url stringlengths 55 59 | text stringlengths 0 788k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/1716375/ | 332 So. 2d 361 (1976)
Nathaniel WARREN, Appellant,
v.
The STATE of Florida, Appellee.
No. 75-1303.
District Court of Appeal of Florida, Third District.
May 18, 1976.
Phillip A. Hubbart, Public Defender, and Elliot Scherker, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and M. Ann Bradley, Legal Intern, for appellee.
Before BARKDULL, C.J., and HAVERFIELD and NATHAN, JJ.
PER CURIAM.
Nathaniel Warren was charged by information with robbery, aggravated assault, unlawful possession of a firearm by a convicted felon and unlawful possession of a firearm while engaged in a criminal offense. A jury trial was held, during which the trial court granted Warren's motion for judgment of acquittal on the count of unlawful possession of a firearm while engaged in a criminal offense. The jury found Warren guilty of robbery and aggravated assault. The trial judge adjudicated him guilty on those counts and dismissed the charge of unlawful possession by a convicted felon. Warren was sentenced to imprisonment in the state penitentiary for life for robbery, and to a concurrent *362 five year sentence for aggravated assault. In this appeal, he only seeks review of his conviction on the charge of aggravated assault.
Defendant contends that because he was exonerated of the charge of unlawful possession of a firearm while engaged in a criminal offense, although he pointed the pistol at the victim of the robbery, the proof at trial was insufficient to show that the firearm was operable and, therefore, he cannot be convicted of aggravated assault.
Since the offense in this case occurred prior to July 1, 1975, it is governed by § 784.04, Fla. Stat., which in part states:
"Whoever assaults another with a deadly weapon, without intent to kill, shall be guilty of an aggravated assault... ."
The pivotal question presented on this appeal of the defendant's conviction is whether or not an inoperable gun pointed at someone is a deadly weapon. We hold that when, as in this case, a pistol is pointed at someone during the course of a robbery, the pistol, whether operable or inoperable, is a deadly weapon within the meaning of § 784.04, supra. Reasoning similar to that found in Bass v. State, Fla. App. 1970, 232 So. 2d 25, is applicable here. In that case, it is stated at page 27:
"Certainly, when one is confronted by another with a gun and does not know it to be unloaded, the natural reaction is to assume that the gun can be fired and can inflict great bodily harm. In such a situation and under the proper circumstances, it would not be unreasonable for the person assaulted to attempt to repel his assailant by inflicting upon him bodily harm, which attempt might result in the death of the assailant or in the deaths of bystanders in the event that the assailant was not subdued. In such a situation, the possibility of death is not unforeseeable even though the assailant did not load his gun."
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4553942/ | 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-4804-17T4
ROSE TAYLOR,
Plaintiff-Appellant,
v.
THE TOWNSHIP OF EWING,
a municipal corporation of the
State of New Jersey,
Defendant-Respondent,
and
MICHAEL MILAZZO, DAWN
MILAZZO, ROBERT SCOTT,
HOK-FAN SCOTT,
MARGARET STAHLIN, ROSALIE
TULAMELLO, KEVIN HOARN,
US BANK, NA, AS LEGAL TITLE
TRUSTEE FOR TRUMAN 2013 SC4
TITLE TRUST,
Defendants.
_______________________________
Argued October 10, 2019 – Decided August 7, 2020
Before Judges Nugent, Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0098-15.
George T. Dougherty argued the cause for appellant
(Katz & Dougherty, LLC, attorneys; George T.
Dougherty, of counsel and on the briefs).
Ryan Patrick Kennedy argued the cause for respondent
Township of Ewing (Stevens & Lee, PA, attorneys;
Ryan Patrick Kennedy, of counsel and on the brief;
Michael A. Cedrone, on the brief).
PER CURIAM
Plaintiff, Rose Taylor, appeals the summary judgment dismissal of her
complaint, which alleged defendant Township of Ewing failed to abate a
nuisance caused by surface water runoff that she alleges has rendered her home
uninhabitable. Because plaintiff developed no evidence on the summary
judgment motion record that creates a genuinely disputed issue of material fact
as to the Township's liability, we affirm.
In 1973, plaintiff and her late husband purchased their property on
Windybush Way in Ewing Township. Their lot was part of a subdivision
described as the "Briarwood Subdivision" on the plat filed with the County
Clerk. Their lot is currently designated as Block 571, Lot 16, on the Township's
tax map. The lot is located at the bottom of a hill in what has been described as
"bowl-shaped typography" surrounded on three sides by neighboring upland
A-4804-17T4
2
properties on lots 8, 9, 10, 15, and 17. In her complaint, plaintiff alleged that in
2009, thirty-six years after purchasing the lot, she began experiencing water
runoff and soil erosion that damaged her home's foundation and rendered the
home uninhabitable.
According to a survey conducted in 1976, two easements are plotted over
plaintiff's property. The first, a sewer easement, is owned and maintained by
the Ewing Lawrence Sewerage Authority. The second, an underground or
"subsurface" drainage easement, consisting of a catch basin and culvert pipe, is
owned and maintained by the Township. The culvert pipe runs from a storm
drain inlet on a nearby street, Tina Drive, across Block 571, Lots 10, 11, 12, and
16, Lot 16 being plaintiff's property. The culvert pipe leads to a storm basin on
Windybush Way and to a catch basin near the bottom of the bowl-shaped
topography in plaintiff's backyard.
The survey also shows that a surface-level drainage easement is located
on the property of upland neighbors fronting Mountainview Road. The
Township claims not to own this easement.1 The parties dispute the ownership
and maintenance of this easement.
1
The maps provided in the record are unclear and difficult to read. The parties
agree the surface easement exists.
A-4804-17T4
3
Between 2009 and 2014, upon plaintiff's request, multiple Township
representatives inspected the property and ultimately reconstructed the storm
drain inlet. The Township also inspected the properties of two upland neighbors
but found no evidence of interference or increased storm water runoff.
In 2015, plaintiff filed a complaint against the Township seeking, among
other things, injunctive relief to "restore its surface water collecting facility
situated on plaintiff's land, to a functioning state and to protect it against further
deterioration by reason of excessive water runoff." Plaintiff alleged that though
much of the damaging surface water entering her property fell outside the
Township's subsurface easement boundary, if the Township properly maintained
the area, it "would abate a considerable amount of water intrusion." In
subsequent amended complaints, plaintiff reiterated her claim the water trespass
was a "nuisance" on her property and she claimed the Township was liable under
the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, for failing to
fix a "dangerous condition of public property." N.J.S.A. 59:4-2.
During discovery, plaintiff hired two engineering experts. They gave
similar opinions. One has since died. The other has opined that according to a
1973 drainage map the water runoff design had included "swales" to direct the
surface water to the proper inlet destination. The swales on the upslope property
A-4804-17T4
4
were now "absent." The expert found this was the direct cause of the water
overflow to unintended parts of plaintiff's property. Although the expert
determined the damage to plaintiff 's home was caused by surface water rather
than ground water, he concluded the Township's failure to abate the uncontrolled
water discharge onto her property led to increased hydrostatic pressure against
the foundation of the home causing severe structural damage. Specifically, the
expert reported:
It is my observation that the surface water runoff
pattern remains unchanged and that the opinions stated
in my February 6, 2017 certification letter still hold
true.
Specifically, surface water runoff from the
neighboring properties continues to be directed onto
[plaintiff's] back and side yards. This surface water is
coming from the three neighboring properties to the
rear of [plaintiff's] property that slope and drain toward
her property. The three adjoining properties [are] . . .
tax map lots 8, 9 and 10 on block 571 respectively[].
Each of these properties slope from Mountainview
Road down toward the rear property line of [plaintiff's]
property, and toward the property lines of her neighbors
....
During my March 31, 2017 inspection, I observed
that the stormwater runoff from the Mountainview
properties continues to flow directly over the property
lines onto each of the downslope Windybush Way
properties. This is due to the absence of the swales that
are shown on the 1973 Briarwood Drainage Plan and on
A-4804-17T4
5
the deed of . . . Lot 9[], and as reported by [another]
engineer . . . .
I have also reviewed the reports and findings of
Robert Weatherford, P.E., and they agree with my own
findings and conclusions. The water infiltration, wall
cracking, and wall failure of [plaintiff's] foundation
walls was caused by excessive water and soil pressure
bearing against these walls.
The piezometric monitoring that was performed
and recorded by Mr. Weatherford showed that the local
water table does not rise above the elevation of the
basement slab. Therefore, the water infiltration
through the foundation walls, and the failure of the
walls, was caused [sic] not caused by ground water, but
instead surface water.
In summary, I agree with Mr. Weatherford's
conclusions that, to a reasonable degree of engineering
probability, that the increasing amounts of impervious
surfaces added to the Mountainview properties and the
missing swales caused a surface water runoff problem
that should have been addressed by Ewing Township in
a timely manner.
The Township's expert agreed the damage to plaintiff's home was caused
by surface water but believed the Township had properly maintained its
subsurface easements. The expert also noted that though the water runoff did
not flow to the intended inlet in plaintiff's yard, there was no evidence that
plaintiff, as a consequence of living at the bottom of a slope, had ever attempted
to mitigate the damages by re-grading her property or maintaining the swales.
A-4804-17T4
6
The Township filed a motion for summary judgment. Addressing the
Township's liability for failure to maintain the surface drainage easement, the
court found the Township had no duty to maintain the easement or swales
thereon because it never "accepted" the easement. As the Township had never
accepted an easement on the surface, but the maps showed an easement did in
fact exist, the court concluded plaintiff, as the benefiting estate, was the
dominant estate who had the obligation to maintain it:
In terms of the nature and scope of the easement,
the [map] says, well, you can't plant anything in it other
than grass. All right. And as is already stated, the
owner of the easement has the obligation to maintain it,
who owns it.
If it's an easement without owner, then it doesn't
seem to me that it's an easement at all. Here, the
Township says they don't want it. [Plaintiff] says she
doesn't want it. There's nobody else in the world who
would want it.
....
This easement goes along the back yard of the
property, not accessible to the public. Can't say it's for
the public use or that it was ever applied for public use.
If you accept the argument that the reason for these
drainage easements was to have swales so that they
would funnel the water to the catch basin where the
grate is on the ground surface to be able to carry away
the water, well, the benefit of having that would be the
property owner downhill, which is [plaintiff].
A-4804-17T4
7
It's to her benefit or the property's benefit, if she
-- if not the general public. So if she's the one who's
the beneficiary of having these swales, then it's very
easy to say that if she's a beneficiary estate, then she's
the dominant estate.
And she would have the . . . obligation to
maintain it. . . .
The court also rejected plaintiff's nuisance theory:
Here, it's been argued that it's a nuisance because
the grading of the properties makes it so the water runs
across her property. But without there being some
construct like a water pipe or a swale that all of a
sudden directed it there without her consent, then there
isn't any nuisance by way of an ordinance.
The swale, of course, was supposed to funnel
water onto her property, because that's where the catch
basin was, but that's the way the property was built.
That's the way the easements were on the property. So
she must have consented to those swales. So the fact of
those swales would not have been a nuisance.
The court found there were no genuine issues of material fact in dispute
and granted the Township's summary judgment motion. Plaintiff appealed from
the ensuing order.
Plaintiff presents the following argument points for our consideration:
POINT I
MOTION JUDGE COMMITTED PLAIN ERROR BY
AFFIRMING RESPONDENT EWING TOWNSHIP'S
RESTRICTIVE INTERPRETATION OF ITS WATER
A-4804-17T4
8
NUISANCE ORDINANCE TO APPLY ONLY TO
WATER DELIVERED ACROSS PROPERTY LINES
BY PIPE OR SWALE AND NOT TO PROHIBIT
WATER OVERFLOWING [FROM] DEFECTIVE
STORM WATER DRAINAGE SWALES ONTO
ADJACENT PROPERTIES.
POINT II
NEITHER THE LAW DIVISION'S IN LIMINE
RULING AS TO THE MEANING OF EWING'S
NUISANCE ORDINANCE NOR ITS SUMMARY
JUDGMENT THAT EWING DOES NOT OWN THE
SURFACE DRAINAGE EASEMENT,
EXONERATES EWING FROM ITS COMMON LAW
LIABILITY TO PLAINTIFF FOR ITS FAILURE TO
ABATE AN ACTIVE, DAMAGING COMMON LAW
WATER NUISANCE CAUSED OR CONTRIBUTED
TO BY EWING'S NEGLIGENT MAINTENANCE
AND REPAIR OF ITS ADMITTED SUBSURFACE
DRAINAGE SYSTEM AND FOR ITS FAILURE TO
REQUIRE THIRD PARTIES (IF NOT ITSELF) TO
RESTORE THE COMPROMI[S]ED SURFACE
DRAINAGE SWALE AND ITS CONNECTION TO
THE CATCH BASIN ALLOWING ITS
SUBSURFACE SYSTEM TO FUNCTION.
THEREFORE THE LAW DIVISION COMMITTED
REVERSIBLE ERROR BY GRANTING SUMMARY
JUDGMENT DISMISSING PLAINTIFF'S
COMPLAINT WITHOUT A PLENARY HEARING
AS TO THE MANY DISPUTED MATERIAL FACTS
AND WITHOUT SETTING FORTH THE FACTS
AND LAW WHICH JUSTIFIED DOING SO.
POINT III
MOTION COURT COMMITTED REVERSIBLE
ERROR BY ENTERTAINING AND GRANTING
A-4804-17T4
9
EWING TOWNSHIP'S MOTION FOR SUMMARY
JUDGMENT DESPITE CLEARLY IDENTIFIED
CONTESTED ISSUES OF MATERIAL FACTS
BEARING ON THE COURT'S DECISION AS TO
WHETHER THE BRIARWOOD SURFACE
EASEMENTS WERE AN INTEGRAL PART OF A
SINGLE SYSTEM RATHER THAN TWO
SEPARATE SYSTEMS AND WHETHER EWING
EVER HAD AN ACTUAL DEED OF DEDICATION,
AND WHETHER EWING WAS NEGLIGENT IN ITS
MANAGEMENT OF THE SUBSURFACE SYSTEM
AND IN ITS RECONSTRUCTION.
POINT IV
APPELLATE DIVISION SHOULD EXERCISE ITS
ORIGINAL JURISDICTION AUTHORITY TO
REMEDY THE FAILURE OF THE RESPONDENT
TO CALL TO THE MOTION JUDGE'S ATTENTION
ORDINANCE §215-62A (10) (a) BY WHICH EWING
TOWNSHIP WAS PROVIDED THE RIGHTS-OF-
WAY OVER BRIARWOOD'S SURFACE AND
SUBSURFACE STORM DRAIN EASEMENTS AND
ITS REASONS FOR NOT WITHDRAWING OR
EXPLAINING WHY SAID PROVISION IS NOT
PERTINENT TO DETERMINING THE OWNERSHIP
OF THE BRIARWOOD DRAINAGE EASEMENT
RIGHTS OF WAY.
We affirm, substantially for the reasons expressed by the trial court
concerning the easements for the swales on the upslope properties. We add the
following brief comments.
A public entity's liability for a nuisance "is recognized [as a dangerous
condition of property] under the [TCA]." Russo Farms v. Bd. of Educ., 144 N.J.
A-4804-17T4
10
84, 98 (1996) (first alteration in original) (quoting Birchwood Lakes Colony
Club, Inc. v. Borough of Medford Lakes, 90 N.J. 582, 593 (1982)). The
controlling statute, N.J.S.A. 59:4-2, sets forth the elements a plaintiff must
establish to hold a public entity liable for a "dangerous condition" of "its"
property. The TCA defines "public property" as "real or personal property
owned or controlled by the public entity, but does not include easements,
encroachments and other property that are located on the property of the public
entity but are not owned or controlled by the public entity." N.J.S.A. 59:4 -1.
"[R]egulatory control is insufficient to establish control within the
meaning of N.J.S.A. 59:4-1c." Posey ex rel. Posey v. Bordentown Sewerage
Auth., 171 N.J. 172, 183 (2002). Rather, "possessory control consistent with
property law is necessary." Ibid. The element of "possessory control is satisfied
where a public entity treats private property as its own by using it for public
purposes." Id. at 184. In Posey, the Court held that because an "alleged
integrated storm-water drainage system reasonably could be found to exist[,]"
the purpose of which "was to remove excess water from public property," a goal
"allegedly . . . achieved by directing the water onto private property[,]" resulting
in the creation of a dangerous condition on the private property, the public entity
A-4804-17T4
11
could be held liable for damages proximately caused by the dangerous condition.
Id. at 185.
Plaintiff's efforts to bring the facts of the case before us within the
precepts of Posey is unavailing. The swales plaintiff's expert identified as the
cause of plaintiff's problems were not on public property. The facts plaintiff
developed on the motion record, even when construed in a manner most
favorable to her, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995), do not support an inference the swales were part of the Township's
integrated surface water drainage system, the purpose of the swales was to divert
excess water from public property, or that excess water diverted from public
property was discharged onto plaintiff's property. Summary judgment was
appropriate. Ibid.
Plaintiff's remaining arguments are without sufficient merit to warrant
further discussion. R. 2:11-3(e)(1)(E).
Affirmed.
A-4804-17T4
12 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/151024/ | NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 19 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
ZHIDONG ZHU, No. 08-71535
Petitioner, Agency No. A096-345-836
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Zhidong Zhu, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order summarily dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his motion to reopen removal
proceedings conducted in absentia. Our jurisdiction is governed by
*
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).
8 U.S.C. § 1252. Reviewing for abuse of discretion, Perez v. Mukasey, 516 F.3d
770, 773 (9th Cir. 2008), we deny in part and dismiss in part the petition for
review.
The IJ did not abuse his discretion in denying Zhu’s motion to reopen
because written notice of the hearing was mailed to Zhu and to his counsel of
record, and the motion was untimely filed three years after the issuance of the
April 13, 2004, in absentia order. See 8 C.F.R. § 1003.23(b)(4)(ii).
The IJ also did not abuse his discretion in determining the evidence of
religious persecution was insufficient to establish a showing of changed country
conditions in China, see 8 C.F.R. § 1003.23(b)(4)(i), and that evidence of
smugglers’ threats was insufficient to establish prima facie eligibility for asylum,
withholding of removal, and relief under the Convention Against Torture, see
Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1171 (9th Cir. 2006) (prima facie
eligibility is established “where the evidence reveals a reasonable likelihood that
the statutory requirements for relief have been satisfied”).
We lack jurisdiction to consider Zhu’s contention that the IJ incorrectly
determined that Zhu was removable as charged because Zhu failed to exhaust this
contention before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004) (generally requiring exhaustion of claims before the BIA).
2 08-71535
We lack jurisdiction to review Zhu’s contention that the IJ should have
invoked his sua sponte authority to reopen his proceedings. See Ekimian v. INS,
303 F.3d 1153, 1159 (9th Cir. 2002).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 08-71535 | 01-03-2023 | 07-20-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3838604/ | (No Syllabus.)
Divorce, 19 C.J., p. 55, n. 29, p. 142, n. 52, p. 143, n. 52.
This appeal is from a decree granting the plaintiff a divorce from the defendant on the grounds of cruel and inhuman treatment. The charge against defendant is communication of a venereal disease. The only contention is whether or not such a disease was communicated by the defendant to the plaintiff. It is not disputed that the communication of such a disease by one spouse to the other constitutes cruel and inhuman treatment. The question to be determined on the appeal as in the trial of the lower court is solely one of fact. We have carefully read the testimony, including the exhibits, and believe the evidence preponderates in favor of the defendant. The evidence is convincing that the defendant did not have the disease. The testimony in behalf of plaintiff fails to prove that she was afflicted with a venereal disease. She refused to submit to an independent scientific examination to determine whether or not she was or had been so afflicted. Defendant expressed a firm conviction that plaintiff never suffered from a disease of that nature. The testimony of the physician upon which she relies does not prove that she was so afflicted. Two other physicians, skilled in the science of medicine to whom plaintiff applied for treatment, pronounced her ailment other than venereal. Defendant expressed on the witness-stand implicit confidence in the integrity and virtue *Page 626
of plaintiff. We believe plaintiff was misinformed concerning the nature of her illness and accused defendant wrongfully. It would serve no good purpose to set out the evidence in this opinion. The decree is reversed, and one entered here dismissing the suit.
REVERSED AND DECREE ENTERED.
BURNETT, C.J., and McBRIDE and RAND, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3835233/ | The defendant in error commenced this action October 19, 1910, against the plaintiff in error by filing his petition in the district court of Custer county to recover the sum of $2,285.45, which it is alleged the plaintiff in error owed the defendant in error for building material.
On the 11th day of April, 1911, upon agreement of the parties, the cause was referred to a referee to take testimony, make findings of fact and conclusions of law in the cause, and report same to the district court. Thereafter, pursuant to the order of the court, the referee took testimony, made findings of fact and conclusions of law, *Page 680
and filed the same in the district court October 25, 1912. On the last-mentioned date the record discloses that the plaintiff in error filed a motion for a new trial.
On November 7, 1912, the report of the referee came up for hearing before the court, and the same was confirmed, and a judgment rendered against the plaintiff in error, as recommended by the said referee. However, the record nowhere discloses that the court ever acted upon the motion for a new trial.
The plaintiff in error only complains here of errors that occurred during the trial of the cause, and this court has repeatedly held in a long line of well-considered cases that errors occurring during the trial cannot be considered by the court unless a motion for a new trial, founded upon and including such errors, has been made by the complaining party and acted upon by the trial court, and its rulings excepted to and afterwards assigned for error in the Supreme Court. Keev. Park et al., 32 Okla. 302, 122 P. 712; Stinchcombet al. v. Myers, 28 Okla. 597, 115 P. 602, and cases cited therein; Greer v. Moorman et al., 40 Okla. 30,135 P. 736; St. L. S. F. R. Co. v. Leake et al.,34 Okla. 77, 123 P. 1125.
The appeal should therefore be dismissed.
By the Court: It is so ordered. *Page 681 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3394185/ | This was a suit by a subsequent grantee against the defendants Euphemia L. Kelliher and Patrick F. Kelliher, her husband, to recover the amount paid to the Kellihers by L. Horn, G. A. Petteway, D.C. McMullen and M. W. Ulmer, grantees in a warranty deed. The plaintiff was the grantee in a deed from the original grantees of the Kellihers, the suit being based upon the alleged breach of the covenant of warranty of title contained in the Kelliher deed. First, we will observe that the Kelliher *Page 384
deed appears to have been made to convey the separate estate of Euphemia L. Kelliher, although the warranty was the joint warranty of the grantors Euphemia L. Kelliher and her husband, Patrick F. Kelliher. The deed appears to have been executed on the 10th day of March, 1910. The covenant of the warranty in the deed was:
"And the said parties of the first part, for themselves and their heirs; the above described premises and every part and parcel thereof, with the appurtenances, unto the said parties of the second part, their heirs and assigns, against the said parties of the first part and their heirs and assigns, against all and every person or persons lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend".
With and as a part of this covenant must be read Section 3813 R. G. S., which is as follows:
"A married woman who joins with her husband in executing a conveyance or mortgage of real property, or of any estate therein, may enter into any covenants as to the title or against encumbrances or of warranty, but such covenants shall have no other effect than to estop her and all persons claiming as her heirs, or by or through her, in the same manner as if she were not married."
This section was construed in the case of Couch vs. Palmer,57 Fla. 57, 48 So. 995, and there the Court held,
"Section 2472, General Statutes of Florida of 1906 is in effect an express legislative declaration that a married woman may covenant in a deed executed by herself and husband against encumbrances and for warranty of title, but that such covenants shall not bind or obligate her personally, but should operate only as an estoppel against her and all persons claiming by or through her. This statute applies as well to warranties *Page 385
contained in deeds by the wife conveying her separate property."
Therefore, although the warranty as expressed in the deed was general, it was by statute limited so that the covenant precluded the liability of a married woman for damages. The then existing statutory limitation became in legal contemplation a part of the covenant. Section 3813 R.G.S. was amended by chapter 12083 Acts of 1927 by adding the words, "except that her covenants and warranties which have been or may be made with respect to her separate statutory property shall bind her to the amount or the purchase price received by her for such property as if she were not married". To apply this provision to a covenant of warranty in a deed made and executed prior to the date of amendment would violate the due process clause of both the State and Federal Constitutions because by the application of that clause of the statute as it now exists the married woman would be held to a liability under a covenant which was denied and precluded by statute at the time the covenant was made and for this reason that part of the amendment which sought to affect covenants and warranties made and entered into prior to the passage of the Act was void.
The declaration in this case attempts to allege a liability against the married woman under a covenant of warranty to the amount of the purchase price received by her in the sum of $33,500.00. Such was not her covenant. Her covenant as limited by statute in force at the time of the institution of the suit was that her warranty should "have no other effect than to estop her and all persons claiming as her heirs, or by or through her, in the same manner as if she were not married."
A copy of the original deed from Euphemia L. Kelliher *Page 386
and her husband was attached to the declaration but does not appear to have been made a part thereof.
There was a demurrer to the declaration by each of the defendants. Demurrers were sustained and, the plaintiff refusing to plead further, judgment was entered in favor of the defendants.
The allegations of the declaration show that the defendant Euphemia L. Kelliher was not liable for damages on her covenant of warranty and, therefore, demurrers were properly sustained.
The judgment should be affirmed and it is so ordered.
Affirmed.
ELLIS AND BROWN, J.J., concur.
WHITFIELD, P.J., AND TERRELL AND DAVIS, J.J., concur in the opinion and judgment. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4553947/ | 08/07/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 15, 2020
VAUGHN HARRIS a.k.a. VAUGHN SHERWIN HARRIS v. STATE OF
TENNESSEE
Direct Appeals from the Criminal Court for Davidson County
No. 2005-A-179 Jennifer Smith, Judge
No. 95-B-1472 Angelita Blackshear Dalton, Judge
No. 2010-I-1168 Monte Watkins, Judge
___________________________________
No. M2019-01873-CCA-R3-PC
___________________________________
On September 3, 2019, Vaughn Harris, Petitioner, filed pro se petitions for post-
conviction relief in three Davidson County cases. The petitions were filed years after the
one-year statute of limitations in Tennessee Code Annotated section 40-30-102(a) had
expired. The post-conviction courts summarily dismissed the petitions as untimely.
Petitioner appealed claiming that the statutory exceptions in Tennessee Code Annotated
section 40-30-102(b) provided jurisdiction for the post-conviction courts to consider the
petitions and/or that he was entitled to due process tolling of the statute of limitations.
Pursuant to Tennessee Rule of Appellate Procedure 16(b), we ordered the three appeals to
be consolidated because they involved “common questions of law and/or common
facts.”1 After review of the record and applicable law, we affirm the summary dismissal
in all three cases.
Tenn. R. App. P. 3 Appeals as of Right; Judgments of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.
Vaughn Harris, Nashville, Tennessee. Pro Se.
1
We consolidated docket numbers M2019-01875-CCA-R3-PC (Criminal Court for Davidson
County No. 2010-I-1168) and M2019-02063-CCA-R3-PC (Criminal Court for Davidson County No. 95-
B-1472) under M2019-01873-CCA-R3-PC (Criminal Court for Davidson County No. 2005-A-179).
Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Doug Thurman,
Assistant District Attorney General (No. 2005-A-179); Roger Moore, Assistant District
Attorney General (No. 2010-I-1100); Amy Hunter, Assistant District Attorney General
(No. 95-B-1472) for the appellee, State of Tennessee.
OPINION
Procedural Background
Davidson County Case No. 2005-A-179, Jennifer Smith, Post-Conviction Judge
The Davidson County Grand Jury indicted Petitioner on February 1, 2005, for
felony reckless endangerment. The indictment alleged Petitioner “engage[d] in conduct
which placed or which might have placed individuals on the property of Vision Child
Development Center in imminent danger of death or serious bodily injury, said offense
being committed with a deadly weapon, to wit: a shotgun[.]” On May 5, 2005, Petitioner
entered a plea of guilty to the charged offense and was sentenced to one year in the
workhouse. According to the Special Conditions section of the judgment of conviction,
Petitioner was released for time served.
On September 3, 2019, Petitioner filed a pro se petition for post-conviction relief
using the form provided in Tennessee Supreme Court Rule 28, Appendix A (the “Rule 28
form”). Petitioner checked all eleven boxes under “Grounds of Petition.” In the narrative
section of the Rule 28 form, Petitioner claimed, as best as we can tell, that his plea was
not entered knowingly and voluntarily and was based on a coerced confession by the trial
judge, that he received ineffective assistance of counsel because his counsel “lied” by
telling him that he could not file a post-conviction relief petition, and that there was new
scientific evidence that proved his innocence.
The Rule 28 form contains numerous questions followed by a space for a
petitioner to answer. Question 11 provides:
11. If more than one (1) year has passed since the date of final action, or
your direct appeal to the state appellate courts, state why the statute of
limitations should not bar your claim.
(Petitioner’s answer): Due to ineffective assistance of counsel! My lawyer
lied to me and claimed I could not file any post[-]conviction remedies or
appeals to my case or plea conviction. This misrepresentation by my legal
counsel hindered my filing a timely post[-]conviction relief petition in a
2
timely manner. I only recently learned that I had the right to post[-]
conviction relief of a false conviction.
The “new scientific evidence that proved [Petitioner’s] innocence” was
Petitioner’s “sworn” statement in the petition that he did not have a weapon during the
incident that led to the charge of reckless endangerment.
By written order entered on September 17, 2019, the post-conviction court
summarily dismissed the petition finding:
Tennessee Code Ann[otated section] 40-30-102 imposes a one-year
statute of limitations for post-conviction actions. [P]etitioner’s judgment of
conviction was entered May 5, 2005. Because [P]etitioner filed no direct
appeal, his judgment became final thirty days later[,] on June 5, 2005. He
was thus required to file any post-conviction petition by June 5, 2006. The
instant petition, filed more than thirteen years after that date, is thus
untimely.
Moreover, the petition includes no valid ground for equitable tolling
of the one-year filing period. Petitioner contends he failed to file a petition
within the one-year period due to ineffective assistance of counsel,
specifically, in that h[is] counsel “claimed I could not file any post-
conviction remedies or appeal to my case or plea conviction.” Petitioner, at
p. 3. But the Tennessee Supreme Court has not held that trial or appellate
counsel’s inadvertent or negligent failure to inform a client of the right to
file a post-conviction petition is a sufficient basis to toll the statute of
limitations. See Smith v. State, 357 S.W.3d 322, 358 (Tenn. 2011)
(explaining that pervasive theme of tolling is that circumstances beyond a
petitioner’s control prevented him or her from filing a petition within the
one-year period). See also State v. Phillips, 904 S.W.2d 123, 124 (Tenn.
Crim. App. 1995) (holding that the [d]efendant’s petition for post-
conviction relief was time-barred, notwithstanding claim that attorney
consulted by defendant within statutory period of conviction advised
against seeking post-conviction relief). Moreover, ignorance of the law
does not rise to the level of violating due process for tolling purposes.
Davidson County Case No. 95-B-1472, Angelita Blackshear Dalton, Post-Conviction
Judge
The Davidson County Grand Jury indicted Petitioner on June 16, 1995, for selling
less than .5 gram of cocaine. On October 6, 1995, Defendant pled guilty to facilitation of
a sale of less than .5 gram of cocaine and was sentenced to two years. He was released
for time served and the balance of his sentence was ordered to be served on probation.
3
On September 3, 2019, Petitioner filed a pro se petition for post-conviction relief
using the Rule 28 form. Petitioner checked all eleven boxes under the “Grounds of
Petition.” In the narrative section of the form, Petitioner claimed, as best as we can tell,
that his plea was not entered knowingly and voluntarily, that his plea was coerced by the
trial judge who “claimed [that he] could not plea[d] not guilty,” that trial counsel “told
[him] to lie to the court to get out of jail,” that trial counsel “lied” by telling him that he
could not file a post-conviction relief petition, and that there was new scientific evidence
that proved his innocence. Petitioner also claimed that the statute of limitations should be
tolled because “he only recently learned that [he] had post-conviction remedies that my
attorney waived and failed to inform me about.”
Question 11 of the Rule 28 form and Petitioner’s answer are as follows:
11. If more than one (1) year has passed since the date of final action, or
your direct appeal to the state appellate courts, state why the statute of
limitations should not bar your claim.
(Petitioner’s answer):
(1) I had no understanding of the plea I was given at the time the plea was
given.
(2) Because I was given ineffective of assistance of counsel, I was told to
take a plea when I should have gone to trial.
(3) I was given ineffective of assistance of counsel by (*several bias[ed])
lawyers[,]2 and
(4) I was told that my guilty plea waived my right to file a petition for
post[-]conviction relief by the lawyer which violated due process.
(5) I did not know I could file for post[-]conviction relief.
*Claim base[d] on new scientific evidence showing innocence of me,
[Petitioner].”
Concerning “newly discovered evidence,” Petitioner wrote: “The undercover cop
forced money into my hand. He then lied and claimed I sold him fake drugs: the
substance was false and not sold.”
2
The petition alleges that he was represented by three different attorneys from the Davidson
County Public Defender’s Office at various times during the pendency of the case.
4
The post-conviction court entered a comprehensive order. The court
“summarized” the petition “generally” as “alleging that Petitioner’s trial counsel was
ineffective during trial proceedings and in rendering advi[ce] about post-conviction
relief.” The court noted that Petitioner provided no “support” of his claim that “new
scientific evidence would show his innocence.”
After finding that the petition was untimely filed, the post-conviction court
examined certain exceptions that allow an untimely-filed petition to be considered and
certain grounds that justify due process tolling of the statute. The written order stated:
After review of [Petitioner’s] [p]etition, the [c]ourt finds that the
exceptions in [section] 40-30-102(b) and (c) do not apply. [Petitioner] does
not assert the existence of a new constitutional right that should be applied
retroactively and fails to specifically point to any scientific evidence that
would establish his actual innocence. Additionally, while [Petitioner’s]
petition alleges that an invalid prior conviction upon which the present
conviction relied . . . warrants post-conviction relief, he does not articulate
any specific prior conviction, and the [c]ourt finds no prior conviction that
[Petitioner] could rely on for relief. In general, [Petitioner]’s contentions
relevant to [section] 40-30-102(b) are without merit. Further, [section] 40-
30-102(c) does not apply because [Petitioner] is not seeking to reopen a
post-conviction proceeding that has been concluded.
Since [Petitioner’s] [p]etition is time-barred under [section] 40-30-
102, and no exception applies under [section] 40-30-102(b) or (c), the
[c]ourt must consider whether due process requires tolling the statute of
limitations. While due process may require tolling the statute of limitations
under certain circumstances, a post-conviction petitioner is entitled to
tolling only upon a showing that he has diligently pursued his rights and
that some extraordinary circumstance stood in his way and prevented
timely filing. See Whitehead v. State, 402 S.W.3d 615, 631 (Tenn. 2013)
(citing Holland v. Florida, 560 U.S. 631, 649 (2010)). The [c]ourt has
identified certain extraordinary circumstances in which due process
requires tolling the post-conviction statute of limitations. In every case in
which the [c]ourt has held that the statute of limitations warrants tolling,
“the pervasive theme is that circumstances beyond a petitioner’s control
prevented the petitioner from filing a petition for post-conviction relief
within the statute of limitations.” Smith v. State, 357 S.W.3d 322, 359
(Tenn. 2011). In [Petitioner’s] case, there is no showing of extraordinary
circumstances that prevented [Petitioner] from filing a post-conviction
petition before his current [p]etition for Post-Conviction Relief. First,
[Petitioner] does not assert a claim for relief that arose after the statute of
limitations period expired. In his petition, [Petitioner] challenges issues
5
that existed during trial proceedings, including ineffective assistance of
counsel and the voluntariness of his guilty plea. Because these issues
existed prior to the expiration of the statute of limitations period,
[Petitioner] had a reasonable opportunity to present his claims prior to his
current [p]etition. Second, [Petitioner] does not assert mental
incompetency in his pro se [p]etition that prevented him from presenting
his claims during the statute of limitations period. Third, [Petitioner’s]
allegation that his attorney misinformed him about his ability to file for
post-conviction relief is insufficient to toll the statute of limitations; an
attorney’s negligent failure to render advice to the petitioner as to the
statute of limitations period does not require tolling. The circumstances in
this case are not extraordinary circumstances that warrant tolling the statute
of limitations on due process grounds.
The post-conviction court denied the petition.
Davidson County Case No. 2010-I-1168, Monte Watkins, Post-Conviction Judge
The Davidson County Grand Jury indicted Petitioner on November 3, 2010, for
sale of less than .5 gram of cocaine. On November 3, 2010, Petitioner entered a plea of
guilty to the charged offense and was sentenced to six years as a Range II, multiple
offender, to be served on community corrections.
As was the case with the two petitions discussed above, Petitioner filed a pro se
petition for post-conviction relief on September 3, 2019, using the Rule 28 form, and
checked all eleven boxes under “Grounds of Petition.” Question 11 and Petitioner’s
answer are as follows:
11. If more than one (1) year has passed since the date of final action, or
your direct appeal to the state appellate courts, state why the statute of
limitations should not bar your claim.
(Petitioner’s answer): I did not raise claim earlier because my attorney was
ineffective. I was given ineffective assistance of counsel because my
lawyer lied to me and claimed I could not file any post[-]conviction
remedies or appeals to my case or plea[.]
In the narrative section, Petitioner claimed, as best as we can tell, that his plea was
not entered knowingly and voluntarily, that he received ineffective assistance of counsel
because his counsel “lied” by telling him that he could not file a post-conviction relief
petition or an appeal, and that there was new scientific evidence that proved his
innocence. Without addressing the statutory exceptions in Tennessee Code Annotated
6
section 40-30-102(b) or due process tolling, the post-conviction court summarily
dismissed the petition by written order, stating:
After examination of the petition for post-conviction relief, this court
finds that pursuant to Tennessee Code Annotated section 40-30-102(a)
[P]etitioner’s petition is time barred. The petition was filed more than one
year after the final judgment was entered. The final judgment was entered
on November 3, 2010. Therefore, the petition is DENIED.
Petitioner timely filed a notice of appeal in all three cases.
ANALYSIS
Deficient Briefs of Petitioner
Petitioner filed handwritten briefs that do not comply with Tennessee Rules of
Appellate Procedure, Rule 27(a), which requires:
(a) Brief of the Appellant. The brief of the appellant shall contain
under appropriate headings and in the order here indicated:
(1) A table of contents, with references to the pages in the brief;
(2) A table of authorities, including cases (alphabetically arranged),
statutes and other authorities cited, with references to the pages in the brief
where they are cited;
(3) A jurisdictional statement in cases appealed to the Supreme
Court directly from the trial court indicating briefly the jurisdictional
grounds for the appeal to the Supreme Court;
(4) A statement of the issues presented for review;
(5) A statement of the case, indicating briefly the nature of the case,
the course of proceedings, and its disposition in the court below;
(6) A statement of facts, setting forth the facts relevant to the issues
presented for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of
argument, setting forth:
7
(A) the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why
the contentions require appellate relief, with citations to the
authorities and appropriate references to the record (which
may be quoted verbatim) relied on; and
(B) for each issue, a concise statement of the applicable
standard of review (which may appear in the discussion of the
issue or under a separate heading placed before the discussion
of the issues);
(8) A short conclusion, stating the precise relief sought.
Tenn. R. App. P. 27(a).
Petitioner’s briefs consist only of rambling arguments which somewhat comply
with Rule 27(a)(7)(A). Petitioner also filed “Reply Briefs” in each of these three cases,
which were copies of the State’s briefs, on which he marked through certain parts and
wrote his changes in ink. Despite the obvious deficiencies of Petitioner’s briefs, we will
address, as best as we can, Petitioner’s claims because Petitioner is pro se and because he
claims that “he is being held in the Metropolitan Government of Nashville, Tennessee
pretrial prison jail” and that he has “no adequate access to legal law books.”
Issues on Appeal
Because Petitioner failed to provide a “statement of issues presented for review”
as required by Tennessee Rule of Appellate Procedure 27(a)(4), we will address the issue
on appeal as framed by the State: “Whether due process tolling of the post-conviction
statute of limitations is warranted[.]” The State argues that the post-conviction courts
properly summarily dismissed the petitions as untimely because Petitioner “cannot show
that extraordinary circumstances beyond his control prevented timely filing or that he was
reasonably diligent in pursuing his rights.” We agree with the State that due process
tolling is not warranted. We also determine that none of the statutory exceptions
providing the post-conviction court jurisdiction to consider a petition filed after the
expiration of the limitations period apply. See Tenn. Code Ann. § 40-30-102(b) (2019).
Statute of Limitations
Tennessee Code Annotated section 40-30-102(a) (2019) provides in pertinent part
that
a person in custody under a sentence of a court of this state must petition
for post-conviction relief under this part within one (1) year of the date of
the final action of the highest state appellate court to which an appeal is
8
taken or, if no appeal is taken, within one (1) year of the date on which the
judgment became final, or consideration of the petition shall be barred.
Petitioner was required to file his post-conviction petition by June 5, 2006, in Case
No. 2005-A-179; by November 6, 1995, in Case No. 95-B-1472; and by December 3,
2011, in Case No. 2010-I-1168. As previously stated, Petitioner filed his three petitions
on September 3, 2019.3
Statutory Exceptions Allowing Courts to Consider Untimely Petitions
Tennessee Code Annotated section 40-30-102(b) (2019) provides that
[n]o court shall have jurisdiction to consider a petition filed after the
expiration of the limitations period unless:
(1) [t]he claim in the petition is based upon a final ruling of
an appellate court establishing a constitutional right that was
not recognized as existing at the time of trial, if retrospective
application of that right is required. The petition must be
filed within one (1) year of the ruling of the highest state
appellate court or the United States supreme court
establishing a constitutional right that was not recognized as
existing at the time of trial;
(2) [t]he claim in the petition is based upon new scientific
evidence establishing that the petitioner is actually innocent
of the offense or offenses for which the petitioner was
convicted; or
(3) [t]he claim asserted in the petition seeks relief from a
sentence that was enhanced because of a previous conviction
and the conviction in the case in which the claim is asserted
was not a guilty plea with an agreed sentence, and the
previous conviction has subsequently been held to be invalid,
in which case the petition must be filed within one (1) year of
the finality of the ruling holding the previous conviction to be
invalid.
3
Based on the statements in Petitioner’s briefs related to his current incarceration, we will give
Petitioner the benefit of the doubt and assume that the State is attempting to use his felony convictions in
case numbers 2005-A-179, 95-B-1472, and 2010-I-1168 to enhance his range classification in his pending
case. Therefore, at the time the petition was filed, Petitioner was “in custody” for the purposes of post-
conviction relief.
9
Tenn. Code Ann. §§ 40-30-102(b)(1)-(3) (2019).
Petitioner does not identify any “final ruling of an appellate court establishing a
constitutional right that was not recognized as existing at the time” he entered his pleas of
guilty. Petitioner claims that his “sworn” statements in his petitions are “new scientific
evidence establishing that [Petitioner] is actually innocent.” We fail to understand how
Petitioner’s statements about the offenses he committed are new, and they certainly are
not scientific. In his petition in Case No. 2005-A-179, Petitioner claims that his sentence
for felony reckless endangerment was enhanced because of a prior conviction in Case
Number 95-B-1472 which “is false and was dismissed.” The judgment of conviction in
Case No. 2005-A-179 shows that Petitioner received the minimum sentence and was
released based on time served. The sentence was not enhanced by any prior conviction.
Petitioner does not identify prior convictions which he claimed were subsequently held
to be invalid in the other two cases.
There is nothing in the record to suggest that any of the exceptions in Tennessee
Code Annotated section 40-30-102(b) apply to any of Petitioner’s three cases. The post-
conviction courts properly found that Petitioner failed to timely file his petitions.
Due Process Tolling
If a petitioner fails to file a timely petition, the post-conviction court does not have
jurisdiction, unless due process requires tolling of the statute of limitations. See Tenn.
Code Ann. § 40-30-102(a) (2019); Whitehead v. State, 402 S.W.3d 615, 622-31 (Tenn.
2013). “Issues regarding whether due process requires tolling of the post-conviction
statute of limitations are mixed questions of law and fact and are, therefore, subject to de
novo review.” Id. at 621. Tennessee courts “have previously recognized that in certain
circumstances, strict application of the statute of limitations would deny a defendant a
reasonable opportunity to bring a post-conviction claim and thus, would violate due
process.” Williams v. State, 44 S.W.3d 464, 468 (Tenn. 2001). “A petitioner is entitled
to due process tolling upon a showing (1) that he or she has been pursuing his or her
rights diligently, and (2) that some extraordinary circumstance stood in his or her way
and prevented timely filing.” Whitehead, 402 S.W.3d at 631 (citing Holland v. Florida,
560 U.S. 631, 648 (2012)).
The running of the post-conviction statute of limitations can be tolled based on
due process in cases “(1) where the grounds for overturning the conviction arose after the
statute of limitations had run; (2) where the prisoner was mentally incompetent; and (3)
where a prisoner has been actively misled by attorney misconduct.” Bush v. State, 428
S.W.3d 1, 23 (Tenn. 2014) (citing Whitehead, 402 S.W.3d at 623-24). On appeal,
Petitioner claims that he is entitled to due process tolling based on all three of the grounds
in Bush.
10
Grounds Arising After the Statute of Limitations Had Run
In Whitehead, the supreme court, citing Burford v. State, 845 S.W.2d 204, 208
(Tenn. 1992), established that under certain circumstances, the statute of limitations could
deny prisoners due process. Whitehead, 402 S.W.3d at 623. In Burford, a prisoner’s
sentence was lengthened on account of several prior convictions that were overturned
after the statute of limitations had expired. The Burford court determined that the post-
conviction statutory filing deadline would have unfairly denied the petitioner relief.
Burford, 845 S.W.2d at 210.
As discussed above, Petitioner claims that his sentence for felony reckless
endangerment was increased because of a prior conviction in case number 95-B-1472
which “is false and was dismissed.” This claim is completely without merit. In all three
cases, Petitioner claims that his “sixth and fourteenth amendment rights . . . were not
recognized at the time of trial due to my attorney’s ineffective assistance of counsel.”
This claim is also meritless. The appellate records in all three cases include a “Petition to
Enter Plea of Guilty” and the “Order” of the trial court accepting the plea. These
documents show that Petitioner was advised of and waived his constitutional rights and
that those rights were recognized at the time he pleaded guilty.
Mentally Incompetent
Mental incompetence can be an extraordinary circumstance that warrants due
process tolling. Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000); Watkins v. State, 903
S.W.2d 302, 307 (Tenn. 1995). However, this argument is not properly before us
because it is being raised by Petitioner for the first time on appeal. Petitioner did not
raise mental incompetence anywhere in the three post-conviction petitions.
Consequently, this argument has been waived because it was not presented to the post-
conviction court below. Cone v. State, 747 S.W.2d 353, 356 (Tenn. Crim. App. 1987).
Moreover, Petitioner makes only an unsupported allegation of mental incompetence
without making any effort to describe the nature of his condition or how it kept him from
timely filing a post-conviction petition. Petitioner is not entitled to due process tolling on
the basis of mental incompetence.
Allegations of Misrepresentation by Trial Counsel
Petitioner claims that he is entitled to due process tolling of the statute of
limitations because trial counsel told him that he could not file a petition for post-
conviction relief. He claims that he only recently learned that he had the right to petition
for post-conviction relief. In each of the three petitions, he claims that he was “lied to”
because trial counsel told him that he could not file a petition for post-conviction relief.
As both Judge Dalton and Judge Smith stated in their written order, “trial or appellate
counsel’s inadvertent or negligent failure to inform a client of the right to file a post-
11
conviction petition is a sufficient basis to toll the statute of limitations.” See Smith v.
State, 357 S.W.3d 322, 358 (Tenn. 2011).
Typically, appellate courts defer issues of credibility to the trial court or post-
conviction court because those judges hear and observe the witness. Because the
summary dismissals of these cases were based on the contents of the sworn petitions, not
on the appearance and oral testimony of witnesses at a post-conviction hearing, this court
is “in just as good a position as the [post-conviction] court to judge the credibility of
[Petitioner].” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783-84 (Tenn. 1999); see
also Ingram v. Wasson, 379 S.W.3d 227, 237 (Tenn. Ct. App. 2011) (stating that because
all of the testimony was submitted by affidavit, the appellate court may make an
independent assessment of the witnesses’ credibility). Reading the three petitions
together, Petitioner claims that, over a period of more than fifteen years, three different
trial counsel in three different plea hearings lied to him about something that counsel had
no legal duty to even discuss with him. We find Petitioner’s statements concerning trial
counsels’ lying to him are not credible and Petitioner’s claims are meritless.
CONCLUSION
We hold that none of the statutory exceptions of Tennessee Code Annotated
section 40-30-102(b) apply to Petitioner’s cases and that Petitioner has failed to show that
he is entitled to due process tolling. Petitioner has not pursued his rights diligently, and
no extraordinary circumstance stood in his way and prevented timely filing. Whitehead,
402 S.W.3d at 631. We affirm the post-conviction courts summary dismissal of the
petitions as untimely.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
12 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4553949/ | NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2020 VT 64
Nos. 2019-131 & 2019-132
Green Mountain Fireworks, LLC Supreme Court
On Appeal from
v. Superior Court, Chittenden Unit,
Civil Division
Town of Colchester et al. October Term, 2019
Matthew Lavigne
v.
Town of Colchester et al.
Helen M. Toor, J.
John L. Franco, Jr., Burlington, for Plaintiffs-Appellants.
Brian P. Monaghan and James F. Conway, III of Monaghan Safar Ducham PLLC, Burlington,
for Defendants-Appellees.
PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Dooley, J. (Ret.) and
Pearson, Supr. J. (Ret.), Specially Assigned
¶ 1. ROBINSON, J. This consolidated appeal requires us to determine whether 20
V.S.A. § 3132(a)(1) authorizes municipalities to grant permits for the general retail sale of
fireworks to consumers who do not hold valid permits to display those fireworks. Green Mountain
Fireworks, LLC, a fireworks retailer, and its sole owner Matthew Lavigne (collectively
appellants)1 appeal the superior court’s dismissal of two actions: (1) their appeal of the Town of
1
Green Mountain Fireworks is listed in the caption as the plaintiff in the declaratory-
judgment case, and Mr. Lavigne was the plaintiff in the Vermont Rule of Civil Procedure 75
Colchester selectboard’s denial of their application for a permit to sell fireworks pursuant to 20
V.S.A. § 3132(a)(1), and (2) their request for a declaratory judgment that—even without that
distinct permit—they have “all possible and applicable permits” and are permitted under § 3132
to sell fireworks in the manner described in their complaint. We conclude that § 3132(a)(1)
requires a distinct permit for the sale of fireworks, but does not authorize a permit for the general
retail sale of fireworks along the lines proposed by appellants. The only fireworks sales authorized
by the statute are sales to the holder of a display permit for the purpose of the permitted display.2
For these reasons, we affirm both judgments.
¶ 2. The record, viewed in the light most favorable to appellants, reveals the following
facts. In May 2018, appellants began selling fireworks from a retail store in Colchester, Vermont.
As described in their complaint, the “intended purpose” for the store was “to sell retail fireworks
to consumers.” In relation to the retail store, appellants obtained a license from the U.S. Bureau
of Alcohol, Tobacco, Firearms and Explosives (ATF) as a “Type 53 - Dealer of Explosives.” They
also got a building permit and a certificate of occupancy from the Town Zoning Administrator.
These zoning permits were the only two permit applications appellants submitted to the Town.
appeal, but for the purposes of this appeal we treat them as synonymous. For convenience, unless
otherwise specified, we use the term “appellants” to describe actions taken by either or both
appellants.
2
As defined in 20 V.S.A. § 3131, the term “fireworks” means “any combustible or
explosive composition, or any substance or combination of substances, or article prepared for the
purpose of producing a visible or an audible effect by combustion, explosion, deflagration or
detonation.” In contrast to federal law, Vermont law does not distinguish between consumer-grade
fireworks and display-grade fireworks. Cf. 27 C.F.R. § 555.11 (defining consumer fireworks in
part as “small firework device[s]” including “whistling devices, ground devices containing 50 mg
or less of explosive materials, and aerial devices containing 130 mg or less of explosive materials,”
and defining display fireworks in part as “[l]arge fireworks,” including “display pieces which
exceed the limits of explosive materials for classification as ‘consumer fireworks’ ”). Vermont
law does distinguish between “fireworks” and a “sparkler,” which refers to small hand-held wire
or wood sparklers, glow worms, smoke devices, string poppers, and the like. 20 V.S.A. § 3131.
In this opinion, we use the term “display fireworks” to refer to fireworks, regardless of size, that
are intended for use in a fireworks display permitted under 20 V.S.A. § 3132(c).
2
¶ 3. Shortly after Green Mountain Fireworks opened, the Chief of the Colchester Police
Department informed appellants that she believed they were operating illegally because they did
not have a municipal permit to sell fireworks under 20 V.S.A. § 3132(a)(1). That provision states
that no person may “[o]ffer for sale, expose for sale, sell at retail or wholesale, or possess fireworks
unless the person has been issued a permit by . . . the municipality in which the person offers for
sale and stores the fireworks.” In a letter dated May 31, 2018, the Town Manager told appellants
that the Town intended to seize the fireworks and seek criminal charges against Matthew Lavigne.
¶ 4. In response to this information, appellants filed a complaint with the superior court
seeking declaratory and injunctive relief. Specifically, they sought a declaration that having
received the zoning permits, they have “all possible and applicable permits and that the sales of
fireworks by [appellants] as described herein is permissible by 20 V.S.A. § 3132.” Around the
same time, appellants also applied to the Town selectboard for a fireworks retail permit. The Town
did not have an established application process for fireworks permits, but emailed appellants
instructions for the application.
¶ 5. After a hearing on June 26, 2018, the selectboard denied appellants’ application. It
concluded that appellants’ zoning permits did not authorize them to sell fireworks under 20 V.S.A.
§ 3132(a)(1) and that they would instead need a distinct municipal permit to operate the retail store.
In evaluating appellants’ request for a retail permit, the selectboard applied the standards used to
evaluate an application for a permit to “display” fireworks under § 3132(c). The selectboard
denied the application, in part because appellants failed to ensure that their customers had valid
permits to display or possess the fireworks. Appellants appealed the decision to the superior court
pursuant to Vermont Rule of Civil Procedure 75.
¶ 6. The superior court then granted the Town’s motions to dismiss both the Rule 75
appeal and declaratory-judgment action. In interpreting the statute, the superior court noted, “The
statute is poorly written.” However, it agreed with the selectboard that the statute requires a
3
distinct municipal permit to sell fireworks and that the zoning permits could not suffice. It also
rejected appellants’ arguments that selling fireworks was legal in Colchester because the Town
had not established a permitting process, that the selectboard had improperly relied on the
standards in subsection (c), and that the selectboard had abused its discretion in its application of
that standard.
¶ 7. On appeal to this Court, appellants argue that they are not required to have a distinct
permit to sell fireworks because § 3132 does not describe the necessary municipal permit or
include any ascertainable standards for evaluating a permit application. Alternatively, they argue
that the ascertainable standards for issuing a municipal permit for the sale of fireworks are reflected
in the Planning Act, which governs municipal zoning. They contend that their zoning permit and
certificate of occupancy satisfy the requirement for a municipal permit. As a second alternative,
they challenge the selectboard’s decision denying their application. They argue that the
selectboard improperly applied standards for evaluating requests for permits to display fireworks
to its evaluation of their request for a permit to sell fireworks, and contend that under the statute,
the fire department, rather than the selectboard, has the authority to issue or deny the permit.
¶ 8. The Town counters that Vermont law prohibits the sale of fireworks without a valid
municipal permit to sell fireworks; that because it is clear from the statute as a whole that the
Legislature intended the statute to be applied in the interest of public safety, § 3132 contains
sufficient guidance for municipalities in exercising their delegated authority; and that the
selectboard acted within its discretion in denying appellants’ application. The Town emphasizes
that there is no constitutional right to sell fireworks, and that the sale of fireworks is a dangerous
activity.
¶ 9. We conclude that both parties misconstrue § 3132(a)(1). The central presumption
in this case has been that 20 V.S.A. § 3132(a)(1) authorizes municipalities to issue permits for the
general retail sale of fireworks to any consumer without regard to whether the purchaser holds a
4
permit to display those fireworks. Based on the text and history of the statute, we conclude that
§ 3132(a)(1) authorizes municipalities to issue permits to sell fireworks only for permitted
“supervised public displays.” Id. § 3132(b). Because the statute requires a municipal permit for
the sale of fireworks and prohibits the type of general retail sales of fireworks that appellants
intend, they cannot sell the fireworks without a permit, and are not entitled to the permit they seek.
I. Text of § 3132
¶ 10. Our review of the text of § 3132(a)(1) in the context of the rest of the statute
supports two conclusions. First, appellants must have a distinct municipal permit to sell fireworks;
their zoning permits do not satisfy the statutory requirement. Second, the statute is ambiguous as
to whether it allows the sale of fireworks to consumers who do not have permits under § 3132(c)
to display those fireworks.
¶ 11. Our primary goal in interpreting the statute is to carry out the intent of the
Legislature. Zlotoff Found., Inc. v. Town of South Hero, 2020 VT 25, ¶ 18, __ Vt. __, __ A.3d
__. Our first step in doing so is to examine the statute’s plain language. Shires Housing, Inc. v.
Brown, 2017 VT 60, ¶ 9, 205 Vt. 186, 172 A.3d 1215. If a statute is clear on its face, we will
generally accept its plain meaning; if is ambiguous, we look beyond the text of the statute to
ascertain the legislative intent. Id. We interpret the statute without deference to the trial court.
Severson v. City of Burlington, 2019 VT 41, ¶ 11, __ Vt. __, 215 A.3d 102.
¶ 12. We reproduce the relevant portions of the statute at length because our
understanding of 20 V.S.A. § 3132(a)(1) is informed by § 3132 as a whole. The relevant portions
of the section state:
(a) Except as provided in this section, it shall be unlawful for any
person, firm, co-partnership, or corporation to do any of the
following:
(1) Offer for sale, expose for sale, sell at retail or wholesale, or
possess fireworks unless the person has been issued a permit by both
the U.S. Bureau of Alcohol, Tobacco, and Firearms and the
5
municipality in which the person offers for sale and stores the
fireworks.
(2) Use, possess, or explode any fireworks unless the person has
been issued a permit to display fireworks pursuant to subsection (c)
of this section.
....
(b) The state fire marshal shall have power to adopt reasonable
rules and regulations for granting permits for supervised public
displays of fireworks by municipalities, fair associations,
amusement parks, and other organizations or groups of individuals.
(c) Any display for which a permit is issued shall be handled by a
competent operator to be approved by the chiefs of police and fire
departments of the municipality in which the display is to be held
and shall be of a character, and so located, discharged or fired as, in
the opinion of the chief of the fire department, or in a municipality
with no fire department, the selectboard, after proper inspection,
shall not be hazardous to property or endanger any person or
persons.
(d) Application for permits shall be made to the chief of the fire
department, or in municipalities with no fire department, the
selectboard, in writing, at least 15 days in advance of the date of the
display. After the permit has been granted, sales, possessions, use
and distribution of fireworks for the display shall be lawful for that
purpose only. No permit granted under this section shall be
transferable.
Id. § 3132.
¶ 13. Based on the plain language of § 3132(a)(1), we first conclude that a distinct
municipal permit is required for the sale of fireworks, and that appellants’ zoning permits are
insufficient under the statute. We base this conclusion on the structure and context of the
municipal permit requirement. See In re Vt. Verde Antique Int’l, Inc, 174 Vt. 208, 211-12, 811
A.2d 181, 184 (2002) (“The words of a statute are not to be read in isolation, . . . but rather in the
context and structure of the statute as a whole.”). It is clear from the context that the “permit”
required in § 3132(a)(1) is a permit authorizing the conduct that is otherwise prohibited: to “[o]ffer
for sale, expose for sale, sell at retail or wholesale, or possess fireworks.” We will not read the
6
word “permit” in isolation from the rest of the provision. TD Banknorth, N.A. v. Dep’t of Taxes,
2008 VT 120, ¶ 15, 185 Vt. 45, 967 A.2d 1148 (stating that “this Court will not excerpt a phrase
and follow what purports to be its literal reading without considering the provision as a whole”
(quotation omitted)). Moreover, the context of the municipal permit requirement suggests that the
municipal permit is parallel to a federal permit that is specific to sales of explosives and fireworks.
Subsection (a)(1) requires “a permit by both the U.S. Bureau of Alcohol, Tobacco, and Firearms
and the municipality.” 20 V.S.A. § 3132(a)(1) (emphasis added). The required federal permit
relates specifically to explosives and fireworks—in this case, appellants are federally certified as
a “Dealer of Explosives.” Under appellants’ construction of the statute, the same word, “permit,”
would refer to a specific fireworks-dealer permit from the federal ATF, while describing a zoning
permit from the municipality. This interpretation is strained and inconsistent with the language,
structure, and context of the statute.
¶ 14. Second, while we conclude that the statute clearly requires a distinct permit for
fireworks sales, little else about the required sales permit is clear. The statute does not plainly set
out the scope of the permit or what standards apply in evaluating a permit application.3 Most
importantly for this case, it is not clear from the statute whether § 3231(a)(1) authorizes the sale
of fireworks to consumers generally, or only to consumers with permits for public displays.
¶ 15. This ambiguity stems primarily from the tension between the language of
subsection (a)(1) and the conflicting language of subsections (a)(2) and (d). Subsection (a)(1)
appears to authorize permits to “expose [fireworks] for sale” and to sell them “at retail.” 20 V.S.A.
3
One of appellant’s arguments is that the statute contains an unconstitutional delegation
of authority to the municipality because it does not provide any standards for granting a permit to
sell fireworks. See In re Handy, 171 Vt. 336, 344, 764 A.2d 1226, 1234 (2000) (holding that
delegation of power was “unconstitutional because it is not limited by standards or guidelines”).
We do not reach this issue because we construe the statute to prohibit the sale of fireworks to
consumers who do not have permits to display fireworks. We emphasize, however, that the lack
of clarity in this statute is detrimental to both fireworks dealers and municipalities, and urge the
Legislature to remedy the lack of clarity and standards in the statute.
7
§ 3132(a)(1). This suggests that a permit to sell fireworks could include the sale of fireworks to
consumers generally. However, subsections (a)(2) and (d) suggest otherwise. Subsection (a)(2)
states that the mere possession of fireworks is illegal, absent a permit to display those fireworks.
Id. § 3132(a)(2). Similarly, subsection (d), in describing the rules related to display permits, states:
“After the permit has been granted, sales, possessions, use and distribution of fireworks for the
display shall be lawful for that purpose only.” Id. § 3132(d) (emphasis added). Under subsection
(d), the possession, sale, and distribution of fireworks is lawful only for the purpose of a permitted
display. Thus, on the face of the statute, subsection (a)(1) appears to provide for a permit to do
something that is forbidden under subsections (a)(2) and (d).
¶ 16. The most plausible interpretation of the statute as a whole is that it prohibits the
sale of fireworks to purchasers who do not have a permit for a “supervised public display.” Id.
§ 3132(b); see State v. Berard, 2019 VT 65, ¶¶ 12-13, __ Vt. __, 220 A.3d 759 (reading plain
language of statute in context of text as a whole). This is because, beyond subsection (a)(1), the
rest of the statute clearly does not contemplate unpermitted possession or use of fireworks.
Subsection (b) allows the state fire marshal to “adopt reasonable rules and regulations for granting
permits for supervised public displays of fireworks.” Id. § 3132(b). Subsection (c) provides the
standards for granting such a permit. And subsections (a)(2) and (d), as discussed above, state that
no person may sell, possess, use, or distribute fireworks except for the purpose of a permitted
display. Given that the statute as a whole is directed at regulating the permitting of public
fireworks displays, it would be incongruous to read subsection (a)(1) as it appears in isolation—to
permit the general retail sale of fireworks. See Zlotoff Found., Inc., 2020 VT 25, ¶ 18 (“If the
plain meaning of the statute conflicts with the intent of the Legislature, we may look beyond the
statutory language to give effect to legislative intent.”).
8
II. Legislative History
¶ 17. Multiple tools of statutory construction strongly reinforce our understanding of the
statute. See Shires Housing, Inc, 2017 VT 60, ¶ 9 (explaining that where statute is ambiguous, we
must use tools of statutory construction to determine legislative intent, including legislative
history, circumstances surrounding statute’s enactment, evidence of legislative policy at which
statute was aimed, and interpretation of agency charged with enforcing statute). The legislative
history of the statute reveals that the Legislature intended to allow only the sale of display
fireworks, not fireworks generally. Our interpretation promotes the overarching goal of the statute
to protect the public from fireworks-related hazards, as well as the goal of the specific amendment
authorizing permits to sell display fireworks. And the regulations adopted by the agency charged
with enforcing the statute further buttresses our interpretation.
¶ 18. Our analysis of the legislative history focuses primarily on the 2003 amendment to
§ 3231, which introduced the sales permit language to the statute. See 2003, No. 15, § 2. Based
on the purpose of the amendments, contemporaneous descriptions of the amendments, and the act
summary, we conclude that the Legislature intended to permit sales only of display fireworks.
