of the defendants less likely than if no mailings had taken place." U. S. v. Maze, 414 U.S. 395, 94 S.Ct. 645, 650, 38 L.Ed.2d 603 (1974).
15
The mailings in this case consist of three affidavits sent to the Supervisory Committee charged with enforcing Louisiana's Election Act. The Government contends that the affidavits were "incidental to an essential element" of Curry's scheme to defraud P.E.O.P.L.E. in several respects. First, since all political committees are required by law to report to the Supervisory Committee, the affidavits were a necessary part of P.E.O.P.L.E.'s continued existence as a political committee, and thus, of Curry's scheme to use that organization to obtain funds for himself. In other words, the affidavits were the sine qua non of P.E.O.P.L.E.'s continued political operations, and hence, of Curry's fraudulent scheme. Under this theory, the truth or falsehood of the affidavits is irrelevant: even if the affidavits were themselves true and correct, Curry would still be guilty of mail fraud because his scheme to defraud P.E.O.P.L.E. was "dependent in some way," U. S. v. Kent, supra, on the documents mailed.
16
We find that this connection between the affidavits mailed by Curry and his scheme to defraud P.E.O.P.L.E. is, by itself, insufficient to establish a violation of the mail fraud statute. It is true that, ordinarily, the mailing of documents which are themselves innocent may still constitute the crime of mail fraud if the documents are mailed in execution of a scheme to defraud. Parr v. U. S., 363 U.S. 370, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960); U. S. v. Caldwell, 544 F.2d 691, 696 (4th Cir. 1976); U. S. v. Reid, 533 F.2d 1255, 1265 (D.C.Cir.1976). However, mailings of documents which are required by law to be mailed, and which are not themselves false and fraudulent, cannot be regarded as mailed for the purpose of executing a fraudulent scheme. Parr v. U. S., 80 S.Ct. at 1183.14
17
The affidavits in this case were mailed by defendant pursuant to the requirements of Louisiana's Election Act. Under these circumstances, Parr rules our jurisprudence. Thus, if the affidavits were true and correct, as Curry contends, the affidavits cannot, under the holding of Parr, be regarded as mailed for the purpose of executing Curry's scheme to convert P.E.O.P.L.E.'s funds to his own use.
18
In order to establish a violation of the mail fraud statute in this case, which involves documents mailed pursuant to state law, the Government must prove something more than the mere mailing of the affidavits. If the Government proves that the affidavits were themselves false, and were intended by Curry to defraud Louisiana's Supervisory Committee of true and correct campaign finance information, Curry's conviction under the mail fraud statute would be sustained. See U. S. v. Isaacs, 493 F.2d at 1149-50; U. S. v. States, 488 F.2d at 764; U. S. v. Mandel, 415 F.Supp. at 1011. Alternatively, Curry's conviction would be sustained if the Government proved that the affidavits were false, and that Curry mailed the false affidavits in a deliberate attempt to prevent discovery of his scheme to defraud P.E.O.P.L.E. See U. S. v. Maze, 94 S.Ct. at 650. Under either theory, however, Curry's good faith belief that the affidavits were in compliance with Louisiana's Election Act would be relevant to the issue whether the affidavits were mailed for the purpose of executing a scheme to defraud. See U. S. v. Goss, 650 F.2d at 1341.
19
Thus, we must examine the record to determine first, whether there was sufficient evidence of schemes to defraud the Supervisory Committee or P.E.O.P.L.E.; second, whether there was sufficient evidence that the affidavits were mailed in furtherance of the fraudulent schemes; and third, whether the jury was properly instructed as to the relevancy of Curry's good faith, if any. Throughout our analysis, we will use two standards to evaluate the quality and quantity of evidence. In order to determine if the evidence was sufficient to sustain Curry's conviction, we must evaluate the evidence in the light most favorable to the Government. Glasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), U. S. v. Goss, 650 F.2d at 1341. In deciding whether Curry was entitled to a good faith jury charge, however, we need only search for any evidence of good faith. This is because "if there is any evidentiary support whatsoever for a legal defense, and the trial court's attention is specifically directed to that defense, the trial judge commits reversible error by refusing thus to charge the jury." U. S. v. Goss, 650 F.2d at 1344, n.7. Thus equipped with a legal road map and compass, we set off to explore the dense thicket of evidence and argument which comprises this appeal.
SUFFICIENCY OF THE EVIDENCE
A. Evidence of a Scheme to Defraud
20
The record is replete with evidence that Gordon Curry abused his position of trust as chairman of P.E.O.P.L.E.'s political action committee by diverting funds earmarked for P.E.O.P.L.E. to his own use. Candidates testified that Mr. Curry asked them for sums of money, describing these sums as the candidates' pro rata share of election expenses. (Candidates who refused to pay were not endorsed.) The money was given to Curry in several ways. Candidates testified that on many occasions, Curry asked for, and received, funds in cash. On other occasions, checks were written out to "P.E.O.P.L.E., Inc." These checks were endorsed by P.E.O.P.L.E.'s current president, Mr. Ford or Mr. Johnson, and by Mr. Curry, and then deposited in Mr. Curry's personal bank account, or cashed by Mr. Curry. After P.E.O.P.L.E. had its own bank account, Mr. Curry deposited checks from candidates in that account. He would then request of P.E.O.P.L.E.' § treasurer that she write a check on P.E.O.P.L.E.'s account to Mr. Curry for the amount deposited. These checks were deposited in Mr. Curry's personal account.
21
It is true that Mr. Curry used his personal account for receipt of candidate's funds with the knowledge of P.E.O.P.L.E.'s President during periods in which P.E.O.P.L.E. did not have its own account. However, both Mr. Ford and Mr. Johnson testified that Curry was supposed to use the money received from candidates for campaign expenses, and that any excess funds were to be turned over to P.E.O.P.L.E.'s treasury. These funds were to be used for P.E.O.P.L.E.' § programs to assist youth and the elderly.
22
The bulk of campaign expenses incurred by P.E.O.P.L.E. were for salaries to workers15 who put up signs, distributed information, and served as poll watchers. However, the evidence shows that P.E.O.P.L.E. workers were not paid out of funds deposited in Curry's account.16 Rather, they were paid by yet other checks demanded by Curry from candidates. Candidates were instructed to write large numbers of checks for small amounts with the payees' names left blank. These checks were then distributed by Curry to poll workers.
23
Thus, after elections, Curry was left with thousands of dollars collected from candidates in his personal bank account; money which was not used to pay P.E.O.P.L.E. workers, or for any other campaign expenses. Yet both Mr. Ford and Mr. Johnson testified that none of this money was ever turned over to P.E.O.P.L.E. Instead, Mr. Curry reported to them that P.E.O.P.L.E. suffered from a shortage of funds after elections.
24
In sum, the evidence shows clearly that Curry used his position as chairman of P.E.O.P.L.E.'s political action committee to solicit thousands of dollars from candidates for election expenses. It shows also that instead of disbursing the money either for election expenses or to P.E.O.P.L.E.'s treasury, Mr. Curry converted the money to his own use. Moreover, in light of the testimony of P.E.O.P.L.E.'s presidents, it is not reasonable to assume that Mr. Curry believed he was authorized to use the candidates' money to compensate himself for campaign work. Both Mr. Ford and Mr. Johnson testified that Mr. Curry was not entitled to receive a salary for his activities as chairman of the political committee. Even if, as Mr. Curry contends, he was entitled to compensation for his campaign efforts, he could not have been entitled to the amounts involved here. According to the Government's analysis, which is supported by the evidence, Curry took for his own use approximately $14,975.00 of funds received from candidates. This figure far exceeds amounts paid to other P.E.O.P.L.E. members for campaign work,17 and cannot be construed as reasonable compensation for even the most prodigous of election efforts.
25
Thus, a jury could reasonably conclude that Gordon Curry intentionally used his position as chairman of P.E.O.P.L.E.'s political action committee to defraud that organization of thousands of dollars solicited by Curry from candidates endorsed by P.E.O.P.L.E. Certainly, there is sufficient evidence to show that Curry's conduct did not comport with our society's concepts of "fair play and right dealing," Blackly v. U. S., supra, and thus constitutes a "scheme to defraud" as that term is used in the mail fraud statute.
26
B. Evidence of Mailing in Execution of a Fraudulent Scheme
27
We turn now to the more complicated question of whether there was sufficient evidence to sustain a finding that defendant mailed the three affidavits described in the indictment in a deliberate effort to conceal his scheme to defraud P.E.O.P.L.E.; or in execution of a scheme to defraud Louisiana's Supervisory Committee of true and correct campaign finance information.
28
A brief excursion into Louisiana state law is necessary to understand the evidence. Under Louisiana's Election Act, political committees such as P.E.O.P.L.E.18 are required to report their campaign finances to the Supervisory Committee. Ordinarily, political committees must submit a detailed report which contains the name of each person who contributed money to the political committee and the amount contributed by that person, as well as the total sum of all contributions received by the committee. R.S. 18:1486E(1) and (2). However, there is an exception for "small campaigns." R.S. 18:1487. In lieu of a full report, a political committee may file an affidavit stating first, that the committee did not receive contributions from any one source in excess of the applicable reporting amount, in this case five hundred dollars;19 and second, that the committee's total expenditures did not exceed $5,000.
29
Gordon Curry mailed an affidavit after each election stating that P.E.O.P.L.E. had not received contributions from any one candidate in excess of five hundred dollars. However, the Election Act defines "contributions" broadly as any money received for the purpose of supporting a person's election to public office.20 Under the terms of the statute, "contributions" could include money given by a candidate to a political committee to support the candidates own election.
30
The Government argues that the affidavits mailed by Curry were patently false, since P.E.O.P.L.E. received far in excess of five hundred dollars from individual candidates in each of the three elections.21 Moreover, a jury could reasonably conclude that the false affidavits were mailed in a deliberate effort to conceal Curry's fraudulent scheme from P.E.O.P.L.E. members. If Curry had submitted nothing to the Supervisory Committee, P.E.O.P.L.E. could have been prosecuted under the Election Act for failure to disclose campaign finances. If Curry had filed a correct report, detailing the amounts of money received from each candidate, he would have run the risk of investigation by P.E.O.P.L.E.'s members, and the possible detection of his fraudulent scheme to keep candidate's money for his own use.
31
Curry contends, however, that even assuming the existence of a scheme to defraud P.E.O.P.L.E., there is insufficient evidence to sustain a finding that the affidavits were mailed in an effort to conceal the scheme.
32
According to Curry, the affidavits were mailed directly to the Supervisory Committee; they were never distributed to any members of P.E.O.P.L.E., and therefore could not have been used as a device to misrepresent anything to that organization. Although two of the affidavits were presented by Curry to the presidents of P.E.O.P.L.E. for their signatures,22 both Mr. Ford and Mr. Johnson testified that they did not read the affidavit carefully at the time they signed the documents. No other members of P.E.O.P.L.E. saw the affidavits.23
33
We find there is sufficient evidence to support a jury finding that Curry intended the affidavits to conceal his fraudulent scheme. First, a member of the Supervisory Committee testified that reports filed with the Committee became part of the public record, and that local newspapers frequently published campaign finance reports of particular interest. Thus, Curry risked publication of a detailed report of money received by P.E.O.P.L.E., had he filed such a report. In addition, Curry could not be assured of obtaining Ford's and Johnson's signatures on a detailed campaign finance report without risking investigation. The jury could have reasoned that Ford and Johnson each signed a short affidavit without questioning Curry as to its contents because nothing on the face of the affidavit aroused suspicion.24 However, had Curry presented to the president a long report showing the total amount of funds received by him from candidates, sums which totalled $10,650.00, $7,850.00 and $5,052.80 for the three elections in question, the president might well have demanded an explanation of Curry as to the disbursement of those funds. Certainly, neither Ford nor Johnson would have been likely to accept Curry's representation that P.E.O.P.L.E. was left with a shortage of funds after each election.
34
In sum, there was ample evidence to sustain a jury finding that Curry mailed the affidavits in a deliberate attempt to conceal his fraudulent scheme from P.E.O.P.L.E.'s members; and thus, that the affidavits were mailed for the purpose of executing Curry's fraudulent scheme. Moreover, the same evidence supports a finding that Curry falsified the affidavits in order to conceal from the Supervisory Committee the true amounts collected from candidates. Thus, the jury could find that Curry intended to defraud the Supervisory Committee of correct campaign finance information.
C. Evidence of Good Faith
35
Having concluded that the evidence was sufficient to sustain Curry's conviction on mail fraud charges, we turn now to the question whether there was any evidence to support a good faith jury charge. As noted supra, good faith is a defense to charges of mail fraud. Hence, if Gordon Curry believed in good faith that the affidavits were correct, and were in compliance with Louisiana's Election Act, a jury could not reasonably conclude that the affidavits were intended to defraud the Supervisory Committee of true and correct campaign finance information. In addition, Curry's good faith belief that the affidavits were correct is relevant to the issue whether the affidavits were mailed by defendant in an effort to conceal his scheme to defraud P.E.O.P.L.E. Because good faith was an available defense, Curry was entitled to a good faith jury instruction if there was any evidence at all to support the charge, "regardless of how weak, inconsistent or dubious the evidence of good faith may have been." U. S. v. Goss, 650 F.2d at 1345.
36
On this record, we cannot say there was no evidence to support a finding that Curry prepared the affidavits in a good faith belief that they were true and correct.25 The most obvious evidence supporting a finding of good faith is the ambiguity of Louisiana's Election Act. The Act defines "a contribution" as "a gift, loan, advance, or deposit of money ... made for the purpose of supporting, opposing or otherwise influencing the nomination or election of a person to public office." See Note 18, supra. The Act also requires that any "contributions" received by a political committee must be reported. However, a jury could well decide that Gordon Curry did not, in good faith, regard the money he solicited and received from political candidates as "contributions." In ordinary parlance, a political contribution is understood as a donation, voluntarily given26 by a citizen to a candidate, in order to assist in the candidate's election efforts. Ordinarily, one expects no more in return for his money than that the candidate of his choice is elected.
37
In this case, candidates testified that they transferred funds to P.E.O.P.L.E. in exchange for a definite set of services: P.E.O.P.L.E.'s endorsement, and its workers' campaigning efforts. As far as the candidates were concerned, they were simply expending funds for necessary services.27 Accordingly, candidates listed amounts given to P.E.O.P.L.E. as "expenditures" on their campaign finance reports. Thus, the money was seen as no more a "contribution" to P.E.O.P.L.E. than a candidate's payment for posters would be a "contribution" to a printing shop. And in fact, candidates repeatedly testified that they had specifically refused to authorize P.E.O.P.L.E. members to solicit "contributions," meaning donations from citizens, on the candidates' behalf.
38
The Government's position is that funds given to P.E.O.P.L.E. were "expenditures" to the candidates and at the same time, "contributions" to P.E.O.P.L.E. This interpretation of the Election Act may well be legally correct. Gordon Curry, however, is not a lawyer. The issue is whether a nonlawyer might reasonably have believed that money received in exchange for services was not a "contribution." In regard to this question, there is evidence that leaders of other political committees also thought that funds received from candidates in exchange for services did not have to be reported as "contributions."28
39
In sum, the record reveals sufficient circumstantial evidence to justify a good faith jury charge. The trial judge read to the jury the relevant portions of Louisiana's Election Act. He did not however, instruct the jury that even if the funds from candidates were "contributions," the jury should still consider whether Gordon Curry believed in good faith that the affidavits were correct, in reaching their decision on the question whether the affidavits were mailed for the purpose of concealing Curry's scheme to defraud P.E.O.P.L.E. Nor did the trial judge instruct the jury that Curry's good faith belief in the veracity of the affidavits was a defense to charges that he intended to defraud the Supervisory Committee of true and correct campaign finance information.29 Because there was evidence to support a good faith defense, it was reversible error to not include the instructions in the jury charge.
CONCLUSION
40
We have found that there was sufficient evidence to uphold a conviction for mail fraud. The record reveals a gross misuse of funds for personal gain on the part of defendant. The record also reveals evidence which could convince a jury that defendant mailed false campaign finance reports to the State of Louisiana in order to conceal his misuse of funds and to deprive the citizens of Louisiana of accurate campaign finance information. However, we find that there was also some evidence to support the defendant's good faith defense, and that the trial court erred in refusing to instruct the jury as to this defense. Therefore, this case must be remanded for a new trial in order to give the proper good faith instruction. Needless to say, our decision today does not exculpate the defendant; instead, it provides a roadmap for retrial.
41
REVERSED and REMANDED.
GARWOOD, Circuit Judge, concurring:
42
I concur in the reversal and remand. I likewise concur in the holdings that there is sufficient evidence that Curry violated 18 U.S.C. § 1341 by mailing false documents to the Louisiana election Supervisory Committee (the Committee) in an effort to conceal his scheme to defraud P.E.O.P.L.E. of its funds, that in order to convict it was necessary to find the documents were false and Curry knew it, that the trial court erred by denying Curry's request for an instruction on the defense of "good faith," and that Curry's contentions referenced in note 7 of the majority opinion are without merit. Further, I join in, and agree with, all portions of the majority opinion which concern the above holdings.
43
I write separately solely to express my disagreement with the holding in the majority opinion that Curry would have violated 18 U.S.C. § 1341 by mailing the statements he knew to be false to the Committee, even in the absence of any proof that Curry, P.E.O.P.L.E. or anyone else was guilty of any independent actual or attempted wrongdoing which might be furthered or concealed by such falsity, merely because the false reports deprived the Committee of the true information.
44
As I understand it, there is no contention that either P.E.O.P.L.E. or any of the "contributing" candidates violated any law or defrauded anyone. Yet the majority holds that even if Curry had been guilty of no wrongdoing respecting P.E.O.P.L.E., he nevertheless would have violated section 1341 by mailing to the Committee reports he knew to be false. This holding is made despite the fact that in such situation the false reports would not have been intended or calculated to cause either (i) the Committee (or any part of the Louisiana government) to act differently than it would have if true reports had been filed or to be deprived of any thing or benefit whatever, other than simply the economically worthless information, or (ii) any other party, including Curry, to either receive or be deprived of any tangible thing or any actual or potential economic benefit.
45
I am aware of no decisions of the Supreme Court or of this Court which have extended section 1341 to situations where the scheme did not contemplate the perpetrator's acquisition or the victim's deprivation of either something tangible or some actual or potential economic benefit.1 Decisions in other circuits have, however, extended the reach of section 1341 in this regard farther than any decisions of the Supreme Court or of this Court. Nearly all of these decisions are reviewed in the opinion in United States v. McNeive, 536 F.2d 1245 (8th Cir. 1976), where the Court declined to extend them or to give full reach to the expansive language found in several. As the McNeive opinion reflects, these cases generally involve corruption of public officials. In virtually all of them there was actually or potentially either an economic loss to the government2 or an economic gain to the defendant.3 In any event, in all these cases where public officials and employees are corrupted, the government is deprived of something of actual or potential economic worth, namely, the services of the official or employee whose compensation, office and expenses are paid for by the government.
46
One case which does not fit the foregoing pattern is United States v. States, 488 F.2d 761 (8th Cir. 1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974). In States, while there was apparently no corruption of governmental officials or employees, the scheme involved the use of false voter registration affidavits to procure "absentee ballots for the fictitious persons" "for the purpose of securing ... said political offices ... and financial benefits of said offices." 488 F.2d at 762-63. A purpose of "financial" gain was charged in States, albeit a rather remote one. Moreover, it was plainly alleged that the immediate purpose of the scheme was to obtain from the government, and for the defendants, specific, tangible items which the government would not have parted with but for the fraud, namely, the absentee ballots for the fictitous persons. States therefore involves deprivation of some tangible items.
47
But it is unnecessary for purposes of this opinion to determine whether cases such as Isaacs, Mandel and States may properly be viewed as consistent with limiting section 1341 to instances where the scheme contemplates the perpetrator's acquisition or the victim's deprivation of either some tangible thing or some actual or potential economic benefit. Nor is it necessary for these purposes to determine whether these cases should be followed by this Court.4 Regardless of how intangible and noneconomic the consequences of a scheme to defraud may be for purposes of section 1341, no case has held that the mere denial to the victim of accurate information, which is necessarily implicit in any false or deceitful statement, is of itself sufficient to render the knowingly making of a false statement a defrauding. There must be contemplated some significant detriment to the victim, or benefit to the perpetrator, apart from the deception itself. Thus, in United States v. Regent Office Supply Co., 421 F.2d 1174 (2d Cir. 1970), the making by defendant's salesmen of knowingly false representations to customers of having been referred by a mutual friend or that the goods were those of a recently deceased friend of the salesman and had to be disposed of because of his death was held not to be a scheme to defraud within section 1341. Though by these knowingly false representations defendant deceived the customers and "secured sales," there was no scheme to "defraud" because the representations were not calculated or intended to affect the customers' understanding of either the bargain or the value of the goods.5 But, of course, the customers were deprived of correct information as to the source of the goods and the occasion for the salesman's call, and they took some action on this misinformation, that is, they took the time to listen to the salesman and evaluate the merchandise, rather than simply refusing to even consider a purchase. However, this was not sufficient to invoke section 1341.
48
If some such limitation is not placed on section 1341 it will reach virtually every knowing misrepresentation mailed with the intent to deceive. But, as Regent Office Supply Co. reflects, not every intent to deceive is an intent to defraud. To the same effect is the recent decision of this Court in United States v. Ballard, 663 F.2d 534, modified on rehearing, 680 F.2d 352 (5th Cir. 1982), which contains a thorough review of the authorities, generally in line with that in the McNeive opinion referenced above.
49
Let us suppose that the Louisiana election law required that the candidates file, within thirty days after the general election, a contributions report covering contributions received during the last two weeks of the campaign. An issue has developed during the campaign as to whether a given candidate is supported by a particular controversial figure. Thirteen days before the election this figure makes a significant, though perfectly legal, contribution to the candidate. There is, in fact, nothing either improper or illegal in the relationship between the candidate and contributor. A local newspaper covering the campaign then "invites" all candidates to submit to it, five days before the election, a report of contributions (following the format of the required state reports) current to ten days before the election. Such "reports" will be published in the paper, along with additional comments, and candidates who fail to provide the information will be vociferously denounced. Knowing that the paper suspects the contribution and will denounce him either if he refuses its invitation to "report" or if his "report" discloses the contribution, the candidate, intending to deceive the paper, mails on the seventh day before the election a purportedly complete report which knowingly omits the contribution in question. Prior to the election, the paper publishes the report and endorses the candidate, noting the absence of any contribution from the controversial figure. Many citizens are accordingly influenced to vote for the candidate. Has the candidate violated section 1341? I think not.
50
Of course, here the election contributions report is a legally required filing with an official body. But that, it seems to me, is indeed a slender basis for distinction. See United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616 (1926). There is no basis in the wording of section 1341 to distinguish between situations where the government (or one of its agencies) is the "victim" and where the "victim" is an individual or nongovernmental entity. Certainly, the "integrity" of the electoral process and the public's "right to know" is at least as meaningfully infringed by the pre-election mailing to the newspaper as by a post-election official filing with the same misinformation. The Louisiana statute does not denounce filing false reports as defrauding, and under Louisiana law the offense is a misdemeanor punishable only by a fine which may not exceed $500 plus an amount equal to one and one-half times the amount not properly reported. See Section 1491, Louisiana Election Campaign Finance Disclosure Act. By contrast, a violation of section 1341 is a felony punishable by up to five years' imprisonment. I recognize that state law is not determinative in these matters, but if we do rely on state law to characterize conduct as being violative of section 1341, then it seems to me appropriate to consider how the state regards such conduct. It does not appear to me that Louisiana regards the knowingly filing of false reports, without more, to be a "defrauding" of the state or the Committee.6
51
Nor do I believe that the decisions of the Supreme Court construing 18 U.S.C. § 371 and its predecessors dictate a result at variance with the above analysis. While such decisions do stand for the proposition that a pecuniary detriment to the United States is not necessary to make out a conspiracy "to defraud the United States, or any agency thereof in any manner or for any purpose" contrary to section 371, none of them has gone so far as to hold that the United States is defrauded merely by knowingly furnishing it false information, where, apart from this deception itself, there is no collateral material deprivation or benefit intended.7 Indeed, the Supreme Court has rejected the predecessor to section 371 as a basis on which to prosecute "fraudulent" interference with the electoral process. United States v. Gradwell, 243 U.S. 476, 37 S.Ct. 407, 61 L.Ed. 857 (1917). Moreover, on at least two occasions the Supreme Court has refused to employ its decisions dealing with section 371 as a proper basis for giving a broad construction to other antifraud statutes. See United States v. Cohn, 270 U.S. 339, 346-47, 46 S.Ct. 251, 253, 70 L.Ed. 616 (1926) (noting the different context of the statute there involved and stating that "defrauding" was not to be construed "beyond its usual and primary sense" as "relating to the fraudulent causing of pecuniary or property loss"); Bridges v. United States, 346 U.S. 209, 220-21 n.19, 73 S.Ct. 1055, 1062 n.19, 97 L.Ed. 1557 (1953) (distinguishing cases under the predecessor to section 371 on the basis of its broad "in any manner or for any purpose" language).
52
Similar reasoning also suggests that section 1341 should not be read as broadly as section 371. While the former does denounce "any scheme or artifice to defraud" (emphasis added), the word "any" may properly be understood as indicating an expansive reading of "scheme or artifice" rather than "defraud." Accordingly, it is the range of methods, not objects, which is thus broadened. See, e.g., Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709 (1896). By contrast, the words "in any manner or for any purpose" in section 371 unmistakably extend to both methods and objects, and on any fair reading must be viewed as substantially more expansive than the modifier "any" in section 1341. Moreover, the overall context of section 1341 is plainly directed to defrauding in its usual and primary tangible or economic sense. See United States v. Cohn, supra.8 The opposite is the case with section 371; there the emphasis is on protection of the United States from "any offense" against it, and "offense" in this connection has been construed to include many civil as well as criminal wrongs. See United States v. Wiesner, 216 F.2d 739 (2d Cir. 1954); Hunsaker v. United States, 279 F.2d 111 (9th Cir.), cert. denied, 364 U.S. 819, 81 S.Ct. 52, 5 L.Ed.2d 49 (1960).
53
With respect to the question of whether defrauding can consist merely of a deceitful interference with governmental functions, it is plain that such a reading is far more congenial to section 371 than to section 1341. The former section has as its sole purpose the protection of the United States, while the latter does not even mention any government as being a victim of defrauding. The text of section 1341 furnishes no basis for distinguishing between a deceitful interference with a governmental function and a similar interference with the function of any other entity. Thus, for example, nothing in the text of section 1341 justifies holding that our hypothetical candidate would not violate that section by his mailing to the newspaper but would if he mailed a similar false report to the Committee. No such problem is present in section 371 prosecutions, for that section is clearly limited to instances where the United States is victimized.
54
Particularly instructive in this regard is the opinion in Curley v. United States, 130 F. 1 (1st Cir.), cert. denied, 195 U.S. 628, 25 S.Ct. 787, 49 L.Ed. 351 (1904). This is perhaps the leading early decision rationalizing a broad interpretation of the words "defraud the United States in any manner or for any purpose" in the predecessor to section 371. Curley was charged with a violation of this provision for conspiring with Hughes to defraud the United States by impersonating Hughes at a civil service examination, forging Hughes' name and the like, so that Hughes could obtain employment with the post office.
55
Though it recognized that the indictment charged an intended economic harm to the United States ("(i)t is difficult to see why a conspiracy to wrongfully secure a statutory salary from the government, through fraudulent impersonation, stands differently than a conspiracy to fraudulently procure a pension from the government ..."; id. at 13), the Court nevertheless expressed at some length its view that, under this particular statute, the words "defraud the United States ... for any purpose" were not restricted by the concept of economic harm. The opinion is at pains to distinguish statutes prohibiting defrauding generally, where the only wrongful conduct denounced is defrauding but the class of victims is unlimited, from the predecessor to section 371, which deals with all offenses against the United States as well as defrauding it, but has as its beneficiary only the United States.9
56
More specifically, the Court goes on to indicate that where the victims protected are generally defined, "defraud" would properly have a narrower construction, even though the general class of victims includes local governments :
57
"Quite likely the word 'defraud,' as ordinarily used in the common law, and as used in English statutes and in the statutes of our states, enacted with the object of protecting property and property rights of communities and individuals, as well as of municipal governments, which exist largely for the purpose of administering local financial affairs, has reference to frauds relating to money and property. If this is so, it is because the word is used in that sense, but it may well enough have a broader sense, and be used for a broader purpose." Id. at 6-7 (emphasis added).
58
On the other hand, where the sole purpose of the statute was to protect the government, a broader reading should be given.10
59
In sum, every reason given in Curley for a construction of the predecessor to section 371 so as not to limit its use of "defraud" to instances where tangible or economic loss is contemplated supports a construction of section 1341 which does so limit its use of "defraud." The majority opinion has in effect stood the Curley rationale on its head.
60
While the analysis made in Curley furnishes persuasive support for its construction of the predecessor to section 371, it must be noted that such construction is not without many serious problems. See A. Goldstein, Conspiracy To Defraud The United States, 68 Yale Law Journal 405 (1959). To extend such a construction to section 1341 is not only to act without the support of the reasons given in Curley, and indeed contrary to every rationale of Curley, but is to add to the problems inherent in section 371 those posed by a significant expansion of federal law enforcement into matters of traditionally local concern, all without a clear command from Congress to do so.
61
We are dealing here with what is, essentially and traditionally, a matter of local concern-compliance with local law requirements for campaign contributions reporting-normally handled by local authorities. By contrast, a prosecution under section 371 for conspiracy to defraud the United States obviously relates to a matter which is essentially of national concern. The Supreme Court has on at least two occasions admonished us that the rule requiring a strict construction of criminal statutes is of special force where a broader construction "renders traditionally local criminal conduct a matter for federal enforcement," United States v. Bass, 404 U.S. 336, 350, 92 S.Ct. 515, 523, 30 L.Ed.2d 488, 498 (1971), or "would alter sensitive federal-state relationships" or "transform(s) relatively minor state offenses into federal felonies." Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493, 497 (1971).
62
I do not dispute that the word "defraud" can be stretched just about as far as one wants to stretch it. But to apply it in the context of section 1341 to the mere knowingly giving of false information to a governmental agency, without more, is indeed to stretch it not only beyond but indeed almost out of sight of its "usual and primary sense." Such an interpretation is simply irreconcilable with the long-settled rule that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v. United States, 401 U.S. at 812, 91 S.Ct. at 1059. See also Williams v. United States, --- U.S. ----, ----, 102 S.Ct. ----, ----, 72 L.Ed.2d ----, 50 U.S.L.W. 4949, 4952 (June 29, 1982). It cannot be doubted that the rule of strict construction is applicable to section 1341. Fasulo v. United States, 272 U.S. 620, 629, 47 S.Ct. 200, 202, 71 L.Ed. 443, 445-46 (1926); United States v. Edwards, 458 F.2d 875, 880 (5th Cir.), cert. denied, 409 U.S. 891, 93 S.Ct. 118, 34 L.Ed.2d 148 (1972). As Bass and Rewis teach us, it is especially applicable in this sort of setting because a broader construction "renders traditionally local criminal conduct a matter for federal enforcement," 404 U.S. at 350, 92 S.Ct. at 523, alters "sensitive federal-state relationships" and "transform(s) relatively minor state offenses into federal felonies." 401 U.S. at 812, 91 S.Ct. at 1059. Accordingly, I cannot agree with the majority that the mailing to the Louisiana Committee of any knowingly false contribution report violates section 1341, where there is no fraud or illegality (such as either an illegal contribution or a wrongful diversion of funds contributed), nor any deprivation or advantage, apart from the giving of the incorrect information and the necessarily concomitant concealment of the correct information. That such conduct is reprehensible goes without saying. Indeed it is criminal under Louisiana law, and may be prosecuted by Louisiana authorities. But in my opinion it is not defrauding and does not violate section 1341.
1
18 U.S.C. § 1341
2
P.E.O.P.L.E. stands for People Encouraging Other People Living Everywhere. The organization's brochure states:
"P.E.O.P.L.E., Inc. is a community-based organization of concerned citizens established in November 1976. We came together to upgrade the social, economic and political conditions in East Baton Rouge Parish by coordinating people-oriented programs-particularly those providing services to youth and the elderly. As we seek to achieve these goals, we strongly encourage voter registration and education to promote an enlightened sense of civil responsibility among our citizens."
3
La.R.S. 18:1481 et seq
4
The defendant stipulated that he mailed, or caused to be mailed, each of the three affidavits described in the indictment
5
Under the mail fraud statute, each mailing is a separate violation
6
Jurisdiction is based on 28 U.S.C. § 1291
7
In addition to the issues discussed herein, the appellant suggests that the trial court erred in refusing his request for a Bill of Particulars, in refusing to exclude certain jurors, and in certain of its evidentiary rulings. We have considered each of these arguments, and find them to be without merit
8
18 U.S.C. § 1341 reads in pertinent part:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon ... any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.
9
Judge Holmes, in Weiss v. U. S., 122 F.2d 675, 681 (5th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941)
10
The indictment alleges in addition that Curry defrauded the citizens of East Baton Rouge Parish of their right "to be fully informed of the financial activities and relationships of political committees and candidates for public office." We see this allegation as part of, and subsidiary to, the alleged scheme to defraud the Supervisory Committee out of true and correct information, which would in turn have been made available to all citizens in Louisiana
11
The same conduct could also give rise to charges of state law violations. Thus, Curry faced the possibility of being indicted under Louisiana law, for, inter alia, embezzling, and for "knowingly and willfully" filing a false campaign report in violation of the Election Act's criminal provisions. See R.S. 18:1491. However, "(t)he fact that a scheme may violate state laws does not exclude it from the proscriptions of the federal mail fraud statute...." Parr v. U. S., 363 U.S. 370, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960), citing Badders v. U. S., 240 U.S. 391, 36 S.Ct. 367, 368, 60 L.Ed. 706 (1915). Thus even when a state is itself the victim of a fraudulent scheme, and makes the scheme illegal under state law, the perpetrators may still be prosecuted under the federal mail fraud statute. U. S. v. Flaxman, 495 F.2d 344, 349 (7th Cir. 1974). Of course, conviction under state law would be for the underlying fraud, and not for use of the United States mails in furtherance of the fraud
12
With regard to the alleged scheme to defraud the Supervisory Committee of true and correct information, there can be no question that the affidavits were mailed to the Committee "for the purpose of executing" such a scheme
13
See generally J. S. Rakoff, The Federal Mail Fraud Statute (Part I), 18 Duquesne L.Rev. 771-823 (1980) (discussing the history and peculiarities of the mail fraud statute and cases arising thereunder)
14
In Parr, defendants, members of the Benavides Independent School District, were engaged in an on-going scheme to defraud the District's taxpayers by embezzling tax revenues. Pursuant to state law, defendants mailed tax assessments, which were not proven to be themselves illegal, to taxpayers in the District. Defendants then illegally appropriated a large portion of these tax revenues for their own use. The Supreme Court stated:
"we think it cannot be said that mailings made or caused to be made under the imperative command of duty imposed by state law are criminal under the mail fraud statute, even though some of those who are required to do the mailing for the District plan to steal, when or after received some indefinite part of its moneys."
Parr v. U. S., 80 S.Ct. at 1183-84.
15
Candidates testified that they themselves provided the signs, bumper stickers, and other campaign materials for distribution
16
Mr. Hahn, an FBI agent with expertise in financial records, examined all of the checks written on Mr. Curry's personal accounts from 1978 to 1979. Of these, he identified only $479.63 which could be characterized as payments for campaign expenditures. Mr. Hahn also identified $628.00 as cashed checks, who's purpose was unknown. The remaining checks were made out for personal living expenses
17
For instance, a list provided by Mr. Curry himself shows that six P.E.O.P.L.E. members were paid amounts ranging from $1,000.00 to $800.00 for work in the 1979 election. (As usual, the money was paid to them directly by one of the candidates in that election, and not out of funds received by Mr. Curry from the candidate.)
18
Defendant does not contend that P.E.O.P.L.E. is not a "political committee" as that term is defined under the Election Act, R.S. 18:1482(2)
19
Defendant has stipulated that $500 was the reporting amount applicable to all candidates in each of the elections
20
The Election Act states:
(3) "Contribution", except as otherwise provided in this Part, means a gift, loan, advance, or deposit of money, or a promissory note or written contract to make a gift, loan, advance, or deposit of money made for the purpose of supporting, opposing or otherwise influencing the nomination or election of a person to public office.
R.S. 18:1482.
21
The Government's analysis, which is supported by the evidence, shows that P.E.O.P.L.E. received $10,650.00 from eight candidates in the first election, $7,850.00 from six candidates in the second election, and $5,052.80 from two candidates in the third election
22
Mr. Alton Ford was president of P.E.O.P.L.E. in early 1978, and signed the affidavit pertaining to the first election. Mr. Johnson became president in late 1978, and signed the second affidavit. The third affidavit was signed by Gordon Curry
23
Curry also argues, in a somewhat twisted fashion, that the affidavits could not have been intended to mislead Ford and Johnson because the affidavits were so patently false. The record shows that both Ford and Johnson endorsed checks made out to P.E.O.P.L.E. from candidates in amounts exceeding five hundred dollars. Thus, claims Curry, they would immediately spot the falsehood of an affidavit attesting to the fact that no more than five hundred dollars had been received by P.E.O.P.L.E. by any one candidate
The weakness of this argument is immediately apparent: neither Ford nor Johnson in fact noticed the discrepancy in the affidavit. This is because the affidavit does not mention a dollar amount. Instead, it states, "the committee did not receive a contribution in excess of the reporting amount applicable to such candidate (or) political committee ..." The "reporting amount" is defined in the Election Act, but does not appear on the affidavit.
24
The affidavits were introduced into evidence for the jury to examine
25
The Government takes the position that there can be no finding of good faith in this case because defendant Curry did not take the stand to testify that he subjectively believed the affidavits to be true. We reject this argument. Good faith, just like bad faith, can be proved by circumstantial evidence. To hold otherwise would effectively eviscerate the accused's right not to testify in any criminal matter in which good faith was at issue
26
According to the dictionary, a "contribution" is "a sum or thing voluntarily contributed." Webster's Third International Dictionary
27
Indicative of the confusions surrounding the Election Act's definition of "contribution" is one candidate's response to questions on cross examination. The candidate had given money to P.E.O.P.L.E. in exchange of campaign services, and reported the amounts disbursed as "expenditures."
"Q (D)id it come to your attention that you might report these (funds) as contributions to any place?
A It was never a consideration to report it as contributions.... I couldn't even afford to run my own race, much less contribute to someone else's benefit."
28
Mr. Sam Livor, president of another South Baton Rouge political committee, also filled out affidavits stating that his group had not received "contributions" in excess of the reporting amount. In fact, candidates had given money to Mr. Livor's group in exchange for the same type of services as provided by P.E.O.P.L.E., and these amounts exceeded the reporting amounts. Mr. Livors testified that he signed the affidavits because he did not think he had received any "contributions" from candidates
29
In his instructions to the jury, the trial judge did comment on the Election Act in the following terms:
"In all candor, ladies and gentlemen, I must tell you that this Louisiana Campaign Finance Disclosure Act is one of the most poorly drafted statutes that in twenty-nine years at the bar I have ever seen. There are many unclear and ambiguous provisions of this statute. Let me hasten to add, however, that you are entirely free to disregard the opinion which I have just stated."
In the context of the charge as a whole, however, this comment does not adequately instruct the jury on the relationship between Curry's good faith, if any, and the charges contained in the indictment.
1
The majority opinion cites no decisions of the United States Supreme Court in support of its holding in this regard, and I am aware of none. The decisions from this Circuit relied on by the majority in such connection are Weiss v. United States, 122 F.2d 675 (5th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941), and Blachly v. United States, 380 F.2d 665 (5th Cir. 1967). In Weiss "(t)he scheme was to obtain money fraudulently from the State of Louisiana." 122 F.2d at 679. Blachly involved a typical "pyramid" scheme by which individuals were deceived into buying water softeners on the false premise that they could recoup their cost, and more, by commissions on referrals. The language in Blachly quoted by the majority is itself a quotation from Gregory v. United States, 253 F.2d 104, 109 (5th Cir. 1958), in which the defendant cheated on a mail-in football score prediction contest to win a Cadillac. Each case, in other words, plainly involves obtaining something of material value (in two cases money, in one case an automobile) by deceitful means. The broad language in these cases is plainly expressed in support and amplification of the proposition that "(t)he fraudulent (i.e., deceitful) aspect of the scheme to 'defraud' is measured by a nontechnical standard." Blachly, 380 F.2d at 671. This simply harks back to the decision in Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709 (1895), that representations and promises made in connection with the sale of worthless bonds without the intent to carry them out were a scheme or artifice to defraud under the mail fraud statute, though they might not have been common law fraud, which was then assertedly limited to representations of past or existing facts. This does not relate to the object of the scheme, or to the requirement that it be calculated to achieve for the perpetrator or deprive the victim of something either tangible or of actual or potential economic value
In United States v. States, 488 F.2d 761 (8th Cir. 1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974), the Court cited, generally in support of the proposition that the scheme need not be calculated to acquire for the perpetrator or deprive the victim of a tangible item or something of actual or potential economic value, among other decisions, those by this Circuit in Abbott v. United States, 239 F.2d 310 (5th Cir. 1956); Shushan v. United States, 117 F.2d 110 (5th Cir.), cert. denied, 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531 (1941); Steiner v. United States, 134 F.2d 931 (5th Cir.), cert. denied, 319 U.S. 774, 63 S.Ct. 1439, 87 L.Ed. 1721 (1943); and Bradford v. United States, 129 F.2d 274 (5th Cir.), cert. denied, 317 U.S. 683, 63 S.Ct. 205, 87 L.Ed. 547 (1942). None of these cases support that proposition. In Abbott the object of the scheme was the acquisition of confidential and highly valuable geophysical maps belonging to Magnolia Petroleum Company and the destruction of "the rightful exclusive enjoyment by Magnolia of its own property." 239 F.2d at 314. While intangible, as well as tangible, property was involved, clearly there was a deprivation of property and of economic benefit; the deprivation was not purely of information having no economic value. In Shushan the scheme was described as one "to obtain sums of money from the Board" and as "a scheme to defraud and to obtain money by false representations." 117 F.2d at 115. To the extent that Shushan has a broad reach, it is in its statement that "(a) scheme to get money" may be within the statute even if it is accomplished by bribery rather than "lies." 117 F.2d at 115. In Steiner the defendants "defrauded the State and its taxpayers out of many thousands of dollars." 134 F.2d at 933. In Bradford the defendants' scheme was "to sell motor buses to the city at exorbitant prices, so that, from the money fraudulently obtained, the schemers would get unearned profits." 129 F.2d at 275. In three of these cases, then, what the victim was to lose, and the villain to gain, was money, while in the fourth case the object was the victim's valuable maps.
Of course, there is no question of Congress' power under the Constitution to make criminal virtually any use of the mails in furtherance of any illegality or scheme contrary to public policy. Badders v. United States, 240 U.S. 391, 393, 36 S.Ct. 367, 368, 60 L.Ed. 706, 708 (1916). See U. S. Postal Service v. Greenburgh Civic Ass'n, 453 U.S. 114, 69 L.Ed.2d 517, 101 S.Ct. 2676 (1981). But in section 1341 Congress plainly has not approached the limit of its powers in this regard. Fasulo v. United States, 272 U.S. 620, 47 S.Ct. 200, 71 L.Ed. 443 (1926); United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). The question, then, is the meaning of the words used in section 1341, as determined in the light of recognized rules for the construction of criminal statutes.
2
United States v. McNeive, 536 F.2d 1245, 1250-51 (8th Cir. 1976), points out, for example, that in United States v. George, 477 F.2d 508 (7th Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 155, 38 L.Ed.2d 61 (1973), "the pecuniary loss occasioned by defendant's nondisclosure of the kickback scheme was a significant factor," and in United States v. Bush, 522 F.2d 641 (7th Cir. 1975), cert. denied, 424 U.S. 977, 96 S.Ct. 1484, 47 L.Ed.2d 748 (1976), the "defendant's conduct deprived the City of the opportunity of securing the most economically favorable contract."
3
For example, the McNeive opinion, 536 F.2d at 1250-51, characterizes United States v. Keane, 522 F.2d 534 (7th Cir. 1975), cert. denied, 424 U.S. 976, 96 S.Ct. 1481, 47 L.Ed.2d 746 (1976), as involving a scheme which "constituted an egregious conflict of interest utilized for personal (economic) gain," and United States v. Isaacs, 493 F.2d 1124 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974), as a scheme to obtain by bribery "special favors and preferential treatment" from the government for the donor, which, the Isaacs opinion discloses, had considerable economic value
United States v. Mandel, 415 F.Supp. 997 (D.Md.1976), aff'd in part, 591 F.2d 1347 (4th Cir. 1979), aff'd, 602 F.2d 653 (4th Cir. 1979) (en banc), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980), cited by the majority, also falls in this same category.
4
The States decision seems difficult to reconcile with United States v. Gradwell, 243 U.S. 476, 37 S.Ct. 407, 61 L.Ed. 857 (1917), at least on any basis other than as suggested in the preceding paragraph of text. Although Gradwell involved a charge under a predecessor to 18 U.S.C. § 371, rather than section 1341, it appears the "defraud" language of the former act has been given a construction certainly as broad, if not indeed somewhat broader, than "defraud" in section 1341. See text, infra. That Gradwell was a case in which the general election for the United States Congress in Rhode Island was to be corrupted by bribing the participating voters, instead of through absentee ballots for nonexistent voters procured by misrepresentation as in States, is not a ground for distinction. It has been held that "defraud" under the predecessor to section 371 encompasses bribery as well as misrepresentation. Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L.Ed. 569 (1910); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Moreover, States seems to give an excessively broad reading to the decisions of this Court, see note 1, supra, and to ignore the rule requiring strict construction of criminal statutes, especially where the subject matter involves conduct traditionally governed by local law enforcement
5
The Second Circuit stated:
"(D)efendants intended to deceive their customers but they did not intend to defraud them, because the falsity of their representations was not shown to be capable of affecting the customer's understanding of the bargain nor of influencing his assessment of the value of the bargain to him, and thus no injury was shown to flow from the deception." United States v. Regent Office Supply Co., 421 F.2d 1174, 1182 (2d Cir. 1970).
6
For example, compare 18 U.S.C. § 371, which provides a penalty of up to five years' imprisonment and a fine of up to $10,000 for conspiracy to defraud the United States. See United States v. Wiesner, 216 F.2d 739 (2d Cir. 1954); Hunsaker v. United States, 279 F.2d 111 (9th Cir.), cert. denied, 364 U.S. 819, 81 S.Ct. 52, 5 L.Ed.2d 49 (1960)
7
Representative decisions include the following
In Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L.Ed. 569 (1910), the defendants bribed employees of the Department of Agriculture to get advance information of its cotton crop estimates. The opinion states that such estimates "are of value and do greatly affect the market price of the crop" and that "the conspiracy was ... to use such information in speculating upon the cotton market." 216 U.S. at 478, 30 S.Ct. at 253. Plainly the defendants intended by their bribery to get something of economic value; moreover, they deprived the United States of the services of its employees.
United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), and Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), are each cases in which the defendant officials took bribes to affect criminal prosecution. Each thus involves the United States being deprived of the services of its officials, as well as the contemplated effect on the criminal prosecution.
In Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), union officials allegedly filed knowingly false "non-Communist" affidavits with the N. L. R. B., intending to thereby procure for the union the services of the N. L. R. B. which would otherwise have been unavailable to it. The opinion notes that "(t)he union thereafter proceeded, on several occasions, to utilize the Board's services, a privilege which it had obtained as a result of these assertedly fraudulent acts." 384 U.S. at 859, 86 S.Ct. at 1843. Thus the fraud contemplated that services, presumably of some economic value, would be furnished by the United States to the benefit of defendants' organization.
United States v. Plyler, 222 U.S. 15, 32 S.Ct. 6, 56 L.Ed. 70 (1911), involved submitting forged vouchers as to character and physical fitness in connection with meeting the requirements for taking the Civil Service examination. There the United States would be induced to administer and grade the examination, and perhaps employ the defendant, by the fraud, which accordingly contemplated some economic detriment to the government and potential economic benefit to the culprit distinct from the deception itself.
8
Analogous reference to the nature of other subjects dealt with by a statute to determine the meaning of the words dealing with a particular subject at issue is seen in Third National Bank v. Impac Limited, Inc., 432 U.S. 312, 322, 97 S.Ct. 2307, 2313, 53 L.Ed.2d 368, 376 (1977)
9
The opinion states:
"... the sections in question only assume to deal with wrongs against the federal government, and expressly describe conspiracies to commit offenses against the United States and conspiracies to defraud the United States, thus limiting the subject-matter of the legislation to matters concerning the federal government alone; and, while the language is general as to persons and conspiracies, the subject with which the statute assumes to deal limits its scope to conspiracies to commit offenses against the United States and conspiracies to defraud the United States. Criminal statutes of a state are general in the sense that they operate upon all members of the public and for the protection of all. The statute in question is general in the sense that it operates upon all in respect to subjects which concern the federal government alone, and for the protection of a single entity alone, that of the government." Curley v. United States, 130 Fed. at 5-6.
10
As the Curley Court suggests,
"A statute which, in general terms, has for its object the protection of the individual property rights of the members of the civic body, is one thing; a statute which has for its object the protection and welfare of the government alone, which exists for the purpose of administering itself in the interests of the public, might be quite another thing. The purpose might be broadly different in the two cases.