¶ 19. At the time of the 2003 amendments, all consumer fireworks sales were prohibited,
and there is no indication of any intent to change that in the bill as initially proposed. The
amendments were part of House Bill 44, entitled, “An Act to Permit the Sale and Use of Sparklers.”
H.44, 2003-2004 Gen. Assem., Bien. Sess. (Vt. 2003) [hereinafter H.44]. As originally proposed
by the House, the bill’s only function was to modify the definition of fireworks in 20 V.S.A. § 3131
to exclude sparklers and other similar items. See H.44 (bill as introduced), http://
www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/intro/H-044.HTM&Session=2004
[https://perma.cc/5QQM-AJNC]. At the time, § 3132(a) read, “Except as hereinafter provided, it
shall be unlawful for any person . . . to offer for sale, expose for sale, sell at retail or wholesale,
possess, use or explode any fireworks . . . .” H.44 (bill as passed by House), http://
9
www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/house/H-044.HTM&Session=2004
[https://perma.cc/HL4M-PHV7]. There was no mention of a permit in subsection (a). In passing
the bill amending the statutes regulating fireworks, the House made some stylistic modifications
to this prohibition, but otherwise left it unchanged. Id.
¶ 20. The Senate then modified the statute to its current language, prohibiting the sale of
fireworks in subsection (a)(1), prohibiting the use of fireworks in subsection (a)(2), and adding
exceptions in both subsections for individuals with permits to sell or display fireworks,
respectively. See H.44 (as proposed by Senate), http://www.leg.state.vt.us/docs/legdoc.cfm?
URL=/docs/2004/bills/senate/H-044.HTM&Session=2004 [https://perma.cc/2CNN-QYVT].
¶ 21. After the Senate returned the bill to the House with its proposed amendments,
Meredith Sumner, Legislative Counsel, described the rationale for the Senate’s changes to the
House General, Housing and Military Affairs Committee. See An Act to Permit the Sale and Use
of Sparklers: Hearing on H.44 Before House Comm. on General, Housing and Military Affairs,
2003-2004 Bien. Sess. (Vt. Apr. 24, 2003). Legislative Counsel explained that the Senate’s
modification to subsection (a)(1) was intended to “clear[] up an ambiguity in the law” with regard
to display fireworks, not to allow for new sales of fireworks to consumers without display permits.
Id. At the hearing, she summarized the amendments as follows:
The substantive change is in . . . 3132(a), where it lists all those
prohibitions. Well in reviewing it, some interested parties noted to
me that a technical reading of the law, which I agree with, makes it
illegal for those many businesses (one) that store and provide
fireworks, not sparklers, but fireworks to people who get permits
for—usually municipal or National Life displays—the big permitted
displays of fireworks. And that technically, in the years of doing
business, in offering for sale, selling, and possessing fireworks
they’ve been in violation of the law. . . . As I looked further, I
realized that it also prohibits possessing and exploding, without
reference to the permit that allows you to do that. So in those
prohibitions, they were re-worded.
10
Id. To close this unintentional loophole, the Senate added language to the statute that would
exempt these individuals—sellers and users of display fireworks—from the general prohibition on
sales of fireworks. The amendment did not purport to repeal the prohibition against the sale and
use of fireworks without a permit. It simply sought to clarify that the prohibitions in subsection
(a) are subject to limited exceptions. In other words: “It was only a clean-up . . . . We wanted to
bring it into compliance with what was going on.” Id. The Committee meeting convincingly
illustrates that the amended subsection (a)(1) was not intended to permit general retail sales of
fireworks. See In re Hinsdale Farm, 2004 VT 72, ¶ 17, 177 Vt. 115, 858 A.2d 249 (noting that we
rely on committee testimony and legislators’ discussions when they “convincingly illustrate”
Legislature’s intent).
¶ 22. The act summary reinforces this intent. See Doncaster v. Hane, 2020 VT 22, ¶ 22,
__ Vt. __, __ A.3d __ (noting that while act summary will not override plain language, it may be
“helpful in deducing legislative intent where the plain language of the statute is unclear”). The act
summary states, “This act retains the prohibition against the sale and use of fireworks, but permits
the sale and use of sparklers . . . .” Act Summary, 2003, No. 15, http://www.leg.state.vt.us/
docs/legdoc.cfm?URL=/docs/2004/acts/ACT015SUM.HTM [https://perma.cc/P7M9-J8B8]
(emphasis added). It goes on to state:
[T]his act remedies an inconsistency in existing law, which allowed
public firework displays pursuant to a permit, but technically
prohibited a fireworks supplier from storing or selling fireworks.
This act amended the law to permit the sale and storage of fireworks
provided the fireworks supplier has a permit issued by the U.S.
Bureau of Alcohol, Tobacco, and Firearms and the municipality in
which the fireworks are stored.
Id. Given the previous statement that sales of fireworks in Vermont are generally prohibited, the
word “supplier” in this section appears to refer to a supplier of display fireworks, not a retail seller
of fireworks for use by consumers generally. Therefore, the act summary reflects the Legislature’s
11
understanding that all sales of fireworks are prohibited, except in connection to permitted, public
displays.
¶ 23. Contemporaneous press coverage of the bill reinforces our understanding of the
Legislature’s intent by emphasizing that while the bill permitted the use of sparklers, fireworks
remained illegal. For instance, shortly before the amendments to the bill passed the Senate, the
Rutland Daily Herald credited Lisa Nolen Birmingham—a lobbyist for the U.S. Fireworks Safety
Commission who testified numerous times in relation to the bill—as acknowledging that the bill
was “not a first step toward seeking legalization of all fireworks” and that “we would come back
and fight any attempt to [allow] anything aerial or explosive, because that’s where the injuries and
fires occur.” David Mace, Sparkler Bill Appears Likely to Pass Vt. Senate, Rutland Daily Herald,
Apr. 19, 2003, at B5. After the bill’s passage, the legislative highlights in the Burlington Free
Press summarized the bill as “legaliz[ing] the sale and use of sparklers, but not explosive
fireworks.” Legislative Highlights, Sparklers, Burlington Free Press, June 1, 2003, at 6A. Other
coverage from before and after the bill’s passage reflected the same understanding. See, e.g.,
Nancy Remsen, Sparklers Sales Ignite: Fireworks Legal in Time for July 4th, Burlington Free
Press, June 28, 2003, at 1A (“The Legislature lifted the ban only on sparklers and another category
of devices, including poppers that spew confetti, and balls with fuses that smoke when lighted.
The ban remains for other fireworks, such as firecrackers, rockets, cherry bombs and Roman
candles.”); Senate Approves Legalizing Sparklers, Bennington Banner, Apr. 21, 2003, at 3 (stating
that bill “would make sparklers legal in Vermont” but that it “differentiates sparklers from
fireworks, which remain illegal”).
¶ 24. Additionally, our understanding of the Legislature’s intent is consistent with the
statute’s broader purpose, which is to protect the public from hazardous materials, as well as with
the specific purpose of the relevant portion of the 2003 amendment, which was to close a technical
loophole relating to the sale of fireworks for permitted displays. The fireworks statute appears in
12
part 7—“Fire Protection and Fire Prevention”—within Title Twenty—“Internal Security and
Public Safety.” Vermont has a long history of strict fireworks regulation: starting in 1953 and for
fifty years after, Vermonters were prohibited from possessing and selling even sparklers. See
1953, No. 93, § 1 (enacting prohibition of fireworks, including sparklers); 2003, No. 15, § 2
(amending statute to permit use of sparklers). Although sparklers are now allowed, the statutory
framework continues to allow displays of fireworks only where the chief of the fire department or
selectboard has determined that the display “shall not be hazardous to property or endanger any
person or persons.” 20 V.S.A. § 3132(c). And in 20 V.S.A. § 3136, the Legislature specifically
wrote: “Being in the interest of public safety the provisions of this subchapter shall be liberally
construed.” Given the longstanding purpose of the statute, we conclude that § 3132(a)(1) cannot
be read to permit the general retail sale of fireworks to consumers who are not permitted under the
statute to possess and use them.
¶ 25. The Department of Public Safety’s interpretation of the statute, as reflected in its
implementing regulations, also generally supports our understanding of the statute. See Shires
Housing, Inc, 2017 VT 60, ¶ 9. (“[W]here a statute is silent or ambiguous and an agency charged
with enforcing the statute has interpreted it, this Court will defer to the agency interpretation of
the statute within its area of expertise.”). The Department of Public Safety’s Division of Fire
Safety (DFS) is entrusted with regulating fireworks display permits. See 20 V.S.A. § 3132(b)
(stating that “state fire marshal shall have power to adopt reasonable rules and regulations for
granting permits for supervised public displays of fireworks”); 20 V.S.A. § 2681(a) (“The
commissioner of public safety shall be ex officio fire marshal.”). The Fire and Building Safety
Code published by DFS contains a clear statement that “[i]t is unlawful for any person to offer for
sale, sell at retail or wholesale, possess, use or explode any fireworks except as permitted for a
supervised public display of fireworks.” See Vermont Fire and Building Safety Code § 4, Code
of Vt. Rules 28 070 001, https://firesafety.vermont.gov/sites/firesafety/files/files/rules/dfs_rules_
13
firecode2015_current.pdf [https://perma.cc/7N4W-LGW5]. The Code also contains some
apparently inconsistent provisions related to “the sale, handling and storage of consumer
fireworks, including sparklers.” See id. However, “consumer fireworks” are not defined in the
Code, and it is unclear what fireworks (aside from sparklers) these provisions are meant to refer
to. Therefore, while there may be some conflicting language in the Code, DFS’s clear statement
that fireworks are permitted only for supervised public displays reinforces our understanding of
the statute
¶ 26. For all of these reasons, we conclude that it is unlawful in Vermont for any person
to offer fireworks for sale except for permitted supervised public displays of fireworks.4
III. Application to This Case
¶ 27. Appellants’ store is intended as a retail store to sell fireworks for use by consumers,
without regard to whether the purchasers have permits to possess and display them. In their
complaint, appellants refer to Green Mountain Fireworks as a “consumer fireworks retail store
(CFRS).” This was true in appellants’ two previous locations in St. Albans and Milton, where
they operated out of a tent, and it continued to be true in the brick-and-mortar Green Mountain
Fireworks store in Colchester. Appellants expressly sell fireworks “to the public,” rather than—
as the Legislature intended—to “people who get permits for . . . the big permitted displays of
4
The record suggests that there are other fireworks retailers operating in Vermont pursuant
to municipal permits who, like appellant, have believed in good faith that their operations are legal
under § 3132. It appears that the statute has not been uniformly understood to maintain the
prohibition against general retail sale and use of fireworks. In fact, in 2018, the House passed a
bill that would require a person who “sells fireworks at retail” to inform purchasers that they must
get a permit to use the fireworks and must comply with any applicable municipal ordinances.
H.614, 2017-2018 Gen. Assem., Bien. Sess. (Vt. 2018) (bill as passed by House). Representative
Edward Read, in describing the bill to the Senate, stated that it “memorializes what is actually
being done already.” An Act Relating to the Sale and Use of Fireworks: Hearing on H.614 Before
Senate Comm. on Economic Development, Housing and General Affairs, 2017-2018 Bien. Sess.
(Vt. Mar. 15, 2018). We do not rely on this bill, which did not pass the full Legislature, except to
underscore that the statute’s original intended purpose appears to be at odds with at least some
people’s understanding of the current reality. This disconnect is yet another reason why the
Legislature must provide clearer notice as to what conduct is permitted and prohibited by § 3132.
14
fireworks.” See supra ¶ 21. Moreover, Mr. Lavigne testified before the Town selectboard that he
did not verify whether his customers had a display permit before selling them fireworks from his
store. Cf. 20 V.S.A. § 3132(d) (stating that after display permit has been granted, sales of
fireworks “for the display” shall be lawful for that purpose only).
¶ 28. At no time did appellants seek a declaratory judgment or permit that would
authorize them to operate as a dealer of display fireworks under the statute. Their complaint sought
a declaratory judgment that “the sales of fireworks by [appellants] as described herein is
permissible by 20 V.S.A. § 3132.” (Emphasis added.) As noted above, the complaint indicated
that appellants were engaged primarily in retail sales of consumer fireworks. Similarly, their
application to the selectboard sought a permit to operate a CFRS facility. There is no available
permit to operate a CFRS facility—the only fireworks sales permit available under Vermont law
would be a permit to sell fireworks for permitted, public displays.
¶ 29. For these reasons, we need not address the parties’ other arguments, and we
conclude that the trial court did not err in ruling in the Town’s favor in the Rule 75 appeal and the
declaratory-judgment action.
Affirmed.
FOR THE COURT:
Associate Justice
15 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3991672/ | This is an appeal from a judgment of the superior court entered after a hearing upon a writ of certiorari issued out of that court and directed to William R. Bell, as police judge of the city of Seattle.
December 16, 1938, upon petition of J. Bruce MacDougall, acting city attorney of the city of Seattle, the superior court of King county issued a writ of *Page 442
certiorari directed to William R. Bell, as police judge, commanding him to certify and transmit to the superior court all records and proceedings of the police court in the criminal action of the city of Seattle against E. Rogers and D. Campbell.
In response to the writ, the police judge transmitted the records to the superior court December 19, 1938. The records disclosed that, October 25, 1938, criminal complaints were filed in the police court of the city of Seattle charging E. Rogers and D. Campbell with the commission of a misdemeanor prohibited by §§ 245, 246 and 276 of Ordinance No. 48022. These sections read:
"Sec. 245. Any person violating or failing to comply with any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine in any sum not exceeding Three Hundred ($300.00) Dollars, or by imprisonment in the city jail for a period not exceeding ninety (90) days, or by both such fine and imprisonment."
"Sec. 246. Every person concerned in any act or omission in violation of this ordinance, whether he directly performs or omits to perform any act in violation of this ordinance, or aids or abets the same, whether present or absent, and every person who directly or indirectly counsels, encourages, hires, commands, induces or otherwise procures another to commit such violation is, and shall be, a principal under the terms of this ordinance and shall be proceeded against and prosecuted as such."
"Sec. 276. It shall be unlawful for any person either as principal, managing agent or supervisor, or as solicitor, collector, or salesman, to solicit, collect or receive money or property, or to solicit the sale of or to sell an article or thing or ticket of any kind where it is represented that the proceeds of such solicitation and/or sale, or any part thereof, are to be used for purposes of charity, relief or benefit, and where any person engaged in and about such solicitation and/or *Page 443
sale receives, or is to receive, directly or indirectly, compensation or reward therefor, or where the person or agency doing the soliciting withholds a portion of the proceeds thereof as compensation or reward, unless a `Charity Solicitation License' and a `Charity Solicitor's License' are obtained for each drive or campaign for funds or property, according to and in compliance with the provisions of Ordinance No. 48022, as amended, and this ordinance. Such `Charity Solicitation License,' the fee for which is hereby fixed in the sum of One Thousand Dollars, ($1,000.00) shall be obtained by the person in charge of solicitations, and a `Charity Solicitor's License,' the fee for which is hereby fixed in the sum of One Hundred Dollars, ($100.00) shall be obtained by each solicitor, collector or salesman. The provisions of this ordinance shall not apply to the annual campaign of the Seattle Community Fund."
The charge in each case recited that the defendant
". . . as principal, managing agent or supervisor, and as solicitor, collector and salesman, did solicit, collect and receive money for the sale of tickets and he did represent that the proceeds of such solicitation and/or sale or any part thereof are to be used for purposes of charity, releif or benefit and did receive for such solicitation and/or sale or is to receive directly or indirectly compensation or reward therefor without having a license so to do."
It further appeared that the defendants were arrested, brought before the court, entered pleas of not guilty, and orally demurred to the complaint
". . . on the ground and for the reason that Sections 276, 245 and 246 of Ordinance No. 48022, as amended, on which the said complaint herein is based, are unconstitutional and void and that said complaint fails to state a cause of action or to charge a crime against the defendants."
The demurrers were sustained.
In the superior court, the police judge presented a motion to dismiss the writ upon the ground: *Page 444
"(1) That said Writ does not lie, in that the Plaintiff, The City of Seattle, have a plain, speedy and adequate remedy at law, by appeal.
"(2) That the Plaintiff gave notice in open Court that it appealed from the decision rendered in the Complaints designated as, The City of Seattle vs. D. Campbell and E. Rogers, respectively."
After a hearing, the court entered an order denying the motion, and decreed that the order of the police judge in sustaining the demurrers of defendants Rogers and Campbell be annulled and set aside. The police court was directed to take further proceedings in the cases against Rogers and Campbell consistent with the terms of the judgment.
William R. Bell, as police judge, has appealed from the judgment of the superior court, urging that the court erred in not holding the ordinance to be unconstitutional and in violation of Art. I, § 12, of the constitution of the state of Washington and Art. I of the fourteenth amendment of the constitution of the United States, in granting the writ of certiorari, and in directing that the defendants be held for trial.
Respondent has presented a motion asking that this appeal be dismissed upon two grounds: First, that the order appealed from is not a final appealable order; and, second, that the appeal was not taken within five days after the entry of the order of judgment of the superior court.
[1] The first ground upon which the motion is based was decided adversely to respondent's contention. Seattle v.Pearson, 15 Wash. 575, 46 P. 1053; State ex rel. Brown v.Brinker, 114 Wash. 47, 194 P. 574; State ex rel. Foley v.Yuse, 191 Wash. 1, 70 P.2d 797. We are not inclined to depart from the rule announced in those cases. *Page 445
The record discloses that the judgment of the superior court was signed and filed January 3, 1939, and the notice of appeal was filed in the county clerk's office January 13, 1939.
Respondent contends that the nature of the proceedings reviewed determines whether the certiorari proceeding assumes a civil or a criminal character, and since this is a criminal proceeding, it falls within Rule XII, 1 (a), Rules of Court,193 Wash. 14-a, requiring the filing of the notice of appeal to this court within five days after the entry of the judgment.
Rule XII reads in part:
"1. (a) In criminal causes, in order to initiate an appeal, notice of such appeal to the supreme court shall be given in open court at the time, or written notice of appeal shall be served upon the prevailing party and filed in the office of the clerk of the superior court within five days after the entry, of judgment or order from which the appeal is taken. . . .
"3. (d) . . . Except as herein otherwise provided, the giving of the notice of appeal and the filing in the supreme court of a certified statement of facts, certified transcript of record, abstract of record, and appellant's opening brief, shall be jurisdictional."
[2] The question presented on this issue is whether or not the writ of certiorari obtained in the superior court was a criminal cause within the purview of the above quoted rule.
We have held in civil cases that, in the absence of very extraordinary extenuating circumstances, the writ of certiorari must be applied for within the time fixed for taking an appeal.State ex rel. Tumwater Power Water Co. v. Superior Court,56 Wash. 287, 105 P. 815; State ex rel. Jakubowski v. SuperiorCourt, 84 Wash. 663, 147 P. 408; State ex rel. Neal v.Kauffman, 86 Wash. 172, 149 P. 656; State ex rel. Barry v.Superior Court, 179 Wash. 55, 35 P.2d 1095. In particular *Page 446
cases in which a given statute prescribed that an appeal must be taken within a shorter time than that allowed for ordinary appeals in civil actions, the application for a writ of certiorari must be made within such statutory period. State exrel. Alexander v. Superior Court, 42 Wash. 684, 85 P. 673;State ex rel. Clark v. Superior Court, 167 Wash. 481,10 P.2d 233; State ex rel. Bremerton Bridge Co. v. Superior Court,194 Wash. 7, 76 P.2d 990.
A criminal case or cause may be defined to be an action, suit, or cause instituted to punish infraction of criminal laws.Taylor v. Goodrich, 25 Tex. Civ. App. 109, 40 S.W. 515.
Notice of appeal must be given within thirty days in ordinary civil actions, and in criminal causes notice of appeal must be given within five days. Since we have uniformly held that, in civil actions, in the absence of unusual mitigating circumstances or a specific statute, an application for a writ of certiorari must be made within the general period provided for appeals by Rule V-1, 193 Wash. 4-a, it must necessarily follow that, in the absence of extraordinary conditions or specific statute, an application for a writ of certiorari in a criminal cause must be made within the five day period in accordance with Rule XII,193 Wash. 14-a.
Criminal complaints were filed in the police court against two individuals charging them with the commission of a misdemeanor by reason of their violation of ordinance No. 48022 of the city of Seattle. It is clear that, in its inception, the proceeding before the police court was essentially a criminal cause. We hold that the certiorari proceedings which followed did not divest the case of its criminal character. If the case is a criminal action at the outset, the rules applicable to criminal causes continue to operate during all phases of the trial, including appeal. Since the notice of appeal *Page 447
to this court was not given within the time fixed by the rule relative to criminal appeals, this appeal must be dismissed.
It is so ordered.
BLAKE, C.J., STEINERT, BEALS, and GERAGHTY, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3848265/ | Deceased, a freight brakeman, was assigned to duty on a regular run from Verona, the home or lay-over for the crew operating this train, to Sharpsburg and return. This run was a day's work. The major movement was toward Sharpsburg; the return brought back to Verona what, if any, cars were to be had at Sharpsburg or Coleman, an intermediate point. If there were none such, the return was "light" or "empty" with engine and caboose. *Page 579
On the morning in question, he left Verona with a train of 55 cars, part interstate. On reaching Sharpsburg, the train was placed in the yard, and the crew, with engine and caboose, without cars or other freight, returned light to Verona. Midway on this return journey, they were placed on track No. 2 to await favorable opportunity to continue to destination. While waiting, the conductor had a tower operator ascertain whether any cars were at Coleman to be sent to Verona. Meanwhile, a ground switchman sent, by mistake, a passenger train on track No. 2 instead of track No. 4. The result was a collision, in consequence of which the death of the brakeman occurred as he sat in the caboose. This location was not a regular stopping place to receive orders for cars at the Coleman yard, no cars were received, and the crew was returning home.
The question we must decide is whether Patterson, the brakeman, on the return trip, was performing an act so directly or immediately connected with the previous act (engagement in interstate commerce) as to be a part of it, or a necessary incident thereto (Southern Pacific Co. v. Industrial Accident Commission, 251 U.S. 259; New York Central Hudson River R. R. Co. v. Carr, 238 U.S. 260, 263, 264; Shanks v. Delaware, Lackawanna Western R. R. Co., 239 U.S. 556, 558), or as being the "necessary complement of the trip out": Illinois Central R. R. Co. v. Peery, 242 U.S. 292. This will depend on whether the return, "running light," "empty" or without commerce, was a separate and independent act. If not, would the possibility of moving cars from Sharpsburg and Coleman to Verona change the engagement or did the stop for orders en route home affect that result?
The question, in view of the adjudicated cases, might be regarded as close. As the court below held the service continuous, — appellant taking no exception to the manner of its submission to the jury, contending, from the undisputed testimony, the return to Verona was intrastate, — we should not disturb the conclusion reached *Page 580
unless intrastate service clearly appears. After careful consideration of federal cases, we stated, in Koons v. Phila. Reading Ry. Co., 271 Pa. 468, 470, this rule as governing the kind of service involved in the movement of railroad cars: "Where intra- and interstate acts are mingled, or at times alternate, there is no separation. The interstate feature predominates and by it the questioned act must be judged. . . . . . Employment follows interstate transportation and begins when the workman, on a carrier's premises, makes a forward move to serve in that traffic or employment and ends only after he has completely dissociated himself therefrom." This was followed in O'Donnell v. Director General, 273 Pa. 375, 379.
Patterson was admittedly engaged in interstate service up to Sharpsburg. The question is then, at what point thereafter, if any, did he disassociate himself therefrom, or what was the nature of the work being done at the time of the injury?
Considering the two questions as one, we have an admitted interstate service, which continued until the crew reached Verona and he had disassociated himself therefrom, unless there was an interruption: Erie R. R. Co. v. Winfield, 244 U.S. 170. To find if there was an interruption in that service we must exclude as ineffective for that purpose the facts that the crew might have received cars at Sharpsburg or Coleman yard, and as part of their duty would have been required to bring them to Verona. They did not receive any cars or any orders, and had they received orders alone even for an intrastate movement it would not alter the case. "The mere expectation that plaintiff would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act" (Illinois Central R. R. Co. v. Behrens, 233 U.S. 473, 478; Erie R. R. Co. v. Welsh, 242 U.S. 303, 306), nor would like expectation for intrastate service take the case out of the statute. The movement of 55 cars to Sharpsburg was interstate. *Page 581
The return movement with commerce of any kind was uncertain, it always was as to this run. It only became certain when that commerce was actually transported, and then the nature of the interstate work changed and the disassociation therefrom took place only if the return movement was all intrastate. There were no orders to move cars of any character on the return trip; that trip was from an interstate movement toward no commerce of any kind. It must therefore have been the necessary complement of the outbound movement, so incidental in its nature as to be a part of the former. This case follows Erie v. Winfield, 244 U.S. 170. There the engineer of a switching engine, engaged in what was decided to be interstate service, took his engine to the place where it was to remain for the night, then started to leave the yard by crossing some tracks. While so leaving he was run down and killed. The court said (p. 173): "In leaving the carrier's yard at the close of his day's work the deceased was but discharging a duty of his employment. See North Carolina R. R. Co. v. Zachary, 232 U.S. 248, 260. Like his trip through the yard to his engine in the morning, it was a necessary incident of his day's work and partook of the character of that work as a whole, for it was no more an incident of one part than of another. His day's work was in both interstate and intrastate commerce, and so when he was leaving the yard at the time of the injury his employment was in both." Had he been killed while on the engine taking it to the place where it was to stay for the night the result would have been the same. The engagement was interstate. This case was followed by Director General v. Bennett, 268 Fed. (C. C. A.) 767, and Dennison v. Payne, 293 Fed. (C.C.A. 333,) both with facts very much similar to the case at bar.
Defendant relies on Illinois Central R. R. Co. v. Peery,242 U.S. 292. The facts in the case are the same up to the return movement home. While it was uncertain in that case whether the crew would return with commerce, *Page 582
the fact was they did, and, because they did so, the court held them to the character of commerce hauled, local freight. We have this decided difference between the case at bar and Erie R. R. Co. v. Welsh, 242 U.S. 303, also relied on by appellant: (1st) there, the last movement was not inter- but intrastate; that should be enough; 2d all of the hauling of cars that was to be done in the day's work was not finished; 3d after placing the intrastate car on a classification track, they placed the caboose at another point then took their engine for water, after which they went to the yardmaster's office for orders for further shifting, which turned out to be interstate work. The injury occurred while alighting at the yardmaster's office. The facts controlling the Winfield Case were not present there. The Welsh Case dealt with but one interstate movement and with all the intervening steps before the accident: Chicago, Burlington Quincy R. R. Co. v. Harrington,241 U.S. 177, does not help appellant. There the employee was injured while switching cars of coal owned by the company, which had been stored for some time, to chutes or bins to be unloaded, the coal thereafter to be used in locomotives in both intra- and interstate movements. Nor does Shanks v. Delaware, Lackawanna Western R. R. Co., 239 U.S. 556, where an accident happened while putting up fixtures in a machine shop used to repair locomotives used in interstate commerce.
The case was rightly decided by the court below. As to the objection that the award under the Workmen's Compensation Act might permit double recovery, appellee having perfected her rights thereunder with an award in her favor against appellant, the court below will take such action as may be necessary to prevent payment of both claims in her own right under the state law and as administratrix under the Federal Act. Attention is called to our Compensation Act, and decisions of this court thereunder as affecting these rights.
Judgment affirmed. *Page 583 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523534/ | RECORD IMPOUNDED
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 NOS. A-2102-18T2
A-2103-18T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
G.J-J. and D.A.,
Defendants-Appellants.
_________________________
IN THE MATTER OF G.D.,
D.A., JR., B.A., and H.A.,
Minors.
_________________________
Submitted March 18, 2020 – Decided April 8, 2020
Before Judges Koblitz, Whipple and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0455-17.
Joseph E. Krakora, Public Defender, attorney for
appellant G.J.-J. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Laura M. Kalik, Designated
Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant D.A. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Ilea Anne Kozak, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Sue Arons, Assistant Attorney
General, of counsel; Mary L. Harpster, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor G.D. (Melissa R. Vance, Assistant
Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendants G.J.-J1 (Gina) and D.A. (David) appeal from an October 6,
2017 order finding that they abused or neglected G.D. (Gaby), born in 2004,
Gina's biological daughter and David's stepdaughter, by inflicting and allowing
to be inflicted upon her excessive corporal punishment. We consolidated both
appeals. When Gaby returned home from school later than expected, Gina began
hitting Gaby with a belt for lying about her whereabouts. David watched, but
1
We use initials and pseudonyms to preserve the privacy of the parties. R.
1:38-3(d)(12).
A-2102-18T2
2
other than telling Gina to stop, he did not interfere. We affirm the findings
against both defendants.
As shown by security footage, the matter escalated into Gina pushing
Gaby into a corner of an elevator where she continued to yell at her. Gina
proceeded to pull Gaby out of the elevator and bite her arm. Gaby ran to the
apartment complex's security booth, and the guards called the police. Although
Gina and David attempted to convince Gaby to return home, she refused. The
police took Gaby to the hospital and the matter was referred to the Division of
Child Protection and Permanency (Division).
During the Division's investigation, D.A. Jr. (David Jr.), born 2010, B.A.
(Beatrice), born 2013, and H.A. (Helene), born 2015, David and Gina's
biological children, were taken into the Division's custody. While Gina admitted
to hitting Gaby with a belt on the day of the incident and on previous occasions,
she denied ever biting her. David Jr., Beatrice and Helene were later returned,
but Gaby, who did not want to come home, was adopted by relatives living in
Canada.
I.
Since the age of two, Gaby lived with her grandparents and other relatives
in Haiti. In 2015, she immigrated to the United States to live with Gina, David
and her three younger half-siblings.
A-2102-18T2
3
Gina and David repeatedly instructed Gaby that she should walk directly
home after school by herself, instead of staying with friends. On April 13, 2017,
Gaby arrived home at her usual time of around 4:20 p.m. Because school was
dismissed early, Gina expected her earlier. Although Gaby told Gina she came
straight home, Gina believed the child was lying and began to hit her with a belt
in front of David in the living room of their one-bedroom apartment. Gaby
claimed that David also "took [the] belt and hit her once," but, worried that "he
[was] going to kill her and get in trouble," he stopped.
To escape, Gaby acted as though she was leaving the apartment to take
out the garbage. Upon realizing she had nowhere to go, she returned. Gina did
not believe Gaby had gone to take out the garbage, so she and Gaby went into
the elevator to go down to the trash room. As the trial court noted, the security
footage showed that Gina was "obviously very angry with her child." She had
"shove[d] [Gaby] into a corner of the elevator" and as she "pull[ed] the reluctant
[Gaby] out [of the elevator], it appears that [she] bit[] the child on the upper
arm."
Gaby then ran to the security booth outside her apartment building. She
was "visibly shaking, crying, and scared" and told the security guards she did
not want to return home. Gina and David arrived at the security booth to
convince Gaby to return home, but she refused. The trial court noted that the
A-2102-18T2
4
audio and video footage from the security booth showed David "berat[in g] and
interrogat[ing] [Gaby] in a loud, very angry . . . voice," asking her: "What is
your problem?"; "What did you take out the house and run away with?"; "Why
did you come here?" David even threatened to send Gaby back to Haiti,
exclaiming, "My name is on all your documents. So, I can ship you back
whenever I want. I will not let you to put me into trouble. I'm done with you.
I'm getting all your stuff ready." Gaby remained at the security booth until the
police arrived and took her to Newark Beth Israel Medical Center (NBIC).
Division caseworkers arrived at NBIC around midnight to speak with
Gaby. Gaby explained what happened that day, confirming that her parents,
who always believed she was lying, hit her with a belt when she arrived home
from school and her mother bit her. She revealed that she was also hit the week
before and that her current relationship with her mother was "[not] that good,"
describing her as "mean." Gaby said her mother "yells a lot and beats her."
The caseworkers took pictures of Gaby's bruises on both thighs as well as
the bite mark on her arm. The doctor reported that while the "biting appears
pretty fresh," the bruising on Gaby's legs could have taken place "[a]s recent as
[twenty-four] hours ago or up to [three] days ago."
The caseworkers then went to speak to Gina and David at their apartment.
Gina admitted she "whopped" Gaby with a belt because she was angry at her for
A-2102-18T2
5
lying, but denied biting Gaby. This was "the [fifth] or [sixth] time she ha[d] hit
[Gaby] with a belt." She also acknowledged hitting Gaby with her hand. David
explained that while he has physically disciplined Gaby in the past, he stopped
doing so for about the past six months "due to his profession" as a doctor in
residency. He denied beating Gaby that day and said he verbally instructed Gina
to stop beating her.
The caseworkers also interviewed then seven-year-old David Jr. who
explained that although he did not witness the events of April 13, his parents
have hit him and his sisters Beatrice and Gaby in the past as punishment. He
said that Gaby is hit "so badly because she lies a lot."
David Jr., Beatrice, and Helene were taken to NBIC for physical
examinations. While David Jr. told the doctor that his parents told him "not to
say anything to anyone about who hits him," Beatrice explained that when she
gets in trouble, she is "whipped" with a belt. The children were placed in
resource homes.
The court initially granted the Division custody of the children, barring
Gina and David from unsupervised contact with them. The court returned
custody of the three younger children to their parents thereafter. Gaby expressed
wanting to live with relatives in Canada, who she previously had lived with in
A-2102-18T2
6
Haiti. In August 2017, Gina was served with a criminal complaint for the abuse
or neglect of Gaby.
The court held a three-day fact-finding hearing at which Gina and David
were present with counsel. The Division presented the testimony of two
caseworkers and introduced into evidence the security footage of what occurred
in the elevator and at the security booth. No evidence or witnesses were
presented by the defense or the law guardian.
On October 6, 2017, the court in an oral opinion found by a preponderance
of the evidence that Gina "failed to exercise a minimum degree of care by
unreasonably inflicting excessive corporal punishment" on Gaby and David also
"failed to exercise a minimum degree of care by allowing . . . harm or a
substantial risk thereof, including infliction of excessive corporal punishment."
The same day, the court signed a dispositional order stating that Gaby "shall
continue under the custody, care and supervision of the Division, with placement
as deemed appropriate by the Division," and David Jr., Beatrice and Helene
"shall continue under the care and supervision of the Division; with the Division
being authorized to make announced and unannounced visits to the ho me of the
defendants."
A-2102-18T2
7
A year later, the court approved Gaby's adoption by her relatives in
Canada. The order reflected that Gina supported the plan. In December 2018,
the court issued an order terminating this litigation.
II.
Our review of a family court's abuse or neglect finding is limited. See
N.J. Div. of Youth & Family Servs. v. S.H., 439 N.J. Super. 137, 144 (App. Div.
2015). We must determine whether the decision "is supported by 'substantial
and credible evidence.'" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.
420, 448 (2012) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.
261, 279 (2007)).
We defer to the trial court's factual findings, because that court has "the
superior ability to gauge the credibility of the witnesses . . . and because it
possesses special expertise in matters related to the family." Ibid. Our review
is, however, "less constricted when the 'focus is not on credibility but alleged
error in the trial court's evaluation of the underlying facts and the implications
to be drawn therefrom.'" S.H., 439 N.J. Super. at 144 (quoting N.J. Div. of
Youth & Family Servs v. C.S., 367 N.J. Super. 76, 112 (App. Div. 2004)).
Ultimately, a family court's decision should not be overturned unless it went "so
'wide of the mark'" that reversal is needed "to correct an injustice." F.M., 211
N.J. at 448 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88,
A-2102-18T2
8
104 (2008)). A trial court's interpretation of the law or its legal conclusions are
reviewed de novo. State ex rel. A.B., 219 N.J. 542, 554-55 (2014); Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"The purpose animating Title Nine 'is to provide for the protection of
children . . . who have had serious injury inflicted upon them.'" N.J. Div. of
Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (quoting N.J.S.A. 9:6-
8.8(a)). Therefore, "[a] Title Nine inquiry should focus on harm to the child,
rather than on the intent of the caregiver." S.H., 439 N.J. Super. at 145. Pursuant
to N.J.S.A. 9:6-8.21(c)(4), an "[a]bused or neglected child" is
a child [less than eighteen years of age] whose physical,
mental, or emotional condition has been impaired or is
in imminent danger of becoming impaired as the result
of the failure of his parent or guardian, as herein
defined, to exercise a minimum degree of care . . . (b)
in providing the child with proper supervision or
guardianship, by unreasonably inflicting or allowing to
be inflicted harm, or substantial risk thereof, including
the infliction of excessive corporal punishment; or by
any other acts of a similarly serious nature requiring the
aid of the court.
While "[t]he law does not prohibit the use of corporal punishment," and "a parent
may inflict moderate correction such as is reasonable under the circumstances
of a case," excessive corporal punishment is expressly prohibited. Dep't of
Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super.
504, 510 (App. Div. 2010). The Division "must prove that the child is 'abused
A-2102-18T2
9
or neglected' by a preponderance of the evidence, and only through the
admission of 'competent, material and relevant evidence.'" P.W.R., 205 N.J. at
32 (quoting N.J.S.A. 9:6-8.46(b)).
Each case of alleged abuse "requires careful, individual scrutiny" and is
"generally fact sensitive." Id. at 33. Although Title Nine does not define
excessive corporal punishment, our court has recognized "'excessive' means
going beyond what is proper or reasonable." K.A., 413 N.J. Super. at 511. "[A]
single incident of violence against a child may be sufficient to constitute
excessive corporal punishment." Ibid.
"[T]he use of an instrument to hit the child with such force that visible
marks were left, the unreasonable and disproportionate parental response, and
the fact that the incidents were not isolated but part of a pattern of physical
punishment" are factors the court may consider when determining whether a
child suffered excessive corporal punishment. S.H., 439 N.J. Super. at 146-47.
III.
Gina contends that "[m]any of the mitigating circumstances that were
present in K.A., are present here," and therefore, the court should similarly find
that her "conduct was aberrational and excusable under the circumstances."
In K.A., a mother struck her eight-year-old daughter four or five times
with a closed fist on the shoulder after she refused to complete her homework
A-2102-18T2
10
and refused to be disciplined by remaining in her room. 413 N.J. Super. at 505–
06. Although the child sustained bruises, she did not require medical attention.
Id. at 512. We noted that "K.A. was alone, without support from either her
spouse/co-parent or from other members of her extended family." Ibid.
Additionally, the child was "psychologically disruptive," "unable or unwilling
to follow verbal instructions or adhere to passive means of discipline such as a
time-out," and "diagnosed with pervasive development disorder and attention
deficit disorder." Id. at 506, 512. We reasoned that K.A.'s actions were not
excessive in light of "(1) the reasons underlying K.A.'s actions; (2) the isolation
of the incident; and (3) the trying circumstances which K.A. was undergoing
due to [the child's] psychological disorder." Id. at 512.
IV.
Gina inflicted corporal punishment by biting Gaby and using a belt to hit
her for lying. By her own admission, Gina concedes that her use of a belt as a
method of corporal punishment was not an isolated incident.
Because Gaby's bruises and marks resulted in no tears to the skin or
lacerations nor required medical treatment, Gina notes "[t]he Division simply
failed" to established that Gaby was in "an imminent danger to her well -being."
Furthermore, Gina asserts the trial court inappropriately speculated from the
security footage that Gaby suffered emotional harm.
A-2102-18T2
11
The fact that a child did not sustain physical injuries that required medical
intervention does not require a reversal of the court's abuse or neglect finding.
See Dep't of Children & Families, N.J. Div. of Youth & Family Servs. v. C.H.,
414 N.J. Super. 472, 476 (App. Div. 2010). Gina's response to Gaby arriving
home late was excessive. We can imagine no circumstances where biting and
hitting a child with a belt is reasonable punishment.
The trial court stated that it could not accept it was Gaby's parents'
"concern for her wellbeing that caused this extreme behavior or, perhaps . . .
[Gaby's] pattern of lying." In recognizing that the court did not know whether
Gaby was lying, it found "there simply is no justification for the kind of physical
abuse this child suffered. If there were problems . . . with [Gaby's] behavior,
that was not the way to discipline [her] and that was not the way to address
them." Although, like K.A., Gina "accepted full responsibility for her actions,
was contrite, and complied with Division-sponsored counseling," under the
totality of the circumstances, the court did not abuse its discretion in finding that
the Division established by a preponderance of the evidence that Gina abused or
neglected Gaby. See K.A., 413 N.J. Super. at 512.
V.
David argues that the Division failed to demonstrate by a preponderance
of the evidence that he did not exercise a minimum degree of care by failing to
A-2102-18T2
12
"prevent[] or eliminat[e] the risk of harm to Gaby resulting from her m other's
physical discipline." In distinguishing this matter from N.J. Div. of Child Prot.
& Permanency v. K.N.S., 441 N.J. Super. 392 (App. Div. 2015) and N.J. Div.
of Child Prot. & Permanency v. J.L.G., 450 N.J. Super. 113 (App. Div. 2015),
he notes, that his "verbal direction to Gina to stop hitting Gaby constituted a
reasonable and meaningful effort to protect Gaby." He argues that the trial
court's determination of whether he was negligent or grossly negligent by not
interceding "is a conclusion of law to which we are not required to defer." Dep't
of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294,
308 (2011) (quoting N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super.
538, 542-53 (App. Div. 2011)).
Our Supreme Court has discussed "what standard of care is codified by
the phrase 'failure to exercise a minimum degree of care.'" G.S. v. Dep't of
Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 178 (1999).
"Essentially, the concept of willful and wanton misconduct implies that a person
has acted with reckless disregard for the safety of others." Id. at 179. "[A]
guardian fails to exercise a minimum degree of care when he or she is aware of
the dangers inherent in a situation and fails adequately to supervise the child or
recklessly creates a risk of serious injury to that child." Id. at 181. "[A] parent
or guardian's past conduct can be relevant and admissible in determining risk of
A-2102-18T2
13
harm to the child." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super.
551, 573 (App. Div. 2010).
In finding that David abused or neglected Gaby, the court reviewed the
security camera footage and emphasized:
[Of] real importance to this [c]ourt is [Gaby's]
demeanor during these encounters. She doesn't speak
around her stepfather. She keeps her arms around
herself and shreds her tissues nervously. She is
standing alone and refuses to take one step in [David's]
direction. She refuses to sit down when offered a seat.
She stands stunned and scared throughout the entire
three-video episode involving [David], which is very
different than she is with her mother, . . . where she is
crying and emotional. She never speaks to him directly.
In fact, she barely looks . . . at him.
While the trial court recognized that "maybe there is insufficient evidence to
know how hard [David] hit [Gaby] that day or if he even hit her that day," it
noted that under the totality of circumstances, "the evidence is clear . . . that
[David] knew what [Gina] was doing that day and previous days and that such
excessive corporal punishment, the use of the belt, was an accepted form of
punishment for this child."
By David's own admission, he revealed that "he has whooped [Gaby] in
the past but due to his profession he is done with her" and has not hit her in
about six months. The mere knowledge of a beating, without actually seeing it,
A-2102-18T2
14
may be sufficient to establish a noninterfering parent or guardian committed
abuse or neglect. See J.L.G., 450 N.J. Super. at 121.
As the trial court concluded, David "obviously felt it was acceptable for
him to sit back and let his wife discipline and hit her daughter while he did
nothing to stop it . . . . [or] intervene. This does not relieve him of responsibility
in this [c]ourt." A review of the totality of the record demonstrates that David's
current inaction and admitted prior behavior rose to the level of gross negligence
or recklessness as a matter of law.
Affirmed.
A-2102-18T2
15 | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1276528/ | 353 N.W.2d 135 (1984)
In re the Marriage of Barbara B. BROMS, petitioner, Respondent,
v.
Richard A. BROMS, Appellant.
No. C9-83-917.
Supreme Court of Minnesota.
August 24, 1984.
*136 Edward M. Cohen, St. Louis Park, for appellant.
Robert Lewis Barrows, Minneapolis, for respondent.
Considered and decided by the court en banc without oral argument.
COYNE, Justice.
Richard Broms appeals from the judgment and decree of the Hennepin County District Court awarding Barbara Broms maintenance of $1,000 per month for ten years. For the reasons set out below we affirm the amount of the maintenance award but reduce its duration from ten years to five years.
Richard and Barbara Broms were married on October 19, 1975. The parties have two daughters, Allison born on January 13, 1978, and Andrea born on July 13, 1979.
Richard, who is 32 years old, holds a bachelor of arts degree in history, and is vice president of Richard Manufacturing Company, a corporation owned by his father. Barbara, who is also 32 years old, *137 has a bachelor of science degree in family social science, sociology, and social welfare. Although Barbara worked for her father after graduating from college, her employment during the marriage was sporadic and minimal. The trial court found that to pursue a career in social work, Barbara would have to obtain a masters degree. The advanced degree would entail two years of graduate study.
As part of its dissolution decree, the trial court awarded the parties joint legal custody of their daughters. Although actual physical custody of the children was awarded to Barbara, under the elaborate visitation schedule established by the court, the girls will spend an equal amount of time with each parent.
The trial court found that each party had monthly living expenses of $2,500. It determined that Richard's net monthly income was $6,600 in 1981 and $5,000 in 1982. It also found that the $71,000 cash settlement Barbara will receive under the dissolution decree could be invested to provide an annual income of $5,600. Barbara also is a beneficiary of a trust created by her grandfather. In 1981 she received $1,700 from the trust. The court, concluding that Barbara's income would be insufficient to meet her monthly expenses, awarded her $800 per month child support and $1,000 per month maintenance. The court ordered maintenance payments to continue for ten years unless Barbara dies or remarries. Richard was also ordered to provide medical, dental, and life insurance for Barbara and his daughters.
On appeal, Richard challenges both the amount and duration of the court's maintenance award.
Although our standard of review of a trial court's maintenance award is narrow, the award will be reversed if it amounts to an abuse of the court's wide discretion. Smoot v. Smoot, 329 N.W.2d 829, 831 (Minn.1983). On review that discretion must be examined in light of Minn. Stat. § 518.552 (1982), which contains a detailed enumeration of the factors to be considered by the trial court when making the award. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn.1982).
The statute provides:
Subdivision 1. In a proceeding for dissolution of marriage * * *, the court may grant a maintenance order for either spouse if it finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, especially during a period of training or education, and
(b) Is unable to adequately support himself after considering all relevant circumstances through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
Subd. 2. The maintenance order shall be in amounts and for periods of time, either temporary or permanent, as the court deems just, without regard to marital misconduct, and after considering all relevant factors including:
(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the spouse's age and skills, of completing education or training and becoming fully self-supporting;
(c) The standard of living established during the marriage;
(d) The duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;
*138 (e) The age, and the physical and emotional condition of the spouse seeking maintenance;
(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(g) The contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.
Minn.Stat. § 518.552 (1982).
Each case must be decided on its own facts and no single statutory factor for determining the type or amount of maintenance is dispositive. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn.1982).
We affirm the trial court's $1,000 monthly maintenance award. Following the parties' dissolution, Barbara's income will drop to $7,300 per year $5,600 interest income from investing the cash settlement she will receive and $1,700 income from a family trust. Even with the $800 per month child support award, Barbara will need an additional $13,100 to meet her annual living expenses of $30,000. Barbara lacks sufficient property and is otherwise currently unable to adequately support herself. Richard, on the other hand, has a monthly net income of $5,000 and monthly living expenses of $2,500. The court properly found that he was able to provide maintenance to Barbara. The court's award of $1,000 per month was well within the court's discretion.
Although we affirm the amount of the monthly maintenance award, the 10-year duration of the award has no relationship to either the underlying basis for the award of maintenance or the factors relevant to its duration. The propriety of an award of maintenance to provide for Barbara's reasonable needs while she obtains employment skills and enters the labor market is beyond dispute. Otis v. Otis, 299 N.W.2d 114 (Minn.1980). Barbara is a 32-year-old college graduate who is capable of employment. In order to pursue a career in social work, her undergraduate field of study, she must obtain a masters degree which will require two years of graduate study. Although Barbara was granted physical custody of the parties' two young daughters, both are enrolled in school and will be in their father's care half of the time. Hence, although it is fitting that Barbara receive maintenance while she is working on her advanced degree and seeking employment, nothing in the condition or circumstances of the children suggests that it is appropriate for Barbara to delay for an extended period the completion of her education and her entry into the work force. In view of the length of the parties' marriage (about five years), Barbara's relatively young age and generally sound health, and the fact that a minimum of two years of study is required for an advanced degree, we conclude that an award of maintenance for a period of five years affords Barbara ample time to complete her studies and to acquire suitable employment. Under the existing circumstances an award of maintenance for a period longer than five years is an abuse of discretion. Accordingly, we remand to the trial court with directions to reduce the duration of the maintenance award from ten years to five years.
Attorneys' fees are awarded to neither party.
Affirmed in part, reversed in part, and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4059509/ | ACCEPTED
04-15-00233-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/16/2015 1:29:25 PM
KEITH HOTTLE
CLERK
04-15-00233-CV
NO. _____________________
FILED IN
IN THE COURT OF APPEALS 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
THE FOURTH DISTRICT OF TEXAS 04/16/2015 1:29:25 PM
KEITH E. HOTTLE
SAN ANTONIO TEXAS Clerk
JEREMIAH MARTIN, and all other OCCUPANTS
Appellant
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellee.
Appeal from the County Court at Law Number Three
Bexar County, Texas
Trial Court Case No. 2015CV01933
Hon. David Rodrigquez, presiding
Oral Argument Requested
APPEAL OF DISMISSAL OF MOTION TO REINSTATE
FORCIBLE DETAINER APPEAL TO BEXAR COUNTY
BRIEF FOR APPELLANT
1
Identity of the Parties
Appellant/Defendant
Jeremiah Martin
Counsel for Appellant/Defendant
James Minerve
State Bar No. 24008692
115 Saddle Blanket Trail
Buda, Texas 78610
(210) 336-5867
(888) 230-6397 (Fax)
(Appellate, Post-trial, and Appellate)
Appellee/Plaintiff
FEDERAL NATIONAL MORTGAGE ASSOCIATION
Counsel for Appellee/Plaintiff
Jeff Lewis
Texas State Bar No. 12290000
Robertson Anschutz Vetters
10333 Richmond Avenue, Suite 550
Houston, Texas 77042
Phone: (713) 980-9500
Fax: (713) 888-2703
(Appellate, Post-trial, and Appellate)
2
Table of Contents
Identity of Parties and Counsel ................................................................................. 2
Table of Authorities ................................................................................................... 4
Statement of the Case............................................................................................. 5-6
Statement Regarding Oral Argument ........................................................................ 7
Issues Presented ......................................................................................................... 8
Statement of Facts ................................................................................................ 9-10
Summary of the Argument....................................................................................... 11
Argument.................................................................................................................. 11
The Cliff v. Huggins Holding ........................................................................ 11
Prayer ....................................................................................................................... 13
Certificate of Service ............................................................................................... 14
Certificate of Compliance ........................................................................................ 14
3
Table of Authorities
Cases Page
Cliff v Huggins, 724 S.W.2d 778 ............................................................................. 10
Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854 (Comm’n
App.1942, opinion adopted) .................................................................................... 10
Texas Rules of Civil Procedure
Texas Rule of Civil Procedure 21a .......................................................................... 10
Texas Rule of Civil Procedure 143a ........................................................................ 11
4
Statement of the Case
1. On February 3, 2015, Bexar County Justice Court, Precinct 3-1 issued
judgment in forcible detainer Cause 31E1500070 in favor of the Appellee.
See Exhibit A.
2. On February 9, 2015 the Appellant perfected an appeal. See Exhibit B.
3. The Defendant nor his attorney of record received the notice prescribed under
Texas Rules of Civil Procedure 143a, setting the 20 day time period within
which the appellant must pay the court costs (TRCP 143a notice).
4. March 17, 2015, the Bexar County Clerk sent the Defendant’s attorney a
notice stating the appeal was being dismissed for failure to pay the court costs
under TRCP 143a.
5. The Bexar County Clerk sent the notice certified mail return receipt property
addressed to the Defendant’s attorney, as required by TRCP 21a. However,
the Defendant’s attorney never received the notice.
6. The 20 day notice was mis-delivered, because the return receipt was signed
by someone other than James Minerve or one of his employees. See Exhibit
C.
7. Attorney James Minerve operates out of a home office at 115 Saddle Blanket
Trail, Buda, Texas 78610. Mr. Minerve employed only two persons at all
Page 5 of 14
times relevant to this matter, legal assistants Kevin Gates and Maria Rogers.
8. Mr. Minerve nor his legal assistants signed the return receipt, and neither of
them received the 20 day notice.
9. A properly addressed notice placed in the US mail certified return receipt
requested creates a rebuttable presumption that the Defendant received notice.
However, if receipt of the notice is challenged, the presumption vanishes; and
if the Defendant proves he didn’t receive notice, as in this case, the Defendant
is deemed to not have been notified as required by TRCP 143a. In this case,
the Defendant’s appeal and supersedeas bond is still in effect.
Page 6 of 14
Statement Regarding Oral Argument
Pursuant to Texas Rules of Appellate Procedure 39.1, Jeremiah Martin requests oral
argument and submits that it would materially aid the decisional process in this case.
Page 7 of 14
Issues Presented
Appellant respectfully submits the following motion for rehearing brief which
outlines the legal framework in which the Court should consider the following:
1. Whether the Defendant received notice required by TRCP 143a?
Page 8 of 14
STATEMENT OF FACTS
10.On February 3, 2015, Bexar County Justice Court, Precinct 3-1 issued
judgment in forcible detainer Cause 31E1500070 in favor of the Appellee.
See Exhibit A.
11.On February 9, 2015 the Appellant perfected an appeal. See Exhibit B.
12.The Defendant nor his attorney of record received the notice prescribed under
Texas Rules of Civil Procedure 143a, setting the 20 day time period within
which the appellant must pay the court costs (TRCP 143a notice).
13.March 17, 2015, the Bexar County Clerk sent the Defendant’s attorney a
notice stating the appeal was being dismissed for failure to pay the court costs
under TRCP 143a.
14.The Bexar County Clerk sent the notice certified mail return receipt property
addressed to the Defendant’s attorney, as required by TRCP 21a. However,
the Defendant’s attorney never received the notice.
15.The 20 day notice was mis-delivered, because the return receipt was signed
by someone other than James Minerve or one of his employees. See Exhibit
C.
16.Attorney James Minerve operates out of a home office at 115 Saddle Blanket
Trail, Buda, Texas 78610. Mr. Minerve employed only two persons at all
Page 9 of 14
times relevant to this matter, legal assistants Kevin Gates and Maria Rogers.
17.Mr. Minerve nor his legal assistants signed the return receipt, and neither of
them received the 20 day notice.
Page 10 of 14
SUMMARY OF THE ARGUMENT
A properly addressed notice placed in the US mail certified return receipt
requested creates a rebuttable presumption that the Defendant received notice.
However, if receipt of the notice is challenged, the presumption vanishes; and if the
Defendant proves he didn’t receive notice, as in this case, the Defendant is deemed
to not have been notified as required by TRCP 143a. In this case, the Defendant’s
appeal and supersedeas bond is still in effect.
ARGUMENT
Whether the Defendant received notice required by TRCP 143a?
The Cliff v Huggins Holding
The County Court dismissed the Defendant’s motion to reinstate its appeal
because the County Court held that a properly addressed notice placed in the US
mail certified return receipt requested is irrefutable that notice under TRCP 21a has
been satisfied. The County Court ignored case law. In Cliff v Huggins, the Texas
Supreme Court held that a properly addressed certified return receipt notice creates
a rebuttable presumption notice was received; however, if the receipt of the notice
is challenged, the presumption vanishes; and if the Defendant proves that notice was
in fact not received; then notice required by TRCP 21a is deemed not met. Cliff v
Huggins, 724 S.W.2d 778, 780, ( (2987) (holding, “Rule 21a sets up a presumption
Page 11 of 14
that when notice of trial setting properly addressed and postage prepaid is mailed,
that the notice was duly received by the addressee. See Southland Life Ins. Co. v.
Greenwade, 138 Tex. 450, 159 S.W.2d 854 (Comm’n App.1942, opinion adopted).
This presumption may be rebutted by an offer of proof of nonreceipt. In the absence
of evidence to the contrary, the presumption has the force of a rule of law. Id., 159
S.W.2d at 857. The presumption, however, is not “evidence” and it vanishes when
opposing evidence is introduced that the letter was not received.”).
The green card return receipt, Exhibit C, clearly shows that the return receipt
was signed by someone other than James Minerve (the Defendant’s attorney of
record), Kevin Gates (James Minerve’s legal assistant), or Maria Rogers (James
Minerve’s legal assistant and only other employee at all times relevant to this
matter). James Minerve has complete control over his home/office, lives alone, and
no one other than James Minerve or his employees could receive mail at his
home/office. Given that the Defendant has produced evidence and the Bexar County
Clerk has not adduced any evidence, and the presumption of service has vanished,
according to Texas Supreme Court jurisprudence, the Defendant is deemed not to
have been notified as required by TRCP 143a. Therefore, the Defendant’s appeal
and supersedeas bond is still in effect.
Page 12 of 14
PRAYER
1. The Appellant/Defendant prays the Court reinstates the
Appellant’s/Defendant’s forcible detainer appeal to Bexar County Court, Cause
2015CV01933.
2. The Appellant/Defendant prays the Court recalls the writ issued by the
lower court.
Date: April 16, 2015 Respectfully submitted,
/s/ JAMES MINERVE
James Minerve
State Bar No. 24008692
115 Saddle Blanket Trail
Buda, Texas 78610
(210) 336-5867
(888) 230-6397 (Fax)
Attorney for Appellant
Jeremiah Martin
Page 13 of 14
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
document was sent to the Appellee in accordance with the Texas Rules of Civil
Procedure on this 16th day of April, 2015:
Jeff Lewis
Robertson Anschutz Vetters
10333 Richmond Avenue, Suite 550
Houston, Texas 77042
Phone: (713) 980-9500
Fax: (713) 888-2703
/s/ James Minerve
______________________________
James Minerve
CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software used to
produce this document, I certify that the number of words in this reply (excluding
any caption, identity of parties and counsel, statement regarding oral argument, table
of contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance, and appendix) is 695.
/s/ James Minerve
______________________________
James Minerve
Page 14 of 14 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3394311/ | Appeal dismissed on motion of counsel for the respective parties. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523531/ | 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-2438-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY BETHEA, a/k/a
ANTHONY MASON,
Defendant-Appellant.
_________________________
Submitted March 3, 2020 – Decided April 8, 2020
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 08-11-0955.
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 (Caitlyn Kelly, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Anthony Bethea appeals from a December 5, 2018 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
I.
We derive the following facts from the PCR record and the chronology
set forth in our unpublished opinion on August 31, 2015,1 in which we affirmed
defendant's conviction, sentence, and the trial court's denial of his motion to
suppress. Defendant was initially charged as a juvenile in connection with the
murder and robbery of his eighty-four-year-old neighbor, J.E. 2 At the time
defendant was charged, he was almost seventeen years and nine-months old.3
Following defendant's arrest, the Trenton police department contacted
defendant's mother and advised her that her son was a suspect in J.E.'s homicide.
Defendant's mother signed a "Trenton Police Department Consent Form for the
Interview of a Juvenile Suspect," which waived her presence and gave consent
for her son to be interviewed in her absence.
1
State v. Bethea, No. A-0004-13 (App. Div. Aug. 31, 2015).
2
We use initials to protect the identity of the victim. R. 1:38-3(c)(12).
3
Defendant was born in February 1990.
A-2438-18T3
2
Thereafter, defendant was interviewed by two police officers, who read
the "Mercer County Uniform Complaint/Arrest Warrant Notice Form" to
defendant, notifying him of the charges. Defendant indicated he understood the
charges. He was also given his Miranda4 warnings, read them out loud, and
signed the form.
Defendant was questioned for an hour and fifteen minutes. Officer
Manuel Montez told defendant he "would still be young when released from
prison and would try to help him out." Defendant told detectives he was
"straight," had to "face the time," and "man-up for [his] mistakes."
Following an indictment for first-degree murder, N.J.S.A. 2C:11-3(a)(2),
and other offenses associated with the murder of J.E., defendant moved to
suppress his statement. We upheld the trial court's decision to deny the motion
to suppress and concluded that defendant's confession "was the product of his
own free will." Moreover, we noted that defendant had completed some high
school education, and he had familiarity with the criminal process based upon
his previous encounters with the law.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
A-2438-18T3
3
In our prior opinion, we affirmed defendant's sentence of fifty years'
imprisonment, subject to an eighty-five percent period of parole ineligibility
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On October 29, 2015, defendant filed a pro se PCR petition. In March
2016, defendant filed a second PCR petition because he did not receive a
response to his first filing. The court assigned counsel, who filed an amended
petition on June 9, 2018. Counsel argued that although defendant filed his
petition two days late, the PCR court should deem the late filing was excusable
neglect because the petition was signed two days before the October 23, 2015
deadline.
On June 15, 2018, PCR counsel filed a brief in support of defendant 's
petition, arguing that defendant's sentence was unconstitutional under Miller v.
Alabama, 567 U.S. 460 (2012), and State v. Zuber, 227 N.J. 422 (2017), because
the trial court did not consider defendant's youth and attendant circumstances as
mitigating factors.
On the return date of defendant's PCR petition, defendant argued that he
was entitled to an evidentiary hearing on his claim that his sentence was
unconstitutional under Miller and Zuber. Defendant characterized himself as
having an "intellectual disability" and argued "he did not knowingly,
A-2438-18T3
4
intelligently, and voluntarily waive his Miranda rights because of his age and
below-average intelligence." Defense counsel also argued there were two
psychological evaluations "readily available" at the time of defendant's
sentencing and trial counsel was ineffective for not producing them to the trial
court.
Defendant advanced three arguments to support his PCR claim that trial
counsel afforded ineffective assistance: (1) counsel failed to investigate his
intellectual disabilities and his mother's consent for the police to interview him;
(2) a more thorough investigation of his disabilities would have led to more
favorable plea negotiations; and (3) counsel should have argued mitigating
factor four at sentencing because there were "substantial grounds tending to
excuse or justify defendant's conduct" under N.J.S.A. 2C:44-1(b)(4). Defendant
further contended that trial counsel's cumulative errors constituted ineffective
assistance and he was entitled to an evidentiary hearing.
After due consideration of the issues raised, the PCR court denied the
petition. In a twenty-one-page written decision, the PCR court distinguished
defendant's case from Miller and Zuber:
[Defendant] was not sentenced to life without the
possibility of parole; he was given a sentence of fifty
years, with forty-two-and-a-half years of parole
ineligibility. Clearly then, [defendant] was not
A-2438-18T3
5
subjected to a sentencing scheme preordaining a
sentence of life without parole. . . .
Even if [defendant] had clearly raised a Zuber claim, it
would still fail, as [defendant's] sentence is not the
"practical equivalen[t] of life without parole."
[(second alteration in original) (citations omitted).]
The PCR court determined Zuber was not applicable because:
In Zuber, the defendants were respectively sentenced to
110 years ([fifty-five] years before parole eligibility)
and [seventy-five] years ([sixty-eight] years and [three]
months before parole ineligibility) for actively
participating in two violent gang rapes. Thus, the
defendants would respectively be seventy-two and
eighty-five years old before reaching parole eligibility.
The [C]ourt remarked that each defendant would spend
more than [fifty] years in prison, longer than some
adults convicted of first-degree murder.
In the case at bar, [defendant] was seventeen years old
at the time of his crime. Rather than proceeding to trial,
[defendant] agreed to a negotiated plea of [fifty] years
[subject to] NERA. [The sentencing judge] sentenced
[defendant] in accordance with his plea agreement.
[Defendant] will be eligible for parole in 2052, at which
point he will be [fifty-nine and one-half] years old.
While we may not refer to actuarial tables to conclude
[defendant's] sentence does not violate Zuber, it is
evident that [defendant] will be exiting the prime years
of his life once he becomes eligible for parole.
The PCR court concluded that the holdings in Miller and Zuber did not entitle
defendant to a reconsideration of his sentence.
A-2438-18T3
6
The PCR court further held that defendant failed to "consistently define"
his alleged disabilities, specifically whether this term as used by defendant
refers to his lower-than-average intelligence or Attention Deficit Hyperactivity
Disorder (ADHD). Because defendant did not present any details to support his
contentions, the court rejected his argument.
The PCR court further found that defendant failed to explain how
counsel's investigation of the case would have had an impact upon the Miranda
hearing. Even if trial counsel was ineffective for not investigating defendant 's
disabilities, the PCR court found defendant's claim failed under the second
prong of Strickland.5 Citing State v. Carpenter, 268 N.J. Super. 378, 385 (App.
Div. 1993), the PCR court held "[i]t is well[-]established that a suspect's lack of
intelligence—alone—will not obviate an otherwise valid Miranda waiver." Ibid.
Regarding the ineffective-assistance-of-counsel claim, the PCR court
determined defendant's argument was procedurally barred under Rule 3:22-5,
relying on our opinion that "he did not knowingly, intelligently, and voluntarily
waive his Miranda rights because of his below-average intelligence." Bethea,
slip op. at 14. We noted there was "ample evidence that defendant's confession
was the product of his own free will," stating:
5
Strickland v. Washington, 466 U.S. 668, 687 (1984).
A-2438-18T3
7
[Detective] Montez read defendant his Miranda rights
and the accompanying forms before asking him to read
the documents aloud. Montez also repeatedly asked
defendant if he understood the forms and his rights.
Each time, defendant replied, "Yes, sir." Montez gave
defendant a "clear and easy-to-understand" explanation
that meaningfully informed him of his constitutional
rights.
[Id. at 14-15.]
With regard to defendant's claim that trial counsel was ineffective for not
calling defendant's mother as a witness at the Miranda hearing, the PCR court
determined it was "irrelevant, for the evidence submitted would not alter the
result of defendant's case, even if it were presumed authentic." The PCR court
explained:
Put simply, taking [the mother's] certification as valid
would defy common sense. [Mother's] certification
claims "she wanted to be present" during [defendant's]
interrogation and "would have never allowed her son to
speak with police without her presence and or the
presence of a lawyer." However, in the Trenton Police
Department "Consent Form for the Interview of a
Juvenile Suspect" (Consent Form), [mother]
acknowledged Detective Montez "requested my
presence during the interview." Further, the Consent
Form recorded [mother's] refusal to accompany
[defendant] and her grant of "consent for [defendant] to
be interviewed in my absence." [Mother] also
recognized "that [defendant and I] have the right to be
represented by an attorney," yet decided "[defendant
and I] do not wish that representation at this time."
A-2438-18T3
8
Finally, the Appellate Division specifically found
[mother's] "absence from the interrogation [did not]
render [defendant's] confession inadmissible," since
[mother] spoke with Detective Montez, was informed
of the charges against defendant, and "chose not to be
present for the interrogation." Thus, the court
concluded [mother] "was not tricked, threatened,
coerced, or intentionally excluded" from [defendant's]
interrogation. These findings—like the Consent Form
signed by [mother]—explicitly refute [mother's] instant
certification.
Thus, under the most indulgent reading of the PCR petition, the PCR court
concluded that the two prongs of the Strickland/Fritz6 test were not met.
On appeal, defendant raises the following arguments:
POINT ONE
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
BECAUSE TESTIMONY IS NEEDED REGARDING
TRIAL COUNSEL'S FAILURE TO ADVISE THE
TRIAL COURT OF DEFENDANT'S
INTELLECTUAL DISABILITIES AS THEY
AFFECTED EVERY STAGE OF HIS MATTER.
POINT TWO
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
BECAUSE TESTIMONY IS NEEDED REGARDING
TRIAL COUNSEL'S FAILURE TO CALL [HIS
MOTHER] AS A WITNESS AT THE MIRANDA
6
State v. Fritz, 105 N.J. 42, 58 (1987).
A-2438-18T3
9
HEARING TO CONTRADICT THE TESTIMONY OF
DETECTIVE MONTEZ.
POINT THREE
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
BECAUSE TESTIMONY IS NEEDED REGARDING
TRIAL COUNSEL'S FAILURE TO ADVISE THE
TRIAL COURT OF DEFENDANT'S
INTELLECTUAL DISABILITIES PRIOR TO
PLEADING GUILTY, AND IT . . . ALSO NEEDS TO
BE DETERMINED IF DEFENDANT UNDERSTOOD
THE TERMS OF HIS GUILTY PLEA GIVEN HIS
INTELLECTUAL LIMITATIONS.
POINT FOUR
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING AS
TRIAL COUNSEL WAS INEFFECTIVE AT
SENTENCING IN FAILING TO ARGUE
DEFENDANT'S YOUTH AND INTELLECTUAL
LIMITATIONS AT SENTENCING.
II.
We have thoroughly reviewed the record and conclude the PCR judge
correctly found that defendant was not entitled to an evidentiary hearing.
Evidentiary hearings on PCR petitions are neither mandated nor necessary to
fully and properly evaluate each issue for relief asserted. See State v. Marshall,
148 N.J. 89, 157-58 (1997); State v. Russo, 333 N.J. Super. 119, 138 (App. Div.
A-2438-18T3
10
2000). Rule 3:22-10 recognizes the PCR court's discretion to conduct
evidentiary hearings.
An evidentiary hearing becomes necessary when a defendant presents a
prima facie basis to support the grant of relief by demonstrating a reasonable
likelihood that his claim will ultimately succeed on the merits. State v. Preciose,
129 N.J. 451, 462 (1992). A defendant's "bald assertions" that counsel was
ineffective will not sufficiently satisfy defendant's prima facie burden; the
defendant must allege specific facts demonstrating the deficient performance.
State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006); State v.
Cummings, 321 N.J. Super. 154 ,170 (App. Div. 1999).
To establish such a prima facie showing, a defendant must demonstrate a
reasonable likelihood of succeeding under the two-pronged test set forth in
Strickland, 466 U.S. at 687, and adopted by our Supreme Court in Fritz, 105
N.J. at 58. Defendant must prove both deficient performance of counsel and a
"reasonable probability" that such performance affected the outcome. Ibid.
Under that test, defendant must specifically demonstrate "that counsel
made errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, 466
U.S. at 687). This is a high standard because "counsel is strongly presumed to
A-2438-18T3
11
have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.
The facts maintained by defendant in his PCR petition, that he has lower-
than-average intelligence and ADHD, are unaccompanied by documentary
evidence. His assertion that these facts, if investigated more thoroughly, would
demonstrate whether he was able to fully participate at all stages of the
proceeding and whether he had an intellectual disability that might have
constituted a defense is, at best, speculative.
Beyond his own assertions, defendant has offered no evidence of having
a prior or ongoing intellectual disability. More critically, he has not shown how,
even if he had an intellectual disability, that condition would have constituted a
defense or otherwise altered the outcome of the proceedings. See State v.
Morton, 165 N.J. 235, 250-51 (2000) (evidence of defendant's "borderline
intellectual functioning" and enrollment in special education classes determined
not to provide justification or excuse for murder).
Here, the PCR court aptly concluded that defendant's contention was
"insufficiently . . . supported." Therefore, we reject defendant's argument that
he was denied effective assistance of counsel on this issue.
A-2438-18T3
12
Defendant's claim that his mother should have been called as a witness at
his Miranda hearing also lacks merit. In his brief, defendant relies upon a
December 9, 2018 investigation report wherein defendant's mother claimed that
when she arrived at the Trenton Police Department, she learned her son was
already being questioned by police without her knowledge or permission. She
further asserted that "[s]he wanted to be present and would never [have] allowed
her son to speak with police" without her or a lawyer present. 7
As the PCR court observed, if defendant's mother had proffered her
certification at the Miranda hearing, "the court would have found it wholly
incredible." In our opinion on defendant's direct appeal, we noted his mother's
non-participation in the interrogation did not render defendant's statements
inadmissible, and she was "not tricked, threatened, coerced, or intentionally
excluded from" the interrogation. Bethea, slip op. at 17-18. The PCR court's
decision was based upon substantial credible evidence in the record.
7
The December 9, 2018 report was prepared after the PCR court's decision.
The report is not properly before this court and we will not consider it. "Our
rules provide that '[t]he record on appeal shall consist of all papers on file in the
court . . . below,'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, PA, 189 N.J.
436, 452 (2007) (alteration in original) (quoting R. 2:5-4), and our Supreme
Court "has long held [that] appellate review is limited to the record developed
before the trial court," Davis v. Devereux Found., 209 N.J. 269, 296 n.8 (2012).
We therefore, reject defendant's reliance on the report.
A-2438-18T3
13
Regarding the failure to argue mitigating factor four, which permits a
sentencing court to consider whether there "were substantial grounds tending to
excuse or justify the defendant's conduct, though failing to establish a
defense[,]" N.J.S.A. 2C:44-1(b)(4), the PCR court rejected defendant's argument
that he had ineffective assistance of counsel. Defendant maintains his sentence
is illegal because his alleged trial counsel's ineffectiveness caused defendant to
be sentenced to the functional equivalent of life without parole (LWOP).
The PCR court found defendant's argument was procedurally barred under
Rule 3:22-5 because this court rejected that claim on direct appeal. In its
decision, the PCR court reasoned:
First, trial counsel's failure to notify the trial court
about [defendant's] supposed disability was not
problematic. Mitigating factor four, which [defendant]
cites as his panacea, permits a sentencing court to
consider whether there "were substantial grounds
tending to excuse or justify the [defendant's] conduct,
though failing to establish a defense." N.J.S.A. 2C:44-
1(b)(4). In short, [defendant's] condition does not
constitute "substantial grounds tending to excuse or
justify the vicious, premeditated murder of a celebrated
octogenarian. . . ."
Second, even if it was [inept] for trial counsel to neglect
disclosing [defendant's] purported disability,
[defendant's] argument would still fall flat, since his
condition would not have altered the sentence. Again,
neither an ADHD diagnosis nor a below-average
intelligence "excuse[s] or justif[ies] cold-blooded
A-2438-18T3
14
murder." Moreover, the trial court sentenced
[defendant] pursuant to and in accordance with a valid
plea agreement.
[(footnote omitted) (citations omitted).]
The PCR court was correct in its analysis.
We also reject defendant's claim that the PCR court erred by not applying
the holdings in Miller and Zuber to his case. In Miller, the United States
Supreme Court held the Eighth Amendment prohibits the imposition of a
mandatory life sentence without parole on a defendant convicted of homicide
while a juvenile. 567 U.S. at 473, 489. "[T]he Court grounded its decisions on
commonly accepted scientific and sociological notions about the unique
characteristics of youth and the progressive emotional and behavioral
development of juveniles." State in the Interest of C.K., 233 N.J. 44, 68 (2018).
In Zuber, our Court held that "Miller's command that a sentencing judge
'take into account how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison,' applies with equal
strength to a sentence that is the practical equivalent of life without parole." 227
N.J. at 446-47 (quoting Miller, 567 U.S. at 480).
The Court held that the factors set forth in Miller must be considered when
sentencing defendants to terms that are the practically equivalent to LWOP for
A-2438-18T3
15
crimes committed as a juvenile: "[the] defendant's 'immaturity, impetuosity, and
failure to appreciate risks and consequences'; 'family and home environment';
family and peer pressures; 'inability to deal with police officers or prosecutors'
or his own attorney; and 'the possibility of rehabilitation.'" Id. at 453 (quoting
Miller, 567 U.S. at 477-78).
The Zuber Court did not categorically prohibit the imposition of sentences
on juvenile-aged offenders that are the functional equivalent of LWOP. Id. at
450-52. Instead, the Court stated that "even when judges begin to use the Miller
factors at sentencing," some juveniles may appropriately receive long sentences
with substantial periods of parole ineligibility, "particularly in cases that involve
multiple offenses on different occasions or multiple victims." Id. at 451.
Here, the PCR court correctly found that defendant's sentence and
circumstances are quite different than the factual scenarios in Miller and Zuber.
Defendant was not sentenced to LWOP or its functional equivalent because he
can be paroled at fifty-nine and one-half years old. And, unlike the defendants
in the Zuber case, defendant's sentence here was a bargained for term and he
A-2438-18T3
16
does not face "potential release after five or six decades of incarceration, when
[defendants] would be in their seventies and eighties . . . ." Id. at 448.8
The PCR court also properly rejected defendant's argument that his
sentence should be reconsidered due to revisions to N.J.S.A. 2A:4A-26.1.
Defendant contended that the revisions should apply retroactively to his case
and he would serve a "significantly lower sentence" if he was subject to the
revised statute and "not waived to adult court."
We are persuaded that the PCR court correctly declined to address whether
the revisions applied retroactively to defendant's case and we agree "it is clear
[defendant] would have been waived into adult court under any statutory
scheme." The record shows there was an abundance of evidence to support the
offenses of first-degree murder, robbery, and the other charges. The PCR court
properly denied defendant's argument because he would have been waived into
adult court under either version of N.J.S.A. 2A:4A-26.1.
Finally, the PCR court determined that defendant's pro se arguments
mirrored those already adjudicated. We agree. Since none of the alleged errors
were established, defendant's argument on cumulative error is devoid of merit.
8
The Zuber defendants were parole eligible at ages seventy-two and eighty-
five. 227 N.J. at 428-29.
A-2438-18T3
17
Here, defendant failed to demonstrate a reasonable likelihood of success
on the merits and thus was not entitled to an evidentiary hearing.
Affirmed.
F
A-2438-18T3
18 | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3394326/ | Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3985294/ | The briefs on petition for rehearing and the opinion of the court denying rehearing have raised in my mind serious *Page 272
doubts as to a number of matters in the original opinion. I therefore think the opinion should be set aside and a rehearing granted.
MOFFAT, J., participated in the original opinion but was, before consideration of the petition for rehearing, deceased. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523536/ | 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-2085-18T2
ALLAN MARAIN,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and YANIRYS M. PICHARDO,
Respondents.
____________________________
Argued March 2, 2020 – Decided April 8, 2020
Before Judges Fasciale and Rothstadt.
On appeal from the Board of Review, Department of
Labor, Docket No. 161,255.
Allan Marain, appellant, argued the cause pro se.
Andy Jong, Deputy Attorney General, argued the cause
for respondent Board of Review (Gurbir S. Grewal,
Attorney General, attorney; Sookie Bae, Assistant
Attorney General, of counsel; Andy Jong, on the brief).
Respondent Yanirys M. Pichardo has not filed a brief.
PER CURIAM
Allan Marain, the former employer of claimant Yanirys M. Pichardo,
appeals from a final determination made by the Board of Review (Board) of the
New Jersey Department of Labor and Work Force Development, Division of
Unemployment and Insurance Services (Department). The Board determined
Pichardo's separation from her employment with Marain was the result of her
misconduct under N.J.S.A. 43:21-5(b), rather than her voluntarily abandoning
her position under N.J.A.C. 12:17-9.11(a), for reasons unrelated to her
employment, which would have disqualified her from receiving any benefits,
see N.J.S.A. 43:21-5(a). The Board made its determination based upon its
Appeal Tribunal's finding that Pichardo was absent from her position with
Marain for a month and a half, and during that time, gave Marain multiple
excuses for her absence that she later admitted were untrue. According to the
Appeal Tribunal, when Pichardo admitted that her reasons for her being absent
were untrue, Marain terminated her employment.
On appeal, Marain argues that the Board failed to properly consider the
facts adduced at the hearing and abused its discretion in finding that he
discharged Pichardo, rather than that she abandoned her employment. We
reverse because we conclude that the Board's final determination constituted an
A-2085-18T2
2
abuse of its discretion as it was not supported by the evidence and was legally
incorrect.
The facts taken from the record are summarized as follows. Pichardo
began her employment with Marain as a legal assistant on May 22, 2017.
Beginning on June 25, 2018, Pichardo failed to report for work. From that date
through August 9, 2018, Pichardo repeatedly contacted Marain and gave him
numerous reasons why she could not come to work.
On August 12, 2018, Pichardo filed for unemployment benefits.
According to her application for benefits, Pichardo stated the reason for leaving
her employment was that she was concerned about a coworker's use of marijuana
while at work.1 The day after she filed her application for unemployment, she
asked Marain to meet with her.
On August 14, 2018, the parties met and during their discussion, Pichardo
admitted that contrary to the information she gave Marain during her absence,
she had only been hospitalized for one or two days during the month and a half
that she remained absent from her job. At the meeting, Pichardo expressed that
1
Although we were inexplicably not provided with a copy of her application in
either parties' appendix, the Board's counsel confirmed at oral argument the
reason stated by Pichardo in her application for leaving her job. Pichardo
reported that reason again in her ensuing appeal from the Department's initial
determination as discussed below.
A-2085-18T2
3
she would like to return to work and in response Marain stated "I have to let
[her] go." According to Marain, he could not allow her to return because of her
dishonesty, which caused him to no longer trust her.
On September 11, 2018, the Department responded to Pichardo's
application for unemployment benefits. In its response, the Department
indicated to her that she was "disqualified for benefits from [June 17, 2018] and
will continue to be disqualified until [she has] worked eight or more weeks in
employment and have earned at least ten times [her] weekly benefit rate."
According to the notice, the determination was based upon her having left work
voluntarily on June 22, 2018, and thereafter she told Marain that she was having
medical issues, but when asked about medical documentation, Pichardo
admitted to the employer on August 14, 2018 [that she
was] not having health issues. [Pichardo] stated to the
unemployment agent [she] had a major family issue
during July and August and upon further inquiry, [she]
admitted that was not true, [she] stopped going to work
to look for a full-time job.
The notice further stated that her "actions [were] evidence of [her]
intention to sever the employer-employee relationship. Therefore, [Pichardo]
quit [her] job voluntarily and without good cause attributable to the work."
Pichardo filed an appeal of the initial determination and again stated her
reason for leaving work was related to her concerns about her coworker using
A-2085-18T2
4
marijuana. In response to Pichardo's appeal, the matter was scheduled for a
telephonic hearing that was conducted by an Appeals Examiner on October 10,
2018.
At the telephonic hearing, the Appeals Examiner identified the issue to be
addressed as whether Pichardo voluntarily left her position with Marain,
"without good cause attributable to [her] work." Pichardo, Marain and the co-
worker testified at the hearing.
Pichardo admitted again that the information she provided to Marain that
she was absent from work due to hospitalization and health issues was untrue
except for approximately two days that she was hospitalized. While she was
out, she sent Marain texts every day, telling him she was sick, under medical
care at a hospital, or that she did not have childcare, but that she would return
the next day.
Throughout her testimony, Pichardo explained that she left work because
she was concerned about her coworker's alleged use of marijuana and her
periodic "mood swings." For that reason, she "quit the job," although she told
Marain that the reason she was leaving was because she "was sick" and never
told him about the coworker because she believed Marain would not "let [the
coworker] go." Pichardo also testified that even at their meeting on August 14,
A-2085-18T2
5
2018, she did not tell Marain that she wanted to leave her job because of the
coworker.
Marain confirmed that at the August 14, 2018 meeting Pichardo wanted
to come back to work but, as the Appeals Examiner described in her question to
him, he "let her go because . . . of her lying for [the] month she was out." At
that point, the Appeals Examiner stopped the proceedings to "add a potential
issue into [the] hearing; . . . discharge for misconduct," and explained to the
parties that if that was the reason for Pichardo's unemployment, she would be
entitled to benefits after six weeks of ineligibility. She then gave the parties an
opportunity to postpone the remainder of the hearing so that they could prepare
to address the added issue. Both parties declined, and the matter proceeded with
Marain confirming that he "discharged" Pichardo on August 14, 2018, denying
there was any issue about the coworker using marijuana and testifying that
Pichardo never raised the issue with him.
In her testimony, the coworker denied any marijuana use and confirmed
that she too received texts every day from Pichardo telling the coworker she was
hospitalized. Later, in response to the coworker's suggestion that Pichardo
secure medical documentation of her illness and treatment, Pichardo admitted
that she was only treated for not more than two days and provided no documents.
A-2085-18T2
6
The coworker also explained that she had loaned money to Pichardo, and when
it was not repaid, she reached out to Pichardo's brother to find out about getting
back her money, which caused Pichardo to become angry with her.
On redirect, Pichardo confirmed the loan and her need to repay the
coworker. She also confirmed the coworker's testimony that she was asked to
bring in medical documentation to confirm her absence, but she did not do so.
On October 17, 2018, the Appeals Examiner issued her decision. As
noted, the Appeals Examiner found that Pichardo had been employed by Marain,
she was absent from work from June 25, 2018 through August 9, 2018, provided
Marain with multiple excuses for her absence, and at the August 14, 2018
meeting "she admitted to the employer that she had lied to him about the
reason[s] for her absence[]. The employer no longer could trust [Pichardo] and
discharged her from her job as of [August 14, 2018]." The Appeals Examiner
then explained that N.J.S.A. 43:21-5(a) applied to individuals who left work
voluntarily without "good cause attributable to such work." According to the
Appeals Examiner, this provision did not apply because Marain discharged
Pichardo, therefore she "did not leave the job."
The Appeals Examiner turned to N.J.S.A. 43:21-5(b), which applies to
individuals who have "been suspended or discharged for misconduct connected
A-2085-18T2
7
with the work." The Appeals Examiner determined that Pichardo's dishonesty
and "providing false excuses for her absence[] . . . constitute[d] misconduct."
She also noted that because of her determination that Pichardo was discharged
for misconduct, her decision would "have an impact on the employer's liability
for benefit charges against its experience rating account."
Marain filed an appeal from the Appeal Tribunal's determination to the
Board on October 24, 2018. The Board issued its final determination on
December 10, 2018. In its decision, the Board stated that it carefully examined
the findings of facts made by the Appeal Tribunal, concluded that "[o]n the basis
of the record below [it] agree[d] with the decision reached," and affirmed the
Appeal Tribunal's determination. This appeal followed.
On appeal, Marain contends that the Board abused its discretion by
adopting the Appeal Tribunal's incorrect determination that Pichardo separated
from her employment because she was terminated for misconduct rather than
finding that she abandoned her position when she stayed out of work and
provided Marain with false reasons for her absence. We agree.
Our review of decisions by administrative agencies is limited. In re
Stallworth, 208 N.J. 182, 194 (2011). For that reason, a party that challenges a
final agency decision carries a substantial burden of persuasion. Gloucester Cty.
A-2085-18T2
8
Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). "In order
to reverse an agency's judgment, an appellate court must find the agency's
decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by
substantial credible evidence in the record as a whole.'" In re Stallworth, 208
N.J. at 194 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
"In reviewing a final agency decision, such as that of the Board . . . , we
defer to factfindings that are supported by sufficient credible evidence in the
record." McClain v. Bd. of Review, 237 N.J. 445, 456 (2019). "[I]f substantial
evidence supports the agency's decision, 'a court may not substitute its own
judgment for [that of] the agency's even though the court might have reached a
different result.'" In re Carter, 191 N.J. 474, 483 (2007) (quoting Greenwood v.
State Police Training Ctr., 127 N.J. 500, 513 (1992)).
In assessing whether the Board acted within the scope of its authority, we
consider:
(1) [W]hether the agency's decision offends the State or
Federal Constitution; (2) whether the agency's action
violates express or implied legislative policies; (3)
whether the record contains substantial evidence to
support the findings on which the agency based its
action; and (4) whether in applying the legislative
policies to the facts, the agency clearly erred in
reaching a conclusion that could not reasonably have
been made on a showing of the relevant facts.
A-2085-18T2
9
[Lourdes Med. Ctr. of Burlington Cty. v. Bd. of
Review, 197 N.J. 339, 360 (2009) (quoting Brady v.
Bd. of Review, 152 N.J. 197, 211 (1997)).]
When considering those factors, we must defer to the agency's "expertise
and superior knowledge of a particular field." In re Carter, 191 N.J. at 483
(quoting Greenwood, 127 N.J. at 513). Furthermore, deference to an agency's
decision "is particularly appropriate" when the matter involves the interpretation
and application "of the [a]gency's own regulation[s]." R.S. v. Div. of Med.
Assistance & Health Servs., 434 N.J. Super. 250, 261 (App. Div. 2014) (quoting
I.L. v. N.J. Dep't of Human Servs., 389 N.J. Super. 354, 364 (App. Div. 2006)).
However, "we are 'in no way bound by the agency's interpretation of a
statute or its determination of a strictly legal issue.'" Utley v. Bd. of Review,
194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64
N.J. 85, 93 (1973)). "[A]lthough we accord some deference to the Board's
interpretation of the statutory scheme that the Legislature has entrusted it to
administer, we are not bound by an unreasonable or mistaken interpretation of
that scheme, particularly one that is contrary to legislative objectives."
McClain, 237 N.J. at 456.
Our decision is also guided by fundamental principles of law governing
unemployment compensation. "[T]he Unemployment Compensation Law 'is to
A-2085-18T2
10
be construed liberally in favor of allowance of benefits.'" Lord v. Bd. of Review,
425 N.J. Super. 187, 195 (App. Div. 2012) (quoting Utley, 194 N.J. at 543). Our
State's Unemployment Compensation Law, N.J.S.A. 43:21-1 to 24.30, is
primarily designed to lessen the impact of unemployment that befalls workers
without their fault. Brady, 152 N.J. at 212. "The public policy behind the Act
is to afford protection against the hazards of economic insecurity due to
involuntary unemployment." Yardville Supply Co. v. Bd. of Review, 114 N.J.
371, 374 (1989) (emphasis added); see also N.J.S.A. 43:21-2 (declaring public
interest in addressing the burden of "[i]nvoluntary unemployment"). Therefore,
a person who voluntarily quits or abandons work for personal reasons, rather
than for causes attributable to work, is ineligible for benefits.
Applying these principles, we conclude the Board's decision here was not
supported by substantial evidence and was based upon an unreasonable
interpretation of the law.
N.J.S.A. 43:21-5(a) provides that an individual is disqualified for
unemployment compensation benefits where that "individual has left work
voluntarily without good cause attributable to such work." In order to avoid
disqualification, a claimant must show she left work for "good cause attributable
to work." Brady, 152 N.J. at 218. "Good cause means 'cause sufficient to justify
A-2085-18T2
11
an employee's voluntarily leaving the ranks of the employed and joining the
ranks of the unemployed,' and the reasons for terminating employment 'must
meet the test of ordinary common sense and prudence.'" Heulitt v. Bd. of
Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (quoting Zielenski v. Bd. of
Review, 85 N.J. Super. 46, 53-54 (App. Div. 1964)).
Persons who leave work for personal reasons are not eligible for
unemployment benefits. Brady, 152 N.J. at 213. Rather,
the decision to leave employment must be compelled
by real, substantial and reasonable circumstances not
imaginary, trifling and whimsical ones. . . . [I]t is the
employee's responsibility to do what is necessary and
reasonable in order to remain employed.
[Domenico v. Bd. of Review, 192 N.J. Super. 284, 288
(App. Div. 1983) (citations omitted).].
Ultimately, "an employee's separation from employment" is voluntary if
"the decision whether to go or to stay lay at the time with the worker alone. "
Lord, 425 N.J. Super. at 191 (quoting Campbell Soup Co. v. Bd. of Review, 13
N.J. 431, 435 (1953)). "[T]he one who initiates that action which eventually
leads to the separation is the one who is responsible for breaking the employer -
employee relationship." Id. at 190.
An employee who abandons their position is "subject . . . to
disqualification for benefits for voluntarily leaving work without good cause
A-2085-18T2
12
attributable to such work." N.J.A.C. 12:17-9.11(a). The Department's
regulation defines abandonment to include "[a]n employee who is absent from
work for five or more consecutive workdays and who without good cause fails
to notify the employer of the reasons for his or her absence." Ibid.
Unlike abandonment of a position by an employee, termination for
misconduct requires that an employee be "suspended or discharged for
misconduct connected with the work." N.J.S.A. 43:21-5(b).2 While termination
for abandonment results in disqualification for benefits, discharge for
"misconduct" results in a six-week ineligibility period and is charged to the
employer's experience rating. Ibid.; see also Lord, 425 N.J. Super. at 195.
2
The statute defines "misconduct" as follows:
[C]onduct which is improper, intentional, connected
with the individual's work, within the individual's
control, not a good faith error of judgment or discretion,
and is either a deliberate refusal, without good cause,
to comply with the employer's lawful and reasonable
rules made known to the employee or a deliberate
disregard of standards of behavior the employer has a
reasonable right to expect, including reasonable safety
standards and reasonable standards for a workplace free
of drug and substance abuse.
[Ibid.]
A-2085-18T2
13
Applying the governing law and applicable regulation, we disagree with
the Board's interpretation that where an employee admittedly lies to her
employer about the reasons for his or her absence, the employee has met his or
her obligation to notify the employer under N.J.A.C. 12:17-9.11(a) so as to avoid
a finding of abandonment. Clearly, there is no difference between an employee
who does not notify the employer of their reason for having been absent for five
or more consecutive days and one who repeatedly lies about those reasons.
Moreover, under the circumstances here, where Pichardo actually filed for
benefits, claiming other reasons for her separation before Marain allegedly
discharged her, we cannot fathom how the Board could ignore that fact and
conclude that the employee had not abandoned her position because she later
met with Marain to see if he would hire her again.
We find no support for the Board's decision in the fact that the employer
told Pichardo he had "to let [her] go." As noted, when Marain said those words,
Pichardo had already been absent from work for an extended period and filed
for unemployment benefits. At best, Pichardo asked to meet with Marain to see
if she could get her job back. When he refused, she continued to pursue her
unemployment benefits by appealing the initial determination and arguing that
A-2085-18T2
14
the other employee's alleged marijuana use compelled her to leave her job,
which Pichardo admitted she never discussed with Marain.
The purpose of employment is to protect those who are confronted with
being "involuntary[ily] unemploy[ed]." Yardville Supply Co., 114 N.J. at 374.
To permit Pichardo to receive those benefits, even if delayed as provided for in
the case of discharge for misconduct, would be contrary to that policy to
"preserve the fund against claims by those not intended to share in its benefits. "
Ibid.
Reversed.
A-2085-18T2
15 | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523541/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10516
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:18-cv-04463-TWT,
1:10-cr-00025-TWT-LTW-1
RANDY WILCHER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 8, 2020)
Before WILSON, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
Randy Wilcher, a federal prisoner serving a 188-month sentence enhanced
by the Armed Career Criminal Act (“ACCA”), appeals the district court’s
dismissal, as successive and untimely, of his motion to amend his 28 U.S.C. § 2255
motion. In Wilcher’s original § 2255 motion, he argued that (1) he did not qualify
for the ACCA enhancement because a jury did not find beyond a reasonable doubt
that his prior convictions constituted serious drug offenses; and (2) his 1988
conviction was for simple possession, and therefore, counsel was ineffective for
failing to properly challenge the district court’s use of that conviction for the
ACCA enhancement. Subsequently, Wilcher sought to amend his § 2255 motion
to add a claim that his ACCA-enhanced sentence was no longer valid because the
state court had recently clarified that the 1988 conviction on which his ACCA
sentence was based was for simple possession rather than possession with intent to
distribute. On appeal, Wilcher argues that his motion to amend is not successive
because the state court’s clarification of his 1988 conviction did not occur until
after he filed his initial § 2255 motion. He also argues that his motion to amend is
not untimely because he diligently challenged his 1988 conviction and his claim
relates back to the claims in his original § 2255 motion.1
We review de novo a district court’s dismissal of a § 2255 motion as
successive. Boyd v. United States, 754 F.3d 1298, 1301 (11th Cir. 2014). We also
1
Wilcher raised a second issue in the motion to amend—that his counsel was ineffective for
failing to seek clarification of the 1988 conviction sooner. On appeal, however, he only
addresses the claim that his ACCA sentence is invalid. Therefore, he has abandoned any
argument that the district court erred in dismissing his motion to amend as to the ineffective-
assistance-of-counsel claim. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003).
2
review de novo the dismissal of a § 2255 motion as untimely. Id. We review the
application of Federal Rule of Civil Procedure 15(c) to § 2255 motions for an
abuse of discretion. Davenport v. United States, 217 F.3d 1341, 1343 n.4 (11th
Cir.2000). A district court abuses its discretion when it “applies the wrong law,
follows the wrong procedure, bases its decision on clearly erroneous facts, or
commits a clear error in judgment.” United States v. Brown, 415 F.3d 1257, 1266
(11th Cir. 2005).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides that a prisoner in federal custody may file a motion to vacate, set aside, or
correct his sentence on the grounds “that the sentence was imposed in violation of
the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). Only one § 2255 motion is authorized, and we must certify a
second or successive motion before the district court can reach the merits of the
motion. Boyd, 754 F.3d at 1301; 28 U.S.C. § 2244(b) (providing procedures for
bringing a successive habeas corpus petition); 28 U.S.C. § 2255(h) (incorporating
the procedures of § 2244(b) into the procedures for successive § 2255 motions).
However, “the phrase ‘second or successive’ is not self-defining and does
not refer to all habeas applications filed second or successively in time.” Stewart
3
v. United States, 646 F.3d 856, 859 (11th Cir. 2011). “[W]hen a petitioner raises a
claim that could not have been raised in a prior habeas petition, courts have
forgone a literal reading of ‘second or successive.’” Id. at 860. For example, in
Panetti v. Quarterman, the Supreme Court created an exception to § 2244(b) for a
second habeas petition raising a claim that would have been unripe had the
prisoner presented it in his first petition or motion. 551 U.S. 930, 945 (2007)
(concluding that the AEDPA’s limitation on second or successive petitions did not
govern habeas petitions raising a claim of incompetency under Ford 2 filed as soon
as that claim was ripe). In Stewart, we applied Panetti and held that a prisoner’s
second § 2255 motion was not successive because the factual basis for his claim—
the vacatur of the state convictions used to enhance his federal sentence—did not
exist before the proceedings on his first § 2255 motion had concluded. 646 F.3d at
864–65.
The AEDPA also imposes a one-year statute of limitations for filing a
§ 2255 motion, which begins to run following the latest of four possible dates:
(1) “the date on which the judgment of conviction becomes final; (2) the date on
which the impediment to making a motion created by governmental action in
violation of the Constitution or laws of the United States is removed . . . ; (3) the
2
In Ford v. Wainwright, 477 U.S. 399, 409–10 (1986), the Supreme Court held that the Eighth
Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.
4
date on which the right asserted was initially recognized by the Supreme
Court . . . ; or (4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due diligence.” 28
U.S.C. § 2255(f).
Rule 15(a) permits a party to amend a pleading once “as a matter of course”
within 21 days after serving it or after service of a responsive pleading.
Fed. R. Civ. P. 15(a). Otherwise, a party may amend a pleading “only with the
opposing party’s written consent or the court’s leave.” Id. Rule 15(c) allows an
amended pleading to relate back to the date of the original pleading if, in relevant
part, it “asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the original pleading.” Fed. R.
Civ. P. 15(c)(1)(B). Thus, if an otherwise untimely § 2255 claim “relates back” to
a timely § 2255 claim, it will be treated as filed when the timely § 2255 claim was
filed. Davenport, 217 F.3d at 1344. In the habeas context, it is not enough for the
later pleading to concern the same legal proceeding as the original motion. Mayle
v. Felix, 545 U.S. 644, 662–64 (2005). Rather, to relate back, the original and
amended pleadings must “state claims that are tied to a common core of operative
facts.” Id. at 664.
In Davenport, we determined that a movant’s new claims in his amended
§ 2255 motion did not relate back to the date of his timely filed § 2255 motion.
5
217 F.3d at 1346. In his original § 2255 motion, the movant argued that his
counsel was ineffective for not objecting that the drugs he had in his possession
were not crack cocaine because they lacked sodium bicarbonate, not objecting to
the drug weight as improperly including certain moisture content, and not asserting
that the government allowed its witness to perjure itself. Id. In his amended
motion, he argued that counsel was ineffective for allowing him to be sentenced
based on three grams of cocaine that were not part of the same course of conduct
as another drug transaction, relying on a summary lab report instead of a complete
lab report, and failing to advise him about a plea agreement. Id. We concluded
that the movant’s new claims did not “arise out of the same set of facts as his
original claims, but arose from separate conduct and occurrences in both time and
type.” Id. Accordingly, we held that the district court correctly determined that
the claims in the movant’s amended motion were time-barred under the AEDPA.
Id.
In Dean v. United States, we concluded that three of the claims in the
movant’s amended § 2255 motion related back to his initial, timely motion, while
one of the claims did not. 278 F.3d 1218, 1223 (11th Cir. 2002) (per curiam). We
determined that the movant’s first amended claim, that the government knowingly
presented perjured testimony of three named witnesses, related back to the claim in
his original motion that his conviction was obtained by use of perjured testimony.
6
Id. at 1222. We determined that the amended claim was timely because it arose
out of the same conduct or occurrence set forth in the original pleading—perjured
testimony at trial—and sought to add facts and specificity—the names of the exact
witnesses—to the original claim. Id. Similarly, we determined that his fifth
amended claim, that the court failed to make individual findings as to the amount
of crack cocaine with which he was involved, pursuant to U.S.S.G. § 1B1.3(a)(1),
related back to his original claim of the “incorrect use” of §§ 1B1 and 3B1. Id.
Though the district court found that this claim was “entirely new” because the
original ground could have referred to any of the ten subsections of § 1B1, we
determined, instead, that the amended claim was a more carefully drafted version
of the original claim. Id.
Conversely, we determined that the movant’s fourth amended claim, that his
base offense level under U.S.S.G. § 2D1.1 was calculated erroneously, did not
relate back to his original claim because he did not make such an argument at all in
his original motion. Id. at 1222–23. Finally, we determined that the sixth
amended claim, that the district court erred in allowing evidence of uncharged
misconduct, related back to the movant’s original claim that the district court failed
by allowing the government to enter inadmissible evidence at trial, because it
“gave notice that [the movant] believed that there was inadmissible evidence used
against him at trial.” Id. at 1223. Accordingly, we determined that the first, fifth,
7
and sixth amended claims met the intent of Rule 15(c) because they were “not
entirely new claims” and “[e]ach of them serve[d] to expand facts or cure
deficiencies in the original claims.” Id.
Here, the district court erred when it determined that Wilcher’s clarification-
based claim did not relate back to the claims in his original section 2255 motion
and, therefore, was untimely, as the claims all arose from a common core of
operative facts. See Merle, 545 U.S. at 664. Accordingly we vacate and remand.
VACATED AND REMANDED.
8 | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1713858/ | 284 Wis. 2d 111 (2005)
2005 WI 116
700 N.W.2d 62
STATE of Wisconsin, Plaintiff-Respondent,
v.
Lisimba L. LOVE, Defendant-Appellant-Petitioner.
No. 2003AP2255.
Supreme Court of Wisconsin.
Oral argument April 27, 2005.
Decided July 12, 2005.
For the defendant-appellant-petitioner there were briefs by Kathleen S. Donius and Reinhart Boerner Van Deuren S.C., Milwaukee, and oral argument by Kathleen S. Donius.
*115 For the plaintiff-respondent the cause was argued by Michael C. Sanders, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
*114 ¶ 1. LOUIS B. BUTLER, JR., J.
Lisimba Love seeks review of a court of appeals summary disposition[1] that affirmed the circuit court's order denying Love's postconviction motion requesting a new trial on ineffective assistance of postconviction counsel and newly discovered evidence grounds.
¶ 2. Love argues that he presented sufficient material facts for a reviewing court to meaningfully assess his claims. Further, he contends that he is entitled to an evidentiary hearing on both claims. We agree. Although Love's motion does not allege sufficient facts that, on their face, would be admissible at the hearing, the motion papers allege sufficient material objective factual assertions that, if true, entitle him to relief. Therefore, we reverse the court of appeals' decision and remand this case to the circuit court for an evidentiary hearing on both of his claims to determine whether Love is entitled to a new trial.[2]
I
¶ 3. On September 28, 1999, shortly after midnight, Glenn Robinson, a Milwaukee Bucks professional basketball player, left Junior's Sports Bar in *116 Milwaukee, Wisconsin. Fifteen or twenty feet away from the exit, he was accosted by two men and robbed. The following evidence was presented at Love's trial.
¶ 4. Robinson arrived alone at Junior's Sports Bar between 10:00 p.m. and 10:30 p.m. and stayed there for an hour and a half. While there, he conversed with three women: Tawanda Knox, Yolanda Corley, and Latasha Robinson.[3] Corley called a friend of hers, Calvin Wilson,[4] who stated he knew Robinson. Corley handed the telephone to Robinson, who briefly spoke with Wilson.
¶ 5. Knox left the bar shortly before Corley and Latasha. As Knox left she saw a man in the doorway of the bar she believed to be "Poppa," a nickname by which she knew Love. Knox lived across the street from Love and worked in a hair salon owned by Love's sister-in-law. Knox testified that she said, "What's up, Poppa?" as she exited the bar. Knox could not remember if the person said anything back to her. Upon cross-examination, Knox testified that she was not 100 percent certain that it was Love she saw.
¶ 6. After leaving the bar, Knox went to the vehicle she and her friends had arrived in and sat inside for approximately two minutes. She saw Robinson standing near his car, which was roughly three parking spaces away. Corley and Latasha then entered the car in which Knox was sitting.
¶ 7. Knox saw Robinson put his hands in the air like he was removing something from around his neck. As Latasha began to drive the vehicle away, Knox *117 noticed Robinson backing up with his hands facing out and she said, "Oh my god, he's getting robbed." Knox could not, however, see the face of the assailant in front of Robinson. The car then drove off without Knox observing the rest of the robbery. Knox immediately called Junior's Sports Bar from Latasha's cell phone to report the robbery. Knox agreed that at that time she thought Love was involved in the robbery.
¶ 8. While Robinson was being robbed, the send button on Latasha's cell phone was inadvertently pressed, and the telephone dialed the telephone number of Wilson. Knox, Corley, and Latasha's conversation in the car during and immediately after the robbery was recorded on Wilson's voicemail. The tape contained conflicting statements from the women regarding whether anyone saw "Poppa" and if so where. The State played this tape at trial.
¶ 9. Robinson left the bar with Mike Williams, a friend of Corley's, shortly after Knox. Williams gave Robinson Corley's number, after which Robinson approached his vehicle that was parked approximately 15 to 20 feet from the exit of the bar. Robinson noticed another vehicle parked directly in front of his car. Robinson was about to disarm the alarm on his vehicle when a man approached him from what Robinson assumed was the vehicle in front of his. The man approached with a silver handgun and told Robinson to, "Break yourself." Robinson understood this to mean that he was being robbed. Robinson handed over his keys, telephone, and wallet and tried to hand over his necklace but his assailant snatched it from his neck. Robinson backed away from the man with the gun and approached the rear of his vehicle. Another man stepped around the back of the vehicle and told Robinson *118 not to run. After Robinson gave the men his earring, the two men ran to the car parked in front of Robinson's vehicle and left.
¶ 10. Robinson then went into Junior's Sports Bar where he called the police to report the robbery. When the police arrived, Robinson told them that the gunman was "around six two, 170 pounds and with a mini-afro, dark complected." Robinson described the other assailant as "around six one around the same weight 170, 180, and dark complexion." Robinson also estimated both assailants were no more than 29 or 30 years old.[5] Robinson did not identify any scars or facial hair as being present on either attacker. Robinson later testified that each man had been about an arm's length away from him and that he focused on the robbers' faces and staring at the gun. The whole incident took about two minutes.
¶ 11. Two days after the robbery, Robinson was given several photo arrays. Robinson did not identify anyone as the assailants. These arrays did not include a picture of Love or Effrim Moss, the person later charged as a co-conspirator to the robbery.
¶ 12. A few days after the robbery, Robinson was contacted by Wilson, who told Robinson that he had the recorded conversation between Knox, Latasha, and *119 Corley on his cell phone voicemail regarding the robbery. Robinson recorded the conversation on audiotape and gave it to the police.
¶ 13. One week after the robbery, Robinson was shown four photo arrays. In the third set, Robinson indicated that he was 80-85 percent sure that Love's picture was that of the gunman. Robinson agreed that the picture featured a man with lighter complexion than he remembered. Robinson later identified Love at a line-up, and, at trial, Robinson said he was 100 percent sure that his identification of Love as the gunman was correct. Robinson also identified Love at the preliminary hearing and trial.
¶ 14. At the time of the incident, Love had a long wide scar on his right cheek, short hair, and had a beard and mustache. Love's arrest detention report, which was filled out by the arresting officer, indicated that Love has medium complexion, weighed 245 pounds, and had a heavy build.[6] Love also testified he was 26 years old.
¶ 15. Love presented an alibi defense. Love testified that he was not at the bar that night and had never gone to Junior's Sports Bar. Love stated that he had been picking up his friend Rochelle Adams' mother the night of the robbery.
¶ 16. Rochelle testified that Love often accompanied her when she picked up her mother and remembered Love being with her on September 27, 1999, in particular because she had spent the whole day with him. Marilyn Adams, Rochelle's mother, testified that Love occasionally accompanied her daughter while *120 picking her up from work, but did not remember the night of September 27, 1999, in particular.
¶ 17. Mary Jones also testified on behalf of Love. Jones testified that on the night of the robbery she spoke with a man named "Dee" at Junior's Sports Bar, who, after seeing Robinson at a table behind them, stated that, he was going to rob Robinson. Jones testified that she left the bar shortly after Robinson and saw Robinson being robbed. Jones testified she observed Dee with what appeared to be a gun and saw Dee and another man approach Robinson from behind. At seeing this, Jones testified she ran, but saw Robinson take off a necklace. Jones said that "Dee" was a black male with dark complexion, approximately 26 to 27 years of age, five foot seven inches, 180 pounds with a medium build, and was clean-shaven.
¶ 18. Detective Scott LaFleur of the Milwaukee Police Department testified in rebuttal. He stated that Jones had many contradictions between her testimony and her statement to police. LaFleur stated that Jones told police the robbery was on a Saturday night, not the Monday night it occurred. LaFleur also noted that she told police she was so close behind Robinson upon leaving she caught the door before it shut after he passed through. The videotape surveillance of the doorway does not show anyone leaving directly behind Robinson. Jones also stated that the attackers came from behind and had a black gun while Robinson testified that they came from the front and behind and had a silver gun.
¶ 19. Love was found guilty of armed robbery as party to a crime. The jury was unable to reach a verdict on Moss, and he was later acquitted. The circuit court for Milwaukee County, Honorable Bonnie L. Gordon, sentenced Love to 44 years in prison.
*121 ¶ 20. Love's postconviction counsel filed two motions, one requesting sentencing modification, the other alleging ineffective assistance of counsel. The ineffective assistance of counsel claims stemmed from Love's trial counsel's failure to object to the prosecutor's (1) reference to the preliminary examination during the trial and closing arguments; and (2) invitation to the jurors to turn down the lights and time themselves for two minutes during their deliberations. See State v. Love, No. 2001AP817, unpublished slip. op., ¶ 6 (Wis. Ct. App. Dec. 11, 2001). The Milwaukee County Circuit Court, Honorable Bonnie L. Gordon, denied these motions, and the court of appeals affirmed. Id., ¶ 1.
¶ 21. On May 6, 2003, Love, pro se, filed a motion for post-conviction relief under Wis. Stat. § 974.06 (2001-02)[7] requesting a new trial on two grounds. First, Love requested a new trial based on newly discovered evidence. Love included an affidavit from Christopher Hawley, who claimed to have met another inmate, Floyd Lindell Smith, Jr., while at Green Bay Correctional Institution. Hawley averred that Smith admitted to robbing Robinson and shared in-depth details regarding the incident.[8] Love also submitted a booking photograph of Smith taken one week after the Robinson robbery. Smith had been arrested for carrying a concealed weapon, and his picture is that of a male with a dark complexion, 22 years old, weighing 170 pounds with a mini-afro.
¶ 22. Second, Love also argued that his postconviction counsel was ineffective for failing to allege that his trial counsel was ineffective for failing to investigate *122 an exculpatory witness. As support, Love provided a police report that was prepared on January 7, 2000, which was three days before Love's trial was to begin, that noted that Love's mother received a telephone call from the Milwaukee County Jail on November 22, 1999. The caller identified himself as Jerees Veasley and claimed to have knowledge of who actually robbed Robinson. Love alleged in his motion that trial counsel did not attempt to contact Veasley nor investigate the claim. Love also alleged that since Robinson's identification was the sole piece of evidence linking Love to the scene, the failure to investigate this exculpatory witness, or at least a witness that inculpated another, was deficient and prejudicial.
¶ 23. On July 2, 2003, the Milwaukee County Circuit Court Honorable John Franke, denied Love's motion. With regard to Love's newly discovered evidence claim, the circuit court concluded that the Hawley affidavit was not evidence that warranted an evidentiary hearing. The circuit court determined that the affidavit "merely attributes comments to another inmate, one Floyd Lindell Smith, Jr., which, if sworn to by Mr. Smith in somewhat more detail, might qualify as other newly discovered evidence."[9]
¶ 24. With regard to Love's ineffective assistance of counsel claim, the circuit court concluded that Love failed to offer any evidence that counsel did not investigate the alleged telephone call his mother received from Jerees Veasley. Further, the circuit court determined that Love failed to demonstrate how any investigation would have benefited his case. The circuit court *123 asked, "Who is Mr. Veasley? Did he know what he was talking about? Does he lead us to any admissible evidence helpful to the defense?" Because of these deficiencies, the circuit court denied Love's motion.
¶ 25. Love, pro se, appealed. The court of appeals summarily affirmed the circuit court's order. State v. Love, No. 2003AP2255, unpublished order (Wis. Ct. App. May 12, 2004). Love, pro se, petitioned this court for review. After review was granted, Love was appointed counsel.
II
¶ 26. Our standard of review was set forth in State v. Allen, 2004 WI 106, ¶ 9, 274 Wis. 2d 568, 682 N.W.2d 433, as follows:
Whether a defendant's postconviction motion alleges sufficient facts to entitle the defendant to a hearing for the relief requested is a mixed standard of review. First, we determine whether the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief. This is a question of law that we review de novo. [State v.] Bentley, 201 Wis. 2d [303,] 309-10 [682 N.W.2d 433 (1996)]. If the motion raises such facts, the circuit court must hold an evidentiary hearing. Id. at 310; Nelson v. State, 54 Wis. 2d 489, 497, 195 N.W.2d 629 (1972). However, if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing. Bentley, 201 Wis. 2d at 310-11; Nelson, 54 Wis. 2d at 497-98. We require the circuit court "to form its independent judgment after a review of the record and pleadings and to support its decision by written opinion." Nelson, 54 Wis. 2d at 498. *124 See Bentley, 201 Wis. 2d at 318-19 (quoting the same). We review a circuit court's discretionary decisions under the deferential erroneous exercise of discretion standard. In re the Commitment of Franklin, 2004 WI 38, ¶ 6, 270 Wis. 2d 271, 677 N.W.2d 276; Bentley, 201 Wis. 2d at 311.
III
¶ 27. In Allen, this court held that a postconviction motion must contain an historical basis setting forth material facts that allows the reviewing court to meaningfully assess the defendant's claims. Id., ¶¶ 18, 21-22. This court contrasted mere conclusory allegations from assertions of those material facts, id., ¶¶ 21, 29, which the court defined as "[a] fact that is significant or essential to the issue or matter at hand." Id., ¶ 22. This court proposed that a postconviction motion will be sufficient if it alleges within the four corners of the document itself "the five `w's' and one `h'; that is, who, what, where, when, why, and how." Id., ¶ 23. The following ineffective assistance of counsel postconviction motion hypothetical was offered as a model for presenting sufficient facts to warrant an evidentiary hearing:
The defendant alleges she was deprived effective assistance of counsel because her trial counsel failed to call as a witness, Bill Johnson, whose testimony would support the defendant's testimony that she was dining and going to the movies with her boyfriend at 10:00 p.m. on the night of June 1, 2002, when Sally's Hair Salon was burglarized.
The defendant told trial counsel that her neighbor, Bill Johnson, entered a restaurant around 7:00 p.m. while the defendant and her boyfriend were dining, and that on the way to be seated, Mr. Johnson stopped at defendant's table and talked with the couple. The defendant *125 told trial counsel that following dinner she and her boyfriend saw Mr. Johnson at the movie theater while they waited in line to buy tickets for a 9:15 p.m. movie. The defendant informed her trial counsel that three movies were scheduled to start between 9:00 p.m. and 9:15 p.m., the time during which the defendant and her boyfriend were in the theater lobby and saw Mr. Johnson. The defendant further alleges that she gave trial counsel her receipt from the restaurant.
This failure to call Mr. Johnson as a witness was deficient and prejudicial to the defendant as there is a reasonable probability that she would not have been convicted of stealing hair products from Sally's Hair Salon had Mr. Johnson testified.
Id., ¶ 24.
¶ 28. This court in Allen indicated this showing warranted an evidentiary hearing because it "contains sufficient material factsi.e., the name of the witness (who), the reason the witness is important (why, how), and facts that can be proven (what, where, when)." Id.
¶ 29. Love contends his postconviction motion satisfies Allen's proposal that a postconviction motion allege "the five `w's' and one `h;' that is, who, what, where, when, why, and how." Id., ¶ 23. He asserts that he has submitted material facts as opposed to conclusory allegations that would allow the reviewing court to meaningfully assess each of his claims. See id., ¶ 21 (citing Bentley, 201 Wis. 2d at 314). Further, Love argues that he is entitled to an evidentiary hearing on both his newly discovered evidence and ineffective assistance of counsel claims. We agree.[10]
*126 A
¶ 30. "To prevail on an ineffective assistance of counsel claim, the defendant must show that counsel's actions or inaction constituted deficient performance and that the deficiency caused him prejudice." State v. Brunette, 220 Wis. 2d 431, 445, 583 N.W.2d 174 (Ct. App. 1998) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To prove constitutional deficiency, the defendant must establish that counsel's conduct falls below an objective standard of reasonableness. Strickland, 466 U.S. at 687; State v. Thiel, 2003 WI 111, ¶ 19, 264 Wis. 2d 571, 665 N.W.2d 305. To prove constitutional prejudice, the defendant must show that "`there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Thiel, 264 Wis. 2d 571, ¶ 20 (quoting Strickland, 466 U.S. at 694). The focus of the inquiry is not on the outcome of the trial, but on "`the reliability of the proceedings.'" Id. (quoting State v. Pitsch, 124 Wis. 2d 628, 642, 369 N.W.2d 711 (1985)).
¶ 31. Regarding ineffective assistance of postconviction counsel, Love asserted the following in his postconviction motion:[11]
*127 FACTS REVIEW
The facts in support of the alleged error(s) . . . upon which this Motion is based up the follow facts herein as follows:
1.) On 1/7/2000 at the Home of Ms. Dorothy Love, as indicated in the supplement Report that was taken by Det. Hargrove on Pg. (3) during the interview Mrs. Love stated that on 11/22/99, she received a telephone call, from a person who identified himself as "Jerees Veasley" who was incarcerated at the Milwaukee County Jail. Jerees Veasley called ms. Love and stated to Ms. Love that, "they got the wrong Man on the Glen Robinson" case, and I know who did it. Ms. Love stated that she did mention this to Mr. Love's Attorney and that she knows about Mr. Jerees Veasley. (See. Report attached hereto as exhibit. (B)[12]
2.) Trial counsel "Ann Bowe" failed to investigate the facts that "Jerees Veasley" actually knows who robbed Mr. Glen Robinson.
3.) Trial counsel "Ann Bowe" failed to submit (Exhibit. B) into evidence and failed to interview "Jerees Veasley" and call him as a Witness on the behalf of the Defendant, which would have further proved that the *128 Defendant did not commit this crime. Trail counsel knew of the police report attached as (Exhibit-B.)
. . . .
ISSUE A.1
Postconviction Counsel was Ineffective in violation of Defendant's Sixth and Fourteenth Amendment Constitutional Rights as guaranteed by the Wis. and U.S. Constitution for failing to bring a Postconviction Motion before the trial court alleging that defendant's trial counsel "Ann Bowe" rendered Ineffective Assistance for failing to Investigate and Submit evidence indicating that someone else other than the defendant had committed this crime.
. . . .
ARGUMENT
In the case at Bar, the Defendant will prove that trial counsel rendered "Ineffective Assistance" in the following respects and that Postconviction Counsel was Ineffective for failing to allege the error's of the trial counsel.
As demonstrated in the facts upon which defendant's Motion is based, trial counsel was aware of the police report and statement of "Jerees Veasley" attached to this Motion as (Exhibit-B-), which states that "Jerees Veasley" knows who Robbed Mr. Glen Robinson and that the Defendant was not that person and has been wrongly accused.
Trial counsel failed to investigate by contacting "Jerees Veasley" for purpose of calling him as a Witness on the behalf of the Defendant which would have served as exculpatory evidence in the Defendant's favor and further proved his innocence.
*129 . . . .
BUT FOR COUNSEL'S UNPROFESSIONAL ERROR'S THE RESULTS WOULD HAVE BEEN DIFFERENT
The defendant was convicted based solely on the victim's Identification testimony. There was no additional evidence linking the Defendant to the crime such as video camera, weapon's, and or fingerprints or confession, etc.
Furthermore, the victim's initial description of the assailant was extremely inconsistent with the description of the defendant. Whereas, the victim described both assailants as being "Dark Skin Complexioned", 170 to 180 Pounds, Skinny,.
. . . .
However, the defendant's actual description is 6'1 and 245 Pounds and with a heavey Built, Brown Eye's and Black hair and a medimum Brown Complexion. See. Trans. 96-97: 23-25. In addition the defendant has a very outstanding huge large scare on the "Right" side of his face that without question any person looking at the Defendant could not miss such an outstanding physical impression upon his face.
In addition, police reports indicate that . . . ["]Jerees Veasley" either witnessed the crime and/or also had knowledge of the real culprits and had trial counsel thoroughly investigated and presented such exculpatory evidence there is a reasonable likelihood that the results of the trial would have been different. Therefore the Defendant has suffered Prejudice as a result of trial counsel's failure to investigate and prepare an adequate defense. Postconviction counsel was ineffective for failing to allege these error's committed by defendant's trial counsel. (Emphasis in original.)
*130 1
¶ 32. We conclude the motion contains material facts to meaningfully assess the merits of Love's ineffective assistance of counsel claim.
¶ 33. First, as to the "who" prong, the motion indicates the name of the key witness that was not investigated was Jerees Veasley.
¶ 34. Second, as to the "why" and "how" prongs, the motion indicates the reason the witness is important is because Veasley's exculpatory statements were critical to Love's defense, as the crux of the State's case was the reliability of Robinson's identification, an identification Love contends was mistaken. Love mentions the discrepancies between his physical characteristics and the description Robinson gave to police shortly after the incident. Love also claims that his trial counsel knew of Veasley's information, but did not investigate his assertions that he knows who committed the crime.[13] Thus, Love argues, his trial counsel was deficient and that he was prejudiced, as Veasley's statements undermine the confidence in the outcome.
¶ 35. Third, as to the "what," "where," and "when" prongs, the motion indicates that the facts that can be proven are that on January 7, 2000, Veasley called Love's mother and said that the police arrested the wrong person in the Robinson murder. That is, Veasley offered exculpatory evidence by saying Love is not the *131 perpetrator. Although the source of Veasley's information or the manner of its acquisition is not explicit, it implied that he either had personal knowledge of the real assailant or otherwise learned material information.
¶ 36. The State seizes upon this last point, arguing that because Love does not establish how Veasley claims to know what he knows, the motion is deficient. However, a movant need only provide sufficient "objective factual assertions." See Bentley, 201 Wis. 2d at 313; cf. Allen, 274 Wis. 2d 568, ¶ 30. That is, a movant need not demonstrate theories of admissibility for every factual assertion he or she seeks to introduce.[14]
¶ 37. It is clear that Love asserts that Veasley has knowledge that can exculpate Love. Whether Veasley's information is ultimately admissible, however, is not a matter to be decided from the face of the motion papers. Accepting the statements as true, which we must,[15] the question is whether there are sufficient objective material factual assertions that would entitle Love to relief.
¶ 38. The State also contends that there are no facts to support Love's contention that his trial counsel did not investigate Veasley's assertions. On the contrary, Love asserts that trial counsel failed to investigate the facts that Veasley actually knew who robbed Robinson and that it was not Love, failed to interview Veasley, and failed to call Veasley as a witness on Love's behalf. He further asserts that trial counsel was "ineffective" for failure to properly investigate and for failure *132 to introduce known exculpatory evidence. These factual allegations and legal assertions, if true, are adequate to allow the reviewing court to meaningfully assess his claim of ineffective assistance of counsel.
2
¶ 39. We further conclude that Love's postconviction motion sets forth sufficient material factual assertions that entitle him to a hearing on his ineffective assistance of counsel claim.
¶ 40. As to deficient performance, the State does not dispute that pursuant to the ABA Standards for Criminal Justice, trial counsel is obligated to investigate information in police reports. See ABA Standards for Criminal Justice, The Defense Function, § 4-4.1 (3d ed. 1993); see also Thiel, 264 Wis. 2d 571, ¶ 37.
¶ 41. As to prejudice, although the State champions the strength of its case against Love, assuming the facts in Love's motion papers to be true, our confidence in the outcome would be undermined. The only person who identified Love as the perpetrator was the victim, Robinson, but there are concerns surrounding his identification based on numerous physical irreconcilabilities. As noted above, Robinson testified that he initially told the police that the gunman was "around six two, 170 pounds and with a mini-afro, dark complected," whereas Love was estimated at 245 pounds with a heavy build and a medium complexion. Moreover, there are also inconsistencies between his testimony concerning what he told the police and his actual police statement, which indicated that the person he identified as Love was six foot one inch, 170 pounds, 20 years of age, *133 skinny, and dark skinned with a mini-afro. In addition to the weight, age,[16] and skin color discrepancies, Robinson failed to notice the scar on Love's face.
¶ 42. Veasley may have admissible information as to whom the real perpetrator was, however, we cannot determine how Veasley's testimony would measure against the credibility of Robinson's identifications. The general rule is that credibility determinations are resolved by live testimony. See Honeycrest Farms, Inc. v. A.O. Smith Corp., 169 Wis. 2d 596, 604, 486 N.W.2d 539 (Ct. App. 1992). Assuming Veasley's testimony is true, however, that testimony would undermine our confidence in the outcome. Thus, because Love's motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief, Love is entitled to a hearing.[17]
B
¶ 43. To prevail on a claim for newly discovered evidence, a defendant must first prove by clear and convincing evidence that "(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative." State v. Armstrong, 2005 WI 119, ¶ 161, *134 283 Wis. 2d 639, 700 N.W.2d 98 (quoting State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997)).[18]
¶ 44. If the defendant makes this showing, then "the circuit court must determine whether a reasonable probability exists that a different result would be reached in a trial." Id. The reasonable probability determination does not have to be established by clear and convincing evidence, as it contains its own burden of proof. A reasonable probability of a different outcome exists if "there is a reasonable probability that a jury, looking at both the [old evidence] and the [new evidence], would have a reasonable doubt as to the defendant's guilt." McCallum, 208 Wis. 2d at 474.
¶ 45. Regarding his newly discovered evidence claim, Love asserted the following in his motion:
*135 FACTS REVIEW
. . . .
6.) . . .
On January 30th 2003, Defendant love received a Sworn Affidavit from an Inmate known as Christopher Hawley while incarcerated together at North Fork Correctional Facility. Christopher Hawley states under Oath in his affidavit that he was incarcerated at Green Bay Correctional Facility with another Inmate known by the name of: Floyd Lindell Smith Jr. and that he heard as well as conversed with this party of several occasion's about this crime and that he in fact use to "Brag" to the general population that it was he of whom done and committed this Robbery against Mr. Glen Robinson. See. (Exhibit-I).[19]
The Defendant was not aware or had prior knowledge of the facts which are stated in . . . Christopher Hawley's Affidavit[] and Statement[].
*136 The Defendant upon questioning told Det. Allen, that he had nothing to do with the Robbery which happened to the victim Mr. Glen Robinson on 9/28/99.
. . . .
ARGUMENT FOR REVIEW
1.) EVIDENCE DISCOVERED AFTER TRIAL
. . . .
On January 30th 2003 the defendant received a Sworn Affidavit from an Inmate known as Christopher Hawley, who states Under Oath that he was incarcerated at Green Bay Correctional Institution with another Inmate by the name of Floyd Lindell Smith Jr. and that on several occasion's that he and Mr. Smith discussed matters of what and how Mr. Smith has committed this crime and that Mr. Smith was very braggative of what and how he had done this crime in effect at that point and time and all of this concerning this issue of Mr. Glen Robinson being Robbed at that appointed time. See. Exhibit. (1). The dates on the above mentioned Affidavits clearly demonstrates that this evidence was discovered after the trial.
*137 2.) DEFENDANT WAS NOT NEGLIGENT IN SEEKING SUCH EVIDENCE AND NOW MAKING COURT AWARE
. . . .
Furthermore, the Defendant was totally unaware of the fact that Mr. Floyd Lindell Smith Jr. admitted to committing this crime to Inmate Christopher Hawley. Had not . . . Inmate Christopher Hawley voluntarily came forward with such evidence, the Defendant would not be in possession of this Newly Discovered Evidence because these facts were not known to him at the time prior to his conviction of this offense.
3.) EVIDENCE IS MATERIAL TO THIS ISSUE
. . . [T]here is a very strong possibility that someone other than the Defendant actually done and or committed the offense. . . .
The Sworn Affidavit of Christopher Hawley is material to this issue because it further corroborates the facts that someone other than the defendant done or committed this offense and further the material issue in this case is the identification.
4.) THE NEWLY DISCOVERED EVIDENCE IS NOT MERELY CUMULATIVE TO EVIDENCE PRESENTED AT TRIAL.
The Newly Discovered Evidence is based on the . . . Affidavit of Mr. Christopher Hawley who Witnessed Mr. Floyd Lindell Smith Jr. confessing to him and other's that he was the party of whom committed this offense as relative to the Mr. Glen Robinson the victim of whom was Robbed at Gun point in this case at Bar and that Mr. Floyd Lindell Smith Jr. did in fact make these outstanding statements in the presence of other's as well as to Mr. Hawley directly and while they were jointly confined at Green Bay Correctional Institution. *138 This evidence was not known to the defendant at the time of his trial because such evidence was not known to the defendant prior to his conviction therefore this evidence is not merely cumulative to evidence that was presented at trial.