"The personal rights and interests of individual members of society needing protection are one thing; the rights and interests of a government needing protection are quite another thing. This results from the fact that the rights and interests of individuals and governments are different. The individual rights relate to life, liberty, and the pursuit of happiness, and the right to acquire and hold property. Governments are instituted for the purpose of protecting such individual rights, and they may protect themselves for that purpose and safeguard their own existence. Therefore the word 'defraud' may have a different meaning in a statute for the protection of the government and its administration than when used in a statute designed for the protection of personal rights.
"....
"In considering a statute enacted for the protection of the government, an entity which, in its right to render service to the people under wise and beneficent laws, holds property only as an incident of governing, and which declares it a penal offense to conspire to defraud the government for any purpose, we need not necessarily, we think, approach the question of the interpretation of the word 'defraud' from the same standpoint from which the question would be considered if the word 'defraud' were used in a state statute enacted for the protection of ordinary property rights of individuals constituting a state; and this is so for the reason that in the one instance the statute in its ordinary acceptation has reference to property and property rights alone, while in the other it has reference to a broader purpose, that of protecting the government in its administration under the law, as well as protecting the property of the government which it holds as an incident to the fundamental purpose for which the government was instituted." Id. at 7-8 (emphasis added).
The Court's opinion also reflects the significance to a broad construction of "defraud," of the "for any purpose" language and of the fact that the commission of any offense against the United States is an alternative object of the conspiracy denounced by the statute:
"The statute thus clearly and expressly carries its provisions beyond wrongs which had been expressly declared to be offenses against the United States, and extends its provisions so as to embrace fraud in any manner for any purpose, and it would thus seem apparent that it was intended by Congress to carry the meaning of the statute beyond frauds in respect to property and property rights by declaring against fraud for any purpose ...." Id. at 4 (emphasis added).
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SUPREME COURT OF ARKANSAS
No. CR-10-53
DEREK SALES Opinion Delivered September 25, 2014
APPELLANT
APPEAL FROM THE BRADLEY
V. COUNTY CIRCUIT COURT
[NO. CR-2005-24-3]
STATE OF ARKANSAS
APPELLEE HONORABLE ROBERT BYNUM
GIBSON, JR., JUDGE
AFFIRMED.
DONALD L. CORBIN, Associate Justice
Appellant Derek Sales appeals the order of the Bradley County Circuit Court denying
his request for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure
37.5 (2009). On appeal, Sales asserts that the circuit court erred in denying his petition
because his trial counsel were ineffective (1) during the sentencing phase of his capital-murder
trial by informing the jury that if Sales was sentenced to life imprisonment, there was a
possibility that he might be pardoned by the governor; and (2) during opening statements after
referring to Sales’s escape from jail while he awaited trial. We find no error and affirm.
Sales was convicted in the Bradley County Circuit Court of the capital murder and
aggravated robbery of Willie York and was sentenced to death and life imprisonment,
respectively. This court affirmed his convictions and sentences in Sales v. State, 374 Ark. 222,
289 S.W.3d 423 (2008), cert. denied, 556 U.S. 1190 (2009). The underlying facts surrounding
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Sales’s crime are set forth in detail in that case, and only a brief recitation of the facts is
necessary here.
Willie York, whom Sales knew and visited, was found murdered in his home on
April 16, 2005. York, who suffered from rheumatoid arthritis, had very limited use of his
hands and could not walk. For this reason, York was mostly confined to a recliner and a bed
that was kept in the living room of his home. It was adduced at trial that Sales was aware that
York, who sold beer by the can out of his home, used a cigar box as a cash register and as
storage for some personal papers. Sales was also aware of the fact that York kept this cigar box
near him at all times.
On the day of the murder, Sales was at the York home several times and purchased
several beers from York. When York’s family left his home at approximately 6:30 that
evening, Sales was there, and he was still there later in the evening when York’s
granddaughters brought him dinner and when York’s daughter stopped by for a short visit.
Later that night, two of York’s granddaughters went to the home to help York get into bed.
When they arrived at the house, they could not see York sitting in his recliner and then
noticed a shadowy figure, whom they recognized as Sales, moving about the house.
Concerned, they called 911. One of the officers at the scene confronted Sales on the front
porch of the home, and after Sales tried to flee, he was taken into custody. York was then
found inside the home lying in a pool of blood on the floor. He was pronounced dead at the
scene, and the medical examiner later determined that there were three possible causes of his
death: strangulation, blunt-force trauma to the abdomen, head, and chest, and a stab wound
2
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of the neck. Sales was subsequently charged with residential burglary, aggravated robbery, and
capital murder, although the residential burglary charge was later nol-prossed.
Sales filed his initial petition pursuant to Rule 37.5 on August 10, 2009. Thereafter,
he sought and received permission from the circuit court to file an amended petition, which
he filed on August 17, 2009. In his amended petition, Sales set forth numerous allegations,
including allegations of ineffective assistance of counsel, in support of his claim for
postconviction relief. The circuit court held an evidentiary hearing on the petition on
September 9, 2009, and entered an order on October 8, 2009, denying Sales’s Rule 37.5
petition. Sales appealed that decision to this court, asserting only two claims of error, which
are the points now raised in the instant appeal. This court reversed the circuit court’s order
and remanded the matter with instructions that the circuit court enter specific findings of fact
and conclusions of law on the two claims raised by Sales in his appeal. Sales v. State, 2013
Ark. 218.1
Upon remand, the circuit court entered an order consistent with our opinion but again
denied Sales’s request for relief. In this order, filed on June 7, 2013, the circuit court first
addressed Sales’s allegation that counsel’s reference to his escape constituted ineffective
assistance of counsel and reversed its previous finding that the reference was “probably”
strategic in nature. The circuit court noted that the escape reference, made during counsel’s
opening statement, “was both unnecessary and foolish,” particularly where the court had
1
In our opinion, we noted that any claims raised by Sales in his Rule 37.5 petition that
were not pursued on appeal were considered abandoned.
3
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ordered in a previous pretrial hearing that any evidence related to the escape would be
excluded under Arkansas Rule of Evidence 403.2 But, the court went on to note that the
reference was merely to the fact that Sales had escaped, and not to any specific conviction for
escape and that there was no further mention of any escape. The circuit court then concluded
that, because the State had presented overwhelming evidence of Sales’s guilt, any reference
to the escape could not have had any effect on the outcome in the guilt phase of the
proceedings.
The circuit court also considered whether there could have been any “carryover” effect
during the sentencing stage. The court began its analysis by noting that the State did not
request that Sales’s convictions for first-degree escape and second-degree battery be submitted
to the jury as aggravators. The circuit court reasoned, however, that had the State so
requested, it would have allowed the convictions to be included along with Sales’s other prior
convictions. Thus, according to the circuit court, Sales suffered no prejudice because the
escape and battery convictions could have been properly admitted as aggravators during the
sentencing portion of his trial.
The circuit court then addressed the issue of counsel’s statement regarding the
possibility of a pardon if Sales was sentenced to life without the possibility of parole made
during counsel’s closing argument in the penalty phase of the trial. The circuit court found
2
The circuit court also noted that Sales was represented by different counsel at the
pretrial hearing but, nevertheless, found that his trial counsel should have familiarized himself
with the transcripts from any pretrial hearings.
4
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that there was no strategic value in such a statement and noted that “[i]f what Colvin said can
be called foolish and inept; Potts’s remarks were perhaps even more so.” While the circuit
court found that Potts’s statement fell below “any reasonable attorney performance standard
as set out in Strickland, [466 U.S. 668 (1984),]” it further found that the statement was a
correct statement of the law and provided the jury with no knowledge that it did not already
possess. Thus, the circuit court concluded that while both statements demonstrated that
counsel’s representation of Sales fell below an objective standard of reasonableness, it could
not conclude that, but for those deficiencies, the result would have been any different. Thus,
according to the circuit court, Sales suffered no prejudice within the meaning of Strickland,
as neither remark had any effect on the verdict at either stage. From that order comes the
instant appeal.
It is well settled that this court does not reverse the denial of postconviction relief
unless the circuit court’s findings are clearly erroneous. Montgomery v. State, 2011 Ark. 462,
385 S.W.3d 189. A finding is clearly erroneous when, although there is evidence to support
it, the appellate court, after reviewing the entire evidence, is left with the definite and firm
conviction that a mistake has been committed. Id. In making a determination on a claim of
ineffective assistance of counsel, this court considers the totality of the evidence. Id.
Our standard of review also requires that we assess the effectiveness of counsel under
the two-prong standard set forth by the Supreme Court of the United States in Strickland.
Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. In asserting ineffective assistance of
counsel under Strickland, the petitioner first must demonstrate that counsel’s performance was
5
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deficient. Id. This requires a showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id.
The reviewing court must indulge in a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance. Id. The defendant claiming ineffective
assistance of counsel has the burden of overcoming that presumption by identifying the acts
and omissions of counsel which, when viewed from counsel’s perspective at the time of trial,
could not have been the result of reasonable professional judgment. Henington v. State, 2012
Ark. 181, 403 S.W.3d 55.
Second, the petitioner must show that the deficient performance prejudiced the
defense, which requires a demonstration that counsel’s errors were so serious as to deprive the
petitioner of a fair trial. Myers v. State, 2012 Ark. 143, 400 S.W.3d 231. This requires the
petitioner to show that there is a reasonable probability that the fact-finder’s decision would
have been different absent counsel’s errors. Id. A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the trial. Id.
Unless a petitioner makes both Strickland showings, it cannot be said that the
conviction resulted from a breakdown in the adversarial process that renders the result
unreliable. Williams, 2011 Ark. 489, 385 S.W.3d 228. We also recognize that “there is no
reason for a court deciding an ineffective assistance claim . . . to address both components of
the inquiry if the defendant makes an insufficient showing on one.” Anderson v. State, 2011
Ark. 488, at 3–4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697).
6
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Sales’s first point on appeal is that the circuit court erred in denying his Rule 37.5
petition on the ground that he received ineffective assistance of counsel because one of his
attorneys, during the sentencing phase of his trial, informed the jury that Sales could be
pardoned in the future if he were to receive a life sentence. The State asserts that this court
should affirm the circuit court because it reached the right result, although for the wrong
reason. Specifically, the State argues that, contrary to the circuit court’s finding that counsel’s
performance was deficient, the statement by counsel was actually a matter of trial strategy and
thus provides no basis for Rule 37.5 relief. Moreover, the State asserts that the circuit court’s
denial of relief on this ground was proper because Sales cannot demonstrate the required
prejudice under Strickland. We agree with the State that the circuit court correctly concluded
that Sales was not entitled to relief because he could not demonstrate that he was prejudiced
as required by the second prong of Strickland.
During closing argument in the sentencing phase of Sales’s trial, one of his trial counsel,
Gary Potts, was arguing to the jury that Sales should be sentenced to life imprisonment
without parole, instead of the death penalty, which prompted an objection from Potts’s co-
counsel, Bing Colvin. The following colloquy illustrates the pertinent exchange:
MR. POTTS: Life without parole is exactly what it says. If he’s convicted to
life without parole, he goes into prison for life. Now, true, he possibly could be
pardoned at some time in the future but realistically that won’t happen because no
governor is going to risk re-election –
MR. COLVIN: Your Honor, I hate to object to my own counsel’s argument.
If he’s sentenced to life without parole, he’s never going to get out. He’s never going
to get out and they’re not entitled -- What we say and what the prosecution says is not
7
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even to insinuate that he might get out if he’s pardoned if you’re sentenced to life
without parole.
THE COURT: Well, he’s just saying it’s one in a million. Let the jury decide.
Where are you going, Mr. Potts?
MR. POTTS: I was leaning toward that we never can tell what future laws may
be but today life without parole means life without parole. Okay? He will not see the
outside of a prison. He will spend the rest of his life in a maximum-security
penitentiary.
Sales now argues that this statement by his own counsel constituted deficient performance
because he basically argued to the jury that any sentence other than the death penalty carried
the possibility of Sales living in the community at some point in the future. Further, Sales
asserts that he can demonstrate prejudice from this deficient performance as there is a
reasonable probability that the sentencing outcome may have been different but for counsel’s
statement.
Sales acknowledges that this court reached a contrary conclusion in Greene v. State, 356
Ark. 59, 146 S.W.3d 871 (2004), but argues that his case is distinguishable from the facts in
Greene. There, in an appeal from an order denying postconviction relief, Greene asserted that
his trial counsel was ineffective for not objecting to a statement by the prosecuting attorney
that an inmate sentenced to life without parole may still be released pursuant to commutation,
pardon, or reprieve by the governor. Greene conceded that this court had previously ruled
in Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001) (Greene III), one of Greene’s direct
appeals, that such a statement did not constitute serious error but argued that this court should
overrule its decision in Greene III. This court rejected Greene’s argument and distinguished
8
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the cases he relied on, Simmons v. South Carolina, 512 U.S. 154 (1994) and Caldwell v.
Mississippi, 472 U.S. 320 (1985), by pointing out that those cases did not relate to the issue
of the State seeking to inform the jury of the full status of the law. This court concluded that
Greene was not entitled to postconviction relief because his counsel was not ineffective for
failing to make a meritless argument.
Sales asserts that this is not a case where the deficient performance was the result of an
attorney failing to object to the prosecutor’s statements; rather, it was his own counsel making
the questionable statement thereby causing his own co-counsel to object. Although Sales is
correct that this is a factual distinction between his case and that of the defendant in Greene,
he does not explain in any way how this distinction supports his conclusion that he was
prejudiced. Sales simply argues in his brief to this court that there is a reasonable probability
that the sentencing outcome may have been different “but for counsel’s foolish, inept, and
lame comment.” The mere fact that the jury chose the more severe of the two possible
punishments is not a sufficient demonstration of prejudice in light of the aggravators found
to exist by the jury. Moreover, the statement by Sales’s attorney, although unnecessary, was
a correct statement of the law as set forth in Arkansas Code Annotated section 5-4-606, which
provides in relevant part that a person sentenced to a term of life imprisonment without parole
“shall not be released except pursuant to commutation, pardon, or reprieve of the Governor.”
Ark. Code Ann. § 5-4-606 (Repl. 1997). Accordingly, we cannot say that the circuit court
erred in concluding that Sales failed to satisfy the prejudice prong of Strickland and therefore
was not entitled to relief under Rule 37.5. And, because Sales cannot satisfy this requirement
9
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of Strickland, it is not necessary to address the issue of whether counsel’s statement constituted
deficient performance. See, e.g., Anderson, 2011 Ark. 488, 385 S.W.3d 783.
Sales asserts in his second point on appeal that his trial counsel was ineffective for
mentioning during opening statement that Sales had escaped from jail while he awaited trial.
Sales argues that the reference to the escape cannot be considered trial strategy and that there
is a reasonable probability that the outcome of the guilt/innocence phase would have been
different absent counsel’s error. The State raises several arguments in support of its contention
that the circuit court did not err in denying Rule 37.5 relief, including that evidence of Sales’s
guilt was overwhelming, such that counsel’s statement was not sufficient to change the
outcome of Sales’s trial.
During his opening statement, one of the attorneys for Sales stated as follows:
There will be proof in the case that we escaped, that we were arrested a year
ago. The proof’s going to be that Sales down there, the Sales in the jail that don’t
have lights. It’s like being in a dungeon. Mr. Sales was in jail for something he didn’t
do. It was Christmas Eve, he had the blues. He had a person with him that was
charged with capital murder, that had murdered a couple of his roommates and it just
happened. That was far after the trial that we’re here for today that we didn’t do.
Then, during the State’s presentation of its case, one of the State’s witnesses, who was a jailer
in Warren, began to reference the night that Sales escaped. Before the witness could go into
any detail, defense counsel objected on the basis that the witness’s answer was unresponsive
to the question asked. The circuit court then called the attorneys to the bench and stated the
following:
I’ll tell you what I’m going to do. I already told you all at pretrial -- you
maybe weren’t involved at that time, I think Mr. Morehead was -- but under 403 I
10
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was going to disallow any reference to any subsequent jail escape attempt or jail escape.
I thought that clearly the prejudice would outweigh any probative value. The only
probative value would be an admission of guilt. It did not follow in close enough
proximity to these original events to have any probative value there. It’s just
inadmissible and it’s irrelevant to these charges. Mr. Colvin has at least partially
opened the door; however, you’re not bringing it in so much to rebut. I don’t think
it has a thing to do with this case. I don’t think it should have been mentioned to
begin with and I want it to end now because this is a capital case and I’m not going
to go down the road with something that has absolutely nothing to do with what this
man’s on trial for, and it’s highly, highly prejudicial. If either side wants me to I’ll
instruct the jury at the appropriate time, now is not it, that they are to disregard any
reference by Mr. Colvin to any events at the jail subsequent to his arrest unless it had
to do with some spontaneous declaration by this man, vis-a-vis guilt on this, what he’s
standing trial on now. If he’d confessed something to the jailer, that’s one thing. But
just to go into the escape, no, I’m not going to allow it. Thank you.
The circuit court offered to admonish the jury at a later point in the trial that it was not to
consider any reference to the escape. Counsel later requested such an admonition and the
court instructed the jury just before closing arguments as follows:
Ladies and gentlemen of the jury, at the outset of this trial, I’ve forgotten if it was in
voir dire or in opening statements, defense counsel made some reference to a
subsequent escape. You’re not to consider his remarks or anything concerning that
whatsoever in your deliberations here today.
The question now presented is whether this statement by counsel constituted
ineffective assistance of counsel and, if so, can Sales demonstrate prejudice under Strickland.
On remand, the circuit court in addressing this issue concluded that counsel was ineffective
for referencing the escape but concluded that “Sales suffered no prejudice by Colvin’s inept
and untimely remark. The Court further finds that both convictions were admissible, but
were unused, at the sentencing stage.” In reaching the conclusion that Sales suffered no
prejudice at either stage of the trial, the circuit court noted that the State’s proof of guilt at
11
Cite as 2014 Ark. 384
trial was overwhelming and that the murder was “gruesome and sadistic.” We agree with the
circuit court that Sales failed to satisfy the prejudice prong of Strickland.
In support of his argument, Appellant asserts in conclusory fashion that the “prejudice
occurred by the jury hearing that not only was [Appellant] accused of capital murder and
aggravated robbery, he had already escaped from jail, into their community, with another
murderer.” Even if we disregard the conclusory nature of Sales’s argument of prejudice in the
guilt phase, his argument still fails. We simply cannot conclude that counsel’s one reference
during opening statement to the escape substantially changed the outcome of this portion of
the trial where there was overwhelming evidence of Sales’s guilt, as we noted in his direct
appeal when he challenged the sufficiency of the evidence against him. See Sales, 374 Ark.
222, 289 S.W.3d 423.
Moreover, to the extent that Sales’s argument can be construed broadly enough to
encompass an argument that he was prejudiced during the sentencing phase of his trial, such
an argument also fails. The circuit court considered the issue of prejudice during the
sentencing phase and concluded that Sales did not establish prejudice because, had the State
moved to introduce Sales’s convictions for escape and battery, the circuit court would have
allowed them to be admitted during sentencing. The circuit court is correct that had the State
sought to admit Sales’s conviction for first-degree escape, it would have been admissible for
use as an aggravator during sentencing.
A prior felony committed after the crime in question, but which resulted in a
conviction prior to the sentencing hearing, may be used as a prior-violent-felony aggravator.
12
Cite as 2014 Ark. 384
See, e.g., Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994). The escape at issue occurred
on December 24, 2005, while Sales was awaiting trial on these charges. Prior to his trial on
the charges stemming from York’s murder, the State tried Sales for several charges related to
the escape, including first-degree escape. He was convicted on August 15, 2006, nine months
before his trial in this case. In convicting Sales of the offense of first-degree escape, the State
had to prove that he used or threatened the use of physical force in escaping from custody.
See Ark. Code Ann. § 5-54-110(a)(1)(A) (Supp. 2005). Thus, during sentencing at Sales’s
capital-murder trial, the State could have moved to introduce Sales’s conviction for escape to
be used as an aggravating circumstance in the jury’s weighing of the death penalty, because
the prior felony necessarily involved the use or threat of violence.
Moreover, the State submitted Sales’s other prior convictions for aggravated robbery,
rape, and false imprisonment as aggravators during sentencing. In light of the aggravators that
were submitted to the jury when weighing the death penalty, as well as the fact that the State
could have introduced the additional conviction for first-degree escape, Sales cannot
demonstrate with a reasonable probability that the outcome of his sentencing trial would have
been different absent counsel’s reference to Sales’s escape. Accordingly, we cannot say that
the circuit court erred in denying Sales’s postconviction petition on this ground where he
failed to demonstrate prejudice at either phase of his trial.
The order of the circuit court is affirmed.
Harrelson Law Firm, P.A., by: Jeff Harrelson, for appellant.
Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
13
|
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0013-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIE E. SHUMAN, JR., a/k/a
PUMPKIN SHUMAN,
Defendant-Appellant.
__________________________________________________________
Submitted September 27, 2017 – Decided October 12, 2017
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
08-06-0597.
Joseph E. Krakora, Public Defender, attorney
for appellant (Karen Ann Lodeserto, Designated
Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Joseph Paravecchia,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Willie Shuman, Jr. appeals from the April 20, 2016
order of the trial court denying his petition for post-conviction
relief (PCR) without an evidentiary hearing. We affirm.
A Mercer County grand jury charged defendant and co-
defendants Michael Smith, Dennis Merritt (Dennis),1 and Melanie
Merritt (Melanie) with first-degree attempted murder, N.J.S.A.
2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); fourth-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four);
second-degree possession of a handgun for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count five); third-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b) (count six); and first-degree
conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3
(count seven).
Defendant moved to suppress the videotaped statements he gave
to the police after he was arrested. A Miranda2 hearing was
conducted on July 23, 2009. Detective Matthew Kemp of the West
Windsor Police Department testified on behalf of the State at the
1
Because two co-defendants share the same surname, we use their
first names to avoid confusion. We intend no disrespect in doing
so.
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2 A-0013-16T2
hearing. Defendant did not testify or call any witnesses at the
hearing. The portions of the videotapes regarding the Miranda
warnings defendant received and other aspects of the voluntariness
of his statements were played during the hearing.
In a detailed oral decision rendered on November 4, 2009, the
motion judge noted that the defendant read the Miranda warning
form aloud and signed the form before each statement was given.
The judge found that defendant understood his rights and knowingly
waived them. She further found that defendant never asked to stop
the interviews and never asked for an attorney. The judge also
found that no promises were made to defendant regarding his bail
or seeing his family. When defendant asked for certain assurances
the detectives told him they could not do that. At one point the
detective told defendant: "We can't promise you anything."
The second interview was initiated by defendant's own request
to speak to the investigating detective. Defendant was given
breaks and a cigarette during the interviews. The police did not
intimidate or threaten defendant. For these reasons, the motion
judge held that the statements were given voluntarily and were
admissible at trial.
Defendant was tried separately. Following a five-day trial,
the jury acquitted defendant of conspiracy to commit murder (count
seven) but convicted him of the lesser-included offense of second-
3 A-0013-16T2
degree conspiracy to commit aggravated assault and counts one
through six of the indictment.
The facts underlying defendant's convictions are set forth
in our opinion in his direct appeal. Therefore, we review only
the facts pertinent to the issues raised.
On December 15, 2007, Chaz Mathis helped
Melanie and her husband Dennis move their
apartment furnishings from Trenton into a
storage unit in Ewing, New Jersey. Mathis
transported the couple's belongings in his
van.
Five days later, on December 20, 2007,
Melanie called Mathis and accused him of
stealing a television and a gold chain during
the move. Mathis denied the allegations. Later
that day, Mathis was approached outside his
Trenton boarding house by Smith. Smith
questioned Mathis about the items, and Mathis
again denied the allegations. Mathis invited
Smith to inspect his bedroom for the items,
but Smith said "I believe you" and left.
Following his conversation with Smith,
Mathis went to his second-floor bedroom to
take a nap. About forty-five minutes later,
he heard his name being called and woke up to
see a man in the doorway, holding a gun. Mathis
tried "to roll out of the way," but the gunman
shot him four times.
. . . .
Detective Matthew Kemp of the West
Windsor Township Police Department
investigated the shooting. When Kemp spoke
with Mathis at the hospital, Mathis said he
believed Dennis was involved, and that a
"black male, very big, tall, six foot four,
4 A-0013-16T2
[weighing] 300 pounds" was involved. This
matched the description of Smith.
Kemp met with Smith on December 26, 2007.
According to Smith, he only gave Kemp "a
little bit" of information about the incident
at that time. However, when they met a second
time on January 2, 2008, Smith provided Kemp
with a formal statement, which explained what
happened.
On January 17, 2008, Smith was arrested
and charged with attempted murder and other
offenses. The following day, while in custody,
Smith asked to speak with Kemp. During that
meeting, Smith identified defendant as the
shooter. Defendant was arrested on January 23,
2008.
When Kemp interviewed defendant on
January 24, 2008, he confessed to shooting
Mathis and provided the police with a
videotaped statement, which was admitted into
evidence at defendant's trial. In his
statement, defendant confirmed that Smith led
him to Mathis' bedroom. Defendant also
admitted that he pushed open the unlocked door
to Mathis' room, saw Mathis "on the bed," and
"squeezed [the gun] four times."
Neither Dennis nor Melanie testified at
trial. However, Smith testified for the State,
and he made an in-court identification of
defendant as the shooter. . . .
Defendant testified on his own behalf.
On direct examination, defendant denied he was
involved in the shooting. Defendant admitted
he told Kemp he shot Mathis, but defendant
claimed he did so because he "felt it was the
only way [he] was going to get home to [his]
fiancée and kids."
On cross-examination, defendant conceded
he had signed a Miranda form and a waiver of
5 A-0013-16T2
rights prior to his videotaped statement.
Nevertheless, he testified his confession was
a lie[.]
[State v. Shuman, No. A-0859-10 (App. Div.
March 11, 2013) (slip op. at 3-7), certif.
denied, 217 N.J. 52 (2014).]
At sentencing, the court merged counts two, three, and four
into count one and sentenced defendant to a seventeen-and-one-
half-year prison term subject to the eighty-five percent period
of parole ineligibility mandated by the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. Defendant received concurrent
sentences on counts five and six. Appropriate penalties, fees,
and assessments were also imposed.
On direct appeal, defendant raised the following arguments:
(1) the admission of testimonial hearsay of non-testifying alleged
accomplices violated defendant's constitutional right to
confrontation; (2) the conviction for possession of a weapon for
an unlawful purpose (count five) should have been merged into
count one (attempted murder); and (3) defendant's sentence was
manifestly excessive. Shuman, supra, (slip op. at 3). Notably,
defendant did not argue that the denial of his suppression motion
was error.
We concluded that defendant received a fair trial and an
appropriate sentence. We affirmed the convictions and sentence
but remanded for entry of an amended judgment of conviction merging
6 A-0013-16T2
count five into count one. On March 12, 2013, an amended judgment
of conviction was entered. Defendant's petition for certification
was denied by the Supreme Court on January 14, 2014. State v.
Shuman, 217 N.J. 52 (2014).
Defendant filed a timely pro se PCR petition that was
supplemented with a brief by appointed PCR counsel. Through
counsel, defendant raised the following issues:
POINT I
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, DUE PROCESS OF THE LAW AND OF HIS
RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL
FAILED TO CALL THE DEFENDANT TO TESTIFY AT THE
MIRANDA HEARING AND SUCH FAILURE RESULTED IN
THE ADMISSION OF DEFENDANT'S INCULPATORY
STATEMENT.
POINT II
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, DUE PROCESS OF THE LAW AND OF HIS
RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL
FAILED TO PRESENT AN ALIBI DEFENSE.
POINT III
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, DUE PROCESS OF THE LAW AND OF HIS
RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL
FAILED TO ARGUE THAT MICHAEL SMITH WAS UNABLE
TO IDENTIFY THE DEFENDANT AS THE SHOOTER.
7 A-0013-16T2
POINT IV
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, DUE PROCESS OF THE LAW AND OF HIS
RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL
FAILED TO ARGUE THAT A FAMILY COURT JUDGE
IMPERMISSIBLY ISSUED THE ARREST WARRANT.
Defendant claims that at the time of the shooting he was with
a man named "Orlando" at Orlando's grandmother's house, located
at Randle and Elm Streets in Trenton, New Jersey. He argues that
even though he shared this information with trial counsel, his
counsel was ineffective by failing to investigate this alibi and
present it as a defense at trial.
Defendant did not provide the full name of, or identifying
information for, the alleged alibi witness to his trial counsel
or the PCR court. Nor did he provide the specific facts that an
investigation would have revealed. His PCR application did not
include any affidavits or certifications regarding the alibi from
any alibi witness.
The State submitted a certification of defendant's trial
counsel in opposition to defendant's PCR claims. In his
certification, trial counsel stated: "At one point he briefly
remarked that he was 'probably' at a friend's grandmother's house
at the time of the shooting. He indicated he would get her name
and address. I do not believe I was ever given her name." Trial
8 A-0013-16T2
counsel then stated: "The fact that this could be a weak alibi
was certainly a consideration; however there were other factors
that questioned the value and credibility of the 'alibi[.]'" Those
factors included: (1) defendant's failure to raise the alibi
shortly after arrest; (2) the alibi was not supported by
independent objective evidence; (3) defendant gave a statement
admitting he was present and involved in the shooting incident;
and (4) defendant rarely mentioned his possible presence elsewhere
during conversations with trial counsel. Taking these factors
into account, trial counsel concluded that defendant's unsupported
suggestion that he may have been at someone's residence at the
time of the incident "was not a provable alibi that could have
altered the outcome of the case."
Defendant did not testify at the Miranda hearing. He claims
that he would have testified that he only gave the incriminating
statement to the police because they promised him that he could
go home to his family. The transcripts of the videotaped
statements are devoid of any such promises. Moreover, as noted
by the PCR judge,
the facts surrounding the statements made to
police by the Petitioner do not support his
claim. On January 23, 2008, Detective Kemp
placed the Petitioner under arrest.
Immediately following his arrest, Petitioner
waived his Miranda rights and spoke to the
detective investigating the shooting. The
9 A-0013-16T2
Petitioner stated he had no information
regarding the shooting. On the following day,
January 24, 2008, the Petitioner requested to
speak to Detective Kemp about the shooting.
Detective Kemp did not initiate the second
interview. During the second interview, after
waiving his Miranda rights, the Petitioner
admitted to shooting Mathis at the request of
[Dennis] Merritt and [Melanie] Gerald.
[(citations omitted).]
The PCR was heard by Judge Robert C. Billmeier, who issued a
seventeen-page written decision denying defendant's petition
without conducting an evidentiary hearing. The judge found that
defendant failed to establish a prima facie case of ineffective
assistance of counsel, concluding that: (1) defendant failed to
show that trial counsel's representation fell below an objective
standard of reasonableness; (2) defendant failed to demonstrate a
reasonable probability that, but for trial counsel's alleged
unprofessional errors, the outcome of the trial would have been
different; (3) trial counsel was not ineffective by failing to
argue in summation that Smith did not see defendant actually shoot
the victim; and (4) trial counsel was not ineffective by failing
to argue that a Family Law judge impermissibly issued his arrest
warrant, since that claim was legally baseless. Defendant appeals
from that ruling.
In his present appeal, defendant raises the following
arguments:
10 A-0013-16T2
POINT ONE
A. DEFENDANT SHOULD BE ENTITLED TO AN
EVIDENTIARY HEARING BECAUSE HIS TRIAL ATTORNEY
WAS INEFFECTIVE IN FAILING TO PRESENT AN ALIBI
DEFENSE.
B. DEFENDANT SHOULD BE ENTITLED TO AN
EVIDENTIARY HEARING BECAUSE HIS TRIAL ATTORNEY
WAS INEFFECTIVE IN FAILING TO CALL HIM TO
TESTIFY AT HIS MIRANDA HEARING.
We affirm substantially for the reasons stated by Judge
Billmeier in his thorough and well-reasoned written decision. We
add only the following comments.
PCR petitioners are not automatically entitled to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170
(App. Div.), certif. denied, 162 N.J. 199 (1999). Rather,
[a] defendant shall be entitled to an
evidentiary hearing only upon the
establishment of a prima facie case in support
of post-conviction relief, a determination by
the court that there are material issues of
disputed fact that cannot be resolved by
reference to the existing record, and a
determination that an evidentiary hearing is
necessary to resolve the claims for relief.
[R. 3:22-10(b).]
To establish a prima facie claim of ineffectiveness of
counsel, the defendant
must satisfy two prongs. First, he must
demonstrate that counsel made errors so
serious that counsel was not functioning as
the counsel guaranteed the defendant by the
Sixth Amendment. An attorney's representation
11 A-0013-16T2
is deficient when it [falls] below an
objective standard of reasonableness.
Second, a defendant must show that the
deficient performance prejudiced the defense.
A defendant will be prejudiced when counsel's
errors are sufficiently serious to deny him a
fair trial. The prejudice standard is met if
there is a reasonable probability that, but
for counsel's unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability simply
means a probability sufficient to undermine
confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014)
(citations omitted).]
"A court shall not grant an evidentiary hearing . . . if the
defendant's allegations are too vague, conclusionary or
speculative[.]" R. 3:22-10(d); see State v. Marshall, 148 N.J.
89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.2d
88 (1997). "Rather, defendant must allege specific facts and
evidence supporting his allegations." State v. Porter, 216 N.J.
343, 355 (2013). As we explained in Cummings:
[I]n order to establish a prima facie claim,
a petitioner must do more than make bald
assertions that he was denied the effective
assistance of counsel. He must allege facts
sufficient to demonstrate counsel's alleged
substandard performance. Thus, when a
petitioner claims his trial attorney
inadequately investigated his case, he must
assert the facts that an investigation would
have revealed, supported by affidavits or
certifications based upon the personal
knowledge of the affiant or the person making
the certification.
12 A-0013-16T2
[Cummings, supra, 321 N.J. Super. at 170.]
We review a judge's decision to deny a PCR petition without
an evidentiary hearing for abuse of discretion. State v. Preciose,
129 N.J. 451, 462 (1992).
Defendant claims that his trial counsel was ineffective by
inadequately investigating his alibi defense and not presenting
it at trial. We disagree.
Rule 3:22-10(c) requires the factual assertions in support
of defendant's alibi defense be made by affidavit or certification
based on personal knowledge in order to secure an evidential
hearing. State v. Jones, 219 N.J. 298, 312 (2014); Porter, supra,
216 N.J. at 355. Defendant did not satisfy this requirement. As
noted by Judge Billmeier, defendant did not provide the full name
of, or identifying information for, the alleged alibi witness. He
did not assert specific facts that an investigation would have
revealed and failed to submit any affidavits or certifications
from any witness attesting to the alibi. Moreover, the alibi is
contradicted by defendant's own statement to the police. This led
trial counsel to conclude that the alibi defense was too weak to
pursue at trial.
"[A]ny claimed errors of counsel must amount to more than
mere tactical strategy." State v. Drisco, 355 N.J. Super. 283,
13 A-0013-16T2
290 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003) (citing
Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052,
2065, 80 L. Ed. 2d 674, 694-95 (1984)). A trial counsel's
strategic decision to withhold a weak alibi defense does not
constitute ineffective assistance of counsel. See id. at 290-91
(explaining that a trial counsel's fear that a weak alibi defense
could cause more harm than good is the type of strategic decision
that should not be second guessed on appeal).
For the reasons recounted in his certification, trial counsel
reasonably concluded that defendant's unsupported suggestion that
he may have been at someone's residence at the time of the incident
"was not a provable alibi that could have altered the outcome of
the case." Our review of the record leads us to conclude that the
judge's determination that trial counsel made a strategic decision
not to present the alibi defense was based on substantial credible
evidence in the record. Moreover, defendant has not shown that
there is a reasonable likelihood that the alibi defense would have
been successful if properly investigated and presented at trial.
Defendant also argues that his trial counsel was ineffective
by failing to have him testify at the Miranda hearing, resulting
in the admission of his inculpatory statement in which he confessed
to shooting the victim. Defendant claims he would have testified
14 A-0013-16T2
that he only gave the statement to police because they promised
him he could go home to his family if he did so.
Deciding whether to call defendant as a witness at the Miranda
hearing is one of the most difficult strategic decisions that
trial counsel must confront. See State v. Arthur, 184 N.J. 307,
320 (2005).
A trial attorney must consider what testimony
a witness can be expected to give, whether the
witness's testimony will be subject to
effective impeachment by prior inconsistent
statements or other means, whether the witness
is likely to contradict the testimony of other
witnesses the attorney intends to present and
thereby undermine their credibility, whether
the trier of fact is likely to find the witness
credible, and a variety of other tangible and
intangible factors.
[Id. at 320-21.]
Our review of such decisions is highly deferential. Id. at 321.
In order to prevail on this claim, defendant must show that
the failure to call him as a witness was a serious professional
error, and that had he testified during the hearing the effect
would have been the suppression of the statement and a different
trial outcome. Defendant failed to satisfy either prong.
Defendant has not shown that his testimony at the Miranda
hearing would have resulted in the suppression of his statement
and a different trial outcome. His bare allegation that he
confessed to the police only because he was promised that he would
15 A-0013-16T2
be able to reunite with his family is contradicted by the record.
The decision to not have him testify at the hearing appears to
have been a reasonable, strategic decision made by an experienced
attorney, not a serious professional error.
In summary, we discern no abuse of discretion by the PCR
court. Judge Billmeier correctly concluded that defendant did not
establish a prima facie case of ineffective assistance of counsel
and was not entitled to an evidentiary hearing.
The remaining issues raised by defendant lack sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
16 A-0013-16T2
|
NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0270n.06
No. 14-3522 FILED
Apr 14, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
PAM HALE, )
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE SOUTHERN
MERCY HEALTH PARTNERS, )
DISTRICT OF OHIO
)
Defendant-Appellee. )
)
)
BEFORE: SILER, GRIFFIN, and WHITE, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiff Pam Hale worked for defendant Mercy Health Partners until she was fired for
modifying her timesheets and failing to comply with Mercy’s timekeeping rules. She alleges
that her termination violated, among other things, the Age Discrimination in Employment Act,
and the public policy of the state of Ohio. The district court granted Mercy’s motion for
summary judgment on all claims, and Hale appealed. For the reasons set forth below, we affirm.
I.
Hale, who was forty-four years old at the time of her termination, was a buyer for Mercy.
She began working for Mercy in 1999 and continued until 2011, when she was terminated for
violating Mercy’s timekeeping policy. Although Hale split her time between Mercy’s Anderson
and Clermont campuses, she spent most of her time at the Anderson campus.
No. 14-3522
Hale v. Mercy Health Partners
Hale was primarily responsible for controlling inventory and purchasing drugs for use at
Mercy’s Anderson hospital. She was also the primary timekeeper for the Anderson pharmacy;
that meant she “did the edits” for her coworker’s timesheets and overtime records. As a
timekeeper, Hale was responsible for editing and sometimes approving other Mercy Anderson
pharmacy employees’ timesheets.
Mercy’s policy requires its employees to record time by clocking in and out over a phone
system. Hale attended a training in 2008 regarding proper timekeeping procedures. There, she
was advised that “timekeepers may not edit timecards . . . in any . . . way . . . to change the time
actually worked by the employee;” and that “a timekeeper falsifying or tampering with
employees’ timecards can . . . be a reason for . . . termination.”
Despite this training, instead of using the phone system to clock in and out, in accordance
with Mercy’s policy, Hale would note her time and later enter her hours into the computerized
time system. When she worked offsite, or from home, Hale would alter her time records to add
time accordingly.
On June 10, 2011, Hale spoke on the phone with a Drug Enforcement Agency (DEA)
agent who asked her about the Clermont campus’s recordkeeping regarding drugs that were
ordered for the Clermont campus but used at Mercy’s offsite emergency room in Mt. Orab. Hale
told the agent that she always properly filed the correct DEA forms, but could not be sure that
other buyers did the same. Hale called her supervisor, Bill Carroll, and informed him that the
DEA was “checking on the Mt. Orab situation,” but did not tell any other Mercy personnel about
the call.
About an hour before Hale received the phone call from the DEA, Mercy Clermont’s
CEO, Gayle Heintzelman, received a phone call about an inventory problem from a pharmacist.
-2-
No. 14-3522
Hale v. Mercy Health Partners
The pharmacist contacted Heintzelman because he could not locate Hale. Concerned about
Hale’s absence, Heintzelman emailed Laura Gaynor, a senior human resources consultant at
Mercy Clermont, and ordered her to audit Hale’s time records to determine how much time Hale
was spending at each Mercy facility. Gaynor conducted the audit and emailed Heintzelman that
the results were “very interesting.” Gaynor sent the results of the audit to Mercy’s human
resources director, Shelly Sherman. Gaynor told Sherman that, although Hale was scheduled to
spend forty hours per pay period at Clermont, she averaged only sixteen hours per pay period.
The audit also revealed that Hale: (1) had not clocked in or out using the phone system for all
four pay periods covered by the audit, despite being within the class of employee required to use
the phone system; (2) edited her own time, including some “questionable edits” such as “adding
an hour to her clock out 3 days later”; (3) claimed time worked before actually entering the time;
(4) repeatedly failed to clock out for lunches and edited her timesheets days later; and
(5) submitted two self-approved timesheets and some with no approval at all. Gaynor forwarded
these same findings to Heintzelman.
On June 14, 2011, Hale was told that she was to meet with Heintzelman at 2:00 that
afternoon. She told Carroll about the meeting ahead of time, and Carroll did not know the reason
for the meeting. However, prior to the 2:00 meeting, Carroll met with Sherman and
Heintzelman, who showed him the audit. Sherman and Heintzelman asked Carroll if he could
explain the timesheet discrepancies revealed in the audit; Carroll said he could not. Carroll was
told that if Hale could not explain the discrepancies at the 2:00 meeting, Sherman and
Heintzelman “would move on to termination” and that Carroll was to prepare a schedule without
Hale on it.
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Heintzelman and Gaynor were both present at the 2:00 meeting. Gaynor asked Hale to
review the audit of her timekeeping, which was over twenty pages long. Plaintiff averred she
had not seen a document like it before. Hale asked if she could get her calendar to explain the
edits to her timekeeping, but Gaynor refused. Gaynor and Heintzelman asked Hale to explain
the edits, but she could not; however, Hale did not deny making the edits. Hale now admits that
what she did was unethical, but insists that it was how she was trained to enter her time.
According to Heintzelman, when confronted at the meeting with her edits, Hale hung her head
and said “I should not have done it.”
At the meeting, Hale was presented with termination documents. Hale believed that the
decision to terminate her had been made before the meeting. The stated reason for Hale’s
termination was “[f]alsifying timekeeping records” and approving her own timesheet in violation
of the timekeeping policy.
After her termination, Hale filed an internal grievance with Mercy’s resolution team
requesting reinstatement with no timekeeper duties. In her grievance letter, Hale admitted that
“[w]hat [she] did was unethical,” but also claimed that her termination was “unethical.” She
acknowledged that clocking her time by computer rather than by the phone system was
“unacceptable,” but “became a convenience.” The resolution team recommended Mercy uphold
Hale’s termination. Hale’s termination was ultimately affirmed by Mercy’s chief operating
officer.
Hale filed for unemployment compensation benefits. During those proceedings, Hale
successfully subpoenaed her time-records audit, which Mercy had previously refused to provide
her. The Ohio Unemployment Compensation Review Commission hearing officer found that
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Mercy did not establish that Hale “knowingly falsified time records” and concluded that Mercy
terminated Hale without just cause.
The U.S. Equal Employment Opportunity Commission dismissed Hale’s charge of
discrimination on June 29, 2012, and issued a right-to-sue letter. Hale then brought suit in the
district court, alleging age discrimination under the ADEA, 29 U.S.C. §§ 621–634; sex
discrimination under Ohio Revised Code § 4112.02; and wrongful termination in violation of
Ohio public policy. The district court granted Mercy’s motion for summary judgment on all
claims. Hale timely appealed only her ADEA and Ohio public policy claims.
II.
We review the district court’s grant of summary judgment de novo and its findings of fact
for clear error. U.S. ex rel. Wall v. Circle C Constr., L.L.C., 697 F.3d 345, 350 (6th Cir. 2012).
Summary judgment is appropriate when, viewing the facts and drawing all inferences in the light
most favorable to the nonmoving party, “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Id. at 351 (internal
citation and quotation marks omitted); see also Fed. R. Civ. P. 56(a). “A genuine issue of
material fact exists when there is sufficient evidence for a trier of fact to find for the non-moving
party”[;] however, “[a] mere scintilla of evidence . . . is not enough for the non-moving party to
withstand summary judgment.” U.S. ex rel Wall, 697 F.3d at 351 (citations and internal
quotation marks omitted).
III.
We turn first to Hale’s ADEA claim. Under the ADEA, it is unlawful for an employer to
discharge an employee who is at least forty years old because of the employee’s age. 29 U.S.C.
§§ 623(a)(1), 631; Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 521 (6th Cir. 2008). Where,
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as here, a plaintiff has no direct evidence of age discrimination, we rely on the familiar
McDonnell Douglas burden shifting framework to determine the “ultimate question” in every
case in which disparate treatment is alleged: “‘whether the plaintiff was the victim of intentional
discrimination.’” Geiger v. Tower Auto., 579 F.3d 614, 620, 623 (6th Cir. 2009) (quoting Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000)).
Under the McDonnell Douglas framework, the plaintiff must first state a prima facie case
by showing “1) that she was a member of a protected class; 2) that she was discharged; 3) that
she was qualified for the position held; and 4) that she was replaced by someone outside of the
protected class.” Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir.
2010). Once a plaintiff establishes a prima facie case, “the burden of production shifts to the
employer to articulate a legitimate nondiscriminatory reason for the adverse employment action.”
Id. (citing Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008)). If the employer
satisfies this burden, the burden of production then shifts back to the plaintiff to show that the
employer’s proffered legitimate, nondiscriminatory reason for the adverse employment action
was mere pretext for intentional discrimination. Allen, 545 F.3d at 394. At all times, however,
the ultimate burden of persuasion remains with the plaintiff to show “that age was the but-for
cause of [his or her] employer’s adverse action.” Geiger, 579 F.3d at 620 (internal citation and
quotation marks omitted).
An employer may still prevail at the pretext stage, however, under the so-called honest-
belief rule. That rule states that “[w]hen an employer reasonably and honestly relies on
particularized facts in making an employment decision, it is entitled to summary judgment on
pretext even if its conclusion is later shown to be mistaken, foolish, trivial, or baseless.” Chen v.
Dow Chem. Co., 580 F.3d 394, 401 (6th Cir. 2009) (internal quotation marks omitted). “An
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employer’s pre-termination investigation need not be perfect in order to pass muster under the
rule.” Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 591 (6th Cir. 2014) (citing Seeger v.
Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012)). “The key inquiry is instead
‘whether the employer made a reasonably informed and considered decision before taking an
adverse employment action.’” Id. (quoting Seeger, 681 F.3d at 285). “And to rebut an
employer’s invocation of the rule, the plaintiff must offer some evidence of ‘an error on the part
of the employer that is too obvious to be unintentional.’” Id. (quoting Seeger, 681 F.3d at 286).
Here, the parties concede that Hale established a prima facie case under the ADEA. The
dispositive issue is whether Hale has successfully established pretext and, relatedly, whether
Mercy has established that its reasons for terminating Hale fall within the ambit of the honest-
belief rule. We conclude that Hale has failed to establish pretext and that Mercy’s beliefs as to
its reasons for termination were honestly held. We therefore affirm the judgment of the district
court.
Mercy’s proffered legitimate, nondiscriminatory reasons for its termination decision is
that Hale altered her timecards and failed to use the phone system to log her time, as required by
hospital policy. Indeed, the audit performed on Hale’s records indicated that she had altered her
own time, failed to clock in and out using the phone system, spent less time at the Clermont
campus than she was supposed to, and entered hours worked before actually working them. In
short, the findings in the audit indicated that Hale violated the practices explained to her in her
April 2008 training session, where plaintiff was told, among other things, that she “may not edit
timecards to . . . in any . . . way . . . change the time actually worked.” Hale was also told that
altering timecards could be a reason for termination.
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Hale responds that these reasons were pretext and that Mercy did not honestly believe
these reasons. Hale principally argues that Mercy improperly concluded that her alterations to
her timesheets were “falsifications” without giving her an opportunity to explain her alterations
using her calendar. Hale also argues that it was improper for Mercy to have made the decision to
terminate her prior to the termination meeting. We disagree.
It was reasonable for Mercy to infer, based on the alterations plaintiff made to her
timekeeping records—facts on which Mercy relied in its termination decision—that Hale was
falsifying her timecards. Moreover, Hale points to no evidence indicating that defendant was
required to give her an opportunity to explain her conduct before terminating her. There was no
policy or procedure in place at Mercy requiring that employees be given such an opportunity to
explain, nor does Hale argue that she had a due process interest in continued employment
requiring that she be given notice and an opportunity to be heard prior to termination. See
Ludwig v. Bd. of Trustees of Ferris State Univ., 123 F.3d 404, 410 (6th Cir. 1997) (explaining
that in some circumstances, employees have a liberty interest in continued employment and that
such an interest requires that the employee be given notice and an opportunity to be heard prior
to termination). Hale’s only authority for the proposition that she was entitled to an opportunity
to explain her conduct derives from a district court decision from Maryland and a state-law
decision from Connecticut. Obviously, these decisions are nonbinding. And, to the extent they
stand for the proposition that an employer is required to give an at-will employee an opportunity
to offer an explanation for terminable conduct as a matter of law, they are inconsistent with the
law of this circuit, which holds that pre-termination investigations “need not be perfect in order
to pass muster under the [honest-belief] rule.” Loyd, 766 F.3d at 591. For similar reasons, it was
not improper for Mercy to make the decision to terminate Hale prior to meeting with her.