. . . .
6.) REASONABLE PROBABILITY EXIST OF DIFFERENT RESULTS IN A NEW TRIAL
The Defendant asserts that in light of the Newly Discovered Evidence there is a reasonable probability that a different result may be produced if the Defendant is Granted a New trial.
As the record demonstrates, the only evidence linking the Defendant to the alledged crime supposedly is that the Jury relied upon in finding the Defendant guilty is the victim's identification testimony of the defendant and the testimony of Towanda Knoxs which consisted of placing the defendant at the scene of the crime.
These Newly Discovered facts combined with the fact that the victim's initial description of the assailants describing both as being "Dark Complexion" and 170-180 Pounds is very different from the defendant actaul description wheres the defendant's actual skin tone is and would be "Medimum Complexion" and at 245 Pounds. During the photo Array the victim wasn't a 100% sure that the Defendant was the party of whom committed this crime.
During the entire commission of the crime, the victim ststes that he was staring straight at the Barrel of the Gun. See Trans. Pg. (35), which puts into question the degree of attention the victim was able to focus on the assailants face. While staring at the Barrel of the Gun the victim stated that he saw his life flash in front of his Eye's. See. Trans. Pg. (32) and further stated that it was a very traumatic experience. See. Trans. Pg. (32).
. . . .
*139 In this case at Bar the victim describing the Defendant as being "Dark Complexion" 170-180 Pounds, althrough Defendant is Medimum complexion and 245 Pounds renders this identification unreliable point blank. . . .
During the Photo Array the victim wasn't a 100% sure that the Defendant was the party of whom had or held a Gun on him. See. Trans. Pg. (8). . . .
The defendant Mr. Love has an Outstanding loud Scar on the Right side of his face that would be impossible for anyone not to notice or plainly see if viewing or looking directly at him and or even as Mr. Robinson indicate's that he was looking down the barrel of the Gun and the State nor Mr. Robinson never mentioned at any point that they noted such an outstanding mark upon the defendant's face.
The Defendant points out these identification factors to the Court which demonstrates that the identification is purely and substantially flawed, erroneous, and unreliable and in itself casts reasonable doubt and taking into consideration defendant's Newly Discovered Evidence, a reasonable probability exist that the results may have been different if the defendant is in fact duly Granted a New trial.
¶ 46. Love also submitted a booking photograph of Smith taken just one week after Robinson was robbed.[20] The photo shows that Smith is a male of darker complexion with a mini-afro. The physical description also lists Smith's weight at 165 pounds, and Smith appears to be skinny.[21]
*140 1
¶ 47. We conclude that Love's motion contains sufficient material facts that allow a reviewing court to meaningfully assess his newly discovered evidence claim. First, as to the "who" prong, the motion indicates the name of the newly discovered witness is "Christopher Hawley."
¶ 48. Secondly, as to the "why" and "how" prongs, the motion indicates that the reason Hawley is important is because another person, Floyd Lindell Smith Jr., told Hawley that he committed the crime. As Love went into at great length in his motion, only one person saw the perpetrator of the robbery: Robinson. However, Robinson's depiction of the perpetrator does not necessarily align with Love's physical description, and may more accurately line up with Smith's. As noted above, Robinson initially testified that he told the police that the gunman was "around six two, 170 pounds and with a mini-afro, dark complected." Robinson gave a different description of the gunman to the police. We have already referred to the age, weight, and skin color discrepancies between Robinson's police statement and Love's physical appearance. Love avers in his motion that in a case that turned entirely on the reliability of Robinson's eyewitness identification of Love, a different result may have occurred at a trial had the evidence about Smith and his statements to Hawley been admitted at trial.
¶ 49. Third, as to the "what," "where," and "when" prongs, the motion indicates that the facts that can be proven are that while Hawley was incarcerated in the Green Bay Correctional Facility, Smith bragged on *141 numerous occasions to Hawley about how he committed the crime, including giving in-depth details about its commission.
¶ 50. The State argues that the Hawley affidavit is insufficient to make a valid claim for newly discovered evidence because Love has not established the admissibility of Hawley's statements.[22] Specifically, the State claims Love cannot establish Hawley's statements fit the statement against interest exception to the hearsay rule. See Wis. Stat. § 980.045(4); State v. Guerard, 2004 WI 895, ¶ 24, 273 Wis. 2d 250, 682 N.W.2d 12.[23] However, as we noted above, a movant need not demonstrate the admissibility of the facts asserted in the postconviction motion, but rather must show sufficient objective material factual assertions that, if true, would warrant the movant to relief.
2
¶ 51. We also conclude that Love's postconviction motion sets forth sufficient material facts that entitle him to a hearing on his newly discovered evidence *142 claim. The State does not dispute that the evidence was discovered after conviction; that the defendant was not negligent in seeking evidence; the evidence is material to an issue in the case; and that the evidence is not merely cumulative. See McCallum, 208 Wis. 2d at 473.
¶ 52. The State argues that the evidence does not create a reasonable probability that a different result would be reached at trial. See id. The State maintains that a reasonable probability requires an outcome determinative showing. See State v. Avery, 213 Wis. 2d 228, 240-41, 570 N.W.2d 573 (Ct. App. 1997).
¶ 53. Love disagrees, claiming that a reasonable probability occurs where confidence in the outcome is undermined. See McCallum, 208 Wis. 2d at 490 (Abrahamson, C.J., concurring); Strickland, 466 U.S. at 694; United States v. Bagley, 473 U.S. 667, 682 (1985); Kyles v. Whitley, 514 U.S. 419, 434 (1984).
¶ 54. We do not decide this debate here, as Love's postconviction motion meets the higher outcome determinative test. Love's postconviction motion indicates that Hawley would testify that Love was not the assailant. Hawley will testify that Smith (or if Love can get Smith to testify, then it would be Smith's testimony that he) committed this crime. Whether that testimony is ultimately admissible is not relevant for our purposes here. Whether that testimony is credible is not relevant for our purposes here. It must be accepted as true.
¶ 55. If it is true, then the evidence against Love amounts to Robinson's identification against another's assertion that Smith committed the crime. Thus, viewing the new evidence, particularly in light of the identification discrepancies, there is a reasonable probability that a jury, looking at both, would have a reasonable doubt as to Love's guilt. Therefore, Love's motion entitles him to an evidentiary hearing.
*143 IV
¶ 56. In sum, we conclude Love has presented sufficient material facts for a reviewing court to meaningfully assess his ineffective assistance of postconviction counsel and newly discovered evidence claims. Further, we conclude that Love is entitled to an evidentiary hearing on both claims. Although Love's motion does not allege sufficient facts that, on their face, would be admissible at the hearing, the motion papers allege sufficient material objective factual assertions that, if true, entitle him to relief. Therefore, we reverse the court of appeals' decision and remand this case to the circuit court for an evidentiary hearing.
By the Court.The decision of the court of appeals is reversed and the cause remanded to the circuit court for further proceedings consistent with this opinion.
¶ 57. DAVID T. PROSSER, J. (dissenting).
Preventing the conviction of an innocent person is one of the central tenets of our criminal justice system. The United States Constitution and the Wisconsin Constitution provide a panoply of rights, including the right to remain silent, the right to counsel, the right to trial by an impartial jury, and the presumption of innocence, to assure fairness to defendants and minimize error in the adjudication of guilt.
¶ 58. After a defendant's trial and appeal rights have been exhausted, however, our system must become attentive to finality,[1] and to the significant costs in time and money of never-ending challenges to the *144 defendant's conviction.[2] Public resources are limited. When resources are squandered in the rehashing of nonmeritorious claims, the risk of error and injury to future defendants increases accordingly.[3]
¶ 59. This case implicates the requirements that a defendant must satisfy after conviction before forcing a court to conduct a post-appeal evidentiary hearing. I dissent because the majority opinion significantly reduces the requirements necessary to engage the system in this manner.
FACTUAL BACKGROUND
¶ 60. On September 28, 1999, at least two robbers ambushed former Milwaukee Bucks basketball star Glenn Robinson outside Junior's Sports Bar on North Green Bay Avenue in Milwaukee. After blocking Robinson's vehicle with their car, the men confronted Robinson and held him at gunpoint until they had stolen an estimated $40,000 in valuables, including a Rolex watch and bracelet, necklace, diamond earring, keys, cell phone, cash, and wallet. Robinson testified that he was deeply shaken by the incident because he was afraid that he was going to be gunned down in a tavern parking lot.
¶ 61. Two days after the robbery, police showed Robinson several photo arrays. He did not identify anyone. One week after the robbery, however, as he was looking through a number of additional photo arrays, *145 Robinson identified a photograph of Lisimba Love. Robinson subsequently picked Love out of a lineup and identified him again at a preliminary examination and at trial.
¶ 62. Love turned out to be the same person whom Tawanda Knox said she saw, spoke to, and received an answer from at Junior's, moments before the robbery. Knox knew Love personally because she lived across the street from him, and she worked at a hair salon where Love went to get his hair cut. Love's sister-in-law owned the salon. Love also proved to be a habitual offender who was on parole at the time of the incident for homicide by negligent use of a motor vehicle.
¶ 63. Love lived at a North 37th Street address in Milwaukee with his mother, Dorothy, and other family members. The same address was used by Love's brothers Jeffrey, Litwain, and Khalif, all of whom had extensive criminal records. At Love's sentencing hearing, Assistant District Attorney Terry Magowan commented on Love's family, observing that two of his brothers were then in prison. Magowan said:
[T]here was a little bit of an outburst [at the time of the Love jury verdict] by one member of his family . . . Khalif Love, his younger brother . . . I myself have prosecuted Mr. Khalif Love twice for shooting cases. . . . [I]t's a family that kind of functions on fear and intimidation.
. . . .
[G]etting back to Khalif Love, the cases against him, and I know two other prosecutors in the office who have had cases against him, they all get dismissed because witnesses don't show up. I remember one . . . witness *146 was a son of a cop and the cop called me and said I'm not letting my son testify against the Loves. (Emphasis added.)
¶ 64. Addressing Love's character at sentencing, Magowan emphasized the vehicular homicide. In November 1993 Love drove through a stop sign on North 37th Street at a very high rate of speed, striking a car and killing a woman in the car. He and his passenger fled the scene. Love later claimed that he did not know that he had hit a car or injured anyone, but Love's passenger told police that he had been instructed to lie about the nature of his injuries. Magowan asserted that Love had shown no remorse for his role in the homicide.
¶ 65. These facts from the record tell us a little more about the man who is demanding an evidentiary hearing on his largely unsupported claims. It must be remembered that Love no longer enjoys the presumption of innocence.
ANALYSIS
I
¶ 66. There is evidence in the record that the defendant has asked people to lie for him in the past, and that he and his family function "on fear and intimidation." It should thus be no surprise that his motion to the court contains witness recantations. The majority opinion implies that a circuit court may not consider such factors in evaluating the strength of a defendant's post-conviction motion for an evidentiary hearing. I disagree.
¶ 67. In Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972), the court set down a test for an evidentiary hearing to withdraw a guilty plea after *147 judgment and sentencing. The court discussed federal cases and summarized the law to the effect that, where a motion is made after judgment and sentencing to correct a manifest injustice, "it is within the discretion of the trial court whether or not to grant a hearing on the motion." Id. at 496. After quoting from United States v. Tivis, 302 F. Supp. 581, 583 (N.D. Tex. 1969), id., the court said:
We here determine that if a motion to withdraw a guilty plea after judgment and sentence alleges facts which, if true, would entitle the defendant to relief, the court must hold an evidentiary hearing. However, if the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusionary allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing. It is incumbent upon the trial court to form its independent judgment after a review of the record and pleadings.
Id. at 497-98 (emphasis added).
¶ 68. In State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996), the court was asked to review a defendant's request to withdraw his guilty pleas based on the alleged ineffective assistance of his trial counsel. The court turned to Nelson and restated part of the above-quoted test. The court declared: "If the motion on its face alleges facts which would entitle the defendant to relief, the circuit court has no discretion and must hold an evidentiary hearing." 201 Wis. 2d at 310. "However, if the motion fails to allege sufficient facts, the circuit court has the discretion to deny a postconviction motion without a hearing based on any of the three factors enumerated in Nelson." Id. at 310-11.
*148 ¶ 69. In retrospect, the Bentley case has created problems for several reasons. First, both the court of appeals[4] and this court severed an important part of the Nelson test, namely, "It is incumbent upon the trial court to form an independent judgment after a review of the record and pleadings. . . ." See Nelson, 54 Wis. 2d at 498.
¶ 70. Second, because the court eliminated the circuit court's "independent judgment," it was able to say, "[w]hether a motion alleges facts which, if true, would entitle defendant to relief is a question of law that we review de novo." Bentley, 201 Wis. 2d at 310. The court seemed to be impressed with Bentley's argument that a de novo standard of review was appropriate "because the circuit court is in no better position than an appellate court to determine whether the motion was legally sufficient to require a hearing . . . . [T]he de novo standard . . . is entirely consistent with this court's prior cases which have applied a de novo standard of review when interpreting documents." Id. at 309 (summarizing Bentley's argument) (emphasis added). This formulation effectively blocks the circuit court from considering the credibility of a written claim or digging into the court record.
¶ 71. Third, the court in Bentley accepted the sufficiency of Bentley's assertions that his counsel's performance was deficient, but it rejected his claim that "he entered his guilty pleas only because he was informed" incorrectly by his attorney about parole eligibility. The court complained that Bentley "never explains how or why the difference between a minimum parole eligibility date of 11 years, 5 months and 13 *149 years, 4 months would have affected his decision to plead guilty." Id. at 316-17.
¶ 72. On this third point, the Bentley decision is instinctively understandable. Upon reflection, however, it is not obvious why the court is able to say that Bentley's claim that he entered his guilty plea only because he was misinformed by his attorney, is not an allegation of fact which, if true, would entitle him to relief. In addition, Bentley does not explain how a circuit judge knows when "sufficient facts" have been pled so that the court "has no discretion and must hold an evidentiary hearing." See Bentley, 201 Wis. 2d at 310.
¶ 73. The manifest inconsistency in Bentley is that it adheres to the Nelson principle that a motion may be denied by a circuit court without a hearing "if the record conclusively demonstrates that the defendant is not entitled to relief" but does not explain how the court may scrutinize the record if it is supposed to make a judgment on the face of the motion. Moreover, Bentley strips the circuit court of any deference when the circuit court determines that an allegation is "conclusory" and needs more facts, because the sufficiency of the motion is reviewed de novo. Too often, the natural response of frustrated circuit judges will be to schedule evidentiary hearings simply to avoid being second-guessed on appeal.
¶ 74. Last term in State v. Hampton, 2004 WI 107, 274 Wis. 2d 379, 683 N.W.2d 14, this court made a stab at clarifying the defendant's burden in a motion for a post-conviction hearing, saying: "Bentley-type allegations will often depend on facts outside the record. To ask the court to examine facts outside the record in an evidentiary hearing requires a particularized motion with sufficient supporting facts to warrant the undertaking." Id., ¶ 61. Then we added:
*150 In Bangert[5]-type cases, the defendant has the initial burden of showing the basis for a hearing; but if he succeeds, the burden shifts to the state to show by clear and convincing evidence that the defendant's plea was knowingly, voluntarily, and intelligently entered.
In Bentley-type cases, the defendant has the burden of making a prima facie case for an evidentiary hearing, and if he succeeds, he still has the burden of proving all the elements of the alleged error, such as deficient performance and prejudice. The defendant must prove the linkage between his plea and the purported defect. The defendant's proof must add up to manifest injustice.
Consequently, the requisite specificity required for establishing a prima facie case mirrors the defendant's ultimate burden of proof.
Id., ¶¶ 62-64 (internal citation omitted).
¶ 75. In a Bentley-type case, the defendant retains the burden of proof. Therefore, the defendant should be required to justify an evidentiary hearing by alleging what he expects to prove. He cannot stand on conclusory allegations, hoping to supplement them at the hearing, because the hearing is not intended as a fishing expedition. The defendant should plead a reasonably full statement of the facts in dispute so that both parties can prepare and litigate the real issues efficiently and the evidentiary hearing will serve as more than a discovery device.[6]
II
¶ 76. This brings us to the present proceeding. Love's first claim is that he was denied the effective *151 assistance of counsel at trial and the effective assistance of counsel on appeal. Love alleges that Ann T. Bowe, his trial attorney, was "Incompetent/Ineffective as Counsel" in part because she "failed to investigate the facts that `Jerees Veasley' actually knows who robbed Mr. Glen Robinson." Love alleges that his appellate counsel, Mark Rosen, was ineffective for failing to point out that Love's trial attorney was ineffective with respect to investigating Veasley.
¶ 77. The Veasley matter is grounded in a police report dated January 7, 2000, several days before Love's trial. The report was prepared by Detective Charles Hargrove who wrote in part:
On Friday, 1/7/2000, at approximately 10:53AM I, Det. HARGROVE was conducting follow-up on the above case. This follow-up consisted of interviewing alibi witnesses for [Lisimba] LOVE, B/M, DOB: 3/16/73, of 2818 N. 37th St.
At the above stated date and time I, Det. HARGROVE, did in fact, respond to 2818 N. 37th St. Upon my arrival at that location, I met with [Lisimba] LOVE'S mother, one Dorothy LOVE ... who resides at that location ...
. . . .
Also during the interview Mrs. LOVE stated that on 11/22/99, she received a telephone call, unknown time from a person who identified himself as Jerees VEASLEY, who was incarcerated at the County Jail. VEASLEY called and stated to Mrs. LOVE that "They got the wrong man on the ROBINSON case, I know who did it." Mrs. LOVE stated that she did mention this to [Lisimba's] attorney and that they know about Mr. VEASLEY.
*152 ¶ 78. This police report was available before trial. Love acknowledged that he had read the police reports. Consequently, he must have known about Jerees Veasley before trial and realized that Veasley did not testify at trial. Love's conviction was appealed. He also filed a post-conviction motion challenging the effectiveness of his trial counsel.
¶ 79. Against this background, Love's second ineffective assistance of counsel claim against Ann Bowe is barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), which holds that any claim that could have been raised on direct appeal or in a previous Wis. Stat. § 974.06 post-conviction motion is barred from being raised in a subsequent § 974.06 post-conviction motion, absent a sufficient reason. No "sufficient reason" has ever been shown why this claim was not raised earlier, and in my view, it is clearly barred.
¶ 80. Setting aside Escalona, additional facts show why Love's ineffective assistance claim should not be accepted at face value why resort to facts in the record demonstrates that the motion is insufficient.
¶ 81. On November 22, 1999, Jerees Veasley was allegedly incarcerated at the Milwaukee County Jail. Lisimba Love was also incarcerated at that time awaiting trial. Love and Veasley may have been incarcerated in the same facility, may have crossed paths, or may have known each other previously. We are left to speculate about the relationship because Love does not explain whether the two men know each other. Logically, there must have been some reason why Jerees Veasley called Love's mother at her home instead of some person in authority.
¶ 82. Love's trial attorney, Ann Bowe, was no stranger to Love. She had represented him in the vehicular homicide case in 1993. Early on, Bowe decided *153 to pursue an alibi defense in the Robinson case, and she notified the district attorney of that strategy, naming alibi witnesses including Love's mother. At trial, Bowe produced witness Mary Jones, who attributed the robbery to someone named "Dee."
¶ 83. The quoted police report indicates that Dorothy Love advised Love's attorney about Jerees Veasley and was told "that they know about Mr. Veasley."
¶ 84. Considering the defendant's alibi defense, it is hard to imagine that Attorney Bowe would not have contacted a man claiming to know the real perpetrator. It is even harder to imagine that Love's post-conviction attorney, Mark Rosen, who unsuccessfully accused Bowe of ineffective assistance of counsel on other grounds, would not have added the ground that Bowe never interviewed Jerees Veasley if Rosen thought for a minute that Bowe never interviewed Veasley.
¶ 85. Love's lengthy motion for post-conviction relief is supplemented with several affidavits, but there is no affidavit from Jerees Veasley saying he was not interviewed by Ann Bowe, and no affidavit from Ann Bowe acknowledging that she never interviewed Jerees Veasley. Indeed, although Love testified at trial that he had read all the police reports, there is no affidavit from him stating that he discussed Veasley with Bowe, asked her whether she was pursuing that lead, or inquired why Veasley did not testify at trial. Love provides nothing except a conclusory assertion that Bowe did not investigate this potential witness.
¶ 86. Love's assertion that Ann Bowe failed to seek out and interview Jerees Veasley is so improbable that Love ought to be required to do more than make a bald assertion that his attorney was derelict. After all, at the time he made the motion, Love was in Oklahoma and would have had to be brought back to Wisconsin. *154 Wherever he is now, he will still have to be escorted to a Milwaukee courtroom at county expense to participate in the hearing. He will have to have an attorney, at state expense. Ann Bowe will have to be in court. Jerees Veasley will probably have to be in court. An assistant district attorney will have to prepare for the hearing and spend time in court. And the court itself will have to schedule and conduct the hearing and convene all necessary court personnel. Love will have the burden of going forward, producing evidence, and persuading the court at a hearing, and he should be required to tell the court what he expects to prove before he is given that hearing.
¶ 87. This court should insist on more detail before it affords an evidentiary hearing in response to Love's unsupported assertion that Ann Bowe did not investigate Veasley's story. It would not have been difficult for Love to obtain and submit more information. He could have written a "Dear Ann" letter, asking his former attorney to confirm that she never interviewed Veasley. Instead, he sent 26 letters asserting his innocence to everyone from the Commissioner of the National Basketball Association to the sports investigative person at the Gary Post-Tribune. He could have enlisted his mother to ask Veasley to submit a sworn affidavit revealing the alleged perpetrator of the robbery or simply asserting that he never spoke with Ann Bowe or anyone representing her. There is no indication that any of this was attempted. Thus, the majority's favorable ruling on Love's ineffective assistance of counsel claim seriously dilutes the sufficiency requirements of a post-conviction motion for an evidentiary hearing.
*155 ¶ 88. I agree with the majority's statement of the standard of review.[7] Majority op., ¶ 26 (quoting State v. Allen, 2004 WI 106, ¶ 9, 274 Wis. 2d 568, 682 N.W.2d 433). The Allen court's subsequent reference to "the five `w's' and the one `h;' that is, who, what, where, when, why, and how," Allen, 274 Wis. 2d 568, ¶ 23, was intended to assist a defendant in alleging sufficient material facts to entitle the defendant to relief.
¶ 89. It must be acknowledged, however, that statements with the five "w's" and the one "h" may not be sufficient in themselves to justify a hearing, if they are presented as statements of ultimate fact in a conclusory manner without any supporting detail.
¶ 90. To illustrate the problem, consider again the Bentley case in which the defendant contended that he entered guilty pleas after his counsel erroneously gave *156 him incorrect information on his eligibility for parole. His unsuccessful post-conviction motion stated in part:
4. Defendant will testify that he entered his guilty pleas only because he was informed by his trial attorney, Alan Olshan, that the parole eligibility date for first degree intentional homicide would be 11 years and 5 months.
. . . .
6. Defendant's attorney, Alan Olshan, will testify that he told defendant he would try to get parole eligibility set under the "old law," which would result in parole eligibility of 11 years, 4 months.
7. The minimum parole eligibility, if a court does not set a parole eligibility date, is approximately 13 years and 4 months.... Neither the court nor the parole board can adjust a parole eligibility date below the minimum of approximately 13 years and 4 months....
8. Nothing in either the plea questionnaire or the plea colloquy disabused defendant of the misunderstanding of parole eligibility.
Bentley, 201 Wis. 2d at 315.
¶ 91. Summarizing these allegations, Attorney Olshan discussed a plea with Bentley before the plea hearing. He gave Bentley specific information about parole eligibility. Bentley claimed that Olshan told him a person convicted of first-degree intentional homicide is eligible for parole in 11 years, 5 months. If this statement were true, the information was incorrect by almost two years. Attorney Olshan admitted that he talked to Bentley but said he promised only to try to get parole eligibility in 11 years, 4 months under "old law." This, too, was incorrect because the court could not adjust parole eligibility downward from 13 years, 4 months. Bentley was misinformed by his attorney *157 about parole eligibility, and this allegedly influenced his pleas because Bentley asserts that he entered guilty pleas only because of what he was told by his attorney.
¶ 92. Under today's majority opinion, Bentley probably met the who, what, where, when, why, and how test. Certainly, he asserted what he would testify to at a hearing and what Attorney Olshan would testify to. He claimed injury from relying on specific defective information. He alleged much more than Love alleged. Why would Bentley's motion fail under today's majority opinion?
¶ 93. The majority seems oblivious to two transcendent principles: First, "[t]he nature and specificity of the required supporting facts will necessarily differ from case to case." Bentley, 201 Wis. 2d at 314. Second, "conclusory allegations" are not sufficient. Allen, 274 Wis. 2d 568, ¶ 9.
¶ 94. If we focus on Veasley as the "who" in this case, we are told nothing about him. We are told nothing about how he got his information. We are told nothing about what he would say at an evidentiary hearing at which Love would have the burden of proof. Even Dorothy Love's statement about her conversation with Veasley is unsworn hearsay.
¶ 95. If we focus on Ann Bowe as the "who," there is nothing to support the conclusion that she did not investigate Veasley except the fact that Veasley was not called as a witness. Failure to call Veasley as a witness does not support an inference that Bowe never interviewed him or didn't have a good reason not to interview him. After all, Dorothy Love admits that when she mentioned Veasley to Love's attorney, she was told "they know about Mr. Veasley." The fact that Veasley was not called as a witness may be a sign that he lacked credibility, or that his testimony would have been in *158 direct conflict with the testimony of Mary Jones, or that Attorney Bowe had some other strategic reason for not calling him. If Bowe already knew "about Mr. Veasley," she must have gained this information from her own investigation or because someone like Love or Veasley or the district attorney told her. The assertion that she never investigated Veasley is simply a conclusory allegation that Love has not supported with additional facts.
¶ 96. For the reasons stated, I conclude that the defendant failed to allege sufficient facts on his claim of ineffective assistance of counsel to be entitled to an evidentiary hearing as a matter of right. Without supporting facts, it is hard to believe that Ann Bowe did not investigate Veasley. In any event, without knowing what Veasley would say, there is little justification for a hearing. I further conclude that the circuit court did not erroneously exercise its discretion in denying Love's request for an evidentiary hearing.
III
¶ 97. Love presents a second reason for the court to hold an evidentiary hearing newly discovered evidence consisting of a sworn affidavit from Christopher Hawley, a fellow prisoner at a corrections facility in Oklahoma. Hawley swore that when he was an inmate at the Green Bay Correctional Institution, he was housed with a prisoner named Floyd Lindell Smith, Jr., who "disclosed to me [in depth] details concerning what and how he had done and committed this Offense [the Glenn Robinson robbery] and that it was just too Bad that the weight of the matter had fell upon Mr. Love in such a manner." Hawley added that he was willing to *159 take a polygraph test, and he invited the district attorney's office to contact him for additional information.
¶ 98. In my view, this "new" evidence is not as easy to dismiss as the Jerees Veasley statement. Although Hawley does not give details of what Floyd Lindell Smith, Jr. said to him, he nonetheless swears that a named individual confessed to committing the crime of which the defendant was convicted. Undoubtedly, Hawley could testify at a trial against Smith on the basis of Smith's admissions.
¶ 99. Nonetheless, there are some troubling elements to the newly discovered evidence. First, the affidavit does not give details of the crime, including who else was involved, who was driving, whose car they were using, and what the robbers did with the valuables. Second, the affidavit does not exclude the participation of Lisimba Love in the robbery. Third, the affidavit misspells the name of Glenn Robinson as "Glen" Robinson, in exactly the same way that Love himself routinely misspells Robinson's name. Fourth, having discussed the matter with Love, Hawley could have obtained any "in depth details" he has of the robbery from Love himself.
¶ 100. The majority opinion fails to disclose that Floyd Lindell Smith, Jr. is the cousin of Lisimba Love. This fact is part of Love's own submission. The fact that Floyd Lindell Smith, Jr. was arrested on October 6, 1999, for carrying a concealed weapon is also part of the record. Significantly, Smith told authorities that he lived at 2818 North 37th Street, Milwaukee (which is Love's own address), when he was arrested a few days after the robbery. Put bluntly, Lisimba Love was not forthright in his motion to the court because he did not acknowledge that the two men were living in the same *160 house at the time of the robbery, and neither the defendant nor the majority acknowledges the possibility that Floyd Lindell Smith, Jr. learned details of the robbery directly from Lisimba Love or the possibility that Smith committed the robbery with Love.
¶ 101. In my view, the circuit court should have followed up on the information in the Hawley affidavit, notwithstanding its hearsay quality. Why? In sentencing Love, Circuit Judge Bonnie Gordon broached the possibility that three people were involved in the Robinson robbery. In her interview with Milwaukee police, Mary Jones stated that "Dee" was present at Junior's Bar with three other men. Effrim Z. Moss, Love's co-defendant who was found not guilty of the robbery, was also a Love relative. The Robinson robbery could have been a "family" enterprise. Against this background, there is a real possibility that Floyd Lindell Smith, Jr. has actual knowledge of the robbery, whether or not he participated in it, and whether or not Love participated in it.
¶ 102. The circuit court could have issued an order to show cause to the district attorney's office, asking why an evidentiary hearing should not be held on Hawley's affidavit. This would have permitted the district attorney's office to conduct an investigation that included conversations with Hawley and Smith before a decision was made on a hearing.
¶ 103. The majority doesn't wait for such preliminaries. It orders an evidentiary hearing on the Hawley affidavit without coming to grips with what is likely to happen. How will Love meet his burden of proof at the hearing? What will happen if Smith asserts his right to remain silent? There needs to be preparatory effort before the court holds a hearing. Because the majority *161 disagrees and seriously dilutes the sufficiency requirements for post-conviction evidentiary hearings, I respectfully dissent.
¶ 104. I am authorized to state that Justice JON P. WILCOX joins this opinion.
*162
NOTES
[1] State v. Love, No. 2003AP2255, unpublished order (Wis. Ct. App. May 12, 2004).
[2] We do not determine that Love is entitled to a new trial either because counsel was ineffective or because the defendant has presented newly discovered evidence. We merely conclude that Love has raised sufficient facts that would warrant an evidentiary hearing on each claim.
[3] Latasha Robinson is not related to Glenn Robinson. For clarity, she will be referred to as "Latasha."
[4] Calvin's last name of "Wilson" was taken from a police report contained in the record.
[5] The parties also stipulated that if Officer Alex Lopez were called to testify, he would state that the descriptions of the suspects given to him by Glenn Robinson were as follows:
Suspect number 1. Black male. Six foot one inch, 170 pounds, 20 years of age, skinny, dark skinned with a mini-afro wearing unknown clothing and armed with a silver semi-automatic pistol. Suspect number 2, black male, 6 foot 2 inches, 180 pounds, 20 years of age, skinny, dark skinned and wearing unknown clothing.
[6] Apparently, a suspect's weight is usually estimated by either what the suspect tells the arresting officer or by the officer's observations.
[7] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[8] The affidavit does not describe these in-depth details.
[9] The bulk of the circuit court's analysis centered on Knox's subsequent recantation and whether that constituted new evidence. This argument, however, is not before us.
[10] We note that Love filed his postconviction motion pro se and while incarcerated. As this court stated in State ex rel. Terry v. Traeger, 60 Wis. 2d 490, 496, 211 N.W.2d 4 (1973):
We recognize that the confinement of the prisoner and the necessary reasonable regulations of the prison, in addition to the fact that many prisoners are `unlettered' and most are indigent, make it difficult for a prisoner to obtain legal assistance or to know and observe jurisdictional and procedural requirements in submitting his grievances to a court. Accordingly, we must follow a liberal policy in judging the sufficiency of pro se complaints filed by unlettered and indigent prisoners.
[11] The court of appeals has concluded that an ineffective assistance of postconviction counsel claim is not barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996).
[12] Exhibit B to the postconviction motion was a police report dated January 7, 2000, that stated:
Also during the interview Mrs. LOVE stated that on 11/22/99, she received a telephone call, unknown time from a person who identified himself as Jerees VEASLEY, who was incarcerated at the County Jail. VEASLEY called and stated to Mrs. LOVE that "They got the wrong man on the ROBINSON case, I know who did it." Mrs. LOVE stated that she did mention this to [Love's] attorney and that they know about Mr. VEASLEY.
[13] The State does not dispute that pursuant to the ABA Standards for Criminal Justice, trial counsel is obligated to investigate information in police reports. See ABA Standards for Criminal Justice, The Defense Function, § 4-4.1 (3d ed. 1993); see also State v. Thiel, 2003 WI 111, ¶ 37, 264 Wis. 2d 571, 665 N.W.2d 305.
[14] It is, of course, to the movant's advantage to do so.
[15] It is not proper to entertain imagination or supposition to gauge the veracity of the factual allegations. They must be accepted as true. Compare Prosser, J., dissenting, ¶ 84.
[16] Love was 26 years of age.
[17] We fail to see how the cost associated with and the nature of the hearing have any bearing on Love's right and opportunity to be heard as well as his access to the courts. Contra Prosser, J., dissenting, ¶ 86.
[18] The court of appeals has determined that due process may require granting a new trial on the basis of newly discovered evidence under Wis. Stat. § 974.06 after the time for filing postverdict motions has passed. State v. Bembeneck, 140 Wis. 2d 248, 252, 409 N.W.2d 432 (Ct. App. 1987). Citing Herrera v. Collins, 506 U.S. 390, 400 (1993), the State claims that Bembeneck should be overruled. In Herrera, the Supreme Court held that a death-row defendant's claim of actual innocence based on newly discovered evidence by itself does not state a basis for federal habeas corpus relief.
We conclude that the court of appeals in Bembeneck properly analyzed Wisconsin's postconviction statute. It would be illogical to close the court's doors to a defendant who has newly discovered evidence, evidence that by definition creates a reasonable probability that a different verdict would be reached at a new trial. Due process and its guarantee of fundamental fairness ensure that a defendant at least have access to the courts and an opportunity to be heard where newly discovered evidence creates a reasonable probability that a different result would be reached at a new trial, as long as the newly discovered evidence meets the minimum criteria set forth above.
[19] Attached as "Exhibit-I" is Hawley's affidavit, which states in relevant part:
1.) That Mr. Love's situation was brought to my attention shortly after I arrived here in North Fork Correctional Facility on: July 25th 2002.
2.) That I was placed on the same POD-Living Unit as Mr. Love which is and was A-North and that I happen to hear or Overhear Mr. Love discussing his case with one of the Inst. Inmate Para Legals at this Facility.
3.) That I was originally transferred here to NFCF from Green Bay Correctional Inst and while there and upon my arrival there and being placed and Housed in the South Cell Hall.
4.) That further after reflecting upon what was spoke upon and knowing some details about the matter from Green Bay Correctional Facility. I introduced myself to Mr. Love and formally explained what I had been personally told relative to his direct case overall while at Green Bay Correctional Inst around another Inmate and several other's of whom where present at the time.
5.) Further, that a Party or Inmate by the name of Mr. FLOYD LINDELL SMITH JR. of whom was like myself at the time incarcerated at Green Bay Correctional Facility and located within the South Cell Hall and we were a few Cells away from each other.
6.) Further on several occasion's while discussing legal elements of my own Conviction and my Criminal case, myself and Mr. Smith engaged and embarked upon several conversations relative to the criminal elements of his past and as well as my own and the matter of Mr. Glen Robinson came into discussion many times.
7.) Further, Mr. Smith Jr. on several other occasion's disclosed to me indepth details concerning what and how he had done and committed this Offense and that it was just too Bad that the weight of the matter had fell upon Mr. Love in such a manner.
[20] Smith's arrest apparently stemmed from carrying a concealed weapon.
[21] Love's booking photograph also depicts a person of stocky appearance.
[22] Specifically, the State claims that Love cannot show that Smith's statements to Hawley are statements against penal interests. Wis. Stat. § 908.045(4); State v. Guerard, 2004 WI 85, 273 Wis. 2d 250, 682 N.W.2d 12.
[23] In Guerard, 273 Wis. 2d 250, ¶ 24, this court held that a statement is admissible under Wis. Stat. § 908.045(4), if:
1) the statement when made tended to expose the declarant to criminal liability; and 2) the statement is corroborated by evidence that is sufficient to enable a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true.
Id. Of course, the proponent must also establish unavailability.
[1] See State v. Allen, 2004 WI 106, ¶ 11, 274 Wis. 2d 568, 682 N.W.2d 433 (citing Teague v. Lane, 489 U.S. 288, 309 (1989); State v. Lo, 2003 WI 107, ¶ 75, 264 Wis. 2d 1, 665 N.W.2d 756).
[2] See State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).
[3] See State v. Velez, 224 Wis. 2d 1, 12, 589 N.W.2d 9 (1999) ("we conserve scarce judicial resources by eliminating unnecessary evidentiary hearings").
[4] See State v. Bentley, 195 Wis. 2d 580, 587, 536 N.W.2d 202 (Ct. App. 1995).
[5] State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
[6] Velez, 224 Wis. 2d at 12.
[7] Allen, 274 Wis. 2d 568, ¶ 9, states:
Whether a defendant's postconviction motion alleges sufficient facts to entitle the defendant to a hearing for the relief requested is a mixed standard of review. First, we determine whether the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief. This is a question of law that we review de novo. [State v. Bentley, 201 Wis. 2d [303,] 309-10 [682 N.W.2d 433 (1996)]. If the motion raises such facts, the circuit court must hold an evidentiary hearing. Id. at 310; Nelson v. State, 54 Wis. 2d 489, 497, 195 N.W.2d 629 (1972). However, if the motion (1) does not raise facts sufficient to entitle the movant to relief, (2) or presents only conclusory allegations, or (3) if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing. Bentley, 201 Wis. 2d at 310-11; Nelson, 54 Wis. 2d at 497-98. We require the circuit court "to form its independent judgment after a review of the record and pleadings and to support its decision by written opinion." Nelson, 54 Wis. 2d at 498. See Bentley, 201 Wis. 2d at 318-19 (quoting the same). We review a circuit court's discretionary decisions under the deferential erroneous exercise of discretion standard. In re the Commitment of Franklin, 2004 WI 38, ¶ 6, 270 Wis. 2d 271, 677 N.W.2d 276; Bentley, 201 Wis. 2d at 311. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/170447/ | FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 18, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
JIHAD AL-ALI,
Plaintiff-Appellant,
v. No. 07-4056
(D.C. No. 2:04-CV-547-DS)
SALT LAKE COMMUNITY (D. Utah)
COLLEGE,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA, EBEL, and MURPHY, Circuit Judges.
Jihad Al-Ali appeals pro se from the district court’s grant of summary
judgment in favor of Salt Lake Community College (SLCC) on his claims of
discrimination based on race, color, and national origin, and retaliation in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1)
and 2000e-3(a). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Background
Mr. Al-Ali worked as a part-time adjunct professor at SLCC, reporting to
Dr. Merrill, a Division Chair. He taught classes at SLCC during eight terms
beginning in the Spring term of 1999. He signed a new contract with SLCC for
each term. In each of these contracts, in his initial application, and in a form he
signed following his faculty orientation, Mr. Al-Ali acknowledged that he had no
expectation of continued employment at SLCC beyond the current term governed
by each agreement. See R., Vol. III, Doc. 120, Exs. 1, 3 & 4.
Mr. Al-Ali last taught at SLCC during the Summer term in 2001. On
June 20, 2001, only a few days into that term, he had an altercation with a student
in one of his classes. The next day Dr. Merrill informed him that he was relieved
of his teaching duties for the remainder of the term. When he asked for an
explanation, Dr. Merrill told him that two students had lodged complaints against
him. Mr. Al-Ali claims that he attempted to tell his side of the story, but
Dr. Merrill refused to listen, stating, “I hire and fire as I wish.” Id., Vol. IV, Doc.
135, Ex. 18 at 27 (emphasis omitted). Dr. Merrill then allegedly told Mr. Al-Ali,
“[M]aybe you are burned out and it could be good if you take [a] break for the
remain[der] of the summer, and you will have your schedule as usual in the
coming fall.” Id. (emphasis omitted). It is undisputed that SLCC did not pay
Mr. Al-Ali for the remainder of that term and that he never again taught at SLCC.
-2-
Mr. Al-Ali asked Dr. Merrill to write him a letter of recommendation in
connection with positions he was applying for outside of SLCC. Dr. Merrill
provided him with a letter dated August 20, 2001, stating, “I highly recommend
[Mr. Al-Ali] to you for your faculty position.” Id., Ex. 15.
Mr. Al-Ali claims that he also tried to obtain further teaching positions at
SLCC, but the record is not entirely clear in this regard. With respect to the Fall
term in 2001, the record reflects that he asked Dr. Merrill on September 19, 2001,
why he did not receive a teaching position for that term, and that Dr. Merrill
responded it was because he did not make the assignments. 1 Mr. Al-Ali applied
for state unemployment benefits two days later, “hoping to provoke some official
position [from SLCC] contrary to what [he] had been told in September.” Id.,
Vol. III, Doc. 120, Ex. 10, ¶ 11. SLCC did not respond to his request for
benefits. The state ultimately denied his application because he represented that
he had voluntarily quit his job at SLCC in order to find a full-time job.
Mr. Al-Ali received memos from SLCC addressed to Adjunct Faculty in
September and October, 2001. These memos advised him how to apply in writing
for teaching positions for the Spring term in 2002. The record does not contain a
written application by Mr. Al-Ali for that term, but there is evidence that he
1
In his affidavit, Mr. Al-Ali lists the date of this conversation with
Dr. Merrill as September 19, 2002, but based on the context it is clear it occurred
in 2001.
-3-
verbally inquired about a teaching assignment in mid-January 2002, after the
semester had begun. He also contacted Dr. Merrill in the middle of that month to
complain that the people to whom Dr. Merrill had referred him had failed to
return his phone calls. It is undisputed that Mr. Al-Ali last applied for a teaching
position in November 2002 and that SLCC denied his application on
November 17.
Mr. Al-Ali states that, after his contact with Dr. Merrill in January 2002,
“[f]rom that point on, and for two semesters, I felt as though I got the run-around
treatment by both Dr. Merrill . . . and others who would send me back and fo[]rth
blaming each other.” Id., ¶ 13. But it was not until March 2003 that he “became
frustrated and had it with the lies and decided to approach things differently.”
Id., ¶ 15. Two months later, he informed Dr. Merrill that he was going to submit
a complaint to Dr. Merrill’s supervisor about how he was being treated. A few
days later, he received a letter from SLCC regarding an audit of campus keys.
Mr. Al-Ali interpreted this letter as a request to return his keys, “signifying for
the first time [he] may be permanently discharged.” Id., ¶ 18.
In early June 2003, he raised his concerns with Dr. Richardson, Vice
President of Academic Affairs at SLCC. On June 14, he met with both
Dr. Richardson and Dr. Merrill, “to find out why [he] no longer was getting
teaching assignments. Dr. Merrill explained that it was because he had been
‘fired!’” Id., ¶ 22. Mr. Al-Ali asserts that this is the first time he had ever been
-4-
told he was fired. In response, he made allegations of discrimination and
Dr. Richardson referred him to SLCC’s Office of Equal Employment Opportunity
(EEO Office).
Mr. Al-Ali met with the EEO director on June 17, 2003. A month later,
unhappy with the progress of the investigation, he complained to Mr. Morgan, the
president of SLCC. He met with Mr. Morgan and Dr. Richardson on August 11
and again reviewed his grievances. That same day, he submitted a written
complaint to the EEO Office, alleging discrimination and harassment based upon
his race, religion, and national origin, in connection with his termination and
SLCC’s refusals to hire him. He received a letter from SLCC, dated September
24, 2003, informing him that his complaint was untimely because it was not filed
within thirty days from the last date of his alleged harm.
Mr. Al-Ali then filed a charge with the Utah Anti-Discrimination and Labor
Division and the Equal Employment Opportunity Commission (EEOC) on
November 4, 2003, alleging discrimination based on race, religion, national
origin, and retaliation. He described the discrimination as follows:
I was hired as an adjunct faculty, which means I was a part time
employee, paid hourly with no benefits. I taught to 2001, and then
September 11th happened at the World Trade Towers. After that I
was treated as if I didn’t exist, and others refused to talk to me. I
applied four times for a full time position, while I was teaching, only
to be bypassed and have the positions given to others based on their
race and religion. Because I am not white I have no rights and after
9-11-01 this event gave some people a free pass to overlook all my
concerns. I was a victim of witness tampering, conspiracy,
-5-
obstruction of justice, and finally I was told I had been terminated on
or about June 14, 2003.
Id., Ex. 11. He also claimed retaliation for reporting the problems to
Dr. Richardson. He received a right-to-sue letter dated March 16, 2004, and he
filed this action on June 14, 2004.
Both parties filed motions for summary judgment. Mr. Al-Ali argued that
he was entitled to summary judgment on all of his claims because SLCC was
negligent in handling his discrimination complaint. In its motion, SLCC
contended that his claims were untimely under the applicable statute of
limitations, or alternatively, that he failed to show any material facts in dispute.
On February 23, 2007, the district court denied Mr. Al-Ali’s motion and granted
SLCC’s motion as to all claims. It concluded that his claims of discrimination
and disparate treatment related to his termination, SLCC’s refusals to hire, and
the alleged hostile work environment were untimely. Alternatively, the court held
that SLCC was entitled to summary judgment because Mr. Al-Ali failed to
produce any evidence that SLCC’s reasons for terminating and refusing to hire
him were pretextual. The court also concluded that he produced no evidence of
actionable conduct amounting to a hostile work environment. Finally, it held that
he offered no evidence of a causal connection between his report of
-6-
discrimination to Dr. Richardson and any subsequent retaliatory adverse
employment action. Mr. Al-Ali filed a timely notice of appeal. 2
In his appeal briefs he appears to raise the following issues: (1) the district
court erred in holding that his claims were untimely and in failing to grant his
request to equitably toll the applicable statute of limitations; (2) the district court
erred in granting summary judgment based upon an absence of material facts in
dispute. 3
Statute of Limitations
The district court held that Mr. Al-Ali’s claims related to his termination,
the refusals to hire, and the alleged hostile work environment were barred by the
applicable statute of limitations. We review de novo a district court’s grant of
summary judgment in a Title VII case based upon the statute of limitations. See
Boyer v. Cordant Technologies, Inc., 316 F.3d 1137, 1138 (10th Cir. 2003).
An employee wishing to challenge an employment practice under
Title VII must first file a charge of discrimination with the EEOC.
2
Mr. Al-Ali filed a notice appealing the district court’s orders dated
August 1, 2006, and February 23, 2007. The district court entered its summary
judgment order on February 23, 2007. There is no order in the district court
docket entered on August 1, 2006.
3
Although we construe Mr. Al-Ali’s pro se appellate filings liberally, we
admit some difficulty in apprehending his arguments on appeal. He addresses
numerous issues not relevant to the district court’s summary judgment ruling. He
also attaches documents not included in the record below, which we do not
consider on appeal. Nonetheless, we “have tried to discern the kernel of the
issues [he] wishes to present on appeal.” de Silva v. Pitts, 481 F.3d 1279, 1283
n.4 (10th Cir. 2007).
-7-
Because Title VII seeks to avoid the pressing of stale claims, it
requires aggrieved persons to file any such charge within certain
specified periods after the allegedly unlawful conduct occurred. If
the employee does not submit a timely EEOC charge, he or she may
not proceed to court.
Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1163 (10th Cir. 2007) (citations and
quotations omitted). Mr. Al-Ali was required to file his charge of discrimination
“within three hundred days after the alleged unlawful employment practice
occurred.” 42 U.S.C. § 2000e-5(e)(1). “The filing is a prerequisite to a civil suit
under Title VII and a claim is time-barred if it is not filed within these time
limits.” Davidson v. Am. Online, Inc. 337 F.3d 1179, 1183 (10th Cir. 2003).
SLCC’s termination of Mr. Al-Ali and its subsequent refusals to hire him
were discrete acts of discrimination. See id. at 1184. Therefore, despite his
allegation that these acts were all related, he was required to “file a charge of
discrimination within the appropriate limitations period as to each such discrete
act of discrimination that occurred.” Id. He was also required to file a charge
within three hundred days of the occurrence of any act contributing to the alleged
hostile work environment. See Boyer, 316 F.3d at 1140 (“In order for the charge
to be timely, the employee need only file a charge within . . . 300 days of any act
that is part of the hostile work environment.”) (quotation omitted).
Mr. Al-Ali filed his discrimination charge on November 4, 2003.
Therefore, his claims are limited to discriminatory acts that occurred within three
hundred days before that date–that is, on or after January 8, 2003. There is no
-8-
evidence in the record that he applied for and was denied a teaching position with
SLCC at any time after November 17, 2002. Therefore, no refusal to hire
occurred within the three-hundred-day limitations period. We agree with the
district court that he failed to file a timely charge with respect to SLCC’s refusals
to hire him.
Mr. Al-Ali’s termination also did not occur within the three-hundred-day
limitations period. On June 21, 2001, more than two years before he filed his
discrimination charge, he was notified of his removal from his Summer term
classes. He appears to make two contentions on appeal: first, that he was not
terminated on that date, and second, that if he was, he was not aware of his
termination until almost two years later. 4 As to the first issue, we conclude that
the material facts are not in dispute. The record shows that he was employed by
SLCC to teach on a term-by-term basis. The contract he signed for the Summer
term in 2001 provided expressly that he had “no expectation of continued
ADJUNCT teaching or other employment at the COLLEGE beyond the term
governed by this agreement.” R., Vol. III, Doc. 120, Ex. 3. There is no dispute
that he was informed on June 21, 2001, that he would not be teaching the
4
We address the latter contention infra, in the context of Mr. Al-Ali’s
equitable tolling argument.
-9-
remainder of that semester. Therefore, the district court did not err in concluding
that Mr. Al-Ali was terminated from his employment at that time. 5
The district court also reasoned that his hostile work environment claim
necessarily accrued no later than his termination date. We agree. Any alleged
hostile work environment to which Mr. Al-Ali was subjected would have ended
with the termination of his employment. Cf. Holmes v. Utah, Dep’t of Workforce
Servs., 483 F.3d 1057, 1063-64 (10th Cir. 2007) (affirming summary judgment on
hostile work environment claim where, during the three-hundred-day filing
period, employee no longer worked in office where earlier harassment allegedly
occurred).
Accordingly, we find no error in the district court’s conclusion that
Mr. Al-Ali’s claims related to his termination, SLCC’s refusals to hire, and the
alleged hostile work environment were time-barred because of his failure to file a
charge of discrimination within three hundred days of the allegedly
discriminatory acts. Therefore, summary judgment on these claims was proper,
unless the statute of limitations was subject to equitable tolling.
5
The district court concluded that Mr. Al-Ali’s date of termination was
June 20, 2001, which was his last day of teaching. But he was not notified of his
termination until the following day. See Gray v. Phillips Petroleum Co., 858 F.2d
610, 613 (10th Cir. 1988) (holding period for filing discrimination charge begins
on date employee is notified of adverse employment decision). The difference of
one day does not affect our analysis of whether his charge of discrimination was
timely.
-10-
Equitable Tolling
Mr. Al-Ali contends that the district court erred in declining to equitably
toll the three-hundred-day limitations period. “This Circuit has generally
recognized equitable tolling of Title VII periods of limitation only if
circumstances rise to the level of active deception which might invoke the powers
of equity to toll the limitations period.” Montoya v. Chao, 296 F.3d 952, 957
(10th Cir. 2002) (quotation omitted). Equitable tolling may be appropriate where
a plaintiff has been lulled into inaction by an employer’s “deliberate design . . . or
actions that the employer should unmistakably have understood would cause the
employee to delay filing his charge.” Hulsey v. Kmart, Inc., 43 F.3d 555, 557
(10th Cir. 1994). But “federal courts have typically extended equitable relief only
sparingly,” Montoya, 296 F.3d at 957 (quotation omitted), narrowly construing
the exceptions, Harms v. IRS, 321 F.3d 1001, 1006 (10th Cir. 2003).
“We review a district court’s decision whether to equitably toll a period of
limitation for abuse of discretion.” Montoya, 296 F.3d at 957. “An abuse of
discretion occurs when the district court bases its ruling on an erroneous
conclusion of law or relies on clearly erroneous fact findings.” Kiowa Indian
Tribe of Okla. v. Hoover, 150 F.3d 1163, 1165 (10th Cir. 1998). “Under the
abuse of discretion standard[] a trial court’s decision will not be disturbed unless
the appellate court has a definite and firm conviction that the lower court made a
-11-
clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994).
Mr. Al-Ali contends that SLCC actively deceived him into believing he had
not been terminated in June 2001. He argues that the district court should have
tolled the time period for filing his charge of discrimination until the date he
learned he had been fired. He claims that Dr. Merrill revealed that fact to him
nearly two years later, in a meeting with Dr. Richardson on June 14, 2003. We
have affirmed a district court’s tolling of the three-hundred-day period to file a
discrimination charge where an employer actively misled an employee with
regard to whether he had been terminated. In Donovan v. Hahner, Foreman &
Harness, Inc., 736 F.2d 1421, 1427 (10th Cir. 1984), the trial court found that the
defendant employer deliberately concealed the fact that the plaintiff had been
discharged, rather than laid off. The trial court also found that, based upon the
employer’s representations, the plaintiff had a reasonable, good faith belief he
had only been laid off. Id. We concluded that the district court’s findings were
not clearly erroneous and therefore we found no abuse of discretion in its tolling
of the limitations period. Id. at 1428.
Here, Mr. Al-Ali contends that the following actions by SLCC deceived
him into believing he had not been terminated and therefore lulled him into
inaction: (1) Dr. Merrill told him on June 21, 2001, that he should take the
summer off, but that he would have a teaching position again in the fall;
-12-
(2) SLCC never gave him written notification of his termination; (3) SLCC
failed to respond to his unemployment application, in which he stated he had
voluntarily quit; (4) SLCC continued to send him memos about subsequent
teaching opportunities addressed to Adjunct Faculty; and (5) SLCC failed to ask
him to return his campus keys until after he complained to Dr. Merrill’s
supervisor.
The district court found that, according to his contract, Mr. Al-Ali’s
employment with SLCC only extended through the Summer term in 2001, that he
was relieved of his teaching duties just a few days into that term, and that he was
never offered a new contract. The court also noted that, despite Dr. Merrill’s
alleged promise of a new position for the Fall term in 2001, Mr. Al-Ali was on
notice as of the beginning of that term that he had not been offered any position.
The court concluded that “[t]here was simply no basis for him to conclude that his
employment had not come to an end, for whatever reason, or that somehow he
remained employed with SLCC.” R., Vol. IV, Doc. 139 at 11. Because
Mr. Al-Ali has not shown that the district court’s findings are clearly erroneous,
we hold that the court did not abuse its discretion in denying his request to
equitably toll the three-hundred-day period for filing his discrimination charge.
Retaliation
The district court granted summary judgment in favor of SLCC on
Mr. Al-Ali’s retaliation claim, holding that he failed to establish a causal
-13-
connection between any protected activity and a subsequent adverse employment
action. Because he does not address that ruling in his opening briefs on appeal,
we hold that he has waived consideration of that issue on appeal. See State Farm
Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).
The judgment of the district court is AFFIRMED. Mr. Al-Ali’s request to
proceed in forma pauperis in this appeal is granted.
Entered for the Court
Michael R. Murphy
Circuit Judge
-14- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4523556/ | [Cite as State v. Smith, 2020-Ohio-1370.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190162
TRIAL NO. B-1505510
Respondent-Appellee, :
vs. : O P I N I O N.
WILLIAM ANTONIO SMITH, :
Petitioner-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: April 8, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Respondent-Appellee,
William Antonio Smith, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
MOCK, Presiding Judge.
{¶1} Petitioner-appellant William Antonio Smith appeals the Hamilton
County Common Pleas Court’s judgment denying his petition under R.C. 2953.21 et
seq. for postconviction relief. Because the court had no jurisdiction to entertain
Smith’s late postconviction petition, we affirm the judgment as modified to dismiss
the petition.
{¶2} In 2017, Smith was convicted of having weapons while under a disability
and two counts of murder in connection with the deaths of his friends Alma Jean Owens
and MacArthur Jackson, Sr., during an altercation in Jackson’s apartment. Owens was 57
years old and 5’1’’ tall. Smith shot her three times: one shot shattered her right leg; a
close-range shot struck her on the right side of her jaw; and the fatal shot struck her under
her right eye. Jackson was 72 years old, 5’4” tall, and suffered from chronic lung disease,
hypertension, and arteriosclerosis. He sustained three gunshots to the head and multiple
cuts on his hands and head, including the fatal 6½-inch-long cut to his neck, found by the
coroner to have required up to a dozen strokes. Then-27-year-old Smith gave police
multiple conflicting accounts of his role in their deaths, then admitted killing them, but
claimed that he had acted in self-defense after Owens attacked him with a sharp object
and Jackson physically assaulted him.
{¶3} Evidence was also adduced at trial showing that Smith had sustained
substantial cuts to his hand, neck, face, and side. At Smith’s request, the trial court
instructed the jury on the affirmative defense of self-defense and on voluntary
manslaughter as an offense of inferior degree to murder. But the jury returned verdicts
finding Smith guilty of murder. And this court, in affirming those convictions on direct
appeal, overruled Smith’s challenges to the weight and sufficiency of the evidence to
support those verdicts. See State v. Smith, 1st Dist. Hamilton No. C-170028, 2018-
Ohio-2504, appeals not accepted, 154 Ohio St. 3d 1444, 2018-Ohio-4962, 113 N.E.3d
553 (affirming convictions, but remanding for consecutive-sentences findings). In
2
OHIO FIRST DISTRICT COURT OF APPEALS
our assessment, substantial, credible evidence supported the jury’s verdicts that Smith had
purposely caused the victims’ deaths, and Smith failed to sustain his burden of proving
that he had acted in self-defense. Specifically, with respect to Smith’s self-defense
claim, we found no evidence that he had not been at fault in creating the violent
situation, had acted under an objectively reasonable belief that he had been in
danger of imminent death or great bodily harm, or had not violated any duty to
retreat or avoid the danger. Id. at ¶ 56-66.
The Postconviction Petition
{¶4} In 2018, Smith filed a postconviction petition seeking relief from his
convictions on the grounds that (1) his trial counsel had been ineffective in failing to
support his self-defense claim with witnesses and hospital records showing the
“defensive” nature of his injuries, and (2) he had been denied due process because he
was “not afforded the presentation of evidentiary documentation or witnesses to
refute [the state’s] evidence and witnesses.” He supported the petition with a report
generated by the University of Cincinnati Medical Center concerning a follow-up
surgical procedure required for the injuries to his hand. He also offered his own
affidavit attesting to his pretrial requests that trial counsel subpoena that report, a
physician, two character witnesses, and records generated by the emergency room at
Good Samaritan Hospital, where his injuries had first been treated. In two
subsequent motions, he unsuccessfully sought “leave to supplement” the petition
with “newly obtained evidence” in the form of the Good Samaritan Hospital
emergency-room records.
{¶5} Smith here appeals from the common pleas court’s judgment denying
his postconviction petition. On appeal, he presents three assignments of error.
Amendment Improperly Denied
{¶6} We address first the second assignment of error, challenging the
overruling of Smith’s motions for leave to supplement his postconviction petition
3
OHIO FIRST DISTRICT COURT OF APPEALS
with the Good Samaritan Hospital emergency-room records. The challenge is well
taken.
{¶7} R.C. 2953.21(G)(2) affords a postconviction petitioner the right to
“amend[]” a postconviction petition “at any time before the [state’s] answer or [a
summary-judgment] motion is filed.” With his July 6 and 10, 2018 motions for leave
to supplement his postconviction petition, Smith sought to amend his petition to add
evidentiary material supporting his postconviction claims. Because the state did not
respond to the petition until July 25, 2018, when it filed its memorandum in
opposition to the petition, Smith had a right under R.C. 2953.21(G)(2) to amend his
petition. The effect of the common pleas court’s entry overruling Smith’s motions
was to deny him that right. We, therefore, hold that the court erred in overruling the
motions.
{¶8} This holding does not, however, compel reversal of the common pleas
court’s judgment denying Smith’s postconviction petition. The common pleas court
did not reach the merits of Smith’s late postconviction claims because it determined
that it had no jurisdiction to do so. Because we conclude, for the following reasons,
that those claims were subject to dismissal for lack of jurisdiction, the denial of
Smith’s right to amend his petition with evidentiary material supportive of the claims
cannot be said to have been prejudicial. Accordingly, we overrule the second
assignment of error.
No Jurisdiction to Entertain the Petition
{¶9} Smith’s first and third assignments of error may fairly be read together
to challenge the denial of his postconviction petition without an evidentiary hearing.
That challenge is untenable.
{¶10} No prison-mailbox rule. R.C. 2953.21(A)(2) required Smith to
file his postconviction petition within 365 days from the filing of the transcript of the
4
OHIO FIRST DISTRICT COURT OF APPEALS
proceedings in his direct appeal. His petition was not filed with the clerk of courts
within the prescribed time.
{¶11} Smith asserts on appeal that he satisfied the time restrictions of R.C.
2953.21(A)(2) by timely delivering the petition to the prison mailroom. But a prison-
mailbox rule does not operate in this state. State ex rel. Tyler v. Alexander, 52 Ohio
St.3d 84, 555 N.E.2d 966 (1990) (overruling State v. Williamson, 10 Ohio St. 2d 195,
226 N.E.2d 735 (1967), declining to adopt the federal prison-mailbox rule of Houston
v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988), and holding that
a notice of appeal is considered filed on the day it is filed with the clerk of courts).
Therefore, for purposes of R.C. 2953.21(A)(2), a postconviction petition is filed when
it is filed with the clerk of courts, not when it is placed in the prison mailing system.
State v. VanCleve, 12th Dist. Clermont No. CA2014-03-024, 2015-Ohio-230, ¶17, fn.
2; State v. Lester, 3d Dist. Auglaize No. 2-07-23, 2007-Ohio-5627, ¶ 6-12; State v.
Friley, 10th Dist. Franklin No. 05AP-15, 2006-Ohio-230, ¶ 9; State v. Williams, 157
Ohio App. 3d 374, 2004-Ohio-2857, 811 N.E.2d 561, ¶ 8-12 (8th Dist.); State v.
Lathan, 6th Dist. Lucas No. L-00-1073, 2000 WL 1005206 (July 21, 2000); State v.
Springs, 7th Dist. Mahoning No. 97 CA 68, 1999 WL 148369 (Mar. 11, 1999), fn. 1;
State v. Bowens, 11th Dist. Ashtabula No. 97-A-004, 1998 WL 553049 (June 26,
1998); State v. Coots, 9th Dist. Wayne No. 96CA0095, 1997 WL 803125 (Dec. 24,
1997); State v. Vroman, 4th Dist. Ross No. 96CA 2258, 1997 WL 193168 (Apr. 15,
1997); State v. Smith, 123 Ohio App. 3d 48, 50, 702 N.E.2d 1245 (2d Dist.1997)
(following Tyler to hold that a prison-mailbox rule does not operate to preclude the
dismissal of a postconviction petition on the ground that it was not timely filed).
Accordingly, Smith’s petition was not timely filed.
{¶12} No jurisdiction under postconviction statutes. Because the
petition was not timely filed, the postconviction statutes conferred upon the common
pleas court jurisdiction to entertain Smith’s late postconviction claims only upon
5
OHIO FIRST DISTRICT COURT OF APPEALS
satisfaction of R.C. 2953.23. Smith was required to show either that he was
unavoidably prevented from discovering the facts upon which his postconviction
claims depend or that his claims were predicated upon a new retrospectively
applicable right recognized by the United States Supreme Court since the time for
filing the claims had expired. And he was required to show “by clear and convincing
evidence that, but for constitutional error at trial, no reasonable factfinder would
have found [him] guilty of the offense[s] of which [he] was convicted * * *.” R.C.
2953.23(A)(1).
{¶13} Smith’s ineffective-counsel and due-process claims were not
predicated upon a new retrospectively applicable right recognized by the United
States Supreme Court since the time for filing those claims had expired. On appeal,
he argues that he was unavoidably prevented from timely filing his postconviction
petition, because his request for the Good Samaritan emergency-room records had
been delayed by the county public defender’s delay in notifying him that it was
declining his case. But his postconviction petition and its supporting evidentiary
material did not speak to, much less demonstrate, the matter of unavoidable
prevention. Nor does the record otherwise reflect efforts on his part or on his behalf
to secure the evidence upon which his ineffective-counsel and due-process claims
depended. Because he failed to satisfy the R.C. 2953.23 jurisdictional requirements
for entertaining a late postconviction claim, the postconviction statutes did not
confer upon the common pleas court jurisdiction to entertain Smith’s petition. See
R.C. 2953.23(A)(1).
{¶14} Not void. Finally, a court always has jurisdiction to correct a void
judgment. State ex rel. Cruzado v. Zaleski, 111 Ohio St. 3d 353, 2006-Ohio-5795, 856
N.E.2d 263, ¶ 18-19. But neither his due-process claim nor his ineffective-counsel
claim, even if demonstrated, would have rendered his convictions void. See State v.
Wurzelbacher, 1st Dist. Hamilton No. C-130011, 2013-Ohio-4009, ¶ 8; State v.
6
OHIO FIRST DISTRICT COURT OF APPEALS
Grant, 1st Dist. Hamilton No. C-120695, 2013-Ohio-3421, ¶ 9-16 (holding that a
judgment of conviction is void only to the extent that a sentence is unauthorized by
statute or does not include a statutorily mandated term or if the trial court lacks
subject-matter jurisdiction or the authority to act); see also State v. Hayes, 1st Dist.
Hamilton No. C-130450, 2014-Ohio-1263, ¶ 5 (holding that the ineffective assistance
of counsel does not render a conviction void).
We Affirm
{¶15} Because the common pleas court had no jurisdiction to entertain
Smith’s postconviction petition, the petition was subject to dismissal without an
evidentiary hearing. See R.C. 2953.21(D) and 2953.23(A). We, therefore, modify the
court’s judgment denying the petition to reflect its dismissal. See App.R. 12(A)(1)(a).
And we affirm that judgment as modified.
Judgment affirmed as modified.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
7 | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/696783/ | 56 F.3d 64NOTICE: 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.
Stanley J. JENNINGS, Plaintiff-Appellant,v.FORD MOTOR COMPANY, Defendant-Appellee,DANIEL RICHARD WEAVER, Supervisor, Ford Motor Company, Defendant.
No. 94-4079.
United States Court of Appeals, Sixth Circuit.
May 16, 1995.
1
Before: SUHRHEINRICH and DAUGHTREY, Circuit Judges, and HEYBURN, District Judge.*
2
Stanley J. Jennings, an Ohio resident, appeals pro se a district court judgment dismissing his lawsuit for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The 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
Seeking ten million dollars in damages, Jennings filed this complaint against the Ford Motor Co. (Ford) and one of its supervisory employees, alleging that the supervisor had verbally and physically assaulted Jennings while he was working at Ford's Lima, Ohio, plant. Ford filed a motion to dismiss for lack of jurisdiction, arguing that no federal question was presented and the parties were not diverse, as both Jennings and the defendant supervisor were residents of Ohio. Moreover, Ford argued that even if there were complete diversity, Jennings had failed to allege an amount in controversy in excess of $50,000.00 as required by 28 U.S.C. Sec. 1332(a) because he appeared to be seeking punitive damages only, which are not available in the absence of proof of actual damages according to Ohio Rev. Code Sec. 2315.21(B)(2). Jennings responded by arguing that he could receive actual damages for emotional distress, and by attempting to amend his complaint to voluntarily dismiss the supervisor. He also argued that federal question jurisdiction existed on grounds which he has now abandoned on appeal. The district court granted the motion to dismiss on the grounds cited by Ford. On appeal, Jennings continues to assert the existence of diversity jurisdiction. He also alleges that the district court judge was biased in favor of Ford's attorney and failed to consider his pleadings responding to the motion to dismiss and attempting to amend his complaint.
4
This court reviews de novo the dismissal of a complaint for lack of jurisdiction. Gafford v. General Elec. Co., 997 F.2d 150, 155 (6th Cir. 1993). Whether the amount in controversy requirement has been satisfied is judged on a good faith standard. See Wood v. Stark Tri-County Bldg. Trades Council, 473 F.2d 272, 273 (6th Cir. 1973). Where a party alleges excessive damages beyond any reasonable expectation of recovery, jurisdiction does not attach. See Worthams v. Atlanta Life Ins. Co., 533 F.2d 994, 997 (6th Cir. 1976). In this case, the prayer for ten million dollars is so excessive in comparison with the facts alleged in support of the claim as to evidence a lack of good faith. Because of the failure to satisfy the amount in controversy requirement, whether the district court considered the attempt to amend the complaint to voluntarily dismiss the non-diverse defendant is irrelevant, as jurisdiction does not attach in any event. Similarly, because the district court clearly lacked jurisdiction, we do not need to address the allegations of bias.
5
For the above reasons, the judgment of the district court is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.
*
The Honorable John G. Heyburn II, United States District Judge for the Western District of Kentucky, sitting by designation | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/3849953/ | The assignments of error are all overruled, there being no merit in them, and the judgment of the learned court below is affirmed on the opinion of Judge WILSON of that court.
Judgment affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4553979/ | NOT DESIGNATED FOR PUBLICATION
No. 121,526
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANTHONY LEE HUNTER FIELDS,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed August 7,
2020. Reversed and remanded with directions.
Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and
(h).
Before BUSER, P.J., HILL and WARNER, JJ.
PER CURIAM: Anthony Lee Hunter Fields appeals a district court's order sending
him to prison after revoking his probation. We granted Fields' motion for summary
disposition under Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). Based on the
Kansas Supreme Court's recent decision in State v. Coleman, 311 Kan. 332, 460 P.3d 828
(2020), we reverse the order and remand to the district court for a new revocation
hearing.
1
Fields made an agreement with the State.
In 2017, Fields entered no contest pleas to one count of involuntary manslaughter
and one count of aggravated assault. With the severity level of the crimes and Fields'
criminal history score, he faced a presumptive prison sentence. But the State agreed not
to oppose Fields' request for a dispositional departure to probation. The court sentenced
him to serve a 64-month prison term but granted a dispositional departure sentence of 36
months' probation. Noting that it was "very reluctantly" following the plea agreement, the
district court warned Fields that if he "step[ped] foot in this courtroom for any violation,
it will be the court's intent to revoke [probation] because you will firmly establish that
you're not amenable to probation."
Probation did not go well. In 2018, Fields admitted violating his probation by
failing to:
• abstain from illegal drug use;
• report to his intensive supervision office as directed;
• start/complete court-ordered programs; and
• address court fees.
Fields waived his right to a probation violation hearing and accepted a three-day jail
sanction.
Then in 2019, seeking revocation of his probation, the State alleged that Fields had
again violated the terms of his probation by failing to:
• comply with court-ordered mental health treatment;
• submit to required urinalysis tests;
• refrain from illegal drug use; and
• gain/maintain employment.
2
Fields admitted missing two UA tests but disputed the remaining allegations. The
State presented testimony from Lashante Harris, Fields' probation supervisor. Harris
testified that Fields had failed to provide proof that he complied with any of the
recommendations following his mental health evaluation. Harris also testified that Fields
had failed to submit to UA testing on occasion and had submitted diluted UAs, which
meant they could not be tested. Harris requested that the district court impose a "tier-two"
sanction, otherwise known as an intermediate prison sanction.
Fields also testified at the hearing. Fields said that he completed a mental health
evaluation and was told to follow up on his medication. According to Fields, he was
unaware of any prescription requirements and was later told that he did not need any
additional mental health services. Fields admitted he had not provided recent mental
health documentation to his supervisor. Fields also admitted that he had missed two UAs
but denied that he had diluted or otherwise tampered with them. Fields suggested that a
protein shake he consumed could have caused the dilution. Fields testified that he was
employed at a lawn service in Missouri and had recently secured housing for his family.
The State agreed that a "tier-two" intermediate prison sanction would be
appropriate. Unimpressed with the recommendations, the district court revoked Fields'
probation and ordered him to serve his underlying prison sentence. In imposing Fields'
sentence, the district court expressed concern about Fields' lack of transparency about the
mental health recommendations and the allegations that Fields had diluted his UAs. The
court also noted its prior warning to Fields after it had reluctantly approved the parties'
joint sentencing recommendation. The judge reminded him of the serious nature of his
crime:
"This court [at sentencing] could not have made it any clearer to Mr. Fields how
he had to do everything 100 percent. Zero tolerance. And I know I don't have the
3
transcript in front of me, but I know I spent a lot of time telling him how lucky he was to
be walking out of that courtroom after having killed somebody . . . .
....
Based on the dilutes and based on this court's very, very clear language to Mr.
Fields, I'm not doing a tier two, I'm doing revocation. His probation is revoked."
With that, the court sent Fields to prison.
A recent Supreme Court ruling compels our reversal.
In this appeal, Fields argues that the court had to impose an intermediate sanction
and could not legally send him to prison for his probation violations. Because of the
timing of the crime and the nature of his subsequent violations of probation, Fields is
correct.
Our statute, K.S.A. 22-3716, sets out the procedure for revoking an offender's
probation. Under the version of the statute in effect when Fields committed his 2016
crimes, the district court was required to impose a series of graduated intermediate
sanctions before revoking Fields' probation and ordering him to serve his prison sentence.
These sanctions ranged from continuation or modification of the terms of probation to
brief periods of confinement in jail or longer periods of confinement in prison. The
sanctions gradually increased depending on the number of sanctions already imposed.
See K.S.A. 2016 Supp. 22-3716(c)(1)(A)-(D).
Fields had received a three-day jail sanction. But the district court could bypass
intermediate prison sanctions only if (1) Fields committed a new crime or absconded
while on probation; or (2) the court stated particular reasons why imposing a sanction
would jeopardize public safety or Fields' welfare. See K.S.A. 2016 Supp. 22-3716(c)(8)-
(9). Fields did not commit a new crime or abscond while on probation. Nor did the
district court make any particularized findings that imposing a 120- or 180-day prison
4
sanction would jeopardize public safety or Fields' welfare. Thus, under K.S.A. 2016
Supp. 22-3716, the district court's only option was to impose an intermediate prison
sanction.
The Legislature, in 2017, amended K.S.A. 22-3716. It added language to the
statute that allowed the district court to bypass intermediate sanctions if a defendant had
received probation from a dispositional departure. See K.S.A. 2017 Supp. 22-
3716(c)(9)(B). And in 2019, the Legislature's amendment to K.S.A. 22-3716 eliminated
the 120- and 180-day prison sanctions. K.S.A. 2019 Supp. 22-3716(c)(1). Thus, under the
current version of the statute, a district court can revoke probation and impose the prison
sentence if the probationer has already served a two- or three-day jail sanction. K.S.A.
2019 Supp. 22-3716(c)(1)(C).
Fields received a dispositional departure when he was originally sentenced. And
Fields had served a three-day jail sanction. Under either K.S.A. 2017 Supp. 22-3716 or
K.S.A. 2019 Supp. 22-3716, the district court was free to revoke probation and order
Fields to serve his prison sentence. But those revisions to the law are not retroactive and
do not apply to Fields.
The question of which version of K.S.A. 22-3716 applies is resolved by our
Supreme Court's recent decision in State v. Coleman, 311 Kan. 332, 460 P.3d 828 (2020).
In Coleman, the State argued that the 2017 amendment to K.S.A. 22-3716 applied
retroactively to Coleman, who had committed his underlying crimes several years before
that amendment took effect. Because the 2017 amendment had no express retroactivity
language, however, the court held that the amendment applied prospectively and could
not be applied to probationers like Coleman, who committed their crimes before it took
effect on July 1, 2017. 311 Kan. at 337; see State v. Ratliff, No. 121,800, 2020 WL
2097488, at * 2 (Kan. App. 2020) (unpublished opinion). In Ratliff, we relied on
Coleman in holding that the 2019 amendment to K.S.A. 22-3716 eliminating the 120- and
5
180-day prison sanctions applies prospectively only to probationers who committed their
underlying crimes after July 1, 2019.
Under K.S.A. 2016 Supp. 22-3716, which was in effect when Fields committed
his offenses in August 2016, the district court was required to impose a 120- or 180-day
prison sanction before revoking Fields' probation and imposing his underlying prison
sentence. The district court's legal error in failing to correctly apply the statute constitutes
an abuse of discretion. See State v. Ballou, 310 Kan. 591, 615, 448 P.3d 479 (2019).
As a result, we are required to reverse the district court's revocation of Fields'
probation and remand for a new revocation hearing.
Reversed and remanded with directions.
6 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3229544/ | The plaintiff and defendant entered into a contract whereby plaintiff was to, and did take charge of one of defendant's filling stations in Gadsden for the purpose of selling and dispensing gasoline and other products. By the terms of the contract the tanks and equipment at the station were owned and furnished by defendant and defendant was to and did furnish the gasoline to be dispensed by plaintiff and for which service plaintiff was to receive as compensation 2 cents on each gallon sold. By the contract plaintiff was responsible for all gasoline delivered to the station, which had to be accounted for each week on an inventory and audit made by the auditor of defendant. At the end of each month and based upon these audits the defendant would send check to plaintiff for amounts due him as commissions on sales. At each inventory and audit of the stations during the time the station was operated by plaintiff, there was found to be a shortage in the gallons of gasoline delivered and that on hand and accounted for. Demand was made on plaintiff by the auditor for the payment of this shortage, and, while protesting to the auditor that the shortage was through no fault of his, plaintiff paid these amounts under protest, that the contract might be continued in force and without such payments the contract would have been canceled. The contract continued from July, 1931, to March 21, 1932, during which time the aggregate amount of the shortages was about $221. During the time the station was being operated by plaintiff, plaintiff was continuously complaining to agents of defendant that the gasoline was constantly disappearing from the tanks, with requests that the matter be looked into, but nothing was ever done about it, although it was shown that the equipment was some ten years old. There was some evidence from which inference might be drawn that the shortage was due to leakage from the underground tanks, which were part of the *Page 383
equipment of the station for which defendant was responsible.
There is one item of $10.71 not embraced in the foregoing growing out of a sale of gasoline to the Singer Sewing Machine Company, which was an approved account for which plaintiff was entitled to credit and which was deducted by defendant in final settlement with plaintiff. That amount plaintiff was clearly entitled to recover in this action.
Regarding the various shortages of gasoline going to make up the aggregate payment of $221 occurring during the time plaintiff was in charge of defendant's station, the plaintiff's right to recovery depends upon whether these payments were made under legal duress or whether they were voluntary payments. It is beyond dispute that at the time these payments were made plaintiff was in possession of all the facts in the case. It is equally clear that these payments were not made as a result of any legal compulsion. That being the case, such payments cannot be recovered back by reason of the mere fact that they were paid unwillingly. Singer Sewing Machine Co. v. Teasley, 198 Ala. 673,73 So. 969; Cantonwine v. Bosch Bros., 148 Iowa, 496, 127 N.W. 657.
Where there is no legal compulsion, a party yielding to the demand for payment of an adverse claim cannot detract from the force of his concession by saying at the time of payment, I object or I protest. "The payment nullifies the protest as effectually as it obviates the previous denial and contestation of the claim." Forrest v. New York, 13 Abb. Prac. (N.Y.) 350.
In order to recover money, paid under duress, it must be shown not only that there was duress, but also that the demand or duress was illegal, unjust, or oppressive and that it is against equity and good conscience for the payee to retain the money. 48 Corpus Juris 742 (293). In the instant case the evidence discloses an honest difference between the parties at each settlement period and a voluntary payment of the amount of shortage as shown by the audit and inventory made at the time, both parties being in possession of all the facts. Though paid unwillingly, they may not be recovered back.
The rulings of the trial court were not in accord with the foregoing, and for the error in its various rulings touching these points the judgment is reversed and the cause is remanded.
Reversed and remanded. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4553984/ | NOT DESIGNATED FOR PUBLICATION
No. 121,722
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
SEAN HUGHES,
Appellant,
v.
CITY OF HUTCHINSON,
Appellee.
MEMORANDUM OPINION
Appeal from Workers Compensation Board. Opinion filed August 7, 2020. Affirmed.
Mitchell W. Rice, of Mann Wyatt & Rice, of Hutchinson, for appellant.
William L. Townsley III and T. Chet Compton, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of
Wichita, for appellee.
Before ARNOLD-BURGER, C.J., BRUNS and SCHROEDER, JJ.
PER CURIAM: Sean Hughes timely seeks judicial review of the decision of the
Workers Compensation Board (the Board), finding he suffered a scheduled injury
resulting in a permanent partial disability of 13% to his left shoulder while working for
the City of Hutchinson (the City). He argues the Board erred in finding only a 13%
permanent partial disability to his left shoulder. After our review of the record, we
conclude the Board's findings were supported by substantial competent evidence, and we
affirm.
1
FACTS
Hughes worked as an equipment operator for the City. In October 2015, he fell
while attempting to climb into the cab of a dump truck. He landed on his left side,
injuring his left shoulder. The City admits he suffered an injury and timely reported the
injury. In seeking health care for his left shoulder injury, he obtained an MRI on his left
shoulder and consulted with an orthopedic surgeon, Dr. Daniel Prohaska. Dr. Prohaska
diagnosed Hughes with a left rotator cuff tear and impingement and osteoarthritis in his
left acromioclavicular (AC) joint. In November 2015, Hughes had surgery to repair the
tear to his left rotator cuff and address the impingement and osteoarthritis in his left AC
joint. Hughes then underwent physical therapy and had regular follow-up visits with Dr.
Prohaska.
In June 2016, Hughes filed a formal workers compensation claim. At that time, he
also began complaining of right shoulder pain and numbness and tingling in both hands.
In July 2016, the presiding administrative law judge (ALJ) for the Division of Workers
Compensation ordered an independent medical evaluation (IME) with Dr. Pat Do, an
orthopedic surgeon. Dr. Do evaluated Hughes in September 2016, concluding his left
shoulder injury and any resulting impairment was the result of his work accident.
However, Dr. Do concluded any impairment with Hughes' right shoulder and the
numbness and tingling in his hands was unrelated to his work accident.
In March 2017, Hughes underwent arthroscopic surgery to remove a loose anchor
from his left shoulder from the previous operation. Hughes began additional physical
therapy and rehabilitation and had regular follow-up appointments with Dr. Prohaska. In
October 2017, Dr. Prohaska determined Hughes was at maximum medical improvement
and imposed work restrictions of no lifting over 45 pounds, no lifting more than 10
pounds overhead, and no pushing or pulling more than 45 pounds. Dr. Prohaska rated
Hughes at 12% impairment to the left shoulder.
2
In September 2017, the ALJ ordered another IME, and Hughes was evaluated by
Dr. Steven Joyce, an orthopedic surgeon, in November 2017. Dr. Joyce determined
Hughes suffered a left rotator cuff injury as a result of the fall. He also believed Hughes
was at maximum medical improvement and imposed similar restrictions for lifting,
pushing, and pulling. Dr. Joyce assigned a partial permanent impairment rating of 13%
for Hughes' left shoulder injury. Dr. Joyce did not believe Hughes' right shoulder injury
or the tingling and numbness in his hands were related to his work accident.
In February 2018, Hughes' attorney arranged for an evaluation by Dr. Robert
Barnett, a clinical psychologist and rehabilitation specialist. Dr. Barnett reviewed Dr.
Joyce's report and conducted a telephone interview with Hughes. At a subsequent
deposition, Dr. Barnett testified: "Based on the restrictions provided by Dr. Joyce,
[Hughes has] the ongoing restrictions, he has chronic pain, he has poor sleep, and morbid
obesity. In my opinion, he's probably unemployable." However, Dr. Barnett stated
Hughes was "not doing any of the things you would normally expect somebody to do."
Specifically, Hughes had not sought job service assistance or vocational rehabilitation.
And Dr. Barnett agreed Hughes was essentially not engaged in a good-faith effort to find
employment.
Hughes' attorney also arranged for him to be evaluated by a psychologist, Dr.
Molly Allen, in February 2018, based on Hughes' claims he was experiencing depression.
Dr. Allen did not review any of Hughes' medical records but conducted an in-person
interview. Dr. Allen concluded Hughes suffered from major depressive disorder and
believed it was connected to his work injury. However, Dr. Allen admitted Hughes
suffered from several other stressors at the time of the evaluation, including the recent
death of his son, and those factors could have caused his depression independently of the
work injury. Dr. Allen assigned a whole-body impairment rating of 10% but concluded
Hughes had not reached maximum medical improvement. She recommended counseling
3
and possibly medication. Dr. Allen believed with treatment the impairment rating could
be reduced or eliminated entirely.
At the City's request, Hughes was subsequently evaluated by Dr. Jarrod Steffan, a
clinical psychologist. Dr. Steffan reviewed Dr. Allen's report and Hughes' other medical
records and conducted an in-person interview with Hughes. Dr. Steffan concluded
Hughes "has been engaging in significant response bias through exaggeration and/or
fabrication of psychiatric symptoms and problems." Dr. Steffan did not believe that
Hughes suffered from depression and did not assign any impairment rating.
After the deadline for the close of evidence, the City filed a submission letter
asking the ALJ to find Hughes suffered a left shoulder injury that resulted in a scheduled
injury equating to a 13% permanent partial impairment. Hughes did not file a submission
letter with the ALJ. Following a hearing, the ALJ issued an award, finding Hughes had
13% impairment to his left shoulder but did not have any work-related impairment to his
right shoulder. The ALJ found Dr. Steffan's opinion that Hughes did not suffer from
work-related depression more credible than Dr. Allen's. Specifically, the ALJ found Dr.
Steffan's methodology and testing more reliable than Dr. Allen's. The ALJ concluded
even if Hughes suffered from depression, he had not met his burden to show it was
related to his work injury. The ALJ also rejected Dr. Barnett's opinion that Hughes was
likely unemployable, noting none of the other medical professionals shared his opinion.
Hughes appealed to the Board. He did not submit any written briefing to the
Board. In his application for review to the Board, Hughes simply asserted: "The
Administrative Law Judge erred in his determination of the nature and extent of the
Claimant's disability." The Board found Hughes had not proven his depression or right
shoulder injury was related to his left shoulder work injury. The Board affirmed the ALJ's
award of 13% impairment as a scheduled injury to Hughes' left shoulder.
4
ANALYSIS
Standard of Review
Injuries like Hughes' are controlled by the Kansas Workers Compensation Act,
K.S.A. 2019 Supp. 44-501 et seq. Our review is subject to the provisions of the Kansas
Judicial Review Act (KJRA), K.S.A. 77-601 et seq. K.S.A. 2019 Supp. 44-556(a). The
KJRA sets forth several grounds upon which an appellate court may grant relief. See
K.S.A. 77-621(c)(1)-(8). Relevant to the issues on appeal are K.S.A. 77-621(c)(4) ("the
agency has erroneously interpreted or applied the law") and K.S.A. 77-621(c)(7) ("the
agency action is based on a determination of fact, made or implied by the agency, that is
not supported to the appropriate standard of proof by evidence that is substantial when
viewed in light of the record as a whole, which includes the agency record for judicial
review, supplemented by any additional evidence received by the court under this act").
To the extent statutory interpretation is at issue, it presents a question of law over
which we have unlimited review. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432
P.3d 647 (2019). Our review over questions of fact in a workers compensation case is
limited to whether, when reviewing the record as a whole, the Board's findings of fact are
supported by substantial evidence, which is a question of law. Casco v. Armour Swift-
Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007). For purposes of the KJRA:
"'[I]n light of the record as a whole' means that the adequacy of the evidence in the record
before the court to support a particular finding of fact shall be judged in light of all the
relevant evidence in the record cited by any party that detracts from such finding as well
as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and
amendments thereto, cited by any party that supports such finding, including any
determinations of veracity by the presiding officer who personally observed the
demeanor of the witness and the agency's explanation of why the relevant evidence in the
record supports its material findings of fact. In reviewing the evidence in light of the
5
record as a whole, the court shall not reweigh the evidence or engage in de novo review."
K.S.A. 77-621(d).
When reviewing whether the Board's findings are supported by substantial
competent evidence,
"[w]e review the evidence in the light most favorable to the prevailing party and do not
reweigh competing evidence or assess credibility of witnesses. Thus, we will uphold the
Board's decision if it is supported by substantial evidence, even though there is other
evidence in the record supporting contrary findings." Saylor v. Westar Energy, Inc., 292
Kan. 610, 614, 256 P.3d 828 (2011).
Substantial competent evidence refers to legal and relevant evidence that a reasonable
person could accept as being adequate to support a conclusion. Geer v. Eby, 309 Kan.
182, 190, 432 P.3d 1001 (2019). "The burden of proving the invalidity of agency action is
on the party asserting invalidity." K.S.A. 77-621(a)(1).
Hughes' depression was not a compensable work-related condition.
Hughes argues the Board erred in finding his depression was not a compensable
psychological injury. However, Hughes does not clearly state which provision of K.S.A.
77-621(c) provides him the relief he seeks. It appears he is arguing the Board's decision is
contrary to the evidence and/or the Board misinterpreted or misapplied the applicable
legal standard. See K.S.A. 77-621(c)(4) and (7). Psychological injuries are sometimes
referred to as traumatic neurosis. See Gleason v. Samaritan Home, 260 Kan. 970, 977,
926 P.2d 1349 (1996). "'In order to establish a compensable claim for traumatic neurosis
under the Kansas Workers Compensation Act, K.S.A. 44-501 et seq., the claimant must
establish: (a) a work-related physical injury; (b) symptoms of the traumatic neurosis; and
(c) that the neurosis is directly traceable to the physical injury.' Love v. McDonald's
6
Restaurant, 13 Kan. App. 2d 397, Syl., 771 P.2d 557, rev. denied 245 Kan. 784 (1989)."
Gleason, 260 Kan. at 977.
Here, there is conflicting evidence on whether Hughes' depression resulted from a
work-related psychological injury. Dr. Allen diagnosed Hughes with major depressive
disorder, which she believed was directly traceable to his work injury and assigned a 10%
whole body impairment. However, Dr. Steffan concluded Hughes was not depressed and
found no psychological impairment. Hughes argues Dr. Steffan's opinion "is simply not
supported by the medical evidence." Specifically, he asserts Dr. Steffan's opinion was
only based on the fact Dr. Steffan believed Dr. Allen's testing results were invalid.
Without citing to the record, Hughes claims "the testing results from the test administered
by Dr. Molly Allen were interpreted to be valid and a diagnosis of Major Depressive
Disorder was given and linked directly to the work injury."
Hughes really wants us to reweigh the evidence and resolve the two competing
opinions. But we cannot reweigh evidence, resolve conflicting evidence, or make
credibility determinations. Saylor, 292 Kan. at 614. While Hughes claims the basis for
Dr. Steffan's opinion is incorrect, he provides no citation to the record in support of his
assertion. Accordingly, he has not shown "the evidence supporting the agency's decision
has been so undermined by cross-examination or other evidence that it is insufficient to
support the agency's conclusion." Herrera-Gallegos v. H&H Delivery Service, Inc., 42
Kan. App. 2d 360, 363, 212 P.3d 239 (2009). "[W]e will uphold the Board's decision if it
is supported by substantial evidence, even though there is other evidence in the record
supporting contrary findings." Saylor, 292 Kan. at 614. Here, Hughes has merely shown
there is other evidence in the record supporting contrary findings.
Hughes also fails to address the Board's discounting of Dr. Steffan's opinion.
Specifically, the Board stated: "Given his loss of employment, constant pain, a death of a
son, disappointment in the other son, lack of sleep, and 100-pound weight gain, it would
7
be reasonable to conclude Hughes has some degree of depression or mental health
deficit." The Board also acknowledged Dr. Steffan's criticism of Dr. Allen's opinion
based on a lack of objective findings but stated such objective findings "are not needed to
establish a claim of traumatic neurosis." Thus, the Board acknowledged and addressed
the problems Hughes complains of on appeal, contrary to his position.
The Board noted Dr. Allen was the only medical professional who diagnosed
Hughes with depression. The Board expressed concern Hughes did not seek opinions
from the other medical professionals who treated him. The Board also noted Hughes did
not consult with Dr. Allen until 29 months after his injury and only did so based on his
attorney's request for an evaluation. The Board additionally noted Hughes did not seek a
preliminary hearing to request court-ordered mental health treatment while the matter
was pending. The Board also noted Hughes' testimony before the ALJ did not reflect his
claims for depression and anxiety. The ALJ observed Hughes' live testimony, and the
Board concluded it could give deference to the ALJ's conclusion Hughes did not suffer a
mental health impairment.
In evaluating Dr. Steffan's opinion, the Board properly weighed the evidence and
resolved conflicting evidence. Hughes does not address the Board's concerns with the
timing and circumstances of his consultation with Dr. Allen, his failure to seek court-
ordered treatment, his failure to testify regarding his depression and anxiety before the
ALJ, or the ALJ's conclusions based on his observations of Hughes' testimony. Hughes
has not met his statutory burden to show error in the Board's decision. See K.S.A. 77-
621(a)(1).
8
The injury to Hughes' left shoulder does not result in permanent total disability.
Hughes next argues the Board erred in failing to find the injury to his left shoulder
resulted in a permanent total disability. Hughes fails to recognize K.S.A. 2019 Supp. 44-
510d.
K.S.A. 2019 Supp. 44-510d(b)(13) and (21) provide loss of use of a shoulder joint
is a statutorily scheduled injury. Specifically, K.S.A. 2019 Supp. 44-510d(c) provides:
"Whenever the employee is entitled to compensation for a specific injury under the
foregoing schedule, the same shall be exclusive of all other compensation . . . , and no
additional compensation shall be allowable or payable for any temporary or permanent,
partial or total disability."
In its order, the Board noted Hughes did not file a brief. Hughes' lack of briefing to
the Board makes it unclear whether he was claiming permanent total disability based on
the injury to his left shoulder alone before the ALJ. At the hearing before the ALJ,
Hughes claimed he suffered injuries to both shoulders as well as a psychological injury.
The City denied Hughes' right shoulder injury and depression were work-related but
admitted he suffered a work-related injury to his left shoulder. Hughes did not file a
submission letter with the ALJ to clarify his arguments. To the extent Hughes asserted he
suffered a permanent total disability before the ALJ, it appears he based this argument on
his claims of depression and bilateral shoulder injuries. We are unable to find in his
argument before the ALJ any clear indication Hughes asserted a permanent total
disability claim based on his left shoulder injury alone. We deem the issue waived or
abandoned based on Hughes' failure to raise it below. See Scheidt v. Teakwood Cabinet
& Fixture, Inc., 42 Kan. App. 2d 259, 264, 211 P.3d 175 (2009) ("An appellate court will
not consider an issue in a workers'-compensation appeal if it was not raised in the
administrative hearing."), rev. denied 290 Kan. 1095 (2010).
9
Even if the Board had considered Hughes' claim, his argument would still fail on
the merits. Hughes relies on Dr. Barnett's opinion he was "'probably unemployable.'"
Hughes argues the Board erred by disregarding undisputed evidence. It is not fully clear
under which provision of K.S.A. 77-621(c) Hughes is arguing he is entitled to relief,
because he does not cite a specific statutory provision in his brief. It appears to us he is
arguing the Board's decision was unsupported by substantial competent evidence. See
K.S.A. 77-621(c)(7).
Hughes' argument lacks persuasion because he fails to show he "has been rendered
completely and permanently incapable of engaging in any type of substantial and gainful
employment." See K.S.A. 2019 Supp. 44-510c(a)(2). Rather, the evidence shows Hughes
was unable to perform 12 of the 13 essential tasks required for his job with the City. Dr.
Joyce testified Hughes was unable to perform those job duties; however, Dr. Joyce
indicated the necessity for future medical procedures would depend on whether Hughes
worked at a sedentary job or resumed work in manual labor.
Although Hughes had lifting restrictions imposed as a result of his shoulder injury,
nothing in the record suggests Hughes would have been incapable of working at a
sedentary job. At best, the evidence suggests Hughes would not be able to get another job
performing manual labor. This does not mean he is or will be "completely and
permanently incapable of engaging in any type of substantial and gainful employment."
(Emphasis added.) K.S.A. 2019 Supp. 44-510c(a)(2). Moreover, Dr. Barnett indicated
Hughes' employability was undermined by the fact Hughes had not sought job service
assistance or vocational rehabilitation. Dr. Barnett stated Hughes was "not doing any of
the things you would normally expect somebody to do." And Dr. Barnett agreed Hughes
was essentially not engaged in a good-faith effort to find employment. Even if the Board
had decided the issue, Hughes would not be able to prove the injury to his left shoulder
amounted to a permanent total disability.
10
The evidence was substantial and, when viewed in a light most favorable to the
City, supports the Board's assignment of 13% permanent partial disability to Hughes' left
shoulder.
Affirmed.
11 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3847215/ | Argued April 17, 1933.
These three actions for damages, alleging negligence in a railroad-automobile collision, were tried as one in the court below and so treated on appeal. After trial and verdicts rendered for plaintiffs, the court in banc granted defendant's motion for judgment non obstante veredicto in each case. The action of the court in so directing must be sustained, as the record clearly discloses that Joseph Matesky, who was killed, and his son Solomon Matesky, who suffered injury, the subjects of the accident, were guilty of contributory negligence as a matter of law.
Joseph and Solomon Matesky were riding southward along the highway from Easton to Freemansburg, in Northampton County, in a Dodge sedan; Joseph Matesky driving, with his son, a boy of fifteen, on the front seat beside him. On a section of the highway called Freemansburg Avenue, in Palmer Township, the road crosses a branch of defendant's railroad at grade. At this point the railroad, a single track line, makes a wide curve, the highway crossing being near the apex of the arc; the automobile approached on the inside of the *Page 235
curve. For some distance along the left-hand (easterly) side of the road, obstructions consisting of buildings of various descriptions, storage tanks, and an earth bank along the highway interfere to some extent with a view of the railroad. The minor plaintiff testified his father stopped the car after they were past the buildings located 75 to 85 feet from the crossing, where they had an unobstructed view of the track for 180 feet, except for a small wagon trailer, a shack on wheels standing near the track. As they neared defendant's railway, the view was somewhat more extended. The minor plaintiff testified they continued to look, without again stopping, and neither saw nor heard the locomotive and tender backing slowly toward them on their left, until the moment it hit the automobile, which was then squarely in the middle of the track.
Regarding the evidence only from the angle of whether the occupants of the automobile, if they had listened with a reasonable degree of attention, could have heard the approaching engine, the testimony of plaintiffs' witnesses convicts them of carelessness in this regard. One of plaintiffs' witnesses, Mrs. Metz, who lived "a couple of hundred feet . . . . . . about half a block" from the railroad, testified that, although the locomotive was coming slowly and without a load, "it did not make an awful lot of noise," yet she could, from her house, hear it making a noise "like steam coming out." Other witnesses, including the trainmen, testified the whistle was blown for the crossing and bell rung. Even though the trainmen omitted to give signal by whistle and bell of their approach to the crossing, no reason appears why the noise made by the locomotive, heard by Mrs. Metz and other witnesses, could not also have been heard by the Mateskys, in the car, had they listened. The only testimony relating to the noise made by the engine of the car was that of Solomon Matesky who said the engine was running "quietly and smoothly." The record fails to show any noise in the neighborhood which might have drowned *Page 236
the sound of the locomotive. Moreover, Solomon Matesky testified that, after having stopped the car with the engine in high gear, they had attained a speed of 20 to 30 miles in covering the 75 feet between the stop and the track, which, as the court below points out in its opinion, rendered it impossible to listen with that degree of caution required of persons approaching a railroad, not only when they stop but until they are actually on the track. As said in Rhodes v. P. R. R., 298 Pa. 101, 105: "The unbending rule as to the duty of a traveler on a public highway, as he approaches a railroad crossing over it, is to stop, look and listen. He must listen as well as look, for conditions may be such that though, when he stops at a proper place and looks, he cannot see a coming train, he yet must hear it if he listens." Further it is not only the duty of a person about to cross a railroad to listen and look when he has stopped, but to continue to do so until he has safely passed beyond the tracks, "the duty of constantly and carefully listening being as imperative as that of constantly and carefully looking": Kolich v. Monongahela Ry. Co., 303 Pa. 463, 467. In the present case, the engine, running slowly, must have been quite close at the time the travelers attempted to cross the track, and whether or not it could have been seen, plaintiffs' own evidence shows that, with proper care, it could at least have been heard.
The judgment is affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3394769/ | Upon an indictment charging assault with intent to commit murder, the plaintiff in error, hereinafter referred to as the defendant, was convicted of assault with intent to commit murder in the second degree, and to the judgment of conviction has taken writ of error.
The assignments of error argued by defendant present two questions.
Defendant's first contention is that the trial court erred in overruling his motion in arrest of judgment, which motion was based upon the proposition that the indictment charged the commission of the offense upon an impossible date.
In the caption of the indictment appears the following language: "In the Circuit Court of the First Judicial Circuit of Florida, in and for Walton County. At the Winter Term thereof, in the year of Our Lord, one thousand, nine hundred 'and seven.' " Then follows the body of the indictment containing the charge against the defendant, with the allegation that the offense was committed "on the 10th day of January, in the year of Our Lord, one thousand, nine hundred and twenty-seven." On the back of the indictment appears the endorsement: "Presented in open Court by the Grand Jury, this 12 day of Jan'y A.D. 1927. M. T. Fountain, Clerk, Forsyth Caro, Acting State Attorney."
The defendant contends that the foregoing circumstances demonstrate the fact that the indictment purports to have been found twenty years before the offense therein charged is alleged to have been committed. *Page 270
The allegation of the time or date of the commission of an offense is one of substance and not of form. Where the date alleged is an impossible date, the indictment is bad and judgment thereon should be arrested. Dickson v. State, 20 Fla. 800; Straughter v. State, 83 Fla. 683, 92 So.2d Rep. 569. The rule just stated is undoubtedly applicable when the defectively alleged date involves a matter of substance. But where the defect complained of is a matter of form only, consisting of a clerical misprision found in the caption of the indictment, and it does not appear that such defect renders the indictment so vague, indistinct and indefinite as to mislead the accused or embarrass him in the preparation of his defense or expose him after his conviction or acquittal to substantial danger of a new prosecution for the same offense, the rule is otherwise.
Although an indictment is not susceptible of amendment as to matters of substance, many courts have held that it was proper to authorize the correction by amendment of a mere clerical error in an indictment when the matter is not one of substance, as for instance, the date of the term of court at which the indictment was found. See State v. Humphries, 33 La. Ann. 966; State v. Jones, 9 N.J. Law. Rep. 2; Sharp v. State, 6 Tex. App. 650[6 Tex.Crim. 650]; Murphy v. State, 35 S.W. Rep. 174. The rule is also recognized at common law, independently of statute. Dex. v. Darley, 4 East 174, 102 Eng. Reprint 796. See also the cases cited in the note to Dodge v. U.S., 7 A. L. R. 1510. In consonance with that rule, this Court has held in at least two cases that where the record proper shows that an information or indictment was filed in open court, during a term, the clerical error of misnaming in the caption of the indictment the particular term at which it was filed constitutes no ground for reversing a judgment of conviction thereon where the error does not result in rendering the indictment so vague, indistinct and indefinite as to mislead the accused and embarrass *Page 271
him in the preparation of his defense, or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense. Williams v. State, 43 Fla. 205, 27 So.2d Rep. 898; Sutton v. State, 84 Fla. 98, 92 South. Rep. 808. See also Sec. 6064, Rev. Gen. Stats. 1920. See also Burroughs v. State, 17 Fla. 643.
In the indictment before us we find three dates, one of which appears to be erroneously stated. Two of the dates, namely, the date of the offense as charged in the body of the indictment, and the date of the filing of the indictment, are consistent. The indictment was filed on January 12, 1927, charging an offense to have been committed on January 10, 1927. An indictment speaks as of the date of its filing, a date which in this instance is consistent with the date upon which the offense is alleged to have been committed. Under the circumstances, we think the date stated in the caption is clearly a clerical misprision. As the defect is one of form only, and as it does not appear to us that such defect could have reasonably misled or embarrassed the accused or that it exposes him to substantial danger of a new prosecution for the same offense, the same affords no grounds for reversal, even if the point can properly be raised by motion in arrest of judgment, as to which see: Mills v. State, 58 Fla. 74, 51 So.2d Rep. 278; Barineau v. State, 71 Fla. 598, 72 So.2d Rep. 179; Adams v. State, 32, 72 So.2d Rep. 473; Smith v. State,72 Fla. 449, 75 So.2d Rep. 354; Sumpter v. State, 62 Fla. 98, 57 So.2d Rep. 202.
The remaining contention of the defendant relates to the sufficiency of the evidence to sustain the verdict. We have read the evidence with care. The bill of exceptions discloses sufficient evidence from which the jury might have legally found or inferred all the essential elements of the offense of which the defendant was found guilty. There is nothing in the record indicating that the jury was influenced *Page 272
by consideration other than the evidence. Under such circumstances the order of the trial court refusing to grant a new trial for insufficiency of the evidence, will not be reversed, unless, after allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided or manifest as to clearly convince the Appellate Court that such verdict is wrong and unjust. Parrish v. State, 105 So.2d Rep. 130. The evidence in this case does not so impress us.
Affirmed.
ELLIS, C. J. AND BROWN, J., concur.
WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur in the opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3838446/ | Petition for rehearing denied January 29, 1931 ON PETITION FOR REHEARING (295 P. 461)
In Banc.
The petition for a rehearing is accompanied with two extensive briefs which display evidence of much industry facilitated by learning. Of the one brief the Attorney General is the author, while the other represents the labors of a group of attorneys whose interest in the attacked statute arose many months ago when those attorneys, together with others, made an effort to solve the tax problem of their state by suggesting some tax legislation. The skillful argument presented in these briefs tempts us strongly to set forth our views upon the many subjects discussed by the amplified arguments, but the fact that the biennial session of the legislature is now in progress persuades us that promptness in finally disposing of this suit will better serve the situation than a further recital of our views.
The Attorney General seems to remain convinced that chapter 429 of 1929 Session Laws, which is the act under attack, identifies itself as an income tax statute and that our decision fails to pay sufficient heed *Page 206
to these identifying earmarks. However, we notice that tax legislation of other states which presented even more evidence of being income tax statutes, have been held to be in reality property tax statutes. See, for instance, Cudahy Packing Co. v.Minn., 246 U.S. 451 (38 S. Ct. 373, 62 L. Ed. 827). In determining the nature of the tax the practical operation of the statute and its actual effect are very important circumstances: Quaker CityCab Co. v. Pa., 277 U.S. 389 (48 S. Ct. 553, 72 L. Ed. 927);Shaffer v. Carter, 252 U.S. 37 (64 L. Ed. 445, 40 S. Ct. 221), and Nicol v. Ames, 173 U.S. 510 (43 L. Ed. 786, 19 S. Ct. 522). The ultimate effect of chapter 429 is to take from intangibles a part of their value. It clips from a bond a part of the interest coupons as effectively as if the state performed the physical act. That piece of tax legislation operates upon its subject-matter — intangible property — more directly than the ad valorem tax on real property. It is these circumstances together with the others mentioned in our previous decision which have brought us to our conclusion that this statute imposes a tax upon property.
Concern is expressed in the briefs lest our previous decision was intended to overrule Standard Lmbr. Co. v. Pierce, 112 Or. 314
(228 P. 812). No such thought was in our minds. Quite to the contrary we referred to that decision with approval. We believe that an obvious distinction exists between the situation brought before this court in that suit and the circumstances disclosed by the instant case. The statute there in question was conceded by all to be an income tax statute and hence this court was not called upon to determine its nature. Moreover, that act levied a graduated rate upon the net income received by the taxpayer from his various sources of income. The present act imposes a tax of 5 per cent upon the gross *Page 207
income from a definite type of property only, that is intangibles. We believe that a very substantial difference exists between the nature of a tax which takes from interest, before it has become mingled with other items of income, a portion thereof, and another tax which lumps all income into one sum, and takes a part of it only after net income has been determined by the subtraction of many allowances. The former is the situation now before us; the latter was the tax legislation disposed of by Mr. Justice McCOURT'S decision in Standard Lmbr. Co. v. Pierce. A further distinction is also worthy of notice. The case just mentioned brought before the court only one act. In our present situation we are confronted with three; the two additional acts afford evidence of the nature of the third. One of the three is obviously an income tax statute and makes no pretensions to the contrary; another expressly states that it imposes "the excise tax" and defines those words as a levy upon the privilege of doing business in this state in corporate form. This evidence we feel is worthy of consideration in determining the nature of the remaining act. These various circumstances convince us that no conflict exists between Standard Lmbr. Co. v. Pierce and our previous decision in this case.
Counsel also evidence apprehension lest our quotation fromPortland v. Portland Ry. L. P. Co., 80 Or. 271 (156 P. 1058), which applied the sections of our state constitution applicable to taxation as they existed prior to the amendment of 1917, was intended as a construction of the amended sections. The excerpt taken by us from that case was employed only by way of illustration, and not for the purpose of construction. We felt safe in so using it in view of the fact that our *Page 208
decision nowhere attempted to construe the amended sections of our constitution. Our decision closes with the statement: "Chapter 429 is invalid, due to its conflict with the provisions of the 14th amendment to the federal constitution which guarantee the equal protection of the laws."
Next the suggestion is made that we should construe the three statutes, that is, chapters 427, 429 and 448 as three income tax statutes, and that having done so it will be apparent that no improper discrimination had been made between corporations and individuals. Until the petition for rehearing had been filed the Attorney General's brief referred to chapter 427 as a statute, which exacted a tax of corporations for the privilege of carrying on business in corporate form. We quote from his brief the following: "The amount of tax imposed by chapter 427, Laws of 1929, is computed upon the basis of net income, and is to be paid for the privilege of carrying on or doing business in this state. The procedure for determination of the net income upon which said taxes are computed is set forth in detail, and differs very materially from that applying to the tax imposed by chapter 429." Our study and analysis of that act brought us to the same conclusion. We are aware of no reason for changing that opinion. Being of that opinion it is evident that even if we should hold that chapter 429 is an income tax statute, still a discrimination would exist between the individual and the corporation. The former would be taxed at the rate of 5 per cent upon his gross income from intangibles and would also be subject to a further tax upon his net income from all other sources (levied by chapter 448) while the corporation would escape both of these taxes and be subject only to the excise tax. *Page 209
It seems to us that if the Legislature did not intend that these three acts should reach different subjects of taxation it would not have entitled them with different names and would have written them as one act. This circumstance while not conclusive is very significant.
It is also argued that an excise tax upon corporations may be imposed as a substitute for a personal property tax payable by individuals without violating constitutional provisions and that the tax imposed by chapter 427 should be regarded as a substitute for the one imposed by chapter 429. We are willing to subscribe to the proposition of law upon which this argument is founded but do not believe that the tax imposed by chapter 427 was intended as a substitute tax. We remain convinced that it was intended as a charge for the benefits conferred by the corporate franchise. Moreover, while chapter 427 exempts the corporation from the personal property tax upon the payment of the excise tax, chapter 429, contains no such provision. The validity of numerous tax statutes has been sustained which dealt with the individual in a manner different from the corporation, yet in all of those instances the reason for the different treatment was made apparent. In the present statute the discrimination operates to the disadvantage of the individual, but no reason therefor has come to our attention.
Various other matters are argued in the petition for a rehearing. They have all received careful consideration, but we find in them no sufficient reason for departing from our previously announced decision.
The petition is denied.
KELLY and CAMPBELL, JJ., did not participate. *Page 210 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3852800/ | Complainants sought to enjoin the Yale and Towne Manufacturing Company from operating its industrial plant in a manner alleged to be injurious to the health of complainants and their family and detrimental to the value of the complainants' residential property. The bill, as amended, averred that the defendant is the owner of a large factory across the street from complainants' residence; that the lot adjacent to the residence is used by the factory for the storage of heavy metal parts; that *Page 597
the operation of both the factory and storage lot causes an unreasonable amount of noise and vibration; that additional discomfort is caused by the drainage of surface water from the lot upon the property of the complainants. Moreover, it is alleged that the City Ordinance zoning as an industrial area the block in which complainants have their residence, is arbitrary, discriminatory and unconstitutional. The chancellor, after a hearing, dismissed the bill and complainants now appeal.
The complaint concerning the operation of the factory across the street from complainants' residence was abandoned. Objection is confined to the one-story corrugated warehouse on the adjacent lot. It is contended that the structure is being operated in such a manner as to constitute a restrainable nuisance.
The zoning map discloses that the block in which the complainants' residence is located is classified as "industrial", and adjoins a very large industrial area. Any residential uses near the complainants' property are mere "spot" uses, and constitute residential islands in a sea of industrial uses. The erection in an industrial area of a corrugated one-story warehouse for storing large metal castings does not constitute a nuisance per se. See: Essick v. Shillam,347 Pa. 373, and the cases therein cited. Moreover, the finding of the chancellor that there was nothing in the construction of the warehouse, or in the necessary consequences of its normal operation, to create a nuisance in fact is fully supported by the evidence. The chancellor not only heard the evidence but, accompanied by counsel for both parties, visited the complainants' home and personally observed the activities carried on by the defendant. He found as a fact that the "noise now emanating from the respondent's warehouse is only that which is incident to the moving of castings and other materials stored there, said activity being necessary for the successful operation of the respondent's manufacturing business in that *Page 598
neighborhood." See Hannum v. Gruber, 346 Pa. 417, 31 A.2d 99. No one is entitled to absolute quiet in the enjoyment of his property; he may only insist on that degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells. See Duty v. Vacuum Oil Co.,317 Pa. 15, 175 A. 522. Annoyance or inconvenience which complainants sustained by reason of the noise or vibration must be regarded as an ordinary incident of residence in the heart of an industrial area, and is damnum absque injuria. See Dutyv. Vacuum Oil Co., supra; Ebur v. Alloy Metal Wire Co., 304 Pa. 177,155 A. 280.
Complainants have alleged that it was arbitrary, unreasonable and unconstitutional to classify the block in which their property is located as "industrial". Zoning acts of the legislature, and the ordinances passed under them, have been held constitutional in numerous cases. It is true that the effect of certain parts of the zoning ordinances, as they operate on specific property or pieces of land, have been held to be confiscatory of property rights where there has been an unreasonable exercise of power. Such exercise has been declared unconstitutional. White's Appeal, 287 Pa. 259, 134 A. 409;Taylor v. Moore, 303 Pa. 469, 154 A. 799. Where, however, the party alleges that a zoning classification is arbitrary and unreasonable, the remedy, provided by the Zoning Act of May 6, 1929, P. L. 1551, 53 PS section 3822 et seq., is an appeal from the decision of the Zoning Board of Adjustment to a court of record. Indeed, when the complainants' amended bill was filed, such an appeal was still pending in Court of Common Pleas No. 6. Where a statutory remedy is provided, as in this case, the directions of the statute must be strictly pursued. The statutory remedy or procedure is exclusive, Taylor v. Moore, supra; White v. Old York Road Country Club, 318 Pa. 346,178 A. 3. The complainants may not seek a change in the classification of their area in this suit.
Decree affirmed at the cost of the appellants. *Page 599 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3847123/ | Argued October 7, 1946.
Plaintiff, while walking one night in February, 1945, on what she characterizes as a "sidewalk" of Mercer Street in the Borough of Turtle Creek, stepped into a hole and suffered injuries for which she obtained a verdict against the Borough, with recovery by the latter in turn against the corporate abutting property owner which had been brought in as additional defendant. But, unfortunately for plaintiff, she failed to establish any duty owed to her by either the Borough or the property owner and because of that fundamental defect in her action the judgments must be reversed.
The Borough of Turtle Creek paved and curbed the cartway of Mercer Street in 1929, but neither then nor at any subsequent time did it make any provision for laying out, grading or paving sidewalks. At various times the owners of residences or other buildings abutting on the street voluntarily installed and cemented walks in the fronts of their properties, but, save in a few instances, this was not done by the owners of vacant lots. Plaintiff, proceeding in semi-darkness along a walk *Page 124
thus paved, came to the unbuilt-upon property of the additional defendant, Turtle Creek Land and Improvement Company; here the paving abruptly stopped and there was no continuing pathway of any kind. As her foot crossed the property-line it descended into a hole which extended for a distance of about a foot and a half to two feet from the curb to a large solid rock which protruded out from the deep interior of the lot to within that distance of the cartway. This so-called "hole" was in reality a depression of about eight to ten inches in the level of the property below that of the sidewalk on the property adjoining; if not part of the natural contour of the ground it had at least been in existence for a great number of years.
Assuming, for present purposes, that plaintiff was not guilty of contributory negligence, the vital question in the case is whether the Borough was legally responsible for the condition of the place where she fell. It is, of course, the duty of a municipality to maintain its sidewalks in a reasonably safe condition or, rather, when it has reasonable notice express or implied of a defective condition, to see that the property owner performs his duty to make the necessary repairs, the liability of the latter being primary and absolute, that of the municipality secondary and supplemental.1 But no obligation rests upon it to construct, or to order property owners to construct, any sidewalks at all. The General Borough Act of May 4, 1927, P. L. 519, sections 1801, 1802 and 1805, provides that boroughs may ordain and lay out sidewalks, establish their grades, fix their width, and require their grading, paving and repairing by the owners of lots fronting thereon. But these are grants of powers, *Page 125
not the imposition of mandatory duties, and a borough cannot be made liable for damages resulting from the non-exercise of its discretionary powers: McDade v. Chester City, 117 Pa. 414, 423,424, 12 A. 421, 422; Miller v. City of Bradford, 186 Pa. 164,165, 166, 40 A. 409, 410. Although the councilmen of the Borough of Turtle Creek were frequently importuned by citizens to establish a sidewalk at the point where this accident occurred, they were under no legal obligation to take such action and their failure to do so did not impose responsibility upon the Borough for any consequences resulting therefrom. They were not required, merely because they had paved the highway for the benefit of vehicular traffic, to create sidewalks for the convenience of pedestrians. It is true that in order to establish the liability of a borough for injuries caused by defects in a sidewalk it is not necessary to prove that the borough council had taken official action by ordinance or otherwise to ordain the sidewalk, to construct or to order its construction, or to accept it if dedicated by the property owners; a recognition of the sidewalk as a public highway may be indicated in other ways, as for example, by the borough authorities making repairs to it, or by their tacit acquiescence in a general and long-continued use of it by the public even though for less than the period required to establish a prescriptive right.2 But at least some such act of adoption on the part of the municipality *Page 126
must be shown before it can be held liable for failure to keep the sidewalk in repair.3
In the present record there is no evidence of any use by the general public of a passage over the lot where plaintiff's accident occurred. As far as the testimony discloses she may have been the first and only person who ever attempted to pass through the very narrow space between the curb and the rock; there is nothing to indicate that there was at that point even an unimproved footpath; indeed the rock itself showed that no such way had ever been opened to the public for travel. Nor did the Borough authorities at any time perform any act, take any measure, or exercise any control, which would serve to constitute an acceptance of the place of the accident as a public thoroughfare.
Since it was not shown that the Borough owed any legal duty to plaintiff under the circumstances, and since the jury should therefore have been directed to return a verdict in favor of defendant, it automatically follows that the latter's judgment against the additional defendant must also be reversed, for the latter was brought upon the record only on the ground of liability over. Even apart, however, from any question of pleadings, it is clear that the evidence did not establish a right of recovery by plaintiff against the property owner any more than against the Borough. It is true that, where persons are permitted to use a path over another's property for some length of time, and, although with full knowledge of such use, no objection thereto is made by the owner, the latter owes to such persons the duty of ordinary care, and is bound, as to such licensees, to see that there are no dangerous pitfalls, or, if they exist, to *Page 127
give reasonable notice or warning in order to avoid injuring those in the habit of using the way: Kay v. Pennsylvania R. R.Co., 65 Pa. 269, 273; Fortunato v. Shenango Limestone Co.,278 Pa. 499, 503, 123 A. 482, 483; John v. Reick-McJunkin DairyCo., 281 Pa. 543, 546, 547, 127 A. 143, 144; cf. DiMarco v.Pennsylvania R. R. Co., 321 Pa. 568, 183 A. 780. But, as already pointed out, there is no evidence in the present case that the property owner had knowledge of any use of its lot as a passageway, or even that such a use existed, nor did the owner ever, either expressly or impliedly, dedicate any portion of its property as a sidewalk. From all that appears, therefore, plaintiff was, from a legal standpoint, in the position, not of a licensee, but of a trespasser, and, since the property owner was not aware of her presence, it owed her no duty with respect to the condition of the land.
Plaintiff asserts that the question concerning the status of the place of the accident as a public sidewalk was not raised in the court below. As far as pleadings are concerned, defendant, as a municipality, was not required to file an affidavit of defense setting out its proposed defenses. The record shows remarks by the court during the progress of the trial, subsequently repeated in its charge to the jury, which would seem to indicate that the liability of the Borough with respect to the sidewalk was in fact discussed. But, be that as it may, both defendants presented points for binding instructions, and their subsequent motions for judgment n. o. v. comprehended any defense apparent on the record: seeLiquid Carbonic Company v. Truby, 40 Pa. Super. 634, 637,638. This is especially true where, as here, the necessity of proving a legal duty owed by defendants to plaintiff was so basic and fundamental that this court would, of its own initiative, be obliged to take cognizance of it even had it not been argued by defendants on this appeal.
Judgments reversed and here entered for defendant and additional defendant respectively.
1 Mintzer v. Hogg, 192 Pa. 137, 144, 145, 43 A. 465, 466;Gillard v. City of Chester, 212 Pa. 338, 61 A. 929; McLaughlinv. Kelly, 230 Pa. 251, 256, 79 A. 552, 554; Vinnacombe v.Philadelphia and American Stores Co., 297 Pa. 564, 147 A. 826;Pittsburgh v. Reed, 74 Pa. Super. 444.
2 Commonwealth v. Moorehead, 118 Pa. 344, 353, 12 A. 424, 426;Steel v. Huntingdon Borough, 191 Pa. 627, 630, 43 A. 398, 399;Ackerman v. City of Williamsport, 227 Pa. 591, 594, 76 A. 421;Kniss v. Borough of Duquesne, 255 Pa. 417, 100 A. 132; Felt v.West Homestead Borough, 260 Pa. 11, 13, 14, 103 A. 508, 509;Milford Borough v. Burnett, 288 Pa. 434, 438, 136 A. 669, 671;Philadelphia Electric Co. v. Philadelphia, 303 Pa. 422, 432,154 A. 492, 496; Gass v. City of Pittsburgh, 91 Pa. Super. 290; O'Brien v. Jeannette Borough, 128 Pa. Super. 443,448, 449, 194 A. 314, 316; Wensel v. North VersaillesTownship, 136 Pa. Super. 485, 491, 492, 7 A.2d 590, 593.
3 Downing v. Coatesville Borough, 214 Pa. 291, 63 A. 696;Johnstin v. McKeesport, 216 Pa. 633, 638, 65 A. 1114, 1116;Grant v. Dickson City Borough, 235 Pa. 536, 84 A. 454;Philadelphia Electric Co. v. Philadelphia, 303 Pa. 422, 432,154 A. 492, 496; Cunius v. Edwardsville Borough, 63 Pa. Super. 118; Wahl v. McKees Rocks Borough, 64 Pa. Super. 155. *Page 128 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523567/ | PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 10-1875/2400
_____________
JUNIOR NATHANIEL RICKETTS
a/k/a Junior Mohammed Ricketts
a/k/a Paul Milton Miles,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF
AMERICA,
Respondent
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A027-024-434)
Immigration Judge: Hon. Walter A. Durling
_______________
Argued
February 6, 2020
Before: JORDAN, GREENAWAY, JR., and FISHER,
Circuit Judges
(Filed: April 8, 2020)
_______________
Noah M. Weiss [ARGUED]
Williams & Connolly
725 12th Street, NW
Washington, DC 20005
Counsel for Petitioner
John M. McAdams, Jr.
Benjamin M. Moss [ARGUED]
Erik R. Quick
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Junior Ricketts petitions for review of two decisions by
the Board of Immigration Appeals (“BIA”), denials of a
motion to reopen and a motion to reconsider. He has told
various adjudicatory bodies for nearly 30 years that he is an
American citizen. Last year, the United States Court of
Appeals for the Second Circuit affirmed a district court finding
that he is not. Since his citizenship claim is the only basis on
which he says he is entitled to relief from the order of removal,
2
and since he cannot now rely on that claim, we will deny the
petition for review.
I. Background
Ricketts, whom the government has always maintained
is a citizen of Jamaica, has been convicted of several felonies;
hence his immigration difficulties. On December 17, 1992, he
was charged, among other crimes, with embezzlement and
transporting a minor in interstate or foreign commerce with the
intent to engage in sexual activity. He pled guilty to all charges
and, as an additional consequence of his criminal convictions,
was deemed subject to removal.
In proceedings before an Immigration Judge (“IJ”),
however, Ricketts argued that he was actually a U.S. citizen.
The IJ rejected that claim, and the BIA dismissed his appeal.
He petitioned our court for review and, at the same time, sought
a stay of removal. While the petition and the motion for a stay
were pending, Ricketts was removed to Jamaica, and his
petition and motion were “procedurally terminated without
judicial action.” Clerk Order, Ricketts v. Attorney General,
No. 00-3270 (3d Cir. Jul. 31, 2000).
Continuing to insist that he is an American, Ricketts
persuaded the Jamaican Constabulary Force to investigate his
citizenship status. Officials there agreed with him and,
accordingly, he was sent back to the United States in February
2003, approximately three years after he was removed.
In 2005, while Ricketts was in state custody for a
criminal theft conviction, the Department of Homeland
Security learned of his return and reinstated his order of
3
removal. Four years later, he received a copy of the Jamaican
report stating that he is an American citizen and not a Jamaican
citizen. With that evidence in hand, he filed with the BIA
motions to reopen his removal proceedings and to reconsider
the existing order of removal – the motions at issue now. 1 The
BIA dismissed both motions, asserting that, because of a
regulatory provision known as the post-departure bar, 8 C.F.R.
1
In 2006, Ricketts had filed a petition for review of the
reinstated order of removal with this Court. We dismissed the
case because “our duty to dismiss untimely claims is
mandatory where the Attorney General objects on the basis of
untimeliness.” Order, Ricketts v. Attorney General, No. 06-
4612 (3d Cir. Apr. 16, 2007). That year Ricketts also filed two
motions to reopen with the BIA, asking the BIA to exercise its
sua sponte authority to reconsider his initial order of removal.
The BIA denied both of those motions as untimely. Ricketts
asked the BIA to reissue its denial of those motions, which it
declined to do. Those earlier motions are not before us.
4
§ 1003.2(d), it lacked jurisdiction. 2 Ricketts again petitioned
for review. 3
At the parties’ request, we stayed this case several
times. 4 Then, at their joint request, we transferred the case to
2
The “post-departure bar” is found in 8 C.F.R.
1003.2(d), and states as follows:
A motion to reopen or a motion to reconsider
shall not be made by or on behalf of a person who
is the subject of exclusion, deportation, or
removal proceedings subsequent to his or her
departure from the United States. Any departure
from the United States, including the deportation
or removal of a person who is the subject of
exclusion, deportation, or removal proceedings,
occurring after the filing of a motion to reopen or
a motion to reconsider, shall constitute a
withdrawal of such motion.
3
To be precise, Ricketts filed two petitions for review,
one for his motion to reopen and one for his motion to
reconsider. We consolidated the two cases and, for ease of
reference, speak of the petitions in the singular.
4
From June 2011 to May 2014, this case was stayed
pending Ricketts’s criminal proceedings in the United States
District Court for the Western District of New York under 18
U.S.C. § 911 for “falsely and willfully represent[ing] himself
to be a citizen of the United States[,]” among other crimes.
(Joint Motion to Hold Proceedings in Abeyance dated Jun. 10,
2011, Ricketts v. Attorney Gen., No. 10-1875.) That case was
5
the United States District Court for the Eastern District of New
York (“EDNY”), the district where Ricketts resides, to resolve
disputed facts concerning his claim of American citizenship,
pursuant to 8 U.S.C. § 1252(b)(5)(B). (Joint Motion dated
1/13/2015, Ricketts v. Attorney Gen., No. 10-1875.) We held
the petition for review in abeyance pending the resolution of
the citizenship question, including any appeal of that decision.
The whole basis of Ricketts’s citizenship claim is his
assertion that he was born in Brooklyn on August 31, 1964 as
Paul Milton Miles. He says he changed his name for religious
reasons. To substantiate his claim that he is Paul Milton Miles,
he submitted various official records, including a birth
certificate in that name, with the name crossed out and “Junior
Mohammed Ricketts” written above it. The EDNY found that
Ricketts’s evidence was not credible and that the government’s
evidence proving Ricketts is not a U.S. citizen was persuasive. 5
resolved when he pled guilty to witness tampering. The other
charges were dismissed.
5
That is putting it mildly. Among other things, the
Court concluded that “only one person named Paul Milton
Miles was born in Brooklyn New York” from 1955 to 1970,
and that person is the son of Lizzie Mae Page Miles and Robert
Miles, Jr. Ricketts v. Lynch, No. 15-cv-00329, 2016 WL
3676419, at*2 (E.D.N.Y. Jul. 7, 2016). At deposition, Lizzie
Mae Page Miles identified her son, Paul Milton Miles, who
“was physically present in the room” and who is not Junior
Ricketts. Id. at *3. For a more complete recitation of the
evidence Ricketts and the government presented regarding
Ricketts’s citizenship claims, see id. at *2-*5.
6
Ricketts v. Lynch, No. 15-cv-00329, 2016 WL 3676419
(E.D.N.Y. Jul. 7, 2016). The Second Circuit affirmed that
decision, and subsequently denied Ricketts’s motion to
reconsider the affirmance. Ricketts v. Barr, No. 18-2244, 2019
WL 938996 (2d Cir. Feb. 26, 2019); Ricketts v. Barr, No. 18-
2244, 2019 WL 1858373 (2d Cir. Apr. 25, 2019).