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At the time Mercy fired Hale, it had obtained the timecard audit which revealed Hale’s
misconduct and met with Hale’s supervisor, Carroll, about the audit’s findings. Our precedent
indicates that this was sufficient for Mercy to meet its burden to show that its belief that Hale
falsified records was reasonably informed and therefore honest. See Tingle v. Arbors at Hilliard,
692 F.3d 523, 532 (6th Cir. 2012) (finding an employer’s investigation sufficient to establish an
honest belief where the employer “spoke to witnesses” before issuing a disciplinary report, and
noting that “[t]his court has found far less robust investigations sufficient to substantiate an
honest belief entitling an employer to summary judgment”); Michael v. Caterpillar Fin. Servs.
Corp., 496 F.3d 584, 599 (6th Cir. 2007) (finding an employer’s investigation sufficient to
substantiate its honest belief where it interviewed the plaintiff’s coworkers, even though one of
them testified that the investigation merely “boiled down to ‘he said/she said’”). Hale’s
argument that Mercy failed to give her an opportunity to explain herself demonstrates, at most,
that Mercy’s decision-making process was not optimal. But, simply showing a non-optimal
decision-making process is insufficient to overcome the honest-belief rule. Rather, plaintiff was
required to show that defendant’s decision-making process was “an error . . . too obvious to be
unintentional.” Tingle, 692 F.3d at 531 (internal quotation marks omitted). Hale has failed to do
so.
Hale argues that she never actually “falsified” time records. However, she admits to
altering them. Ultimately, this distinction is immaterial to our conclusion. Under the relevant
legal standards, a defendant is not required to “prove” the underlying truth of its belief. Indeed,
an employer’s belief can still be reasonably informed—and therefore honest—even if it “is
ultimately found to be mistaken, foolish, trivial, or baseless.” Smith v. Chrysler Corp., 155 F.3d
799, 806 (6th Cir. 1998). Thus, the inquiry is not whether Hale actually falsified her timecards;
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the inquiry is whether, based on the information available to it at the time of Hale’s termination,
Mercy’s belief that she falsified her timecards was reasonable and therefore honest. See McDole
v. City of Saginaw, 471 F. App’x 464, 477 (6th Cir. 2012) (“[I]t does not matter whether the
[defendant] mistakenly believed [the plaintiff] assaulted [a coworker, which was defendant’s
proffered reason for terminating the plaintiff]; it only matters if [the defendant] intentionally
discriminated against [the plaintiff].”). For the reasons stated above, i.e. the discrepancies
revealed by the audit and the discussion with Carroll about it, we conclude that it was reasonable
for Mercy to infer that Hale was falsifying her timecards. However, even if Hale were able to
establish that Mercy’s belief that she falsified her timecards was not honestly held, she could still
not prevail. Mercy’s policy did not provide that termination was a consequence only of
falsification of records. Rather, in the training, Hale was informed she could be terminated for
“edit[ing] . . . or in any other way chang[ing]” timesheets. And, there is ample evidence to
support Mercy’s belief that Hale “change[d]” her timesheets.
Hale also argues that it was improper for Mercy to terminate her for conduct that other,
younger, workers also engaged in. Specifically, she argues that Craig Wright, Abigail
Muchmore, and Donna Branham—all younger workers than Hale—also edited their own
timecards and were not disciplined for doing so. We disagree. Although it is true that
subsequent investigations of other employees’ timekeeping policies revealed that others had
engaged in improper timekeeping conduct similar to Hale and were not fired, this fact does not
change our conclusion. It is undisputed that these separate investigations were conducted after
the decision to terminate Hale. And, this court judges the honesty of an employer’s belief based
on the “particularized facts that were before [the employer] at the time the decision was made.”
Seeger, 681 F.3d at 285 (citation omitted). Thus, Hale cannot show that Mercy’s belief was not
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honestly held because Mercy was unaware of other employees’ similar conduct at the time it
made its termination decision.
Finally, Hale argues that the fact that Mercy gave inconsistent reasons for conducting the
audit on her timesheets is indicative of pretext. Again, we disagree. The ultimate question here
is whether Mercy’s belief that Hale violated Mercy’s timekeeping policy was honestly held.
And, given that there was substantial evidence that Hale did modify her timesheets (including
her own admissions that she did so), we cannot conclude that the fact that Mercy offered
inconsistent reasons for its audit alone shows pretext.
For these reasons, we conclude that Hale has failed to establish that Mercy’s belief that
she altered or falsified her timecards was not honestly held. Hale has accordingly failed to show
that Mercy’s proffered nondiscriminatory reason for termination was pretextual. We thus affirm
the judgment of the district court on Hale’s ADEA claim.
IV.
We next turn to Hale’s Ohio public policy claim. Ohio recognizes a “public policy”
exception to the employment-at-will doctrine. Pytlinski v. Brocar Prods., Inc., 94 Ohio St. 3d
77, 78 (2002). To establish a claim for wrongful termination in violation of Ohio public policy, a
plaintiff must show: (1) “a clear public policy existed and was manifested in a state or federal
constitution, statute or administrative regulation, or in the common law (the clarity element)”;
(2) dismissal “under circumstances like those involved in the plaintiff’s dismissal would
jeopardize the public policy (the jeopardy element)”; (3) “the plaintiff’s dismissal was motivated
by conduct related to the public policy (the causation element)”; and (4) lack of an “overriding
legitimate business justification for the dismissal (the overriding justification element).” Collins
v. Rizkana, 73 Ohio St. 3d 65, 69–70 (1995) (emphases omitted). The first and second elements
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are questions of law for the court to decide, but the jury decides questions of fact relating to the
latter two elements. Id. at 70.
Hale argues that Mercy discharged her in violation of public policy because Hale
responded to the DEA agent’s question, stating that she could not say whether Mercy Clermont
buyers were properly completing required DEA forms. We disagree.
In resolving this claim, we address the elements of the relevant legal test in turn. We first
address the clarity element. To satisfy this element, a plaintiff must point to a specific provision
in the “federal or state constitution[s], federal or state statutes, administrative rules and
regulations, or common law.” Dohme v. Eurand Am., Inc., 130 Ohio St. 3d 168, 174 (2011).
Although this is an employment discrimination case, there is “no requirement that a supporting
statute be employment-related or otherwise set forth an employer’s responsibilities and/or an
employee’s rights.” Alexander v. Cleveland Clinic Found., No. 95727, 2012 WL 1379834, at *6
(Ohio Ct. App. Apr. 19, 2012), perm. app. denied, 132 Ohio St. 3d 1485 (2012).
Hale claims Ohio Administrative Code § 4729-17-03 states the relevant clear public
policy.1 As plaintiff correctly summarizes, that regulation provides that institutional
“pharmacies maintain proper transport and record-keeping processes to ensure the narcotics are
properly accounted for by the pharmacies.”
The district court correctly noted that Ohio courts require that a plaintiff’s claimed policy
parallel Ohio’s whistleblower statute, Ohio Revised Code § 4113.52. To parallel that statute, the
policy on which the plaintiff relies must (1) impose “an affirmative duty on the employee to
1
In opposition to Mercy’s summary judgment motion, Hale also identified another public
policy: Ohio Revised Code § 2921.13(7), which prohibits a person from making a false
statement in connection with a government report. The district court rejected this argument.
Hale does not invoke this statute on appeal.
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report a violation, [(2)] specifically prohibit[] employers from retaliating against employees who
had filed complaints, or [(3)] protect[] the public’s health and safety.” Dean v. Consol. Equities
Realty #3, L.L.C., 182 Ohio App. 3d 725, 729 (2009). We agree with the district court’s
conclusion that Ohio Administrative Code § 4729-17-03 did not parallel the whistleblower
statute because the regulation does not require employees to report violations and does not
prohibit employer retaliation. Nor does the regulation specifically protect Mercy’s patients
because, as the district court noted, it merely imposes “baseline technical requirements that
[institutional pharmacies have] to satisfy to operate.”
Hale argues that we should focus on her decision to comply with the law (i.e., answering
the DEA agent’s question truthfully) and not on whether the regulation is a baseline technical
requirement. She interprets the Ohio regulation to protect her from “retaliation for telling a
government agency that she could not confirm that all of [Mercy’s] employees were complying
with the regulation.” However, Hale does not challenge the district court’s conclusion that the
regulation does not parallel the whistleblower statute. Nor does Hale argue that she was
terminated for reporting a violation of the regulation, or any other statute or rule. Thus, Hale has
failed to establish the clarity element of the test for wrongful termination under Ohio law.
We next turn to the jeopardy element. We have applied a three-part test for determining
whether a plaintiff has satisfied the jeopardy element. We must:
(1) determine what kind of conduct is necessary to further the public policy at
issue; [(2)] decide whether the employee’s actual conduct fell within the scope of
conduct protected by this policy; and (3) consider whether employees would be
discouraged from engaging in similar future conduct by the threat of dismissal.
Avery v. Joint Twp. Dist. Mem’l Hosp., 286 F. App’x 256, 264 (6th Cir. 2008) (quoting Himmel
v. Ford Motor Co., 342 F.3d 593, 599 (6th Cir. 2003)). In addition, the “employee’s statements
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must indicate to a reasonable employer that [she] is invoking governmental policy in support of,
or as the basis for, [her] complaints.” Avery, 286 F. App’x at 265 (internal quotation marks
omitted). Here, although we agree with Hale that reporting record keeping violations would
further the public policy embodied in § 4729-17-03, it is not clear that Hale ever reported
anything to anyone. When contacted by the DEA agent, Hale was asked whether she complied
with record keeping requirements, and she reported that she did. She did not, however, report
any violations, informing the DEA agent that she did not know whether others were out of
compliance.
For these reasons, Hale has failed to establish two essential elements of an Ohio public
policy claim. Because she was required to establish all five, her public policy claim fails, and,
thus, we conclude that the district court did not err by granting summary judgment in Mercy’s
favor on this claim.
V.
For the foregoing reasons, we affirm the district court’s grant of summary judgment in
favor of Mercy.
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HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.
I agree the district court properly entered summary judgment on Hale’s public-policy
claim; however, I do not agree that summary judgment was appropriate on her age-
discrimination claim. By failing to view the record in the light most favorable to Hale, and
misapplying the applicable law, the majority erroneously concludes that Hale failed to prove that
Mercy did not honestly hold a belief that it discharged Hale because she falsified her
timekeeping records. To the contrary, a jury could reasonably conclude that Mercy’s proffered
reasons for dismissing Hale were not honestly held and were pretext for unlawful age
discrimination.
I.
The majority missteps at the beginning of its analysis of Mercy’s honest-belief defense
when it states “Mercy’s proffered legitimate, nondiscriminatory reasons for its termination
decision [are] that Hale altered her timecards and failed to use the phone system to log her time,
as required by hospital policy.” Maj. Op. 7. Although Gaynor identified those reasons as
“serious” problems if Hale could not explain them, Mercy in fact dismissed Hale, according to
the discharge letter, for “[f]alsifying timekeeping records” and “[a]pproving own time sheet.”1
Thus, the relevant question is whether Mercy honestly believed Hale falsified her time records
and approved her own timesheet in violation of its policy.
1
The majority also holds that “there is ample evidence to support Mercy’s belief that
Hale ‘change[d]’ her timesheets.” Maj. Op. 10 (alteration in original). This was not a basis for
Mercy’s decision, and even if it were, Mercy’s policy does not prohibit all “change[s]” to one’s
timesheet but rather “edit[s] [to] timecards to . . . change the time actually worked.” (Emphasis
added.) The record evidence supports that Hale edited her timesheets to reflect the time she
actually worked—not to steal time.
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There is no record evidence that Hale falsified her timesheets, i.e., recorded hours she did
not actually work. But the majority concludes that it was reasonable for Mercy to infer from the
timecard alterations that Hale falsified her time records. That conclusion belies the facts.
According to Heintzelman, Mercy’s termination process includes a discussion with the employee
“to go through what the issues are” and if the employee cannot satisfactorily explain the alleged
misconduct, “then we move to the next step[,] which would be termination according to our
policies.”2 Accordingly, Mercy provided Hale a termination hearing, and, as Heintzelman
testified, warned Hale that if she could not explain the alterations, she would be discharged.
Thus, contrary to the majority’s view, Mercy inferred from Hale’s failure to explain the edits that
she falsified her time—not from the alterations themselves. And that inference is unworthy of
credence.
Mercy’s decision to dismiss Hale was not reasonably informed and considered. Blizzard
v. Marion Technical Coll., 698 F.3d 275, 286 (6th Cir. 2012). At the termination hearing, Mercy
denied Hale’s request to consult her calendar and other sources to aid her in explaining her
timecard edits, even though it had asked her for an explanation. Under the modified-honest-
belief rule, the employee “must be afforded the opportunity to produce evidence to the contrary.”
Id. (internal quotation marks omitted). But because Mercy assumed without proof that Hale stole
time, it did not reasonably rely on the “particularized facts that were before it at the time the
decision was made.” Id. (internal quotation marks omitted). Had Mercy sought to make an
informed and considered decision, it would have afforded Hale a meaningful opportunity to
2
For this reason, the majority is incorrect that “Hale points to no evidence indicating that
defendant was required to give her an opportunity to explain her conduct before terminating
her.” Maj. Op. 8.
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Hale v. Mercy Health Partners
explain the timecard alterations and allowed her to consult her calendar.3 Moreover, Hale’s
supervisor, Bill Carroll, had offered an explanation before the discharge meeting for Hale’s
timecard edits,4 but it does not appear Mercy considered the proffered explanation, despite
Heintzelman’s testimony that Mercy would have investigated any explanation given.
II.
Viewing the evidence in the light most favorable to Hale, and considering the totality of
the evidence, Hale has shown that Mercy’s reasons were pretextual. A jury could reasonably
find that Mercy’s rationales were pretext for unlawful discrimination because, coupled with a
showing that Mercy did not hold an honest belief in the reasons for discharging Hale, Mercy
offered conflicting reasons for auditing Hale’s time records and did not discipline Abigail
Muchmore, the 30-year-old buyer in Mercy Clermont’s pharmacy, even though she also altered
her timesheets.
Mercy claims Heinzelman ordered the audit of Hale’s time records at 10:00 a.m. after a
Mercy Clermont pharmacist informed her that he had an inventory issue and could not locate
Hale to resolve it. Heintzelman did not attempt locate or contact Hale, or any other personnel in
the pharmacy, including Muchmore, who was the Mercy Clermont buyer. The record supports
four other explanations for the audit: (1) Hale averred that Gaynor told Hale in the termination
meeting that Mercy reviewed Hale’s time records as a result of a random audit; (2) According to
a June 10, 2011, 6:39 p.m. email, Heintzelman asked Gaynor if Hale “clocked out or marked
3
Although Hale also admitted that she occasionally approved her own timesheets,
Heintzelman and Gaynor did not question Hale on this alleged violation of Mercy’s policy,
which formed a basis of her dismissal. Mercy’s failure to investigate the alleged violation is
additional evidence that Mercy did not reasonably rely on an informed and considered decision.
4
Carroll told Heintzelman that Hale’s after-the-fact added time could be due to Hale
attending offsite meetings.
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herself out” after receiving a 4:39 p.m. email from the pharmacist saying he could not locate
Hale; (3) Gaynor testified that Heintzelman ordered the audit a couple of weeks before June 10,
2011, to determine the amount of time Hale was spending at Mercy Clermont; and (4) Another
HR consultant, Angie Ferrell, told Mercy’s third-party administrator that Mercy investigated
Hale’s time records because her “manager became concerned that abuses of the timekeeping
system were occurring,” which Carroll disputed.
Hale contends that these inconsistent explanations for the audit of her time records
support an inference of pretext because the record “shows a cover-up and an incredible
explanation of why [Hale] was singled out for a completely unnecessary time-card audit.”
Indeed, Mercy’s inconsistent reasons and unequal treatment of Hale in relation to Muchmore
who was the buyer for the pharmacy involved tend to support a finding that Hale’s alleged policy
violations did not actually motivate Mercy’s decision to discharge her. See Tinker v. Sears
Roebuck & Co., 127 F.3d 519, 523 (6th Cir. 1997).
Further, Mercy’s pharmacy department employees, including Muchmore, had for years
recorded time as Hale did, and the pharmacy director himself testified he was unware of Mercy’s
policy prohibiting alterations of timecards. Despite learning that Muchmore engaged in the same
conduct as Hale, Mercy did not discipline or dismiss Muchmore. Mercy’s adherence to its
timekeeping policies—strictly in Hale’s case and not at all in Muchmore’s—precludes summary
judgment.
For these reasons, I concur in part and dissent in part.
-18-
|
153 P.3d 371 (2007)
Jeremy L. COOPER, Appellant,
v.
STATE of Alaska, Appellee.
No. A-9426.
Court of Appeals of Alaska.
March 9, 2007.
Dan S. Bair, Assistant Public Advocate, and Chad W. Holt, Supervising Assistant Public Advocate, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
*372 OPINION
MANNHEIMER, Judge.
Jeremy L. Cooper was convicted of first-degree robbery and second-degree assault. Cooper was a second felony offender, having previously been convicted of third-degree assault. As a consequence of this prior felony conviction, Cooper faced a 10-year presumptive term of imprisonment for the first-degree robbery conviction and a 4-year presumptive term of imprisonment for the second-degree assault conviction (under Alaska's pre-March 2005 presumptive sentencing law).[1]
The State alleged one aggravating factor under AS 12.55.155(c): (c)(20) that Cooper had been on felony probation or parole (from his prior conviction for third-degree assault) at the time he committed his present crimes.
Even though Cooper's sentencing proceedings took place in the summer of 2005 i.e., long after the United States Supreme Court decided Blakely v. Washington[2] Cooper did not contest the State's proposed aggravator, nor did he ask the superior court to schedule a jury trial on this aggravator.
In Cooper's pre-sentencing brief (which was filed in May 2005), his attorney conceded this aggravator. In fact, Cooper's attorney pointed out that, based on Cooper's commission of the two new felonies, the superior court had already found that Cooper had violated the conditions of his probation from the prior felony. And at Cooper's sentencing hearing, his attorney expressly told Superior Court Judge Harold M. Brown that Cooper was willing to stipulate that aggravator (c)(20) was proved:
The Court [to the defense attorney]: If I read your sentencing brief correctly, you are willing to stipulate to the existence of aggravator [(c)](20) . . ., that [Cooper] was . . . on parole or probation for another felony charge specifically, his prior conviction for assault in the third degree.
Defense Attorney: That is correct, Your Honor.
Based on this aggravating factor, Judge Brown added 3 years of suspended imprisonment to Cooper's 10-year presumptive term for the robbery conviction; that is, Judge Brown sentenced Cooper to 13 years with 3 years suspended. Judge Brown did not increase Cooper's 4-year presumptive term for the second-degree assault conviction; moreover, the judge imposed this 4-year term of imprisonment concurrent to Cooper's robbery sentence.
On appeal, Cooper contends that Judge Brown committed plain error under Blakely when the judge accepted the defense attorney's concession of aggravator (c)(20), rather than addressing Cooper himself and asking Cooper whether he, personally, was willing to waive his right to jury trial on this aggravator. Cooper concedes that he did not raise this claim in the superior court, and that he therefore must show plain error on appeal.
In Paige v. State, 115 P.3d 1244, 1248 (Alaska App.2005), a case that dealt with a pre-Blakely sentencing, we held that the sentencing judge did not commit plain error under Blakely when the judge relied on an aggravating factor that the defense attorney conceded. Cooper's sentencing occurred after Blakely, but we reach the same conclusion: Judge Brown did not commit plain error when he relied on the defense attorney's concession of aggravator (c)(20).
Even though one might reasonably argue that, after Blakely, a sentencing judge must personally address the defendant and obtain a knowing waiver of the right to jury trial,[3]*373 this is only one potential resolution of the issue. Several courts have rejected this argument. See Chupp v. State, 830 N.E.2d 119, 126 n. 12 (Ind.App.2005) (a defendant's failure to object to information contained in the pre-sentence report is "tantamount to an admission [of] the accuracy of the facts contained therein" for purposes of Blakely); Caron v. State, 824 N.E.2d 745, 755 (Ind. App.2005) (there was no Blakely error when the defense attorney acknowledged the accuracy of pertinent information recited in the pre-sentence report); Trusley v. State, 829 N.E.2d 923, 925-26 (Ind.2005) (holding that the defense attorney's statement during the plea colloquy constituted an admission of fact relevant to the sentence enhancement); State v. Leake, 699 N.W.2d 312, 324-25 (Minn. 2005) (the sentencing judge did not violate Blakely by relying on facts admitted by the defendant as part of a plea agreement); State v. Miranda-Cabrera, 209 Ariz. 220, 99 P.3d 35, 41-42 (App.2004) (holding that a defendant's admissions at trial were admissions of fact for purposes of Blakely).
Thus, Cooper's position in this appeal is no more than debatable. Reasonable judges could differ as to whether a sentencing judge must obtain the defendant's personal waiver of the right to jury trial with regard to aggravating factors when the existence of those aggravators is expressly conceded, or when the existence of the aggravators is plain from the record and is not disputed. And because reasonable judges could differ as to what the law requires in this situation, Judge Brown did not commit plain error when he relied on the defense attorney's concession of aggravator (c)(20).[4]
Moreover, Cooper's claim of plain error fails for another reason. Cooper has never disputed that he was, in fact, on felony probation and/or parole at the time he committed the offenses in this case. In other words, there is no reasonable possibility that, if aggravator (c)(20) had been submitted to a jury, the jury would have found in Cooper's favor on this issue.
In Snelling v. State, 123 P.3d 1096, 1098-99 (Alaska App.2005), we held that, in such circumstances, any Blakely error in failing to present aggravator (c)(20) to a jury is harmless beyond a reasonable doubt, and thus the error does not require alteration or vacation of the defendant's sentence. Our decision in Snelling is dispositive of Cooper's claim.
The judgement of the superior court is AFFIRMED.
NOTES
[1] See AS 11.41.500(b) (first-degree robbery is a class A felony); former AS 12.55.125(c)(3) (pre-March 2005 version) (specifying a 10-year presumptive term for second felony offenders convicted of a class A felony); AS 11.41.210(b) (second-degree assault is a class B felony); former AS 12.55.125(d)(1) (pre-March 2005 version) (specifying a 4-year presumptive term for second felony offenders convicted of a class B felony).
[2] 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
[3] Compare McGlauflin v. State, 857 P.2d 366, 369 (Alaska App.1993) ("It may seem natural to assume that a defendant would make a decision of this importance only after consulting with defense counsel, and that any competent defense attorney would carefully explain the right to jury trial and the reasons why, in a particular case, it might further the defendant's interests to waive this right. Nevertheless, . . . the rule [in Alaska is] that a defendant's waiver of jury trial cannot be upheld upon such an assumption; instead, the record must explicitly demonstrate that the defendant understood and personally relinquished the right to trial by jury.")
[4] See, e.g., Simon v. State, 121 P.3d 815, 820 (Alaska App.2005); "To be `plain error', an error must be so obvious that any competent judge or attorney would have recognized it. If a claim of error is reasonably debatable-if reasonable judges could differ on what the law requires-then a claim of plain error fails." (Footnotes omitted)
|
895 N.E.2d 422 (2008)
FINE
v.
HARP.
No. 82A04-0703-CV-139.
Court of Appeals of Indiana.
October 21, 2008.
DARDEN, J.
Disposition of case by unpublished memorandum decision. Affirmed, Dismissed and Remanded.
BAKER, C.J. Concurs.
BRADFORD, J. Concurs.
|
707 F.2d 506
Dixonv.Townley
82-6573
UNITED STATES COURT OF APPEALS Fourth Circuit
4/12/83
1
W.D.Va.
AFFIRMED
|
91 Cal.App.2d 633 (1949)
THE PEOPLE, Respondent,
v.
PETER JAMES VAN DE WOUWER, Appellant.
Crim. No. 2115.
California Court of Appeals. Third Dist.
May 3, 1949.
Peter James Van De Wouwer, in pro. per., for Appellant.
Fred N. Howser, Attorney General, and Gail A. Strader, Deputy Attorney General, for Respondent.
THOMPSON, J.
The defendant was charged in two informations with separate crimes of rape and robbery of different individuals. The first information charged him with rape of Sedona Yarger committed on June 8, 1948. The second information was couched in two counts. The first count charged him with rape of Myrna Eunice Everson committed on March 21, 1948. The second count charged him with robbery of the husband of Mrs. Everson committed with the use of a revolver. The robbery was committed as a part of the transaction of the last mentioned crime of rape. Both informations were filed on August 5, 1948. At the trial the defendant was represented by able counsel. The two cases were consolidated for trial without opposition. The jury found the defendant guilty of the three crimes as charged. A motion for new trial was denied. The court sentenced the defendant to state prison for the term prescribed by law and directed that the terms of imprisonment for the counts of rape and *635 robbery as charged in the second information should run concurrently. But the court directed that the terms of imprisonment for the crimes stated in the different informations should run consecutively. The defendant appealed from the order denying the motion for new trial and from the judgments of conviction. On appeal the defendant appears in proper person.
It is contended the verdicts and judgment are not supported by the evidence chiefly because of a lack of identification of the defendant; that the court erred in consolidating the causes for trial; that the court erred in failing to properly instruct the jury with respect to the credibility of witnesses, and that the district attorney was guilty of prejudicial misconduct.
[1] In spite of some conflict regarding the identity of the defendant, we are convinced there is an abundance of evidence of the identity of the defendant and adequate proof to support the judgments. The mere variance in proof of the manner in which the defendant was clothed is immaterial. He was positively identified by several witnesses. The variance affects only the weight of the evidence and merely presents questions for reconciliation by the jury. (People v. Avery, 64 Cal.App.2d 850, 854 [149 P.2d 758]; People v. Fleming, 58 Cal.App.2d 37, 44 [136 P.2d 88].)
The circumstances of this case are somewhat startling. The evidence depicts the conduct of a depraved, bold and reckless man.
Upon proof of the rape which occurred in the trailer on June 8, 1948, the victim, Mrs. Sedona Yarger, testified positively to the identity of the defendant as the man who committed that crime. She was corroborated in her identification of the defendant as her assailant by Mr. Bertolone and his two workmen who saw him coming from the direction of her home and passing the place where they were building a house at 2 o'clock in the afternoon, immediately following the time when the rape occurred. They described the manner in which he was dressed and his appearance.
The defendant was a comparative stranger in that community. He had not resided there long. He was formerly employed in the United States Navy, and frequently wore Navy clothes, including a blue knitted stocking cap. He often wore dark glasses. He was about 5 feet, 10 inches tall. He had a light complexion, blue eyes, light brown hair, showing gray over the temples, and possessed a prominent, bridged *636 nose. He was 31 years of age, married and is the father of one child.
Mr. and Mrs. Yarger arrived from Minnesota in their automobile and trailer in January, 1948. Mrs. Yarger was 45 years of age. They had three sons and a daughter. They located on Palmer Creek, near the highway, about a quarter of a mile from Fortuna. He was a builder and carpenter, and was then employed at the Gist Auto Court on the other side of Fortuna. They were building a home on their property. The trailer was parked in their yard. They slept in the trailer while they were completing their house. Mr. Yarger was away from home in the daytime during working hours. He returned for luncheon and after working hours. A short distance from their home Fred Bertolone was building a home on a hillside between the Yarger house and the highway. He had two workmen assisting him. Mr. Arthur Yarger patronized the Salliday barber shop in Fortuna. The defendant, who was employed there, knew him, and had cut his hair on two or three occasions. Evidently, the defendant knew of his employment away from his home during the daytime. Prior to June 8th, the date of the alleged rape, Mrs. Yarger had her hair trimmed on one occasion by Mr. Salliday. The defendant worked at the adjoining chair and talked to her. During that conversation she mentioned the fact that they had a trailer for sale.
On June 8th, about 2 o'clock in the afternoon, while Mr. Yarger was working away from home, and no person other than Mrs. Yarger was about the premises, a man suddenly appeared at their home. He wore a blue Navy knitted stocking cap, dark glasses, and a Navy jacket. Owing to the difference between the way he was clothed when she saw him in the barber shop and the manner in which he was then dressed, she failed to recognize him. He did not remind her of their former meeting. He did not introduce himself, but asked her if they had a trailer for sale. She replied that they had one which would be for sale later when their house was completed. He insisted on inspecting it then. She told him it was not in proper order at that time, but, with the prospect of a sale, she consented to show him the trailer. They went together to the vehicle. She entered first and he followed her. While she was showing him the cupboards and other furnishings, he suddenly poked a nickel-plated revolver against her back and ordered her to take off her clothes. She was hysterical and wept, protesting against his demand, but fearing that she would be shot if she refused, she removed her clothing and *637 he forcibly raped her on the bed at the rear of the trailer. He placed his revolver on the icebox near the entrance to the car, where it remained during that period of time. As he departed, he picked up his revolver and told her that if she informed anyone of that affair he would come back and "take a pot shot at her." She testified that she was in mortal fear of him. In terror, she watched him leave the premises and go up the hill toward the Bertolone house, which was a short cut back to the Fortuna highway. After he had passed from her sight, she left the trailer and rushed to the house and, taking their automobile, she drove directly to the Gist Auto Court where her husband was employed and told him about the affair. He consulted another employee about the crime and they phoned to the officers. She described the defendant and the manner in which he was clothed, but said she did not recognize the man as anyone she knew. Mr. and Mrs. Yarger drove directly to the office of Dr. Goble, who made a physical examination. He testified positively, from an analysis of the contents of the vagina, that intercourse had occurred within four hours of his examination.
Two or three days later Mrs. Yarger chanced to see the defendant on the street in Fortuna, and immediately recognized him as her assailant, and also as the barber in Salliday's shop. She promptly informed her husband that the barber was the man who has raped her. They afterward went to the barber shop, and when the defendant saw them entering the shop he darted out through a back door. The officers were informed of the identity of the man and he was arrested. At the trial Mrs. Yarger positively recognized and identified him as her assailant. Mr. Bertolone and his two workmen, Lyle Jensen and James Boughner, who were working on Bertolone's house near which the defendant passed as he left the Yarger premises after his commission of the crime, about 2 o'clock p.m. on June 8th, positively recognized the defendant as the man who passed their house at that very time. They described his manner of walking, and the way in which he was clothed. Each of them said he wore a blue Navy knitted stocking cap, dark glasses and Navy or Army fatigue clothes. He was a stranger to them. There can be little doubt the defendant was the man who committed that crime.
With respect to the other joint charges of rape and robbery committed by the defendant on March 21, 1948, about six weeks previous to the foregoing described crime of rape, both *638 victims positively identified the defendant as the man who robbed John Everson and raped his wife. They recognized him from his height, form, complexion, voice, the color of his eyes and hair, some of his features, including a bridged nose, and his clothing.
John E. Everson and his wife, who was 20 years of age, were married March 20, 1948, in Sonoma County. They live in Piru, Ventura County. They were driving north on the Redwood Highway in their automobile on their honeymoon. The husband drove the car. On March 21st they passed Garberville, about 50 miles south of Fortuna, about 1:30 p.m. They were hungry and tired. They drove off the highway into Franklin Lane's Grove, and parked beside the roadway, where they ate their luncheon, and then went to sleep. It was a secluded spot, amid the trees and bushes. They were awakened by a man who approached and opened the right door of the car on the side where Mrs. Everson sat. They testified that he wore a bluish, gray hat, a pair of dark glasses, and a handkerchief covering his face below his nose. He was armed with a nickel-plated revolver. He wore a Navy jacket and fatigue trousers. He had light brown hair, tinged with gray over the temples. He was about 5 feet, 10 inches tall. He pointed his revolver at Mr. Everson and demanded his money, in a brazen "Black Bart bandit" fashion. Everson handed him his wallet containing a lonely $20 bill. It was grumblingly accepted. The bandit then turned his attention to the wife, and, threatening both of them with his revolver, he proceeded to rape her in the presence of her husband. The wife protested and cried without avail. The man then demanded the keys to the car, saying "he didn't want them to make a quick get away." He hung the keys on a bush some distance up the road, and disappeared along an obscure trail.
Mr. and Mrs. Everson found their keys, and drove back to Garberville, where they notified the officers of the rape and robbery, describing the man as best they could. They then visited a doctor for treatment of the wife. The defendant was not apprehended or arrested until after the previously- mentioned rape, which occurred June 8th. They were then notified of his arrest, and went to Humboldt County, where they saw the defendant and the clothes which he wore on the occasion of their holdup. Both of the spouses positively identified him as the man who robbed them and raped the wife on March 21st. While there is some conflict with respect to certain unimportant details, the evidence of the identity of the defendant as their *639 assailant is very persuasive. We conclude that the evidence adequately established his identity, and the commission of the crimes. [2] The identity of a defendant may be established by proof of any peculiarities of size, appearance, similarity of voice, features or clothing. (20 Am.Jur. 350, p. 325.)
[3] The court did not err in consolidating for trial the separate charges against the defendant. That procedure was discretionary with the court. No abuse of discretion appears. The record discloses no objection to the consolidation of the two informations for trial. No motion for separate trials was made. In one information the defendant was separately charged in different counts with the crimes of rape and robbery growing out of the same transaction. Under such circumstances the statute authorizes the uniting of such different charges in separate counts of one indictment or information. (Pen. Code, 954; People v. Avery, 64 Cal.App.2d 850, 853 [149 P.2d 758]; 8 Cal.Jur. 268, p. 193; 42 C.J.S. 180, p. 1136.) The code section last cited reads in part:
"An indictment, information, or complaint may charge two or more different offenses connected together in their commission, ... under separate counts, ...."
[4] Nor was that information improperly united with the second information against the same defendant, charging him with the commission of another rape upon a different woman in the same vicinity and within about six weeks of the time when the first alleged rape was committed. Both informations included charges of rape committed by intimidating the victims by the use of a revolver. Both offenses belong to the same class of crimes. They might have been united under separate counts of one and the same information. They were therefore properly consolidated for trial. In the text of 8 California Jurisprudence, page 193, section 268, which is supported by adequate authorities, it is said:
"The Penal Code [ 954] provides that if two or more indictments or informations are filed in cases where the charges may be charged in separate counts in one indictment or information, the court may order them to be consolidated." (Italics added.)
In the case of People v. McClain, 55 Cal.App.2d 399 [130 P.2d 978], wherein the defendant was charged in different informations with crimes of the same class committed upon different persons on separate dates, the informations were consolidated for trial. On appeal the court said, at page 402:
"The fact that the different crimes charged against the defendant were committed at different times and places does *640 not deprive the trial court of power to order the consolidation of the informations for trial, if the offenses charged are of the same class of crimes. (People v. Feigelman, 65 Cal.App. 319, 320 [223 P. 579].) Clearly in the instant case the several indictments charged offenses of the same class of crimes and the trial court did not abuse its discretion in ordering the informations consolidated for the purpose of trial."
For discussion of offenses of the same class which may be properly united under separate counts in the same information or indictment, see People v. Bundte, 87 Cal.App.2d 735 [197 P.2d 823].
[5] Moreover, in the present case the defendant waived his right to separate trials of the charges of rape, by failing to object to the consolidation of the cases, and by failing to move for separate trials.
[6] The appellant is mistaken in asserting that the court failed to properly instruct the jury regarding the credibility of witnesses when it appears that their testimony is conflicting or erroneous with respect to the identification of the defendant by the clothing which he wore or his personal appearance at the time of the alleged rape. We find that the court instructed the jury as follows:
"In determining the credibility of a witness, you should consider whether his testimony is, in itself, contradictory; whether it has been contradicted by other credible witnesses, whether his statements are reasonable or unreasonable; whether they are consistent with other statements, or with facts established by other evidence, or admitted facts."
"You may also consider the witness' manner of testifying on examination; the character of his testimony; the bias or prejudice, if any, manifested by him; his interest or absence of interest in the action; his recollection, whether good or bad, clear or indistinct, concerning the facts to which he testifies; his inclination or motives; together with his opportunity of knowing of the facts whereof he speaks. * * *"
"If any witness examined before you has wilfully sworn falsely as to any material matter, you may distrust his entire testimony."
The court also instructed the jury that it should examine the testimony of the prosecuting witnesses "with caution." The jury was very fully and fairly instructed upon every essential issue of the charges involved. We are directed to no error in the instructions, and we find none. *641
[7] There is no merit in appellant's contention that the district attorney was guilty of prejudicial misconduct in propounding improper questions to the witnesses at the trial. No specific instances of such alleged improper questions are designated, and no reference to pages in the transcript where such questions appear is stated. The appellant merely makes the general statement that "The reporter's transcript shows a host of sustained objections to improper questions and the admonitions of the court to the jury to disregard them." It thus appears that if any improper questions were asked at the trial, the objections thereto were sustained and the jury was instructed to disregard them. We must assume, in the absence of specific assignments of such conduct, that the jury was not prejudiced thereby. Moreover, in the absence of authorities or references to the transcript where such alleged misconduct may be found, the general charge of prejudicial misconduct should be disregarded. (People v. Serpa, 67 Cal.App.2d 327, 333 [154 P.2d 6].)
For the foregoing reasons the motion for a new trial was properly denied.
The order denying a new trial and the judgment are affirmed.
Adams, P. J., and Peek, J., concurred.
|
68 Wn.2d 353 (1966)
413 P.2d 15
In the Matter of the Application for a Writ of Habeas Corpus of JACK M. LITTLE, Petitioner,
v.
B.J. RHAY, as Superintendent of the State Penitentiary, Respondent.[*]
No. 38145.
The Supreme Court of Washington, En Banc.
April 7, 1966.
Francis Conklin, for petitioner.
The Attorney General and Lee D. Rickabaugh, Assistant, for respondent.
Edmund J. Wood and Michael H. Rosen, amici curiae.
HUNTER, J.
This is an application for a writ of habeas corpus by Jack M. Little, an inmate of the Washington State Penitentiary at Walla Walla. Petitioner was convicted in a trial by jury in January, 1960, of the crime of aiding and abetting the unlawful possession of narcotics. Petitioner's codefendant at the trial, James Bitrick, was convicted of the substantive offense and appealed from his conviction. Petitioner, whose sentence was suspended, chose not to appeal from his conviction. Bitrick died while his appeal was pending, and that appeal was dismissed (Supreme Court Cause No. 35536). On July 22, 1963, the suspension of petitioner's sentence was revoked for parole violations, and petitioner was committed to the state penitentiary. Petitioner now prosecutes this application, alleging that certain features of his arrest and conviction violated his rights under the state and federal constitutions.
*355 Petitioner's arrest and the circumstances surrounding it occurred as follows. On the evening of August 28, 1959, Detectives Sprinkle and Waitt, experienced members of the Seattle police department narcotics detail, were parked in a parking lot at First and Pine in Seattle. During the two previous evenings, these two officers had kept petitioner under surveillance because of his reputation as a known user of narcotics and because of information from anonymous informers to the effect that petitioner was picking up heroin in the Jackson Street area of Seattle.
On this evening, petitioner was not under active surveillance until the officers observed his automobile with two occupants proceeding north on First Avenue in a direction away from the Jackson Street area. Recognizing the automobile, and petitioner as its passenger, the officers followed the car to petitioner's residence, an apartment on Vine Street. The officers knew which apartment was petitioner's residence, but neither officer knew the identity of the driver of petitioner's car.
When the two men got out of the car and walked through the courtyard into the apartment house, Detective Sprinkle followed them. He later testified that both men appeared to be a little unsteady on their feet. The officer noticed a man's legs going up the inner stairway of the apartment house and, assuming both men had gone up to the apartment, he climbed the few steps onto the common porch of the apartment house. As Detective Sprinkle approached the glass doorway, petitioner came out of the doorway and collided with the officer. Again according to the officer's testimony, petitioner at this point "could barely stand on his feet," and had to be helped down the stairs. When asked about his condition, petitioner said he was "loaded on goofers," and stuck out his tongue, displaying a yellow capsule on it, which the officer recognized as a nembutal, a barbiturate.
Detective Sprinkle thereupon arrested petitioner and placed him under the custody of Detective Waitt, who was on the sidewalk. Sprinkle then returned to the apartment house and went up the stairs to petitioner's apartment. The *356 door to the apartment was "wide ajar," according to the officer, and when he looked through it, he noticed Bitrick, the man who had accompanied petitioner to the apartment, placing something on a small shelf. The officer entered the apartment, identified himself as a police officer, and walked to the shelf, where he found two capsules containing heroin. He then placed Bitrick under arrest. For about 3 minutes, Sprinkle remained in the apartment with Bitrick. He then took Bitrick outside to where Waitt was holding petitioner, whereupon all four persons returned to the apartment. On this second visit to the apartment, the search was continued and another heroin capsule was found lying on the floor of the apartment beside a small table near the entrance. The officers had no warrant for arrest or search.
At the trial of petitioner and Bitrick, timely objection was made to the introduction of the three heroin capsules, on the ground that they were the product of an illegal search, but the trial court admitted them into evidence.
Petitioner raises six arguments upon this application for writ of habeas corpus. We will consider them in the order raised. Petitioner contends that his arrest was illegal, since the arresting officer did not have probable cause to suspect the commission of a felony and the officer admitted petitioner was not creating a breach of the peace in his presence. We disagree. We find that the arresting officer had probable cause to suspect that a felony was being or was about to be committed by the petitioner at the time of the arrest.
[1] The test of probable cause for arrest without warrant was set forth in the recent case of State v. Darst, 65 Wn.2d 808, 812, 399 P.2d 618 (1965):
The probable cause essential to support an arrest without a warrant is a belief based upon facts within the knowledge of the arresting officer, persuasive enough to convince a judge that a cautious but disinterested man would also believe the arrested person guilty. State v. Smith, 56 Wn. (2d) 368, 353 P. (2d) 155; Henry v. United States, 361 U.S. 98, 4 L.Ed. (2d) 134, 80 S.Ct. 168; Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280, 39 A.L.R. 790.
*357 Reviewing the facts and circumstances within the knowledge of the arresting officer at the time of the arrest, we see the following cumulation of factors leading to the result of probable cause: (1) The arresting officer and his partner were both veterans of over 10 years' experience on the narcotics detail; (2) both officers had known for 4 or 5 years that petitioner was a user of narcotics; (3) these officers had kept petitioner under surveillance the prior two evenings due to information furnished by informers that petitioner was picking up heroin in the Jackson Street area in Seattle; (4) shortly before the arrest, the officers noticed petitioner's automobile being driven in a direction away from the Jackson Street area, with petitioner in it; (5) the officers followed the automobile to petitioner's apartment, with which they were familiar; (6) the actions of petitioner at the time of the arrest were suspicious he was staggering and exhibited a yellow capsule on his tongue, saying "I am loaded on goofers, this time." The cumulative effect of these factors was sufficient to furnish reasonable grounds for the officers' belief that a narcotics violation was being or was about to be committed.
[2] A key element of these factors combining to make up probable cause is the information furnished by informers. While these were unnamed informers whose prior reliability has not been established, we noted in State v. McClung, 66 Wn.2d 654, 659, 660, 404 P.2d 460 (1965), that such anonymous information may properly furnish the basis for probable cause when, as in the present case, it is "supported by other facts then known to the officer or subsequently learned by investigation, ..."
Petitioner next contends that the search of his apartment, and the seizure of the heroin capsules therein, constituted an unreasonable search and seizure in violation of his rights under the fourth and fourteenth amendments to the federal constitution, and that submission of these capsules into evidence violated the exclusionary rule announced in State v. Gibbons, 118 Wash. 171, 203 Pac. 390 (1922).
[3] Since the challenged search was executed without the benefit of a search warrant, the validity of the search *358 can only be upheld if it was incidental to a valid arrest. State v. Biloche, 66 Wn.2d 325, 402 P.2d 491 (1965). Having already determined that the arrest was valid, we turn to a consideration of petitioner's argument that the search was not incidental to the arrest.
Petitioner argues that no case may be cited in support of the contention that the arrest of a suspect on the common porch of an apartment house justifies a search without a warrant of a second floor apartment. Petitioner cites Agnello v. United States, 269 U.S. 20, 70 L.Ed. 145, 46 Sup. Ct. 4, 51 A.L.R. 409 (1925), which he contends strongly implies a constitutional prohibition against the type of search conducted in the present case.
The Agnello case must be viewed in the context of its facts. The illegal search in that case was conducted in a house several blocks distant from the scene of the arrest while the defendants were in custody elsewhere. Viewed with these facts in mind, the language of the Agnello opinion would appear to sustain the search made in the instant case:
The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 U.S. 132, 158; Weeks v. United States, 232 U.S. 383, 392.... Such searches and seizures naturally and usually appertain to and attend such arrests. But the right does not extend to other places. (Italics ours.) Agnello v. United States, supra, p. 30.
See, also, United States v. Rabinowitz, 339 U.S. 56, 94 L.Ed. 653 Sup. Ct. 430 (1950).
[4] The search here objected to was conducted substantially contemporaneously to the lawful arrest of petitioner and in a place sufficiently close to petitioner as to constitute a search where the arrest was made. And it must also be remembered that the man who had accompanied petitioner to the apartment house had been seen by the *359 officer to go upstairs, presumably to petitioner's apartment. It was incumbent upon the officer to search the apartment immediately to prevent destruction or removal of the fruits of the suspected crime.
[5] Petitioner contends the search during which the third heroin capsule was found was a second or repetitive search and therefore constitutionally impermissible, primarily relying on the case of In re McNear v. Rhay, 65 Wn.2d 530, 398 P.2d 732 (1965). The McNear case is not apposite. In that case, the second search was conducted by officers from another detail who were searching for evidence not connected with the arrest or the permission to search given by the defendant. It was not contended, in the McNear case, nor could it be, that the second search constituted a continuing search. The facts of the instant case do not permit characterizing the challenged search as a "second" search. Here there was no appreciable interval between the "two" searches. Officer Sprinkle merely walked outside, with Bitrick in his custody, found his fellow officer, and returned to continue the search. We cannot hold that an officer who momentarily leaves an apartment has ended his search incidental to a lawful arrest. We therefore hold that the heroin capsules were lawfully seized during the course of a legitimate search incidental to a valid arrest. The capsules were thus properly introduced into evidence.
Petitioner's next contention is without merit. The constitutionality of section (14) of RCW 69.33.220 is challenged on the basis that it delegates to an administrative body authority to declare the conditions of a crime. Section (14) states:
"Narcotic drugs" means coca leaves, opium, cannabis and every other substance neither chemically nor physically distinguishable from them; any other drugs to which the federal laws relating to narcotic drugs may now apply; and any drug found by the board of pharmacy, after reasonable notice and opportunity for hearing, to have addiction-forming or addiction-sustaining liability similar to morphine or cocaine, from the date of publication of such finding by the state board of pharmacy.
*360 [6] We will not consider this contention, since petitioner has no standing to urge the unconstitutionality of this law. Petitioner was convicted under section (12) of RCW 69.33.220, which specifically designates possession of heroin as being within the purview of the statute. The allegedly defective portion of the statute had no effect upon petitioner's conviction.
When the state answered the contentions raised by petitioner in his application for a writ of habeas corpus, it included an affidavit of the two detectives who arrested petitioner and searched his apartment. Some of the factors considered by this court in determining that probable cause for the arrest existed, were attested to in this affidavit without contradiction by petitioner, but were not established in the record of the trial court proceedings. Petitioner objects to our consideration of this affidavit, arguing that to do so would violate petitioner's right of confrontation and cross-examination, which right is essential to due process of law as required by the Sixth Amendment and made applicable to the states through the Fourteenth Amendment. See, e.g., Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 Sup. Ct. 1065 (1965); and Douglas v. Alabama, 380 U.S. 415, 13 L.Ed.2d 934, 85 Sup. Ct. 1074 (1965).
[7] Petitioner's objection is not well taken, and the cited cases are not apposite to the present proceedings. The guarantees of the Sixth Amendment are qualified by the opening words of that significant amendment: "In all criminal prosecutions...." We long ago determined in accord with United States Supreme Court decisions, that habeas corpus is a civil proceeding, since it is an original suit for the enforcement of the civil right of personal liberty. In re Ludwick v. Webb, 23 Wn.2d 115, 160 P.2d 504 (1945); See Fay v. Noia, 372 U.S. 391, 423, 424, 9 L.Ed.2d 837, 83 Sup. Ct. 822 (1963).
[8] It is apparent that use of affidavits in habeas corpus proceedings is not improper. See In re Somday v. Rhay, 67 Wn.2d 180, 184, 406 P.2d 931 (1965). And of course, petitioner may also have availed himself of the use of affidavits in his habeas corpus application.
*361 Petitioner's final contention is that he cannot, consistent with due process of law, be convicted of the crime of aiding and abetting the unlawful possession of narcotics when the substantive crime was established by constitutionally inadmissible evidence. Petitioner argues that the three heroin capsules and a signed statement of James Bitrick (state's exhibit 2) were obtained and admitted into evidence in violation of certain constitutional guarantees.
[9] We have already answered at length petitioner's arguments in regard to the heroin capsules. We do not find it necessary to retry the issue of the voluntariness of Bitrick's statement. For even were that statement found to have been involuntarily given, "The introduction of a coerced confession in evidence against one defendant is not in itself the imposition of constitutional wrong upon his codefendant.... ." United States v. Yeager, 327 F.2d 311 (3d Cir.1964), cert. denied, New Jersey v. Godfrey, 377 U.S. 977, 12 L.Ed.2d 745, 84 Sup. Ct. 1882 (1964). Looking at the trial as a whole, we find that the jury was adequately cautioned, both at the time of the statement's admission and afterward, to consider the statement for the sole purpose of determining whether Bitrick committed the crime with which he was charged. Under these circumstances, we find no constitutional right of petitioner was violated by the use of this statement. See, e.g., Malinski v. New York, 324 U.S. 401, 410-412, 89 L.Ed. 1029, 65 Sup. Ct. 781 (1945); State v. Taylor, 47 Wn.2d 213, 217, 287 P.2d 298 (1955).