Next, we lifted the stay in this case and ordered
supplemental briefing to “address[ ] the validity of the
departure bar regulation and the impact, if any, of the Second
Circuit’s decision” on these proceedings. (Order dated
8/28/19, Ricketts v. Attorney Gen., 10-1875.) In supplemental
briefing, Ricketts argued that we must remand to the BIA
because it improperly contracted its jurisdiction when, in
applying the post-departure bar, it dismissed his appeal for lack
of jurisdiction. The government argued in response that
remand would be futile, since the BIA cannot grant Ricketts
relief from removal on the ground that he is a citizen, as that
claim has been foreclosed by the rulings of the EDNY and
Second Circuit. We agree with the government that remand
would be futile, so we will focus solely on that and not address
whether the BIA erred in stating that the post-departure bar
deprived it of jurisdiction.
II. Discussion
Even if the BIA erred when it characterized the post-
departure bar as a restriction of its jurisdiction, 6 we may forgo
6
At oral argument, the government emphasized that the
BIA decisions at issue here are some ten years old, and it
intimated that the BIA has ended the practice of dismissing for
lack of jurisdiction under the post-departure bar, perhaps under
7
remanding this case if a remand would be futile. Under S.E.C.
v. Chenery Corp., 318 U.S. 80 (1943), a court will generally
dispose of an administrative law case only on the grounds cited
by the pertinent agency, but remand for further agency action
is unnecessary when “only one disposition is possible as a
matter of law.” George Hyman Const. Co. v. Brooks, 963 F.2d
1532, 1539 (D.C. Cir. 1992). As the Supreme Court has noted,
Chenery “does not require that we convert judicial review of
agency action into a ping-pong game.” NLRB v. Wyman-
Gordon Co., 394 U.S. 759, 766 n.6 (1969). When only one
outcome is possible, “[i]t would be meaningless to remand.”
Id. Such circumstances are sometimes described as
constituting the “remand futility” exception to the general rule
laid down in Chenery.
Ricketts tries to resist application of the remand futility
exception by arguing first, that we have not previously held
that the exception applies in immigration proceedings, and
second, that remand futility is rare and the exception should not
be applied when jurisdiction is in question.
the weight of circuit court decisions saying it could not
properly do so. See Santana v. Holder, 731 F.3d 50 (1st Cir.
2013) (holding that the “post-departure bar cannot be used to
abrogate a noncitizen’s statutory right to file a motion to
reopen,” id. at 61, and collecting cases from six courts of
appeals holding the same and three courts of appeals striking
“down the regulation as an impermissible contraction of the
agency’s jurisdiction[.]” Id. at 54-55.). Since it is a most
serious question whether the BIA may restrict its jurisdiction,
as it did here, we hope that is the case.
8
It is true that we have not expressly held that the remand
futility exception applies in the immigration context, but we
have suggested as much. For example, in Nbaye v. Attorney
General, 665 F.3d 57 (3d Cir. 2011), the government argued
that remand would be futile because the alien could not avoid
removal. We rejected that argument because there was in that
case at least one scenario in which “remand surely would not
have been futile[,]” but we did not dispute that the remand
futility exception could have application in the right
circumstances. Id. at 59-60. The government also cites
immigration cases from outside our Circuit in which courts
have explicitly recognized the remand futility exception. See
Gonzales-Veliz v. Barr, 938 F.3d 219, 235 (5th Cir. 2019)
(holding in the alternative that remand would be futile because
the alien could not prevail under the legal standard); Shou Wei
Jin v. Holder, 572 F.3d 392, 396 (7th Cir. 2009) (“Although
the IJ’s legal error gives us pause-and a different record may
well have justified a remand-a remand would be futile in this
case because [the noncitizen] presented no evidence [to
support his claims].”).
This case gives us an opportunity to say what others
have said and we have only suggested before: namely, that
when remand would be futile – meaning the BIA on remand
would be unable as a matter of law to grant the relief sought –
we may deny a petition for review, without regard to the
various issues that might otherwise be in play in the case. That
indeed is our holding today.
The only argument Ricketts raised in his motions to
reopen and to reconsider is that he was a United States citizen
and therefore not removable. The Second Circuit, based on the
thoughtful work done by the EDNY, has conclusively
9
determined that Ricketts is not a United States citizen. The
BIA is bound by that decision as a matter of law. See Baez-
Sanchez v. Barr, 947 F.3d 1033, 1036 (7th Cir. 2020) (“Once
[a United States Court of Appeals] reach[es] a conclusion, both
the Constitution and the statute require[ ] the [BIA] to
implement it.”). Even if it were not, both issue preclusion and
claim preclusion would apply here, with the same result. See
Duvall v. Attorney Gen., 436 F.3d 382, 391 (3d Cir. 2006)
(“Collateral estoppel [, or issue preclusion,] generally applies
when the same issue was previously litigated by the same
parties and was actually decided by a tribunal of competent
jurisdiction.”); Duhaney v. Attorney Gen., 621 F.3d 340, 347
(3d Cir. 2010) (“Res judicata, also known as claim preclusion,
bars a party from initiating a second suit against the same
adversary based on the same ‘cause of action’ as the first
suit.”). Since the BIA cannot grant Ricketts relief from
removal on the basis that he is a citizen, remand would be
futile.
III. Conclusion
For the foregoing reasons, we will deny Ricketts’s
petition for review.
10 | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1049564/ | IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 9, 2010
DARLENE MANIS BROWN v. ALLAN CRAIG VAUGHN
Appeal from the Circuit Court for Hamilton County
No. 09D2448 L. Marie Williams, Judge
No. E2010-00373-COA-R3-CV - FILED SEPTEMBER 28, 2010
Darlene Manis Brown, a Tennessee resident, filed a petition in the trial court seeking a
protective order against her former boyfriend, Allan Craig Vaughn, a resident of the state of
Georgia. Based upon her petition, the trial court issued an ex parte order of protection.
Later, following an evidentiary hearing, the protective order was extended for one year.
Vaughn appeals. He challenges the sufficiency of the evidence supporting the order of
protection and claims the trial court lacked jurisdiction of this dispute. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Joseph E. Willard, Jr. and Ann Willard Fiddler, Rossville, Georgia, for the appellant, Allan
Craig Vaughn.
Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Darlene Manis Brown.
OPINION
I.
The parties were romantically involved from November 2008 to September 2009.
They lived together at Vaughn’s home in Georgia during some of this time. On September
10, 2009, the petitioner and her former husband, Robert “Butch” Brown, who were divorced
earlier in the year, were remarried. Nevertheless, the petitioner and Vaughn continued to see
each other. Near the end of September 2009, their relationship ended and the petitioner
returned home to Tennessee to live with her husband. Some three months later, on December
28, 2009, she filed her petition based upon allegations that (1) Vaughn had abused her, (2)
he was stalking her, and (3) she was afraid of him.1 The trial court issued an ex parte order
of protection. A second ex parte order was issued on January 12, 2010.2 A bench trial on
the petition was held on January 25-26, 2010. In its ruling, the court stated:
[T]he Court finds that clearly there’s an inappropriate and
disruptive relationship between Mrs. Brown and Mr. Vaughn,
participated in by both parties. The Court finds that there are
credibility issues with all witnesses who have testified in this
case, with the exception of Mr. Vaughn’s ex-wife and daughter
and [Gail Jenkins,] the rebuttal witness.
The Court finds that there have been efforts by all parties to
malign and destroy any lasting reputation of the other, that these
efforts have been ongoing and are representative of the lifestyle
of these parties, and typical of the conduct they have engaged in
with and towards each other throughout the relationships. The
Court finds that Mrs. Brown and Mr. Vaughn both have engaged
in harassing of each other in Tennessee and in Georgia.
Subject matter jurisdiction is challenged. The Court finds that
Mr. Vaughn has committed acts which bring him within the
state of Tennessee’s jurisdiction. The Court finds there have
been communications that are inappropriate, harassing and
threatening of Ms. Brown towards Mr. Vaughn, and Mr.
Vaughn towards . . . Ms. Brown in both states.
* * *
The Court makes a finding within the Tennessee statutes of
physical abuse; Mr. Vaughn towards Ms. Brown, both in
Mexico and in Destin. The Court further finds that there was
1
The petitioner’s husband also sought an order of protection against Vaughn, however, the trial court
denied his petition at the conclusion of the hearing and he did not appeal.
2
In her brief, the petitioner states that the “first hearing date passed without service upon [Vaughn],”
and that Vaughn was later served with the petition and the “second” ex parte order of protection. In this
appeal, Vaughn does not challenge the method or manner of service.
-2-
conduct of Mr. Vaughn in the state of Tennessee that . . . placed
Ms. Brown in continuing fear of physical harm. On that basis,
the Court will enter an order of protection in favor of Darlene
Brown against Mr. Vaughn.
The order prohibited Vaughn from contacting or communicating with the petitioner by any
means, directly or indirectly, or from coming about her residence or place of employment.
Further, Vaughn was ordered to get rid of all firearms while the protective order is in effect.
Vaughn filed a timely notice of appeal.
II.
Vaughn presents two issues for our review:
1. Whether the trial court had jurisdiction over this matter.
2. Whether the allegations in support of the petition were
proven by a preponderance of the evidence.
As an additional issue, the petitioner submits that she is entitled to an award of her
reasonable attorney’s fees and costs in defending this appeal.
III.
Our review of the trial court’s findings of fact is de novo upon the record of the
proceedings below, accompanied by a presumption of correctness, a presumption we must
honor unless the preponderance of the evidence is against those findings. Tenn. R. App. P.
13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995); Union Carbide Corp.
v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The determination of jurisdiction – subject
matter jurisdiction and in personam jurisdiction – is a question of law. Southwest
Williamson County Cmty. Ass’n v. Saltsman, 66 S.W.3d 872, 876 (Tenn.Ct.App.2001);
Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999). Our review as to the trial
court’s conclusions of law is de novo with no presumption of correctness. Kendrick v.
Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002).
IV.
We begin with the jurisdictional challenge. Although Vaughn imprecisely presents
a general attack against the trial court’s jurisdiction “of the subject matter and the person,”
-3-
his specific claim is that he could not properly be pursued in the trial court based upon
conduct that, according to him, occurred entirely outside the state of Tennessee.
Courts may not adjudicate a civil claim without having jurisdiction over both the
subject matter and the parties. Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994). Subject
matter jurisdiction concerns the authority of a particular court to hear a particular
controversy. Meighan v. U.S. Sprint Communications, 924 S.W.2d 632, 639 (Tenn. 1996).
It “relates to the nature of the cause of action and the relief sought,” see Landers, 872
S.W.2d at 675, and is generally defined by the constitution or statute and conferred by the
authority that organizes the courts. See Computer Shoppe, Inc. v. State, 780 S.W.2d 729,
734 (Tenn. Ct. App. 1989); Turpin v. Conner Bros. Excavating Co., Inc., 761 S.W.2d 296
(Tenn. 1988). Although Vaughn makes reference to a lack of subject matter jurisdiction, he
conceded that the trial court was authorized to hear this action involving an order of
protection. See Tenn. Code Ann. § 36-3-601(3)(C) (providing that an order of protection
may be sought in either a “court of record with jurisdiction over domestic relation matters
or the general sessions court of the county in which the petitioner resides.”); and Tenn. Code
Ann. 16-10-101 (providing that the circuit court is a court of general jurisdiction, “and the
judges thereof shall administer right and justice according to law in all cases where the
jurisdiction is not conferred upon another tribunal.”). We conclude that Vaughn’s argument
– that an alleged lack of any contact between the parties in Tennessee left the trial court
without power over him – is properly viewed as a challenge to the trial court’s ability to
exercise in personam jurisdiction rather than subject matter jurisdiction.
In personam jurisdiction, by contrast to subject matter jurisdiction, relates to the
ability to bring the parties before the court. “Jurisdiction of the parties is premised on their
being properly subject to service of process, i.e., to being haled into the given court.” Young
v. Kittrell, 833 S.W.2d 505, 507 (Tenn. Ct. App. 1992). Unlike subject matter jurisdiction,
in personam jurisdiction may be waived by consent or by failure to object. Landers, 872
S.W.2d at 675.
The United States Supreme Court has authoritatively opined that the “existence of
personal jurisdiction . . . depends upon the presence of reasonable notice to the defendant that
an action has been brought, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313-314
(1950), and a sufficient connection between the defendant and the forum State to make it fair
to require defense of the action in the forum. Milliken v. Meyer, 311 U.S. 457, 463-464
(1940).” Kulko v. Superior Court of Cal., 436 U.S. 84, 91, 98 S. Ct. 1690 (1978). As we
have noted, Vaughn makes no allegation that he was not adequately informed of the filing
of the petition, issuance of the ex parte order, and the scheduled hearing. Accordingly, we
focus on Vaughn’s connections with this state and whether they permitted the trial court to
properly invoke jurisdiction over him.
-4-
“Personal jurisdiction of non-resident defendants may be obtained by service of
process under the Tennessee Long Arm Statute, (Tenn. Code Ann. § 20-2-214 (a)3 ) if, and
only if, the non-resident defendant has such minimum contacts with this state that
maintenance of the suit does not offend ‘traditional notions of fair play and substantial
justice.’ ” Landers, 872 S.W.2d at 675 (quoting International Shoe Co. v. Washington, 326
U.S. 310, 316, 66 S. Ct. 154, 158 (1945); J.I. Case Corn. v. Williams, 832 S.W.2d 530, 531
(Tenn. 1992)). Accordingly, to determine whether personal jurisdiction of Vaughn was
established, we must consider first, whether our long arm statute authorizes service under its
terms in this case, and whether the requirements of due process were satisfied.
3
The statute in part provides:
(a) Persons who are nonresidents of Tennessee and residents of Tennessee
who are outside the state and cannot be personally served with process
within the state are subject to the jurisdiction of the courts of this state as
to any action or claim for relief arising from:
(1) The transaction of any business within the state;
(2) Any tortious act or omission within this state;
(3) The ownership or possession of any interest in property located within
this state;
(4) Entering into any contract of insurance, indemnity, or guaranty covering
any person, property, or risk located within this state at the time of
contracting;
(5) Entering into a contract for services to be rendered or for materials to
be furnished in this state;
(6) Any basis not inconsistent with the constitution of this state or of the
United States;
(7) Any action of divorce, annulment or separate maintenance where the
parties lived in the marital relationship within this state, notwithstanding
one party's subsequent departure from this state, as to all obligations arising
for alimony, custody, child support or marital dissolution agreement, if the
other party to the marital relationship continues to reside in this state.
-5-
The long-arm statute provides that in personam jurisdiction may be asserted over a
non-resident of this state on “any basis not inconsistent with the constitution of this state or
of the United States.” See Tenn. Code Ann. § 20-2-214(a)(6). “Subsection (6) changed the
long-arm statute from a ‘single act’ statute to a ‘minimum contacts’ statute which expanded
the jurisdiction of Tennessee courts to the full limit allowed by due process.” Masada Inv.
Corp. v. Allen, 697 S.W.2d 332, 334 (Tenn. 1985)(citing Shelby Mutual Ins. Co. v. Moore,
645 S.W.2d 242, 245 (Tenn. Ct. App. 1981)). “[T]hree primary factors are to be considered
in determining whether the requisite minimum contacts are present: the quantity of the
contacts, their nature and quality, and the source and connection of the cause of action with
those contacts. Two lesser factors to be considered are the interest of the forum State and
convenience.” Id. at 334-35 (citing Shelby Mutual, 645 S.W.2d at 245). In Shelby Mutual,
this court concluded:
The phrase “fair play and substantial justice” must be viewed in
terms of whether it is fair and substantially just to both parties
to have the case tried in the state where the plaintiff has chosen
to bring the action. In each case, the quality and nature of those
activities in relation to the fair and orderly administration of the
law must be weighed. . . . [T]his must involve some subjective
value judgment by the courts.
645 S.W.2d at 246.
In the present case, we conclude that Vaughn’s conduct had sufficient minimum
contacts with this state to justify invoking jurisdiction over him. In particular, the evidence
leads to the reasonable inference that Vaughn repeatedly contacted the petitioner in
Tennessee by sending text messages to her and her husband. Significantly, one of these
messages contained a picture of the petitioner exiting the shower – a photograph that was
identified as one Vaughn had taken of the petitioner in Mexico. The picture was transmitted
to both the petitioner and her husband in Tennessee. Vaughn conceded that he had taken the
picture, and failed to refute the petitioner’s assertion that it could only have been sent by him.
Other text messages sent from the same phone number as the one that included the picture
were sent to the petitioner and her husband. The messages suggested the petitioner was
being watched. In her petition and at trial, the petitioner alleged repeated acts of physical
abuse by Vaughn against her, all in other jurisdictions. In addition, she reported that during
their relationship, Vaughn, who owned many firearms, had threatened to “blow her brains
out.” The petitioner said after the last act of violence, she became fearful of Vaughn when
she began receiving the messages upon returning home to Tennessee.
-6-
At this juncture, we emphasize what this case is not about – it is not a case, as
Vaughn urges, where “nothing occurred in Tennessee.” Vaughn correctly asserts that there
was no proof of physical abuse or physical contact in this state. This, however, is not the end
of the discussion. We are mindful that the expressly-stated legislative purpose and intent for
orders of protection is “to recognize the seriousness of domestic abuse as a crime and to
assure that the law provides a victim of domestic abuse with enhanced protection from
domestic abuse.” Tenn. Code Ann. § 36-3-618. Although the evidence did not show that
Vaughn physically came into this state, we conclude that the trial court properly exercised
jurisdiction over Vaughn based on numerous messages and a picture he transmitted into this
state to a person he had previously abused and threatened outside the state. In our view, such
contacts constituted “conduct and connection with the forum State . . . such that [Vaughn]
should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567 (1980).
We further address the petitioner’s alternative argument that Vaughn waived his right
to contest in personam jurisdiction by his actions in furtherance of the proceeding in the trial
court. More specifically, the petitioner correctly notes that Vaughn appeared with his
counsel and witnesses, and stated no objection to jurisdiction at the start of the January 25
hearing. The hearing began with the petitioner’s counsel attempting to contact her witness
– with the previously granted permission of the court – by telephone. When Vaughn’s
counsel objected to this procedure, the court offered to leave the ex parte order in place,
while affording Vaughn an opportunity for discovery of the witness. After consultation with
his client, counsel for Vaughn declined the court’s offer of a continuance, stating “We don’t
not [sic] want to continue. We have five witnesses here, so . . . .”
After the witness could not be reached, the petitioner testified. On cross-examination,
Vaughn’s counsel questioned the petitioner extensively about acts of physical abuse that the
petitioner alleged Vaughn committed against her in various locations, all outside of
Tennessee. When the petitioner responded to this line of questioning, the subject of
jurisdiction first came up. The following exchange appears in the transcript:
[Counsel for the petitioner]: Your Honor, my objection at this
point is that this Court has jurisdiction because she is a
Tennessee resident for acts that occurred in Tennessee; or if she
is concerned for her safety, this is the appropriate court to go to.
Court has jurisdiction over someone who commits acts that
cause her to be concerned about her safety.
The Court: You’re correct on the venue statute.
-7-
* * *
The Court: It’s the jurisdiction.
[Counsel for the petitioner]: I think on redirect I can clarify the
acts that have occurred in Tennessee.
* * *
[Counsel for Vaughn]: No. Oh, I’m not worried about venue.
She, she got venue. It’s jurisdiction that’s the issue.
The hearing continued without further argument, or a jurisdiction-based objection or
motion by Vaughn. Not until his closing statement did counsel for Vaughn move to dismiss
the action. At that time, counsel argued as follows:
[W]e would respectfully request that this action be dismissed or
left hanging for a brief time to allow this matter to transfer to the
state of Georgia, or for this lady to file for a temporary
protective order in the state of Georgia. We would respectfully
submit that the evidence shows in this case that this Court lacks
jurisdiction of the subject matter and the person here.
There has not been any proof regarding any physical contact or
any physical abuse that occurred in Tennessee. The record
would reflect that it all occurred in Georgia, Florida, or Mexico.
There’s also clearly testimony from Ms. Brown that there’s been
no contact, verbal or physical, in Tennessee since September
[2009]. At the time the ex parte order was entered, or this
petition was filed, there had been no contact with any definitive
proof in over four months.
We believe that the standard of proof here is that there has to be
a preponderance of the evidence showing that something
occurred in Tennessee. We don’t have this in this case.
This Court has observed that a party makes a general appearance in a case, and thus
consents to jurisdiction over his or her person, when he or she takes a position inconsistent
with the claim that personal jurisdiction is absent. See Dooley v. Dooley, 980 S.W.2d 369,
371 (Tenn. Ct. App. 1998); Grosfelt v. Epling (In re Grosfelt), 718 S.W.2d 670, 672 (Tenn.
-8-
Ct. App. 1986). “Furthermore, we have stated that a general appearance, and thus a waiver
of the right to contest personal jurisdiction, occurs by ‘some act or proceeding recognizing
the case as being in court, or from the defendant’s seeking, taking, or agreeing to some step
or proceeding in the cause beneficial to himself or detrimental to the plaintiff other than one
contesting only the jurisdiction of the court.’ ” Woodruff v. Anastasia Int'l, Inc., No.
E2007-00874-COA-R3-CV, 2007 WL 4439677 at * 3 (Tenn. Ct. App. E.S. filed Dec. 19,
2007)(quoting Grosfelt, 718 S.W.2d at 672). As we see it, Vaughn waived any defense
based on lack of in personam jurisdiction when he appeared at and participated in the hearing
on the merits of the petition, declined an opportunity for a continuance, and failed to assert
the trial court’s lack of in personam jurisdiction in a timely manner.
In summary, we conclude that the court’s exercise of jurisdiction over Vaughn was
proper based on conduct that occurred within Tennessee and, in the alternative, based on the
waiver of his right to contest in personam jurisdiction.
V.
Vaughn also challenges the sufficiency of the evidence relied upon to extend the order
of protection. He essentially contends that there was no proof of recent contact, physical or
otherwise, between him and the petitioner to support a finding that she was in need of
protection when she filed the petition several months after their relationship ended.
In this state, victims of domestic violence may seek judicial protection pursuant to
Tenn. Code Ann. § 36-3-601, et seq. (Supp. 2008). The statute provides that “[a]ny domestic
abuse victim, . . . who has been subjected to, threatened with, or placed in fear of, domestic
abuse, . . . may seek a relief under this part by filing a sworn petition alleging domestic
abuse, . . ., by the respondent.” Tenn. Code Ann. § 36-3-602(a). Under the statute, “abuse”
includes “placing an adult . . . in fear of physical harm, physical restraint. . . .” Tenn. Code
Ann. § 36-3-601(1). Persons falling within the category of “domestic abuse victim” include
“[a]dults . . . who live together or who have lived together,” and “[a]dults . . . who have dated
or who have or had a sexual relationship.” Tenn. Code Ann. § 36-3-601(5)(B), (C).
“Domestic abuse” means committing abuse against a victim, as victim is defined above,
within subdivision (5) of Section 36-3-601. Tenn. Code Ann. § 36-3-601(4).
A petitioner seeking an order of protection must establish domestic abuse by a
preponderance of the evidence. Tenn. Code Ann. § 36-3-605(b); Collins v. Pharris, No.
M1999-00588-COA-R3-CV, 2001 WL 219652, at *5 (Tenn. Ct. App. M.S. filed March 7,
2001). In extending the protective order in this case, the trial court made a finding of
domestic abuse “in that [Vaughn] committed the acts alleged in the Petition” against the
-9-
petitioner. Specifically, the petitioner alleged that Vaughn had physically abused her and was
stalking her by sending her text messages and pictures, thereby placing her in fear.
At trial, the petitioner presented testimony through herself, her husband, and her
rebuttal witness, Gail Jenkins, that her relatively brief relationship with Vaughn was marked
by several incidents of physical abuse and ended after the last such incident in Florida. The
court heard testimony from the petitioner that her delay in seeking an order of protection was
due to the fact that she did not “see any need for it at the time;” she believed Vaughn would
“leave [her] alone” after they stopped seeing each other. She explained, however, that from
September through December 28, 2009, when she filed the petition, she received “numerous”
text messages, some of which indicated that she was being watched at her home. While the
petitioner was unable to confirm the sender’s identity, she testified to a conversation with
Vaughn in which he had loaned her a disposable cell phone and told her “you can send text
messages from those throwaway telephones and they can’t be traced.” Vaughn
acknowledged that he had used disposable phones in the past. In addition, the petitioner said
that Vaughn had showed her messages he had sent to a former girlfriend that did not identify
him as the sender.
Similarly, the petitioner’s husband testified that he received various text messages
from an “unidentified sender” that he and the petitioner believed to be from Vaughn based
on their content. One message Mr. Brown received included a picture of his wife coming out
of a shower. In addition, both the petitioner and her husband testified as to vehicles parking
on the street behind their home that would immediately leave when Mr. Brown moved to
approach them. In addition, the petitioner said that she had discarded a card she had received
from Vaughn and returned home one day to find it lying in her driveway. Mr. Brown added
that after his wife returned from the trip to Destin with Vaughn, undisputedly the last time
the parties were in physical contact, she had bruises and a knot on her arm and was in a “lot
of pain.” He testified that since then, his wife had been “an emotional wreck” – she stayed
in the house most of the time and was afraid to go out unless he or her adult son accompanied
her.
The trial court also heard from Vaughn. Vaughn denied that he or anyone at his
direction had made any contact with the petitioner since the Destin trip. Vaughn stated he
had received “thousands” of text messages from the petitioner, but had sent none. He
admitted taking a picture of the petitioner stepping out of the shower during a trip they took
to Mexico. He and his witnesses offered testimony to the effect that Vaughn was not at all
“computer-savvy.” At the same time, Vaughn stated that he had done internet research and
learned about websites such as “SpoofCard.com” that allows a person to “send text messages
and make them appear to come from different phones.”
-10-
As set out earlier in this opinion, the trial court found that both parties had credibility
issues. Nevertheless, the trial court credited the petitioner’s testimony regarding physical
abuse by Vaughn outside of Tennessee and harassing communications within Tennessee. In
extending the protective order, the court expressly relied on the latter conduct in finding that
Vaughn had “placed Ms. Brown in continuing fear of physical harm.” This court accords
great weight to findings that are based on a trial court’s determination of the witnesses’
credibility because it is the trial court who observed the witnesses and had an opportunity to
assess their credibility. In re Estate of Walton, 950 S.W.2d 956, 959 (Tenn. 1997). “For the
evidence to preponderate against a trial court’s finding of fact, it must support another
finding of fact with greater convincing effect.” Wadhwani v. White, No.
M2005-02655-COA-R3-CV, 2007 WL 27329 at * 2 (Tenn. Ct. App. M.S., filed January 3,
2007)(citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000)).
Upon our examination of the record, that is not the case here.
As the party seeking an extension of an existing order of protection, the petitioner had
only to establish the allegation of “domestic abuse, stalking or sexual assault by a
preponderance of the evidence.” See Tenn. Code Ann. § 36-3-605(b). In this case, the
petitioner alleged that Vaughn had physically abused her, was stalking her and she was “very
scared of him.” The evidence does not preponderate against the trial court’s findings to
support the order of protection.
VI.
Lastly, the petitioner seeks an award of her reasonable attorney’s fees and costs
incurred in defending this appeal. Tenn. Code Ann. § 36-3-617(a) provides as follows:
(a) Notwithstanding any other law to the contrary, no victim
shall be required to bear the costs, including any court costs,
filing fees, litigation taxes or any other costs associated with the
filing, issuance, registration, service, dismissal or nonsuit,
appeal or enforcement of an ex parte order of protection, order
of protection, or a petition for either such order, whether issued
inside or outside the state. If the court, after the hearing, issues
or extends an order of protection, all court costs, filing fees,
litigation taxes and attorney fees shall be assessed against the
respondent.
Consistent with the provisions of the statute and in view of our affirmance of the trial court’s
judgment that extended the order of protection in the petitioner’s favor, we conclude that an
award of her reasonable attorney’s fees and costs on appeal is appropriate.
-11-
VII.
The judgment of the trial court is affirmed. This case is remanded to the trial court,
pursuant to applicable law, for a hearing on the issue of the petitioner’s reasonable attorney’s
fees and costs on appeal and for the enforcement of the trial court’s order and collection of
costs assessed in the trial court. Costs on appeal are taxed against the appellant, Allan Craig
Vaughn.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
-12- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4523572/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 18-3192
________________
LOUIS PIERCE
v.
ADMINISTRATOR NEW JERSEY STATE PRISON;
ATTORNEY GENERAL NEW JERSEY,
Appellants
________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-11-cv-05265)
District Judge: Honorable Freda L. Wolfson
________________
Submitted under Third Circuit LAR 34.1(a)
On December 10, 2019
Before: RESTREPO, ROTH and FISHER, Circuit Judges
(Opinion filed April 8, 2020)
________________
OPINION*
________________
ROTH, Circuit Judge
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
A New Jersey jury convicted Louis Pierce in state court of charges arising from a
shooting in Camden, New Jersey. Pierce brings this petition for habeas corpus under 28
U.S.C. § 2254 alleging ineffective assistance of trial counsel. The District Court granted
the petition and vacated Pierce’s conviction. We will affirm the District Court’s
judgment and grant Pierce’s habeas petition.
I. FACTS
On November 5, 1996, Mike Rozier and Bart Merriel stopped at a gathering in
Camden where people were drinking and snorting cocaine. A little after midnight, Rozier
and Merriel were leaving when someone shot them. About one year later, Rozier
identified Pierce as the shooter from two photo arrays.
At trial, Rozier’s testimony was the only evidence against Pierce. Two
eyewitnesses testified that Pierce was not the shooter. Pierce’s girlfriend testified that on
November 5, like other nights, she and Pierce took the train from Camden and arrived in
Philadelphia by 8:30 pm. She recalled being with Pierce the next morning when they
first heard about the shooting on a 5:30 am news report. The state introduced evidence
that the shooting was not reported until 5:00 pm. During the charging conference, Pierce
expressed that he “was considering testifying,”1 and the trial judge informed him it was
“[t]oo late now.”2
Pierce was convicted, and his conviction and sentence were affirmed on direct
appeal. He then petitioned for post-conviction relief (PCR), alleging that his counsel was
1
Ohio App. at 331.
2
Id.
2
ineffective for failing to explain to him the process for testifying. The state PCR courts
denied Pierce’s petition. Pierce then petitioned for a writ of habeas corpus. The District
Court held an evidentiary hearing and granted Pierce’s petition. The state appealed,
arguing that the District Court abused its discretion in granting an evidentiary hearing and
erred in granting Pierce’s habeas petition.
II. DISCUSSION
We review “a district court’s grant of habeas corpus” de novo.3 Because the state
courts adjudicated Pierce’s claims, we apply the deferential Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) standard.4 Under AEDPA, a petition for a writ of
habeas corpus can be granted only if the state court adjudication:
(1) Resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) Resulted in a decision that was based on an unreasonable determination
of the facts . . ..5
Pierce argues that the PCR courts unreasonably applied Strickland v. Washington6
and made unreasonable determinations of fact. The state argues that the District Court
abused its discretion in granting Pierce an evidentiary hearing and then failed to
appropriately defer to the state courts in granting Pierce’s habeas petition.
A. The District Court did not abuse its discretion in granting Pierce an evidentiary
hearing.
3
Rolan v. Vaughn, 445 F.3d 671, 677 (3d Cir. 2006).
4
Harrington v. Richter, 562 U.S. 86, 97–98 (2011) (citing 28 U.S.C. § 2254(d)).
5
28 U.S.C. § 2254(d)(1)–(2).
6
466 U.S. 668 (1984).
3
We review a district court’s decision to hold an evidentiary hearing for abuse of
discretion.7 A district court has discretion to grant an evidentiary hearing so long as the
petitioner has diligently “develop[ed] the factual basis of a claim in state court
proceedings.”8 Diligence requires that the petitioner have sought “an evidentiary hearing
in state court in the manner prescribed by state law.”9 An evidentiary hearing in New
Jersey is warranted where a petitioner “has presented a prima facie claim in support of
post-conviction relief.”10 Despite this discretion, “a court should be reluctant to convene
an evidentiary hearing to explore the claims of a petitioner whose pleadings are factually
insufficient to suggest any entitlement to habeas relief,” or are contradicted by the
record.11 And “bald assertions and conclusory allegations do not afford a sufficient
ground for an evidentiary hearing.”12 Ineffective assistance of counsel claims are “more
likely to require an evidentiary hearing because the facts often lie outside the trial record
and because the attorney’s testimony may be required.”13
7
Morris v. Beard, 633 F.3d 185, 193 (3d Cir. 2011).
8
Id. (quoting 28 U.S.C. § 2254(e)(2)).
9
Will. v. Taylor, 529 U.S. 420, 437 (2000).
10
State v. Goodwin, 803 A.2d 102, 110 (N.J. 2002) (citing State v. Preciose, 609 A.2d
1280, 1286 (N.J. 1992)).
11
Palmer v. Hendricks, 592 F.3d 386, 393 (3d Cir. 2010) (citing Schriro v. Landrigan,
550 U.S. 465, 474 (2007)).
12
Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987); see also Palmer, 592 F.3d at
395 (rejecting claim that district court was required to hold evidentiary hearing where
petitioner included only that he wanted “to tell his side of the story” and provided
“conclusory invocation of the words ‘self-defense’”).
13
Preciose, 609 A.2d at 1286.
4
Pierce was diligent in developing the factual record in state court. He requested an
evidentiary hearing, and his request was denied.14 He submitted an affidavit stating that
his counsel ignored his requests to testify and that he wished “to allow the jury to know
[he had] no violence in [his] past.”15 This is enough to show diligence, and the District
Court could have found that Pierce presented a prima facie case of ineffective assistance
of counsel under Strickland sufficient to justify an evidentiary hearing. The District
Court did not abuse its discretion in granting Pierce a hearing.
B. Pierce was denied effective assistance of counsel.
Pierce claims ineffective assistance of counsel under Strickland. A claim of
ineffective assistance of counsel requires showing first “that counsel’s performance was
deficient,” and second, that the deficiency “prejudiced the defense.”16 Prejudice, in turn,
requires “show[ing] that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”17 When a
defendant bringing a habeas petition under § 2254 alleges ineffective assistance of
counsel, we ask “‘whether the state court’s application of the Strickland standard was
unreasonable,’ which ‘is different from asking whether defense counsel’s performance
fell below Strickland’s standard.’”18 In doing so, we look to the last reasoned decision of
the state court—here, the opinion of the Appellate Division of the Superior Court of New
14
See Thomas v. Horn, 570 F.3d 105, 125–26 (3d Cir. 2009).
15
Ohio App. 509.
16
Strickland, 466 U.S. at 687.
17
Id. at 694.
18
Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Harrington, 562 U.S. at
101).
5
Jersey.19 The Appellate Division assumed deficient performance and then determined
that Pierce could not show prejudice.
The Appellate Division made two errors in evaluating Pierce’s petition. First, the
Appellate Division determined that Pierce did not “specify what he would have said in
his testimony.”20 But Pierce’s affidavit mentioned that he wanted to testify that he had no
history of violence, and his PCR counsel told the PCR court that he would have testified
as to his alibi. The Appellate Division made no mention of these facts, and therefore its
factual findings were “objectively unreasonable in light of the evidence presented in the
state-court proceeding.”21
Second, when assessing Pierce’s claim of prejudice, the Appellate Division stated
that Pierce “had the burden to establish that the result of the proceeding would have been
different had he testified.”22 As the District Court observed, that standard required Pierce
to prove more than what Strickland requires. Strickland requires only a “reasonable
probability that . . . the result of the proceeding would have been different.”23 Requiring
a petitioner to show “by a preponderance of the evidence that the result of his criminal
proceeding would have been different, . . . would be ‘diametrically different,’ ‘opposite in
19
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The New Jersey Supreme Court
denied review in an unreasoned decision. See State v. Pierce, 13 A.3d 1290 (N.J. 2011).
Although the District Court also examined the reasoning of the PCR trial court, we find
no reason to do so as the Appellate Division supplied its own analysis.
20
Ohio App. 546.
21
Dennis v. Sec’y, Pa. Dept of Corr., 834 F.3d 263, 281 (3d Cir. 2016) (en banc)
(quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
22
Ohio App. 546.
23
Strickland, 466 U.S. at 694 (emphasis added).
6
character or nature,’ and ‘mutually opposed’ to our clearly established precedent” in
Strickland and therefore contrary to clearly established federal law.24
Having determined that the state PCR court’s decision was contrary to and an
unreasonable application of clearly established federal law, we proceed to review Pierce’s
ineffective assistance of counsel claims de novo.25 We review the District Court’s factual
findings following an “evidentiary hearing for clear error.”26
Following the evidentiary hearing, the District Court found that Pierce’s counsel
“failed to discuss with [him] his right to testify”27 and that Pierce misunderstood the
process for testifying. Had he been allowed to do so, the District Court found that Pierce
would have “take[n] the stand in his own defense and that he would have testified even if
[it] meant all his prior convictions would be admitted.”28 Additionally, Pierce testified
before the District Court that he would have told the jury that he never met Rozier, did
not know him, and did not shoot him. Pierce said that he was infrequently in Camden
during the four or five years Rozier claims to have met Pierce—he lived out of state, or in
another town in New Jersey, or was incarcerated for much of that time. He additionally
corroborated his girlfriend’s testimony that he usually met her in Camden and would
return to Philadelphia in the early evening. We find no error in these factual findings.
24
Will. v. Taylor, 529 U.S. 362, 406 (2000).
25
See Panetti v. Quarterman, 551 U.S. 930, 953–54 (2007); Branch v. Sweeney, 758 F.3d
226, 233 (3d Cir. 2014).
26
Morris, 633 F.3d at 193.
27
Ohio App. 57.
28
Ohio App. 59.
7
Pierce has shown that counsel’s performance was deficient. Counsel’s
performance was deficient if “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”29
Failure to discuss with a defendant his right to testify and inform him of the process of
doing so—as counsel failed to do here—does not meet the standard of “reasonably
effective assistance.”30 Therefore, counsel’s performance was deficient.
Counsel’s deficiency prejudiced Pierce’s defense. We evaluate prejudice “in light
of the totality of the evidence at trial”31 to determine whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”32 “[A] verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with overwhelming record
support.”33 Here, the state’s case came down to Rozier’s identification of Pierce as the
shooter. That being the only evidence supporting his conviction, there is a reasonable
probability that, had Pierce taken the stand and testified as to his alibi, the result would
have been different. After all, “the most important witness for the defense in many
29
Strickland, 466 U.S. at 687.
30
Id.; see also United States v. Leggett, 162 F.3d 237, 249 n.12 (3d Cir. 1998)
(acknowledging that an ineffective assistance of counsel claim “would at least be
colorable if [counsel] had kept him from testifying against his will”); United States v.
Teague, 953 F.2d 1525, 1534 (11th Cir. 1992) (giving as one example of deficient
conduct that “defense counsel never informed the defendant of the right to testify, and
that the ultimate decision belongs to the defendant”).
31
Rolan, 445 F.3d at 682.
32
Strickland, 466 U.S. at 694.
33
Id. at 696.
8
criminal cases is the defendant himself.”34 Therefore, Pierce was prejudiced by counsel’s
deficiency.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s grant of Pierce’s
petition for a writ of habeas corpus.
34
Rock v. Arkansas, 483 U.S. 44, 52 (1987).
9 | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523574/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3170
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jorge Alberto Sainz Navarrete, also known as Horacio Sainz Navarrete
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: November 15, 2019
Filed: April 8, 2020
____________
Before GRUENDER, KELLY, and ERICKSON, Circuit Judges.
____________
KELLY, Circuit Judge.
A jury found Jorge Sainz Navarrete guilty of conspiring to distribute
methamphetamine in violation of 21 U.S.C. §§ 841 and 846, money laundering in
violation of 18 U.S.C. § 1956(a)(1)(B)(i), and two counts of conspiring to launder
money in violation of 18 U.S.C. § 1956(h). The district court1 imposed a sentence of
life imprisonment for the methamphetamine conspiracy and concurrent sentences of
240 months of imprisonment for the money-laundering offenses. Navarrete appeals.
I. Background
During a seven-day jury trial, several witnesses testified that Navarrete directed
them to transport methamphetamine from Arizona to Nebraska, distribute it in the
Omaha area, and remit the proceeds to him. Maria Diaz testified that she was “the
one taking charge of everything” for Navarrete. She recruited drivers to transport
vehicles from Arizona to Omaha that contained methamphetamine in hidden
compartments, including in a cavity behind the wheel of a PT Cruiser. She stated that
the drivers went on at least six trips and that, on each trip, at least eight to 12 pounds
of methamphetamine were concealed within their vehicles. Maria Diaz then arranged
to have the methamphetamine removed from the vehicles and distributed in the
Omaha area. She testified that her friend Alvaro Dominguez and her cousin Adrian
Vega assisted with retrieving and distributing the methamphetamine.
Three of the drivers that Maria Diaz recruited—Deyanira Castaneda, Francisco
Cano-Salgado, and Nathalie Martinez—testified at trial. They each stated that they
drove or towed vehicles from Phoenix to Omaha at Navarrete’s request. Castaneda
said that she was told they were transporting “hielo,” which she understood to mean
methamphetamine, and that she observed round, burrito-sized packages being
removed from behind the front wheel of a PT Cruiser after she helped transport it to
Omaha. Cano-Salgado testified that he similarly observed “wrapped foot-long sized
things” being removed from the PT Cruiser. Martinez testified that, after she helped
transport the PT Cruiser from Phoenix to Omaha, she saw Dominguez, Castaneda,
1
The Honorable Laurie Smith Camp, then Chief Judge, United States District
Court for the District of Nebraska.
-2-
and another person enter a garage with tools and jack up the PT Cruiser. She saw
debris on the floor and believed that they removed something from the car.
On another occasion, Martinez observed Dominguez and others sawing into a white
car and removing items wrapped in plastic bags.
Martinez testified that she later began selling methamphetamine for Navarrete.
She got the methamphetamine from Dominguez, but Navarrete set the price. Vega
also testified that he sold methamphetamine for Navarrete. He obtained it either from
Maria Diaz or by removing it himself from cavities in cars. Vega initially reported
to Maria Diaz or Dominguez, but he later reported directly to Navarrete.
Adam Trevino testified that he purchased approximately 100 pounds of
methamphetamine from Navarrete and that Maria Diaz and Vega delivered it to him.
Trevino later began cooperating with the government and, in June and July 2016, he
made controlled purchases of methamphetamine from Vega. During one of these
transactions, Vega called Navarrete because Navarrete wanted to talk to Trevino.
The government also made controlled purchases of methamphetamine from Oscar
Mayorga, who stated that Navarrete was his supplier.
Maria Diaz and Vega both testified that Navarrete directed them to deposit the
proceeds from their methamphetamine sales into specific bank accounts. Maria Diaz
stated that she recruited others to make the deposits for her, including Castaneda,
Cano-Salgado, and Sindy Renteria. Castaneda and Cano-Salgado confirmed that they
deposited cash into Wells Fargo bank accounts at Maria Diaz’s request.
Maria Diaz and Vega documented these transactions by taking photos of the
receipts and by recording in notebooks the amounts that they received from their sales
and the amounts that were wired or deposited at Navarrete’s request. The government
later seized these notebooks and introduced them at trial. The government also found
Maria Diaz and Dominguez in possession of methamphetamine, cash, money-transfer
-3-
receipts, and a phone containing contact information for Navarrete and other
associates. The government found a PT Cruiser with a hidden cavity behind the front
wheel in the garage of a house where Maria Diaz and Dominguez used to live.
One of the Wells Fargo bank accounts that received methamphetamine
proceeds was an account that Navarrete had asked his girlfriend, Karla Diaz, to open
in her name. Karla Diaz testified that Navarrete asked her to open the account based
on the representation, later shown to be false, that he did not have identification.
Karla Diaz stated that she considered the money in the account to be Navarrete’s and
that she would not withdraw money from it without Navarrete’s permission.
The government introduced bank records and photographs showing that Vega,
Cano-Salgado, and Renteria made cash deposits into Karla Diaz’s Wells Fargo
account. Text messages showed that Navarrete also told Trevino to make deposits
into that account. Shortly after these deposits were made in the Omaha area, Karla
Diaz withdrew roughly corresponding amounts from the account in Arizona. Karla
Diaz testified that Navarrete directed her to make these withdrawals and that she gave
him the money after she withdrew it. On June 2, 2016, Navarrete accompanied Karla
Diaz to withdraw $2,000 cash from the account in Arizona. Vega had deposited
$2,000 cash into the account in Omaha earlier that day.
In March 2016, Navarrete purchased a Corvette from Juan Carlos Ruiz at a
used-car business in Omaha. Ruiz testified that he sold the car for a series of cash
payments totaling $8,000. The purchase agreement listed Karla Diaz as the buyer and
purported to contain her signature. However, Karla Diaz testified that she did not buy
the Corvette and that the signature was not hers. She said that Navarrete had told her
that he purchased the Corvette. Maria Diaz testified that, shortly after she first saw
the Corvette, Navarrete asked her to go to the used-car business to make the final
$4,000 payment and to pick up the car title. Maria Diaz used methamphetamine
proceeds to complete the transaction and later gave the title to Navarrete.
-4-
Navarrete was arrested in November 2016. Officers seized a phone from him
that contained photographs of bank-deposit receipts, the number for Karla Diaz’s
Wells Fargo account, wire-transfer communications, and the notebooks Maria Diaz
and Vega had used to record their transactions. Navarrete’s wallet also contained a
business card with Karla Diaz’s Wells Fargo account number on it and a business
card for Ruiz’s used-car business.
Navarrete was charged with conspiring to distribute methamphetamine,
conspiring to launder money via Karla Diaz’s Wells Fargo account, conspiring to
launder money via the Corvette purchase, and money laundering via the June 2, 2016
bank transactions. The jury returned a verdict of guilty on all counts. Based in part
on a drug quantity equivalent to 101,221.76 kilograms of marijuana, a role
enhancement, and a criminal-livelihood enhancement, the district court imposed a
within-Guidelines sentence of life imprisonment for the methamphetamine conspiracy
and 240 months of imprisonment for the money-laundering offenses, with the
sentences to run concurrently. On appeal, Navarrete challenges the sufficiency of the
evidence for each of his convictions, the district court’s drug-quantity finding, and
the district court’s application of the role and criminal-livelihood enhancements.
II. Sufficiency of the Evidence
Navarrete argues that, because the evidence was insufficient, the district court
erred by denying his motions for acquittal and for a new trial. We review the denial
of a motion for judgment of acquittal de novo. United States v. Clark, 668 F.3d 568,
573 (8th Cir. 2012). “We must affirm a jury verdict if, taking all facts in the light
most favorable to the verdict, a reasonable juror could have found the defendant
guilty of the charged conduct beyond a reasonable doubt.” Id. (citation omitted).
We review the denial of a motion for a new trial for an abuse of discretion. United
States v. Anwar, 880 F.3d 958, 969 (8th Cir. 2018). The district court “may grant a
-5-
new trial only if the evidence weighs so heavily against the verdict that a miscarriage
of justice may have occurred.” Id. at 970 (cleaned up).
To establish that a defendant conspired to distribute drugs in violation of
21 U.S.C. §§ 841 and 846, “the government must prove: (1) that there was a
conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of
the conspiracy; and (3) that the defendant intentionally joined the conspiracy.”
United States v. Conway, 754 F.3d 580, 587 (8th Cir. 2014) (citation omitted).
To establish that a defendant laundered money by concealment in violation of
18 U.S.C. § 1956(a)(1)(B)(i), the government must prove that:
(1) [the] defendant conducted, or attempted to conduct a financial
transaction which in any way or degree affected interstate commerce or
foreign commerce; (2) the financial transaction involved proceeds of
illegal activity; (3) [the] defendant knew the property represented
proceeds of some form of unlawful activity; and (4) [the] defendant
conducted or attempted to conduct the financial transaction knowing the
transaction was designed in whole or in part to conceal or disguise the
nature, the location, the source, the ownership or the control of the
proceeds of specified unlawful activity.
United States v. Slagg, 651 F.3d 832, 844 (8th Cir. 2011) (cleaned up). To prove that
a defendant conspired to launder money in violation of 18 U.S.C. § 1956(h), the
government must prove that “the defendant agreed with another person to violate the
substantive provisions of the money-laundering statute.” Id. (cleaned up).
There was sufficient evidence for a reasonable juror to conclude that each
element of these offenses was satisfied. Several witnesses testified that they were
part of a conspiracy to distribute methamphetamine, that Navarrete supplied the
methamphetamine, and that he profited from their sales. Their testimony was
consistent with one another’s and corroborated by physical evidence. This provided
sufficient evidence for a reasonable juror to conclude, beyond a reasonable doubt, that
-6-
Navarrete conspired to distribute methamphetamine. See Conway, 754 F.3d at
587–88 (“[E]vidence at trial that consists primarily of testimony from other members
of the conspiracy may suffice to establish defendant’s guilt. . . . [E]vidence is
sufficient to show a conspiracy where drugs are purchased for resale.”).
There was also sufficient evidence for a reasonable juror to conclude, beyond
a reasonable doubt, that Navarrete conspired to and did use Karla Diaz’s Wells Fargo
account to launder money by concealment. Karla Diaz testified that Navarrete told
her to open the account in her name under false pretenses. Witness testimony,
photographs, and documentary evidence showed that several people deposited
methamphetamine proceeds into the account in Omaha at Navarrete’s direction and
that corresponding withdrawals were made from the account in Arizona. Karla Diaz
testified that she made these withdrawals at Navarrete’s request, and photographs
showed that Navarrete was present for at least one of the transactions. This evidence
was sufficient to support Navarrete’s convictions for conspiring to launder and
laundering money via the Wells Fargo account. See United States v. Bowman, 235
F.3d 1113, 11116 (8th Cir. 2000) (The “pattern and timing” of transactions can
support an inference of money laundering by concealment); United States v. Shoff,
151 F.3d 889, 892 (8th Cir. 1998) (“[A] common type of money laundering is the
transfer of unlawful proceeds into an account in another person’s name.”).
A reasonable juror could have likewise concluded, beyond a reasonable doubt,
that Navarrete conspired to launder money via the Corvette transaction. There was
evidence that Navarrete had the car titled in Karla Diaz’s name without her
knowledge, that he paid for the car in a series of cash transactions, and that he
directed Maria Diaz to complete the sale with $4,000 in methamphetamine proceeds.
Under these circumstances, we cannot agree with Navarrete that “there was nothing
in the record to demonstrate that the Corvette transaction was anything other than a
car purchase.” See United States v. Pizano, 421 F.3d 707, 725–26 (8th Cir. 2005)
(discussing when a juror may infer that co-conspirators shared a “tacit understanding”
-7-
to conceal the nature, location, source, ownership, or control of unlawful proceeds);
Shoff, 151 F.3d at 892 (“Still another common type of money laundering is . . . the
use of [unlawful] proceeds to buy assets in another person’s name.”).
III. Drug Quantity
Next, Navarrete challenges the district court’s drug-quantity finding. “The
government bears the burden of proving drug quantity by a preponderance of the
evidence.” United States v. Plancarte-Vazquez, 450 F.3d 848, 852 (8th Cir. 2006)
(citation omitted). When calculating drug quantity, “the sentencing court may
consider all transactions known or reasonably foreseeable to the defendant that were
made in furtherance of the conspiracy.” Id. We review for clear error and reverse
only when “the entire record definitely and firmly illustrates that the lower court made
a mistake.” United States v. Marshall, 411 F.3d 891, 894 (8th Cir. 2005).
The Probation Office prepared a Presentence Investigation Report (PSR),
which found that an amount of 48 pounds of methamphetamine mixture was
reasonably foreseeable to Navarrete. The PSR based this finding on Maria Diaz’s
testimony that, on at least six occasions, Navarrete had arranged for the transportation
of at least eight to 12 pounds of methamphetamine. The PSR also noted that officers
had recovered 4,047.62 grams of methamphetamine mixture during their investiga-
tion, and that purity tests had revealed that this mixture contained 3,288.57 grams of
actual methamphetamine. In accordance with the United States Sentencing
Guidelines, which “provide a means for combining differing controlled substances
to obtain a single offense level,” USSG § 2D1.1, cmt. (n.8(B)) (2016),2 the PSR
converted these quantities of actual methamphetamine and methamphetamine mixture
to their marijuana equivalents. To avoid double counting, the PSR then subtracted
the amount of actual methamphetamine that had been recovered during the
2
The 2016 Guidelines Manual applies to Navarrete’s convictions.
-8-
investigation from the amount of methamphetamine mixture that Maria Diaz had
testified Navarrete arranged to transport. This resulted in a combined total of
101,221.76 kilograms of marijuana equivalent. The district court adopted the PSR’s
drug-quantity calculation over Navarrete’s objection.
Navarrete contends that it was clearly erroneous to find any drug quantity
beyond the amount of methamphetamine that was recovered and tested for purity
because the additional amount was “based on the mere assumption or guess of
cooperating defendants.” However, it is “well-established that the testimony of
co-conspirators may be sufficiently reliable evidence upon which the court may base
its drug quantity calculation for sentencing purposes.” Plancarte-Vazquez, 450 F.3d
at 852. And here, the district court’s estimate was well within the range supported
by the evidence. Maria Diaz’s testimony suggested that Navarrete may have
transported more than 72 pounds of methamphetamine to Nebraska, and Trevino
testified the he had obtained at least 100 pounds of methamphetamine from
Navarrete. On this record, we are not definitely and firmly convinced that the district
court’s drug-quantity finding was mistaken. See Marshall, 411 F.3d at 894.
IV. Sentencing Enhancements
Finally, Navarrete challenges the district court’s application of role and
criminal-livelihood enhancements to his base offense level. “We review a district
court’s factual findings regarding whether a leadership enhancement is warranted for
clear error and its legal conclusions de novo.” United States v. Musa, 830 F.3d 786,
788 (8th Cir. 2016). The government bears the burden to prove a leadership
enhancement applies by a preponderance of the evidence. Id.
The Guidelines permit a four-level increase in a defendant’s offense level “[i]f
the defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” USSG § 3B.1.1(a). “A ‘participant’
-9-
is a person who is criminally responsible for the commission of the offense, but need
not have been convicted.” Id. § 3B1.1 cmt. (n.1). Navarrete’s base offense level was
based on the methamphetamine conspiracy, see id. § 2S1.1(a)(1), but this enhance-
ment must be based on his money-laundering convictions and “not on the underlying
offense from which the laundered funds were derived,” see id. cmt. (n.2(C)).
Navarrete argues that the district court erred because its application of this
enhancement rested on “speculation and conjecture” and because he had “nowhere
near five people allegedly under him.” We disagree. Several witnesses testified that
Navarrete directed them to deposit drug proceeds into the Wells Fargo bank
account—including Maria Diaz, Vega, Trevino, Cano-Salgado, and Castanada. The
government also produced testimony and documentary evidence that Renteria
deposited drug proceeds into the account and that Navarrete directed Karla Diaz to
withdraw the drug proceeds after they were deposited in the account. In light of this
evidence, the district court’s findings that Navarrete was a leader or organizer of the
money-laundering conspiracy and that there were five or more participants in the
conspiracy were not clearly erroneous. See Pizano, 421 F.3d at 733.
The Guidelines provide for an additional two-level increase if “the defendant
receives an adjustment under §3B1.1” and “the defendant committed the offense as
part of a pattern of criminal conduct engaged in as a livelihood.” USSG
§ 2D1.1(b)(15)(E). “‘Pattern of criminal conduct’ means planned criminal acts
occurring over a substantial period of time.” Id. § 2D1.1, cmt. (n.20(C)); id. § 4B1.3,
cmt. (n.1). “‘Engaged in as a livelihood’ means that (A) the defendant derived
income from the pattern of criminal conduct that in any twelve-month period
exceeded 2,000 times the then existing hourly minimum wage under federal law; and
(B) the totality of circumstances shows that such criminal conduct was the defen-
dant’s primary occupation in that twelve-month period.” Id. § 4B1.3, cmt. (n.2).
-10-
Navarrete argues that the government failed to allege or prove that he derived
income in any twelve-month period that exceeded 2,000 times the then-existing
yearly minimum wage and that, even if he earned all of the income the government
alleged, some of that money “would not represent actual profit as there are product
and operational costs to be accounted for.” However, 2,000 times the yearly
minimum wage is not what is required. The enhancement applies if a defendant
derives income in any twelve-month period that exceeds “2,000 times the then
existing hourly minimum wage under federal law.” Id. (emphasis added). At the time
of Navarrete’s offense, the hourly minimum wage was $7.25. See 29 U.S.C. § 206(a).
Accordingly, the government needed to show that Navarrete derived more than
$14,500 in income from his drug activity to prove that the enhancement applied. See
United States v. Berry, 930 F.3d 997, 999 (8th Cir. 2019).
Maria Diaz and Vega’s notebooks indicate that Navarrete’s methamphetamine
sold for $5,000 to $9,000 per pound. Trevino testified that he paid between $4,000
to $12,500 per pound. Selling 48 pounds of methamphetamine at $4,000 per pound
would have resulted in $192,000 in gross revenue over the course of the thirteen-
month conspiracy and approximately $177,000 over a twelve-month period. The
government further produced evidence that $46,125 went through the Wells Fargo
account in 2015 and that $77,780 went through the account in 2016. The district
court was not required to offset Navarrete’s income to account for operational costs,
see Berry, 930 F.3d at 999 (concluding that the term “income,” for purposes of this
enhancement, “refers to gross income, not net income”), and it did not clearly err by
finding that Navarrete derived more than $14,500 in income from his drug activity.
V. Conclusion
For all these reasons, we affirm.
______________________________
-11- | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523576/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-2185
___________________________
Rocky Thomas Mayfield,
lllllllllllllllllllllPetitioner - Appellant,
v.
United States of America,
lllllllllllllllllllllRespondent - Appellee.
____________
Appeal from United States District Court
for the District of North Dakota - Bismarck
____________
Submitted: October 17, 2019
Filed: April 8, 2020
____________
Before COLLOTON, WOLLMAN, and KELLY, Circuit Judges.
____________
COLLOTON, Circuit Judge.
A jury convicted Rocky Thomas Mayfield of several charges involving
methamphetamine trafficking and unlawful possession of a firearm, and the district
court sentenced him to 240 months in prison. Mayfield later moved under 28 U.S.C.
§ 2255 to vacate the sentence on the ground that he received ineffective assistance of
counsel during plea negotiations before trial. The district court denied the motion
without a hearing, and Mayfield appeals. We conclude that the record does not
conclusively show that Mayfield’s claim is without merit, so we vacate the judgment
and remand for further proceedings.
I.
A grand jury charged Mayfield in April 2015 with one count of conspiracy to
distribute 500 grams or more of methamphetamine mixture, one count of possession
with intent to distribute 500 grams or more of methamphetamine mixture, one count
of possession with intent to distribute 50 grams or more of actual methamphetamine,
and one count of unlawful possession of a firearm by a convicted felon. The drug
charges initially carried a mandatory minimum sentence of 10 years’ imprisonment
and a maximum term of life. 21 U.S.C. § 841(b)(1)(A)(viii) (2012). The firearms
charge was punishable by a maximum term of 10 years’ imprisonment. 18 U.S.C.
§ 924(a)(2).
The government then filed an information under 21 U.S.C. § 851, notifying
Mayfield that he was subject to enhanced punishment based on a felony conviction
in Arizona from 2002 for possession of drug paraphernalia. The prior conviction, if
established, would have increased the minimum penalty to 20 years’ imprisonment
for each of the drug charges. 21 U.S.C. § 841(b)(1)(A) (2012).
In May 2015, Mayfield retained new counsel whose performance is the subject
of this appeal. In January 2016, with a motion to suppress evidence pending, the
government proposed to defense counsel that Mayfield withdraw his pending motion,
plead guilty, and cooperate with the government in an effort to reduce his sentence.
Mayfield rejected the overture.
The district court then denied the motion to suppress, and the government
proposed new terms to Mayfield’s counsel. As memorialized in an e-mail of February
-2-
10, 2016, the government offered that if Mayfield pleaded guilty to the drug
conspiracy charge and the firearms charge, the government would dismiss the other
two drug trafficking counts. The government also would “agree to recommend a
sentence at the low end of the sentencing guideline range found by the court at the
sentencing hearing or the statutory minimum mandatory imprisonment sentence,
whichever is higher.” The offer did not provide for a stipulated sentencing guideline
range and left the final guideline calculations for determination at sentencing. The
prosecutor first predicted an advisory sentencing range of 210 to 262 months under
the sentencing guidelines, but then explained his view that the statutory minimum
would adjust the range to 240 to 262 months. Then the prosecutor said that the
government might not move for a third level of reduction for acceptance of
responsibility under USSG § 3E1.1(b); in that case, the estimated advisory range
would have been 235 to 293 months, adjusted to 240 to 293 months by the asserted
statutory minimum. The government suggested that Mayfield’s advisory range would
be 292 to 365 months if he declined to accept responsibility and was convicted after
a trial.
Mayfield declined the offer, proceeded to trial, and was convicted on all four
counts. The probation office calculated an advisory guideline range of 262 to 327
months’ imprisonment, with a statutory minimum penalty of 240 months.
In his sentencing memorandum, Mayfield for the first time contested the
statutory minimum of 240 months. He argued that when he committed the Arizona
drug paraphernalia offense in 2002, the state law did not authorize imprisonment as
a punishment. Therefore, he explained, the crime could not be a prior “felony drug
offense” resulting in enhanced punishment under 21 U.S.C. § 841(b)(1)(A) (2012),
because it was not punishable by imprisonment for more than one year. See 21
U.S.C. § 802(44). Mayfield asserts that his sister, a non-lawyer who researched the
point, alerted him and his attorney to the issue.
-3-
At the sentencing hearing, the government acknowledged that the Arizona
conviction did not qualify as one for a felony drug offense, and withdrew the notice
of enhanced punishment under § 851. The district court then arrived at an advisory
guideline range of 235 to 293 months’ imprisonment, and sentenced Mayfield to 240
months on the three drug trafficking counts, to be served concurrently with a 120-
month sentence for the firearms count. During his allocution, Mayfield asserted that
he had “wanted to take a plea,” but had declined to do so because the government’s
offer was premised on the mistaken statutory minimum penalty of 240 months.
Mayfield appealed his conviction, and this court affirmed the judgment. United
States v. Mayfield, 678 F. App’x 437 (8th Cir. 2017) (per curiam). Mayfield then
sought relief under § 2255, arguing among other things that his attorney was
ineffective for failing to challenge the § 851 enhancement or to ascertain that it was
inapplicable. The district court denied the motion without an evidentiary hearing, but
the court did not address whether counsel was ineffective in his advice to Mayfield
during plea negotiations. Instead, the court concluded that counsel was not
ineffective in declining to challenge the § 851 enhancement before trial because such
a challenge would have been premature. As to the plea negotiations, the court ruled
that “Mayfield’s contention that defense counsel did not attempt to negotiate a plea
agreement is contradicted by the record.”
II.
Under § 2255, judgment on the pleadings is warranted if “the motion and the
files and records of the case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b). Where an evidentiary record is necessary to rule on the
prisoner’s claim, however, the district court must convene a hearing. Id. We review
the district court’s legal conclusions de novo and any findings of fact for clear error.
Allen v. United States, 854 F.3d 428, 432 (8th Cir. 2017).
-4-
To prevail on a claim of ineffective assistance of counsel, a movant must show
that counsel’s performance was deficient, and that he suffered prejudice as a result.
Strickland v. Washington, 466 U.S. 668, 687 (1984). On the first element, “we
consider counsel’s performance objectively and gauge whether it was reasonable
‘under prevailing professional norms’ and ‘considering all the circumstances.’”
Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000) (quoting Strickland, 466
U.S. at 688). There is a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, and
“strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Id. at 690.
Mayfield argues that his attorney’s performance was constitutionally deficient
because counsel advised Mayfield to decline a plea offer based on a sentencing
enhancement that any reasonable counsel should have known was inapplicable. The
district court did not address this contention, but we believe that Mayfield fairly
raised it. Mayfield’s motion states: “My attorney did not know federal law so he
thought I qualified for the 851 enhancement. My attorney did not know federal law
and did not advise me in the proper way. . . . At my attorney’s advice I was told to
take it to trial because I had nothing to lose as I would not get anything less than 20
years.” R. Doc. 205, at 4. In response to the government’s opposition, Mayfield
further explained: “The government is saying that I claim that my attorney was
ineffective because he did not file a pretrial motion to have my 8:51 enhancement
dropped. This is not my claim. My attorney was ineffective because he did not know
I did not qualify for the 8:51.” R. Doc. 215, at 1. Mayfield renews this contention
on appeal.
The Sixth Amendment right to effective assistance of counsel includes
representation during the plea bargaining process. Missouri v. Frye, 566 U.S. 134,
143-47 (2012). “[T]he negotiation of a plea bargain is a critical phase of litigation
for purposes of the Sixth Amendment right to effective assistance of counsel.”
-5-
Padilla v. Kentucky, 559 U.S. 356, 373 (2010). “If a plea bargain has been offered,
a defendant has the right to effective assistance of counsel in considering whether to
accept it.” Lafler v. Cooper, 566 U.S. 156, 168 (2012). Effective assistance requires
the provision of reasonably informed advice on material issues. “An attorney’s
ignorance of a point of law that is fundamental to his case combined with his failure
to perform basic research on that point is a quintessential example of unreasonable
performance under Strickland.” Hinton v. Alabama, 571 U.S. 263, 274 (2014) (per
curiam). This court, for example, upheld a finding that counsel was not
professionally reasonable in advising a client to plead guilty based on a mistaken
understanding about parole, where “[m]inimal research would have alerted counsel
to the correct parole eligibility date.” Garmon v. Lockhart, 938 F.2d 120, 121 (8th
Cir. 1991).
The record at this juncture does not conclusively refute Mayfield’s claim, and
it lends some support to his argument. At Mayfield’s sentencing hearing, defense
counsel implied that his advice during plea discussions had assumed a statutory
minimum punishment of twenty years, due to Mayfield’s prior conviction and the
government’s notice of enhanced punishment under § 851. Counsel explained that
“there was no reason for [Mayfield] to enter into a plea agreement because he was
looking at 20 years no matter what.”
If that was counsel’s advice, then it was not professionally reasonable.
Rudimentary research would have revealed that the twenty-year minimum did not
apply, because the prior conviction noticed by the government did not qualify as a
conviction for a “felony drug offense” under federal law. The § 851 notice included
Mayfield’s Arizona criminal case number. The online docket for that case number
produces a judgment showing that Mayfield was prosecuted for possession of drug
paraphernalia under Arizona Revised Statutes § 13-3415 and sentenced under § 13-
901.01(A). The version of § 13-901.01(A) that applied when Mayfield committed the
offense prohibited incarceration: “The court shall suspend the imposition or
-6-
execution of sentence and place such person on probation.” A.R.S. § 13-901.01(A)
(2001). Although the plain language of § 13-901.01(A) referred only to cases
involving possession of a “controlled substance,” the Supreme Court of Arizona held
in 2001 that it also encompassed possession of drug paraphernalia associated solely
with personal use. State v. Estrada, 34 P.3d 356, 361 (Ariz. 2001). A judgment
citing § 13-901.01(A) in a drug paraphernalia case should have prompted
professionally reasonable counsel to locate Estrada if necessary to resolve any
ambiguity. And because the federal definition of “felony drug offense” required an
offense punishable by more than one year, 21 U.S.C. § 802(44), Mayfield’s offense
in Arizona did not qualify. All of these sources were readily available public
documents that professionally reasonable counsel is expected to consider. See
Rompilla v. Beard, 545 U.S. 374, 384 (2005).
The government suggests that Arizona law was “confusing” because the statute
was amended shortly after Mayfield’s offense to permit a penalty of imprisonment in
certain circumstances. See A.R.S. § 13-901.01(E) (2002). This is not a situation,
however, where the law was unsettled or debatable, in which case professionally
reasonable counsel is not expected to anticipate developments in the law or to raise
issues unsupported by existing precedent. E.g., Anderson v. United States, 762 F.3d
787, 794 (8th Cir. 2014); Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002).
That the statute was amended simply meant that counsel’s basic research had to
include tracing the history of the statute and matching the correct version to
Mayfield’s prior offense. That the prosecutor made the same mistake would not
demonstrate professional reasonableness.*
*
Mayfield also argues that counsel performed deficiently because he was
ignorant of the potential for a sentence reduction under 18 U.S.C. § 3553(e).
Mayfield did not raise this claim in the district court, and it is therefore waived.
-7-
If a developed record establishes that counsel’s performance was deficient,
then the district court should consider whether Mayfield suffered prejudice as a result
of counsel’s flawed advice. Where a movant asserts that counsel’s deficient
performance led the defendant to reject a favorable plea offer and proceed to trial,
a defendant must show that but for the ineffective advice of counsel
there is a reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant would have accepted the
plea and the prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have accepted its terms,
and that the conviction or sentence, or both, under the offer’s terms
would have been less severe than under the judgment and sentence that
in fact were imposed.
Lafler, 566 U.S. at 164.
The record is not developed on the question of prejudice. Mayfield advances
a post hoc assertion that he would have accepted a plea agreement on the terms
outlined in the prosecutor’s e-mail of February 2016 if he had known that the twenty-
year statutory minimum did not apply. But whether there is a reasonable probability
that he would have done so is a fact-dependent issue that requires consideration of
factors that would have affected Mayfield’s decisionmaking, and any
“contemporaneous evidence to substantiate [the] defendant’s expressed preferences.”
Lee v. United States, 137 S. Ct. 1958, 1967 (2017). In this case, for example, the
government’s offer projected an advisory guideline range of 210 to 262 months’
imprisonment with a three-level reduction for acceptance of responsibility, but a
range of 235 to 293 months’ imprisonment if the government elected not to move for
a third level under USSG § 3E1.1(b). There was uncertainty about the advisory
guideline range, and Mayfield would have made his decision in that context. (The
district court later calculated a base offense level of 32, two levels lower than the
government’s estimate of level 34 in the plea offer, after finding that the drug quantity
-8-
of 4.9896 kilograms fell just below a threshold of 5 kilograms for level 34. See R.
Doc. 194, at 7, ¶ 17.).
To resolve the issue of prejudice, therefore, the district court would have to
make findings about what likely would have transpired in February 2016 under a
counterfactual scenario in which defense counsel recognized that the twenty-year
statutory minimum did not apply and so advised Mayfield. If Mayfield demonstrates
a reasonable probability that he would have accepted the plea offer of February 10
with effective assistance of counsel, and that the ultimate disposition would have
been more favorable to him in that scenario, then the court has discretion “to require
the prosecution to reoffer the plea proposal,” and to fashion an appropriate sentence
if the plea agreement is accepted by the parties and the court. Lafler, 566 U.S. at 171.
* * *
For these reasons, the record does not conclusively show that Mayfield is
entitled to no relief under § 2255. We therefore vacate the district court’s order
denying the motion, and remand for further proceedings.
______________________________
-9- | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523578/ | FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 8, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
MANUEL GARCIA,
Petitioner - Appellant,
v. No. 19-1286
(D.C. No. 1:19-CV-00868-LTB-GPG)
STANCIL, (D. Colo.)
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, BALDOCK, and EID, Circuit Judges.
_________________________________
Manuel Garcia, a federal prisoner appearing pro se, appeals the district court’s
dismissal of his Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241. The court determined he had not shown that the remedy 28 U.S.C. § 2255
provides was “inadequate or ineffective to test the legality of his detention,”
§ 2255(e). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
In 1994, a jury convicted Garcia in the United States District Court for the
District of New Jersey for committing murder for hire in violation of 18 U.S.C.
§ 1958, and he was sentenced to life imprisonment. See United States v. Garcia,
204 F. Supp. 2d 790, 792 (D.N.J. 2002) (recounting case history). His conviction and
sentence were affirmed on direct appeal. See id. In 1998, the district court denied
his initial § 2255 motion, and the Third Circuit declined to issue him a certificate of
appealability. See id. at 792. In 2002, Garcia moved for a sentence reduction under
18 U.S.C. § 3582(c)(2) and Amendment 591 to the United States Sentencing
Guidelines, which became effective in 2000. The district court denied that motion
because Amendment 591 was not retroactively applicable and in any event the
amendment would not change Garcia’s sentence. Garcia, 204 F. Supp. 2d at 794-95.
The Third Circuit affirmed without opinion. United States v. Garcia, 80 F. App’x
289 (3d Cir. 2003).
In 2019, while incarcerated at a Colorado prison, Garcia filed a § 2241 habeas
application in the United States District Court for the District of Colorado. Based on
intervening changes in statutory interpretation, he argued the sentencing court erred
in looking to Sentencing Guideline § 2A1.5, Conspiracy or Solicitation to Commit
Murder, instead of the guideline specific to his § 1958(a) murder-for-hire conviction,
§ 2E1.4, as set forth in Appendix A to the Guidelines. As explained in the district
court’s denial of Garcia’s § 3582(c)(2) motion, the court had looked initially to
§ 2E1.4, but an application note there led it to § 2A1.5, and a cross-reference in
2
§ 2A1.5 led the court to the first-degree murder guideline, § 2A1.1, which directs a
life sentence for a premeditated killing where the death penalty is not imposed. See
Garcia, 204 F. Supp. 2d at 794-95. The court declined to reduce Garcia’s sentence
“because loss of life resulted from [his] conspiracy to commit murder, all as alleged
in the indictment and as found by the jury’s verdict.” Id. at 795.
In his § 2241 application, Garcia acknowledged his claim relied only on
intervening changes in statutory interpretation (including Amendment 591, the First
Step Act of 2018, and various Supreme Court, Third Circuit, and other federal cases).
Garcia also acknowledged he could not meet the requirements for a second or
successive § 2255 motion because his claims did not rely on “newly discovered
evidence” or “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable,” § 2255(h). He thus
asserted he should be allowed to seek § 2241 relief based on the “savings clause” of
§ 2255(e). Under the savings clause, “a federal prisoner may resort to § 2241 to
contest his conviction if but only if the § 2255 remedial mechanism is ‘inadequate or
ineffective to test the legality of his detention.’” Prost v. Anderson, 636 F.3d 578,
580 (10th Cir. 2011) (quoting § 2255(e)).1
1
In full, § 2255(e) provides:
An application for a writ of habeas corpus in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to this section, shall not be
entertained if it appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court has denied him
3
A magistrate judge ordered Garcia to show cause why the remedy § 2255
provides was “inadequate or ineffective to test the legality of his detention,”
§ 2255(e). After Garcia responded, the magistrate judge issued a recommendation
that the court dismiss the § 2241 application because Garcia did not meet his burden
to show the savings clause applied. Garcia did not file any objections to the
recommendation, and the district court adopted it, dismissing the application without
prejudice. Garcia appeals.2
II. Discussion
We review de novo a district court’s dismissal of a § 2241 application based
on a failure to show § 2255(e)’s savings clause applies. See Hale v. Fox, 829 F.3d
1162, 1170 (10th Cir. 2016). Garcia has the burden to show he satisfies § 2255(e).
See id. Because Garcia represents himself, we afford his filings a liberal construction
relief, unless it also appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention.
2
We ordered Garcia to show cause why, under our “firm waiver rule,” he had
not waived his right to appellate review by failing to file timely objections to the
magistrate judge’s findings and recommendation. See Fed. R. Civ. P. 72(b)(2)
(“Within 14 days after being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the proposed findings and
recommendations.”); Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir.
2005) (explaining firm waiver rule and noting exceptions when (1) a district court
does not inform a pro se litigant of the deadline for filing objections “and the
consequences of failing to object” or (2) “the interests of justice require review”
(internal quotation marks omitted)). Having reviewed Garcia’s response to the
show-cause order, which includes his objections to the recommendation, we conclude
that although he received the required warning, an intervening prison lockdown may
have prevented him from timely filing objections or seeking an extension of time to
do so. We therefore will consider his objections as part of our merits analysis.
4
but do not act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
Garcia argues that based on statutory interpretations and newly announced
substantive law that post-date the resolution of his initial § 2255 motion, it is now
clear that the sentencing court should have applied only the Guideline specific to his
§ 1958 conviction (§ 2E1.4) and not followed the path it took to the Guideline for
first-degree murder (§ 2A1.1). Because the Third Circuit would permit him to use
§ 2241 in these circumstances, he asks us to apply the Third Circuit’s savings-clause
test. The Third Circuit’s test permits a federal prisoner to proceed under § 2241 if he
has not had an “earlier opportunity to challenge his conviction for a crime that an
intervening change in substantive law may negate.” In re Dorsainvil, 119 F.3d 245,
251 (3d Cir. 1997). We recognize, as did the magistrate judge, that nine other circuit
courts apply the same test as the Third Circuit. See, e.g., Bruce v. Warden Lewisburg
USP, 868 F.3d 170, 179-80 (3d Cir. 2017) (collecting circuit cases representing the
majority and minority views). But our test, along with that of the Eleventh Circuit,3
differs.
In Prost, we held that “[t]he relevant metric or measure” of § 2255’s adequacy
or effectiveness “is whether a petitioner’s argument challenging the legality of his
detention could have been tested in an initial § 2255 motion. If the answer is yes,
then the petitioner may not resort to the savings clause and § 2241.” 636 F.3d at 584.
3
See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076,
1080, 1099-1100 (11th Cir. 2017) (en banc).
5
Among the reasons for our rule was that “[w]hen Congress adopted § 2255(h), . . . it
was surely aware that prisoners might seek to pursue second or successive motions
based on newly issued statutory interpretation decisions.” Id. at 585. However,
Congress chose to allow “statutory innocence” claims only “in initial § 2255 motions
without risk of being time-barred,”4 and not “in second or successive § 2255
motions.” Id. at 585-86. Further, we rejected the argument Garcia implicitly
makes—that a defendant “should be excused for failing to bring a ‘novel’ [statutory
interpretation] argument for relief” in an initial § 2255 motion—i.e., one that a court
had not yet approved. Id. at 589. We explained that “[t]o invoke the savings clause,
there must be something about the initial § 2255 procedure that itself is inadequate or
ineffective for testing a challenge to detention.” Id. And “the fact that [a defendant]
or his counsel may not have thought of [a novel statutory interpretation argument
later approved by a court] earlier doesn’t speak to the relevant question whether
§ 2255 itself provided [the defendant] with an adequate and effective remedial
mechanism for testing such an argument.” Id.
We are bound to apply Prost, notwithstanding the majority circuit view on
application of the savings clause to claims that turn on new statutory interpretations.
See United States v. Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014) (“Absent en banc
4
Congress accomplished this task through § 2255(f)(3), which allows the
one-year limitations period for filing an initial § 2255 motion to run from “the date
on which the right asserted was initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.”
6
reconsideration, we . . . cannot overturn the decision of another panel of this court”
unless “the Supreme Court issues an intervening decision that is contrary to or
invalidates our previous analysis.” (internal quotation marks omitted)). We must
therefore affirm the district court’s judgment.
III. Conclusion
For the foregoing reasons, we affirm the district court’s judgment. We grant
Garcia’s motion to proceed in forma pauperis on appeal. Because the relevant
statute, 28 U.S.C. §§ 1915(a)(1), excuses only “prepayment of fees,” Garcia is
obligated to pay the full amount of the appellate filing and docketing fees
immediately to the United States District Court for the District of Colorado.
Entered for the Court
Bobby R. Baldock
Circuit Judge
7 | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523582/ | Case: 18-2097 Document: 89 Page: 1 Filed: 04/08/2020
United States Court of Appeals
for the Federal Circuit
______________________
VALEANT PHARMACEUTICALS
INTERNATIONAL, INC., SALIX
PHARMACEUTICALS, INC., PROGENICS
PHARMACEUTICALS, INC., WYETH LLC, FKA
WYETH,
Plaintiffs-Appellees
v.
MYLAN PHARMACEUTICALS INC., MYLAN INC.,
MYLAN LABORATORIES LIMITED,
Defendants-Appellants
ACTAVIS LLC,
Defendant
______________________
2018-2097
______________________
Appeal from the United States District Court for the
District of New Jersey in Nos. 2:15-cv-08180-SRC-CLW,
2:15-cv-08353-SRC-CLW, 2:16-cv-00035-SRC-CLW, 2:16-
cv-00889-SRC-CLW, 2:17-cv-06714-SRC-CLW, Judge
Stanley R. Chesler.
______________________
Decided: April 8, 2020
______________________
Case: 18-2097 Document: 89 Page: 2 Filed: 04/08/2020
2 VALEANT PHARMACEUTICALS INTL. v. MYLAN
PHARMACEUTICALS INC.
BRYAN DINER, Finnegan, Henderson, Farabow, Garrett
& Dunner, LLP, Washington, DC, argued for all plaintiffs-
appellees. Plaintiffs-appellees Valeant Pharmaceuticals
International, Inc., Salix Pharmaceuticals, Inc., Progenics
Pharmaceuticals, Inc. also represented by JUSTIN JAMES
HASFORD, CORA RENAE HOLT, ESTHER LIM; JESSICA C.
LEBEIS, Boston, MA; CHARLES E. LIPSEY, Reston, VA.
CHARLES H. CHEVALIER, Gibbons P.C., Newark, NJ, for
plaintiff-appellee Wyeth LLC. Also represented by
JONATHON BRUGH LOWER.
ROBERT FLORENCE, Parker Poe Adams & Bernstein
LLP, Atlanta, GA, argued for defendants-appellants. Also
represented by MICHEAL L. BINNS, KAREN L. CARROLL.
______________________
Before LOURIE, REYNA, and HUGHES, Circuit Judges.
LOURIE, Circuit Judge.
Mylan Pharmaceuticals Inc., Mylan Inc., and Mylan
Laboratories Ltd. (collectively, “Mylan”) appeal from the
U.S. District Court for the District of New Jersey’s grant of
summary judgment that claim 8 of U.S. Patent 8,552,025
(“the ’025 patent”) is not invalid. Valeant Pharm. Int’l, Inc.
v. Mylan Pharm., Inc., No. 2:15-cv-08180 (SRC), 2018 WL
2023537 (D.N.J. May 1, 2018) (“Decision”). For the reasons
detailed below, we reverse and remand.
BACKGROUND
Valeant owns the ’025 patent, which claims stable me-
thylnaltrexone pharmaceutical preparations. According to
the ’025 patent specification, methylnaltrexone, a quater-
nary amine opioid antagonist derivative, can be useful for
reducing the side effects of opioids but is unstable in aque-
ous solution. The inventors discovered, however, that
when the pH of a methylnaltrexone solution is adjusted,
Case: 18-2097 Document: 89 Page: 3 Filed: 04/08/2020
VALEANT PHARMACEUTICALS INTL. v. MYLAN 3
PHARMACEUTICALS INC.
optimally to between 3.0 and 3.5, the percentage of total
degradants drops significantly. ’025 patent col. 2 l. 39.
The inventors’ preferred manufacturing process for
their formulation, as described in Example 2, includes sev-
eral ingredients acting in concert. Example 2 includes me-
thylnaltrexone, sodium edetate as a chelating agent,
sodium citrate and citric acid as buffering agents, and so-
dium chloride as an isotonicity agent. Each ingredient in
the formulation plays its own role. For example, the buffer
stabilizes the formulation’s pH, which can drop during an
autoclaving step, and adding isotonicity agents matches
the formulation to the osmotic potential of human extracel-
lular fluids. Chelating agents reduce methylnaltrexone
degradation on their own, and the addition of disodium
edetate in particular yields an additional, synergistic effect
in concert with pH manipulation. The specification thus
explains that “manipulating other parameters in concert
with pH resulted in stable formulations of methylnaltrex-
one anywhere in a range from a pH of 2.0 to 6.0.” ’025 pa-
tent col 8. ll. 62–66.
Relevant here are claim 1 and claim 8 of the ’025 pa-
tent. Claim 8 depends from claim 1, which recites:
A stable pharmaceutical preparation comprising a
solution of methylnaltrexone or a salt thereof,
wherein the preparation comprises a pH between
about 3.0 and about 4.0.
’025 patent col. 19 ll. 25–27. Claim 8 recites “[t]he phar-
maceutical preparation of claim 1, wherein the preparation
is stable to storage for 24 months at about room tempera-
ture.” Id. col. 19 ll. 44–46. Notably, claim 8 recites the
same preparation as claim 1, but with a newly stated re-
sult: 24-month stability. Given that there are no limita-
tions indicating any difference between the preparation of
claim 1 and claim 8, it is unclear what, if anything, ac-
counts for the added stability limitation. Apparently only
the nature of methylnaltrexone and the pH matter. And
Case: 18-2097 Document: 89 Page: 4 Filed: 04/08/2020
4 VALEANT PHARMACEUTICALS INTL. v. MYLAN
PHARMACEUTICALS INC.
there are no limitations in the claim to bring about the
stated stability.
The ’025 patent is listed in the Orange Book for Re-
listor®, an injectable drug used to treat constipation as a
side effect of taking opioid medication. Mylan filed an Ab-
breviated New Drug Application (“ANDA”) seeking ap-
proval from the U.S. Food and Drug Administration to
market a generic version of Relistor®, and Valeant re-
sponded by bringing suit against Mylan in the District of
New Jersey, alleging that Mylan’s proposed product would
infringe the ’025 patent. As relevant here, Mylan ulti-
mately conceded that its ANDA product would infringe
claim 8 of the ’025 patent but maintained that claim 8 was
invalid as obvious over solutions of similar anti-opioids.
The parties stipulated to the construction of claim 8’s
stability limitation, and the district court did not hold a
claim construction hearing. Specifically, the court entered
the parties’ stipulation that the phrase “the preparation is
stable to storage for 24 months at about room temperature”
means “the methylnaltrexone degradation products in the
preparation do not exceed 2.0% of the total methylnaltrex-
one present in the preparation and the preparation is suit-
able for pharmaceutical use when stored for 24 months at
room temperature.” Stipulation and Order, Valeant
Pharm., Int’l v. Mylan Pharm. Inc., 2:15-cv-08180-SRC-
CLW (May 30, 2017), ECF No. 148; J.A. 651.
Before the district court, Valeant moved for summary
judgment that claim 8 would not have been obvious, and
the district court granted Valeant’s motion. The court re-
jected Mylan’s expert testimony and cited references as in-
sufficient, largely because the references did not teach
methylnaltrexone formulations but instead formulations of
similar but different compounds, naloxone and naltrexone.
Decision, 2018 WL 2023537, at *8. The court also rejected
Mylan’s theory that the claimed pH range would have been
obvious to try. Ultimately, the court held that there was
Case: 18-2097 Document: 89 Page: 5 Filed: 04/08/2020
VALEANT PHARMACEUTICALS INTL. v. MYLAN 5
PHARMACEUTICALS INC.
nothing in the record suggesting that a pH of 3–4, “without
added stabilizers,” was associated with 24-month stability
for injectable pharmaceutical solutions. Id. at *10.
Mylan appealed, and we have jurisdiction under 28
U.S.C. § 1295(a)(1).
DISCUSSION
We review a grant of summary judgment under the law
of the regional circuit, which in this case is the Third Cir-
cuit. See Charles Mach. Works, Inc. v. Vermeer Mfg. Co.,
723 F.3d 1376, 1378 (Fed. Cir. 2013) (citing Grober v. Mako
Prods., Inc., 686 F.3d 1335, 1344 (Fed. Cir. 2012)). We ex-
ercise plenary review over the district court’s grant of sum-
mary judgment, Capps v. Mondelez Glob., LLC, 847 F.3d
144, 151 (3d Cir. 2017) (citing Seamans v. Temple Univ.,
744 F.3d 853, 859 (3d Cir. 2014)), reviewing it de novo,
Heraeus Med. GmbH v. Esschem, Inc., 927 F.3d 727, 733
(3d Cir. 2019) (citing Faush v. Tuesday Morning, Inc., 808
F.3d 208, 215 (3d Cir. 2015)).
Summary judgment is appropriate when the moving
party demonstrates 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); Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986). We construe the evi-
dence in the light most favorable to the nonmovant and
draw all reasonable inferences in that party’s favor. Capps,
847 F.3d at 151 (citing Prowel v. Wise Bus. Forms, Inc., 579
F.3d 285, 286 (3d Cir. 2009)). “Only disputes over facts
that might affect the outcome of the suit under the govern-
ing law will properly preclude the entry of summary judg-
ment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
The sole issue in this appeal is obviousness. Obvious-
ness is a question of law, supported by underlying fact
questions. In re Baxter Int’l, Inc., 678 F.3d 1357, 1361 (Fed.
Cir. 2012). In our obviousness analysis, we consider the
Case: 18-2097 Document: 89 Page: 6 Filed: 04/08/2020
6 VALEANT PHARMACEUTICALS INTL. v. MYLAN
PHARMACEUTICALS INC.
scope and content of the prior art, differences between the
prior art and the claims at issue, the level of ordinary skill
in the pertinent art, and any secondary considerations.
Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966); see
also Apple Inc. v. Samsung Elecs. Co., 839 F.3d 1034, 1048
(Fed. Cir. 2016) (en banc) (“Objective indicia of nonobvious-
ness must be considered in every case where present.”).
Before the district court, Mylan argued that claim 8
would have been obvious in view of three references teach-
ing formulations of either naloxone or naltrexone and in
view of two treatises on pharmaceutical formulation. We
begin by reviewing those references.
The primary reference at issue here is U.S. Patent
5,866,154 (“Bahal”), entitled “Stabilized Naloxone Formu-
lations” and issued to inventors Surendra Mohan Bahal
and Lei-Shu Wu. Bahal teaches stable compositions of na-
loxone for injection with a pH of 3.0 to 3.5. Similar to the
methylnaltrexone formulation described in the ’025 patent,
the Bahal solutions comprise an opioid antagonist deriva-
tive—in this case, naloxone—an acidic or buffer compo-
nent, a tonicity-adjusting agent, and a stabilizing agent.
Mylan also relied on Oshlack, U.S. Patent Application
Publication 2003/0229111, which describes stable naltrex-
one hydrochloride compositions. Oshlack teaches dissolv-
ing a “stabilizer” in solution before adding naltrexone
hydrochloride. Stabilizers can be organic acids, and, in cer-
tain preferred embodiments, the stabilizer is butylated hy-
droxytoluene or ascorbic acid. Oshlack ¶ 0051. Thereafter,
the pH of the solution may be adjusted to about 3 to about
5, but preferably to about 4. Id. ¶ 0054.
The respective structures of methylnaltrexone, nalox-
one, and naltrexone are as follows:
Case: 18-2097 Document: 89 Page: 7 Filed: 04/08/2020
Case: 18-2097 Document: 89 Page: 8 Filed: 04/08/2020
8 VALEANT PHARMACEUTICALS INTL. v. MYLAN
PHARMACEUTICALS INC.
explains that many products are formulated at a slightly
acidic pH because of solubility or stability considerations
and that the majority of licensed products have a pH be-
tween 3 and 9. According to Gibson, more acidic pH can
cause phlebitis and pain, while more basic pH can cause
tissue necrosis.
Similarly, another pharmaceutical treatise, Reming-
ton, teaches that drugs with amide or ester linkages are
prone to hydrolysis. Remington explains that many hydro-
lytic reactions are catalyzed by hydronium and hydroxyl
ions, so pH is a relevant consideration in determining the
rate of decomposition. 1 REMINGTON: THE SCIENCE AND
PRACTICE OF PHARMACY 643 (Alfonso R. Gennaro et al. eds.,
19th ed. 1995); J.A. 3255. According to Remington, “[t]he
pH range of minimum decomposition (or maximum stabil-
ity) depends on the ion having the greatest effect on the
reaction,” but, “[i]n general, hydroxyl ions have the
stronger effect.” Thus, Remington concludes, the minimum
reactivity “is often found between pH 3 and 4.” Id.
Relying on these references, Mylan argued that a per-
son of skill in the art would have been motivated to prepare
and would have arrived at the preparation of claim 8 via
routine optimization of pH. Bahal, Oshlack, and Fawcett
each taught pH ranges that overlapped with the “about 3
to about 4” range in claim 8, but those references detailed
formulations of naloxone and naltrexone. In Mylan’s view,
however, the references still established a prima facie case
of obviousness because naloxone and naltrexone were
structurally and functionally similar to methylnaltrexone.
Mylan also argued that the pH range in the claim would
have been obvious to try.
The district court disagreed, rejecting Mylan’s argu-
ments about Bahal, Oshlack, and Fawcett because none of
the references taught methylnaltrexone formulations. In
the court’s view, overlapping ranges only establish a prima
facie case of obviousness when the only difference between
Case: 18-2097 Document: 89 Page: 9 Filed: 04/08/2020
VALEANT PHARMACEUTICALS INTL. v. MYLAN 9
PHARMACEUTICALS INC.
the prior art is the “range or value of a particular variable.”
Decision, 2018 WL 2023537, at *4.
The district court then turned to what it deemed to be
Mylan’s main argument—that a pH range of 3 to 4 would
have been obvious to try. The court expressly rejected
Mylan’s view that the range was just one of a finite number
of options between pH 3 and 7 that a person of skill would
try, holding that “given any two unequal numbers, the
quantity of number ranges falling between the two is infi-
nite, not finite,” adding that this conclusion was one of
“basic math.” Decision, 2018 WL 2023537, at *5. Mylan
cited Gibson and testimony from two experts that adjusting
pH could improve stability, but the court rejected this evi-
dence because, in its view, the evidence did not support
that “adjusting pH would be the first variable formulators
would consider to improve stability.” Id.
Next, the court rejected Mylan’s assertion that long-
term stability of methylnaltrexone was a predictable result
of arriving at a pH range of 3 to 4. The court faulted the
expert report of Dr. Khan, Mylan’s expert, because he
stated that a person of skill would have expected “stable
formulations” of methylnaltrexone at an acidic pH. The
court held that there was a “large gap” between this testi-
mony and the specific claimed pH range of 3 to 4 with its
claimed stability profile of 24 months. Id. at *7.
In the remainder of its analysis, the district court de-
tailed how the prior art references and expert testimony of
record failed to establish that methylnaltrexone could be
stabilized based on pH alone. The court expressly rejected
Bahal and Oshlack for their reliance on stabilizers in addi-
tion to pH manipulation, holding that neither reference
taught a formulation “without added stabilizers.” Id. at
*7–9. The court recognized that the prior art suggested
that pH was “generally important in formulating pharma-
ceuticals” and could “have an effect on stability,” but, in its
view, the art did not contemplate an injectable solution
Case: 18-2097 Document: 89 Page: 10 Filed: 04/08/2020
10 VALEANT PHARMACEUTICALS INTL. v. MYLAN
PHARMACEUTICALS INC.
“made stable over the long term by pH alone.” Id. at *10.
After stating that the art recognized that adjusting pH was
only “one dart among a number of others,” the court
granted Valeant’s motion for summary judgment that
claim 8 would not have been obvious. Id. at *10–11.
In this appeal, Mylan argues that the district court
erred in at least two respects: (1) by failing to hold that
Mylan established a prima facie case that claim 8 would
have been obvious because the pH range in the claim over-
laps with pH ranges in the prior art for similar compounds
and (2) by resolving disputed fact issues at summary judg-
ment. We address each argument in turn.
I
Mylan cites three prior art references involving differ-
ent compounds, but each discloses formulations with pH
ranges that overlap with the range recited in claim 8, pH
between about 3 and about 4. Specifically, Bahal teaches
a naloxone composition with a pH of 3 to 3.5, Oshlack
teaches a naltrexone composition with a pH of about 3 to
about 5 and about 4, and Fawcett discloses a naltrexone
formulation with a pH of 3.5 that fell to 3.2 over 90 days.
In Mylan’s view, these references establish a prima facie
case of obviousness because the pH ranges they teach over-
lap with those in claim 8. While no reference contemplates
methylnaltrexone specifically, Mylan submits that methyl-
naltrexone bears significant structural and functional sim-
ilarity to both naloxone and naltrexone such that a person
of skill in the art would seek to use prior disclosed pHs for
naloxone and naltrexone when formulating solutions of
methylnaltrexone.
Valeant responds that overlapping ranges for different
chemical compounds that fail to meet claim 8’s stability re-
quirement do not establish obviousness. According to Va-
leant, the structural and functional similarities of the
compounds are not relevant because claim 8 recites a solu-
tion of methylnaltrexone with a stability profile
Case: 18-2097 Document: 89 Page: 11 Filed: 04/08/2020
VALEANT PHARMACEUTICALS INTL. v. MYLAN 11
PHARMACEUTICALS INC.
unrecognized and unattained in the prior art. Neverthe-
less, Valeant submits, methylnaltrexone, naloxone, and
naltrexone function differently because of their structural
differences, and nothing about the shared function of the
drugs is relevant to their stability in solution.
We agree with Mylan that the record supports a prima
facie case of obviousness here. In Peterson, this court rec-
ognized that “[a] prima facie case of obviousness typically
exists when the ranges of a claimed composition overlap
the ranges disclosed in the prior art.” In re Peterson, 315
F.3d 1325, 1329 (Fed. Cir. 2003) (citing In re Geisler, 116
F.3d 1465, 1469 (Fed. Cir. 1997)); In re Woodruff, 919 F.2d
1575, 1578 (CCPA 1990); In re Malagari, 499 F.2d 1297,
1303 (CCPA 1974)). At issue in Peterson was a claim to a
nickel-base single-crystal superalloy used in the manufac-
ture of turbine engines. The claimed composition included
a relatively small amount of rhenium—about 1 to 3 per-
cent. The prior art of record taught compositions with 0 to
7 percent rhenium, an overlapping range within which the
narrower, claimed range fell. We explained that “[s]elect-
ing a narrow range from within a somewhat broader range
disclosed in a prior art reference is no less obvious than
identifying a range that simply overlaps a disclosed range.”
Peterson, 315 F.3d at 1329–30. We thus held that the over-
lapping ranges were sufficient to establish a prima facie
case of obviousness, shifting the burden to the patentee to
show that the invention would not have been obvious.
Here, the pH range recited in claim 8 clearly overlaps
with the pH range in the record art, but none of the refer-
ences disclose the same drug as the one claimed. We are
thus presented with the question whether prior art ranges
for solutions of structurally and functionally similar com-
pounds that overlap with a claimed range can establish a
prima facie case of obviousness. We conclude that they can
and, in this case, do.
Case: 18-2097 Document: 89 Page: 12 Filed: 04/08/2020
12 VALEANT PHARMACEUTICALS INTL. v. MYLAN
PHARMACEUTICALS INC.
We have held that, for chemical compound claims, a
prima facie case of obviousness “frequently turns on the
structural similarities and differences between the com-
pounds claimed and those in the prior art.” Daiichi Sankyo
Co. v. Matrix Labs., Ltd., 619 F.3d 1346, 1352 (Fed. Cir.
2010) (citing In re Dillon, 919 F.2d 688, 692 (Fed. Cir. 1990)
(en banc)). Our case law reflects an understanding that
skilled artisans can expect structurally similar compounds
to have similar properties. See, e.g., Dillon, 919 F.2d at 692
(“[S]tructural similarity between claimed and prior art
subject matter, proved by combining references or other-
wise, where the prior art gives reason or motivation to
make the claimed compositions, creates a prima facie case
of obviousness . . . .”); In re Deuel, 51 F.3d 1552, 1558 (Fed.
Cir. 1995) (“Structural relationships may provide the req-
uisite motivation or suggestion to modify known com-
pounds to obtain new compounds.”). We have also
recognized that an obviousness analysis can rely on prior
art compounds with similar pharmacological utility in ad-
dition to structural similarity. See, e.g., In re Merck & Co.,
Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (holding that a
person of skill in the art would have expected amitriptyline
to resemble imipramine in the alleviation of depression in
humans because of the drugs’ close structural similarity
and similar use); Application of Payne, 606 F.2d 303, 314
(CCPA 1979) (“Because of the close structural similarity
between the claimed compounds at issue here and the com-
pounds [in the prior art], and because those prior art com-
pounds possess pesticidal activity, we conclude that the
required motivation is present here.” (citing In re Wood,
582 F.2d 638, 641 (CCPA 1978)); Application of Rosselet,
347 F.2d 847, 850 (CCPA 1965) (“[A]ppellants have failed
to present adequate evidence to overcome a prima facie
showing of obviousness by reason of the admitted ‘gross
structural similarities’ of the art compounds, coupled with
the fact those compounds are shown to have utility in the
same area of pharmacological activity.”).
Case: 18-2097 Document: 89 Page: 13 Filed: 04/08/2020
VALEANT PHARMACEUTICALS INTL. v. MYLAN 13
PHARMACEUTICALS INC.
Our previous cases address claims to compounds and
their uses. But the principle established in these cases ap-
plies more broadly: a person of skill in the art can expect
that compounds with common properties are likely to share
other related properties as well. See Anacor Pharms., Inc.
v. Iancu, 889 F.3d 1372, 1384 (Fed. Cir. 2018) (“Where the
patent is directed to a new treatment using a known com-
pound, it is reasonable to assume that similar compounds
that share certain common properties are apt to share
other related properties as well.” (citing Merck, 800 F.2d at
1096)). When compounds share significant structural and
functional similarity, those compounds are likely to share
other properties, including optimal formulation for long-
term stability.
Here, the art teaches stable formulations of naloxone,
naltrexone, and methylnaltrexone. All three compounds
are well-known opioid antagonists that operate by binding
to the body’s opioid receptors without activating them.
Each is an oxymorphone derivative, and the group mem-
bers have remarkably similar structures, as indicated ear-
lier. The only structural difference between these three
molecules is the identity of the functional group attached
to the nitrogen atom. Naloxone is a neutral tertiary amine.
Naltrexone, also a neutral tertiary amine, has a cyclo-
propylmethyl group attached to the nitrogen. Methylnal-
trexone, a derivative of naltrexone, is a quaternary
ammonium salt and has both a cyclopropylmethyl group
and a methyl group attached to its nitrogen with a positive
charge. Because of the strong structural and functional
similarity between the molecules, a person of skill could ex-
pect similar stability of the molecules at similar pH ranges
in solution. The district court erred by rejecting this infer-
ence as a matter of law at the summary judgment stage.
Because these three molecules bear significant struc-
tural and functionality similarity, and because the prior
art of record teaches pH ranges that overlap with the pH
range recited in claim 8, Mylan has at least raised a prima
Case: 18-2097 Document: 89 Page: 14 Filed: 04/08/2020
14 VALEANT PHARMACEUTICALS INTL. v. MYLAN
PHARMACEUTICALS INC.
facie case of obviousness sufficient to survive summary
judgment.
Our holding should not be misconstrued to mean that
molecules with similar structure and similar function can
always be expected to exhibit similar properties for formu-
lation. Indeed, when this case is tried to a factfinder, the
factfinder should consider whether Valeant has rebutted
Mylan’s prima facie case, by, for example, establishing that
the claimed pH range is critical or that the quaternary ni-
trogen results in unexpected beneficial properties. See,
e.g., Geisler, 116 F.3d at 1469; Woodruff, 919 F.2d at 1578.
Valeant may also attempt to rebut Mylan’s case by showing
that the prior art teaches away from the claimed invention
in any respect. Peterson, 315 F.3d at 1331 (citing Geisler,
116 F.3d at 1469). Whether methylnaltrexone’s structural
similarity in an overlapping range of pH in solution is suf-
ficient to yield a prima facie case of obviousness depends
on the facts of record. In re Jones, 958 F.2d 347, 350 (Fed.
Cir. 1992) (“Every case, particularly those raising the issue
of obviousness under section 103, must necessarily be de-
cided upon its own facts.”). Contrary to the district court’s
view in this case, however, such a theory of obviousness is
not defective as a matter of law, and summary judgment to
that effect was granted in error.
II
Next, we address Mylan’s argument that there were
factual disputes precluding summary judgment. Many of
Mylan’s arguments have been adequately addressed by our
analysis above. Mylan raises a significant concern, how-
ever, with the district court’s obvious-to-try analysis. In
evaluating Mylan’s obvious-to-try argument, the district
court held that there was not a finite number of options
between pH ranges falling between 3 and 7. The court held
that, as a matter of “basic math,” “given any two unequal
numbers, the quantity of number ranges falling between
the two is infinite, not finite.” Decision, 2018 WL 2023537,
Case: 18-2097 Document: 89 Page: 15 Filed: 04/08/2020
VALEANT PHARMACEUTICALS INTL. v. MYLAN 15
PHARMACEUTICALS INC.
at *5. The court also rejected Mylan’s citations of expert
testimony and prior art references because none of the ref-
erences identified pH as the “first variable” that an experi-
enced formulator would consider and because Mylan’s
expert concluded that a person of skill would have expected
only “stable formulations,” not formulations stable for 24
months at room temperature. Id. at *6–7.
In Mylan’s view, the district court disregarded Mylan’s
obvious-to-try evidence because the pH ranges taught in
the prior art were not sufficiently narrow. Mylan submits
that the adequacy of a prior art range is a classic question
of fact and that the district court imposed a heightened pre-
dictability requirement.
Valeant does not appear to defend the district court’s
“basic math” reasoning and, respectfully, we disagree with
the court’s view of basic math. Instead, Valeant responds
that a pH range of 3 to 4 would not have been obvious to
try because the asserted prior art did not disclose a formu-
lation exhibiting 24-month stability and because Mylan’s
experts did not explain why such stability would have been
expected.
We agree with Mylan that the district court’s obvious-
to-try analysis is inconsistent with precedent. “When there
is a design need or market pressure to solve a problem and
there are a finite number of identified, predictable solu-
tions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp.” KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). If one of
these predictable solutions leads to the anticipated success,
the combination was obvious to try. Id.
The bounded range of pH 3 to 4 presents a finite num-
ber of narrower pH ranges for a skilled artisan to try. As
a matter of math, there may be an infinite potential num-
ber of ranges within the range 3 to 4, but only if the reali-
ties of pH values (and the limitations of commercially
available pH meters) are ignored. But on this record, there
Case: 18-2097 Document: 89 Page: 16 Filed: 04/08/2020
16 VALEANT PHARMACEUTICALS INTL. v. MYLAN
PHARMACEUTICALS INC.
is no indication that pH is measured to any significant fig-
ure beyond two digits. And in our view of basic math and
based on the record, there is only one significant figure af-
ter the decimal point, in which case the range of pH varia-
bles is ten, or, if one considers two significant figures after
the decimal point, one hundred, not an infinity.
The district court rejected record evidence because no
reference listed pH as the “first variable” that an artisan
would manipulate. But there is no requirement that for a
variable to be obvious to try, it must be the first variable a
person of skill would alter. And as to the stability limita-
tion, a factfinder could draw the inference from this record
that trying a pH of 3–4 would lead to a methylnaltrexone
formulation stable at room temperature. Absolute predict-
ability that the proposed pH range would yield the exact
stability parameters in the claim is not required. Moreo-
ver, it is important to note that pH is in fact the only vari-
able in claim 8, not one of many variables that can be
experimented with. And, lacking anything in the claim
that is a stabilizer, it can be presumed, if the claim is valid,
that the stability for up to 24 months must be due to the
nature of the compound in the solution and the claimed pH
level. Thus, the district court’s grant of summary judg-
ment on Mylan’s obvious-to-try theory was in error.
CONCLUSION
We have considered the parties’ remaining arguments
but find them unpersuasive. In light of the foregoing, we
reverse the district court’s grant of summary judgment
that claim 8 would not have been obvious and remand this
case for further proceedings consistent with this opinion.
REVERSED AND REMANDED | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523580/ | Case: 19-11284 Date Filed: 04/08/2020 Page: 1 of 13
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11284
Non-Argument Calendar
________________________
D.C. Docket No. 5:17-cv-00494-TES
MIA HOLLINGSWORTH,
Plaintiff-Appellant,
versus
LIBERTY MUTUAL INSURANCE
COMPANY,
a foreign insurance company,
Defendant,
LM INSURANCE CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(April 8, 2020)
Case: 19-11284 Date Filed: 04/08/2020 Page: 2 of 13
Before JILL PRYOR, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Mia Hollingsworth, proceeding pro se, appeals the district court’s order
granting summary judgment in favor of LM Insurance Corporation on her breach
of contract and bad faith claims arising out of LM’s alleged insufficient payment
for fire damage to her home. Hollingsworth contends that the district court erred in
concluding that no genuine issue of material fact existed regarding whether her
home was “wholly destroyed” within the meaning of Georgia’s Valued Policy
Statute, O.C.G.A. § 33-32-5(a). She further argues that even if her home was not
wholly destroyed, there were genuine issues of material fact concerning whether
LM breached the insurance agreement and whether LM acted in bad faith by
failing to pay the full repair cost of the damage to her home. After careful review,
we affirm the district court’s grant of summary judgment.
I. BACKGROUND
A. Factual Background
In September 2017, a fire damaged Hollingworth’s home. The day after the
fire, Hollingsworth filed a claim with LM under an insurance policy contract.
About eight days later, an LM representative photographed the damage to the
home. Due to the nature of the damage, LM reassigned the claim to a large loss
adjuster.
2
Case: 19-11284 Date Filed: 04/08/2020 Page: 3 of 13
About two weeks after the fire, Hollingsworth met with the large loss
adjuster. He inspected the home and provided her with a repair estimate of
$190,299.00 eight days later. In addition to providing the estimate, the adjuster
also discussed with Hollingsworth the overall scope of the repairs as well as the
estimated time for their completion. He also advised that the house was not a total
loss, meaning that it would be repaired rather than completely rebuilt.
Consistent with the terms of the insurance policy, Hollingsworth sought
repair estimates from three different contractors. The first contractor never
provided an estimate because Hollingsworth felt that the representative was
“rude and dismissive” and that he wanted to make repairs based solely on LM’s
estimate. Doc. 28-1 at 26.1
Hollingsworth then met with a second contractor, who was recommended
by LM. He provided a verbal estimate of around $320,000 for the repairs. He
told Hollingsworth that he would provide a formal written estimate once he had
consulted with an electrical sub-contractor, but he never did, despite receiving an
electrical quote and multiple follow-up attempts by Hollingsworth. This
contractor says he told Hollingsworth that the home was not a complete loss.
Hollingsworth disputes this; according to her, he “did not state the Property was
not a total loss.” Doc. 26-2 at 4.
1
“Doc. #” refers to the numbered entry on the district court’s docket.
3
Case: 19-11284 Date Filed: 04/08/2020 Page: 4 of 13
Hollingsworth’s third contractor provided a written estimate of $366,599.03
to repair the fire damage and, like the second contractor, “did not, at any point,
provide . . . an opinion that the Property was a total loss.” Doc. 24-2 at 4-5
Three days after Hollingsworth received the written estimate from the third
contractor, she informed the second contractor that she would not need his
services because she was “more comfortable with a local contractor with local
trades.” Doc. 26-3 at 21.
At some point after receiving the initial estimate from LM’s adjuster,
Hollingsworth reached out to an engineering firm because she was concerned
about the scope of the proposed electrical work and repairs. After inspecting the
house, the engineering firm issued a structural engineering report supporting its
conclusions that repair of the home was “feasible.” Doc. 24-2 at 5; see also Doc.
26-2 at 3. Hollingsworth submitted this report to LM and informed it that she
believed that Georgia’s Valued Policy statute, O.C.G.A. § 33-32-5(a), applied to
her claim. She demanded payment of the policy limits consistent with the
statute.
After receiving Hollingworth’s demand letter and reviewing the
engineering firm’s report, LM revised its repair estimate from $190,299.00 to
$232,698.27 and paid Hollingsworth the property’s actual cash value,
4
Case: 19-11284 Date Filed: 04/08/2020 Page: 5 of 13
$163,427.95. 2 LM’s revised estimate included, among other things, the
electrical quote from the second contractor and “reflect[ed] an agreed cost of
restoration” between the second contractor and LM. Doc. 26-5 at 5.
Despite the difference between LM’s estimate and the estimate of the
contractor Hollingsworth chose to hire—the third contractor from whom she
received an estimate—LM and the contractor “agreed to work towards reaching
an agreed scope of damages” and discussed “a mutual plan to inspect certain
exterior walls to investigate for any smoke damage.” Doc. 24-2 at 16.
Hollingsworth filed this lawsuit before the inspection could take place.
After the case was filed, LM hired another engineer to inspect the home.
With the understanding that Hollingsworth considered her property to be a total
loss, the engineer performed a visual and photographic survey of the house. He
concluded, in a report detailing his observations, that in his “professional
opinion” Hollingsworth’s home was “not damaged to the extent that it should be
considered a total loss.” Doc. 24-8 at 7.
B. Procedural Background
Hollingsworth brought this action against LM in the Middle District of
Georgia for breach of contract and for bad faith regarding its duties under the
2
The actual cash value represents the replacement cost value minus the depreciation of
Hollingworth’s property at the time of the fire and the applicable deductible.
5
Case: 19-11284 Date Filed: 04/08/2020 Page: 6 of 13
insurance policy. LM moved for summary judgment, arguing that it had
complied with the terms of the insurance policy because Hollingsworth’s home
was not “wholly destroyed” under Georgia law, O.C.G.A. § 33-32-5(a), and that
it did not act in bad faith because it paid Hollingsworth as required by the terms
of the policy. The district court agreed and granted LM’s motion. This appeal
followed.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo, viewing all
the evidence, and drawing all reasonable factual inferences, in favor of the
nonmoving party. Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir. 2017).
Summary judgment is appropriate if the movant demonstrates that there is no
genuine issue as to any material fact and is entitled to judgment as a matter of law.
Id.; Fed. R. Civ. P. 56(a). “[U]nsupported speculation does not meet a party’s
burden of producing some defense to a summary judgment motion.” Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (alterations adopted) (internal
quotation marks omitted). “[T]here must be enough of a showing that the jury
could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th
Cir. 1990).
6
Case: 19-11284 Date Filed: 04/08/2020 Page: 7 of 13
III. DISCUSSION
A. Breach of Contract
In order to prove a breach of contract claim under Georgia law, a plaintiff
must demonstrate: (1) a valid contract, (2) breach of that contract, and
(3) damages caused by the breach. See Bartholomew v. AGL Res., Inc., 361 F.3d
1333, 1339 (11th Cir. 2004). Hollingsworth alleged that “failure to pay the
replacement cost [of her home]” was a breach of the insurance contract. Doc. 1 at
3. She based this allegation on Georgia’s Valued Policy Statute, which provides
that the insurance policy limit of a one- or two-family residential building or
structure is “taken conclusively to be the value of the property” whenever the
property is “wholly destroyed” by fire without fraudulent or criminal fault by the
policyholder or her agent. O.C.G.A. § 33-32-5(a). The statute, which is intended
to protect property owners from the burden of proving the value of property after it
has been wholly destroyed, entitles a property owner to recover the policy limit.
Marchman v. Grange Mut. Ins. Co., 500 S.E.2d 659, 661 (Ga. Ct. App. 1998) As
explained below, this statute does not apply to Hollingsworth’s claim because she
has provided no evidence that her home was wholly destroyed. Thus, LM did not
breach the insurance policy by paying the actual cash value of the claim and
committing to pay the repair costs rather than paying the policy limit.
7
Case: 19-11284 Date Filed: 04/08/2020 Page: 8 of 13
Georgia law does not define “wholly destroyed,” but two cases from the
Georgia Court of Appeals are instructive.3 The first case is Allstate Insurance Co.
v. Baugh, 327 S.E.2d 576 (Ga. Ct. App. 1985). In Baugh, the insurer contended
that the trial court erred in charging the jury on Georgia’s Valued Policy statute,
arguing that such a charge was unauthorized by the evidence. The court disagreed,
noting that because there was “at least some evidence of record that appellees’
home was totally destroyed,” the trial court’s charge was appropriate. Id. at 579
(emphasis added).
The second case is Georgia Farm Bureau Mutual Insurance Co. v. Brown,
385 S.E.2d 87 (Ga. Ct. App. 1989). In Brown, the Georgia Court of Appeals
reviewed a trial court’s denial of an insurer’s motion for judgment notwithstanding
a jury’s verdict awarding the plaintiff the policy limits when a fire “destroyed” his
home. The Court of Appeals held that because the evidence demonstrated that the
cost of repair was higher than the cost of replacement, and photos demonstrated
that the house “was substantially gutted by the fire,” the trial court correctly denied
the insurer’s motion. Id. at 90. The evidence on record in this case falls short of
that in Baugh and Brown: It failed to demonstrate that Hollingworth’s home was
3
When determining the law of Georgia, this Court must follow the decisions of the
state’s highest court, and in the absence of such decisions on an issue, must adhere to the
decisions of the state’s intermediate appellate courts unless there is some persuasive indication
that the state’s highest court would decide the issues otherwise. Flintkote Co. v. Dravo Corp.,
678 F.2d 942, 945 (11th Cir. 1982).
8
Case: 19-11284 Date Filed: 04/08/2020 Page: 9 of 13
substantially gutted or that the cost of repair was higher than the cost of
replacement.
Hollingsworth contends that several pieces of evidence precluded summary
judgment on the issue of whether her home was wholly destroyed: photographs
showing substantial damage to her dining room, evidence of extensive smoke
damage, and her statements in her deposition describing the home as wholly
destroyed. Taken together, this evidence failed to establish a genuine issue of
material fact as to whether her home was wholly destroyed under Georgia’s
Valued Policy Statute. The photographs of Hollingsworth’s home taken two
weeks after the fire showed that only three of the home’s seven rooms sustained
any damage, with only two of those rooms having suffered any significant damage.
None of the other rooms in the home showed visible fire damage. Such damage
falls short of the “substantial[] gutting” described by Brown. That there was
smoke damage—for which Hollingsworth’s chosen contractor quoted a repair
cost—also does not suggest that Hollingsworth’s home was wholly destroyed.
Hollingsworth presented no evidence other than her own testimony that the extent
of the smoke damage amounted to a “wholly destroyed” home. The evidence that
her chosen contractor included the smoke damage in his repair cost cuts against
this notion.
9
Case: 19-11284 Date Filed: 04/08/2020 Page: 10 of 13
Hollingsworth also contends that her assertions in her deposition that the
home was wholly destroyed sufficed to withstand summary judgment. But the
deposition testimony on which she relies merely details Hollingsworth’s view of
the how the smoke damage and the photographs establish that her home was
wholly destroyed. As discussed above, the photographs and evidence of smoke
damage fall short. Her deposition testimony is therefore not enough to establish a
genuine issue of material fact as to whether her home was wholly destroyed.
Accordingly, the district court did not err in granting summary judgment in LM’s
favor on Hollingsworth’s breach of contract claim.4
B. Bad Faith
Under Georgia law, if an insurer in bad faith refuses to pay a valid insurance
claim within 60 days after a payment demand has been made by the policyholder,
the insurer is liable for the loss, up to 50 percent of the liability of the insurer for
the loss, and all reasonable attorneys’ fees for the prosecution of the action against
the insurer. O.C.G.A. § 33-4-6(a); Broughton v. Fla. Int’l Underwriters, Inc., 139
F.3d 861, 864 (11th Cir. 1998). Georgia courts have interpreted this statute to
4
Hollingsworth contends that the district court conflated her breach of contract claim
with her claim seeking application of Georgia’s Valued Policy statute, and even if the home
could not be deemed “wholly destroyed,” LM was in breach of the insurance contract by paying
her claim based on its own estimate rather than the higher estimate of Hollingworth’s selected
contractor. But she did not advance this theory of liability in the district court. Nor does her
complaint support this theory. Because Hollingsworth raised this new theory for the first time on
appeal, we decline to address its merits. See Access Now, Inc. v. SW Airlines Co., 385 F.3d
1324, 1334-35 (11th Cir. 2004).
10
Case: 19-11284 Date Filed: 04/08/2020 Page: 11 of 13
impart liability to an insurance company “when it fails to pay a covered loss within
60 days after a demand for payment has been made and there has been a finding
that the refusal to pay was in bad faith.” Brown v. Ohio Cas. Ins. Co., 519 S.E.2d
726, 727 (Ga. Ct. App. 1999). Because there is no genuine issue of material fact as
to whether LM paid Hollingsworth’s claim—it did—the district court did not err in
granting summary judgment in LM’s favor.
Hollingsworth argues that LM acted in bad faith by: (1) terminating
payment for her living expenses after 10 months, even though experts advised that
10 to 12 months were needed to complete repairs, (2) intentionally excluding the
smoke damage in an attempt to lower the repair cost, (3) refusing to return to her
home to conduct an inspection when the presence of smoke damage behind the
walls became known, and (4) pressuring her selected contractor to agree to
complete the repairs for a lower price than was estimated to Hollingsworth. She
contends that on account of these actions, LM failed to pay the actual loss to which
she was entitled under the insurance policy.
As an initial matter, the terms of the insurance policy required that LM pay
Hollingsworth the actual cash value of the damage to the home before the
completion of repairs, which it did. That LM paid Hollingsworth for the covered
loss is enough to defeat the bad faith claim. Also in LM’s favor is the fact that the
evidence does not support Hollingsworth’s characterization of LM’s actions.
11
Case: 19-11284 Date Filed: 04/08/2020 Page: 12 of 13
Regarding the living expenses, Hollingsworth’s insurance policy stated that
LM would pay her additional living expenses for the shortest time required to
complete repairs, which it estimated was only approximately six months. The
record demonstrates that Hollingsworth had not started repairs as of eight months
after the fire. And Hollingsworth provides no authority in support of her argument
that, given the language of the insurance policy, suspending these living expenses
was in bad faith. Therefore, we cannot conclude LM acted in bad faith by halting
the payments for Hollingsworth’s living expenses.
As to Hollingsworth’s contentions that LM intentionally excluded the smoke
damage to lower the repair cost estimate and that it refused to return to her home to
inspect once smoke damage became known, she provides no evidence in support.
To the contrary, the record established that LM agreed to work with
Hollingworth’s chosen contractor to reach an agreement as to the scope of the
damages and subsequent repair, including the smoke damage. This effort was
ongoing when Hollinsworth filed this action. Thus, the evidence fails to establish
bad faith on LM’s part.
Lastly, as to Hollingsworth’s suggestion that LM pressured her selected
contractor to complete the repairs at a reduced cost, she provides no evidence to
support this assertion. Thus, she cannot establish bad faith on LM’s part. See
Cordoba, 419 F.3d at 1181.
12
Case: 19-11284 Date Filed: 04/08/2020 Page: 13 of 13
The district court did not err by granting summary judgment to LM on
Hollingsworth’s bad faith claim because there was no genuine issue of material
fact that she was entitled to more than the cost of the repairs LM was willing to
make and the actual cash value, which LM paid 34 days after her payment
demand. 5
CONCLUSION
For the reasons set forth above, we affirm the district court’s grant of
summary judgment in LM’s favor.
AFFIRMED.
5
Hollingsworth contends that the district court improperly weighed the evidence in
reaching its decision. But our review is de novo, and as discussed above, the evidence fails to
establish a genuine issue of material fact as to either of Hollingworth’s claims.
13 | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3847188/ | This is an appeal from the refusal to issue a preliminary injunction; the record fails to show a plain abuse of discretion, and under such circumstances we do not disturb the decree: for authorities see Lesher v. Gassner Co., 285 Pa. 43.
The decree is affirmed at cost of appellants. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3837220/ | [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 152
Proceedings in the matter of the estate of Volney C. Mead, deceased, wherein the First Farmers National Bank of Luverne, Minn., filed a petition to require the administratrix of the estate to pay certain claims. From a judgment of the circuit court dismissing the appeal in the name of the petitioner by the Luverne Holding Company from the county court, the petitioner appeals.
REVERSED.
This proceeding was instituted in July, 1930, in the county court of Yamhill county, Oregon, by the First Farmers National Bank of Luverne, Minnesota, by the filing of a petition in the estate of Volney C. Mead, deceased, to require the administratrix thereof to pay two claims filed by the First National Bank of Luverne, Minnesota, against said estate.
Volney C. Mead died intestate in Yamhill county, Oregon, on November 8, 1917, and on December 8, 1917, his widow, Alice I. Mead, was appointed administratrix of his estate. On December 10 of that year she filed an inventory and appraisal showing the value of that estate to be $53,314.72.
In February, 1918, the First National Bank of Luverne, Minnesota, presented to the administratrix *Page 153
of the estate duly verified claims against the estate based on two promissory notes made, executed and delivered by the decedent to the claimant. These notes were dated February 16, 1917, and June 30, 1917, and were for $4,500 and $1,000 respectively, with interest at the rate of seven per cent per annum. Nothing had been paid on principal or interest of either of these notes at the time of the presentation of the claims. These claims were not filed by the administratrix with the court until October 8, 1924, and when filed contained no endorsement as to their approval or disallowance. However, prior to the filing of these claims with the court the administratrix had paid thereon the sum of $3,800 to be applied on principal and accrued interest, and in several of her reports had recognized the validity of the claims and stated that they had been approved.
The First National Bank became involved in difficulties and in 1925 the First Farmers National Bank, petitioner herein, was organized and took over a large part of the assets of the First National Bank, including these notes and claims.
In the annual report filed by the administratrix on February 28, 1928, and which covered the period from the last report on September 30, 1924, it was stated that the cash received was in excess of $23,000 and the total disbursements were in excess of $20,000, leaving a balance of $2,739.40. This report stated that all the claims which had been presented against the estate had been paid, "except the claim of the First National Bank of Luverne, Minnesota, of the balance of the sum of about $3,000, which has been disallowed". This is the first and only intimation in any of the reports of the administratrix as to disallowance of the claim, and *Page 154
there is nothing to indicate the time or ground of the disallowance.
According to her reports, the administratrix received from the estate up to the time of her report on September 30, 1924, the sum of $8,620 for her support and maintenance, and between the time of that report and the one filed on February 28, 1928, she received additionally an aggregate of $4,500.
At the time the notes and claims here in controversy were taken over by the First Farmers National Bank from the First National Bank, the transfer was made by a general assignment, and on July 15, 1930, a special assignment of the claims and the notes was made from the old to the new bank. A few days later this proceeding was filed, alleging the filing of the claims, the allowance thereof, the value of the estate as shown by the inventory and appraisal, the amounts paid on the notes, the assignment of said claims to the First Farmers National Bank, the withdrawal by the administratrix subsequent to December 10, 1918, which was one year after the date of the filing of the inventory, of large sums from the estate, without right or authority, and the unlawful appropriation of the same to her own use; and asking for an order requiring her to pay the balance of the bank's claims.
To this petition the administratrix filed an answer in which the execution of the notes was admitted, as well as the presentation of the claims and the payment of $3,800 thereon. She further admitted that for more than nine years the administratrix had withdrawn from the estate $100 a month for her own use.
Eight affirmative defenses were set forth, which are in substance as follows: (1) that the notes were made for the accommodation of Mr. LaDue, president *Page 155
of the bank; (2) that the claims were neither allowed nor disallowed and that payment had been made in ignorance of the illegality of the same, that thereafter the administratrix had disallowed the claims and that they were barred by the statute of limitations; (3) that pursuant to the order of the court dated May 3, 1918, Mrs. Mead had been allowed $100 per month for maintenance and support, and for more than nine years thereafter had withdrawn such allowance with the knowledge of the officers of the bank, who should be estopped from alleging or claiming that such withdrawals were unlawful; (4) that the officers of the bank had organized the Broadmead Land Company which had bought a farm in Yamhill and Polk counties and had employed Volney C. Mead to manage it; that the company was owing Mead $14,000 at his death, as evidenced by a note payable to him, and that petitioner had agreed to limit the payment of its claims to the money realized on that note; (5 and 6) that the notes and claims were not taken by petitioner in due course, but with knowledge that the claims had been disallowed. The seventh defense is that after the probate proceedings had been instituted in the state of Oregon an ancillary administration was had in South Dakota, where there was sufficient money in the estate to pay petitioner's claim, and that the claim should have been presented in that proceeding. The eighth defense is that there are certain outstanding claims owing to the estate which are not yet due and payable, and, in the event the petitioner's claims are allowed, the proceedings should be abated until the collection of such outstanding claims.
The affirmative matter in the answers was put in issue by proper denials. Thereafter the attorney for *Page 156
the claimant by letter notified the attorney for the administratrix that the claims of the First Farmers National Bank had been assigned to the Luverne Holding Company, a corporation, and thereupon a motion was made by the administratrix to dismiss the petition of the First Farmers National Bank, on the ground that the bank had become insolvent and was in the hands of the comptroller of the currency, and that the officers and attorneys of said bank no longer had any power to proceed, and for the further reason, as appears in the letter of the attorney for the petitioner, that "said petitioner no longer has any interest in the alleged claim set forth in the petition herein and there now is no proceeding in this court by said First Farmers National Bank of Luverne, Minnesota, the petitioner". To this motion is attached a copy of the letter of the attorney referring to the assignment to the Luverne Holding Company. Thereupon the county court dismissed the proceedings, from which order an appeal was taken to the circuit court for Yamhill county.
The notice of appeal from the order dismissing the proceedings in the county court is almost identical in wording with the notice of appeal subsequently given and which is involved on this appeal, with the exception of the date of the order or judgment from which the appeal is taken. This notice gave the name of the court in which the order was entered, and was entitled: "In the Matter of the Estate of Volney C. Mead, Deceased." The paper was designated as the "Petition of First Farmers National Bank of Luverne, for Order requiring Administratrix to pay claims". It was addressed to the administratrix and her attorney and stated that the Luverne Holding Company, *Page 157
"appellant herein", was a corporation and that after the filing of the petition by the First Farmers National Bank of Luverne in the above matter for an order of the court requiring the administratrix to pay its claims, and while said petition was pending, on or about November 19, 1930, said bank had assigned and transferred to the Luverne Holding Company all of its rights in and to said claims and the notes on which the claims were based, and that the Luverne Holding Company was the owner and holder of said claims and notes. It is then stated in the notice of appeal that "said Luverne Holding Company in the name of said First Farmers National Bank of Luverne hereby appeals to the circuit court of the state of Oregon within and for the county of Yamhill" from the certain judgment and decree entered in the county court dismissing the petition and rejecting and disallowing the claims; and that the Luverne Holding Company takes and will prosecute the appeal in the name of the petitioner, the First Farmers National Bank. This notice is signed by Elmer Johnson as attorney for the Luverne Holding Company.