The petition is denied.
HILL, DONWORTH, FINLEY, OTT, HAMILTON, and HALE, JJ., concur.
WEAVER, J. (dissenting)
I dissent for two interrelated reasons.
USE OF AFFIDAVIT
The majority opinion states that:
Some of the factors considered by this court in determining that probable cause for the arrest existed, were attested to in this affidavit [of Detectives Sprinkle and Waitt] without contradiction by petitioner, but were not *362 established in the record of the trial court proceedings. (Italics mine.)
I do not believe that the permissible scope of judicial inquiry in habeas corpus allows the consideration of an ex parte affidavit that has not been invited by an allegation of the petitioner that can be said to have "opened the door." If the door has been opened by allegations of petitioner which are dehors the record, an answering statement under oath indicates to us the evidence that would be produced upon a factual hearing. If the "door has not been opened" by allegations of petitioner, the affidavit becomes nothing more than an attempt of the state to bolster an otherwise weak case which has been attacked by habeas corpus.
As I read In re Somday v. Rhay, 67 Wn.2d 180, 406 P.2d 931 (1965), it is not to the contrary and cannot be said to stand for the broad proposition for which the majority cites it. Two affidavits were involved in Somday. There was no objection to one which fixed the location of a highway on patented land; the other was proper since it was made in response to an allegation made by petitioner regarding facts outside the record. In the instant case, the affidavit is an attempt to supplement the trial record.
The dangers inherent in the consideration of such an affidavit are well-illustrated by the instant affidavit, which was submitted 5 1/2 years after the trial. Memories tend to become weaker rather than stronger with the passage of time.
The majority opinion states that:
Petitioner objects to our consideration of this affidavit, arguing that to do so would violate petitioner's right of confrontation and cross-examination, which right is essential to due process of law as required by the Sixth Amendment and made applicable to the states through the Fourteenth Amendment.
To my mind, to point out that habeas corpus is a civil proceeding is no answer to petitioner's contention that the affidavit invades his constitutional rights.
The availability of a procedure to regain liberty lost through criminal process cannot be made contingent upon *363 a choice of labels. Smith v. Bennett, 365 U.S. 708, 6 L.Ed.2d 39, 81 Sup. Ct. 895 (1961).
Although the sixth amendment to the United States Constitution may be limited to criminal proceedings, the concept of due process is not.
I do not believe that consideration of the affidavit signed by Detectives Sprinkle and Waitt was consistent with due process of law. Accordingly, I feel that the majority's expansion of the scope of habeas corpus review is not only fundamentally unfair but will create unnecessarily complicated problems in future habeas corpus proceedings.
PROBABLE CAUSE
Even assuming arguendo that consideration of the affidavit here involved was proper, I nevertheless cannot conclude that the six factors discussed in the majority opinion establish "probable cause" that a felony had been, was being, or was about to be committed.
Although petitioner may have been a "suspect" he cannot be arrested simply because he is a known narcotics user. Just as a person cannot be made subject to criminal prosecution on the sole basis of his "status" as a narcotics addict,[1] he cannot be made subject to arrest, the probable cause for which is his "status." Yet a careful reading of the record discloses that is what happened in this case. The conclusion of probable cause for arrest without warrant cannot be derived from the six factors relied upon by the majority.
Factors (1) and (5) are truisms, and as related to the conclusion of probable cause are non sequiturs. Factor (2) only establishes petitioner's "status," which cannot be the basis of "probable cause" for his arrest without warrant. Further, the information provided by the informers was not new to the officers. The insignificance of factors (3) and (4) is apparent from a reading of the record. Petitioner was observed, and became the subject of pursuit, a distance in excess of one mile away from the site at which he was *364 allegedly picking up heroin. There was no evidence that petitioner was coming from Jackson Street. The significance of factor (6) is destroyed by factor (1). Petitioner's admission that he was "loaded on goofers" does not furnish the missing link. Detective Sprinkle in his affidavit designated the capsule he saw on petitioner's tongue as "nembutal," which he admitted at the trial was a nonnarcotic barbiturate form of sleeping pill. The fact that petitioner was "loaded on goofers" explains why he was staggering at the time of the arrest. Possession of something recognized as a nonnarcotic does not furnish probable cause to arrest someone for the crime of unlawful possession of narcotics.
ROSELLINI, C.J., concurs with WEAVER, J.
July 13, 1966. Petition for rehearing denied.
NOTES
[*] Reported in 413 P.2d 15.
[1] Robinson v. California, 370 U.S. 660, 8 L.Ed.2d 758, 82 Sup. Ct. 1417 (1962).
|
793 F.2d 792
John B. YOUNG, Plaintiff-Appellee,v.Carl E. LANGLEY; Wilbur E. Bond, Jointly and Severally,Defendants-Appellants.
No. 85-1196.
United States Court of Appeals,Sixth Circuit.
Argued April 11, 1986.Decided June 24, 1986.
James M. Pidgeon (argued), Wilson, Portnoy and Leader, P.C., Bloomfield Hills, Mich., for defendants-appellants.
Otis M. Underwood, Jr. (argued), Oxford, Mich., for plaintiff-appellee.
Before KEITH and MARTIN, Circuit Judges, and WEICK, Senior Circuit Judge.
KEITH, Circuit Judge.
1
Defendants, Carl E. Langley and Wilbur Bond, appeal the jury verdict for plaintiff, John B. Young, under 42 U.S.C. Sec. 1983 (1982) for job discrimination. We affirm the jury verdict because defendants did not preserve their issues on appeal.
I.
2
The defendants, Langley and Bond, were Sheriff and Under Sheriff of Lapeer County Michigan from 1976 thru 1980. Plaintiff was a Deputy Sheriff. In the Spring of 1980, plaintiff decided to run for the office of Sheriff. After plaintiff circulated nominating petitions to run for Sheriff, defendants demoted plaintiff to turnkey status allegedly because he took his daughter from school early in violation of a city ordinance and he did not respond to an emergency call. Two months later on June 3, 1980, plaintiff was suspended for five days without pay for allegedly allowing a prisoner to escape. Defendants then relayed all of these charges to the Lapeer County Press, which were printed in a June 4, 1980 newspaper article. Plaintiff denied the above charges and claimed that his first and fourteenth amendment rights were violated when defendants punished plaintiff for wrongs he did not commit and told the Lapeer County Press about the false charges. He also claimed that the charges caused him to lose the 1980 primary election for Sheriff.
3
During the trial, defendants moved for a directed verdict after plaintiff presented his case. However, defendants did not renew the directed verdict motion after all the evidence was presented. The factual issues presented for the jury's consideration were submitted to them by a Jury Questionnaire. The jury answered all the questions in the affirmative. The jury awarded $750,000 to plaintiff Young and against defendants, $350,000 in compensatory damages and $400,000 in punitive damages. No motion for judgment notwithstanding the verdict was made. Furthermore, no motion was made for a new trial or for remittitur.
4
On appeal, defendants Langley and Bond claim that the verdict was excessive, that the evidence did not support certain findings of the jury, that the jury verdict form was flawed and that defendants cannot be held liable for the actions of their subordinates.
II.
A. Excessiveness of Jury Verdict
5
Defendants argue that the jury verdict was excessive. We disagree.
6
In civil cases, our review of excessive verdicts is limited to those errors adequately preserved in the trial court. The excessiveness or inadequacy of verdicts should be submitted to the trial court by motion for new trial. See Hahn v. Becker, 588 F.2d 768, 771 (7th Cir.1979). The purpose for new trial motions is to give the trial judge the opportunity to initially correct errors made at trial. The trial judge must be given the opportunity to exercise his discretion. Furthermore, the trial judge's ruling on that motion creates a full record on appeal. On appeal, our scope of review is limited to whether the trial court abused its discretion in ruling on that motion. Petition of H & H Wheel Service, 219 F.2d 904, 916 (6th Cir.1955); Hahn, 588 F.2d at 771. This court may not review the alleged excessiveness of verdicts absent a timely motion for new trial and the trial court's ruling thereon. Hahn, 588 F.2d at 771; Panger v. Duluth, Winnipeg and Pacific Ry. Co., 490 F.2d 1112, 1118 (8th Cir.1974); Ryen v. Owens, 446 F.2d 1333, 1333-34 (1971).
7
In the present case, the excessiveness of damages issue was raised for the first time on appeal. The trial court never had an opportunity to pass on the claim now presented by defendants. Since defendants did not timely raise the excessiveness of the verdict issue, we hold that it is not now appropriate for review.
B. Sufficiency of the Evidence
8
Defendants claim that the evidence does not support the liability findings of the jury. We believe that since appellants did not preserve this issue for appeal, we need not reach the merits.
9
The Seventh Amendment of the United States Constitution provides that no fact tried by a jury shall be re-examined by any court except according to the rules of the common law. This circuit recently reiterated this principle in Moran v. Johns-Manville Sales Corp., 691 F.2d 811, 813 (6th Cir.1982). In Moran we stated that "[s]trictly speaking, this court does not review the actions of juries. Our review of the sufficiency of the evidence is by review of a trial judge's rulings on motions for directed verdict or JNOV...." Id. Furthermore, where a defendant moves for directed verdict at the close of plaintiff's testimony and does not renew its motion at the close of the entire testimony, defendant waives its original motion and is precluded from questioning the sufficiency of the evidence on appeal. American National Bank & Trust Company v. Dean, 249 F.2d 82, 83 (6th Cir.1957); see Warner v. Kewanee Machinery & Conveyor Company, 411 F.2d 1060 (6th Cir.1969), cert. denied, 398 U.S. 906, 90 S.Ct. 1685, 26 L.Ed.2d 65 (1970); see also Dunn v. Sears, Roebuck & Co., 639 F.2d 1171, 1175 (5th Cir.1981) (holding that in absence of a motion for directed verdict, sufficiency of evidence is not reviewable on appeal).
10
The present case was tried to a jury on the facts. Although defendants made a motion for directed verdict at the close of plaintiff's proofs, no motion for directed verdict was made at the close of all the proofs. Not only does this omission preclude our review of this issue, the fact that no motion for JNOV was made by defendants also prevents this Court from ruling on this matter. Since our review is limited by the trial judge's rulings on motions for directed verdict or JNOV and since no directed verdict or JNOV motion was made at the close of the proofs, we hold that the sufficiency of the evidence challenge has not been properly preserved for appeal.
C. Jury Verdict Form
11
Defendants argue that the flawed jury verdict form necessitates a new trial on the issue of punitive damages. We disagree.
12
Generally, where a party fails to object to an instruction this Court will not consider that objection on appeal. Wiskotoni v. Michigan National Bank-West, 716 F.2d 378, 388-89 (6th Cir.1983). Where an error in jury instructions is obvious and prejudicial, an appellate court may consider the matter in the interests of justice where the complaining party has failed to object to the jury instructions at trial. Id. at 382. Although a motion for new trial is not required for appellate review, failure to include an excessive damages issue in a motion for a new trial or otherwise present it to the trial court precludes our review. See Haley v. Wyrick, 740 F.2d 12, 13 (8th Cir.1984) (holding that an excessiveness of a verdict issue should be a matter for the trial court which has had the benefit of hearing the testimony and observing the demeanor of the witnesses and which knows the community and its standards).
13
When this case was first tried in 1983, the instructions to the jury, which included the verdict form, were agreed upon by the parties. Defendants did not make a motion objecting to the jury instructions during the intervening years and no objection was made to the jury instructions or verdict form used in the 1985 trial. Moreover, defendants did not make a JNOV motion after the verdict to correct this alleged error. Furthermore, a motion for new trial was not requested until appeal. Since there is no allegation that the jury instruction form was prejudicial and since no excessive damage claim was made in a new trial motion, we hold that defendants did not properly preserve this issue for appeal.
D. Liability of Defendants
14
Defendants argue for the first time on appeal that the legal theory of respondeat superior has application to this case. Again, we decline to review the merits of an unpreserved claim.
15
The above argument was not addressed to the trial court in a motion for directed verdict, JNOV or even an objection to the jury instructions. Since this is a question of fact and is related to the sufficiency of the evidence, we hold that defendants did not preserve this issue for review under the same rationale listed in part II B of this opinion.
16
Accordingly, we affirm the decision of the district court awarding damages to the plaintiff.
|
16 B.R. 580 (1981)
In re David Alan GOLDEN and Barbara Golden, Debtors.
David Alan GOLDEN and Barbara Golden, Plaintiffs,
v.
CITY NATIONAL BANK OF HALLANDALE, Defendant.
Bankruptcy No. 80-01313-BKC-SMW, Adv. No. 81-0291-BKC-SMW-A.
United States Bankruptcy Court, S.D. Florida.
October 14, 1981.
*581 FINDINGS OF FACT AND CONCLUSIONS OF LAW
SIDNEY M. WEAVER, Bankruptcy Judge.
This Cause having come to be heard upon plaintiffs' Complaint to Avoid a Judicial Lien under 11 U.S.C. Section 522(f) and defendant's Motion to Dismiss filed herein; and the Court, having examined the facts as stipulated to by the parties and having considered the arguments of counsel and being otherwise fully advised in the premises; does hereby make the following findings of fact and conclusions of law:
This Court has jurisdiction of the parties and the subject matter.
The facts are undisputed. A judicial lien was entered on September 15, 1977 on the homestead property of the plaintiffs, David Alan and Barbara Rebekah Golden (the Debtors) in the amount of Twenty-Three *582 Thousand, Four Hundred Eighty and 42/100 Dollars ($23,480.42) and recorded on October 21, 1977 in Broward County, Florida. The debt owed to the defendant, City National Bank of Hallandale (the Bank) was not a purchase money mortgage. The Debtors filed a petition in bankruptcy on October 8, 1980 under the Bankruptcy Reform Act of 1978. This adversary proceeding was initiated on June 19, 1981 under 11 U.S.C. Section 522(f) to avoid the Bank's judicial lien on Debtors' homestead property. The Debtors allege that the Bank's lien on the Debtors' homestead impairs the exemption to which the Debtors would be entitled. The Bank has responded with a motion to dismiss under F.R.C.P. 12(b)(6) for failure to state a cause of action alleging that the statutory basis of Debtors' petition, Section 522(f), violates the Bank's Fifth Amendment rights.
In making an analysis of the constitutionality of any statute, certain presumptions come to bear. Any Congressional Act coming before this Court comes with the presumption of constitutionality. It is the burden of the party challenging the statute to overcome this presumption. In re Stump, 8 B.R. 516 (Bkrtcy.1981); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) [hereinafter cited as Usery]. Absent a clear showing of a violation of a constitutionally protected right or privilege, a trial court should resolve any question of constitutionality in favor of the Act. Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). The Court proceeds with its analysis of the Bank's Fifth Amendment assertions against this background of the presumptive constitutionality of 11 U.S.C. 522(f).
The Bank's Fifth Amendment challenge raises three basic issues: (1) whether Section 522(f) involves a taking of private property for public purposes without just compensation; (2) whether retroactive application of Section 522(f) involves a deprivation of property without procedural due process and (3) whether Section 522(f) violates substantive due process. In re Pillow, 8 B.R. 404 (Bkrtcy.D.Utah, 1981).
In order for Section 522(f) to fall under the "taking" provision of the Fifth Amendment, it is necessary that the taking of property must be the direct or indirect result of an actual appropriation of property "by the government for public use." Matter of Joyner, 7 B.R. 596 (Bkrtcy.M.D. Georgia 1980) [hereinafter referred to as Matter of Joyner]. While there may be an appropriation of property involved in the facts presented here, it is not appropriated for public use. It is the opinion of the Court that the avoidance of a pre-enactment judicial lien under Section 522(f), while possibly depriving the Bank of an interest in property, is not the type of "taking" prohibited by the Fifth Amendment.
It is questionable whether the interest involved here is actually a property interest. In two unreported cases with similar facts and applicable state law, the Bankruptcy Courts have recently held that a judgment lien is merely a remedy which does not vest as a property right until execution on the property is made. In re Lattimore, Debtor: Lattimore, Movant v. Walt's Tree Service, Inc., Respondent, 12 B.R. 97, Bkrtcy.W.D.N.Y.1981. In re Charles E. Ashe and Susan J. Ashe, Debtors: The Commonwealth National Bank, Objector, United States of America, Intervenor, BK No. 1-79-00882, B.C.M.D. Pa. June, 1981. Under Florida law, a judgment lien places a cloud on the title of the property in question and gives the lien holder the right to execute on the property. Judgment liens are not effective against homestead property which under Article 10 Section 4 of the Florida Constitution is exempt from execution by creditors. Under Florida Statute 55.081, a judgment lien not executed upon within twenty years will expire. Unless the property in question loses its homestead character through sale or change in family circumstances within that twenty year period, the creditor has no recourse against that property. In the case at hand, the Bank had not attempted execution against the homestead property of the Debtors in the three years between perfecting *583 its judgment lien and the filing of the bankruptcy petition, being well aware of the futility of such an attempt. If the Bank has a vested property right under these facts, it is not something substantial or easily valued. Assuming though, that the Debtors are being deprived of a property right, it is necessary to determine whether such deprivation is the kind prohibited by the Fifth Amendment due process clause.
The due process issue consists of two elements, procedural and substantive due process. Procedural due process concerns the notice necessary to provide a property owner an opportunity to contest the validity of an action to deprive him of his property and serves the purpose of preventing arbitrary or unfair deprivations. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). The test for substantive due process, on the other hand, is whether the challenged act is "unreasonable, arbitrary or capricious and (whether it has) a real and substantial relationship to a permissible legislative objective." Matter of Joyner. To prove a Fifth Amendment procedural due process violation, the Bank must show that its property right in the judicial lien is being invaded without an opportunity to object or contest the matter in Court. Rainbow Valley Citrus Corp. v. Federal Crop. Insurance Corp., 506 F.2d 467 (9th Cir. 1974). The Court finds that the Bank has had ample opportunity to be heard in this matter. Notice of this action to avoid the Bank's judicial lien was filed on June 22, 1981; a motion to dismiss was filed by the Bank on July 28, 1981 and the Court heard oral argument on August 5, 1981. The Court finds no violation of procedural due process in this matter.
The retroactive application of a law raises the issue of whether creditors had "notice" of the law when credit was given to the Debtors. The Bank argues that it is the retroactive avoidance of a judicial lien which vested prior to the enactment of the Bankruptcy Code of 1978 which is unconstitutional. It is widely recognized that bankruptcy legislation is the subject of broad, express constitutional power. This bankruptcy power is inherently retroactive in that it "necessarily . . . impairs the obligation of contracts" which may have been entered into prior to filing bankruptcy. In re Prima Co., 88 F.2d 785, 788 (7th Cir. 1937).
All parties to a contract are, of necessity, aware of the existence of, and subject to, the power of Congress to legislate on the subject of bankrupties. They were and are chargeable with knowledge that their rights and remedies, in case the debtor becomes insolvent and is adjudicated a bankrupt, are effected by existing bankruptcy laws and all future lawful bankruptcy legislation which might be enacted . . . Another unavoidable conclusion is that all contracts are made with the knowledge that existing laws may be amended. [Id.]
The Prima court recognized that Congress intended that the Bankruptcy Code, and the Bankruptcy Courts, could alter priorities and vested rights among creditors, and that this effect was constitutional.
Historically, bankruptcy statutes have effected rights which predate their enactment. In Hanover National Bank v. Moyses, 186 U.S. 181, 22 S.Ct. 857, 46 L.Ed. 1113 (1902), [hereinafter cited as Hanover National Bank] decided soon after the enactment of The Bankruptcy Act of 1898, the Court found that certain provisions of that act under which the defendants were discharged from an 1892 pre-enactment judgment debt, were constitutional. The Court reiterated its position on the application of bankruptcy legislation to pre-enactment vested rights in Wright v. Vinton Branch of the Mountain Trust Bank of Roanoke, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736 (1937) [hereinafter referred to as Wright v. Vinton Branch] where it upheld the constitutionality of the application of the Bankruptcy Act amendments in the Frazier-Lemke Act which provided for a foreclosure moratorium in bankruptcy on pre-enactment liens.
A close examination of the legislative history and statutory language of the Bankruptcy Code of 1978 evidences Congressional intent to follow the traditional *584 application of bankruptcy law to pre-enactment rights. It has been held that the Bankruptcy Code should not be construed to create a legislative gap. Wisconsin Higher Education Aids Board v. Lipke, 630 F.2d 1225 (7th Cir. 1980). If the Bank's argument is given credence, there would be no bankruptcy law governing transactions which occurred prior to the enactment of the Bankruptcy Reform Act of 1978 which, of necessity, would be the substance of any petition filed immediately after the effective date of the new law. Congress contemplated this possibility when it carefully drafted the repeal, the savings and the effective date provisions of the new law. Sections 401 and 402 of the Bankruptcy Code of 1978 repeal the prior Bankruptcy Act effective October 1, 1979, except to the extent that the savings provision, Section 403, provides that cases commenced under the Act shall continue under the Act. However, Section 403 does not save transactions which arose under the old law. It is obvious that in drafting the Bankruptcy Reform Act of 1978, Congress intended to apply the new law to previously accrued debts which would become the subject of a petition for discharge filed after October 1, 1978. Otherwise, it would be a number of years before a debtor could bring newly accrued debts to be discharged by the Bankruptcy Court and Congress should have created a gap in the constitutionally mandated law. The Court finds that Congress did not intend to leave a "gap" in the law, and the Bankruptcy Code should not be so construed.
The issue of substantive due process focuses on whether the law in question is arbitrary and unreasonable or unrelated to a rational legislative purpose. The due process standard to be applied to a Congressional enactment in the field of bankruptcy was defined in Hanover National Bank, 186 U.S. at 192, 22 S.Ct. at 862 in these terms: "Congress may prescribe any regulations concerning discharge in bankruptcy that are not so grossly unreasonable as to be incompatible with fundamental law." In Usery the United States Supreme Court, in a non-bankruptcy case effecting modification of pre-enactment contract rights, pronounced the current standard for substantive due process challenges:
It is by now well established that Legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. Usery, 428 U.S. at 15, 96 S.Ct. at 2882.
The Bank has failed to prove that the Bankruptcy Code's adjustment of the "burdens and benefits" in this case is unreasonable or arbitrary. In its Memorandum of Law, the Bank urges on the Court a different standard of proof relying heavily on the recent Tenth Circuit decision in Rodrock v. Security Industrial Bank, Inc., 642 F.2d 1193 (1981) which held that a retroactive application of 11 U.S.C. Section 522(f) was unconstitutional because it violated Fifth Amendment due process standards. The Court has carefully considered the Rodrock case but finds it distinguishable based as it is on the Supreme Court's depression era decision in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1238 (1935) [hereinafter cited as Radford], a decision from which the Court itself immediately receded and subsequently limited drastically. That the Supreme Court has departed from this earlier substantive due process standard pronounced in Radford is evidenced by its later decisions effecting economic legislation generally and bankruptcy legislation in particular. Hanover National Bank (1902); Wright v. Vinton Branch (1937); Wright v. Union Central Life Ins. Co., 304 U.S. 502 (1938); Usery (1976). A close reading of Radford reveals important distinctions between the factual basis of the Court's decision and the facts surrounding the judicial lien on the Debtors' property at issue here. Firstly, Radford involved mortgaged property which was not claimed as homestead, thus the Radford Court was not presented with a constitutional challenge to Congressional actions designed to preserve Debtors' exemptions.
*585 More importantly, the Radford decision involved a security interest in property which could be reached by execution and thus had substantial value. It was only the transferring of rights of "substantial value" that the Radford Court condemned (emphasis added). Under Florida homestead exemption law, prohibiting execution by creditors against a debtor's homestead property, the Bank's judicial lien lacks "substantial value" and would fall outside the parameters of the Radford/Rodrock logic.
The provisions of Section 522(f) are designed to protect the debtor's fresh start by exempting those necessities which would encourage a successful economic recovery to the extent that these items are exempt under state law. The Court finds that these are proper ends to be attained under Congressional power over bankruptcies, and that the provisions of Section 522(f) are rationally related to those ends. These provisions are not arbitrary when they shift the burden from debtors, who need their homestead property to maintain themselves, to creditors who have profited from those loans in the past, who calculate the risk factor into their interest rate charges and who can, in addition, offset the burden imposed by writing off the debt. To hold that these provisions providing for the avoidance of certain, specific liens is unconstitutional would impair the exemptions intended by Congress and undermine the policy, and the traditional effect, of bankruptcy law.
The Fifth Amendment challenge to 11 U.S.C. Section 522(f) presented here is not well taken. The fact that a person or legal entity cannot be deprived of property without due process does not mean that one cannot be deprived of property at all. There is a deprivation of property in any bankruptcy action whereby a creditor is not paid the entire amount of its claim. The Court finds that, while there may be some deprivation of property involved in the avoidance of the Bank's judicial lien, due process constraints have not been violated. The 11 U.S.C. Section 522(f) has sufficient procedural requirements built in whereby a creditor's due process rights are protected. The Court finds further that Section 522(f) bears a rational relationship to the permissible legislative purpose of giving the Debtors a "fresh start" by protecting through specific enumerated exemptions, the basic necessities of life, such as the Debtors' home.
In accordance with the foregoing, the Bank's Motion to Dismiss the Debtors' Complaint will be denied and Debtors' Complaint for Avoidance of Judicial Lien under 11 U.S.C. Section 522(f) will be granted.
A judgment will be entered in accordance with these findings and conclusions.
|
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 19-2434
______
D.J.S.-W., a minor, by her natural mother
and legal guardian, D’ERICKA STEWART,
Appellant
v.
UNITED STATES OF AMERICA
______
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-17-cv-01335)
Chief District Judge: Honorable Mark R. Hornak
______
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 22, 2020
Before: HARDIMAN, RENDELL and FISHER, Circuit
Judges.
(Opinion Filed: June 22, 2020)
Vincent A. Coppola
Pribanic Pribanic & Archinaco
513 Court Place, First Floor
Pittsburgh, PA 15219
Counsel for Appellant
Scott W. Brady, United States Attorney
Haley F. Warden-Rodgers
Laura S. Irwin
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
D.J.S.-W., a young girl who sustained a shoulder injury
during birth, argues that the limitations period for filing her
medical malpractice claim under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346(b), 2671–80, should be equitably
tolled. Because D.J.S.-W. fails to show both that she diligently
pursued her rights and that extraordinary circumstances
prevented her from timely filing, we decline to accord her such
an exceptional remedy. Accordingly, we will affirm the
District Court’s grant of summary judgment to the United
States.
I.
In late 2009, D.J.S.-W. was born at Sharon Regional
Health Center (Sharon Hospital) in Mercer County,
2
Pennsylvania, under the care of John Gallagher, M.D. During
delivery, D.J.S.-W. sustained a brachial plexus injury, which
allegedly caused permanent damage to her right shoulder and
arm.
In the next few months, D.J.S.-W.’s mother retained
counsel to pursue D.J.S.-W.’s potential malpractice claims
against Sharon Hospital and Dr. Gallagher. In 2010 and 2011,
in preparing to file D.J.S.-W.’s case, counsel requested medical
and billing records from Sharon Hospital on three occasions.
During this time, counsel also sent one request for medical
records directly to Dr. Gallagher. All four requests were
limited temporally “to those records pertinent to the time when
Dr. Gallagher’s alleged negligence occurred—the delivery of
[D.J.S.-W.] . . . and the 12 hours prior to the delivery, the time
at which [D.J.S.-W.’s mother] presented to Sharon . . . Hospital
to give birth.” App. 204 ¶ 12. Beyond these record requests,
counsel also visited Sharon Hospital’s website, which listed
Dr. Gallagher as an Obstetrics & Gynecology doctor, and
conducted a Google search of both Sharon Hospital and Dr.
Gallagher.
D.J.S.-W.’s counsel believed that Dr. Gallagher was
privately employed because Dr. Gallagher delivered D.J.S.-W.
at Sharon Hospital—an entity against which counsel had
previously litigated and knew to be private—and was listed on
the Sharon Hospital website. Despite his investigatory efforts
in preparing to file her case, D.J.S.-W.’s counsel did not
discover that at the time of D.J.S.-W.’s birth, Dr. Gallagher
was employed by Primary Health Network, a “deemed” federal
entity eligible for FTCA malpractice coverage. Under federal
law, entities that receive federal funding to serve medically
underserved populations, as well as “health practitioners that
such entities employ[,] ‘shall be deemed to be [employees] of
the Public Health Service.’” Lomando v. United States, 667
3
F.3d 363, 371 (3d Cir. 2011) (second alteration in original)
(quoting 42 U.S.C. § 233(g)(1)(A)). This status “is highly
significant” because “an action against the United States under
the FTCA is the exclusive remedy for persons alleging
‘personal injury . . . resulting from the performance of medical
. . . functions’ by Public Health Service employees acting
within the scope of their employment.” Id. (quoting 42 U.S.C.
§ 233(a)). Indeed, D.J.S.-W.’s counsel had litigated a prior case
in which the United States substituted itself for a defendant
doctor because he was a “deemed” federal employee.
During the preparation of D.J.S.-W.’s case, counsel did
not visit or call Sharon Hospital, Dr. Gallagher, or any Primary
Health Network office. He did not search the Health Resources
and Services Administration database, which would have
revealed that Primary Health Network was a “deemed” federal
entity (although, at the time, it did not list individual providers
like Dr. Gallagher). Nor did counsel visit Primary Health
Network’s website or search Primary Health Network on
Google. At the time, its website and each of its offices
indicated that Primary Health Network was a “Federally
Qualified Health Center.”
Furthermore, counsel never requested medical records
from Primary Health Network, nor did he ask for records from
any healthcare provider or facility that identified a responsive
date range earlier than D.J.S.-W.’s birth in November 2009.
Records from before D.J.S.-W.’s birth, however, show that at
the time of her birth, her mother had been a patient of Dr.
Gallagher’s for over ten years and had visited the Primary
Health Network office in Sharon, Pennsylvania. Of the medical
records counsel did ask for, he sent one request directly to
“John Gallagher, M.D., One Dayton Way, Suite 6, Sharon, PA
16146”—the street address of a Primary Health Network
office. App. 236. And of the records Dr. Gallagher sent in
4
response to counsel’s request, two pages included the words
“Primary Health Network” at the bottom of the page
immediately above Dr. Gallagher’s name and mailing address.
D.J.S.-W. v. United States, No. 2:17-cv-01335, 2019 WL
1894707, at *3, *11 (W.D. Pa. Apr. 29, 2019).
In late 2016—nearly seven years after the allegedly
negligent delivery—D.J.S.-W.’s mother filed suit on D.J.S.-
W.’s behalf against Dr. Gallagher and Sharon Hospital in
Pennsylvania state court. Despite Pennsylvania’s two-year
limitation for bringing personal injury actions, see 42 Pa. Cons.
Stat. § 5524(2), D.J.S.-W.’s counsel, “[a]cting according to his
custom and practice,” deliberately delayed filing D.J.S.-W.’s
case “in anticipation of acquiring additional knowledge
regarding the severity and permanency of [her] injuries,” App.
211 ¶ 72. In doing so, counsel relied on a Pennsylvania statute,
42 Pa. Cons. Stat. § 5533(b)(1), which tolls a minor plaintiff’s
action until she turns eighteen.
Soon after the case was filed, the Government removed
it to the U.S. District Court for the Western District of
Pennsylvania and moved to substitute the United States for Dr.
Gallagher because he was working within the scope of his
federal employment with Primary Health Network at the time
of the allegedly negligent delivery. The District Court granted
the motion for substitution, at which point the United States
moved to dismiss on the basis that D.J.S.-W. failed to timely
exhaust her administrative remedies as required under the
FTCA. The District Court then dismissed the case against the
United States without prejudice and remanded the case against
Sharon Hospital for lack of subject-matter jurisdiction.1
1
The case against Sharon Hospital was still pending in state
court when the parties briefed this appeal.
5
After exhausting administrative remedies,2 D.J.S.-W.’s
counsel filed anew D.J.S.-W.’s claim against the United States
in the District Court. The United States moved to dismiss,
arguing that her action was untimely under the FTCA. The
District Court denied the motion, ordering the parties to engage
in limited discovery regarding the FTCA’s statute of
limitations and equitable tolling.
At the close of discovery, the United States moved for
summary judgment, again arguing that D.J.S.-W.’s suit was
untimely. Although conceding that she did not timely file,
D.J.S.-W. argued that she was entitled to equitable tolling of
the FTCA’s limitations period because she—or more
accurately, her counsel—“had no reason to know that [Dr.
Gallagher] was a ‘deemed’ federal employee or that further
inquiry into his status was required.” Supp. App. 26. The
District Court disagreed, holding that D.J.S.-W. failed to “meet
her burden to obtain the extraordinary remedy of equitable
tolling.” D.J.S.-W., 2019 WL 1894707, at *10. Accordingly,
the Court granted the Government’s motion for summary
judgment because D.J.S.-W.’s “negligence claim against the
United States is . . . barred as untimely.” Id. D.J.S.-W. appeals.
II.3
“As a sovereign, the United States is immune from suit
unless it consents to be sued.” Sconiers v. United States, 896
2
D.J.S.-W. presented her claims to the U.S. Department of
Health and Human Services. Her administrative claim was
deemed denied when the agency failed to act within six
months. See 28 U.S.C. § 2675(a).
3
The District Court had jurisdiction pursuant to 28 U.S.C. §§
1331 and 1346(b)(1), and we have jurisdiction under 28 U.S.C.
§ 1291. “Our review of the District Court’s [summary
6
F.3d 595, 597 (3d Cir. 2018) (quoting White-Squire v. U.S.
Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010)). The FTCA
represents “a limited waiver of th[at] sovereign immunity,”
Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d
Cir. 2009), providing that “[t]he United States shall be liable,
respecting . . . [certain] tort claims, in the same manner and to
the same extent as a private individual under like
circumstances,” 28 U.S.C. § 2674.
Bringing a claim under the FTCA requires following
various procedural requirements. The FTCA dictates that “a
tort claim against the United States ‘shall be forever barred’
unless it is presented to the ‘appropriate Federal agency within
two years after [it] accrues’ and then brought to federal court
‘within six months’ after the agency acts on the claim.” United
States v. Wong, 575 U.S. 402, 405 (2015) (quoting 28 U.S.C.
§ 2401(b)). If the agency fails to act within six months, the
claimant may proceed to file her case in district court. 28
U.S.C. § 2675(a).
Here, both parties agree that D.J.S.-W.’s case—which
was first filed in state court almost seven years after her birth,
the date on which her claim accrued—was not timely presented
to the appropriate agency in accordance with these
requirements. And although D.J.S.-W.’s counsel deliberately
delayed filing her case in reliance on Pennsylvania’s tolling
statute, that law cannot save D.J.S.-W.’s untimely claim
against the United States because “state-law tolling statutes do
judgment] decision is plenary.” State Auto Prop. & Cas. Ins. v.
Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009). Summary
judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
7
not apply to the FTCA’s limitations period.” Santos, 559 F.3d
at 193. Thus, the sole issue on appeal is whether D.J.S.-W. has
shown that she is entitled to the extraordinary remedy of
equitable tolling of the FTCA’s limitations period.4 We first
clarify the test that a litigant seeking equitable tolling must
satisfy. We then explain why D.J.S.-W. fails to meet that
standard in this case.
A. Our Equitable-Tolling Test
It is well established that a court may “rescue a claim
otherwise barred as untimely by a statute of limitations when a
plaintiff [shows she] has ‘been prevented from filing in a
timely manner due to sufficiently inequitable circumstances.’”
Id. at 197 (quoting Seitzinger v. Reading Hosp. & Med. Ctr.,
165 F.3d 236, 240 (3d Cir. 1999)). Tolling “is [an]
extraordinary” remedy, id., and “is proper only when the
‘principles of equity would make [the] rigid application [of a
limitation period] unfair,” Miller v. N.J. State Dep’t of Corr.,
145 F.3d 616, 618 (3d Cir. 1998) (alterations in original)
(quoting Shendock v. Dir., Office of Workers’ Comp.
Programs, 893 F.2d 1458, 1462 (3d Cir. 1990) (en banc)). “It
is especially appropriate to be restrictive” in extending this
remedy “in cases involving the waiver of the sovereign
immunity of the United States,” such as those arising under the
FTCA. Santos, 559 F.3d at 197–98.
Our Court uses the term “equitable tolling” broadly to
encompass several situations under which a statute of
limitations period may be tolled on equitable grounds. We have
said that:
4
“The time limits in the FTCA are just time limits,” not
jurisdictional requirements, and, therefore, “a court can toll
them on equitable grounds.” Wong, 575 U.S. at 412.
8
[T]here are three principal, though not exclusive,
situations in which equitable tolling may be
appropriate: (1) where the defendant has actively
misled the plaintiff respecting the plaintiff’s
cause of action; (2) where the plaintiff in some
extraordinary way has been prevented from
asserting . . . her rights; or (3) where the plaintiff
has timely asserted . . . her rights mistakenly in
the wrong forum.5
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1387 (3d Cir. 1994), abrogated on other grounds by Rotkiske
v. Klemm, 890 F.3d 422, 428 (3d Cir. 2018) (en banc), aff’d
140 S. Ct. 355 (2019). In addition, a litigant “will not receive
the benefit of” tolling in any of these situations “unless she
5
Our Court often refers to all three of these situations “as
falling under the overarching heading of ‘equitable tolling’”
because each “tolls a limitations period on equitable grounds.”
Edmonson v. Eagle Nat’l Bank, 922 F.3d 535, 550 (4th Cir.
2019) (describing the Third Circuit’s approach). Other circuits
use the phrase to refer only to the second situation in our list—
that is, “when a plaintiff’s failure to timely file suit is not
attributable [to] wrongful conduct by the defendant.” Id.; see
also Zappone v. United States, 870 F.3d 551, 556 (6th Cir.
2017); Valdez ex rel. Donely v. United States, 518 F.3d 173,
183 (2d Cir. 2008); Cada v. Baxter Healthcare Corp., 920 F.2d
446, 451 (7th Cir. 1990). In recent years, the Supreme Court
has also used the phrase “equitable tolling” in this more
specific sense. See Holland v. Florida, 560 U.S. 631, 644–45
(2010). As we explain above, only the second of our three
tolling scenarios is at issue here, so we need not (and do not)
resolve the difference in terminology.
9
exercised due diligence in pursuing and preserving her claim.”
Santos, 559 F.3d at 197. That is, tolling will never extend to “a
garden variety claim of excusable neglect, such as a simple
miscalculation that leads a lawyer to miss a filing deadline.”
Holland, 560 U.S. at 651–52 (internal quotation marks and
citations omitted).
The second tolling situation is at issue here—D.J.S.-W.
argues that she encountered extraordinary circumstances that
prevented her from timely filing.6 Thus, to be entitled to
equitable tolling, D.J.S.-W. must show that she “in some
extraordinary way has been prevented from asserting . . . her
rights,” and that she “exercised due diligence in pursuing and
preserving her claim.” See Santos, 559 F.3d at 197 (internal
quotation marks omitted). This is the same test that the
Supreme Court uses to assess whether a petitioner may be
entitled to equitable tolling in the habeas context. See Holland,
560 U.S. at 649 (“[A] ‘petitioner’ is ‘entitled to equitable
tolling’ only if he shows ‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.” (quoting Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005))). In Menominee
Indian Tribe of Wisconsin v. United States, the Supreme Court
applied the same test to assess a Tribe’s claim that equitable
6
D.J.S.-W. does not explicitly state that her claim falls under
the second tolling situation in our list. But her argument relies
heavily on Santos, which involved the second tolling doctrine.
See 559 F.3d at 203. Furthermore, neither of the other two
bases applies—D.J.S.-W. does not argue that she was actively
misled, and all parties agree that she did not timely assert her
claim in state court. Nor does D.J.S.-W. argue that any other
tolling doctrine should apply.
10
tolling should excuse its failure to timely present a contract
dispute to a federal contracting officer. 136 S. Ct. 750, 754–56
(2016). In doing so, the Court noted that it has “never held that
[Holland’s] equitable-tolling test necessarily applies outside
the habeas context” and, therefore, it has not yet “decide[d]
whether an even stricter” or “a more generous test” may apply
to nonhabeas cases. Id. at 756 n.2.7
Nevertheless, because the Holland test is the same as
our test for assessing equitable tolling in the nonhabeas
context, Menominee is instructive. In particular, the Court
made two observations that help us more clearly define the
contours of our test.
First, it stated that the two requirements—extraordinary
circumstances and diligence—are “distinct elements,” both of
which must be satisfied for a litigant to be eligible for tolling.
Id. at 756. Treating the two requirements as separate prongs,
the Court said, was consistent with its prior language
describing the components as “elements,” id. (citing Pace, 544
U.S. at 418), and its practice of denying “requests for equitable
tolling where a litigant failed to satisfy one without addressing
whether he satisfied the other,” id. (citing Lawrence v. Florida,
549 U.S. 327, 336–37 (2007), and Pace, 544 U.S. at 418).
We agree with this characterization of the equitable-
tolling test. Although our prior case law may appear to have
blended the two components, this is merely a reflection of the
fact that, in practice, the two elements often go hand in hand.
For example, if no extraordinary circumstances stood in the
7
In recent years, the Court has also referenced the Holland
equitable-tolling test in other nonhabeas cases. See, e.g., Wong,
575 U.S. at 407–08; Lozano v. Montoya Alvarez, 572 U.S. 1,
10 (2014).
11
litigant’s way, but she nevertheless failed to timely file, it is
likely that she did not diligently investigate and pursue her
claim. See, e.g., id. at 756–57 (declining to equitably toll
limitations period because Tribe’s failure to timely present its
claims was caused “not by an obstacle outside its control, but
by [its] mistaken belief that presentment was unneeded”);
Hedges v. United States, 404 F.3d 744, 752–54 (3d Cir. 2005)
(declining to equitably toll limitations period because
plaintiff’s pro se status and mental incompetence were not
extraordinary circumstances and “[d]iligent research would
likely have revealed . . . the existence” of his claim). Similarly,
if, despite pursuing her claim diligently, a litigant was still
unable to timely file, it is likely that some extraordinary
circumstance stood in her way and prevented her from doing
so. See Santos, 559 F.3d at 198–203 (holding plaintiff entitled
to equitable tolling when she “diligently and vigorously
pursued her claim” and, yet, she was unable to ascertain
hospital’s federal status). Today, we follow Menominee’s
guidance and confirm that the two requirements are distinct
prongs, both of which a litigant must satisfy before equitable
tolling may apply.
Second, the Supreme Court also “reaffirm[ed]” that the
extraordinary-circumstances element “is met only where the
circumstances that caused a litigant’s delay are both
extraordinary and beyond [her] control.” Menominee, 136 S.
Ct. at 756. We agree with this description of the extraordinary-
circumstances prong. Indeed, because equitable tolling is an
extreme remedy that we extend “only sparingly,” Irwin v.
Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990), it “would
make little sense if [it] were available when a litigant was
responsible for [her] own delay,” Menominee, 136 S. Ct. at
756. In addition, because the extraordinary-circumstances and
diligence components are distinct elements, “the diligence
12
prong already covers those affairs within the litigant’s control”
and the “extraordinary-circumstances prong, by contrast, is
meant to cover matters outside [her] control.” Menominee, 136
S. Ct. at 756. Accordingly, we also clarify today, following the
Supreme Court’s guidance, that a litigant will only meet the
extraordinary-circumstances prong of our test for equitable
tolling when she shows that her delay was attributable to
circumstances that were “both extraordinary and beyond [her]
control.” Id.
In sum, for a litigant to be entitled to equitable tolling,
she must establish two elements: “(1) that [s]he has been
pursuing her rights diligently, and (2) that some extraordinary
circumstance stood in h[er] way and prevented timely filing.”
Id. at 755; see also Santos, 559 F.3d at 197. The two
components are distinct elements, both of which the litigant
must satisfy. And to meet the extraordinary-circumstances
element, the litigant must show that the circumstances were
“extraordinary and beyond [her] control.” Menominee, 136 S.
Ct. at 756.
B. D.J.S.-W. Fails to Meet Our Equitable-Tolling
Standard
Here, D.J.S.-W. fails to satisfy either prong of this test.
She did not diligently pursue her rights because she failed to
take reasonable steps to confirm Dr. Gallagher’s employment
status. Nor did any circumstances, both extraordinary and
outside her control, stand in her way and prevent her “from
discovering Dr. Gallagher’s true affiliations.” D.J.S.-W., 2019
WL 1894707, at *9 (citing Menominee,136 S. Ct. at 755).
D.J.S.-W. emphasizes our decision in Santos, in which
we tolled the FTCA’s limitations period to rescue Santos’s
untimely claim because the government had created a trap that
prevented her from learning, despite her counsel’s diligent
13
investigation, that her alleged tortfeasors were federally
employed. 559 F.3d at 204. Santos is similar to this case: a
minor filed medical malpractice claims in state court against a
healthcare facility, known as York Health, and several of its
employees. Id. at 190–91. Her counsel filed her suit after the
two-year limitations period had run in reliance on
Pennsylvania’s tolling statute. Id. at 191. As it turned out,
however, York Health was a “deemed” federal entity. Id. at
191–92. After the government substituted the United States as
defendant and moved for summary judgment, Santos argued
that the FTCA’s limitations period should be equitably tolled.
Id. at 192.
We agreed with Santos and reversed the district court’s
grant of summary judgment to the United States. Id. at 204.
Santos, we said, diligently pursued her claim: she hired
counsel, “who requested and reviewed her medical records,
[and] visited, corresponded with, and performed a public
records search on York Health.” Id. at 198. Yet, “[n]one of
these inquiries, records, visits, or correspondence gave him a
clue that the healthcare providers or York Health had been
deemed federal employees.” Id. at 200–01. York Health’s
federal status, we concluded, “if not covert, was at least
oblique.” Id. at 202. Although York Health’s website indicated
that it received funds from federal sources and that it was a
“federally-qualified health center,” there were no “publicly
available sources of information from which Santos could have
learned” that York Health was in fact a federal entity. Id. at
201–03. Moreover, “even if the information had been
available,” there were no circumstances that “should have led
[Santos’s counsel] to inquire into York Health’s federal status”
in the first place. Id. at 203. Thus, we held that “the equitable
14
tolling doctrine applie[d] . . . to toll the FTCA’s statute of
limitations.” Id. at 204.8
Despite D.J.S.-W.’s arguments to the contrary, even a
cursory read of Santos reveals that Santos’s counsel went to far
greater lengths to confirm her alleged tortfeasors’ employment
status than D.J.S.-W.’s counsel did here. While counsel in
Santos performed a public records search on, corresponded
with, and visited York Health as part of his investigation,
D.J.S.-W.’s counsel merely assumed that Dr. Gallagher was
employed by Sharon Hospital—which he knew to be a private
entity—because D.J.S.-W. was born there and Dr. Gallagher
was listed as a “team member” on its website. But, as D.J.S.-
W.’s counsel admits, he never corresponded with, called, or
visited Sharon Hospital or Dr. Gallagher to confirm this belief.
8
The Government argues that “Menominee may undermine the
holding in Santos” because “Santos’s counsel’s erroneous
belief that York Health was a private entity . . . was neither
extraordinary nor ‘an obstacle beyond [his] control.’”
Appellee’s Br. 25–26 (quoting Menominee, 136 S. Ct. at 756
& n.3). We disagree. In Santos, we concluded that the
government had created a “trap” for litigants like Santos
because there were no “publicly available sources of
information from which Santos could have” discovered York
Health’s federal status, nor were there any circumstances that
should have “led her to inquire into York Health’s federal
status.” 559 F.3d at 203. Despite diligent research, the opacity
of York Health’s federal status was an extraordinary
circumstance that stood in Santos’s way and prevented her
from timely filing. Thus, our holding in Santos would not
change under the clarified test we discuss today.
15
D.J.S.-W. argues that her counsel’s efforts were diligent
because there was no “trigger” that would have prompted him
to examine Dr. Gallagher’s true employer, Primary Health
Network. Appellant’s Br. 15. This is not so. There were
numerous red flags that would have caused a diligent plaintiff
or her counsel to investigate Dr. Gallagher’s employment
status. As the District Court observed, “[i]t ordinarily should
not come as a surprise to a medical malpractice lawyer . . . that
an obstetric physician’s relationship to a hospital may simply
be” that he has “admitting privileges to deliver his patients’
babies.” D.J.S.-W., 2019 WL 1894707, at *9 (internal footnote
omitted). Given that such an arrangement is not uncommon, it
seems strange that counsel did not either ask D.J.S.-W.’s
mother “where she normally saw Dr. Gallagher for her pre-
natal care” or expand the temporal scope of his record request
to ensure Dr. Gallagher had not treated her at another facility.
Id.
There were also other triggers that should have
prompted counsel to investigate Dr. Gallagher’s employment
status. For example, counsel’s own law office sent record
requests to Sharon Hospital and Dr. Gallagher at different
addresses. Indeed, had counsel visited or searched the address
to which his office sent the request to Dr. Gallagher, he would
have discovered that it was a street address for Primary Health
Network. In addition, two of the pages of records sent by Dr.
Gallagher in response to that request contained the phrase
“Primary Health Network” at the bottom of the page above Dr.
Gallagher’s name and address. See id. at *3, *11. Finally,
D.J.S.-W.’s counsel should have been on heightened alert
given his own personal experience in litigating a malpractice
case involving the substitution of the United States for a
defendant physician because he was an employee of a
“deemed” federal entity.
16
Had counsel taken the reasonable step of investigating
these red flags, he could have easily discovered that Dr.
Gallagher was employed by Primary Health Network. Had
counsel then investigated Primary Health Network, he could
have discovered that it was a “deemed” federal entity. Indeed,
unlike counsel in Santos, who corresponded with, performed a
public search on, and visited York Health, D.J.S.-W.’s counsel
did not take any of these steps. Had he visited a Primary Health
Network office or searched its website, he would have seen that
Primary Health Network “held itself out as a ‘federally
qualified health center’ via,” inter alia, “physical signs in its
waiting rooms . . . and notices on its website.” Id. at *9. If, like
in Santos, these statements were insufficient to alert counsel to
Primary Health Network’s “deemed” federal status, see Santos,
559 F.3d at 201–02, he could have double checked by
searching Primary Health Network in the Health Resources
and Services Administration database.
In sum, D.J.S.-W. did not exercise due diligence to meet
our equitable-tolling standard. Rather, her effort here—or,
more accurately, her counsel’s effort—was, at most, a “garden
variety claim of excusable neglect,” see Irwin, 498 U.S. at 96,
to which “[t]he principles of equitable tolling . . . do not
extend,” Santos, 559 F.3d at 197.
Because a plaintiff must meet both prongs of the
equitable-tolling test, we could conclude our discussion here,
having determined that D.J.S.-W. did not diligently pursue her
claim. See Menominee, 136 S. Ct. at 757 n.5. We briefly note,
however, that D.J.S.-W. also fails to demonstrate that any
extraordinary circumstances “stood in h[er] way and prevented
timely filing.” Id. at 755 (quoting Holland, 560 U.S. at 649).
The plaintiff in Santos encountered extraordinary
circumstances because the government had created “a potential
statute of limitations trap” that prevented her from discovering
17
the defendant’s federal status. 559 F.3d at 202 (quoting Valdez,
518 F.3d at 183). The government itself ensured that “York
Health’s federal status, if not covert, was at least oblique,” and
there were no “publicly available sources of information from
which Santos could have learned this critical fact,” nor were
there any “circumstances [that] should have led her to inquire
into York Health’s federal status.” Id. at 203.
According to D.J.S.-W., the circumstances in her case
were similarly extraordinary. She argues that Dr. Gallagher
created a trap, like that in Santos, because he knew that his
biography on Sharon Hospital’s website “created the illusion”
that he was employed by “that private hospital,” which could,
in turn, “relax the guard of even the most diligent person.”
Appellant’s Br. 14. There was, however, no trap here, and Dr.
Gallagher’s employment with Primary Health Network was far
from “oblique.” As discussed above, had counsel discussed the
issue with his client, expanded the temporal scope of his record
requests, called Sharon Hospital or Dr. Gallagher, or
investigated the address to which he sent one of his record
requests and which appeared on some of the records he
received, he would have discovered Dr. Gallagher’s true
employer. As the District Court stated, “[t]he real trap that . . .
[c]ounsel fell into was the assumption that a doctor who has a
biographical page on a private healthcare facility’s website . . .
cannot be employed by another facility or entity.” D.J.S.-W.,
2019 WL 1894707, at *8. This miscalculation was certainly not
“beyond [counsel’s] control,” and, thus, no extraordinary
circumstances stood in D.J.S.-W.’s way to prevent her from
timely filing her claim.9 See Menominee, 136 S. Ct. at 756.
9
D.J.S.-W. argues that Dr. Gallagher “bore responsibility to
make sure that his status was unambiguous to his patients.”
Appellant’s Br. 14. Accordingly, she asks us to announce a rule
18
III.
Because we conclude that equitable tolling does not
save D.J.S.-W.’s untimely claim, we will affirm the District
Court’s order granting summary judgment in favor of the
United States.
that doctors like Dr. Gallagher who generally treat patients at
private hospitals, “may not insulate [themselves] against
application of equitable tolling” unless they notify “the patient
in some reasonably direct manner of the federal affiliation.”
Appellant’s Br. 15. But it is D.J.S.-W. who bore the burden to
timely assert her rights or to show that, despite her diligent
investigation, she was prevented from doing so by
extraordinary circumstances. D.J.S.-W. offers no legal basis
for imposing an affirmative reporting requirement on
healthcare providers like Dr. Gallagher. See, e.g., Arteaga v.
United States, 711 F.3d 828, 834 (7th Cir. 2013) (“No
physician, clinic, hospital, or other medical provider is required
to provide patients with detailed instructions on how to sue the
provider for malpractice.”); Hedges, 404 F.3d at 752 (rejecting
argument that “the Government has an affirmative duty to
inform litigants, including pro se litigants, that they have viable
judicial . . . remedies”).
19
|
J-A27032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN MCCLINTIC
Appellant No. 2567 EDA 2009
Appeal from the Judgment of Sentence August 12, 2009
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): 10207058511
CP-51-CR-0801571-2002
CP-51-CR-0801581-2002
BEFORE: PANELLA, LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 18, 2017
Appellant, John McClintic, appeals from his judgment of sentence of
forty-five to ninety years’ imprisonment arising from two separate home
invasions against the same elderly victim within an eight-day span.
Appellant argues, inter alia, that the trial court (1) erred in sentencing him
as a “third-strike” offender because he had not previously been sentenced as
a “second-strike” offender under 42 Pa.C.S. § 9714, (2) erred in construing
his silence at sentencing as lack of remorse, (3) abused its discretion in
sentencing him outside of the Sentencing Guidelines, and (4) abused its
discretion in imposing consecutive sentences. We affirm.
*
Former Justice specially assigned to the Superior Court.
J-A27032-16
This case has a lengthy and tortuous history. At approximately 2:00
a.m. on June 27, 2002, Appellant broke into a house in Philadelphia where
Sarah K., an eighty-five-year-old woman who lived alone, had resided for
approximately sixty years. When Appellant entered Ms. K.’s bedroom, she
awoke and immediately recognized Appellant, who lived two doors away.
Appellant stood over six feet, weighed 250 pounds, and was bare-chested
and covered with tattoos. Ms. K. was five feet, two inches tall.
Appellant sat down next to Ms. K. on her bed and said: “Give me your
money. I won’t hurt you but I have a gun.” N.T., 1/22/03, at 68. Ms. K.
was “shaking like a leaf” and feared she would suffer a heart attack, but she
managed to show him a wallet on her night table that contained $125.00.
Appellant demanded more money. Id. at 69. She told him the only thing
she had left was a little purse with a few dollars in change for bingo. He
took that as well. He then grabbed her right breast and pinched it “with all
his strength”—so hard that Ms. K could not scream because she lost her
voice. Id. at 71.
After Appellant left, Ms. K. discovered that a board securing one of her
windows had been removed, and that her telephone line had been cut. She
had the telephone company repair the line but did not report the crime.
Eight days later, on July 5, 2002, Appellant again broke into Ms. K.’s
home in the early morning hours and entered her bedroom. He repeated
that he had a gun and forced Ms. K. to hand over the only money she had
-2-
J-A27032-16
left in the house, a bag containing some dimes and two bracelets. He then
“cracked” her right thigh “real[ly] hard” and ordered her to get back into
bed. Id. at 84. After Appellant left, Ms. K. tried to call the police, but the
telephone line had been cut again. In addition, a door and two windows had
been forced open. Ms. K. eventually contacted the police, who arrested
Appellant. Ms. K. became obsessively concerned with her safety, was no
longer able to live independently and had to move into an assisted living
arrangement facility.
In January 2003, a jury found Appellant guilty of committing robbery
and burglary on both June 27, 2002 and July 5, 2002. At the time, he had
an extensive criminal record that included two prior “strikes” for purposes of
sentencing as a recidivist offender: a 1987 sentence for aggravated assault
and a 1997 sentence for robbery.
At sentencing on March 25, 2003, defense counsel agreed that
Appellant was subject to a third strike mandatory minimum sentence but
requested that he receive only one sentence of twenty-five to fifty years’
imprisonment. The trial court imposed four separate third strike sentences—
one each for the June 27, 2002 robbery and burglary and one each for the
July 5, 2002 robbery and burglary. This Court affirmed the judgment of
sentence, but our Supreme Court reversed. See Commonwealth v.
McClintic, 909 A.2d 1241 (Pa. 2006) (“McClintic I”). The Supreme Court
found that “Appellant had two prior convictions for crimes of violence and
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J-A27032-16
thus qualified as a ‘three strikes offender’” but determined that “the
legislature intended to apply sentencing enhancements for all crimes arising
from a criminal transaction, rather than for each individual crime within the
transaction.” Id. at 1243, 1251. The Court “remanded to the trial court for
re-sentencing consistent with this opinion.” Id. at 1252.
On January 23, 2007, Appellant appeared for resentencing. The trial
court imposed one third strike sentence for the June 27, 2002 episode and a
second third strike sentence for the July 5, 2002 episode. Appellant filed
post-sentence motions, and the court agreed to vacate the judgments of
sentence and schedule further proceedings.
In April 2007, the trial court held a third sentencing hearing. Appellant
claimed, for the first time, that he was not a third strike offender because he
had never been sentenced as a second strike offender. The trial court
rejected this argument and re-imposed the January 23, 2007 sentence.
“[A]ny deviation from the [Sentencing G]uidelines,” the court explained, was
attributable to the “gravity of the offense,” including “the fact that [Ms. K.’]s
a senior citizen, a very tiny lady compared to [Appellant’s] very tall height
and weight . . .” N.T., Sentencing Hr’g, 1/23/07, at 38.
Appellant appealed, claiming that he was not subject to a third strike
penalty. This Court held that Appellant waived this objection, and that his
status as a third strike offender was the law of the case. Commonwealth
v. McClintic, No. 1249 EDA 2007 (unpublished memorandum) (Pa. Super.
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J-A27032-16
Sept. 19, 2008) (“McClintic II”). We concluded, however, that Appellant
could receive no more than a single third strike sentence for both home
invasions and remanded for resentencing on that basis.
On August 12, 2009, Appellant appeared before the trial court for his
fourth sentencing hearing. Appellant answered several factual questions
relating to his age, his prison employment and the date of a particular prison
disciplinary infraction. N.T., Sentencing Hr’g, 8/12/09, at 13, 14, 26, 27,
32. The following exchange also took place:
The Court: Do you have anything you want to say,
Mr. McClintic?
[Appellant]: No, ma’am.
The Court: Okay. If you change your mind, you
may address me. Okay?
[Appellant]: Yes, ma’am.
Id. at 14.
The Commonwealth incorporated by reference all arguments, evidence
and exhibits presented during Appellant’s prior sentencing hearings in 2003
and 2007. Id. at 14-15. Further, the Commonwealth introduced evidence
that Appellant had committed three disciplinary infractions in 2007 and
2008: one for loaning or borrowing property in violation of prison rules, a
second for using obscene language and refusing to obey staff orders, and a
third for self-mutilation and possession of contraband and money. Id. at
15-17.
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J-A27032-16
The court observed that it had reviewed the relevant Sentencing
Guidelines during the 2003 and 2007 sentencing hearings, id. at 17, but the
Commonwealth repeated them once again. Id. at 17-18. The court
responded: “I understand. Because every sentencing has to start with the
guideline consideration and I just want to be sure we are in agreement.” Id.
at 18.
The trial court acknowledged that Appellant had taken one step to
rehabilitate himself by studying the Bible and involving himself in the Holy
Name Society. Id. at 35-36. The court found, however, that other factors
demonstrated Appellant’s inability to rehabilitate himself. To begin with, the
court noted that he traumatized the elderly victim during the two home
invasions: “[I] remember the pinching of the [victim’s] breasts so hard that
it was black, green, purple and blue for weeks and weeks afterwards.” Id.
at 35. Moreover, despite several terms in state prison for his prior offenses,
he had
three [infractions since his 2007 sentencing hearing] that
resulted in being disciplined by the [p]rison. And what
that shows me . . . is that I have great concerns that you
cannot be supervised in society safely and securely. You
don’t follow the rules . . .
Id. at 36. The court added: “I have not heard anything—I have heard no
remorse about what happened.” Id. at 37-38.
The trial court imposed (1) a single third strike sentence of twenty-five
to fifty years for the June 27, 2002 robbery, (2) a concurrent ten to twenty
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J-A27032-16
year sentence for the June 27, 2002 burglary, (3) a consecutive ten to
twenty year sentence for the July 5, 2002 robbery, (4) a consecutive ten to
twenty year sentence for the July 5, 2002 burglary, and (5) no further
penalty for the remaining offenses for an aggregate of forty-five to ninety
years’ imprisonment. Id. at 38-39. The court explained that it did not
impose this sentence “out of vengeance . . . [or] anger. I only do it to
protect the community. I feel [Appellant] has not shown he is rehabilitated.
I have my concerns. There is no remorse here and [Appellant’s] history of
violence warrants this sentence.” Id. at 40.
Appellant filed post-sentence motions in which he argued, inter alia,
that he had the right “to remain silent at sentencing without suffering an
adverse inference of non-remorse.” Post-Sentence Mot., 8/14/09, at 3. On
August 18, 2009, the trial court denied Appellant’s post-sentence motions.
On August 31, 2009, Appellant timely appealed to this Court.1 The trial
court issued a Pa.R.A.P. 1925(a) opinion without directing Appellant to file a
Pa.R.A.P. 1925(b) statement. The court did not address Appellant’s lack of
remorse issue in its opinion.
1
This appeal has been protracted due to multiple delays from 2009 to 2013
in preparing a complete and accurate record for appeal. On April 1, 2013,
the Appeals Unit of the Clerk of Quarter Sessions received the record.
Inexplicably, the Appeals Unit did not transmit the record to this Court until
September 9, 2015. The parties did not complete briefing until the end of
June 2016, and the case was argued on September 28, 2016.
-7-
J-A27032-16
Appellant raises four issues in this appeal, which we re-order for
purposes of disposition:
1. Was not the “Strike Three” penalty illegally imposed
because [A]ppellant never previously suffered a “Strike
Two” penalty[?]
2. Was it not sentencing error for the trial court to consider
non-remorse as a sentencing factor based upon
[A]ppellant’s invocation of his constitutional right to remain
silent at sentencing?
3. Was not the trial court’s non-recognition that it
sentenced [A]ppellant “outside” of the Sentencing
Guidelines sentencing error?
4. Was not the sentence imposed excessive?
Appellant’s Brief at 3.
Appellant first argues that he cannot receive a third strike sentence
because he never received a second strike sentence for either his 1987
aggravated assault conviction or his 1996 robbery conviction. This challenge
to the legality of his sentence raises a question of law over which we
exercise plenary review. Commonwealth v. Williams, 868 A.2d 529, 532
(Pa. Super. 2005). We conclude that the law of the case doctrine precludes
Appellant from raising this issue, because this Court previously ruled on this
issue in its memorandum in 1249 EDA 2007.
The law of the case doctrine is
a family of rules which embody the concept that a court
involved in the later phases of a litigated matter should not
reopen questions decided by another judge of that same
court or by a higher court in the earlier phases of the
matter. Among the related but distinct rules which make
-8-
J-A27032-16
up the law of the case doctrine are that: (1) upon remand
for further proceedings, a trial court may not alter the
resolution of a legal question previously decided by the
appellate court in the matter; (2) upon a second appeal,
an appellate court may not alter the resolution of a legal
question previously decided by the same appellate court;
and (3) upon transfer of a matter between trial judges of
coordinate jurisdiction, the transferee trial court may not
alter the resolution of a legal question previously decided
by the transferor trial court.
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995). This general
prohibition, however, is not absolute. Departure from the rule is permissible
in “exceptional circumstances such as where there has been a change in the
controlling law, a substantial change in the facts or evidence giving rise to
the dispute in the matter, or where the prior holding was clearly erroneous
and would create a manifest injustice if followed.” Id. at 1332.
Following his resentencing hearings in 2007, Appellant appealed to this
Court and raised the same issue that he now attempts to raise in this
appeal: “Was not the ‘strike three’ penalty improperly imposed because
[A]ppellant never previously suffered a ‘strike two’ penalty?” McClintic II,
at 3. In response, this Court determined that the law of the case doctrine
barred Appellant from re-litigating his status as a third-strike offender,
because the Supreme Court had previously confirmed in 2006 that Appellant
was a third-strike offender. Id. at 6-8 (citing McClintic I, 909 A.2d at
1250-52). Moreover, Appellant’s challenge to his third-strike status did not
fall within any exception to the law of the case doctrine “such as an
intervening change in the law, a substantial change in the facts, or a prior
-9-
J-A27032-16
ruling that was clearly erroneous that would create a manifest injustice if
followed.” Id. at 9. Appellant’s present appeal is another attempt to re-
litigate whether his third strike sentence is improper due to the lack of a
second strike sentence, the same question that our Supreme Court
previously decided against Appellant in McClintic I and that this Court
previously refused to reconsider in McClintic II on the basis of McClintic I.
Like the McClintic II court, we have no authority to overrule our Supreme
Court’s determination of this question in McClintic I.2
Appellant next argues that the trial court abused its discretion by
construing Appellant’s invocation of his constitutional right to remain silent
during sentencing as demonstrating his lack of remorse. In view of our
reasoning in Commonwealth v. Bowen, 975 A.2d 1120 (Pa. Super. 2009),
no relief is due.
2
Contrary to Appellant’s suggestion, our Supreme Court’s decision in
Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005), does not constitute
a change in Supreme Court jurisprudence that authorizes us to reach a
different decision than we did in McClintic II. “It is beyond the power of a
Superior Court panel to overrule a prior decision of the Superior Court
except in circumstances where intervening authority by our Supreme Court
calls into question a previous decision of this Court.” Czimmer v. Janssen
Pharmaceuticals, Inc., 122 A.3d 1043, 1063 n.19 (Pa. Super. 2015)
(citation omitted). Implicit in “intervening” is that this panel cannot overrule
a decision from a prior three-judge panel of this Court based on a Supreme
Court decision that pre-dates the previous panel’s decision. To be
intervening, the Supreme Court’s decision must issue after the prior panel’s
decision. Shiffler does not meet this test because it issued three years
before our decision at 1479 EDA 2007.
- 10 -
J-A27032-16
Preliminarily, we observe that challenges to the discretionary aspects
of sentencing do not entitle an appellant to appellate review as of right.
Before reaching the merits of a discretionary sentencing issue:
[w]e conduct a four part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. [720]; (3) whether
appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
Here, Appellant timely filed a notice of appeal, argued in post-sentence
motions that the court abused its discretion by equating his silence with lack
of remorse and included a Rule 2119(f) statement in his brief. We evaluate
what constitutes a substantial question on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007). “A
substantial question exists only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.” Griffin, 65
A.3d at 935 (citation and internal quotation marks omitted).
Here, Appellant contends that the court violated his constitutional
rights by holding his invocation of his right to silence against him. This claim
- 11 -
J-A27032-16
raises a substantial question for our review, so we will address its merits.
Bowen, 975 A.2d at 1122 (defendant’s contention that his sentence “was
based on an unconstitutional factor . . . raises a substantial question for our
review”).
“[I]t is undoubtedly appropriate for a trial court to consider a
defendant’s lack of remorse as a factor at sentencing, provided that it is
specifically considered in relation to protection of the public, the gravity of
the offense, and the defendant’s rehabilitative needs.” Id. at 1125 (citation
omitted). On the other hand, the Fifth Amendment’s privilege against self-
incrimination prohibits the court from construing the defendant’s silence
during sentencing as “the sole basis for finding that [the] defendant lacked
remorse.” Id. at 1127.
In Bowen, the defendant chose not to testify during trial. A jury
acquitted him of rape and sexual assault charges but convicted him of
simple assault and terroristic threats. Appellant continued to remain silent
at sentencing. The trial court imposed a standard range sentence for simple
assault and a consecutive, aggravated range sentence of imprisonment for
terroristic threats. As justification for the aggravated range sentence, the
court noted Appellant’s poor employment history, long history of recidivism,
the victim’s emotional trauma, and Appellant’s failure to show any remorse,
even after the jury’s decision.
- 12 -
J-A27032-16
This Court disapproved of the trial court’s “consider[ation of the]
defendant’s silence at sentencing as indicative of his failure to take
responsibility for the crimes of which he was convicted.” Id. at 1121. We
discussed State v. Burgess, 943 A.2d 727 (N.H. 2008), as follows:
[T]he New Hampshire [Supreme] Court undertook an
extensive analysis [in Burgess] of which federal and state
jurisdictions permit a sentencing court to consider when “a
defendant’s silence after trial may be considered as a
failure to accept responsibility or failure to express
remorse, and thus indicate that an individual has a
reduced potential for rehabilitation,” and which
jurisdictions “hold that a sentencing court may not
consider a defendant’s silence at sentencing as indicating a
lack of remorse without violating his privilege against self-
incrimination.” Id. [] 943 A.2d at 734–35. In agreeing
with the latter jurisdictions, the Burgess Court referenced
“the Hobson’s choice,” that is, “the defendant must admit
wrongdoing and jeopardize his post-trial remedies, testify
falsely and risk a perjury conviction, or remain silent and
risk obtaining a greater sentence.” Id. [] 943 A.2d at
735–36 (quoting State v. Shreves, [] 60 P.3d 991, 996–
97 ([Mont.] 2002), and citing South Dakota v. Neville,
459 U.S. 553, 563 [] (1983)).
Bowen, 975 A.2d at 1125-26. Because Pennsylvania’s sentencing scheme
subjected defendants to the same hazards in most cases,3 we held that
“silence at sentencing may not form the basis of finding that a defendant
3
We agreed with Burgess that “‘the Hobson’s choice’ is not automatically
present at sentencing, because some factual circumstances may indicate
that expressing remorse would not be a newly incriminatory statement.” Id.
at 1126 n. 6. One such circumstance could occur when “the defendant
admits to committing the acts[] but claims he lacked the requisite mental
state to convict him of the crime.” Id. (citing Burgess, 943 A.2d at 738–
39).
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J-A27032-16
failed to take responsibility for his crimes [and] may not be the sole basis for
finding that a defendant lacked remorse.” Id. at 1127.
Nevertheless, the Bowen court determined that a remand for
resentencing was not necessary, because “several other [legitimate] factors
[warranted] an aggravated-range sentence, including [the a]ppellant's lack
of a significant job history and the great emotional trauma his crimes caused
the victim, as well as his recidivist history and violations of probation.” Id.
(quotations omitted).
This case is substantially similar to Bowen. Aside from answering
several basic questions about his age, prison employment and date of a
particular disciplinary infraction in prison, Appellant remained silent during
sentencing. The trial court equated Appellant’s silence with lack of remorse
in violation of his Fifth Amendment right against self-incrimination. This,
however, was not the only factor that the court took into consideration: it
also relied on multiple appropriate sentencing factors, including the serious
impact of Appellant’s crimes on the helpless victim, his dim prospects for
rehabilitation in view of his prior criminal history, and his disciplinary record
in prison. Thus, as in Bowen, we hold that the court’s error in regarding
Appellant’s silence as indicating lack of remorse does not entitle Appellant to
resentencing.
Appellant further argues that Bowen should be overruled because it
conflicts with Commonwealth v. Bethea, 379 A.2d 102, 104 (Pa. 1977), in
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which our Supreme Court held that the trial court cannot penalize the
defendant at sentencing for exercising his constitutional rights. In Bethea,
the trial court imposed a harsher sentence because the defendant exercised
his right to go to trial instead of pleading guilty. Although the trial court also
based its sentence on other permissible factors, such as the violent nature of
the crime, the Supreme Court held that “it is sufficient to render a sentence
invalid if it reasonably appears from the record that the trial court relied in
whole or in part upon [an impermissible] factor.”4 Id. at 107.
Even if Appellant’s objection to Bowen is correct, we cannot grant him
relief. As we observed above in footnote 2, a three-judge panel of this Court
cannot overrule a prior three-judge panel’s decision on the basis of a
Supreme Court decision that pre-dates the prior panel’s decision. Because
Bethea pre-dates this Court’s decision in Bowen, we cannot overrule
Bowen on the basis of Bethea. Only an en banc panel of the Superior
Court, or the Supreme Court itself, could overrule Bowen on this basis.5
4
Subsequently, the Supreme Court held in Commonwealth v. Smith, 673
A.2d 893 (Pa. 1996), that “our decision in Bethea is limited to the narrow
category of cases in which a trial court impermissibly penalizes a defendant
for exercising constitutional rights.” Smith, 673 A.2d at 896. Bethea does
apply when the trial court considers an impermissible, but non-
constitutional, sentencing factor. Id. In that circumstance, it is possible for
the impermissible factor to be offset by other permissible factors. Id. at
896-97.
5
We express no opinion on whether Appellant’s analysis of Bethea is legally
sound.
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In his third argument, Appellant contends that the trial court abused
its discretion because it failed to recognize that it was sentencing Appellant
outside of the Sentencing Guidelines for non-mandatory offenses. We
disagree.
The trial court was familiar with this case, having presided over
Appellant’s trial and two previous sentencing hearings in 2003 and 2007.
Moreover, the court stated during the 2007 hearing that any “deviation from
the guidelines” was attributable to the gravity of the offense, including the
disparity in height and weight between Appellant and the elderly victim.
N.T., Sentencing Hr’g, 1/23/07, at 38. During the 2009 hearing, the
Commonwealth incorporated all prior arguments, evidence and exhibits from
the 2003 and 2007 sentencing hearings into the record. N.T., Sentencing
Hr’g, at 14-15. Although the court stated that it had reviewed the guidelines
during the 2003 and 2007 sentencing hearings, the Commonwealth repeated
them again in an abundance of caution. Id. at 17-18. Thus, the court was
aware in 2009, as it had been aware in 2007, that it was sentencing
Appellant outside the Sentencing Guidelines.
Appellant seizes upon the fact that the court referred to “following the
guidelines” and imposing a “guidelines sentence” in its Pa.R.A.P. 1925(a)
opinion. Based on the combination of factors summarized above, we agree
with the Commonwealth that this “was mere shorthand for a sentence that
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properly took the guidelines into account, as the [court] explained she . . .
had an obligation to do.” Commonwealth’s Brief at 16.
Finally, Appellant argues that his sentence is excessive because the
court imposed consecutive sentences in addition to the mandatory “third
strike” penalty of twenty-five to fifty years’ imprisonment. We disagree.
A court’s decision to impose consecutive rather than concurrent
sentences generally does not raise a substantial question for appellate
review. See Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598
(Pa. Super. 2010). Assuming arguendo that Appellant presents a substantial
question, he still is not entitled to relief.
A sentence cannot be disturbed absent a manifest abuse of discretion.
See Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014),
appeal denied, 117 A.3d 297 (Pa. 2015) (citation omitted). This may be
found only if “the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”
Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (citation omitted).
We afford great weight to the sentencing court’s views, because “it is in
[the] best position to assess the defendant’s character, displays of remorse,
defiance or indifference, and the overall effect and nature of [his] crime[s].”
Commonwealth v. Ventura, 975 A.2d 1128, 1134 (Pa. Super. 2009)
(citation omitted).
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Here, the trial court was exceptionally familiar with Appellant, having
presided over his jury trial, obtained a presentence report, tracked his
subsequent conduct over a period of years and received extensive evidence
during multiple sentencing hearings. Appellant’s offenses were grievous: he
repeatedly targeted an elderly woman, invaded her bedroom at night, forced
her to hand over her meager belongings, pinched her breast as hard as he
could and “cracked” her thigh. The impact on the victim was devastating,
for she developed mental health problems that required her to leave the
home where she had lived for six decades. In addition, Appellant was a poor
candidate for rehabilitation in view of his extensive criminal record and
history of disciplinary infractions in prison. We hold that the trial court acted
within its discretion by imposing an aggregate sentence of forty-five to
ninety years’ imprisonment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2017
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|
Town of Eagle, Plaintiff-Respondent,
v.
Daniel Franklin-Stiglitz, Defendant-Appellant.
No. 03-1037.
Court of Appeals of Wisconsin.
Opinion Filed: November 24, 2004.
Before Anderson, P.J., Brown and Nettesheim, JJ.
¶1 PER CURIAM.
Daniel Franklin-Stiglitz appeals from a judgment finding that he is improperly storing junk vehicles on his property and authorizing the Town of Eagle to remove the vehicles. Because Franklin-Stiglitz is not a collector under WIS. STAT. § 341.266 (2001-02),[1] the circuit court did not err in requiring removal of the vehicles from his property. We affirm.
¶2 In January 2002, Judge Patrick Snyder found that the Town of Eagle met its burden of proving that Franklin-Stiglitz had violated Town ordinances which prohibit storing vehicles (motor vehicles, semi-trailers, semi-trucks) and assorted junk in a residential area and without a permit. The court found that Franklin-Stiglitz was not a credible witness and did not accept his testimony that the vehicles are collector's items. The court found that the junk was neither fenced nor shielded by shrubs and trees and was visible to neighbors and passersby. The court concluded that Franklin-Stiglitz was operating an illegal junkyard in the Town and that the junkyard violated the Town's ordinances and constituted a public nuisance. The court entered a judgment enjoining Franklin-Stiglitz from towing any additional vehicles to the property, imposing a forfeiture on Franklin-Stiglitz, and giving him until April 2002 to abate the nuisance. As part of further proceedings, the court stated that it would permit Franklin-Stiglitz to prove that his vehicles were collector's items under WIS. STAT. § 341.266. If Franklin-Stiglitz did not abate the nuisance, the Town was authorized to enter his property to remove the junk and assess the costs of doing so against the property.[2]
¶3 Thereafter, inspections revealed that Franklin-Stiglitz had not complied with the January 2002 judgment. In September 2002, the Town moved the circuit court to hold Franklin-Stiglitz in contempt for his violation of the January 2002 judgment and to impose additional forfeitures. Proceedings on the contempt were held before Judge Robert Mawdsley in November and December 2002.
¶4 The evidence presented by the Town established that Franklin-Stiglitz had not complied with the January 2002 judgment which required him to remove the vehicles from the premises. Some eighty-five unlicensed vehicles remained according to an inventory taken at the Town's behest. Franklin-Stiglitz conceded that vehicles remained on his property. The court found that Franklin-Stiglitz had attempted to screen the vehicles from the highway by using semi-trailers. The court found that the manner in which the vehicles were being stored promoted their deterioration, not their preservation, a statutory requirement for collector's vehicles. The court found the vehicles to be junk and further found that they were leaking fluids into the soil. The court concluded that with the exception of a few farm vehicles and equipment, the unlicensed vehicles and other junk were not collector's vehicles under WIS. STAT. § 341.266 and that using semi-trailers to screen the vehicles was not an appropriate means to screen vehicles from public view as required by § 341.266(4). Because Franklin-Stiglitz did not abate the nuisance by the deadline and remained in violation of Town ordinances and the injunction entered by Judge Snyder, the court granted the Town the authority to remove the vehicles from the property and assess the property the cost of doing so. Franklin-Stiglitz appeals.
¶5 On appeal, Franklin-Stiglitz argues that the majority of the vehicles on his property are collector's vehicles under WIS. STAT. § 341.266.[3] A collector is someone who owns "one or more special interest vehicles who collects, purchases, acquires, trades or disposes of special interest vehicles or parts thereof for the collector's own use in order to restore, preserve and maintain a special interest vehicle for historic interest." Sec. 341.266(1)(a). The statutes also govern storage of collector's vehicles.
A collector may store unlicensed, operable or inoperable, vehicles and parts cars on the collector's property provided the vehicles and parts cars and the outdoor storage area are maintained in such a manner that they do not constitute a health hazard and are screened from ordinary public view by means of a fence, rapidly growing trees, shrubbery or other appropriate means.
Sec. 341.266(4).
¶6 The circuit court made findings of fact regarding the nature of the items stored on Franklin-Stiglitz's property. The trier of fact is responsible for determining the weight of the evidence and the credibility of the witnesses, and we will not overturn those findings unless they are clearly erroneous. Micro-Managers, Inc. v. Gregory, 147 Wis. 2d 500, 512, 434 N.W.2d 97 (Ct. App. 1988).
¶7 Franklin-Stiglitz argues that his vehicles are collector's items and that they are screened by other vehicles on the property. Franklin-Stiglitz testified to that effect and offered the opinion of a vehicle collector that all the vehicles on Franklin-Stiglitz's property are collector's vehicles. The Town offered evidence of the condition of the vehicles on the property (rusting and otherwise deteriorating, with weeds growing in and around them) and that soil samples indicate that fluids from the vehicles have leaked into the soil, creating a public health issue. No evidence was presented that Franklin-Stiglitz was working to restore any of the vehicles.
¶8 The circuit court clearly did not find either Franklin-Stiglitz or his vehicle collector witness credible on the question of whether the vehicles on the property were collector's vehicles within the meaning of WIS. STAT. § 341.266. The court did not find any evidence that Franklin-Stiglitz was preserving or storing any of the vehicles on his property in a manner consistent with collection of the vehicles. The court found that Franklin-Stiglitz's attempt to screen the vehicles with trailers was ineffective. The court found that Franklin-Stiglitz did not abate the nuisance as required by the January 2002 judgment. These findings are not clearly erroneous and they are supported in the record.
¶9 Franklin-Stiglitz argues that he properly screened the vehicles. This argument is not supported in the evidence. Collector's vehicles must be screened by a fence, vegetation or other appropriate means. WIS. STAT. § 341.266(4). Here, Franklin-Stiglitz used other junk vehicles to screen his junk vehicles.[4] The circuit court found that the junk vehicles were visible from the highway and to neighbors.
¶10 Franklin-Stiglitz argues in his reply brief that the screening trailers are actually farm trailers which he may keep on his agriculturally-zoned property. The circuit court found that semi-trailers without current license plates are not collector's items. And, an inventory taken on behalf of the Town (Exhibit 2) shows that none of the trailers on the property bore a current license plate. This argument is not supported in the record.
¶11 Additionally, other than noting that some farm equipment was included in the list of vehicles on the property, Franklin-Stiglitz did not argue to the circuit court that he used permitted farm vehicles to screen the other vehicles on the property. A party must raise and argue an issue with some prominence in order to allow the circuit court to address the issue and make a ruling. State v. Ledger, 175 Wis. 2d 116, 135, 499 N.W.2d 198 (Ct. App. 1993). Franklin-Stiglitz did not do so, and we will not address this issue for the first time on appeal. See Meas v. Young, 138 Wis. 2d 89, 94 n.3, 405 N.W.2d 697 (Ct. App. 1987).
¶12 Finally, Franklin-Stiglitz argues that the circuit court erroneously excluded from evidence a videotape he made of the property from the highway showing the vehicles on the property. Evidentiary rulings are discretionary with the circuit court. Gonzalez v. City of Franklin, 137 Wis. 2d 109, 139, 403 N.W.2d 747 (1987). The circuit court declined to admit the videotape because Judge Snyder had already made findings about the nature of the vehicles and the tape was not relevant to the proceedings.
¶13 We take a slightly different view of the videotape. Franklin-Stiglitz offered the videotape to establish that the vehicles are properly screened and not in plain view from the highway. However, whether the vehicles are properly screened is relevant only if they are collector's vehicles under WIS. STAT. § 341.266.
¶14 At the proceedings before Judge Snyder, which Franklin-Stiglitz did not timely appeal, Judge Snyder found that the vehicles constituted visible junk but permitted Franklin-Stiglitz to return with evidence that they are actually collector's items. Franklin-Stiglitz did not establish before Judge Mawdsley that the vehicles are collector's items. Therefore evidence of how the vehicles were screened was not relevant. The circuit court properly excluded the videotape from evidence. See Bence v. Spinato, 196 Wis. 2d 398, 417, 538 N.W.2d 614 (Ct. App. 1995) (we may affirm the circuit court if it reached the right result for the wrong reason).
By the Court. Judgment affirmed.
NOTES
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] Franklin-Stiglitz did not timely appeal this judgment. Therefore, it is not before us on appeal.
[3] Franklin-Stiglitz argues that this is a case requiring statutory interpretation. We view Franklin-Stiglitz's appeal as a challenge to the sufficiency of the evidence. We are not required to address an appellate argument in the manner which a party has structured or framed the issues. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978).
[4] If the screening trailers were collector's items, as Franklin-Stiglitz contends, then those trailers would have to be screened as well under WIS. STAT. § 341.266(4).
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1578
ALBERT GREEN, JR.; EPHONIA M. GREEN,
Plaintiffs - Appellants,
and
IDA M. GREEN,
Plaintiff,
v.
BWW LAW GROUP, LLC; CARRIE M. WARD; JOSEPH DELOZIER,
Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge. (8:17-cv-03207-PJM)
Submitted: November 29, 2018 Decided: December 3, 2018
Before DUNCAN and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Albert Green, Jr., Ephonia M. Green, Appellants Pro Se. Matthew Daniel Cohen, BWW
LAW GROUP, LLC, Rockville, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellants, Albert Green, Jr., and Ephonia M. Green, appeal the district court’s
order dismissing their complaint alleging that a law firm and attorneys who worked for
the law firm violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p
(2012), in regard to a state foreclosure proceeding. On appeal, we confine our review to
the issues raised in the Appellants’ brief. See 4th Cir. R. 34(b). Because the informal
brief does not challenge the basis for the district court’s disposition, the Appellants have
forfeited appellate review of the court’s order. See Jackson v. Lightsey, 775 F.3d 170,
177 (4th Cir. 2014) (“The informal brief is an important document; under Fourth Circuit
rules, our review is limited to issues preserved in that brief.”). Accordingly, we affirm
the district court’s judgment. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
AFFIRMED
3
|
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
CINDI B. CLEMENS,
Appellant,
v. Case No. 5D15-3842
MICHAEL P. CLEMENS,
Appellee.
________________________________/
Opinion filed September 30, 2016
Appeal from the Circuit Court
for Volusia County,
Dawn D. Nichols, Judge.
Mark A. Skipper, of Law Office of Mark A.
Skipper, Orlando, for Appellant.
No Appearance for Appellee.
EVANDER, J.
Cindi Clemens (“the Wife”) appeals a final judgment of dissolution of marriage.
She contends that the trial court should have awarded her either permanent or
rehabilitative alimony. We affirm, without discussion, the denial of her rehabilitative
alimony request. However, we conclude that the trial court abused its discretion in
denying the Wife’s request for permanent alimony.
The parties married in May 1993 and separated in February 2012. No children
were born of the marriage. The petition for dissolution was filed in January 2014 and
proceeded to trial in September 2015. At the outset of the trial, the parties resolved all
equitable distribution issues. The Wife’s marital share of the Husband’s pension was
$1,009.64 per month, while the Husband’s marital share was $2,833.00 per month.
Although the record suggests that the parties have enjoyed a middle-class standard of
living for much of the marriage, their marital estate was not substantial, in part, because
the family business lost a substantial contract in 2014. The Wife held various jobs during
the marriage prior to commencing work in the family business, without pay, in 2006.
At the time of trial, the Wife was fifty-two years old and unemployed. The
Husband’s gross income was approximately $1,250.00 per month. The trial court found
that both parties were “underemployed” and imputed minimum wage income to each of
them. In denying the Wife’s request for permanent alimony, the trial court found that the
Wife did not have a need for alimony based on the figures set forth in her most recent
financial affidavit. This was error. The Wife’s financial affidavit was based on her current
living arrangements, where she was renting a single room in a friend’s residence.
However, permanent alimony is used “to provide for the needs and necessities of life for
a former spouse as they were established during the marriage of the parties.” Mallard v.
Mallard, 771 So. 2d 1138, 1140 (Fla. 2000) (emphasis added); see Price v. Price, 951
So. 2d 55, 58 (Fla. 5th DCA 2007).
2
Because this was a long-term marriage,1 there existed an initial presumption in
favor of permanent alimony. See Schlagel v. Schlagel, 973 So. 2d 672, 676 (Fla. 2d DCA
2008). The Husband did not present evidence sufficient to rebut this presumption.
Accordingly, we conclude that the trial court abused its discretion when it declined to
award permanent alimony. The trial court may take into account the circumstances at the
time of remand in determining the appropriate amount of permanent alimony to be
awarded to the Wife. Id. at 677.
AFFIRMED, in part; REVERSED, in part; REMANDED.
PALMER and EDWARDS, JJ., concur.
Section 61.08(4), Florida Statutes (2014), defines “long-term marriage” as a
1
marriage having a duration of seventeen years or greater.
3
|
889 N.E.2d 814 (2005)
356 Ill. App.3d 1142
PEOPLE
v.
LIBY.
No. 3-04-0389.
Appellate Court of Illinois, Third District.
May 3, 2005.
Affirmed.
|
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-252-CR
ALBERT
LEE DAVIS APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 297TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION1
------------
Albert
Lee Davis appeals his conviction for burglary of a habitation. We will
affirm.
The
parties are familiar with the facts of this case and the applicable law is
well-settled.
In
his sole issue, appellant contends that the trial court erred by failing to
instruct the jury sua sponte that they could consider punishment phase evidence
of his prior offenses only if they believed that appellant had committed those
offenses beyond a reasonable doubt.
The
court of criminal appeals has recently held that the failure to give a
reasonable doubt instruction for prior offenses is not error when the offenses
are final convictions or other proceedings in which the reasonable doubt burden
of proof has already been met. Bluitt v. State, No. 723-02, 2004 WL
1259867, at *3-4 (Tex. Crim. App. June 9, 2004). This includes proceedings
in which the defendant has pleaded guilty. Id. at *3. The State
must properly prove prior convictions, but does not need to re-prove them beyond
a reasonable doubt. Id.
In
each of the prior offenses introduced by the State, appellant either pleaded
guilty or was found guilty of the charged offense. The State’s exhibits
were admitted pursuant to an agreed stipulation of evidence and without
objection by defense counsel. The State introduced certified copies of the
judgments and sentences, along with fingerprints tying appellant to the prior
convictions. See Johnson v. State, 725 S.W.2d 245, 247 (Tex. Crim.
App. 1987) (holding prior conviction properly proven where State introduced the
judgment and sentence and identified appellant with them). Therefore, the
trial court did not err in omitting a reasonable doubt instruction relating to
appellant’s prior offenses. We overrule appellant’s issue.
The
trial court’s judgment is affirmed.
JOHN
CAYCE
CHIEF
JUSTICE
PANEL
A: CAYCE, C.J.; LIVINGSTON and HOLMAN, JJ.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
July 8, 2004
NOTES
1.
See Tex. R. App. P. 47.4.
|
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
NORTHWEST WHOLESALE, INC., a )
Washington corporation, ) No. 90891-5
)
Plaintiff, )
)
v. )
)
PAC ORGANIC FRUIT, LLC, a Washington )
limited liability company; GREG HOLZMAN, )
INC., a foreign corporation authorized to do )
business in the State of Washington; and )
HAROLD OSTENSON and SHIRLEY )
OSTENSON, )
)
Defendants, ) EnBanc
)
HAROLD OSTENSON and SHIRLEY )
OSTENSON, on behalfofPAC ORGANIC )
FRUIT, LLC, a Washington limited liability )
company, )
)
Petitioners, )
)
v. )
)
GREG HOLZMAN, an individual; TOTAL )
ORGANIC, LLC, a Washington limited )
liability company; and GREG HOLZMAN, )
INC., a foreign corporation authorized to do )
business in the State of Washington, )
)
Respondents. ) Filed SEP 1 0 2015
No. 90891-5
MADSEN, C.J.-This case concerns whether a 'debtor who has filed a voluntary
bankruptcy petition may maintain a derivative action on behalf of a limited liability
company (LLC), of which the debtor was a former member. The primary inquiry
addresses the interplay of federal bankruptcy law and portions of the Washington Limited
Liability Company Act (WALLCA), chapter 25.15 RCW, and whether the state
provisions are superseded under the circumstances of this case; specifically, whether 11
U.S.C. §§ 541 or 365 preempt RCW 25.15.130(l)(d). 1 We hold that the dissociation
provision found in RCW 25.15. 13 0( 1)(d) is not preempted by federal bankruptcy law and
affirm the dismissal of the former LLC member's derivative claim under the facts of this
case.
FACTS
Washington orchardists Harold and Shirley Ostenson (collectively Ostenson) and
California organic fruit broker Greg Holzman (d/b/a Greg Holzman, Inc. (GHI)) formed
Pac Organic Fruit LLC (Pac-0) in 1998. GHI held the majority interest and management
responsibilities under the LLC' s operating agreement. Ostenson was required to rent his
local Washington storage and packing facility to Pac-0, to run that facility, and to obtain
and pay a loan to improve that facility. The business operated from 1998 through 2004
but collapsed in 2005. During 2005, Pac-0 defaulted on its operating line of credit and
1
The legislature amended the WALLCA in May 2015, repealing the provisions discussed herein
and reissuing them in a revised but substantively comparable form relevant to the present matter
effective January 1, 2016. See LAWS OF 2015, ch. 188. All references to the WALLCA (ch.
25.15 RCW) in this opinion are to the version ofthat act in effect prior to the January 1, 2016
effective date of the noted amendment.
2
No. 90891-5
lease payments, Holzman fired Ostenson, and the bank foreclosed on the packing facility.
Thereafter, Holzman, acting as Pac-O's agent, executed a demand promissory note in
favor of GHI and transferred Pac-0' s assets to GHI to satisfy the note.
On January 9, 2007, Ostenson filed a voluntary chapter 11 bankruptcy petition. In
May 2007, a creditor ofPac-0, Northwest Wholesale Inc., filed the present suit against
Pac-0, Ostenson, and GHI, alleging fraudulent conveyance from Pac-0 to GHI. In
response, Ostenson filed cross claims and/or third party claims against Pac-0, Holzman,
GHI, and Total Organic LLC (another Holzman company). Ostenson's claims against
Holzman and his companies (collectively Holzman defendants or HDs) were as a
derivative action on behalf ofPac-0.
On January 24, 2011, the trial court dismissed Northwest Wholesale's claims
following settlement of same. Thereafter, the only remaining claims were Ostenson's
responsive claims against Pac-0 (seven counts) and his derivative claim (count VIII)
against HDs. Trial commenced on July 11, 2011. On July 13, after Ostenson rested,
HDs moved to dismiss count VIII under CR 41 (b )(3). l-IDs argued that under the
WALLCA, ( 1) a plaintiff asserting a derivative action must be a member of the LLC (see
RCW 25.15.130(1)(d), .370, .375), (2) when Ostenson filed his bankruptcy petition he
was dissociated as a member of the LLC (and thus had only the rights of an assignee, i.e.
right to share in profits, but no management rights) (see RCW 25.15.130(1)(d)(ii),
.250(1)-(2)), and: (3) as Ostenson had been dissociated from membership in Pac-0 by
filing bankruptcy, he lacked authority (standing) to bring a derivative action on behalf of
3
No. 90891-5
Pac-0. Ostenson answered the motion arguing that HDs had consented to the derivative
action via a stipulation that was previously entered in the Ostenson's bankruptcy
proceeding. 2
The trial court took the matter under advisement and directed HDs to go forward
and present their evidence. HDs presented witnesses over the remainder of that day
(July 13) and the next day but did not finish their testimony. The trial court then
continued the matter several times. Finally on September 7, 2012, following additional
briefing, the trial court granted HDs' CR 41 motion. In its October 3, 2012 written
findings and conclusions, the trial court (1) rejected Ostenson's contention that HDs had
waived their CR 41 motion by putting on evidence, (2) rejected Ostenson's contention
that HDs had consented to the derivative action in the stipulation in Ostenson's
bankruptcy proceeding, and (3) ruled that Ostenson relinquished membership in Pac-0
with his bankruptcy filing.
On October 15, 2012 Ostenson filed a motion for reconsideration, arguing for the
first time that federal bankruptcy law preempts W ALLCA regarding dissociation of LLC
members upon filing bankruptcy. The trial court denied Ostenson's motion for
2
In making this argument, Ostenson relied on the WALLCA, arguing that the consent exception
to the dissociation provision found in RCW 25.15.13 0( 1)(d) applied to bar HDs' challenge to
Ostenson's standing to bring the derivative action. Ostenson also argued that "in addition to the
RCW [i.e., RCW 25.15.130(1)(d), which provided a consent exception to the dissociation
provision], Your Honor, they [(HDs)] should be judicially and equitably estopped" from
challenging Ostenson's standing to bring a derivative action. 3 Verbatim Report of Proceeding
at 601. Ostenson reasserted those contentions on appeal (consent, judicial estoppel, collateral
estoppel, and res judicata), but the Court of Appeals rejected each contention and affirmed the
trial court. See Nw. Wholesale, Inc. v. PAC Organic Fruit, LLC, 183 Wn. App. 459,490-93, 334
P.3d 63 (2014), review granted, 182 Wn.2d 1009, 343 P.3d 759 (2015). Ostenson abandoned the
issues of consent, judicial estoppel, collateral estoppel, and res judicata in his petition for review.
4
No. 90891-5
reconsideration on January 23, 2013. Ostenson appealed, and Division Three affirmed,
holding that HDs did not waive their CR 41 motion to dismiss, HDs did not consent to
Ostenson bringing a derivative action, and federal bankruptcy law governing bankruptcy
estates and executory contracts did not preempt WALLCA's dissociation statute. Nw.
Wholesale, Inc. v. PAC Organic Fruit, LLC, 183 Wn. App. 459, 474-89, 334 P.3d 63
(2014), review granted, 182 Wn.2d 1009, 343 P.3d 759 (2015). Ostenson sought and was
granted review in this court on only two issues: waiver and preemption.
ANALYSIS
Waiver
Ostenson argues that HDs waived their right to seek dismissal of his derivative
claim, based on Ostenson's lack of standing, by presenting defense evidence after the
court took HDs' CR 41 motion to dismiss under advisement. 3 Ostenson contends that the
trial court's granting HDs' motion and the Court of Appeals affirmance of same are at
odds with Hector v. Martin, 51 Wn.2d 707, 321 P.2d 555 (1958). That is incorrect.
Hector stands for the proposition that a defendant waives the right to challenge the
sufficiency of the plaintiffs evidence alone by presenting evidence in defense, thereby
3
CR 41(b)(3) provides:
After the plaintiff, in an action tried by the court without a jury, has completed the
presentation of his evidence, the defendant, without waiving his right to offer
evidence in the event the motion is not granted, may move for a dismissal on the
ground that upon the facts and the law the plaintiff has shown no right to relief.
The court as trier of the facts may then determine them and render judgment
against the plaintiff or may decline to render any judgment until the close of all
the evidence. If the court renders judgment on the merits against the plaintiff, the
court shall make findings as provided in rule 52( a). Unless the court in its order
for dismissal otherwise specifies, a dismissal under this subsection . . . operates
as an adjudication upon the merits.
5
No. 90891-5
allowing the court to consider the motion in light of all of the evidence. !d. at 709-10
("[T]he failure of the trial court to rule on such motion before introduction of proof by a
defendant, is tantamount to a denial of the motion. . . . Therefore, this case must be
viewed in the light of all the evidence."). Here, the question in the motion to dismiss did
not turn on the sufficiency of the evidence; the salient facts, the dates of Ostenson's
bankruptcy filing and the subsequent filing of his derivative claim, were not in dispute.
The motion turned on a legal question-Ostenson's standing to bring the derivative claim
in light ofRCW 25.15.130(1)(d) (discussed below). And even if sufficiency ofthe
evidence bore on any pertinent question, nothing indicates that the trial court limited
itself to considering only Ostenson's evidence.
Further, Hector does not address the circumstance here, where the trial court
directed HDs to "go forward" and put on their evidence. 3 Verbatim Report of
Proceeding at 603. Under these circumstances, HDs did not waive their CR 41 motion as
Ostenson contends. The trial court did not err in granting the motion to dismiss under
these circumstances. 4
4
Cf State V. Eide, 2 Wn. App. 789, 791,470 P.2d 220 (1970) (where appellant, at the end ofthe
state's case, started to move to dismiss, but was told by the trial judge that he could do so later
without waiving his rights and then testified in his own behalf, "defendant had a right to rely
upon the assurance of the trial court that he could introduce evidence without waiving his
challenge to the sufficiency of the evidence at the close of the state's case").
6
No. 90891-5
Preemption 5
Ostenson repeats the argument he made below that "[b]oth 11 U.S.C. § 541(c)(1)
and 11 U.S.C. § 365(e)(1) invalidate or render unenforceable ipso facto bankruptcy
clauses." Appellant's Opening Br. at 28; Pet. for Review at 12. 6 We begin by noting the
strong presumption against preemption. While the supremacy clause of the United States
Constitution provides that United States law is supreme, notwithstanding any contrary
state law, see Hue v. Farmboy Spray Co., 127 Wn.2d 67, 78, 896 P.2d 682 (1995) (citing
U.S. CONST. art VI, cl. 2), "any consideration of preemption issues 'start[s] with the
assumption that the historic police powers of the States [are] not to be superseded by ...
Federal Act unless that [is] the clear and manifest purpose of Congress."' (Alterations in
original) (quoting Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 120
L. Ed. 2d 407 (1992).). Accordingly, this court applies "a 'strong presumption against
finding preemption [of State law] in an ambiguous case. . . . State laws are not
superseded by federal law unless that is the clear and manifest purpose of Congress."' !d.
5
HDs argued in part to both the trial court and to the Court of Appeals that Ostenson's
preemption assertion, which was first raised in his motion for reconsideration, was untimely.
The trial court denied Ostenson's motion for reconsideration. On appeal, Division Three
rejected HDs' reasserted timeliness argument, stating, '"By bringing a motion for
reconsideration under CR 59, a party may preserve an issue for appeal that is closely related to a
position previously asserted and does not depend upon new facts."' Nw. Wholesale, 183 Wn.
App. at 480 (quoting River House Dev. Inc. v. Integrus Architecture, PS, 167 Wn. App. 221,231,
272 P.3d 289 (2012)). HDs have not raised the timeliness issue in this court, and we express no
opinion on the Court of Appeals discussion of timeliness and issue preservation.
6
Ostenson's arguments regarding the applicability of§ 365 have been a moving target. To the
Court of Appeals and in his petition for review, Ostenson argued that§ 365(e)(1) prohibitions
applied to the LLC operating agreement here as an executory contract. In his reply in support of
his petition, he stated that the operating agreement was not an executory contract and that§ 365
did not apply. But in his supplemental brief, he argues that§ 365(e)(1) does apply and raises two
new arguments contending that§ 365(e)(2)'s exception to§ 365(e)(1)'s ipso facto clause
prohibitions (discussed below) does not apply here.
7
No. 90891-5
(alterations in original) (quoting Progressive Animal Welfare Soc'y v. Univ. of Wash.,
125 Wn.2d 243, 265, 884 P.2d 592 (1994)). Even ifthere is an express preemption
clause, this court will give it "a 'fair but narrow reading."' Id. at 79 (quoting Cipollone,
505 U.S. at 524).- With this presumption in mind, we turn to the statutes at issue.
State Law (WALLCA) Provisions
RCW 25.15.375 provides:
In a derivative action, the plaintiff must be a member at the time of
bringing the action and:
(1) At the time of the transaction of which the plaintiff complains; or
(2) The plaintiffs status as a member had devolved upon him or her
by operation of law or pursuant to the terms of a limited liability company
agreement from a person who was a member at the time of the transaction.
(Emphasis added.f Under RCW 25.15.130(1)(d)(ii), a member of a limited liability
company loses his or her membership upon the filing of bankruptcy. The statute
provides:
(1) A person ceases to be a member of a limited liability company, and the
person or its successor in interest attains the status of an assignee as set
forth in RCW 25.15.250(2), upon the occurrence of one or more of the
following events:
(d) Unless otherwise provided in the limited liability company
agreement, or with the written consent of all other members at the time, the
member . .. (ii)files a voluntary petition in bankruptcy.
(Emphasis added.)
7
See also RCW 25.15.370, which provides:
A member may bring an action in the superior courts in the right of a limited
liability company to recover a judgment in its favor if managers or members with
authority t9 do so have refused to bring the action or if an effort to cause those
managers or members to bring the action is not likely to succeed.
(Emphasis added.)
8
No. 90891-5
Thus, under Washington law, Ostenson forfeited any right to bring a derivative
action on behalf ofPac-0 when he petitioned for bankruptcy. The LLC agreement did
not allow continued membership but conversely ended the bankrupt petitioning as a
member in the limited liability company. As an assignee, the dissociated member retains
rights to share in profits but loses any management rights. RCW 25.15 .250(2). 8
Ostenson argues only that the dissolution provision of RCW 25.15.13 0( 1)(d) is
preempted by federal bankruptcy law; to this court he does not otherwise challenge the
provisions or effect of the WALLCA.
Federal Bankruptcy Law Provisions
11 U.S.C. § 541 provides in part:
(a) The commencement of a case under ... this title creates an
estate. Such estate is comprised of all the following property, wherever
located and by whomever held:
(1) Except as provided in subsections (b)[ 9] and (c)(2)
of this section, all legal or equitable interests ofthe debtor in
property as of the commencement of the case.
(Emphasis added.) Section 541 (c)( 1) provides:
Except as·provided in paragraph (2) of this subsection, an interest of the
debtor in property becomes property of the estate under subsection (a) (I),
8
RCW 25.15.250(1) and (2)(a) provide in relevant part, "The assignee of a member's limited
liability company interest shall have no right to participate in the management of the business
and affairs of a limited liability company," and "[a]n assignment entitles the assignee to share in
such profits and losses, to receive such distributions, and to receive such allocation of income,
gain, loss, deduction, or credit or similar item to which the assignor was entitled, to the extent
assigned."
9
Under§ 541(b)(l), the debtor's bankruptcy estate expressly does not include "any power that
the debtor may exercise solely for the benefit of an entity other than the debtor," which, by
definition, would appear to include a derivative claim, the sole purpose of which is to benefit the
entity.
9
No. 90891-5
(a)(2), or (a)(5) of this section notwithstanding any provision in an
agreement, transfer instrument, or applicable nonbankruptcy law-
(A) that restricts or conditions transfer of such interest
by the debtor; or
(B) that is conditioned on the insolvency or financial
condition of the debtor, on the commencement of a case under
this title, or on the appointment of or taking possession by a
trustee in a case under this title or a custodian before such
commencement, and that effects or gives an option to effect a
forfeiture, modification, or termination of the debtor's interest
in property.
(Emphasis added.)
State Law Determines Property Interest
As can be seen, a bankruptcy filing triggers the creation of a bankruptcy estate into
which the debtor's property interest devolves. See 11 U.S.C. § 541(a). The threshold
i
question, however, of how a debtor's interest is determined turns on application of state
law. See, e.g., Butner v. United States, 440 U.S. 48, 55, 99 S. Ct. 914, 59 L. Ed. 2d 136
(1979) ("Property interests are created and defined by state law."). As the Ninth Circuit
Court of Appeals explained inln re Pettit, 217 F.3d 1072, 1078 (9th Cir. 2000):
Although the question whether an interest claimed by the debtor is
"property of the estate" is a federal question to be decided by federal law,
bankruptcy courts must look to state law to determine whether and to what
extent the debtor has any legal or equitable interests in property as of the
commencement of the case.
See also Fisher v. Apostolou, 155 F.3d 876, 880 (7th Cir. 1998) ("The nature of a
debtor's interestin property is determined by state law, but the question whether the
10
No. 90891-5
resulting interest should count as 'property of the estate' for§ 541 purposes is an issue of
federal law." (citation omitted)).
In re Farmers Markets, Inc., 792 F.2d 1400 (9th Cir. 1986), is instructive. Therein
the Ninth Circuit Court of Appeals reversed a bankruptcy court's decision that the
debtor's estate ~ould receive liquor licenses unhindered by transfer restrictions imposed
by a state statute~ Id. at 1401-02. In so holding, the court addressed the limits of 11
U.S.C. § 541 and how that provision is to be applied. Noting that the bankruptcy court's
decisions rested upon the misinterpretation of§ 541, the court opined:
[T]he [bankruptcy] court read§ 541(a)(l) to broaden the definition
of the property of the debtor's estate. Regardless of§ 541(a)'s scope,
reliance upon it is misplaced. That provision merely defines what interests
of the debtor are transferred to the estate. It does not address the threshold
questions of the existence and scope of the debtor's interest in a given asset.
Under [federal bankruptcy law], we resolve these questions by reference to
nonbankruptcy law. Section 541 (a) (I) was thus irrelevant to the inquiry.
Id. at 1402 (emphasis added) (citations omitted). The court made clear that the
'"bankrupt estate, insofar as it includes liquor licenses, has only the limited value of the
licenses encumbered as they may be by the terms of the statutes which create the licenses
and provide the conditions of their transfer."' I d. at 1403 (quoting In re Prof'l Bar Co.,
537 F.2d 339, 340 (9th Cir. 1976)). The court held, "Because the estate may take no
greater interest than that held by the debtor, the estate takes the license subject to the
restrictions imposed [by state statute] on the debtor by its transferor." Id.; see also In re
S. Side House, LLC, 474 B.R. 391,402 (Banlcr. E.D.N.Y. 2012) ('"[T]he estate succeeds
to no more interest than the debtor had, and the estate takes its interest subject to the
11
No. 90891-5
conditions under which the debtor held the interest.'" (quoting In re Depoy, 29 B.R. 466,
469 (Bankr. N.D. Ind. 1983)).
Farmers also explained that the bankruptcy court had misapplied§ 541(c)(l)(A):
[The bankruptcy court] read this provision to invalidate upon the
commencement of bankruptcy proceedings all transfer restrictions on
property in which the debtor holds an interest. Section 541(c)(1)(A),
however, avoids only those restrictions which prevent transfer of the
debtor's property to the estate .... [B]y its terms§ 541(c)(l)(A) applies
only to "interest[s] of the debtor in property." ... Because [the state
statute] placed no restrictions on the transfer of their entire interests to their
respective estates, it does not conflict with§ 541(c)(1)(A).
792 F.2d at 1402 (emphasis added). Applying Farmers to Ostenson's case, his debtor's
bankruptcy estate took his interest as defined, determined, and encumbered according to
state law. In other words, Ostenson's interest that devolved to his bankruptcy estate as
determined by the above Washington statutes was his interest as an assignee and not as a
member of the Pac-0 LLC.
The Court of Appeals reached the same conclusion applying In re Garrison-
Ashburn, LC, 253 B.R. 700, 707 (Banlcr. E.D. Va. 2000), which applied a Virginia state
law provision comparable to the above noted Washington statutes dissociating an LLC
member upon the member's filing a banlcruptcy petition. In Garrison-Ashburn, an LLC
member filed for bankruptcy and then sought to execute a real estate contract on behalf of
the LLC. !d. at 704. The other members of the LLC disputed the debtor's right to bind
the LLC because under Virginia law, a member is dissociated upon filing for bankruptcy.
!d. at 707. The debtor retained his economic interest-to share in the profits and losses
12
No. 90891-5
of the LLC-but could no longer participate in management. !d. The Garrison-Ashburn
court held that§ 541(c) did not change this analysis:
This result does not offend the Congressional intention behind
Sections 54l(c) and 365(c) and (e). These provisions were intended to
expand the bankruptcy estate to the maximum feasible extent and to
prevent the loss of valuable assets by the operation of ipso facto clauses
that terminate valuable leases and other rights upon bankruptcy. Here the
estate received the entire interest of the debtor in [the LLC] including its
burdens and restrictions. The economic interest, that is the membership
interest, remains in the estate and is available for the benefit of creditors.
The enforcement of [debtor's] statutory dissociation does not cause a
forfeiture of those rights or impair the legal capacity of the company to
continue in business.
Id. at 709. 10 Garrison-Ashburn reconciled the application of both state law and the
federal bankruptcy code by recognizing and applying the rule that state law defines the
debtor's interest, including dissociation, then§ 541 brings that interest into the debtor's
bankruptcy estate, burdened by whatever state law requires.
10
While Garrison-Ashburn has been criticized by some subsequent cases, see, e.g., In re
Klingerman, 388 B.R. 677, 679 (Bankr. E.D.N.C. 2008), other cases agree with Garrison-
Ashburn's approach. For instance, In re Albright, 291 B.R. 538, 540 n.7 (Bania. D. Colo.
2003), observed:
Where a single member files banlauptcy while the other members of a multi-
member LLC do not, ... the banlm1ptcy estate is only entitled to receive the share
of profits or other compensation by way of income and the return of the
contributions to which that member would otherwise be entitled.
Additional cases that follow Garrison-Ashburn's approach include In re Western Asbestos Co.,
313 B.R. 832, 844 (Banl(r. N.D. Cal. 2003) ("The Court views the meaning of 'property,' as used
in 11 U.S. C. § 541(c)(1)(B), as something that may be sold or collected to generate funds to be
distributed funds to creditors."); In re A-Z Electronics, LLC, 350 B.R. 886, 890 n.12 (Bankr. D.
Idaho 2006) (citing Albright with approval); Fotouhi v. Mansdorf, 427 B.R. 798, 802 (Batllcr.
N.D. Cal. 201 0) (partner dissociated upon filing banlauptcy); Milford Power Co. v. PDC Milford
Power, LLC, 866 A.2d 738, 759-61 (Del. Ch. 2004) (holding that neither§ 365 nor§ 541
preempted state law provisions that deprive barum1pt members of governance rights).
13
No. 90891-5
Ostenson cites to cases that have reached a result different than Garrison-Ashburn,
but those cases either do not acknowledge or fail to apply Butner, 11 or are otherwise
distinguishable or not persuasive. For instance, In re First Protection, Inc., 440 B.R. 821,
830 (B.A.P. 9th Cir. 2010), held that under§ 541(a) all of the debtor's rights devolved to
the estate and into the hands of the trustee, including the right to manage and control the
LLC. Id. at 830. On the one hand, such holding arguably made practical sense in that the
decision addressed a single-member LLC and, thus, there were no other members to
manage the LLC if the trustee could not do so, nor were there any other non debtor .
members' interests to be considered and protected. 12 However, the court's application of
§ 541(a) is troubling. The court acknowledged the Butner rule-that a debtor's interest is
determined by state law-but failed to apply that rule. The court acknowledged that a
state statute specifically defined an LLC member's interest as '"a member's share of the
profits and losses"' of the LLC and "'the right to receive distributions of [LLC] assets."'
Id. at 828-29 (quoting ARIZ. REv. STAT.§ 29-601(13)). Nevertheless, the court applied§
541(a)'s language, "all legal or equitable interest" in the bankruptcy estate, broadly to
include not just the interest as above defined by state law but also to include management
rights. Such expansive use of§ 541(a) to define a debtor's interest is contrary to the
11
See In re Klingerman, 388 B.R. 677, 679 (Bankr. E.D.N.C. 2008) (no mention of Butner.and
no analysis of threshold determination of debtor's interest as determined by state law); In re
LaHood, 437 B.R. 330 (Bania. C.D. Ill. 2010) (same); In re Dixie Mgmt. & Inv., Ltd. Partners,
474 B.R. 698 (Bankr. W.D. Ark. 2011) (same).
12
The Ninth Circuit Banlauptcy Appellate Panel in First Protection acknowledged the
distinction made in Albright (quoted above) that a different result would obtain where the LLC
member who files a bankruptcy petition belongs to a single member LLC or a multiple member
LLC. See First Prot., 440 B.R. at 829 n.13.
14
No. 90891-5
Ninth Circuit's analysis in Farmers. See Farmers, 792 F.2d at 1402 (holding that
§ 541(a) addresses only the transfer of debtor's interest to the estate and is "irrelevant" as
to the threshold determination of the existence and scope of the debtor's interest). As this
portion of the First Protection decision does not adhere to Butner, does not follow Ninth
Circuit precedent, and is contrary to the presumption against preemption that this court
applies, see Hue, 127 Wn.2d at 78, we do not find this portion of First Protection
persuasive.
Ostensen cites In re Yonikus, 996 F.2d 866, 869 (7th Cir. 1993), abrogated on
other grounds by Law v. Siegel,_ U.S. _,134 S. Ct. 1188, 188 L. Ed. 2d 146 (2014),
for the proposition that§ 541(a)(1)'s establishment of a bankruptcy estate sweeps broadly
to include every conceivable interest of the debtor "future, nonpossessory, contingent,
speculative, and derivative." But all examples given therein concern money. See id. The
availability to the estate of all of the debtor's economic interest is not at issue in this case.
Ostenson's interest as an assignee devolved to the estate. Further, Yonikus acknowledges
Butner for the proposition that determination of a debtor's interest in property is decided
by state law. See id. (stating, "The question whether an interest claimed by the debtor is
'property of the estate' is a federal question to be decided by federal law; however, courts
must look to state law to determine whether and to what extent the debtor has any legal or
equitable interests in property as of the commencement of the case"). Yonikus does not
assist Ostenson.
15
No. 90891-5
Ostenson also relies on In re Daugherty Construction, Inc., 188 B.R. 607 (Banlcr.
D. Neb. 1995), and In re Warner, 480 B.R. 641 (Banlcr. N.D. W.Va. 2012), in which the
respective bankruptcy courts held that§ 541(c)(1) invalidated state statutory and
contractual dissolution provisions. In those cases, the debtor's filing bankruptcy resulted
in the dissolution of the LLC and the termination of all the debtor's interest therein. See
Daugherty, 118 B.R. at 609-11 (statutory dissolution upon bankruptcy filing); Warner,
480 B.R. at 655-56 (bankruptcy triggering dissolution, liquidation, and distribution of
proceeds per operating agreement). Thus, dissolution of the LLC under the state statute
or operating agreement in these cases would result in depriving the estate of all of the
debtor's interest. That is not the situation here. 13 As explained above, Ostenson's
banlcruptcy estate took his interest, as determined and encumbered by Washington
statutes, as an assignee. By doing so, his economic interest is preserved in his banlcruptcy
estate and "is available for the benefit of creditors." Garrison-Ashburn, 253 B.R. at 709.
In sum, we find that the Court of Appeals properly followed Garrison-Ashburn,
federal banlcruptcy code, and Washington law. 14
13
No party has argued that Ostenson's banlauptcy filing resulted in dissolution. But the
operating agreement provides that "the Company shall dissolve upon ... the occurrence of ariy
event of Member dissociation provided in the Act ... unless the business of the Company is
continued with the consent of all of the remaining Members within ninety (90) days following
such event." Defs.' Ex. 5 (Pac Organic Fruit LLC Agreement, page 13 (Article 8.1)).
Presumably, Pac-0 continued operating with the consent of the remaining member, GHI.
14
Two recent cases from Virginia demonstrate the lack of coherence in this area. In In re
Virginia Broadband, LLC, 498 B.R. 90, 93-94 (Bankr. W.D. Va. 2013), a bankruptcy court
addressed application of a state statute that dissociated an LLC member upon becoming a debtor
in banlauptcy and thereby transformed the member's interest into that of an assignee with only
economic interests. Purporting to rely on Garrison-Ashburn, the Broadband court held that the
state statute in question was an invalid ipso facto provision under § 541 (c)(1 )(B) and that the
16
No. 90891-5
11 U.S.C. § 365
Ostenson contends that "11 U.S.C. § 365(e)(l) [as wellll U.S.C. § 54l(c)(l)]
invalidate or render unenforceable ipso facto bankruptcy clauses." Pet. for Review at 12.
The relevant statute, 11 U.S.C. § 365 provides in relevant part:
(e)(l) Notwithstanding a provision in an executory contract or unexpired lease, or
in applicable law, an executory contract or unexpired lease of the debtor may not
be terminated or modified, and any right or obligation under such contract or lease
may not be terminated or modified, at any time after the commencement of the
case solely because of a provision in such contract or lease that is conditioned
on-
(B) the commencement of a case under this title ...
(2) Paragraph (1) of this subsection does not apply to an executory contract
or unexpired lease of the debtor, whether or not such contract or lease prohibits or
restricts assigmnent of rights or delegation of duties, if--
(A)(i) applicable law excuses a party, other than the debtor, to such
contract or lease from accepting performance from or rendering
performance to the trustee or to an assignee of such contract or lease,
whether or not such contract or lease prohibits or restricts assignment of
rights or delegation of duties; and
(ii) such party does not consent to such assumption or assignment.
(Emphasis added.) 15
debtor's economic and noneconomic interests in the LLC became property ofhis banlm1ptcy
estate. Jd. at 96-97. However, in In re Williams, 455 B.R. 485 (Bankr. E.D. Va. 2011), another
court, applying the same statute and also purporting to apply Garrison-Ashburn, came to the
opposite conclusion. The Williams court held that§ 541(c)(l) "clearly controls" and that the two
debtors' interests vested in their respective estates, but that such interest was determined by the
state statute. Thus, as defined by the state statute, a dissociated member retained only economic
rights, and since both LLC members had been dissociated through bankmptcy and no one was
left to wind up the affairs ofthe LLC, the court would appoint a liquidating tmstee to do so. Id.
at 501-02. Such ambiguities support applying a "'strong presumption"' against finding
preemption ofRCW 25.15.130(l)(d)'s dissociation provision. Hue, 127 Wn.2d at 78 (quoting
Progressive, 125 Wn.2d at 265).
15
Similarly,§ 365(c) provides in part:
17
No. 90891-5
16
Section 365 applies to executory contracts. As First Protection explains,
"Generally, the bankruptcy estate automatically succeeds to a debtor's assets. However,
because an executory contract is both a potential asset and a potential liability of the
17
debtor it is treated differently." 440 B .R. at 83 0. Notably, "if the operating agreement
is an executory contract ... § 365 governs the trustee's rights rather than§ 541(c)(l). In
The trustee may not assume or assign any executory contract or unexpired
lease of the debtor, whether or not such contract or lease prohibits or
restricts assignment of rights or delegation of duties, if--
(l)(A) applicable law excuses a party, other than the
debtor, to such contract or lease from accepting performance
from or rendering performance to an entity other than the
debtor or the debtor in possession, whether or not such
contract or lease prohibits or restricts assignment of rights or
delegation of duties; and
(B) such party does not consent to such assumption or
assignment ....
(Emphasis added.)
16
Ostenson argues in his petition that the LLC's operating agreement is an executory contract
and thus subject to the ipso facto prohibition in§ 365(e)(1), but in his reply he contends that
§ 365 does not apply. Then he reasserts in his supplemental briefthat § 365(e)(1) does apply
while raising two new arguments to avoid§ 365(e)(2)'s exception to§ 365(e)(l)'s prohibition.
In any event, as the Court of Appeals held, it ultimately does not matter whether the Pac-0
operating agreement qualifies as an executory contract because, even if it does, under the
circumstances of Ostenson's case§ 365(e)(2) would apply to negate the application of§
365(e)(1)'s prohibition, as explained herein.
17
Executory contracts do not automatically devolve to the bankruptcy estate.
"The trustee's power to reject those executory contracts which he finds
burdensome to the bankrupt's estate is an extension of his power to renounce title
to and abandon burdensome property which is already a part of the estate.
Because executory contracts ... involve future liabilities as well as rights,
however, an affirmative act of assumption by the trustee is required to bring the
property into the estate in order to ensure that the estate is not charged with the
liabilities except upon due deliberation. Thus, executory contracts ... -unlike
all other assets-do not vest in the trustee as of the date of the filing of the
bankruptcy petition. They vest only upon the trustee's timely and affirmative act
of assumption."
First Prot., 440 B.R. at 830 (alterations in original) (quoting In re Lovitt, 757 F.2d 1035, 1041
(9th Cir.1985) (citations omitted)).
18
No. 90891-5
that event, the restrictive provisions under [a state] LLC Act or the operating agreement
that affect the transfer of [d]ebtor's rights and interests in [an LLC] may be enforced
through operation of§ 365[(e)(2)] in some instances." Id. at 830-31.
Whether a contract is executory within the meaning of the Bankruptcy Code is a
"question of federal law." Id. at 831 (citing In re Alexander, 670 F.2d 885, 888 (9th
Cir.1982)). "A contract is executory only when the 'obligations of both parties are so far
unperformed that the failure of either party to complete performance would constitute a
material breach and thus excuse the performance of the other."' Id. (quoting In re
Ehmann, 319 B.R. 200, 204 (Bankr. D. Ariz. 2005)).
Here, the Court of Appeals analyzed the obligations in the Pac-0 operating
agreement and noted that while they "may suffice to create an executory contract," the
court ultimately "need not decide" whether the Pac-0 operating agreement is an
executory contract because the court otherwise held that"§ 365(e) of the bankruptcy code
excuses further performance under the agreement." Nw. Wholesale, 183 Wn. App. at
487-88; see In re Tsiaoushis, 383 B.R. 616, 620 (Bankr. E.D. Va. 2007) (Mem. Op.)
(noting that the "final step" in any analysis of executory contracts under § 365 is the
applicability of§ 365(e)(2)'s exemption from§ 365(e)(l)'s ipso facto prohibition). To
address this issue, Division Three applied Finkelstein v. Security Properties, Inc., 76 Wn.
App. 733, 888 P!2d 161 (1995). See Nw. Wholesale, 183 Wn. App. at 488.
Ostenson asserts that Division Three's reliance on Finkelstein was error because
that case addresses partnerships and not LLCs. Pet. for Review at 17. But Division
19
No. 90891-5
Three's reliance on a partnership case was not improper. See Tsiaoushis, 383 B.R. at 618
(noting because LLC's are relatively new statutory creations, "decisions concerning
partnership agreements are helpful"). 18 Accordingly, Division Three did not err in
applying by analogy a partnership case that addressed application of section§ 365(e)(2).
In Finkelstein, Division One held that a state law provision that dissolved a
general partnership upon the filing of bankruptcy by any of the partners was not
superseded by§ 365(e)(1)'s invalidation of ipso facto provisions. Therein, Finkelstein
was a minority partner in two related general partnerships, each of which served as
general partners for several limited partnerships. Finkelstein filed for bankruptcy under
chapter 11 and later converted to chapter 7. Before the bankruptcy filing, each general
partnership agreement provided that the partnership would not dissolve or terminate upon
the death, incapacity, or bankruptcy of any partner. After Finkelstein filed bankruptcy,
each general partnership then amended its partnership agreement to exclude Finkelstein
as a partner. Finkelstein then sued the general partnerships for an accounting and breach
of fiduciary duties and brought a derivative action on behalf of several of the limited
partnerships. The trial court dismissed Finkelstein's claims on statute of limitations
grounds, and Division One affirmed, holding in part that state partnership law was not
superseded by federal bankruptcy law, that the partnerships dissolved under state
partnership law when Finkelstein bankruptcy case was converted to chapter 7, and that as
18
See also Sally S. Neely, Partnerships and Partners and Limited Liability Companies and
Members in Bankruptcy: Proposals for Reform, 71 AM. BANKR. L.J. 271, 317 (1997)
("[B]ecause of the similarities between LLCs and partnerships in this area of inquiry, the cases
[involving partnerships] also provide guidance regarding the appropriate consequences of the
bankruptcy of a member or member-manager of a[n] LLC.").
20
No. 90891-5
a former partner Finkelstein had no standing to bring breach of fiduciary duty claims or a
derivative action on behalf of the limited partnerships. Finkelstein, 76 Wn. App. 733.
Relevant here, noting that courts have "'generally assumed that partnership
agreements are ... executory contracts,"' Division One held that "[debtor's] bankruptcy
trustee was not free to assume the contract under § 3 65 because the other partners were
not obligated to accept such an assumption." !d. at 736-37 (quoting In re Cutler, 165
B.R. 275, 279-80 (Bania. D. Ariz.1994)). This is so because "[p]artnerships are
voluntary associations, and partners are not obligated to accept a substitution for their
choice of partner." !d. at 737. The court additionally held that "[t]he restraint on
assumability also makes the deemed rejection provision of§ 365[(d)(l)] inapplicable to
the partnership agreement. Therefore,§ 365(e)'s invalidation of ipso facto provisions
does not apply, and state partnership law is not superseded." !d. (citation omitted). The
Finkelstein court relied on a Fifth Circuit case, In re Phillips, 966 F.2d 926, 935 n.ll (5th
Cir. 1992), which noted that
[C]ourts which have ruled that§ 365(e) supersedes state partnership law
have failed to apply§ 365(e)(2) to their analysis. Section 365(e) was
designed to invalidate banlm1ptcy termination clauses (ipso facto
provisions) in contracts. Section 365(e)(2) clarifies Congress' intention to
prevent only private contracts from counteracting the Banlauptcy Code, not
to prevent state law, such as partnership law, from determining the status of
a partnership.
Finkelstein, 76 Wn. App. at 737 n.3. Division One further explained, "Section 365 is
clearly not applicable to the executory portion of the partnership contract [i.e., described
as management rights and duties] because partnership agreements are purely consensual
21
No. 90891-5
and the freedom of the partners to associate and dissociate is the heart of partnership
law." !d. at 738. Accordingly, the Finkelstein court held that§ 365 was not applicable
and did not supersede state partnership law. !d.
The only ~uties owed to [debtor] after his removal from the partnership
were the duties to account and pay to him (or his estate) the value of his
share. [Debtor] ceased to be a member of the partnership upon dissolution,
and has no rights against the remaining partners for their continuing
business. It follows that he has no claims against the remaining partners for
any alleged subsequent self-dealing. For the same reasons, we also affirm
the trial court's dismissal of[debtor's] derivative action.
!d. at 740 (emphasis added).
Here, the Court of Appeals sustainably relied on Finkelstein in holding that§ 365
did not preempt Washington law that removed Ostenson as a member of Pac-0 upon his
bankruptcy filing. See Nw. Wholesale, 183 Wn. App. at 489. The same rights of
voluntary association on which the Finkelstein decision turned apply equally to LLC
membership. Se(! Daugherty Constr., 188 B.R. at 611 ("Like a partnership, members of
the LLC have voluntarily associated in a business enterprise and the relationship among
members may be personal in character.''); see also Sally S. Neely, Partnerships and
Partners and Limited Liability Companies and Members in Bankruptcy: Proposalsfor
Reform, 71 AM. BANKR. L.J. 271,312 (1997) (same); First Prot., 440 B.R. at 832 (plain
language of§ 365(c)(l) and§ 365(e)(2)(A) makes clear that the provisions are not for the
debtor's protection). "These sections[§ 365(c)(1) and§ 365(e)(2)(A)] were designed 'to
protect non-debtor third parties whose rights may be prejudiced by having a contract
performed by an :entity other than the one with which they originally contracted."' First
22
No. 90891-5
Prot., 440 B.R. at 832 (quoting In re C. W Mining Co., 422 B.R. 746, 761 (B.A.P. lOth
Cir. 2010)). The WALLCA clearly protects the voluntary association rights ofnondebtor
LLC members. For instance, while RCW 25.15.250 authorizes the assignability of a
member's LLC interest "in whole or in part," that statute nevertheless expressly protects
the associational interests of the remaining members by providing:
The assignee of a member's limited liability company interest shall have no
right to participate in the management of the business and affairs of a
limited liability company except . .. [u]pon the approval of all of the
members of the limited liability company other than the member assigning
his or her limited liability company interest.
RCW 25.15.250(l)(a) (emphasis added). Similarly, RCW 25.15. 260, which addresses
the right of an assignee to become a member, states in pertinent part, "An assignee of a
limited liability company interest may become a member upon ... [t]he approval of all of
the members of the limited liability company other than the member assigning his or her
limited liability company interest." RCW 25.15.260(1)(a) (emphasis added). Given the
strong protection ofLLC members' voluntary associational interests, comparable to
partnerships, the Court of Appeals did not err in applying Finkelstein to Ostenson's case
and affirming the dismissal of his derivative claim.
Ostenson does not effectively argue otherwise. He cites to Summit Investment &
Development Corp. v. Leroux, 69 F.3d 608 (1st Cir. 1995) for the proposition that
§ 541(c)(l) and§ 365(e)(l) invalidate or render unenforceable ipso facto bankruptcy
clauses. But the Summit court addressed only § 365( e) and did not undertake any
analysis of§ 541. !d. at 614 n. 8. And while the First Circuit indeed held in Summit that
23
No. 90891-5
§ 365(e) preempted a Massachusetts statute comparable to RCW 25.15.130(1)(d)(ii), the
Ninth Circuit expressly rejected Summit's approach in In re Catapult Entertainment, Inc.,
165 F.3d 747 (9th Cir.), cert. dismissed, 528 U.S. 924 (1999). The Ninth Circuit Court of
Appeals noted that under the statute's plain language, while§ 365(e)(l) nullifies ipso
facto clauses, "§ 365(e)(2)(A) expressly revives 'ipso facto' clauses" under the
circumstances noted therein. Id. at 753 n.6. The Ninth Circuit held, "[W]here applicable
nonbankruptcy law makes an executory contract nonassignable because the identity of
the nondebtor party is material, a debtor in possession may not assume the contract
absent consent of the nondebtor party." Id. at 754-55. As noted, RCW 25.15.250(1)(a)
and RCW 25.15.260(1)(a) of the WALLCA require the express approval ofthe LLC
nondebtor members regarding any transfer or assumption of member management rights.
To the extent the LLC operating agreement may qualify as an executory contract
concerning management, the noted "applicable law excuses a party, other than the debtor
[i.e., the nondebtor members], ... from accepting performance from or rendering
performance to ... an assignee," and "such party [i.e., the nondebtor members have] not
consent[ed] to such assumption or assignment." 11 U.S.C. § 365(e)(2). Accordingly,§
19
365(e)(2)'s exception to§ 365(e)(1)'s prohibition of ipso facto provisions applies.
19
Ostenson raises two new issues in his supplemental brief. First, he contends that because his
bankruptcy petition was filed under chapter 11 (reorganization), he is a debtor in possession and
thus he may be treated as the same entity before and after his bankruptcy filing. Because there
will be no assignment of the operating agreement to a different entity, the§ 365(e)(2) exception
to§ 365(e)(1)'s prohibition to ipso facto provisions is not triggered. Second, Ostenson contends
that the stipulation entered in his bankruptcy proceeding qualifies as the required consent under
§ 365(c)(1)(A) and§ 365(e)(2) and thus the§ 365(e)(2) exception is not triggered. See Pet'rs'
Suppl. Br. at 17-20. We decline to address Ostenson's newly raised arguments. "Under the
24
No. 90891-5
CONCLUSION
We conclude that HDs did not waive their CR 41 motion to dismiss and that
federal bankruptcy law, 11 U.S.C. §§ 541 or 365, does not preempt RCW
25.15.130(1)(d)'s dissociation provision. As to the latter issue, we hold that state law
defines what the bankruptcy debtor's interests are and that § 541 brings such interests
into the bankruptcy estate, burdened by whatever state law requires. Additionally, if
executory contracts are involved, § 365 applies to determine what may be done with such
contracts. But here, the express protections of associational rights ofnondebtor members
found in the WALLCA triggers§ 365(e)(2)'s exception, rendering§ 365(e)(1)'s
prohibition against ipso facto clauses inapplicable. We affirm.
Rules of Appellate Procedure, 'the Supreme Court will review only the questions raised in ...
the petition for review and the answer, unless the Supreme Court orders otherwise upon the
granting of the ... petition."' Denaxas v. Sandstone Court of Bellevue, LLC, 148 Wn.2d 654,
671, 63 P.3d 125 (2003) (alterations in original) (quoting RAP 13.7(b)).
25
No. 90891-5
WE CONCUR:
26
|
250 F.Supp. 472 (1965)
UNITED STATES of America and Carroll L. Beason, Special Agent, Internal Revenue Service, Plaintiffs,
v.
Carl COHEN, Defendant.
Civ. No. 754.
United States District Court D. Nevada.
November 29, 1965.
*473 John W. Bonner, U. S. Atty., Michael DeFeo, Special Asst. U. S. Atty., Las Vegas, Nev., for plaintiffs.
V. Gray Gubler, Las Vegas, Nev., Adrian B. Fink, Jr., Cleveland, Ohio, for defendant.
ROGER D. FOLEY, Chief Judge.
On July 8, 1964, C. L. Beason and J. R. Chamberlain, Special Agents of the internal Revenue Service, Intelligence Division, then conducting an investigation into the income tax liability of Carl Cohen and his wife, called upon Cohen and made demand to examine his tax records for the years 1958 through 1963, inclusive. Cohen advised the Agents that the tax records were in the possession of his accountant, Samuel Berke, of Beverly Hills, California. On July 9, 1964, Cohen picked up the tax records from Berke's office. On July 13, 1964, Agent Beason made a demand upon Berke for the tax records, and was advised that Cohen had the tax records in Las Vegas.
At Beason's request, Berke, on several occasions, asked Cohen to return the tax records to him. Cohen refused. This Court finds that Berke did so only because of Beason's request. Berke did not make the request because he wanted the records back. The contrary is true. At all times, Berke disclaimed any property or possessory right to the records.[1]
On September 29, 1964, Beason served Cohen with a summons requiring the production of:
"1. All accounting work papers, statements, records, schedules, abstracts, analyses, and compilations prepared by Samuel Berke, C. P. A., or by members of his firm relating to your income tax liabilities for the years 1958 through 1963, which you *474 obtained from Mr. Berke on July 9, 1964.
"2. All correspondence files of Samuel Berke relating to accounting and general business services performed by his firm for you during the years 1958 to the present time, which you obtained from Mr. Berke on July 9, 1964."
Cohen refused to produce the records summoned, invoking the privilege against self-incrimination.
Beason petitioned this Court for an order to show cause why Cohen should not be compelled to produce the summoned records. An order to show cause was thereupon issued, and after a hearing and the filing of briefs, the matter was submitted to the Court for decision.
Government counsel concedes that Cohen has rightly refused to produce his personal records, but contends that the work papers, memoranda and correspondence prepared by Berke and his staff prior to the commencement of the investigation are the personal property of Berke and not of Cohen and therefore are not protected by the taxpayer's claim of privilege against self-incrimination. The Government relies upon Section 5037 of the California Business and Professions Code[2] and upon two cases. In re Fahey, 6 Cir. 1961, 300 F.2d 383. Deck v. United States, 1964, 119 U.S.App.D.C. 240, 339 F.2d 739.
In Fahey, counsel for the taxpayer obtained possession of the work papers from taxpayer's accountant. The accountant directed the attorney to turn the work papers over to the Government. Counsel refused and claimed the privilege against self-incrimination on behalf of his client. The Court held, first, that the attorney could not invoke the privilege against self-incrimination for the client,[3] and secondly, that there was substantial evidence to support the trial court's finding that the work papers were the property of the accountant.
The taxpayer in Deck had a California accountant who, at taxpayer's request, had delivered his work papers to taxpayer's counsel, to be returned after examination. The accountant, after being served with summons to produce, demanded the return of the work papers. The taxpayer intervened and contended that the work papers were his property and claimed the privilege against self-incrimination. The trial court found that the work papers were the property of the accountant and that the privilege was unavailable. The Court of Appeals affirmed, holding that under Section 5037 of the California Business and Professions Code, the work papers were the property of the accountant and should be produced. However, taxpayer contended that even if the work papers were the accountant's property, the work papers were in his possession rightfully and he could prevent their production through the invocation of the privilege against self-incrimination. The Court held that since the accountant was the owner and had demanded their return, neither taxpayer nor his counsel had any right to retain the papers, saying:
"* * * We think that one who holds papers against the owner's demands for their return cannot resist production by claiming the privilege against self-incrimination."
Counsel for Cohen first contends that the work papers are the taxpayer's property, and secondly, that even if the ownership of the work papers should be *475 found to be in Berke, the accountant, Cohen had the work papers in his rightful possession in a purely personal capacity at the time the summons was served.
Cohen relies upon the cases of United States v. White, 1944, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542; Application of House, N.D.Cal.1956, 144 F.Supp. 95; Hughes v. Foster, Lewis, Langley and Onion, W.D.Tex.1965, 16 A.F.T.R.2d 5116.
At page 101 of 144 F.Supp., the late Judge Murphy states:
"* * * The argument of the government is therefore reduced to the proposition that the application of the privilege against self-incrimination turns on the difference between rightful indefinite possession and legal title. Nothing in the cases substantiates this notion that a narrow concept of property law should determine the availability of Constitutional guarantees against self-incrimination. The Supreme Court has stated the rule as follows:
`* * * the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity.' (Emphasis added.) See United States v. White, 1944, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542."
It is noted that Judge Murphy cites In the Matter of Daniels, S.D.N.Y.1956, 140 F.Supp. 322. At page 327, the New York Court states:
"* * * that the privilege of the Fifth Amendment does not rest upon an individual's absolute title to the documents in question; rather it rests upon his legitimate and personal possession."
The Texas Court, in the recent Hughes case (supra), states, in part:
"* * * that at the time the summons was issued, the rightful, indefinite and legitimate possession of such work papers was in the taxpayers in a purely personal capacity, through the respondent as their legal counsel, that by affidavit filed herein the taxpayers declined to produce such documents, or to permit the respondent to produce them, for the reason that they may contain evidence which would tend to incriminate the taxpayers; that the taxpayers are entitled to resist the production of the work papers on the ground of possible self-incrimination under the Fifth Amendment to the Constitution of the United States; that their privilege against self-incrimination has been sufficiently invoked; and that, therefore, the respondent's motion to quash the summons and to vacate the Court's order to show cause should be granted."
This Court holds that at the time that Cohen was served with the summons, September 29, 1964, he held the work papers, memoranda and correspondence in his rightful and indefinite possession in a purely personal capacity. This is sufficient to entitle him to invoke the privilege against self-incrimination. White, House, Daniels, and Hughes, supra. There is no need to determine the ownership of the work papers. Fahey and Deck are distinguishable. The taxpayers in those cases could not claim the rightful and indefinite possession, since the accountants, found to have been the owners, had demanded that the work papers be given to the government (Fahey) and that they be returned (Deck).
In view of the position this Court takes, there is no need to answer the contention raised by Cohen, that since there had been a prior investigation made by the Internal Revenue Service of Cohen's tax liability for some of the same years, the Agents, here, did not comply with 26 U.S.C. § 7605(b).
It is ordered that this Court's show cause order be vacated and that the summons be quashed.
This decision constitutes the Court's Findings of Fact and Conclusions of Law. Defendant's counsel shall prepare the appropriate Order.
NOTES
[1] On September 29, 1964, Berke wrote to Beason, in part, as follows: (See Exhibit 6)
"This is in reply to your suggestion in our telephone conversation of September 2nd that I ask Mr. Cohen for the return of the records which, at his request, Mr. Golden and I gave to him in the early part of July.
"As I have already advised you, it has been our invariable practice to give to a client any books, records, papers, or other documents in our possession pertaining to him upon his request for them. We have always considered that by so doing we were relinquishing the documents permanently and that we had no right to get them back. Mr. Golden and I separately gave Mr. Cohen's records to him, at his request and had no expectation that he would return them and no understanding that we were entitled to recover them from him. I might point out that Mr. Cohen's documents were delivered to him before we were aware that you wished to examine them.
"Under the circumstances, we have no interest in or right to possession of the records which we furnished Mr. Cohen and therefore have no right or obligation to ask him to return them to us."
[2] "Accountant's Ownership of Papers. All statements, records, schedules, working papers and memoranda made by a certified public accountant or public accountant incident to or in the course of professional service to clients by such certified public accountant or public accountant except reports submitted by a certified public accountant or public accountant to a client shall be and remain the property of such certified public accountant or public accountant, in the absence of an express agreement to the contrary between the certified public accountant or public accountant and the client." Cal.Bus. and Prof.Code, § 5037.
[3] This is not the law in the Ninth Circuit. See United States v. Judson, 9 Cir. 1963, 322 F.2d 460.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-2461
BANK OF AMERICA, NA,
Plaintiff - Appellee,
v.
NELSON L. BRUCE,
Defendant - Appellant,
and
SOUTH CAROLINA HOUSING TRUST FUND; CHARLESTON AREA CDC;
SC HOUSING CORP; CAPITAL RETURN INVESTMENTS LLC; REMINISCE
HOMEOWNERS ASSOCIATION INC.,
Defendants.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:17-cv-02617-RMG)
Submitted: April 25, 2019 Decided: April 29, 2019
Before QUATTLEBAUM, Circuit Judge, and TRAXLER, Senior Circuit Judge. *
*
Judge Floyd did not participate in the consideration of this case. The opinion is
filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d) (2012).
Affirmed by unpublished per curiam opinion.
Nelson L. Bruce, Appellant Pro Se. Shannon Troutman Sinai, ALBERTELLI LAW,
Tampa, Florida, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Nelson L. Bruce appeals the district court’s order denying his Fed. R. Civ. P. 60(b)
motion seeking vacatur of the court’s prior order adopting the recommendation of the
magistrate judge and remanding this foreclosure proceeding to state court. We have
reviewed the record and find no reversible error. Accordingly, we affirm for the reasons
stated by the district court. Bank of Am., NA v. Bruce, No. 2:17-cv-02617-RMG (D.S.C.
Nov. 26, 2018). We deny Bruce’s motion to compel arbitration and for a temporary
administrative stay and dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
AFFIRMED
3
|
193 Cal.App.2d 652 (1961)
Estate of JOSEPH HELFMAN, Deceased. ELSIE CROSS et al., Appellants,
v.
MIRIAM H. LAR RIEU, as Executrix, etc., Respondent.
Civ. No. 6493.
California Court of Appeals. Fourth Dist.
July 10, 1961.
McCutchen, Doyle, Brown & Enersen and Mortimer Smith III for Appellants.
Fitzgerald, Abbott & Beardsley and Stacy H. Dobrzensky for Respondent.
SHEPARD, Acting P. J.
This is an appeal by two legatees from an order instructing the executrix respecting disposition of corporate stock devised by deceased. Appellant Planned Parenthood League of Alameda County, Inc., adopts the brief of appellant Elsie Cross since it was agreed that all bequests of specific amounts of Parke, Davis and Company stock will be distributed in accord with the decision in this appeal.
Facts
The material facts are not in dispute, and there is no conflicting testimony. In substance, they are as follows: On July 28, 1954, the above- named decedent was the owner of 23,614 shares of stock in Parke, Davis and Company. On that date he made the last codicil to his will. By the will and codicils thereto, he bequeathed 1,980 shares of Parke, Davis and Company stock to some 12 legatees, along with certain comparatively small bequests to charity and individuals, and the entire residue of the estate in trust to his two daughters and their issue. Included in the bequests of stock in Parke, Davis and Company was one of 300 shares to Elsie Cross, appellant herein. May 24, 1957, he was adjudicated an incompetent and his daughter, Miriam H. Lar Rieu, was appointed guardian of his person and estate. Apparently this guardianship continued to the date of his death on February 24, 1959.
On October 24, 1958, decedent was still the owner of said 23,614 shares of stock. November 12, 1958, Parke, Davis and Company ordered a "stock split" of three for one. Instead of calling in all stock and reissuing three new shares, the company ordered that each owner of stock of record on October 24, 1958, would be issued, without charge, an additional two shares of stock for each share so held. A certificate of such additional shares was, in fact, later delivered, so that the original 23,614 shares of stock actually became 70,842 shares. There is no contention that this was intended in any way as a stock dividend, nor is it contended that such "stock split" represented in any way any additional value. The record does not show that decedent, during his lifetime, was in any way cognizant of the fact that the "stock split" had *654 occurred nor that he had received such additional number of shares. There is nothing in the record to show that decedent, at the time he made his will, had any information that such "stock split" was proposed by company, nor that at any time in 1954 company even planned such "stock split."
Decedent's estate is appraised at $3,657,079.21, of which the total of 70,842 shares of Parke, Davis and Company stock is appraised at $2,851,390.50. The time for presentation of claims has expired and there is no suggestion anywhere in the record that funds are not ample to pay all legacies. Nothing now remains to be done as a prerequisite to distribution except final determination and payment of inheritance and estate taxes and sale of certain securities.
The Controversy
In the case here at bar, respondent contends that on distribution only 300 shares out of the total of 70,842 should be distributed to appellant Cross. Appellant contends that she should receive 900 shares, representing what the 300 shares spoken of by testator were actually converted into. The trial court ordered distribution to said appellant of only 300 shares and, in like manner, ordered distribution to the other legatees of the exact number of shares numerically specified in the will. It is agreed by the parties that whatever decision is made in the matter will determine the distribution to all of the other legatees.
Appellate Review
Respondent suggests that when extrinsic evidence is needed and a conflict appears, the construction given to an instrument by the trial court, which construction appears to be reasonable and consistent with the intent of the testator, will be followed by the courts of appellate jurisdiction even though some other interpretation may seem equally tenable with that accorded by the trial court. (Estate of Sandersfeld, 187 Cal.App.2d 14, 20-21 [9] [9 Cal.Rptr. 447].) [1] However, it is also the rule that where no extrinsic evidence is introduced or where there is no conflict in such evidence, the construction of an uncertain provision in a will is a question of law on which the independent judgment of the appellate court is to be exercised. Under such circumstances, there is no issue of fact and it is the duty of an appellate court to make the final determination in accordance with the applicable principles of law. (Estate of Platt, 21 Cal.2d 343, 352 [4] [131 P.2d 825]; Estate of Wunderle, 30 Cal.2d 274, 280 [6] [181 P.2d 874].) *655 In one sense, of course, as was pointed out by Wigmore and noted by American Law Report, extrinsic evidence is always necessary in order to relate the words of the will to the things and persons of which the will speaks. (Paley v. Superior Court, 137 Cal.App.2d 450, 456 [1] [290 P.2d 617].) In the case here at bar, however, whether or not the evidence relating to the "stock split" is thought of as extrinsic is of no consequence since there was no conflict whatever in the evidence.
Testator's Intent
[2] One of the most basic of all the rules relating to interpretation of wills is that a "will is to be construed according to the intention of the testator." (Prob. Code, 101; Estate of Lefranc, 38 Cal.2d 289, 295 [1] [239 P.2d 617]; Estate of Avila, 85 Cal.App.2d 38, 39 [2] [192 P.2d 64].) [3] In arriving at such construction, each case ordinarily must depend upon its own particular set of facts. (Estate of Henderson, 161 Cal. 353, 357 [119 P. 496]; Estate of Shumack, 152 Cal.App.2d 208, 213 [313 P.2d 90].) While respondent suggests application of the rule that unless a different intention finds expression in the will it should be construed as applying to and disposing of the estate in its condition at the time of the death of the testator (Estate of Chamberlain, 56 Cal.App.2d 458, 461 [1] [132 P.2d 488]), it is also true that a testator's intent is to be determined as of the date of the execution of the instrument. (Estate of Carter, 49 Cal.App.2d 251, 254 [1] [121 P.2d 540].) Thus both rules must be applied together. [4] The court in applying the will as of the date of the testator's death, attempts to ascertain the intent of the testator by the language of the will as understood by the testator at the time he wrote it, related to circumstances then present.
Respondent suggests as persuasive the rule that preference should be given to blood relatives or natural heirs over strangers. (Estate of Torregano, 54 Cal.2d 234, 249 [16-22a] [5 Cal.Rptr. 137, 352 P.2d 505].) [5] However, it is also true that where the language is clear, the will must be interpreted according to its ordinary meaning and legal import, and the intention of the testator ascertained thereby. (Estate of Watts, 179 Cal. 20, 23 [175 P. 415]; Estate of Lawrence, 17 Cal.2d 1, 6 [1] [108 P.2d 893].)
Stock Split
[6] Neither appellant nor respondent have been able to discover any California authorities in which the precise point *656 here at issue has been determined. This court's independent research has developed none. The point therefore appears to be one of first impression in this state, although there is one dictum in Estate of Cline, 67 Cal.App.2d 800, 805 [4] [155 P.2d 390], in which the court analyzes the intent of the testator respecting his disposition of certain monies inherited from his father. As a portion of such analysis, the court there said: "The exchange of stock for notes of a corporation is not an ademption; neither is the exchange of specifically devised shares of stock for other shares an ademption; nor is the exchange of stock for bonds."
California authorities have followed the majority rule that there is no ademption of a specific bequest where there is merely a change of form. (Estate of Cline, supra; Estate of Cooper, 107 Cal.App.2d 592, 596 [4, 5] [237 P.2d 699]; Estate of MacDonald, 133 Cal.App.2d 43, 47 [2] [283 P.2d 271].) We are not here confronted with an ademption resulting from deficiency in the number of shares remaining at time of death, such as is presented in Estate of Buck, 32 Cal.2d 372, 376 [4] [196 P.2d 769].
In other states of the United States, outside of California, it is clear that the majority rule on "stock splits" is that the total number of shares represented by the shares named in the will is ordinarily distributed to the legatee named. Some of the authorities discuss a situation such as that presented in the case here at bar as a specific bequest, while some resolve the problem on the basis of a general bequest, but the reasoning in both types of approach clearly covers the problem here presented. A few of the expressions of other courts of the United States make this clear, as follows:
In In re Fitch's Will, 281 App.Div. 65 [118 N.Y.S.2d 234, 236 [3]], involving a general bequest of shares of corporate stock and, after execution of the will and prior to death, a three for one stock split, the general beneficiary received the equivalent number of shares. It was there said: "... merely because it has been held ... that a specific legatee is entitled to the equivalent number of shares following a stock split, it does not necessarily also follow that the converse must be held that a general legatee is never entitled to such a benefit."
"... What the testator intended to do is the ultimate aim in all will construction, and the rules that have been made are all bent in this direction. The intent, of course, is carried out if it is not unlawful."
In re Vail's Estate, (Fla.) 67 So.2d 665, 667: "That a stock *657 split-up is a mere change in form and not in substance, and that additional shares so acquired pass under a specific bequest of the original shares, is too well settled for contradiction."
In re Parker's Estate, (Fla. App.) 110 So.2d 498, 501, 504: "The technical distinction between general and specific bequests becomes important only when considering situations involving ademption, abatement or disposition of income earned on the subject of the bequest during administration."
"For the purpose of our decision, however, it is immaterial in which category the bequest may fall. We are convinced that the stock split ... effected a change only in the form of the shares of stock, and not in their substances."
In re McFerren's Estate, 365 Pa. 490 [76 A.2d 759, 763, 22 A.L.R.2d 451]: "The court below ruled that because a will is construed to speak and take effect as if executed immediately before the death '... unless a contrary intention shall appear by the will' [citations], the bequest of 50 shares of stock referred to 50 shares of the exchanged stock of the par value of $10. With this we do not agree. As the legacies were unquestionably general, the legatee is entitled to the stock or its value as contemplated at the date of the will. [Citations.] The legacies were not adeemed merely because of a change in corporate form. The change was clearly one of form and not of substance. While the will is only effective at death, the intent of the testator governs concerning the identity or value of the legacy. This is governed by the words of the will in relation to the surrounding circumstances. [Citations.] What the testatrix manifestly intended to bequeath to each legatee was 50 shares of the common stock of the corporation which she then owned. Such a change of form, but not of substance, will not defeat a manifest testamentary intent to bequeath to each legatee, by way of a general legacy, an equal one half share of the stock which she then owned in that corporation."
In Allen v. National Bank of Austin, 19 Ill.App.2d 149 [153 N.E.2d 260], the court held, at page 265 [7] [153 N.E.2d], that in the absence of an intention to the contrary, a legatee of shares of stock is entitled to additional shares issued as the result of a stock split occurring after execution of the will. As to whether the bequest was general or specific, the court had this to say at page 263 [5-6] [153 N.E.2d]:
"In the instant case the estate is more than adequate to cover all bequests, and the rationale behind the classification of legacies is not pertinent for our purposes. Therefore, many of the cases in which these symbols have been used to characterize *658 bequests are not germane to the instant case. In most cases where a stock split or stock dividend was involved, nothing more than lip service has been paid to the classification. Instead, courts have sought to find the intention of the testator, and almost always have found that the additions of stock in stock splits go to the legatee, as a consideration of the cases will reveal."
In re Rees' Estate, 210 Ore. 429 [311 P.2d 438, 443-444], in discussing the contention of respondents therein that because the shares were not all called in for exchange but additional new shares were simply issued in order to bring up the total required by the stock split, the specific bequest would not include the additional shares and such additional shares would become a part of the residue of the estate, the court said:
"In our opinion, the respondents' argument is without merit for many reasons: (1) It gives a different and special status to stock of par value over stock of non-par value, even though in a specific bequest the non-par stock may include numerically the same number of shares in the same corporation and, at the time of split, have the same market value as the par value stock, if any; (2) It is a thesis contrary to the prevailing rule and the many cases cited in support of that rule; and (3) It is a proposition overemphasizing the importance of form in the implementation of the result at the expense of substance. In a stock split, whether of par value or non-par value stock, one purpose of the split is to divide the original holding in more units or multiples of the same value without disturbing the stockholder's original proportional participating interest in the corporation. ..."
"Respondents' argument overlooks the distinctive criterion for determining what a stock split actually is. It is essentially one of form and not of substance. ... Stock certificates are not stock, but merely evidences the ownership of the stockholder's proportional interest in the corporation." See also In re Jaynes' Will, 3 MisCal.2d 118 [154 N.Y.S.2d 89]; In re Maher's Will, 5 MisCal.2d 135 [164 N.Y.S.2d 671]; 7 A.L.R.2d 281, note 5; 96 Corpus Juris Secundum 1000, note 4; 28 Ruling Case Law 344, paragraph 339.
We are satisfied that the few cases to the contrary, such as Cuppett v. Neilly, 143 W.Va. 845 [105 S.E.2d 548], and Davis v. Price, 189 Tenn. 555 [226 S.W.2d 290], are not only contrary to the rule adopted by the majority of the states, but are also not as well analyzed as those expressing the majority rule. There is considerable indication that the courts *659 in the Cuppett and Davis cases were following the "stock dividend" rule, which is a distinctly different rule based on different reasoning than the majority rule relating to "stock split" cases. We find nothing in any of the California authorities in conflict with the views we have herein expressed.
The order appealed from is reversed. Costs of both parties will be borne by the estate of decedent.
Coughlin, J., concurred.
|
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0168
Jason Hoff,
Respondent,
vs.
Earl Surman, et al.,
Appellants.
Filed August 8, 2016
Affirmed
Bratvold, Judge
Hennepin County District Court
File No. 27-CV-15-391
Robert A. Correia, Paul W. Schroepfer, Robichaud & Alcántara, P.A., Minneapolis,
Minnesota (for respondent)
David Oskie, Oskie & Sofio, PLLC, St. Paul, Minnesota (for appellants)
Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and
Bratvold, Judge.
SYLLABUS
Statutory snow-and-ice immunity pursuant to Minn. Stat. § 466.03, subd. 4 (2014),
does not extend to bar claims based solely on allegations of negligent driving.
OPINION
BRATVOLD, Judge
Appellants Earl Surman and the Metropolitan Council appeal from the district
court’s denial of their summary-judgment motion, arguing that respondent Jason Hoff’s
claims should be barred by statutory snow-and-ice immunity. Although the Minnesota
Municipal Tort Liability Act covers the Metropolitan Council and Surman as a
governmental agency and its employee, we conclude that Minn. Stat. § 466.03, subd. 4,
does not bar tort claims based on negligent driving. Because respondent’s claim against
appellants is based solely on negligent driving, we affirm the district court’s decision.
FACTS
The parties agree on most of the relevant facts. On February 25, 2014, a Metro
Transit bus driven by Earl Surman rear-ended a van driven by respondent Jason Hoff.
Hoff’s van was traveling southeast on University Avenue in Minneapolis heading toward
the intersection with 10th Avenue Southeast. According to Hoff’s deposition, he slowed
down in the right lane, preparing to turn, when he saw a bicyclist traveling parallel to him
in the pedestrian area of a barricaded construction zone to his right. Hoff stopped to allow
the bicyclist to cross. At that point, the bus driven by Surman hit Hoff’s van, causing the
van to move forward five to ten feet.
Hoff sued Surman and the Metropolitan Council as Surman’s employer for personal
injuries and related damages. Hoff’s complaint alleged that Surman’s negligence, and
specifically his “failure to keep a proper lookout, failure to keep proper distance, failure to
stop, and failure to control his vehicle caused the accident and [Hoff’s] injuries.” Hoff did
not allege that the Metropolitan Council was responsible for maintaining the road on which
the accident happened.
Appellants filed a joint answer, raising multiple affirmative defenses, including
immunity under Minn. Stat. § 466.03, subd. 4. Appellants then sought summary judgment,
maintaining that Hoff’s complaint must be dismissed because the defendants “are protected
2
by statutory ‘snow and ice’ immunity, common law official immunity and vicarious official
immunity.”
During summary-judgment proceedings, the parties disagreed somewhat about the
snow and ice conditions at the time of the accident. Surman testified in his deposition that
the accident occurred “on a very hard-packed section of ice,” as follows:
From my vantage point it looked like the van was beyond the
bike and that he was going to turn in front of the bike without
hesitation. When I left the intersection I was on good pavement
but when I started to go by the [construction] scaffolding, I had
traveled onto pure ice. So when the van stopped abruptly, I hit
the brakes. But I started to slide on the ice and didn’t stop in
time.
Appellants submitted Surman’s affidavit and attached photos of the icy “shiny street
surface” immediately following the accident. Appellants also submitted an affidavit from
a Metro Transit safety specialist responsible for investigating the accident, containing his
professional opinion that icy roads and high pedestrian traffic “combined to create a
particularly complex driving environment.” The specialist concluded that the “icy road
conditions clearly were a factor in causing this accident.” Appellants also relied on a Metro
Transit Police incident report that concluded “[t]he bus driver was going slow but when he
applied the brakes the bus slid on the icy road and rear ended the vehicle in front of him.”
Appellants additionally submitted documentation of the weather records from the date of
the accident.
Hoff testified in his deposition that there were “icy conditions” on the day of the
accident, but he insists that he “was able to stop where [he] was at.” He also agreed that it
3
was very cold and that “there were icy areas all over the Twin Cities.” In short, it is
undisputed that the relevant stretch of road was icy on the day of the collision.
After a hearing, the district court denied appellants’ joint motion for summary
judgment, concluding that they were not entitled to official immunity or to statutory snow-
and-ice immunity. Relying on the language of the relevant statute and related caselaw, the
district court concluded that “Metropolitan Council’s broad interpretation extending
immunity to any municipal user of sidewalks and roadways is inconsistent with the duty
of maintenance that underlies the entire snow and ice immunity section. It is also
inconsistent with the principle that immunity granted by statute should be narrowly
construed.”
Appellants challenge the district court’s denial of their summary-judgment motion,
arguing that the district court erred in concluding that Hoff’s claims are not barred by snow-
and-ice immunity. They do not raise the issue of official immunity on appeal.
ISSUE
Did the district court err in its determination that statutory snow-and-ice immunity
does not bar respondent Hoff’s claims against appellants Surman and Metropolitan
Council?
ANALYSIS
Whether government entities and public officials are protected by immunity is a
legal question that this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn.
1996). The party asserting immunity as a defense has the burden to demonstrate facts
showing that it is entitled to immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn.
4
1997). On a motion for summary judgment, “[j]udgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that either
party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. On appeal from
summary judgment, this court reviews whether any genuine issues of material fact remain
and “whether the district court erred in its application of the law.” Dahlin v. Kroening, 796
N.W.2d 503, 504 (Minn. 2011); see Minn. R. Civ. P. 56.03. We review the evidence in
the light most favorable to the nonmoving party. Gleason v. Metro. Council Transit
Operations, 582 N.W.2d 216, 217 (Minn. 1998).
“While denial of a motion for summary judgment is not ordinarily appealable, an
exception to this rule exists when the denial of summary judgment is based on rejection of
a statutory or official immunity defense.” Anderson v. Anoka Hennepin Indep. Sch. Dist.
11, 678 N.W.2d 651, 655 (Minn. 2004). This is because “immunity from suit is effectively
lost if a case is erroneously permitted to go to trial.” Gleason, 582 N.W.2d at 218.
Municipal immunity from suit was once part of our common law, i.e., “sovereign
immunity,” and is now limited by statute. In 1963, the legislature “generally abolished
sovereign immunity for political subdivisions of the state” when it passed the Minnesota
Municipal Tort Liability Act, now codified at Minn. Stat. §§ 466.01-.15 (2014). In re Heirs
of Jones, 419 N.W.2d 839, 841 (Minn. App. 1988); see Doyle v. City of Roseville, 524
N.W.2d 461, 462–63 (Minn. 1994). Section 466.02 provides that municipalities are liable
for the torts of their officers, employees, and agents acting within the scope of employment.
5
Section 466.03, however, carves out some exceptions to this general rule
establishing municipal liability, creating immunity in specific instances. See Minn. Stat.
§ 466.03 (listing exceptions). One exception confers immunity for “[a]ny claim based on
snow or ice conditions on any highway or public sidewalk” except “when the condition is
affirmatively caused by the negligent acts of the municipality.” Id., subd. 4(a).
Statutory grants of immunity are narrowly construed. See Angell v. Hennepin Cty.
Reg’l Rail Auth., 578 N.W.2d 343, 346 (Minn. 1998) (noting that the supreme court has
consistently interpreted another immunity exception in the same statute narrowly). “[T]he
goal of all statutory interpretation is to ascertain and effectuate the intention of the
legislature.” Christianson v. Henke, 831 N.W.2d 532, 536 (Minn. 2013) (quotation
omitted). “The first step in statutory interpretation is to “determine whether the statute’s
language, on its face, is ambiguous.” Id. (quotation omitted).
Appellants argue that the statute is unambiguous and they are entitled to statutory
immunity because ice on the roadway was a causal factor in the accident. Appellants point
out that “any” is used throughout Minn. Stat. § 466.03, including in subdivision 4, and
signals a broad exception that is “without limit” and of wide application. Appellants quote
the statute and argue “[t]hat snow and ice immunity applies to ‘any claim based on snow
or ice conditions on any highway’ is simply inescapable.”
Hoff agrees with appellants that the Minnesota Municipal Tort Liability Act covers
appellants as a governmental entity and its employee. Hoff argues, however, that his claim
is not “based on snow or ice conditions” but rather on “Surman’s failure to keep a proper
lookout, failure to keep proper distance, failure to stop, and failure to control his vehicle.”
6
He contends that “[s]now and ice immunity has been exclusively applied to municipalities
responsible for maintaining public roadways.”
The district court denied summary judgment after determining that snow-and-ice
immunity is “directed at municipalities in charge of maintaining roadways” and that Hoff’s
claim is based on negligent driving. The district court appeared to rely on Minnesota’s
common law, which has long provided that a municipality has the duty to maintain public
roads and sidewalks in a safe condition for travel. See Loewe v. City of Le Sueur, 277 Minn.
94, 97–98, 151 N.W.2d 777, 780 (1967) (citing Callahan v. City of Virginia, 230 Minn.
55, 58, 40 N.W.2d 841, 842–43 (1950)). We note that this duty existed before and after the
abolition of sovereign immunity. See Doyle, 524 N.W.2d at 462–63.
We agree with the district court that the snow-and ice-immunity under Minn. Stat.
§ 466.03, subd. 4, does not extend to bar claims based solely on allegations of negligent
driving for three reasons. First, subdivision 4’s language must be narrowly construed.
Section 466.03, subd. 4, unambiguously restricts the snow-and-ice exception to claims that
are “based on snow or ice conditions.” No statutory language extends immunity to claims
based on negligent driving. In this case, Hoff’s claims against appellants are solely based
on negligent driving, even though snow and ice conditions were a factor.
Second, this court must give effect to all of the provisions in subdivision 4. See
Minn. Stat. § 645.16 (2014) (“Every law shall be construed, if possible, to give effect to all
its provisions.”); see also 328 Barry Ave., LLC v. Nolan Props. Grp., LLC, 871 N.W.2d
745, 749 (Minn. 2015) (“We interpret a statute as a whole so as to harmonize and give
effect to all its parts, and where possible, no word, phrase, or sentence will be held
7
superfluous, void, or insignificant.” (quotation omitted)). Subdivision 4 includes
exceptions that relate to a municipality’s duty to maintain public roads and sidewalks in a
safe condition for travel.1 These exceptions do not make sense if subdivision 4 is broadly
construed to provide immunity for municipal users of sidewalks and municipal drivers on
roadways where the municipality is not engaged in maintenance.
Third, a narrow construction of snow-and-ice immunity in section 466.03,
subdivision 4(a), is supported by Minnesota caselaw. No Minnesota case has applied snow-
and-ice immunity to claims based on the negligent driving of a municipal agent. To the
contrary, Minnesota cases considering the application of snow-and-ice immunity have
consistently involved claims based on snow and ice conditions against public entities with
the duty to maintain public sidewalks or highways. See, e.g., In re Alexandria Accident of
Feb. 8, 1994, 561 N.W.2d 543, 549 (Minn. App. 1997) (holding that snow-and-ice
immunity “protects government entities from liability for damages caused by the natural
consequences of snow plowing when the plowing was done pursuant to established snow-
removal policies and the claimants have shown no willful acts or malfeasance”), review
denied (Minn. June 26, 1997); Berg v. City of St. Paul, 414 N.W.2d 204, 208 (Minn. App.
1987) (holding that city was entitled to statutory snow-and-ice immunity for road
1
Subdivision 4(a) provides there is no immunity for a claim based on snow and ice
conditions that are either (i) affirmatively caused by the negligent acts of the municipality,
or (ii) found on public roads or sidewalks that abut publicly owned buildings or parking
lots. Subdivision 4(b) provides that there is no immunity for a claim based on snow and ice
conditions on abutting sidewalks when a municipality owns a building or parking lot in
another municipality. But part (b) also explicitly states that the municipality in which the
building or parking lot is located has immunity. Minn. Stat. § 466.03, subd. 4.
8
conditions it did not affirmatively cause); Jones, 419 N.W.2d at 840 (recognizing immunity
for county under snow-and-ice exception and barring plaintiff’s claim that “improper
maintenance created a dangerous and slippery condition which caused [a] fatal accident”).
In fact, one case explicitly refers to the snow-and-ice exception as “the exception for
removal of ice and snow.” See Hennes v. Patterson, 443 N.W.2d 198, 201 (Minn. App.
1989), review denied (Minn. Sept. 15, 1989) (emphasis added).
In other words, appellants’ broad construction of snow-and-ice immunity is novel
and unsupported in caselaw. Appellants claim that their position rests on Koen v. Tschida,
493 N.W.2d 126 (Minn. App. 1992), review denied (Minn. Jan. 28, 1993), in which the
plaintiffs sought to circumvent snow-and-ice immunity by generalizing their negligence
claims. The plaintiffs argued
that the county was negligent in: (1) failing to cut down or trim
pine trees adjacent to the highway which caused ice to form
more readily on this stretch of [the road]; (2) failing to properly
salt, sand, and maintain the highway; (3) failing to warn
motorists that this particular road had a tendency to be more
icy and slippery; and (4) posting a speed limit which was too
high.
Id. at 127. This court rejected the argument, affirming summary judgment for the
defendants in a passage that appellants now cite:
Although appellants attempt to focus on other alleged
causes of the accident, we conclude that all their claims are
based on the fact the highway was icy and therefore, under the
statute the county is entitled to immunity. We agree with the
New Jersey court which concluded in interpreting a similar
weather immunity statute: “when weather is the true culprit,
the government is immune.”
9
Here, the trial court specifically found that “the slipperiness of
the roadway was one of the factors contributing to the
collision.” While other alleged negligent acts may have
contributed to the accident, Minn. Stat. § 466.03, subd. 4 does
not condition immunity on the snow or ice condition being the
sole basis for that claim.
To remove the immunity granted by the statute merely because
a party alleges causal factors other than the weather in its claim
would render the statute ineffective.
Id. at 128 (citations omitted).
To support their position, appellants read the language in Koen out of context. They
focus on the proposition that “when weather is the true culprit, the government is immune,”
id. (quotation omitted), arguing that because icy roads caused Hoff’s crash, snow-and-ice
immunity should apply. In Koen, the claim against the county was based on a multiple-
vehicle collision on an icy road that the county was responsible for maintaining; plaintiffs
did not claim that a county driver affirmatively caused the collision. Id. Koen is consistent
with the plain language of the immunity statute because the plaintiffs sued the county for
negligence in maintaining the highway, which is conduct the statute protects.
In contrast, Hoff’s claim is based on Surman’s negligent driving, which is conduct
the statute does not protect. The crucial distinction between the county in Koen and the
appellants here is that appellants are not responsible for maintaining the road on which the
accident took place. While there is no dispute that the road was icy, Hoff does not allege—
nor could he—that appellants were negligent for failing to remove snow and ice.
Appellants also rely on an unpublished decision to argue that this court has applied
snow-and-ice immunity to protect a municipality that was not maintaining public roads at
10
the time of the accident. See Jenkins v. Indep. Sch. Dist. No. 709, No. C1-97-1456, 1998
WL 15908, at *2 (Minn. App. Jan. 20, 1998). Even assuming Jenkins supports appellants’
argument, it is unpublished and not precedential. See Minn. Stat. § 480A.08, subd. 3 (2014)
(“Unpublished opinions of the Court of Appeals are not precedential.”).
In summary, Minnesota caselaw supports the plain meaning of section 466.03, subd.
4(a), which restricts snow-and-ice immunity to claims based on snow and ice conditions
against a municipality that is responsible for the maintenance of a public road or sidewalk.
Because Hoff’s claim is based solely on negligent driving and not based on maintaining
snow and ice conditions, the district court correctly denied summary judgment.
DECISION
Because we conclude that snow-and-ice immunity does not apply to negligent-
driving claims against a municipal agent merely because snow or ice may have been a
factor in the accident, we affirm the district court’s denial of appellants’ summary-
judgment motion.
Affirmed.
11
|
823 F.2d 735
Noelia RODRIQUEZ, Administratrix of the Estate of Carlos A.Rodriquez and Administratrix Ad Prosequendum ofCarlos A. Rodriquez, on behalf of his heirs- at-lawv.The UNITED STATES of America, Days Flying Service, Inc.,Liberty Aviation, Inc. & Manuel Diaz.Joyce THOMAS, Administratrix of the Estate of Haynesly S. Thomasv.UNITED STATES of America, Liberty Aviation, Inc., and Manuel Diaz,v.Noelia RODRIQUEZ, Administratrix of the Estate of Carlos A.Rodriquez, and Administratrix Ad Prosequendum ofCarlos A. Rodriquez, on behalf of hisheirs- at-law.Appeal of UNITED STATES of America, Appellant in No. 86-5099.Appeal of Noelia RODRIQUEZ and Joyce Thomas, Appellants in
No. 86-5147.
Nos. 86-5099, 86-5147.
United States Court of Appeals,Third Circuit.
Argued Feb. 20, 1987.Decided July 8, 1987.
Richard K. Willard, Asst. Atty. Gen., Thomas W. Greelish, U.S. Atty., Mary Catherine Cuff, Asst. U.S. Atty., Gary W. Allen (argued), Director, Torts Branch, Civ. Div., Dennis F. Carroll, Trial Atty., U.S. Dept. of Justice, Washington, D.C., for U.S.
Alan Y. Medvin, Medvin & Elberg, Newark, N.J., for Noelia Rodriquez.
Francis G. Fleming, Steven R. Pounian (argued), Kreindler and Kreindler, New York City, for Joyce Thomas.
William J. Brennan, III, Smith, Stratton, Wise, Heher & Brennan, Princeton, N.J., for Mario Diaz.
Before SLOVITER, STAPLETON, Circuit Judges, and ROTH*, District judge.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
1
On a clear summer day, approximately seven private airplanes were practicing landings and take-offs at a New Jersey airport. After another plane received permission from the control tower to join the airport traffic pattern, it collided in midair with one of the planes already in the pattern. The two pilots in the incoming plane were killed. The ensuing litigation implicates the obligation of pilots operating under visual flight rules to see and avoid other aircraft.
2
This appeal arises from the district court's finding that the air traffic controller's negligence was the sole cause of the collision. The district court awarded the survivors of the two pilots killed in the collision a total of $2,786,634 in damages from the United States. The appeal raises three issues. First, is the district court's finding that negligence on the part of the air traffic controller was a cause of the collision clearly erroneous? Second, are its findings that the United States failed to prove negligence on the part of the pilots in each of the two planes in the collision clearly erroneous? Third, did the district court err in determining the amount of damages?
I.
Facts
3
Many of the facts concerning the circumstances leading up to the collision are undisputed. On the morning of August 29, 1982, Carlos Rodriquez and Haynesly Thomas left Teterboro Airport, approximately ten miles east of Caldwell Airport (Caldwell), flying a Cessna 172M aircraft, call number 98998V (hereafter 98V). Both Rodriquez and Thomas were certified pilots, and the purpose of the flight was for Rodriquez, a certified flight instructor, to administer to Thomas a biannual flight review required by Federal Aviation Administration (FAA) regulations. On the same morning, Mario Diaz, a student pilot certified for solo flight, was practicing touch and go landings at Caldwell.1 Diaz was flying a Cessna 150M aircraft, call number N912IU (hereafter 21U), leased by Liberty Aviation, Inc., Diaz's flight instructor.
4
Weather conditions at Caldwell were clear with visibility of 25 miles, and air traffic was flying under visual flight rules (VFR).2 Traffic was using runway 22, which runs south-southwest at a heading of 220 degrees, and was flying a right hand traffic pattern.3 On duty in Caldwell's air traffic control tower was Michael Finneran, an FAA certified air traffic controller, who was being observed by a trainee. Communications between the tower and Caldwell traffic are recorded. The recording of communications in the time period surrounding the collision was transcribed as part of the FAA package prepared after the collision.
5
At 1317:40, Greenwich Mean Time,4 21U was cleared by Caldwell tower to execute its third touch and go landing. 21U did so and, after takeoff, climbed to the specified altitude and executed a 90 degree turn onto the crosswind leg. 21U was sequenced in the traffic pattern behind another Cessna (737), which had been cleared for takeoff at 1317:37. Ahead of 737 was another Cessna (4TF). Behind 21U was another Cessna (40G). 737, 4TF and 40G were all making touch and go landings in the traffic pattern.
6
98V first reported to Caldwell tower at 1319:19 when it entered Caldwell's traffic control area inbound to Caldwell and five miles east. The tower instructed 98V to execute an overhead approach to the airport. It was standard for aircraft coming from the east to cross over the tower on a course perpendicular to runway 22, descend to pattern altitude and enter the traffic pattern on the downwind leg by executing a 90 degree turn to the right. A similar overhead entry was successfully performed by another Cessna, call number 3729F, which began its approach at 1319:01 and was cleared to land and exit the traffic pattern at 1321:14.
7
Many of the additional facts surrounding the midair collision were disputed. The district court made findings as to the positions of various planes at relevant times on the basis of the FAA transcript of controller communications, testimony of eyewitness pilots including Diaz, and testimony of experts who attempted to reconstruct the aircraft positions. These findings are not challenged on appeal as clearly erroneous, and will be used throughout.
8
At 1321:30, 98V reported overhead the tower prefatory to beginning its approach and engaged in the following colloquy with the air traffic controller:
9
1321:32 LC Nine eight victor roger, do you have the traffic coming up on midfield?
10
1321:35 98V Roger sir, affirmative.
11
1321:36 LC OK ... Can you follow that traffic?
12
1321:39 98V OK ... Nine eight victor, request touch and goes, over.
13
1321:41 LC Roger, closed traffic's approved.
14
App. at 2441.5 At this point, 737 had just passed midfield. Immediately prior to 98V reporting overhead, however, at 1321:16, 737 had reported midfield and had identified itself to the controller by rocking his wings as instructed at 1321:20. The only other plane on the downwind in a position prior to midfield was 21U which at 1321:30 was completing the crosswind leg and turning onto the downwind. Of the planes surrounding 21U and 737, at 1321:30, 40G was on the crosswind leg while 4TF was near completion of the downwind leg.
15
Subsequently, 98V adjusted its heading to enter the pattern behind 737. As it began its entry to the pattern, it was at or slightly above, by a maximum of 200 feet, pattern altitude. Following the course adjustment, the trainee in the Caldwell tower pointed out to the controller the dangerous course that 98V was on with respect to 21U. The controller then engaged in the following exchange with 98V:
16
1321:44 LC Nine eight victor, roger start a right turn now sir.
17
1321:48 98V Nine eight victor, roger.
18
App. at 2441. The tone of the controller's voice indicated no urgency. A right turn was already contemplated by 98V as part of the standard overhead entry. An immediate right turn would have placed 98V inside of 737, creating a potentially dangerous situation when 737 turned from the downwind to the base leg. Whether for these or other reasons, 98V did not execute an immediate right turn.
19
After the controller instructed 98V to turn right at 1321:44, he inexplicably looked away from 98V, despite, as he later testified, having concluded that 98V was on a collision course with 21U. When he looked back, he gave the following instruction supposedly addressed to 21U:
20
1321:50 LC On the downwind, watch the traffic coming in from overhead sir!
21
App. at 2241. At the time of this instruction there were at least three planes on the downwind, 21U approaching midfield, 737 approaching the turn to the base leg, and 40G having just turned off the crosswind.
22
The controller's warning did not avert the collision. At 1322:00,6 98V collided with 21U at some point on the downwind leg immediately before midfield. 98V struck 21U from approximately the 4:00 o'clock position with respect to 21U, that is, from behind and to the right. The left wing tip of 98V struck the right door of 21U. 98V lost control and crashed, killing its two occupants, Rodriquez and Thomas. 21U was able to land on Caldwell's other runway.
23
The survivors of the deceased pilots brought suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-2680, alleging that the collision was caused by the air traffic controller's negligence. In addition, the survivors named as defendants Mario Diaz, the pilot of 21U, the flight school, Liberty Aviation, Inc., that had trained Diaz, and Days Flying Service, Inc., alleging that their negligence had also caused the collision.7 Diaz and the United States cross-claimed against each other.
24
After a bench trial, the district court found in favor of the survivors and Diaz, concluding that the negligence of the air traffic controller was the sole cause of the midair collision. The court awarded the survivors total damages of $2,786,634 to be paid by the United States. The United States appeals.8 We have jurisdiction under 28 U.S.C. Sec. 1291.
II.
The Applicable Law
25
Under the FTCA, the state law that would apply to determine the liability of "a private individual under like circumstances" applies to determine the liability of the government. 28 U.S.C. Sec. 2674. Here, the applicable law is that of New Jersey, the place of the collision.
26
The duties of pilots and air traffic controllers are prescribed by federal law pursuant to the Federal Aviation Act, 49 U.S.C. Secs. 1301-1557. Under 49 U.S.C. Secs. 106(g), 1348(c), the Administrator of the Federal Aviation Administration (FAA) is authorized to promulgate air traffic rules and regulations. The Administrator has exercised this authority by promulgating the Federal Aviation Regulations (FAR's) and by establishing the procedures to be followed by air traffic controllers. The FAR's have the force and effect of law. See In Re N-500L Cases, 691 F.2d 15, 28 (1st Cir.1982); Tilley v. United States, 375 F.2d 678, 680 (4th Cir.1967). The FAR's in turn require pilots to know and follow the Airman's Information Manual prepared by the FAA and FAA Advisory Circulars. 14 C.F.R. Sec. 61.105(a) (1987).
27
Under New Jersey law, violation of the FAR's or other regulations does not require a finding of negligence as a matter of law. Rather, such violations are treated as evidence that must be considered in determining negligence. See Horbal v. McNeil, 66 N.J. 99, 103-04, 328 A.2d 604, 606-07 (1974). Compare Gatenby v. Altoona Aviation Corp., 407 F.2d 443, 446-47 (3d Cir.1969) (under Pennsylvania law violation of FAA regulations is negligence as a matter of law).
28
This case comes before us following a bench trial. Our review of the district court's finding of facts, therefore, is under the "clearly erroneous" standard. Fed.R.Civ.P. 52(a). See generally Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).
29
With these legal principles in mind, we proceed to consider the relevant regulations, the district court's findings, and the evidence.
III.
Liability
A.
Negligence of The Air Traffic Controller
30
The district court found that the negligence of the air traffic controller was a proximate cause of the collision. Although on appeal the government argues primarily that the negligence of the 98V pilots precludes recovery by plaintiffs, it also challenges the finding that its controller was negligent.
31
The district court concluded that the air traffic controller was negligent in a number of respects:
32
In summary, the negligence of the controller consisted of his failure to comply with the applicable procedures, instructions and advisories set forth in the Federal Aviation Administration Air Traffic Control Handbook, 7110.65C, failure to provide any warning, including traffic and safety advisories concerning 21 Uniform to 98 Victor; failure to provide adequate warning including traffic and safety advisories concerning 98 Victor to 21 Uniform; carelessly directing 98 Victor to follow 737, if in fact it was 21 Uniform that he intended be followed; improperly instructing 98 Victor to start a right turn now, if that was intended to mean an emergency situation then observed by the controller; failure to issue any warning to 98 Victor and an inadequate warning to 21 Uniform despite having the time and opportunity to prevent the collision.
33
App. at 2416-17.
34
The air traffic controller's duties are set forth in the Air Traffic Control Handbook (Handbook).9 The Handbook requires controllers to "[e]stablish the sequence of arriving and departing aircraft by requiring them to adjust flight or ground operation as necessary to achieve proper spacing." Handbook p 1100, App. at 2456. Pursuant to this duty, the Caldwell controller instructed 98V at 1321:32 to follow the "traffic coming up on midfield." App. at 2441. The controller testified that he intended by this instruction to have 98V follow 21U. Plaintiffs argued in the district court that the controller intended 98V to follow 737. The district court stated that there was evidence from which it could conclude that the controller had lost track of or forgotten about 21U but found that even if the controller intended 98V to follow 21U, the controller's instruction was negligent because "his instruction did not convey that intention." App. at 2411. At the time of the instruction, 21U was just turning onto the downwind from the crosswind and no other aircraft was closer to midfield than 737. The controller's failure to identify more specifically the plane 98V was to follow was negligent.
35
The Handbook also requires that controllers "[g]ive first priority to ... issuing safety advisories as required in this handbook." Handbook p 22, App. at 2469. The Handbook requires that a controller:Immediately issue/initiate an advisory to an aircraft if you are aware of another aircraft at an altitude which you believe places them in unsafe proximity.
36
Handbook p 33(b), App. at 2472. Indeed, the issuance of safety advisories is made a "first priority ... once the controller observes and recognizes a situation of unsafe aircraft proximity to terrain, obstacles, or uncontrolled aircraft." Handbook p 33 n. 1, App. at 2471; see also FAA Advisory Circular 90-48B p 4(e)(3)(v) (Sep. 5, 1980), App. at 2502 ("controllers' primary duties" include "issuing safety advisories when aware of safety conflicts").
37
Both the controller and the trainee observing the controller testified that they were aware of the collision course of 98V and 21U prior to the instruction to turn right issued to 98V at 1321:44, sixteen seconds prior to the collision. App. at 197-99, 200-02, 1708. Under these circumstances, the controller was under a duty imposed by the Handbook to issue a safety advisory to 98V.
38
The district court found that the instruction issued was inadequate. The controller merely said "98 Victor, roger start a right turn now." The district court found that the tone of the controller's voice as reflected by the tape itself reflected no sense of urgency whatsoever, nor did the content. The Handbook provides controllers with language to compel immediate action. Specifically, the Handbook directs controllers to "[u]se the word 'immediately' ... when expeditious compliance is required to avoid an imminent situation," and to "[u]se the word 'expedite' ... when prompt compliance is required to avoid the development of an imminent situation." Handbook paragraphs 29(a), (b), App. at 2470. In addition, the Handbook contains an example of the preferred form for safety advisories:
Phraseology:
39
(Identification) TRAFFIC ALERT,
ADVISE YOU TURN LEFT/RIGHT
40
(specific heading, if appropriate),
41
and/or
CLIMB/DESCEND
42
(specific altitude, if appropriate)
43
IMMEDIATELY.
44
Handbook p 33(b), App. at 2472.
45
Not only did the controller fail to use any of the terms generally understood as compelling immediate action, but he also failed to advise 98V of the reason for the right turn. The Handbook instructs that when directing expeditious or prompt compliance, the controller should "if time permits, include the reason for this action." Handbook p 29(c), App. at 2470. There is no contention that time would not have permitted the controller to inform 98V that the reason for the right turn was traffic approaching on the downwind from the left, which would have conveyed to 98V the need to take the immediate right turn intended by the controller.
46
Because the controller's initial safety advisory was not in conformity with the Handbook and was insufficient to convey to 98V the need for immediate action recognized by the controller, the controller was negligent.
47
Moreover, even after the controller became aware at 1321:50 that his first advisory had not been complied with and a collision between 98V and 21U was imminent, the warning issued approximately ten seconds prior to collision, when either pilot retained the ability to take some action to avoid collision, was insufficient to notify either 98V or 21U that it was directed to them. The controller's advisory, which was now in a tone indicating urgency, was "On the downwind, watch the traffic coming in from overhead sir!" 98V was not on the downwind and so had no reason to respond. 21U was only one of at least three aircraft on the downwind and had no reason to believe the instruction was directed to it rather than one of the other two aircraft. Thus, this instruction represented a negligent performance by the controller of his duty to issue safety advisories. Hence, the district court's finding that the controller was negligent was not clearly erroneous.
B.
Negligence of The Pilots of 98V
48
As a defense, the United States pleaded and sought to prove that Thomas, who was at the controls of 98V, and Rodriquez, who was reviewing Thomas' performance, were contributorily negligent, thereby barring or at least reducing plaintiffs' recovery under New Jersey's comparative negligence scheme. The district court found that although the 98V pilots were in a position which placed 21U "directly in their path for most of the critical time," App. at 2419, they were not negligent and the controller's negligence was the sole and proximate cause of the accident. The government argues that the district court's findings are clearly erroneous because the 98V pilots were not relieved of their duty to "see and avoid" and were negligent in failing to do so.
49
The duty of vigilance imposed on aircraft pilots is set out in FAA regulations:
50
When weather conditions permit, regardless of whether an operation is conducted under [IFR] or [VFR], vigilance shall be maintained by each person operating an aircraft so as to see and avoid other aircraft in compliance with this section.
51
14 C.F.R. Sec. 91.67(a) (1987). As the district court recognized, the pilots of 98V remained subject to this duty to see and avoid even when operating in compliance with the Caldwell controller's instructions. The court stated, "It is conceded and recognized by the Court that notwithstanding the instructions, advice or even the negligence of the controller, the pilots are not relieved of their independent obligation to operate their respective aircraft safely, make the necessary observations and avoid other aircraft." App. at 2417. See Airman's Information Manual p 407(a)(1) (May 13, 1982), App. at 2496 (hereafter AIM) (even when a pilot is under control of a radar facility, the pilot is responsible to see and avoid other traffic when meteorological conditions permit).
52
In conjunction with the duty of vigilance, pilots are governed by right of way rules which prescribe specific actions to avoid observed aircraft. See 14 C.F.R. Sec. 91.67(c)-(f) (1987). Subsections of the regulation upon which the government relies provide that "an overtaking aircraft shall alter course to the right to pass well clear" of the overtaken aircraft, and that when "two or more aircraft are approaching an airport for the purpose of landing, the aircraft at the lower altitude has the right of way." 14 C.F.R. Sec. 91.67(e), (f) (1987). Here, 98V was overtaking 21U which was at a lower altitude. Therefore, the fact of the collision itself suggests that 98V was not following its obligation to see and avoid by yielding to 21U.
53
The district court, however, despite its acknowledgement that the pilots of 98V "were in a position which placed 21 Uniform directly in their path for most of the critical time," App. at 2419, declined to find that the fact of the collision gave rise to an inference of negligence. Instead, despite the absence of any evidence at all on the issue, the court stated: "The Court reasonably assumes that two experienced pilots would be and were in fact looking ahead." App. at 2419 (emphasis supplied). It then reasoned, "It may well be that they were looking and did not see or could not." App. at 2419. The district court imposed on the government the burden of ruling out the "reasonable or likely possibilit[y]" that various distractions, rather than the pilots' negligence, were the cause of 98V's failure to see 21U, App. at 2422, and held that the government failed to meet this burden. The government argues that the imposition of this burden on it was erroneous as a matter of law. We need not decide that issue if review of the evidence convinces us that the district court's finding of no negligence on the part of the pilots of 98V is clearly erroneous even under the burden of proof imposed by that court.
54
There was evidence at trial that to comply with the duty to see and avoid, pilots should visually scan an area 60 degrees to the left and right of center and 10 degrees up and down from the flight path. App. at 2433-34. Based on the district court's findings as to the positions of the aircraft, 21U was within this field of vision of 98V at all times after 98V reported overhead at 1321:30. The government's visibility expert, James Harris, testified that were the pilots of 98V vigilantly scanning, the probability of their detecting 21U within 10 seconds of the collision was 100 percent. App. at 2173-74, 2509. No direct testimony introduced by plaintiffs countered this conclusion.
55
Instead, plaintiffs introduced evidence suggesting reasons why the 98V pilots may have been distracted from their observations and suggesting that they might have been looking but were unable to see 21U. The district court appeared to find that the 98V pilots could have been distracted by the controller's directions based on the cross-examination of Harris in which he conceded that while a pilot's search is thus localized, "his probability of detecting other aircraft has been reduced or even eliminated." App. at 2220. However, there is no basis in the record to conclude that the 98V pilots were distracted, and Harris testified that his analysis of the 100% probability of detection by 98V, were the pilots scanning as required, took into account the possibility of distraction due to controller instructions. App. at 2221-22.
56
The other suggested distraction which the district court relied on was the possibility that the pilots of 98V may have been performing a pre-landing checklist. App. at 2420-21. Again plaintiffs introduced no evidence that it would have been appropriate for the pilots to have ceased scanning to perform a checklist. The only evidence on which the district court could have relied was the cross-examination of Harris in which he stated that his calculation of the probability of sighting 21U as 100% did not take account of such a distraction. App. at 2261. However, Harris testified that it would not be good practice to execute such a checklist when approaching the downwind leg of a crowded airport traffic pattern. App. at 2263-64. In fact, he said, "I would say that would be a very bad thing for a pilot to do from my experience with mid air collisions." App. at 2264. Although the district court stated that there were "indications that it would not be inappropriate or negligent for pilots, particularly in this type of a pattern, to be engaging in some landing checklist," App. at 2420-21, plaintiffs have directed us to no evidence, nor have we found any, that performance of a checklist in lieu of visual scanning would not be negligent.
57
With respect to the other basis for the district court's finding that the 98V pilots were not negligent despite the fact of the collision, plaintiffs' pilot expert, Paul Bray, testified that the ground surrounding Caldwell Airport would provide a background of buildings against which aircraft would be "very difficult to see" when observed from above. App. at 716-17. Bray did not relate this testimony to the positions of the planes in this case. In contrast, the government expert, Harris, testified that if 98V was at 200 feet above pattern altitude, as the district court found, 98V would look down at 21U at only a 2 degree angle at which angle 21U would continue to be viewed against a "hazy light, sort of scattered light clouded terrain," which would not appreciatively decrease the probability of observation. App. at 2265.10 On the basis of this evidence, the district court found that the 98V pilots were "not negligent" in "not see[ing] other aircraft in their field of vision" because of "factors [such as] background which make the aircraft difficult to see, such as the ground in this case." App. at 2420. Since Harris' testimony assumed the planes to be precisely where the district court placed them and he testified 21U would be in sight, and Bray did not testify to the contrary using those positions, there is no evidence to support the district court's finding that background affected the observations of 98V.
58
In short, the government introduced evidence that if the pilots of 98V were adequately performing their duty to scan, under the VFR conditions existing at the time of the collision and with the aircraft positions as determined by the district court, they should have observed 21U. Had they done so, of course they would have been under the obligation to avoid the collision. There is no evidence other than speculation as to the activities of the pilots of 98V to counter this evidence. There is no basis in the record to support the district court's finding that the pilots were distracted or could not see 21U had they looked. Therefore, the court's finding that the pilots of 98V were not negligent in performing their duty of vigilance to see and avoid 21U was clearly erroneous.
C.
Negligence of The Pilot of 21U
59
Diaz, the pilot of 21U, survived and testified at the trial. He was a defendant in the Rodriquez/Thomas action and in the government's cross-claim. The government argues that once Diaz knew of 98V's overhead entrance he should have broadened his scan to locate it and thereafter maintain sight of it.
60
The district court stated that Diaz's assumption that 98V had already entered the downwind leg was faulty and that therefore Diaz was negligent in failing to look specifically for 98V when Diaz entered on the downwind. App. at 2417. The court found, however, that although Diaz did not specifically seek out 98V, Diaz thereafter "engaged in accepted and recognized scanning and did not observe 98 Victor as a result" because it was approaching from behind at his four or five o'clock position. App. at 2418. Therefore, the court found that Diaz's negligence could not be considered to be the probable cause of the collision. The court also found that Diaz "may also have been at fault" in failing to respond to the warning issued at 1321:50 instructing traffic on the downwind to "watch the traffic coming in from overhead." App. at 2418. Again, the court found that Diaz's possible negligence was not the cause of the accident because the warning came less than 10 seconds before the accident and was so vague that it was "not reasonable to expect that in those few seconds, [ ]Diaz could have looked, located 98 Victor and taken appropriate evasive action. The warning was too little [too] vague and too late." App. at 2418. The court seems to have been ambivalent about Diaz's negligence, since it thereafter concluded that "Diaz either was not negligent or if he was negligent, his negligence did not cause or contribute to the happening of the accident." App at 2418.
61
Assuming that the court found that Diaz was negligent,11 we must decide whether the district court's finding of no causation is clearly erroneous. Under New Jersey law, where multiple negligent acts are alleged, if a negligent act "can fairly be regarded as sufficiently remote or insignificant in relation to the eventual accident then, in a legal sense, such fault does not constitute 'a cause of the accident.' " Brown v. United States Stove Co., 98 N.J. 155, 172, 484 A.2d 1234, 1243 (1984) (quoting Latta v. Caulfield, 79 N.J. 128, 133, 398 A.2d 91, 93 (1979)).
62
Diaz, although a student pilot, operated under the same duties applicable to the more experienced pilots of 98V. App. at 2316; see also Rudelson v. United States, 602 F.2d 1326, 1330 (9th Cir.1979). A pilot who is aware of an aircraft presenting a hazard has a continuing duty to maintain awareness of that aircraft. See, e.g., In re N-500L Cases, 691 F.2d at 32. This continuing duty may require a scan beyond the normal range including manipulation of the head and aircraft to eliminate blind spots caused by the aircraft. See, e.g., id.; Rudelson, 602 F.2d at 1330.
63
Here, however, there was no evidence that while on the downwind Diaz had any reason to believe that 98V presented a hazard to him and accordingly he had no duty to broaden his scan at that time. We construe the district court's opinion as containing the implicit finding that in light of Diaz's appropriate scanning while on the downwind, his initial failure to locate 98V was too remote to the cause of the accident to be considered a proximate cause thereof. We cannot call this clearly erroneous. In this connection we emphasize that a reviewing court may not reverse the finding of the district court "simply because it is convinced that it would have decided the case differently." Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).
64
With respect to the district court's finding that Diaz' failure to respond to the controller's last warning did not proximately cause the collision, the government points to testimony that a pilot may require as little as two seconds to take action to avoid a midair collision. App. at 1923-24. However, there was other evidence, which the district court credited, that a minimum response time of 10 seconds was necessary. App. at 2430 ("minimum of 10 seconds ... for a pilot to spot traffic, identify it, realize it's a collision threat, react, and have his aircraft respond"). In light of this evidence, and the vagueness of the instruction, again we cannot conclude that the district court's finding is clearly erroneous.
65
Thus, we affirm the district court's finding that neither of the two actions by Diaz alleged to be negligence was a proximate cause of the collision.
D.
Comparative Negligence
66
Under the New Jersey law applicable to this case, Thomas and Rodriquez, the pilots of 98V, may recover from the United States only if their negligence is not greater than the negligence of the Caldwell controller. See Van Horn v. William Blanchard Co., 88 N.J. 91, 438 A.2d 552 (1981).12
67
The government argues that pilots operating in VFR conditions who have been found to be negligent must, as a matter of law, be held to be more negligent than the air traffic controller providing negligent instructions. In support of this proposition, the government relies on numerous cases holding that "the primary responsibility for avoiding collision ... in VFR conditions is with the pilot." In re N-500L Cases, 691 F.2d at 28; see also, e.g., Murff v. United States, 785 F.2d 552, 554 (5th Cir.) (per curiam), cert. denied, --- U.S. ----, 107 S.Ct. 95, 93 L.Ed.2d 46 (1986); Kack v. United States, 570 F.2d 754, 756 (8th Cir.1978); Tilley v. United States, 375 F.2d at 682-83; United States v. Miller, 303 F.2d 703, 710 (9th Cir.1962), cert. denied, 371 U.S. 955, 83 S.Ct. 507, 9 L.Ed.2d 502 (1963); United States v. Schultetus, 277 F.2d 322, 327 (5th Cir.), cert. denied, 364 U.S. 828, 81 S.Ct. 67, 5 L.Ed.2d 56 (1960).
68
We have previously rejected the position that a pilot's negligence in performing his duties must, as a matter of law, free the air traffic controller from liability. In Redhead v. United States, 686 F.2d 178 (3d Cir.1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1190, 75 L.Ed.2d 435 (1983), where we held, unlike this case, that the controller had not been negligent, we discussed the relationship between the negligence of the pilot and controller. We stated:
69
Both the pilot and the air traffic controller owe a duty of care to passengers in an airplane. Negligence by the pilot does not, in and of itself, absolve the government of liability. Each is responsible for the safe conduct of the aircraft and the safety of its passengers. Thus, there may be concurrent liability.
70
Id. at 182 (citations omitted). Although we recognized that the pilot bears "final authority" for aircraft operation and is to be held to "the highest degree of care," we also held that air traffic controllers could be held liable if "negligence on the part of such persons [has] a causal relationship to the happening of the accident." Id.
71
Redhead thus makes clear that where an accident occurs in a situation where both controllers and pilots are operating under imposed duties, both the degree of negligence in performing those duties and the extent to which the negligent performance of those duties causes the accident are questions of fact. Many of the cases cited by the government have taken this same position. See, e.g., Murff, 785 F.2d at 555 (Cessna maneuvering in crowded traffic area without landing lights, without reporting location and possibly without monitoring tower held more negligent for collision than controller who provided warning of Cessna to F-27); In re N-500L Cases, 691 F.2d at 28-32 (N-500L held more negligent than controller for collision with L-1011 where controller warned N-500L of L-1011 and N-500L observed L-1011 in time to avoid wake). Indeed, we believe it would be impossible to set out a rule of law holding either pilot or controller more responsible for a given occurrence save in those situations where there is no duty imposed on one or the other. Cf. Redhead, 686 F.2d at 182 ("nature and extent of the duty of due care is a question of law"). Where, as here, the 98V pilots and controller were operating under duties imposed by regulations and both were negligent in performing their respective duties, the relative responsibility for the collision is a matter of fact. We reject the government's argument that the pilot must be more negligent than the controller as a matter of law.
72
Since the district court erroneously concluded that the pilot of 98V was not negligent, it did not make findings as to comparative negligence. We must remand for such findings. On remand, the district court will also have to consider the extent to which negligence should be apportioned between Rodriquez and Thomas.
IV.
Damages
73
In assessing damages, the court took into consideration the age of each decedent at the time of death, his education, work experience and qualifications, and his life and work expectancy. Only two issues as to damages are presented on appeal. The government argues that the district court's increase in the calculation of Rodriquez's future earnings by 25% to reflect the probability that Rodriquez would have obtained future full-time employment as a commercial pilot is not supported by the evidence. It also argues that the awards to the Rodriquez and Thomas families of $500,000 to reflect the loss of advice, guidance and counsel of the two decedents is excessive as a matter of law.
A.
Enhancement of Rodriquez's Lost Earnings
74
The district court enhanced the damages attributable to the death of Mr. Rodriquez because the court concluded that Rodriquez would fulfill his wish to become a full time commercial pilot. The government argues that there was insufficient evidence to support the finding that Rodriquez would have become a commercial pilot.
75
Under the New Jersey wrongful death statute, the finder of fact is responsible for awarding such damages as it "shall deem fair and just with reference to the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased, to the persons entitled to any intestate personal property of the decedent." N.J.S.A. 2A:31-5. The measure of damages is the "deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased." Curtis v. Finneran, 83 N.J. 563, 569, 417 A.2d 15, 18 (1980) (citations omitted). New Jersey case law provides that proof of the amount of such damages need not be shown with exactness, McStay v. Przychocki, 7 N.J. 456, 460, 81 A.2d 761, 763 (1951) (quoting Cooper v. Shore Electric Co., 63 N.J.L. 558, 567, 44 A. 633, 636 (E & A 1899)), affirming McStay v. Przychocki, 10 N.J.Super. 455, 463-64, 77 A.2d 276, 280-81 (1950); Greenberg v. Stanley, 51 N.J.Super. 90, 108-09, 143 A.2d 588, 598-99 (1958), aff'd in part, rev'd in part, 30 N.J. 485, 153 A.2d 833 (1959), but the plaintiff must nevertheless provide the factfinder "some evidentiary and logical basis for calculating or, at least, rationally estimating a compensatory award. '[S]heer conjecture cannot be the basis of a jury finding.' " Huddell v. Levin, 537 F.2d 726, 744 (3d Cir.1976) (quoting Dixon v. Pennsylvania Railroad, Co., 378 F.2d 392, 394 (3d Cir.1967)). Cases applying New Jersey law have upheld a finding of future employment in a particular field when there was evidence to support the likelihood that decedent would achieve that position. For example, in McGrath v. Erie Lackawanna Railroad Co., 460 F.2d 1312, 1315 (3d Cir.1972), this court upheld the damages based upon an anticipated promotion within four months of the decedent's death, where the accounting firm partner who would have made the promotion decision testified that it was a "100% certainty" that the decedent would have been promoted and there was expert testimony to support the higher salary figure. Similarly, in Kopko v. New York Live Poultry Trucking Co., 3 N.J.Misc. 498, 499, 128 A. 870, 870 (N.J.1925), the damage award was supported not only by evidence that the decedent, a 12 1/2 year old boy, had unusual aptitude and promise and marked ability as a musician, but also by expert testimony of a violin teacher that the decedent would, "because of his talent, become one of the great musicians."
76
The evidentiary basis for an award of damages based on earnings in an anticipated position is also demonstrated in Gluckauf v. Pine Lake Beach Club, Inc., 78 N.J.Super. 8, 21-24, 187 A.2d 357, 363-65 (1963), where the court upheld a jury award based upon the assumption that the decedent, a 15 1/2 year old boy, would work as a biochemist or in some comparable field of science. That evidence was not merely that decedent had the ambition of becoming a biochemist, but also that he had a 157 IQ, was in the top 1% of his class of 800 students in a very competitive school for gifted students, excelled in biology and mathematics, and according to his teacher "even in this bright school ... was above [the other students] in competence and diligence." See also Bohrman v. Pennsylvania Railroad Co., 23 N.J.Super. 399, 406-09, 93 A.2d 190, 193-95 (1952) (upholding jury award for death of 18-year old girl based on assumption that she would become beautician, where decedent intended to become beautician, had practically finished training in beautician's school, and worked in father's beauty shop).
77
The issue in this case is not whether the district court erred in selecting 25% as the amount of enhancement since New Jersey cases allow a degree of conjecture in the factfinder as to lost future earnings, depending on the nature of the case, but whether there was any credible evidence to support the district court's assumption that Rodriquez would have been a commercial pilot, which was the predicate for the enhancement.
78
At the time of his death, Rodriquez worked as a machinist. During the period from 1980 until his death in 1982, he worked "on and off" for his cousin's company, App. at 975, had part time jobs elsewhere, and when laid off would "go in and do odd jobs ... at his cousin's place once in a while," where "he was working off the books." App. at 976-77. He had obtained both a private and a commercial pilot's license, and was a certified flight instructor. Rodriquez's wife testified that it was Rodriquez's ambition to be a commercial pilot.13 He flew every weekend that the weather allowed and sometimes during the week, building up hours he believed necessary to obtain a job as a pilot. In addition, he would study every evening when he was not flying. Rodriquez belonged to a flying association, and had earned money giving flying instructions.
79
Based on this evidence, the district court concluded that there was "a good likelihood that he would someday seek and obtain ... employment ... [as a commercial pilot] and that he had the capacity to do so." App. at 2425.14 We believe that under New Jersey law, and particularly under the case relied on by plaintiffs, Gilborges v. Wallace, 153 N.J.Super. 121, 136-38, 379 A.2d 269, 276-77 (1977), aff'd on this issue, 78 N.J. 342, 353, 396 A.2d 338, 343 (1978), the court's conclusion was without evidential foundation.
80
In Gilborges, a high school student seriously injured in an accident sought to show damages of lost earnings based on an actuarial expert's opinion that she would probably have become a college graduate and thereafter a practicing veterinarian. The New Jersey Superior Court upheld the admission of testimony of the expert regarding the plaintiff's earning capacity based on the assumption that plaintiff would have gone to college even though plaintiff had not yet taken her preliminary College Boards or applied for admission to any college at the time of the accident because the court held that the expert's testimony "was within his expertise and was competent." 153 N.J.Super. at 137, 379 A.2d at 277. However, the court reversed the trial court's ruling admitting the evidence of earning capacity based upon the assumption that the plaintiff would have become a practicing veterinarian. Even though the decedent had expressed an interest in becoming a veterinarian, the court ruled:
81
we conclude that Dr. Leshner's opinion that Rosemarie would probably have become a practicing veterinarian was without evidential foundation. Cross-examination developed that there is no veterinary school in the State of New Jersey and only one in the State of Pennsylvania, with consequent grave difficulty of a student from New Jersey obtaining admission to such school. We find no support in the record for the conclusion that Rosemarie would probably have become a veterinarian student or graduate. We therefore consider that the assumption was purely speculative and Dr. Leshner's opinion both as to the probability that (a) she would become a veterinarian and (b) she would have earned approximately $1,000,000 in that practice was likewise speculative.
82
Id. at 137-38, 379 A.2d at 277.
83
The district court's finding that Rodriquez would have obtained future employment as a pilot is similarly speculative. Significantly, there was no testimony as to Rodriquez's ability, as there was in McGrath, Kopko and Gluckauf, even though his ambition and perseverance were demonstrated. There was no evidence through expert testimony or otherwise concerning the prerequisites for employment as a commercial pilot, and no evidence that Rodriquez possessed the needed qualifications. The fact that Rodriquez had accomplished at least one prerequisite of the job of commercial pilot by obtaining a license is not enough to support the court's assumption that he could meet the remaining qualifications, whatever they may be.
84
Accordingly, we must conclude that the district court's finding that Rodriquez would likely have become a commercial pilot was clearly erroneous.
B.
Intangible Loss
85
The other damages issue on appeal is the district court's award of $500,000 to each plaintiff family for lost advice, guidance and counsel. The court stated that the New Jersey courts "have always recognized that no amount of money can compensate a family for the loss of any one of its members and that the attempt to equate money with the loss in this case of advice, guidance and counsel for children, and advice, guidance and counsel and companionship for a spouse, is truly an impossible task. So recognizing this impossibility, the Court will attempt to make a fair award to both families, recognizing that there is truly no adequate compensation or substitute for what each have lost." App. at 2426. In making the award for the "irreplaceable and intangible loss each has sustained," the district court considered:
86
the testimony regarding the respective ages of Mr. Thomas and Mr. Rodriquez, their life expectancy, the age of their spouses and their children and their history of devotion to their families and in particular, their commitment, in each instance, to the need for education.
87
App. at 2426-27. The district court "balanced the greater life expectancy of Mr. Rodriquez against the greater number of children left by Mr. Thomas," App. at 2426, and decided to award an equal amount to both families. The government argues that the awards do not reflect the pecuniary element of the lost advice, guidance and counsel, but rather "are more in the nature of compensation for emotional loss which is not allowed under New Jersey law." United States' Brief at 37. The government also argues that the district court awards are so excessive as to be punitive in nature and thus not allowed against the United States under the Federal Tort Claims Act.
88
The New Jersey wrongful death statute limits damages "to the pecuniary injuries resulting from such death." N.J.S.A. 2A:31-5. Although as a result no compensation is allowed for emotional loss, the courts have held that surviving next of kin are entitled to the value of the companionship, advice, guidance and nurturing they lost as a result of the death. Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980); Carter v. West Jersey & Seashore Railroad Co., 76 N.J.L. 602, 71 A. 253 (E & A 1908). See also Frasier v. Public Service Interstate Transportation Co., 244 F.2d 668, 670 (2d Cir.1957) (applying New Jersey law).
89
In calculating these intangible losses, generally no specific evidence of companionship, advice, guidance or nurturing is needed to sustain an award of damages. The proof that suffices is "the parent-child relationship and what we assume the jury can conclude from that relationship alone," Green v. Bittner, 85 N.J. at 15, 424 A.2d at 217, and there need not even be a showing that the parent was rendering valuable advice. Id. Thus, in Carter v. West Jersey & Seashore Railroad Co., 78 N.J.L. at 603, 71 A. at 253, the court upheld a damage award for the loss of a mother where the children lived with the deceased parents and the mother "performed the household duties." The court stated:
90
It was reasonably to be inferred that she took such care of her children as a mother usually takes. ... Under circumstances such as are here presented we think there is a reasonable inference that the continuance of the mother's life would have resulted in substantial pecuniary benefit to the children. ... "[I]nfant children sustain a loss from the death of their parents, and especially of their mother, of a different kind. She owes them the duty of nurture and of intellectual, moral, and physical training, and of such instruction as can only proceed from a mother."
91
Id. See also Clark v. Prime, 18 N.J.Misc. 226, 12 A.2d 635 (N.J.Cir.Ct., Bergen Cty.1940) (sustaining a jury award of $30,000 where the decedent left a husband and five children, finding that the award of $10,000 to the husband was comparable to similar awards in other states, and that the $4,000 left to each remaining child was reasonable).
92
In contrast, a jury award of $50,000 to two surviving children for the death of their mother was overturned as excessive. Melendez v. Rodde, 176 N.J.Super. 283, 286-87, 422 A.2d 1047, 1048-49 (1980). The evidence showed that the daughter lived with the grandmother and visited the mother on weekends, and there was no proof that the son lived with the mother, or proof of the mother's age, health, life expectancy, employment, whether the mother contributed financially to the children's support, or of the content of the conversations between the daughter and the mother when the daughter visited. The court stated, "There must ... be proof from which a jury can convert the loss to financial terms. Here, it was left to the speculation of the jury just what contributions both financial and by way of guidance either of the two survivors received. The evidence could not support a verdict in the amount of $50,000." Id. at 287, 422 A.2d at 1049.
93
Similarly, in Hudgins v. Serrano, 186 N.J.Super. 465, 476-82, 453 A.2d 218, 224-27 (1982), the court held excessive a $1,150,000 jury damage award where the decedent, a chauffeur, left a widow and four children. In calculating the point at which an award for "the lost nurture, guidance and training of the children" would shock the judicial conscience, the court multiplied the aggregate remaining years of the children's minority by 10% of the father's salary. Id. at 481, 453 A.2d at 227. In that case, however, the court noted that it did not intend that the formula used "should become a model for the calculation of nurtural damages." Id. at 481 n. 5, 453 A.2d at 227 n. 5.
94
In considering the government's argument that there was insufficient evidence of the pecuniary value of the decedent's services because the plaintiffs never established the comparative worth of the cost of their replacement value, we are guided by the New Jersey Supreme Court's recent statement that "[s]uch damages are regularly allowed despite the total lack of proof of such dollar value." Green, 85 N.J. at 8, 424 A.2d at 213. Moreover, the Supreme Court of New Jersey has stated that the calculation of damages need not cease after the child reaches majority. Id. But see Meehan v. Central Railroad Co. of New Jersey, 181 F.Supp. 594, 621-23 (S.D.N.Y.1960) (applying New Jersey law to award only $1,200 per child per year from the date of the verdict to age 18 for intangible losses where the decedent father had a close relationship with his five children and was concerned with and participated in their upbringing).
95
The evidence in this case shows that Rodriquez had a life expectancy of 43 years at the time of his death. He was survived by a wife and two children, one age three years and the other age two years. Rodriquez was clearly devoted to his family, helping his parents purchase a house and performing manual tasks around his own home such as making furniture and repairing the family cars. He would take the children to the park every day during the week as well as on other activities. Rodriquez spent approximately 10 hours a week alone with the children. Education was also very important to Rodriquez. He moved to the United States from Costa Rica at age 18, where he had received vocational training as a machinist, and he subsequently became conversant in English. Although Rodriquez did not have a college degree, he encouraged his wife to return to school to obtain a college degree, and he helped support his two brothers, now a doctor and an engineer, through college. Rodriquez's wife testified that he was a good companion to his wife and to his children.
96
Thomas had a life expectancy of 30.4 years when he died, and was survived by a wife and six children ages 2--16. He moved to the United States from Tobago at age 27, where he was an elementary school teacher. In the United States he studied to become an engineer, receiving a Bachelor's and a Master's degree in engineering and computer science. While working as an engineer, Thomas also attended night school, obtaining a Master's degree in business administration. Thomas was also dedicated to his family. He did mechanical and electrical work around the house, including building the family television set and repairing the family car. He also helped with cooking and cleaning. Thomas was very excited about being a father and concerned that his children receive a college education. He purchased a home computer and worked on it with the children. At the time of trial, the three oldest children were in college. Thomas spent time with the children, playing and baby sitting, took walks with his youngest child, and vacationed with the family every year.
97
We believe that the New Jersey courts would uphold the award to each family of $500,000 for lost companionship, guidance and nurture. This case is unlike Walters v. Mintec/International, 758 F.2d 73, 81-82 (3d Cir.1985), where we held that jury verdicts for lost guidance and counsel to minor children would not be upheld where there was no evidence of such guidance and counsel. Here, there is evidence of the decedents' devotion to their families, the importance placed by the decedents on education, and the decedents' own motivation to succeed. We cannot say that the amounts awarded were excessive.
V.
Conclusion
98
We have affirmed the district court's findings that the United States was negligent based on the negligence of the air controller; that Diaz, even if negligent, did not cause or contribute to the collision; and that each plaintiff was entitled to a damage award of $500,000 for "nurturing". We have found clearly erroneous because unsupported by the evidence the district court findings that the pilots of 98V were not negligent and the district court's enhancement of Rodriquez's damages for lost earnings by 25%.
99
For the foregoing reasons we will remand this action to the district court for further proceedings as between the United States and the Rodriquez and Thomas plaintiffs. The judgment as to Diaz will be affirmed.
100
On remand the district court may decide whether it can make the additional findings required on the basis of the record accumulated at trial and whether additional evidence will be necessary.
101
One half of the costs on appeal are to be paid by the United States, the other half to be paid equally by the Rodriquez and Thomas plaintiffs.
*
Hon. Jane R. Roth, United States District Court for the District of Delaware, sitting by designation
1
In a touch and go landing the pilot brings the airplane down in a normal approach as if intending to land, and, upon touching its wheels, applies power and takes off again
2
The flight of general aviation aircraft may be conducted under visual flight rules (VFR) or instrument flight rules (IFR), depending on the weather. See 14 C.F.R. Sec. 91.105 (1987). "Under VFR, a pilot directs his aircraft according to what he can see, navigating from place to place according to visual cues outside his aircraft." Redhead v. United States, 686 F.2d 178, 180 n. 1 (3d Cir.1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1190, 75 L.Ed.2d 435 (1983). "Under IFR, it is presumed that pilots are unable to see either other aircraft or the ground and are guided by air traffic controllers." Id.; see also 14 C.F.R. Secs. 91.115-91.129 (1987)
3
At Caldwell, at the time of the collision, a right hand pattern on runway 22 entailed the following steps: Aircraft take off upwind and continue on a heading of 220 degrees. As soon as practicable, for noise abatement reasons, aircraft then execute a 20 degree turn to the right and continue climbing to 800 feet above ground level (at Caldwell, equivalent to 1,000 feet above mean sea level) at which point a 70 degree right turn is executed to bring the aircraft onto the crosswind leg. (The initial 20 degree noise abatement turn is optional.) Aircraft continue to climb to pattern altitude of 1,000 feet above ground level at which point a 90 degree right turn is executed to bring the aircraft onto the downwind leg which runs parallel to the runway. Once the downwind leg is completed, aircraft execute another 90 degree right turn onto the base leg and begin to descend. At a specified altitude aircraft execute a final 90 degree right turn onto the final approach leg and continue descent to landing. App. at 2490-92
4
On the date of the collision, Caldwell was on Eastern Daylight Time which is four hours earlier than Greenwich Mean Time. Thus, on Caldwell's time, 21U received clearance at 0917:40, Eastern Daylight Time. Because the FAA recording of controller communications recorded Greenwich Mean Time, all references to time will be to Greenwich Mean Time
5
In the transcript, transmissions are preceded by the time at the start of the transmission and an abbreviation to identify the speaker. LC stands for local control, that is, the Caldwell air traffic controller. Other abbreviations are for airplanes as in text
6
The time of collision is stipulated to by all parties
7
With the consent of all parties, the claims against Liberty Aviation and Days Flying Service were voluntarily dismissed with prejudice. App. at 5-6, 3149-51, 2512
8
The plaintiffs have also cross-appealed against Diaz, arguing only that Diaz should be included in any assessment of comparative negligence should the district court's conclusion that the air traffic controller was solely responsible for the collision be overturned and the case remanded. The United States, in its appeal, also seeks to have Diaz included in any assessment of comparative negligence
9
Portions of the 1982 version of the Handbook, Air Traffic Control 7110.65C (Jan. 21, 1982), were introduced into evidence by both the plaintiffs and the government. App. at 2444, 2464. Citations to the Handbook are to these exhibits
10
The government argues that as a matter of law background clutter cannot excuse a failure to observe an aircraft at a lower altitude. The government relies on United States v. Miller, 303 F.2d 703 (9th Cir.1962), cert. denied, 371 U.S. 955, 83 S.Ct. 507, 9 L.Ed.2d 502 (1963), in which the Ninth Circuit held, under facts virtually identical to those here, that "mere difficulty of recognition or perception" due to background clutter would not excuse a failure to see and avoid. Id. at 707-08. We need not reach the government's contention since we conclude that there is no evidence to support a finding that 98V's observation of 21U was affected by background clutter
11
Evidence to support a finding of negligence on Diaz's part in failing to look for 98V when he entered the downwind includes the testimony of the pilot of 40G, which was sequenced behind 21U and was on the crosswind when 98V reported overhead, that upon hearing 98V report overhead he was able to and did observe 98V. App. at 1365-66. Diaz knew that 98V was making an overhead approach, App. at 1165, and that 98V was to be sequenced in front of him, App. at 1169, but, as he admitted, did not look for 98V. App. at 1164-65
Furthermore, Diaz, as one of the aircraft on the downwind, was on notice that something more than ordinary scanning was required from the controller's warning to aircraft on the downwind, albeit vague. Diaz made no response to the warning. App. at 1166.
12
The holding in Van Horn that a plaintiff can recover against one of multiple defendants only if the plaintiff's negligence did not exceed that of the particular defendant was legislatively overturned by the New Jersey legislature's amendment of the New Jersey comparative negligence statute so that recovery is barred only if the plaintiff's negligence is "greater than the combined negligence of the persons against whom recovery is sought." N.J.S.A. 2A:15-5.1. The amendment is applicable only to "causes of action arising on or after" its effective date of December 6, 1982. 1982 N.J.Laws ch. 191 Sec. 3, reprinted in N.J.S.A. 2A:15-5.1 (West Supp.1986). Van Horn, therefore, continues to govern the instant action which arose on August 29, 1982. In any event, in light of our conclusion affirming the district court's finding that Diaz bears no responsibility for the collision, the result in this case, in which there is only one negligent defendant, is the same under either Van Horn or the amended statute
13
The government argues that the district court sustained its objection to Mrs. Rodriquez's testimony about her discussions with her husband regarding his possibilities of obtaining employment in commercial aviation. However, the district court's rulings only sustained objections as to Mrs. Rodriquez's statement that she had been told by her husband that he was being considered for employment in aviation. See App. at 982, 1237. The court clearly admitted testimony of Rodriquez's ambition to become a pilot. See App. at 994
14
The court's full reasoning is as follows:
Although he had clearly taken steps to prepare himself for that career, and had expressed his ambition, certain other events would be necessary. He would have to further and complete his training, and then obtain employment. Of course, he already possessed the necessary license. Further, there was no testimony as to how many more hours in the air would be required, and how long it would take him to satisfy that requirement before he would be considered for such employment in the normal course. However, the Court is satisfied that he possessed the basic requirements, had manifested his dedication and expressed his ambition sufficiently clear to indicate a good likelihood that he would someday seek and obtain such employment and that he had the capacity to do so. However, since it is evident that the substantial period of time would be required in that contemplated career change by Mr. Rodriquez, the Court will not adopt the full 50 percent add on proposed by the plaintiffs['] expert. Rather, the Court will add on 25 percent to the net earnings loss of $442,995, or $110,748, making a total pecuniary loss, including loss of household services, of $721,251.
App. at 2424-25 (emphasis added).
|
483 F.2d 968
UNITED STATES of America, Plaintiff-Appellee,v.Arthur Jay LEE, Defendant-Appellant.
No. 73-1319 Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
Aug. 23, 1973.
Morris M. Reese, Jr., court-appointed, Laredo, Tex., for defendant-appellant.
Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
Before GOLDBERG, DYER and SIMPSON, Circuit Judges.
PER CURIAM:
1
In a trial by jury Lee was convicted of conspiracy with others to unlawfully, knowingly, and intentionally possess with intent to distribute forty-five pounds of marihuana (Count 1),1 and of the substantive offense of unlawfully, knowingly, and intentionally possessing forty-five pounds of marihuana with intent to distribute. (Count 2).2 Lee was sentenced to three years' imprisonment with a special parole term of two years on both Counts 1 and 2, the sentences to run concurrently. His sole point on appeal is that having offered evidence of an alibi, the district court failed to instruct the jury that the burden remained on the government to prove his guilt beyond a reasonable doubt. We affirm.
2
We find it unnecessary to dwell upon the sufficiency of the alibi instruction in this case because the evidence is over-whelming that Lee and his three co-conspirators entered into a conspiracy, the overt acts of which were performed by the latter.
3
Once the existence of the agreement or common scheme of conspiracy is shown, however, "slight evidence" is all that is required to connect a particular defendant with the conspiracy. United States v. Jones, 9 Cir. 1970, 425 F.2d 1048, 1951 [sic]; United States v. Knight, 9 Cir. 1969, 416 F.2d 1181, 1184; Lopez v. United States, 5 Cir. 1969, 414 F.2d 909, 911. And once it is shown that a particular defendant joined the conspiracy, the acts of his co-conspirators done in furtherance of the conspiracy are attributable to him and he becomes equally liable for them. Grimes v. United States, 5 Cir. 1967, 379 F.2d 791, 795; Hernandez v. United States, 9 Cir. 1962, 300 F.2d 114, 121.
4
United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 830, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58.
5
The alibi, if believed by the jury, established no more than that Lee was not present at the time that one or more of the conspirators performed an overt act in furtherance of the conspiracy. Since it was unnecessary for the government to have proved his presence, the alibi defense failed and no instruction concerning it was required.
6
The evidence on Count 1 being sufficient to sustain the verdict, consideration of whether the instruction on alibi was insufficient in connection with the substantive offense charged in Count 2 is rendered unnecessary by the concurrent sentence doctrine. Hawkins v. United States, 5 Cir. 1972, 458 F.2d 1153; United States v. Wilson, 5 Cir. 1971, 451 F.2d 209, cert denied sub nom., Fairman v. United States, 1972, 405 U.S. 1032, 92 S.Ct. 1298, 31 L.Ed.2d 490.
7
Affirmed.
*
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I
1
21 U.S.C.A. Secs. 841(a)(1) and 846
2
21 U.S.C.A. Sec. 841(a)(1)
|
373 F.3d 70
UNITED STATES of America, Appellee,v.Pedro DE JESUS MATEO, Defendant, Appellant.
No. 00-1711.
United States Court of Appeals, First Circuit.
Heard May 7, 2004.
Decided June 24, 2004.
Raymond Sanchez Maceira, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabón, Assistant United States Attorney, were on brief, for appellee.
Before BOUDIN, Chief Judge, LIPEZ and HOWARD, Circuit Judges.
HOWARD, Circuit Judge.
1
Pedro De Jesus Mateo appeals his conviction for conspiring to possess narcotics with the intent to distribute and the resulting sentence imposed. We affirm the judgment.
I. Background
2
In the late 1980's, De Jesus befriended Orlando Rosa Rodriguez in Ponce, Puerto Rico. In the beginning of 1990, Rosa began a drug trafficking organization operating in the Belgica Ward of Ponce. During the fall of 1990, Rosa expanded the enterprise and moved it to the Portugues Public Housing Project in Ponce. By the end of 1990, De Jesus was working for Rosa, processing heroin and cocaine and helping procure additional drug supply. In early 1992, Rosa gave De Jesus control of a marijuana "drug point" in the Portugues Housing Project.
3
In 1995, Rosa was incarcerated for drug offenses but continued to operate the enterprise from prison. Rosa left two associates in charge of the operation. These associates were delinquent in collecting money, so Rosa replaced them with his sister and De Jesus. In this capacity, De Jesus collected delinquent debts, processed heroin, and operated the heroin "drug point." For his services, Rosa paid De Jesus $200 per week. De Jesus eventually withdrew from the organization in the fall of 1997.
4
On these facts, a jury convicted De Jesus of participating in a conspiracy to possess cocaine and heroin with the intent to distribute operating in Ponce from 1990 through the fall of 1997. See 21 U.S.C. §§ 841(a)(1) & 846. The district court sentenced De Jesus to life in prison because this was his third conviction for a drug-related felony. See 21 U.S.C. § 841(b)(1)(A).
II. Discussion
5
De Jesus raises two issues on appeal. First, he claims that the district court erred by declining to order a mistrial after Rosa provided testimony implicating him in criminal acts that were beyond the scope of the conspiracy. Second, he contends that the district court erroneously relied on his two prior drug convictions to impose an enhanced sentence under 21 U.S.C. § 841(b)(1)(A) because the prior convictions comprised conduct that was part of the instant conspiracy offense.
A. Mistrial
6
De Jesus identifies three points in Rosa's testimony where Rosa improperly implicated him in criminal conduct that was outside of the conspiracy. First, Rosa testified about his own involvement in a 1990 murder. Defense counsel objected that Rosa implicated De Jesus in the murder by gesturing toward De Jesus when discussing the crime. The district court responded by instructing Rosa to confine his answers to his own criminal conduct, but defense counsel, not satisfied, moved for a mistrial. The court denied the motion, noting that it "did not see a gesture as dramatic as the one described," and that it was not as "clear or unambiguous [as defense counsel] may have suggested."
7
Second, Rosa testified that De Jesus worked packaging drugs. Rosa then stated, "In 1991 he was in prison."1 Defense counsel objected, and the district court struck the comment. Finally, Rosa testified about his last drug transaction with De Jesus. Rosa stated that he had asked De Jesus to help him obtain drugs while he (Rosa) was in prison. Defense counsel objected to this testimony because this act was outside the scope of the conspiracy and requested a mistrial. The court again struck the testimony but declined to order a mistrial.2
8
De Jesus contends that, individually and combined, the effect of this improper testimony was so prejudicial that a mistrial was warranted. We review the district court's decision to deny a mistrial motion for an abuse of discretion. See United States v. Bradshaw, 281 F.3d 278, 284 (1st Cir.2002). A mistrial is a last resort that is only ordered if the demonstrated harm cannot be cured by less drastic means. See United States v. Rullan-Rivera, 60 F.3d 16, 18 (1st Cir.1995).
9
De Jesus focuses substantial attention on Rosa's "gesture" supposedly implicating him in a 1990 murder. Testimony clearly implicating De Jesus in a murder outside of the charged conspiracy could be thought to have caused substantial prejudice. The difficulty with this argument, however, is that the district court found that Rosa's gesture was neither as "dramatic" nor "unambiguous" as De Jesus suggests. "The trial court has a superior point of vantage" and "it is only rarely — and in extremely compelling circumstances — that an appellate panel, informed by a cold record, will venture to reverse a trial judge's on-the-spot decision." United States v. Freeman, 208 F.3d 332, 339 (1st Cir.2000) (internal citations and quotations omitted). Neither De Jesus's brief nor our own review of the record provides a basis for disregarding the district court's view of events and its conclusion that De Jesus was not substantially prejudiced by the incident. See United States v. Pierro, 32 F.3d 611, 617 (1st Cir.1994) ("[B]attles over the need for a mistrial most often will be won or lost in the district court").
10
For Rosa's two inadmissible comments, the district court provided prompt and forceful curative instructions. Immediately after Rosa's comment, "He was in prison in 1991," the court told the jury "to disregard the answer." Similarly, just after Rosa described De Jesus arranging to bring him drugs in prison, the court instructed, "Jurors, the witness's evidence from the last few questions concerning what he described as a transaction when he was in prison, all that evidence is stricken, and you will disregard it in your decision in this case." Also as part of its final instructions, the district court reminded the jurors to disregard stricken testimony:
11
There was at least one and maybe several occasions on which an answer or a portion of an answer may have been given by a witness, and it was excluded from the evidence. You may recall that I did that. Evidence that I ordered to be stricken, you are to disregard and put out of your minds. It is not part of your consideration and may not be the subject of your discussion in the jury room.
12
Within wide margins, the prejudice caused by improper testimony can be addressed by providing appropriate curative instructions similar to those supplied here. See United States v. Sepúlveda, 15 F.3d 1161, 1184 (1st Cir.1993). This rule is a corollary of the presumption that "juries follow instructions" unless there is "a sufficient showing that the offending testimony reasonably could not have been ignored and that serious prejudice likely resulted." United States v. Gonzalez-Vazquez, 219 F.3d 37, 48 (1st Cir.2000) (quotations omitted). De Jesus has not made this showing. The statement, "He was in prison," provided the jury with little detail, and it is not altogether clear that it referred to De Jesus, as Rosa blurted out the statement when there was no question pending.
13
Further, Rosa's testimony concerning the later transaction in which De Jesus brought drugs to Rosa in prison, also excluded by the court with a curative instruction, constituted additional evidence concerning De Jesus's work in furthering the conspiracy. See Bradshaw, 281 F.3d at 285 (affirming denial of motion for mistrial where inadmissible evidence was largely cumulative).
14
Finally, the strong proof of De Jesus's guilt militates against disturbing the district court's decision against declaring a mistrial. See United States v. DiSanto, 86 F.3d 1238, 1249 (1st Cir.1996) (affirming denial of mistrial motion because evidence was strong); United States v. Belardo-Quiñones, 71 F.3d 941, 945 (1st Cir.1995) (similar); United States v. Bello-Pérez, 977 F.2d 664, 672 (1st Cir.1992) (similar). The government presented testimony from Rosa and his sister chronicling De Jesus's involvement in the conspiracy, an audio tape recording of De Jesus arranging a drug transaction and discussing a debt that one of the co-conspirators owed Rosa, and another tape recording of two co-conspirators discussing that De Jesus was no longer going to work for Rosa. De Jesus's entire case consisted of calling Rosa to question his credibility. In short, this was not a close case. For these reasons, the district court's denial of De Jesus's motion for a mistrial was not an abuse of discretion.
B. Sentencing
15
The district court sentenced De Jesus to a life sentence pursuant to the sentencing enhancement provisions of 21 U.S.C. § 841(b)(1)(A). In relevant part, this section provides that if a person is convicted of conspiring to possess in excess of a certain amount of controlled substance with the intent to distribute "after two or more prior convictions for felony drug offenses have become final, such person shall be sentenced to a mandatory term of life imprisonment without release." 21 U.S.C. § 841(b)(1)(A). De Jesus was convicted in Puerto Rico Superior Court of possessing cocaine in January 1991 and of possessing marijuana with the intent to distribute in November 1991. Both crimes occurred in Ponce and there is no dispute that they constitute felonies under Puerto Rico law.
16
De Jesus claims that these prior convictions should not count for purposes of applying the sentencing enhancement under 21 U.S.C. § 841(b)(1)(A). He argues that, because the prior convictions occurred during the time period and in the geographic location of the conspiracy charged in this case, the prior convictions represent "the same criminal conduct" as the conspiracy conviction and consequently "should not count toward the enhancement."
17
De Jesus makes this argument by asserting that, under the Sentencing Guidelines, all three convictions (the two prior convictions and the conspiracy conviction) would be grouped together as related cases pursuant to U.S.S.G. § 4A1.2 and therefore should not count as separate convictions for purposes of applying 21 U.S.C. § 841(b)(1)(A). This argument misconstrues the purpose of the Sentencing Guidelines. The Guidelines focus on the length and nature of the sentence, not the fact of conviction. Whether prior convictions count for purposes of 21 U.S.C. § 841(b)(1)(A) is a matter of statutory construction, not Guideline application. See United States v. Blackwood, 913 F.2d 139, 145 n. 4 (4th Cir.1990); see also United States v. Maxey, 989 F.2d 303, 307-08 (9th Cir.1993) (rejecting similar argument). Indeed, the Guidelines specifically provide that statutorily required minimum sentences must be applied in lieu of the Guideline range if the statutory minimum is longer. See U.S.S.G. § 5G1.1.
18
But that the Guidelines do not provide the analytical vehicle for resolving De Jesus's argument does not end the matter. "Prior felony drug convictions will be counted separately for purposes of 21 U.S.C. § 841(b) only when they represent distinct criminal episodes." United States v. Martinez-Medina, 279 F.3d 105, 123 (1st Cir.2002) (citing United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988)). De Jesus contends that his prior convictions do not represent "distinct criminal episodes" because they are part and parcel of his participation in the conspiracy. Circuit precedent forecloses this argument. See Martinez-Medina, 279 F.3d at 123.
In Martinez-Medina, we stated that:
19
An ongoing course of criminal conduct such as narcotics trafficking may involve many such criminal episodes, each a discrete occurrence. The fact that all are related, part of a series, or part of a continuous course of criminal dealing, does not necessarily render them a "single" criminal episode, particularly where the episodes occur over time. To so hold would insulate the very career criminals the statute is designed to reach — those continuously engaged in criminal conduct.
20
Id. (quoting Maxey, 989 F.2d at 307). Consequently, we held that the district court properly imposed a life sentence under 21 U.S.C. § 841(b)(1)(A) because the defendant's prior convictions, although part of one drug trafficking conspiracy, stemmed from several transactions, occurring several months apart. See id. So too here. De Jesus's prior convictions were for separate drug transactions that occurred eleven months apart. See id.; see also United States v. Gray, 152 F.3d 816, 821-22 (8th Cir.1998) (stating that drug transactions occurring one-day apart which required separate planning and execution constitute distinct criminal episodes under 21 U.S.C. § 841(b)(1)(A)); United States v. Griffin, 109 F.3d 706, 708 (11th Cir.1997) ("Two drug transactions occurring on different days-albeit within the same week and in the same general location-constitute separate unrelated offenses for purposes of sentencing under 21 U.S.C. § 841(b)(1)(A)."). Accordingly, the district court correctly counted them as prior convictions for purposes of 21 U.S.C. § 841(b)(1)(A).3
21
Affirmed.
Notes:
1
There is some confusion in the record concerning whether this statement was made by Rosa or the prosecutor. De Jesus claims that the statement was made by Rosa and there is substantial record support for that view. We therefore have considered the claim in this light. But even if the prosecutor had made the statement, our conclusion would remain the same because, as discussed in the text, the district court's curative instructions sufficiently remedied any prejudiceSee infra at 72-73.
2
The court ruled that this testimony concerned an act that was within the scope of the conspiracy and would normally be admissible. But, because the government had filed a pretrial notice representing that this evidence would not be introduced in its case-in-chief, the court struck the testimony
3
De Jesus attempts to distinguishMartinez-Medina on the basis that the government presented evidence of marijuana trafficking in the instant case which was the same conduct underlying De Jesus's prior marijuana conviction. As explained in the text, Martinez-Medina holds that each conviction arising from a distinct criminal episode counts as a separate conviction for purposes of 21 U.S.C. § 841(b)(1)(A) even though this same conduct is within the scope of the conspiracy. See supra at 10. The dispositive point here is not that evidence of De Jesus distributing marijuana was presented at his conspiracy trial but rather that his prior cocaine conviction was a separate criminal episode from his prior marijuana conviction even though the conduct underlying both convictions was arguably part of the same conspiracy. As for any claim that the conspiracy comprised the same episode as either of the two prior convictions, the short answer is that the conviction in this case was for conspiring to distribute heroin and cocaine, an episode continuing well beyond either of the prior convictions for discrete episodes of possession and distribution.
|
FILED
NOT FOR PUBLICATION JUN 09 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50512
Plaintiff - Appellee, D.C. No. 3:13-cr-01573-LAB-1
v.
MEMORANDUM*
ROBERTO LOPEZ-GUTIERREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 6, 2015**
Pasadena, California
Before: KOZINSKI, WARDLAW and W. FLETCHER, Circuit Judges.
We use the modified categorical approach to determine the controlled
substance that served as the basis for a defendant’s conviction under California
Health & Safety Code § 11351. United States v. Torre-Jimenez, 771 F.3d 1163,
*
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).
page 2
1167 (9th Cir. 2014). It is clear from the complaint and plea colloquy that Lopez-
Gutierrez’s conviction was for possession for sale of heroin, a drug listed in the
Controlled Substances Act. See 21 U.S.C. § 812(c), sched. I(b)(10). Therefore,
Lopez-Gutierrez’s underlying deportation was valid and his conviction for illegal
reentry must be upheld.
AFFIRMED.
|
76 Wn.2d 586 (1969)
458 P.2d 183
SUSAN A. STONE, Appellant,
v.
NORMAN L. STONE, Respondent.[*]
No. 40100.
The Supreme Court of Washington, Department One.
August 28, 1969.
Gibbon & Thoreson, by Donald L. Thoreson, for appellant.
Kenneth D. VanDerhoef and Hohlbein, Church, Sawyer & VanDerhoef, for respondent.
McGOVERN, J.
The July 4, 1965, marriage of Susan and Norman Stone was dissolved by decree of divorce entered December 6, 1967. Appealing from that order, Mrs. Stone challenges the court's conclusion that a child born to her on December 6, 1966, is not the legitimate offspring of that marriage.
Connubial bliss was of short duration for the Stones in fact, it lasted less than 1 year. Almost immediately they started quarreling; they argued about their in-laws and they bickered about her schooling; he physically abused her, frightened her with a gun and struck her on the head with a duffel bag. She carried on an illicit relationship with another young man.
It was the testimony of Mrs. Stone that her promiscuous conduct terminated in February, 1966, before her period of gestation began. She said that her child could not have *587 been the result of the meretricious union because her usual monthly physical change commenced March 2, subsequent to the conclusion of that union. She testified that Mr. Stone is the natural father of her full-term baby conceived March 16 when he visited her at the apartment, and born December 6, 1966.
Mr. Stone, however, testified that he lived with his wife only until March 2, 1966, at which time he was arrested and charged in the municipal court of the city of Seattle with the crime of disorderly conduct. As a result of that charge, he claimed that the military authorities immediately confined him to the United States Coast Guard ship to which he was attached and that he remained confined to that ship until March 25 when his restriction was lifted. He testified that he left the ship during that period of time on only three occasions: once when he had to be in court; later when he had to appear at his attorney's office; and on the third occurrence when he and his attorney went to his apartment to retrieve his personal clothing. He further said that on each of those occasions he was at all times accompanied by an officer from the ship. He said he did not have marital relations with Mrs. Stone during either February or March, 1966.
From that paucity of evidence the trial court found that Mr. Stone did not have access to his wife during the critical period of time and therefore concluded that Mrs. Stone's young daughter is not the product of a legal relationship. It thus irrevocably tagged the child with the label of illegitimacy and with all of the serious disabilities that attend such status. We reverse because the evidence was not sufficient to support that conclusion.
[1] We are firmly committed to the rule that a child born during wedlock is presumed to be legitimate. Pierson v. Pierson, 124 Wash. 319, 214 P. 159 (1923); State ex rel. Bentley v. Frenger, 158 Wash. 683, 291 P. 1089 (1930); In re a Minor, 29 Wn.2d 759, 189 P.2d 458 (1948); Carfa v. Albright, 39 Wn.2d 697, 237 P.2d 795, 31 A.L.R.2d 983 (1951). Equity, justice and common sense require that every reasonable presumption be made in favor of legitimacy and we *588 place a heavy burden of proof on the person alleging illegitimacy. 10 Am.Jur.2d Bastards § 10 (1963). The learned Justice Cardozo has said that the presumption of legitimacy should not fail unless common sense and reason are outraged by such a holding. H. Clark, Law of Domestic Relations 172 (1968).
While various standards have been set up concerning the degree of proof necessary to overcome the presumption of legitimacy of a child born to a married woman, we favor the view taken by most courts in this country, i.e., a mere preponderance of the evidence is not sufficient to rebut that presumption. Something more is required before it can be said that the challenger has sufficiently met his burden of proof, and that "something more" should be evidence so strong and irresistible that no other conclusion can reasonably be made. We said in Pierson, that "A court will not by its judgment brand an innocent child with the bar sinister unless the record is so far conclusive as to leave room for no other course." The evidence in the instant case does not measure up to that degree of certainty.
In addition to the testimony of Mrs. Stone that her husband visited her on March 16 and again on March 17 and that the child was conceived on that earlier date, Mr. Stone admitted living with his wife from about March 28 until early June 1966 when he and Mrs. Stone separated for the final time. He also admitted having marital relations with her during the month of April. In brief then, Mr. Stone said that he lived apart from his wife for a period of only 22 days, and on that testimony the court concluded that the child of Mrs. Stone is illegitimate, despite the fact that serological blood tests were agreed to and the results failed to disprove Mr. Stone's paternity.
Although the trial court entered into its deliberation with much concern and with the correct view in mind that a child born during wedlock is the legitimate product of that marriage, yet the record indicates that it based its finding of nonaccess on a mere preponderance of the evidence. It thus misapplied the law. After all evidence was in but *589 before the findings were entered, the judge said that "Just as it stands, this is just about a fifty-fifty deal. I don't want to make a mistake if I can help it," and "At the moment I am stumped. The burden is on the man. So let me think this over."
Under that view of the evidence it was legally incumbent upon the court to enter findings of fact consistent with the conclusion of legitimacy. Since it failed to do so, we reverse. The strong presumption of legitimacy was not sufficiently rebutted.
HUNTER, C.J., FINLEY and HAMILTON, JJ., and COLE, J. Pro Tem., concur.
October 21, 1969. Petition for rehearing denied.
NOTES
[*] Reported in 458 P.2d 183.
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