A motion was filed by the administratrix to dismiss this appeal, in which motion fifteen reasons are assigned, among which is that no notice of appeal had been filed by the First Farmers National Bank. Other reasons had to do with the filing of the transcript, and stated that the attempted appeal was not made by any party to the proceeding; that the Luverne Holding Company was not a party to the proceeding and that said appeal was being prosecuted by that company. The circuit court denied the motion to dismiss, and held that the Luverne Holding Company might prosecute the proceeding to a final determination *Page 158
in the name of the original petitioner, the First Farmers National Bank of Luverne, and that the county court committed error in dismissing said proceeding and attempting to reject the claims of the petitioner. The case was remanded to the county court for further proceedings.
Thereafter a hearing was had before the county court, which in special findings of fact found that there was not sufficient evidence as to the consideration of said notes or the amounts due thereon, and that the claims were barred by the statute of limitations. Based thereon an order was made disallowing the claims, dismissing the petition and entering judgment against the Luverne Holding Company and its attorney, and in favor of the administratrix, for costs and disbursements. From this order another appeal was taken to the circuit court for Yamhill county, which was substantially in the same language as the first appeal above described, with the exception of the designation of the order or judgment from which the appeal was taken.
An undertaking on appeal executed by the Luverne Holding Company and a surety company authorized to do business in this state was, on May 14, 1932, served upon the attorney for the administratrix and filed with the clerk of the court. In this undertaking are recited facts similar to those in the notice of appeal.
On May 18, 1932, the respondent filed exceptions to the surety and on May 28, 1932, the appellant procured an order from the county court designating June 2, 1932, as the time for the surety to appear and justify. Later, on June 2 of the same year, another order was obtained fixing June 7, 1932, as the time for the surety to appear and justify. Notices of these *Page 159
orders fixing the time for the surety to justify were served by the attorney for claimant by mailing them at Portland, addressed to the attorney for the administratrix at McMinnville, Oregon, the notice of the first hearing being mailed on May 28, 1932, and the second one on June 3. On June 7, 1932, the surety appeared and justified, but no one was, at that time, present to represent the estate. On June 11, 1932, the appellant filed in the circuit court of Oregon for Yamhill county a transcript on appeal which included certified copies of the findings and order of the county court, the notice of appeal and undertaking on appeal, and, on the same day, served upon the attorney for the administratrix a copy of said transcript. This transcript refers to the exceptions made by the administratrix to the surety, the appearance of the surety, the justification of the latter and the final approval of the undertaking by the county judge.
Some time in August, 1932, the administratrix filed a motion to dismiss the appeal, assigning as reasons therefor the following: (1) That exceptions had been filed to the sufficiency of the surety and of the undertaking and that the appellant had failed and neglected to have the surety justify; (2) that the Luverne Holding Company had no right or authority to appeal from the order of the county court because the claim was prosecuted in the county court under the provisions of section 11-504, Oregon Code 1930, and that such proceeding was special and not such suit or action as referred to by section 1-301, authorizing a suit or action to be prosecuted by an assignee; (3) that the original pleadings were not annexed to any transcript; (4) that the transcript of testimony was not certified by any certificate of the county judge or of the clerk *Page 160
of the court; (5) that the exhibits were not certified by the county judge; (6) that the appeal had been abandoned; (7) that the appeal had never been perfected; and (8) that no transcript was filed within the time provided by law.
In order better to consider these various questions it might be well to determine first the character of this proceeding. Although the appellant contends that the proceedings were brought pursuant to section 11-703, Oregon Code 1930, for an order requiring the administratrix to pay its claims, nevertheless issue was joined on the question of whether or not the claims were valid, and a great amount of testimony was taken before the court and by deposition, on this question. At the time this proceeding was brought the court had not yet passed upon the validity of these claims, nor had the administratrix endorsed upon them the words "examined and approved" or "examined and rejected", but she had, pursuant to section 1241, Or. L., at first filed with the court statements that the claims had been presented and had been allowed, and later filed a statement that the balance of the two claims in question had been disallowed. When issue of fact had been made by the pleadings as to the validity of these claims, it was incumbent upon the claimant to produce evidence to support its claims, and, had the claimant failed to do this, it would have been the duty of the court to disallow the same: Re Chambers' Estate, 38 Or. 131
(62 P. 1013). The claimant recognized this and did offer an abundance of evidence to prove the consideration for the notes, the balance due thereon and the assignment of the notes and of the claims from the First National Bank to the First Farmers National Bank and from the latter bank to the Luverne Holding Company. *Page 161
The county court acts judicially and is not bound to approve a claim simply because the same has been allowed by the administrator. When objection is made to the allowance of a claim it becomes the duty of the court to determine its validity as in other litigated controversies: Re Chambers' Estate, supra. The administrator in allowing a claim acts as an auditor and not in a judicial capacity. Before he allows a claim he must be satisfied of the justness of the claim and that it is not barred by the statute of limitations. To determine these questions he may demand the written evidence of any claim presented: Re Chambers'Estate, supra.
The record before us fails to show any order of the probate court approving these claims or the various reports of the administratrix in which she states that these claims had been allowed by her, or the payments made by her on such claims. Even if the court had, on the ex parte application of the administratrix, authorized these payments, it still retained jurisdiction to disallow the claims when their validity was later questioned: 24 C.J. 379, §§ 1058, 1059.
The validity of these claims was made an issue by the pleadings in the county court. The claimant did not, after the claims were denied by the administratrix in her answer to its petition, base its right to an order of the court requiring the administratrix to pay its claims solely on any approval of the administratrix, but sought to establish the validity of the claims by proof. In view of the procedure adopted by the county court and the parties to this proceeding, we hold that this proceeding amounted, in effect, to a presentation of its claims by the petitioner to the county court for allowance, and that it is governed by section 11-504, Oregon Code 1930. *Page 162
When a claim against an estate is denied or rejected by the administrator and it is presented to the county court for allowance the court has power to hear and determine the claim in a summary manner.
"In the trial of a claim which has been presented to and rejected by an executor or administrator, the proceedings are purely legal in their nature and are not equitable and the order made, either allowing or rejecting the claim, is expressly given `the force and effect of a judgment'. The statute refers to the proceedings as an action, and when the judgment is entered it has the force and effect of a verdict: Section 2-503, Oregon Code 1930. That section provides that `the findings of the court upon the facts shall be deemed a verdict'." Bannon v. Thompson,136 Or. 311 (298 P. 907).
See, also: Pruitt v. Muldrick, 39 Or. 353 (65 P. 20); Wilkesv. Cornelius, 21 Or. 341 (23 P. 473); Id., 21 Or. 348
(28 P. 135); Johnston v. Shofner, 23 Or. 111 (31 P. 254).
"It is upon the refusal of the executor or administrator to allow the claim or demand that the statute (section 1134) provides that the county court, after notice has been given, may proceed to hear and determine in a summary manner such claim or demand against the estate. When this is done, and a party is dissatisfied with the judgment order allowing or rejecting such claim, and has appealed from it, what possible objection can there be to the circuit court trying the issues according to legal principles as is done in like cases? Why subject the party when the obligation is legal, and the court presided over by a trained lawyer capable of instructing the jury upon the law in the premises, to the slow and tedious, expensive and cumbrous, method of taking depositions or reducing the evidence to writing? We see no reason for it, and think the case is controlled by Wilkes v. Cornelius, supra." Johnston v. Shofner, 23 Or. 111
(31 P. 254). *Page 163
The trial in the circuit court on an appeal from the order of the county court rejecting a claim is not confined to an examination of the transcript of the proceedings in the county court, as is the case on appeal from many other orders of the county court in probate matters. On such appeals from the order of the county court rejecting a claim the matters in issue are tried de novo as any law action in the circuit court is tried:Wilkes v. Cornelius, supra, and Johnston v. Shofner, supra.
The statute specifically gives to the claimant whose claim has been denied by the county court a right to appeal to the circuit court: Section 11-504, Oregon Code 1930. There is, however, no statute specifically granting to the claimant a right to appeal from an order of the county court entered pursuant to section 11-703, Oregon Code 1930, refusing to order the administrator to pay a claim. Such an order, it would appear, would not be final, as the claimant whose claim had been allowed would not be precluded from later making a similar request, and upon the final accounting by the administrator would be entitled to have his claim paid in full, if there were sufficient funds in the estate to pay the expenses of administration and all claims against the estate.
This court is committed to the doctrine that after an action or suit has been commenced no substitution is required except in case of death of a party to the litigation. When, as in this instance, a party to an action has assigned all of its interest in the matter involved in litigation, the assignee is authorized to continue the proceedings in the name of the assignor, and may appeal, in the name of the assignor, from the judgment rendered therein against his assignor: *Page 164 Meyers v. Hot Lake Sanatorium Co., 82 Or. 587 (161 P. 697);Phegley v. Swender Co., 133 Or. 146 (289 P. 500); In re Watersof Deschutes River, 134 Or. 623, 702 (286 P. 563, 294 P. 1049).
If the proceeding may be continued by the assignee in the name of the assignor, an appellate court should not dismiss an appeal because the notice of appeal states more than is necessary: i.e., that the claim involved in the proceedings has been assigned and that the assignee appeals in the name of the assignor. The notice of appeal from the county court to the circuit court stated that the claims and notes involved in the proceedings had been assigned by the petitioner, First Farmers National Bank, to the Luverne Holding Company and that the "Luverne Holding Company in the name of said First Farmers National Bank of Luverne hereby appeals to the circuit court of the state of Oregon within and for the county of Yamhill" from a certain order and decree of the county court for Yamhill county.
There is ample evidence in the record to prove the assignment from the First Farmers National Bank to the Luverne Holding Company. Moreover, the administratrix, relying on the information contained in the letter from the attorney for the First Farmers National Bank, and later attorney for the Luverne Holding Company, that the claims and notes had been so assigned, moved to dismiss the proceeding instituted by the First Farmers National Bank in the county court, designating such assignment as one of her reasons for asking a dismissal. She cannot now be heard to question the assignment.
Section 7-503, Oregon Code 1930, provides that:
"If the appeal is not taken at the time the decision, order, judgment or decree is rendered or given, then *Page 165
the party desiring to appeal may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney, at any place where he or they may be found, and file the original with proof of service indorsed thereon, with the clerk of the court in which the judgment, decree or order is entered. Such notice shall be sufficient if it contains the title of the cause, the names of the parties and notifies the adverse party or his attorney that an appeal is taken to the supreme or circuit court, as the case may be, from the judgment, order or decree, or some specified part thereof."
In the case at bar the Luverne Holding Company desired to appeal and it caused a notice, signed by its attorney, to be served on the attorney for the adverse party. That notice contained the title of the court and cause and names of the parties and notified the attorney for the adverse party that an appeal was taken by the Luverne Holding Company in the name of its assignor to the circuit court from a certain order of the county court. In other words, the Luverne Holding Company did what this court has often held a party situated as was the Luverne Holding Company has a right to do. It set forth the exact facts in the matter and how the appeal was being taken. The notice of appeal here involved is, as already stated, in language almost identical with that of a former notice of appeal in the same proceeding, the sufficiency of which notice was attacked by the administratrix. The circuit court, however, held that the former notice was sufficient.
After the administratrix excepted to the sufficiency of the undertaking and of the surety the appellant served notice upon her of the time when and place where the surety would appear and justify. These notices were not served upon the administratrix or her attorney five days or more in advance of the time of *Page 166
the hearing, as required by section 4-110, Oregon Code 1930. The surety, however, did appear and justify on June 7, 1932, and four days later a copy of the transcript on appeal showing that the surety had justified was served on the attorney for the administratrix. No motion to dismiss the appeal was filed until some time in August, more than fifty days after the attorney for the administratrix had knowledge of what had been done.
The undertaking was signed by a surety company authorized to do business in the state of Oregon and there is no contention now made by the administratrix as to the sufficiency of the surety or of the undertaking. In the case of Iltz v. Krieger, 104 Or. 59
(202 P. 409, 206 P. 550), the respondent moved to dismiss the appeal because the surety had not justified within the time provided by law. The court held that the justification within the time required by law was not jurisdictional and that since the respondent had delayed more than forty days after having knowledge of the appellant's failure to comply with the statute and since such failure was not jurisdictional, the respondent had waived the same. The only interest the respondent has is to see that the undertaking is sufficient in form and that the surety is financially responsible. The sole requirement of a surety company authorized to do business in this state, when it is called upon to justify, is to exhibit the certificate of authority to do business in this state issued to it by the insurance commissioner, or a certified copy thereof: Section 46-1402, subdivision 4, Oregon Code 1930.
On June 11, 1932, certified copies of the findings and order of the county court, the notice of appeal and undertaking on appeal were filed by the appellant with the clerk of the circuit court. Thereafter and prior *Page 167
to the order of the circuit court dismissing the appeal the original pleadings and other documents in the county court pertaining to the matters involved on appeal were filed in the circuit court. As this is an appeal from a judgment of a county court, it was not necessary to certify from the county court to the circuit court the transcript of testimony taken and the exhibits introduced in the county court: Johnston v. Shofner, supra. The circuit court acquired jurisdiction of the proceedings upon the filing in the circuit court, within the time specified by law, of the transcript above mentioned, and in case any other documents were needed by the circuit court they could be procured by order on the county clerk, who has custody of all the files of the county and circuit courts.
The other grounds assigned for dismissing the appeal from the county court to the circuit court are based on the assumption that the proceeding in the county court was one in equity and not at law, and therefore need not be further considered. The appeal was properly taken from the county court to the circuit court, and the latter court erred in dismissing it.
The appellant sent to this court what purported to be a transcript of all the evidence taken and exhibits introduced in the county court, and requests that we enter a judgment herein in favor of the claimant. This we cannot do, because the merits of the case have not yet been passed upon by the circuit court, which must try the case de novo in the same manner, so far as the evidence is concerned, that actions at law begun in the circuit court are tried.
The judgment of the circuit court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
BEAN, BELT and CAMPBELL, JJ., concur. *Page 168 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/879212/ | 719 P.2d 764 (1986)
Allen KELLER, Plaintiff and Appellant,
v.
STEMBRIDGE GUN RENTALS, and A.B.C. Manufacturing, Defendant and Respondent.
No. 85-474.
Supreme Court of Montana.
Submitted April 1, 1986.
Decided June 3, 1986.
Anderson, Edwards & Molloy; Donald W. Molloy argued, Billings, for plaintiff-appellant.
Murphy, Robinson, Heckathorn & Phillips; Debra D. Parker argued, Kalispell, Beaudry & Brown; Don F. Beaudry, Los Angeles, Cal., for defendant-respondent.
HARRISON, Justice.
This is an appeal from an order of the District Court of the Eleventh Judicial District in and for Flathead County, Montana, granting defendant summary judgment. The court held plaintiff's claim was barred because the relation back rule did not apply and the statute of limitations is not tolled. We affirm.
The question on appeal is whether the statute of limitations is tolled on the date the original complaint was filed when the complaint incorrectly names the defendant and his true name is discovered later and submitted by amendment. We hold it is not.
The plaintiff, Keller, sustained personal injuries during the filming of the movie Heaven's Gate in August, 1979. He was issued a Sharps Buffalo Rifle which exploded while he was using it in the performance of his role. The gun was in one piece and ostensibly safe when it was issued to him, but was blown apart and in many pieces after he fired blanks from it.
Section 27-2-204, MCA, the three year statute of limitations for tort actions, had nearly run when Keller filed his original complaint in August, 1982, naming Ellis Rental a/k/a Ellis Mercantile. Keller believed Ellis had supplied the gun which exploded. ABC Manufacturing, a fictitious party defendant, also was named.
Interrogatories served on Ellis with the complaint revealed Ellis did not supply the weapon. The affidavit of one Robert Visciglia, the film crew's property manager, whose duties included accounting for and distributing weapons, supported this fact, *765 and Ellis' motion for summary judgment was granted October 11, 1983.
An amended complaint, filed June 25, 1983, naming Stembridge Gun Rentals as defendant, was served March 29, 1984. Stembridge appeared and moved for summary judgment, arguing the statute had run. The District Court, relying on LaForest v. Texaco, Inc. (1978), 179 Mont. 42, 585 P.2d 1318, granted the motion, reasoning the relation back rule did not apply. Keller appeals.
The issue can be resolved by analyzing Rule 15(c), M.R.Civ.P.:
Rule 15(c) provides in pertinent part:
Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
The critical language in this instance is in the second sentence of the rule. There is no evidence Stembridge received notice of the institution of the action or that it knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against it. It is agreed the party against whom the claim is made is changed. When Keller discovered Ellis had not supplied the gun which exploded, he amended the complaint, naming Stembridge. The crux of the problem is whether Stembridge is a new party to the action.
This is not a case that falls under the "misnomer" rule where a plaintiff sues and serves the correct party but merely mistakenly uses the wrong name of the defendant. LaForest, supra, 179 Mont. at 47, 585 P.2d at 1320. Rather, this situation is governed by § 25-5-103, MCA:
When a plaintiff is ignorant of the name of the defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name is discovered, the pleadings or proceedings may be amended accordingly.
These circumstances present more than mere ignorance of the names of the proper defendant. Keller originally sued the wrong entity. The caption on the complaint indicates the designation of a fictitious party relates only to the unknown manufacturer:
ALLEN KELLER,
Plaintiff,
v.
ELLIS RENTAL, a/k/a ELLIS MERCANTILE,
and ABC MANUFACTURING,
Defendant No. 1 is the correct designation of the entity that provided the "Sharps Buffalo Gun" herein, on the occasion of its explosion; Defendant No. 2 represents an entity that manufactured or sold the gun to Ellis Rental. Plaintiff affirms that the actual name of the fictitious party designated herein is unknown to him at this time but will be added by amendment when ascertained.
Defendants.
Keller is attempting to bring a completely new party before the Court after the statute of limitations has run. The caption makes it clear he was satisfied Ellis Rental had supplied the Buffalo gun. The use of a fictitious name in the caption was specifically intended for the unknown manufacturer of the gun.
Both LaForest, supra, and § 25-5-103, MCA, allow the statute of limitations to be tolled as to a fictitious party on the date of the original complaint. A fictitiously named defendant is notice that plaintiff is ignorant of the true name and is attempting to discover the true name. Neither *766 § 25-5-103 nor LaForest allows substitution of the proper defendant after discovering the wrong defendant was sued.
The addition or substitution of parties who had no notice of the original act is allowed. Substitution of a completely new defendant creates a new cause of action. Permitting such a procedure would undermine the policy upon which the statute of limitations is based. (Citations omitted.)
LaForest, supra, 585 P.2d at 1320, 179 Mont. at 46. Citing Munetz v. Eaton and Towne, Inc. (E.D.Pa.1973), 57 F.R.D. 476, 480-481.
Keller cannot meet the standard for the relation back of the amended complaint, pursuant to Rule 15(c), M.R.Civ.P. nor is he in compliance with § 25-5-103. He cannot sue Stembridge by naming Ellis as a defendant. Ellis is an entity in its own right and not a fictitious name for Stembridge. Stembridge is a new party to the action. Consequently the action is barred because Stembridge was not named until July 25, 1983after the statute of limitations had run. The District Court properly granted summary judgment and we affirm.
TURNAGE, C.J., and WEBER, GULBRANDSON, MORRISON, SHEEHY and HUNT, JJ., concur. | 01-03-2023 | 06-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/156175/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 7 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JEANETTE P. TIGER,
Plaintiff-Appellant,
v. No. 97-5134
(D.C. No. 96-CV-353-W)
KENNETH S. APFEL, Commissioner, (N.D. Okla.)
Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
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
*
Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
**
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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
In 1992, claimant Jeanette P. Tiger filed an application for supplemental
security income benefits under Title XVI of the Social Security Act, alleging
disability since September of 1991 as a result of asthma and nervous tension. Her
application was denied administratively, both initially and upon reconsideration.
After a hearing, an administration law judge (ALJ) determined that claimant was
not disabled under the Social Security Act. His decision became the final
decision of the agency when the Appeals Council denied claimant’s request for
review. The district court affirmed the denial of benefits, and claimant now
appeals. Our jurisdiction arises under 42 U.S.C. § 405(g). Because we conclude
that both the district court and ALJ committed legal error, we reverse and remand
for further agency proceedings.
To qualify for disability benefits, claimant must demonstrate an “inability
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The agency has established a
five-step sequential test for evaluating a disability. See 20 C.F.R. § 416.920; see
also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (detailing five
-2-
steps). Here, the ALJ determined, at step two of the sequential analysis, that
claimant’s alleged mental impairments were not severe and, at step four of the
sequential analysis, that her asthma did not preclude her from performing her past
relevant work. On appeal, claimant raises two main issues with regard to her
alleged mental impairments. First, she contends that the ALJ’s step two
determination that her mental impairments are not severe is not supported by
substantial evidence in the record. Specifically, she contends that the ALJ’s
analysis at this step ignored pertinent record evidence regarding her mental
limitations and misconstrued other evidence of record. She also asserts that the
ALJ substituted his own opinion for that of medical experts.
The ALJ, in reaching his determination that claimant’s mental impairments
are not severe, relied on a report by psychiatrist Dr. Dean assessing claimant’s
mental status. He summarized Dr. Dean’s diagnosis that claimant suffered from
generalized anxiety disorder, mixed personality disorder and major depression,
but then discussed certain observations by Dr. Dean which would seem to
diminish that diagnosis. He noted, for example, that Dr. Dean found claimant to
be “friendly, appropriate, and well grounded in reality,” and that she
“demonstrated no unusual behavior.” Appellant’s App., Vol. II, at 17. Dr. Dean
did not fill out a Psychiatric Review Technique (PRT) or comparable form
assessing claimant’s residual functional capacity in light of his diagnosis. The
-3-
ALJ, without discussing or mentioning any other medical evidence, ultimately
concluded that claimant “can concentrate, understand, remember, and carry out
instructions. She can use judgment, respond to supervision and co-workers, deal
with usual work setting and routine changes.” Id. As required by agency
regulation, the ALJ filled out a PRT form concluding that claimant had no severe
mental impairments. See Cruse v. United States Dep’t of Health & Human Servs.,
49 F.3d 614, 617 (10th Cir. 1995).
First, we agree with appellant that the ALJ apparently did not consider
other record evidence regarding claimant’s alleged mental impairments. Dr.
Carolyn Goodrich, an agency psychologist, filled out a PRT form and a Mental
Residual Functional Capacity form after a review of claimant’s medical records,
including the psychiatric report from Dr. Dean. Based on the three points in Dr.
Dean’s diagnosis, Dr. Goodrich concluded that claimant had a severe mental
impairment which required further assessment of her mental residual functional
capacity. Id. at 37. Dr. Goodrich concluded that claimant’s mental impairments
resulted in some functional limitations, including marked limitations in her
abilities to understand, remember, and carry out detailed instructions, and to
interact appropriately with the general public. Id. at 45-46. Dr. Goodrich added
the following hand-written notes under “Functional Capacity Assessment:”
“Claimant can understand & perform simple tasks. She can interact appropriately
-4-
with co-workers & supervisors, but not the general public. She can adapt to a
work situation.” Id. at 47. Dr. Goodrich’s assessment of claimant was reviewed
and affirmed by another agency psychologist, Dr. Smallwood. Id. Nowhere in his
decision did the ALJ mention, discuss, or weigh Dr. Goodrich’s findings or
opinions.
Social Security Ruling 96-6p states that findings regarding the nature and
severity of an impairment made by state agency consultants and other program
physicians and psychologists “must be treated as expert opinion evidence of
nonexamining sources.” Soc. Sec. Rul. 96-8p, 1996 WL 374180, at *1. Further,
ALJs “may not ignore these opinions and must explain the weight given to these
opinions in their decisions.” Id. Dr. Goodrich’s assessment of claimant’s mental
capabilities was contrary in some respects to the ultimate conclusions reached by
the ALJ in this case. The ALJ’s failure to discuss and weigh this record expert
medical evidence violated the requirements of Soc. Sec. Rul. 96-6p and
undermined the ALJ’s ultimate conclusions regarding claimant’s alleged mental
impairments. 1
1
We also note that the district court erred in concluding that the ALJ was not
required to discuss this evidence. See Appellant’s App., Vol. I, at 13. “The
agency’s rulings are binding on an ALJ.” Nielson v. Sullivan, 992 F.2d 1118,
1120 (10th Cir. 1993).
-5-
Finally, we also agree with claimant that Dr. Dean’s report does not support
the ALJ’s conclusions. Dr. Dean did not discuss or opine how claimant’s mental
limitations might affect her residual functional capacity or her ability to perform a
job. Therefore, to the extent that the ALJ made findings about claimant’s mental
limitations while appearing to rely solely on Dr. Dean’s report, he did so without
supporting evidence. An ALJ cannot substitute his own opinion for medical
opinion. See Sisco v. United States Dep’t of Health & Human Servs., 10 F.3d
739, 744 (10th Cir. 1993).
Because we conclude that the ALJ erred at step two in reaching his
conclusion that claimant’s mental impairments were not severe, we need not reach
claimant’s second issue: a challenge to the ALJ’s step four determination that she
could return to her past relevant work. We note, however, that at step four even
nonsevere impairments should be taken into consideration in combination with
-6-
any severe impairments. See Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *5. The
judgment of the United States District Court for the Northern District of
Oklahoma is REVERSED and the case REMANDED with a direction that the
district court remand the case to the agency for further proceedings.
Entered for the Court
James E. Barrett
Senior Circuit Judge
-7- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1975043/ | 836 N.E.2d 705 (2005)
361 Ill. App. 3d 1
296 Ill. Dec. 954
Anthony MARCONI, Plaintiff-Appellant,
v.
CHICAGO HEIGHTS POLICE PENSION BOARD, Defendant-Appellee.
Nos. 1-04-1725, 1-04-2390.
Appellate Court of Illinois, First District, First Division.
September 19, 2005.
*709 Jerome F. Marconi, Jerome F. Marconi & Associates, Chicago, for Appellant.
Mathias W. Delort, Aaron G. Allen, Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Chicago, for Appellee.
Justice GORDON delivered the opinion of the court:
This consolidated appeal stems from an application for a disability pension that plaintiff Anthony Marconi, a police officer, filed with defendant Chicago Heights Police Pension Board (the Pension Board). During the pendency of the Pension Board's review of his application, Marconi brought an action for declaratory judgment, mandamus and other relief (the declaratory action), alleging that the Pension Board did not complete its review of his application in a timely manner. While the declaratory action was pending before the circuit court, the Pension Board rendered its final decision denying Marconi a disability pension. Marconi sought administrative review. The circuit court affirmed the Pension Board's decision to deny Marconi a disability pension. Shortly thereafter, the circuit court granted summary judgment in the declaratory action in favor of the Pension Board.
The administrative review portion of this appeal is chiefly concerned with whether the Pension Board erred in denying Marconi's application for a disability pension, given the evidence presented. However, as shall be discussed more fully below, a decision to reverse the Pension Board's determination on that ground would further implicate the constitutionality of section 3-115 of the Illinois Pension Code (the Pension Code) (40 ILCS 5/3-115 (West 2002)), which on its face would support the denial of a disability pension on a "precertification" ground namely, that the three doctors chosen by the Pension Board did not unanimously certify Marconi as disabled.
For the reasons that follow, we reverse the affirmance of the Pension Board's decision to deny Marconi a disability pension and remand the matter to the Pension Board for further proceedings consistent with this opinion; however, we affirm the grant of summary judgment in the declaratory action.
BACKGROUND
I. PROCEDURAL HISTORY
*710 On April 22, 1997, Marconi[1] wrote to the Pension Board, notifying it of his formal request for a duty-related disability pension. Marconi also asked the Pension Board to inform him if a formal application needed to be submitted.
In a letter dated April 30, 1997, the Pension Board acknowledged the receipt of Marconi's letter and treated it as an application for disability pension benefits. The Pension Board requested that Marconi submit a written statement detailing his illness or injury, together with supporting documentation. The Pension Board also informed Marconi that he was required to be examined by three physicians selected by it, and he would be notified of the date, time and location of those examinations. The Pension Board would schedule the matter for a hearing after the completion of all examinations and the receipt of the medical reports.
In a letter dated September 24, 1997, Marconi stated that he was involved in multiple shootings while on the job, and those incidents greatly contributed to his disability. Marconi further stated that it was the police department's own psychiatrist, Dr. Carl Wahlstrom, who recommended that he not return to work as a police officer, and that he was still receiving psychiatric care from Dr. Wahlstrom. Lastly, Marconi requested a prompt hearing because his temporary disability benefits had run out and he was no longer receiving a paycheck. Subsequently, in a letter dated November 12, 1997, Marconi provided the Pension Board with the information that would help it locate the police reports of the shooting incidents he referred to in his earlier correspondence.
Marconi's psychiatric and psychological evaluations scheduled by the Pension Board were conducted on June 30, 1998; July 6, 1998; July 7, 1998; November 20, 1998; and December 10, 1998.
The Pension Board did not hold its first hearing on Marconi's application until September 2, 1999. The Pension Board admitted certain exhibits into evidence so that they could be reviewed by its members prior to the next hearing and adjourned. These exhibits included pertinent personnel records and the reports of the two psychiatrists and one psychologist selected by the Pension Board who evaluated Marconi's condition. The next hearing was scheduled for October 4, 1999.
The next time the Pension Board reconvened was on June 11, 2001. It heard Marconi's testimony and admitted into evidence Dr. Wahlstrom's deposition. The Pension Board then adjourned. As is noted below, it did not reconvene for another year.
On March 1, 2002, Marconi filed the declaratory action. Marconi asserted that he had waited almost five years for the decision on his application for pension benefits. In count I of his complaint, captioned "Due Process Section 1983 [(42 U.S.C. § 1983 (2000))]," Marconi sought: a declaratory judgment that the Pension Board had "violated [his] due process rights * * * by not affording him disability benefits and/or a hearing on his application for benefits"; "a [w]rit of [m]andamus requiring [the Pension Board] to begin paying [him] line of duty disability benefits with back benefits to his last day of pay and statutory interest as required by law"; an award of "any actual damages he has suffered as a result [of the Pension Board's] refusal to provide disability benefits and/or hearing on his application"; and attorney fees and costs. In a mostly duplicative count II of his complaint, captioned "Declaratory Judgment and Mandamus," *711 Marconi again sought a declaratory judgment that the Pension Board had "violated [his] due process rights * * * by not affording him disability benefits and/or a hearing on his application for benefits"; and "a [w]rit of [m]andamus requiring [the Pension Board] to begin paying [him] line of duty disability benefits with back benefits to his last day of pay and statutory interest as required by law." It appears that the only difference between count I and count II was that count I was based on the federal due process violations and count II was based on Illinois law.
While the declaratory action was pending, finally, after extended delays totaling some three years from the date of the first hearing, the Pension Board reconvened and held further hearings on August 26, 2002, September 16, 2002, and October 23, 2002. The Pension Board admitted additional exhibits into evidence and heard the testimony of several witnesses. On October 23, 2002, the Pension Board issued its decision denying Marconi's application for pension benefits. On November 25, 2002, Marconi filed a petition for administrative review of the Pension Board's decision. Marconi's declaratory action, however, remained pending in the circuit court.
On June 10, 2003, the Pension Board moved for summary judgment in the declaratory action on the grounds that count I was filed after the applicable statute of limitations; count II was moot because the hearings on the matter had concluded; and, in the alternative, the Pension Board was immune from the suit because the it acted in an adjudicative capacity.
On January 22, 2004, in the administrative review action, the circuit court affirmed the Pension Board's decision on the grounds that although Marconi was evaluated by more than three mental health professionals, he failed to submit three certificates of disability required under section 3-115 of the Pension Code (40 ILCS 5/3-115 (West 2002)). On February 5, 2004, upon Marconi's motion, the circuit court reconsidered its order and remanded the matter to allow Marconi to submit additional certificates of disability and for the Pension Board to reconsider its decision based upon that additional evidence.
Subsequently, Marconi submitted to the Pension Board two additional certificates of disability. On April 2, 2004, the Pension Board issued its amended decision, again denying Marconi's application for pension benefits.
On May 20, 2004, the circuit court affirmed the Pension Board's decision as not against the manifest weight of the evidence. On July 26, 2004, in the declaratory action, the circuit court granted the Pension Board's motion for summary judgment. Both circuit court's orders were timely appealed, and the appeals were consolidated in this court.
II. EVIDENCE CONSIDERED BY THE PENSION BOARD
Nonexpert Testimony
Marconi testified before the Pension Board as follows. He was hired as a patrol officer by the City of Chicago Heights in 1988. When Marconi was still new on the job, he was involved in a "shots fired" situation. One of the burglary suspects whom Marconi and his partner tried to apprehend struck Marconi's partner with a tree branch; at that point, Marconi's partner shot the suspect. When the suspect was shot, he was standing between Marconi and his partner. After the incident, Marconi felt that the shot meant for the suspect could have hit him in the chest and killed him.
At the end of 1994 or beginning of 1995, Marconi was reassigned to the canine unit. In the spring of 1995, Marconi was involved in another "shots fired" situation. *712 He was chasing a speeding car. After the car ran into a ditch, two individuals got out and started shooting. Marconi ran for cover. Although was not hit by the shots, he injured his shoulder when he bumped it against his squad car. Afterwards, the police department conducted an investigation. Marconi later learned that spent casings were found at the scene. The shooters were never apprehended.
About three to five months later, Marconi was involved in a third "shots fired" situation. While responding to a dispatch about suspicious vehicles, Marconi heard shots being fired. He observed two vehicles speeding towards him and someone shooting in his direction from a block away. One vehicle pulled up to his squad car and its occupants told him that someone was shooting at them and blew out their back window. Marconi and his partner were unable to apprehend the shooter. Both of the vehicles involved were recovered by the police. One of the vehicles had bullet holes in the trunk and its back window was blown out.
The next "shots fired" incident occurred in early 1996. Marconi was on routine patrol. He observed a group of men standing in front of what he believed to be a Gangster Disciples' house. Marconi got out of the squad car, approached one of the men and reached out to grab him by the shoulder. At that time, someone started shooting in the direction of the house. Everybody ducked. Marconi later found out that the man whom he attempted to grab was shot in the torso. The next day, the police apprehended the shooter. Marconi was very bothered by such a close call and so told his sergeant.
According to Marconi, prior to June of 1996, he had no psychological problems and had not undergone a psychological or psychiatric treatment. In June of 1996, two fellow police officers overheard Marconi make a remark about committing suicide and so informed the police chief. The police chief sent Marconi to see Dr. Wahlstrom for a psychiatric evaluation. Dr. Wahlstrom conducted an evaluation and sent Marconi back to work without prescribing any medications or recommending any psychotherapy or counseling. In July of 1996, the police chief sent Marconi back to Dr. Wahlstrom. Dr. Wahlstrom told Marconi that the reasons for the follow-up were his deteriorating work performance and his apparent depression. Dr. Wahlstrom prescribed three medications for Marconi to take trazodone, Depakote and clozapine and returned him to duty. In addition, Marconi was to participate in twice-weekly therapy with Dr. Wahlstrom.
For the next year, Marconi continued to take the medications and see Dr. Wahlstrom twice a week for therapy. At some point during that time, upon Dr. Wahlstrom's recommendation, Marconi was removed from duty and placed on disability leave.[2] At the time Marconi was placed on disability leave, he did not want to be around people; lashed out at his family and colleagues; gained 45 pounds; gave up his hobbies; and could not sleep at night. In addition, Marconi stated that, around the time he was removed from duty, he was under surveillance by the FBI, which was investigating allegations of corruption at the Chicago Heights police department, and he also was audited by the IRS. Marconi remarked that some of his friends were indicted as a result of the FBI investigation and went to prison. The FBI investigation and the IRS audit contributed to Marconi's psychological and psychiatric problems.
*713 Marconi received disability benefits for a year. After his disability benefits ran out, he experienced financial problems and lost his house.
Several police officers were called to testify about the "shots fired" incidents testified to earlier by Marconi. Bryan Howard, a detective with the Chicago Heights police department, partially corroborated Marconi's account about the first shooting incident in stating that the burglary suspect struck him (Howard) with a stick and caused his weapon to discharge. The bullet hit the suspect in the hand. However, according to Howard, Marconi was not in the line of fire and was not standing between Howard and the suspect. Rather, Howard stated that Marconi was elsewhere at the scene, and it took him between 20 and 30 seconds to respond to the shooting. Howard did not hear Marconi say to anyone that he almost got shot.
Frank Cole, a retired Chicago Heights police officer, also testified. Cole's testimony about the car-chase shooting incident contradicted Marconi's. Cole stated that when he and Marconi caught up to the car, it was empty. The driver and the occupant of the car had already fled. Cole started to inspect the car, while Marconi walked down an embankment to search for the suspects. Around the time Marconi came back up the embankment, both officers heard shots fired. According to Cole, the shots came from about three or four blocks away. Cole did not observe anyone shooting in Marconi's or his direction.
Robert Price, a K-9 officer with the Park Forest police department, also testified about the car-chase shooting incident. His testimony contradicted Cole's and corroborated Marconi's. Price stated that he responded to a call of shots fired and met with Marconi. Marconi told him that the occupants of the vehicle he was chasing had fired several shots at him. Price checked around the vehicle and found shell casings on the ground. He and his dog tried to track down the suspects, but were unsuccessful. Price spoke with some neighborhood residents who told him that they had seen several individuals run by. Price also remembered Cole being at the scene.
Admitted into evidence was Price's police report, filed on September 17, 1994, which was consistent with his testimony. Also, corroborating Marconi's and Price's testimony, was a Chicago Heights police report admitted into evidence. The report, dated September 17, 1994, and signed by Sergeant M. Camill, referred to Chicago Heights police officers responding to a radio transmission of shots being fired at an officer who was in pursuit of a stolen auto at the location at issue. Lastly, admitted into evidence was a Cook County sheriff's police department's evidence report dated September 17, 1994, which stated that Sergeant Brink of the Chicago Heights police department requested assistance in an attempted murder investigation of police officers Cole and "Manconi [sic]." The report further stated that the sheriff's department "was advised by Sergeant Brink that the above police officers had made a traffic stop on an auto that they believed had been stolen and that the occupants of the auto exited and began firing at the officers." Among the evidence collected at the scene and from the vehicle were two expended cartridges from.45 Auto and 9 millimeter Luger caliber weapons.
Finally, Michael Leuser, a Chicago Heights police sergeant, testified about a "shots fired" incident involving suspicious vehicles. He corroborated Marconi's testimony that a vehicle pulled up to their squad car and the vehicle's occupants told the officers that someone was shooting at *714 them. The vehicle's rear window was blown out. Leuser and Marconi drove to investigate and heard shots being fired in their direction.
Medical Testimony and Reports
At the hearing, Marconi submitted the evidence deposition of Dr. Wahlstrom. Dr. Wahlstrom's deposition testimony corroborated Marconi's testimony in many respects. Dr. Wahlstrom testified as follows. He was a general and forensic psychiatrist who treated Marconi for several years. Marconi first came to see Dr. Wahlstrom in February of 1996 at the request of the police chief. The police chief was concerned that Marconi had made suicidal threats and wanted Dr. Wahlstrom to evaluate whether Marconi was a danger to himself and in need of mental health treatment. In the course of the initial evaluation, Marconi admitted to having had thoughts and having made statements about committing suicide, but stated that he no longer felt suicidal. Marconi reported no previous psychiatric treatments or hospitalizations. After completing his evaluation, Dr. Wahlstrom reported to the police chief that Marconi could resume his regular duties.
Dr. Wahlstrom next evaluated Marconi in July of 1996, again, at the request of the police chief. The police chief, who described Marconi as one of her best officers, was concerned about the hostility he exhibited towards others and questioned his fitness for duty. In the course of this evaluation, Dr. Wahlstrom met with Marconi three times, spoke with the chief of police several times, and also spoke with Marconi's girlfriend of many years. Dr. Wahlstrom concluded that Marconi was suffering from a major depression and stress related to work and outside life circumstances. Dr. Wahlstrom noted that the stressors that contributed to Marconi's condition included shooting incidents on the job and a massive FBI investigation of the Chicago Heights police department. At that time, Dr. Wahlstrom found that Marconi was not so disabled that he would be a danger to himself or others and Marconi was fit to return to duty, provided that he began psychotherapy and cooperated with all medical treatment recommendations.
The police department made arrangements for Marconi to receive treatment from Dr. Wahlstrom. Marconi began twice-weekly psychotherapy. In addition, Dr. Wahlstrom prescribed three medications an antidepressant, an anti-anxiety medication and a mood-stabilizing medication. Marconi's condition, nevertheless, continued to deteriorate. On September 9, 1996, Dr. Wahlstrom wrote to the police chief that Marconi was making direct physical threats against her and seemed not to be able to exercise good judgment with relation to her.[3] In that letter, which was admitted into evidence, Dr. Wahlstrom further stated that Marconi's "perceptions related to his work environment [were] deteriorating and unstable." Dr. Wahlstrom thus found that Marconi was disabled by his condition and concluded that Marconi was unfit for duty. To Dr. Wahlstrom's knowledge, in September of 1996, Marconi was suspended from active duty. Dr. Wahlstrom did not initially complete a certificate of disability. Subsequently, in February of 2004, Dr. Wahlstrom certified that Marconi was disabled.
Dr. Harley Rubens, who conducted a psychiatric evaluation of Marconi on June 30, 1998, stated in his report the following. In addition to interviewing Marconi, Dr. *715 Rubens reviewed correspondence from Marconi's attorney, a list of incidents involving Marconi, pertinent police reports from the Chicago Heights police department, and letters as well as progress notes from Dr. Wahlstrom. Marconi's past history as told to Dr. Rubens was generally consistent with Marconi's testimony before the Pension Board. Dr. Rubens noted that Marconi made racist remarks about African-Americans. Marconi explained that his animosity towards African-Americans stemmed from multiple incidents involving African-American offenders. Dr. Rubens additionally noted that Marconi stated that he feared he might shoot an innocent person if he went back to work as a police officer. In this regard, Dr. Rubens noted that despite the fears of what he might do, Marconi carried a gun with him.[4]
Dr. Rubens diagnosed Marconi with a "[m]ajor depression by history, resolved"; an "[a]cute stress disorder in the past, resolved"; an "[a]djustment disorder with mixed anxiety and depression"; and a "[p]ersonality [d]isorder NOS," and certified that Marconi was disabled. In his summary, Dr. Rubens stated:
"Officer Marconi underwent traumatic situations while working in the Chicago Heights Police Department. He was in situations where his life was endangered. The authority figures that he trusted did not look after his best interests, by his account. The patient underwent a severe stress reaction at the last shooting. The patient currently experiences resentments over having had financial losses during the period when he was not allowed to work. He also is angered by the fact that nobody listened to him and provided backup support for him. These are his perceptions. The patient has a history of acting impulsively and later regretting it.
* * * Because of his Personality Disorder, which existed long before the events of the shootings, it is possible that Officer Marconi, if he were to return to police work, might do something foolish to prove the point that he is too infirm and too damaged to be a police officer.
* * * Officer Marconi is disabled for full-unrestricted duties in the police department as a result of a psychological disability. The disability would be the Adjustment Disorder in response to being in a situation that he no longer likes or enjoys, and his preexisting Personality Disorder. The cause of the disability would be two fold. One of the causes, most certainly, is the job duty of a police officer not shared by ordinary citizens. The situations are those when he was shot at four times. Additionally during his police work there is a clear description of having been greatly disappointed by the people who have been in higher positions and responsible for his safety and well being. The other cause, however, is Mr. Marconi's preexistent Personality Disorder, which may lead his to act impulsively in possibly dangerous ways." (Emphasis omitted.)
Similarly, Dr. Henry Conroe, who conducted a psychiatric evaluation of Marconi on July 6, 1998, certified in his report that Marconi was disabled. In addition to interviewing Marconi, Dr. Conroe spoke with Dr. Wahlstrom and reviewed a number of documents, including a letter to the Pension Board from Marconi's attorney, a letter to the police chief from Dr. Wahlstrom, Marconi's personnel and medical records, and police reports of the shooting incidents. The incidents Marconi recounted to Dr. Conroe were consistent with his *716 testimony before the Pension Board and his statements to Dr. Rubens. Dr. Conroe also noted Marconi's use of racial epithets and his animosity towards African-Americans. In addition, Dr. Conroe noted that Marconi carried a gun everywhere with him because he did not trust anyone. Dr. Conroe summarized his assessment of Marconi's condition as follows:
"[W]ith reasonable degree of psychiatric certainty, Officer Anthony Marconi is disabled for the full unrestricted duties in a police department due to the psychiatric disability caused by a Major Depressive Episode in Partial Remission. The most incapacitating residual symptom is the continuing irritability with homicidal ideation. As a result, his ability to interact safely with the public and to respond appropriately to the demands of the job would be severely impaired. His capacity to work with supervisors and co-workers would be significantly limited. These manifestations of his mood disorder remain despite active treatment with both medications and psychotherapy. I do not foresee that additional treatment would allow him to resume full unrestricted police duties.
* * *
In my opinion, the disability was to a large degree caused by the unique job duties of a police officer not shared by an ordinary citizen. * * * [T]he major stressors were the disillusionment relating to the [FBI] investigation of prominent Chicago Heights officials and their convictions for corruption and the shooting incidents while on duty."
A similar conclusion was reached by Dr. Ronald Ganellen, who conducted Marconi's psychological evaluation on December 10, 1998. Marconi's account of his past history was generally consistent with his statements to Dr. Rubens, Dr. Conroe, as well as with his testimony before the Pension Board. Like other evaluators, Dr. Ganellen also noted Marconi's animosity towards African-Americans and his use of racial slurs. Dr. Ganellen further noted that Marconi carried a gun with him and, by his admission, slept with the gun by his side. In addition to interviewing Marconi and administering several psychological tests, Dr. Ganellen reviewed Dr. Wahlstrom's notes. In summarizing his findings, Dr. Gannellen stated:
"The evaluation overall indicates that Mr. Marconi's psychiatric difficulties involve[] paranoid features, such as his conviction that the police chief was deliberately trying to hurt, embarrass, or humiliate him, his angry, resentful responses, and his focus on blacks as presenting a significant threat. Although paranoid symptoms can occur as part of a mood disorder, such as depression, these symptoms typically decrease as the mood disorder resolves. In Mr. Marconi's case, the paranoid features have persisted although the depression has improved considerably. This indicates that the paranoid features and mood disorder are two, independent psychiatric conditions.
These difficulties do not appear to be directly related to the incidents at work Mr. Marconi described when he was shot at. * * *
In my opinion, Mr. Marconi is not able to return to work as a police officer at the present time as he may present a risk to public safety as well as to his own safety."
Dr. Ganellen did not initially complete a certificate of disability. Subsequently, in February of 2004, Dr. Ganellen certified that Marconi was disabled at the time of his evaluation.
On the other hand, Dr. Richard Harris, who conducted a psychiatric evaluation of Marconi on July 7, 1998, and November *717 20, 1998, reached the opposite conclusion. Dr. Harris certified that Marconi was not disabled. In addition to interviewing Marconi, Dr. Harris relied on the pertinent personnel records; Dr. Wahlstrom's notes and letters; a phone conversation with Dr. Wahlstrom; a phone conversation with the police chief; police reports of the shooting incidents; and a phone conversation with Marconi's long-time girlfriend. Dr. Harris questioned the overall credibility of Marconi's account due to "many inconsistencies of his story." Dr. Harris further stated that "[t]here is no clear evidence to support the claim of a duty-related disability presumably caused by the effects of five shooting incidents." In addition, Dr. Harris felt that Marconi was trying to manipulate him into accepting his disability. Dr. Harris also questioned Dr. Wahlstrom's assessment that Marconi could not return to work because of his potential for violence, stating:
"[Dr. Wahlstrom] apparently did not seem too concerned about Officer Marconi carrying a gun during the height of his purported dangerousness. An individual who is so unstable should not be carrying a gun. I believe Dr. Wahlstrom's tolerance and/or implicit approval of the gun carrying behavior is one indication that Officer Marconi was not suffering from a severe or even moderate psychiatric disturbance characterized in part by barely controlled aggressiveness."
In his report, Dr. Harris further stated:
"I doubt [Marconi] was a totally disabled individual for the year he was on [temporary] disability * * *. He should have been working and I am certain [that] part of any emotional distress he experienced during that time was due to not doing anything productive. He has always been an active and industrious person. Idleness is detrimental to his well being as it is to many people.
* * * I don't think he is a violent and unstable person.
* * * At this time there is no evidence that Officer Marconi is suffering from a psychiatric disorder."
However, Dr. Harris had also stated in his report:
"Given that [Marconi] had a clear psychiatric disturbance warranting time off from work, he had a full year of paid [temporary] disability. This time off resulted in the reduction of his angry feelings towards the chief. It was the threat to the chief that prompted the medical leave from work. He has had sufficient time to recover from the acute problems he experienced in July-September 1996. He is no longer suffering from psychiatric disability."
In sum, although Dr. Harris concluded that at the time of the evaluation Marconi was no longer suffering from a psychiatric impairment that rendered him unable to function as a police officer, he acknowledged that Marconi at one time "had a clear psychiatric disturbance[5] warranting time off from work" and experienced "acute problems" in July through September of 1996. In Dr. Harris' opinion, Marconi's "psychiatric impairment that resulted in medical leave from work ended as far back as, and most likely well before 10/6/97."
III. THE PENSION BOARD'S
AMENDED DECISION
The Pension Board first explained:
"The delay in hearing this case was not the result of any animus of the Board for [Marconi], but rather resulted from a combination of unfortunate factors, including *718 a misunderstanding that [Marconi] had abandoned his application and the Board's inability to communicate promptly with its former attorneys."
The Pension Board found that Marconi's testimony with respect to the shooting incidents was rebutted by the testimony of other witnesses and, overall, found most of Marconi's testimony not credible. The Pension Board did find "considerably troubling" Marconi's frequent use of racial slurs during the evaluations and his animosity towards African-Americans, especially given that the City of Chicago Heights had a significant population of African-Americans. In this respect, the Pension Board stated:
"There is little, if any, testimony that Marconi used the [racial slurs] in normal parlance as an officer. If he did, he would doubtless have been subject to severe discipline and this case would never have arrived before us. There is some evidence in the record that his relationships with African-Americans were normal. * * * The Board must consider why Marconi would feel free to laden his psychological interviews with the constant use of [racial slurs]. Marconi knew he was being examined to determine if he suffered from a psychological disability. Given his self-interest in achieving a favorable report, it seems that Marconi was using it to alarm the examining physicians into believing he suffered from a psychological impairment of the basis that only such a disabled person would use the [racial slurs] so often in such a professional setting.
* * * [A]nother motivation could be to coerce this Board into granting a pension so that Marconi would not be able to subject the City to possible liability, or to subject this Board to the unfavorable publicity of `putting a bigoted officer back on the street.'"
With respect to the question of Marconi's psychological disability, the Pension Board found Dr. Harris' report to be the most thorough of the medical reports and "the most credible and persuasive evaluation," providing the most complete assessment of Marconi's condition, and assigned it "great weight." According to the Pension Board, "Dr. Harris' report indicate[d] that Marconi manufactured a blend of behavior and statements in order to obtain a disability pension that he was not entitled to." The Pension Board further found:
"At worst, Marconi has concocted an aggressively bigoted persona and symptoms of a psychological disorder to convince doctors that he [could not] perform the duties of a police officer. At best, it seems, Marconi has some impediments, but medical practitioners simply cannot agree if they rise to the level necessary to qualify for a disability award under the Pension Code. In either case, awarding Marconi a pension would violate this Board's fiduciary responsibility to the fund participants."
The Pension Board, accordingly, determined that Marconi was not eligible for a disability pension.
ANALYSIS
Administrative Review
On appeal, we review the administrative agency's decision and not the circuit court's determination. Anderson v. Department of Professional Regulation, 348 Ill.App.3d 554, 560, 284 Ill. Dec. 575, 810 N.E.2d 228, 233 (2004). Judicial review of the decision of the Pension Board is governed by the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2002)). 40 ILCS 5/3-148 (West 2002); Robbins v. Board of Trustees of the Carbondale Police Pension Fund, 177 Ill. 2d 533, 537, 227 Ill. Dec. 116, 687 N.E.2d 39, 42 (1997). "The applicable standard of *719 review, which determines the degree of deference given to the agency's decision, depends upon whether the question presented is one of fact, one of law, or a mixed question of law and fact." AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390, 261 Ill. Dec. 302, 763 N.E.2d 272, 279 (2001). The factual findings of the administrative agency are considered to be prima facie correct and will be reversed only if against the manifest weight of the evidence. 735 ILCS 5/3-110 (West 2002); Antonelli v. Board of Trustees of the Hillside Police Pension Board, 287 Ill.App.3d 348, 353, 222 Ill. Dec. 901, 678 N.E.2d 773, 776 (1997). On the other hand, questions of law are reviewed de novo. MacDonald v. Board of Trustees of the Park Ridge Police Pension Fund, 294 Ill.App.3d 379, 382, 228 Ill. Dec. 877, 690 N.E.2d 636, 639 (1998).
The question of whether a police officer qualifies for a disability pension involves an examination of the legal effect of a given set of facts. Such a mixed question of law and fact is reviewed under the clearly erroneous standard. See AFM Messenger Service, 198 Ill.2d at 391-95, 261 Ill. Dec. 302, 763 N.E.2d at 279-82; Knight v. Village of Bartlett, 338 Ill.App.3d 892, 898, 272 Ill. Dec. 901, 788 N.E.2d 205, 210 (2003) (the question of the police officer's eligibility for a disability pension presents a mixed question of law and fact and is reviewed under the clearly erroneous standard). The clearly erroneous standard of review is "between a manifest weight of the evidence standard and a de novo standard so as to provide some deference to the [agency's] experience and expertise." City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 229 Ill. Dec. 522, 692 N.E.2d 295, 302 (1998). Although we must afford deference to the agency's experience and expertise, we will reverse its decision "`when although there is evidence to support it, [we are] * * * left with the definite and firm conviction that a mistake has been committed.'" AFM Messenger Service, 198 Ill.2d at 393, 261 Ill. Dec. 302, 763 N.E.2d at 280-81, quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746, 766 (1948).
Marconi contends that the Pension Board erred in denying his application for a disability pension because the medical evidence unanimously established that he was disabled at the time he was suspended from active duty and placed on disability leave.
Section 3-114.1 of the Pension Code addresses the "[l]ine of duty" disability pension and provides, in pertinent part:
"If a police officer as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service, the police officer shall be entitled to a disability retirement pension * * *." 40 ILCS 5/3-114.1(a) (West 2002).
In the alternative, pursuant to section 3-114.2 of the Pension Code, a police officer may be eligible for a "[n]ot on duty" disability pension:
"A police officer who becomes disabled as a result of any cause other than the performance of an act of duty, and who is found to be physically or mentally disabled so as to render necessary his or her suspension or retirement from police service in the police department, shall be entitled to a disability pension * * *." 40 ILCS 5/3-114.2 (West 2002).
*720 In considering the medical evidence regarding the police officer's fitness for duty, the pension board must focus on the medical examinations given at or near the time of the officer's removal from active duty. See Hahn v. Police Pension Fund of the City of Woodstock, 138 Ill. App. 3d 206, 210, 92 Ill. Dec. 825, 485 N.E.2d 871, 874 (1985). In Hahn, this court explained:
"Inasmuch as [the Pension Code] requires the amount of disability pension to be determined as of the date of suspension of duty or retirement, it seems apparent that the fact of disability should also be considered as of that time." Hahn, 138 Ill.App.3d at 210, 92 Ill. Dec. 825, 485 N.E.2d at 874.
Thus, Hahn held that at the initial determination of eligibility for a pension, it is inappropriate to consider medical opinions obtained much later such as eight or nine months after the officer's removal from duty that indicated that the officer improved with therapy. Hahn, 138 Ill. App.3d at 210-11, 92 Ill. Dec. 825, 485 N.E.2d at 874-75. Rather, such reports are properly considered as part of verification of continuing eligibility for a pension. See 40 ILCS 5/3-115 (West 2002) ("[m]edical examination of a police officer retired for disability shall be made at least once each year prior to attainment of age 50, as verification of the continuance of disability for service as a police officer"); Martino v. Police Pension Board of the City of Des Plaines, 331 Ill.App.3d 975, 981, 265 Ill. Dec. 251, 772 N.E.2d 289, 294 (2002) (if a police officer recovers from disability, the pension board may revoke his disability pension).
Here, Dr. Wahlstrom was the only psychiatrist to evaluate Marconi near the time of his removal from active duty in September of 1996. All other evaluations were conducted more than a year and a half later. The Pension Board asserts that because none of its experts evaluated Marconi promptly, "all evaluations stand on a relatively equal footing." As Marconi points out, to condone such delay in evaluations would be tantamount to condoning the denial of a disability pension to an applicant whose condition was not promptly evaluated due to the Pension Board's oversight or malfeasance. In any event, all of the mental health professionals, including Dr. Harris, agreed that at the time of his removal from active duty Marconi was suffering from a psychiatric impairment that rendered him unable to function as a police officer. Under the authority of Hahn, it was clearly erroneous for the Pension Board to deny Marconi a disability pension in the face of this evidence speaking to Marconi's condition at the time of his removal from active duty.
In further support of his position, Marconi relies on Knight, which is also on point. In Knight, the police officer was examined by three mental health professionals he was referred to by the police department, as well as three psychiatrists selected by the pension board. Knight, 338 Ill.App.3d at 897, 899, 272 Ill. Dec. 901, 788 N.E.2d at 208-09, 210. As is the case here, two of the doctors selected by the pension board and a psychologist to whom the officer was referred by the police department found the officer disabled and submitted certificates of disability to that effect. Knight, 338 Ill.App.3d at 897, 899-900, 272 Ill. Dec. 901, 788 N.E.2d at 208-09, 210. The one psychiatrist selected by the pension board who opined that the officer was not psychologically or psychiatrically disabled was Dr. Harris, the same expert as in the instant case. Knight, 338 Ill. App.3d at 897, 900, 272 Ill. Dec. 901, 788 N.E.2d at 209, 210. Dr. Harris reached that conclusion despite his own finding that the officer had a "`lack of fitness for duty'" in a sense that the officer was no *721 longer capable of performing his police duties. Dr. Harris stated that the "`[l]ack of fitness for duty and disability are not one and the same.'" Knight, 338 Ill. App.3d at 900, 272 Ill. Dec. 901, 788 N.E.2d at 211. As is the case here, the pension board relied heavily upon Dr. Harris' opinion and discounted the other expert opinions. The pension board concluded that the officer "`suffer[ed] from a psychological problem related to employment issue' and had `a severe personality disorder which made him unfit to return to duty as a police officer * * * due to employment issues.'" Despite its finding of unfitness for duty and its corresponding conclusion that the officer should not be returned to duty, the pension board denied the officer's application for a disability pension. Knight, 338 Ill.App.3d at 901, 272 Ill. Dec. 901, 788 N.E.2d at 211-212. Upon review, this court reversed the pension board's ruling as clearly erroneous because the pension board's own findings, as well as other evidence in the record, compelled a conclusion of disability. Knight, 338 Ill. App.3d at 901-02, 272 Ill. Dec. 901, 788 N.E.2d at 212.
We agree with Marconi that Knight supports his position. Here, as discussed, all of the mental health professionals, including Dr. Harris, agreed that at the time of his removal from active duty, Marconi was suffering from a psychiatric impairment that rendered him unable to function as a police officer. This evidence, together with the rest of the record, as in Knight, compels the conclusion that Marconi was unfit for duty at the time of his removal and, therefore, disabled. Although the Pension Board asserts that Marconi's condition has subsequently improved, as discussed, this evidence is properly considered upon the review of his continuing eligibility for a disability pension, and not at the initial determination. Nor are we persuaded by the Pension Board's assertion that nonmedical evidence in the instant case fails to support a claim of disability. Marconi's own testimony of his impaired condition aside, we find it significant, as did this court in Knight, that Marconi did not leave active duty on his own accord but, rather, was removed from active duty by his superiors at the police department.
The Pension Board urges us to follow the decision in Trettenero v. Police Pension Fund, 333 Ill.App.3d 792, 267 Ill. Dec. 468, 776 N.E.2d 840 (2002), instead of Knight. The Pension Board's reliance on Trettenero is misplaced. We first note that unlike Hahn and Knight, which addressed the initial eligibility for a disability pension, Trettenero addressed the termination of a disability pension. Trettenero, 333 Ill.App.3d at 794, 267 Ill. Dec. 468, 776 N.E.2d at 843. In Trettenero, at the request of the pension board, Dr. Harris (the same expert as in the instant case) evaluated the police officer. Dr. Harris opined that the officer was no longer mentally disabled. Trettenero, 333 Ill.App.3d at 795, 267 Ill. Dec. 468, 776 N.E.2d at 844. In addition to Dr. Harris' testimony and reports, the pension board considered expert evidence that contradicted Dr. Harris' opinionspecifically, the evaluations of a psychiatrist and the officer's treating physician, a psychologist, who opined that the officer continued to be mentally disabled. Trettenero, 333 Ill.App.3d at 795-96, 267 Ill. Dec. 468, 776 N.E.2d at 844-45. The pension board "placed great weight on the testimony of Dr. Harris" and found that the officer had fully recovered from disability. Trettenero, 333 Ill.App.3d at 797, 267 Ill. Dec. 468, 776 N.E.2d at 845.
The court in Trettenero first upheld the statute providing that a disability pension may be terminated if only one doctor, after conducting a medical examination, concluded that the officer was no longer disabled. *722 Trettenero, 333 Ill.App.3d at 799-800, 267 Ill. Dec. 468, 776 N.E.2d at 847-49. Having made that decision, the court further found that there was sufficient evidence to uphold the pension board's finding that the officer's disability had terminated. Trettenero, 333 Ill.App.3d at 802, 267 Ill. Dec. 468, 776 N.E.2d at 850. Unlike in the instant case and unlike in Knight, Dr. Harris' report was free of internal inconsistencies and, therefore, the pension board did not err in giving it more credit than the other two reports. In this regard, we further note that in Trettenero one of the experts that contradicted Dr. Harris testified that there was no medical basis to conclude that his own opinion was any more medically correct than that of Dr. Harris. The record also showed that the other expert, the officer's treating physician, did not address the question of the officer's disability during many of the treatment sessions, and there were significant breaks in the treatment. Trettenero, 333 Ill.App.3d at 802, 267 Ill. Dec. 468, 776 N.E.2d at 850. In contrast to Trettenero, in the instant case, as in Knight, all of the experts, including Dr. Harris, agreed that at the time of his removal from active duty, Marconi was suffering from a psychiatric impairment that rendered him unable to function as a police officer. Accordingly, as discussed, we are compelled to reverse the Pension Board's decision to deny Marconi a disability pension as clearly erroneous.
We must now, therefore, address the alternative argument of the Pension Board on appeal. The Pension Board, in the alternative, argues that its decision must be affirmed pursuant to section 3-115's "three certifications" requirement. Section 3-115 provides, in pertinent part:
"A disability pension shall not be paid unless there is filed with the board certificates of the police officer's disability, subscribed and sworn to by * * * 3 practicing physicians selected by the board." (Emphasis added.) 40 ILCS 5/3-115 (West 2002).
As the Pension Board points out, although Marconi submitted four certificates of disability, Dr. Harris' certificate stated that Marconi was not disabled and, although Dr. Wahlstrom certified that Marconi was disabled, Dr. Wahlstrom was not one of the doctors selected by the Pension Board. The Pension Board argues that because Dr. Harris, the third doctor selected by it, did not certify that Marconi was disabled, Marconi is not eligible for a disability pension because of his failure to comply with the requirements of section 3-115. In support of the strict construction of section 3-115's certification requirement, the Pension Board relies on this district's decision in Rizzo v. Board of Trustees of the Village of Evergreen Park Police Pension Fund, 338 Ill.App.3d 490, 273 Ill. Dec. 320, 788 N.E.2d 1196 (2003).
In Rizzo, this court stated:
"The plain and clear language of [section 3-115] requires that a police officer cannot obtain a disability pension unless the Board receives certificates stating that the officer is disabled from three practicing physicians who were selected by the Board. * * *
* * *
In the present case, one of the three physicians selected by the Board to examine [the officer] * * * did not certify that he had a disability. Based on section 3-115, without such certification, the Board could not award [the officer] a disability pension." Rizzo, 338 Ill. App.3d at 494-95, 273 Ill. Dec. 320, 788 N.E.2d at 1200.
As Marconi points out, the Third District's recent decision in Coyne v. Milan Police Pension Board, 347 Ill.App.3d 713, *723 283 Ill. Dec. 435, 807 N.E.2d 1276 (2004), disagrees with Rizzo. Coincidentally, in Coyne, Dr. Harris was, again, the lone dissenter. See Coyne, 347 Ill.App.3d at 720, 283 Ill. Dec. 435, 807 N.E.2d at 1281. The court in Coyne stated:
"We believe the Board's [strict] interpretation of section 3-115 yields a result that is both absurd and unconstitutional. Although the Board adjudicated several issues other than the certificate requirement, such action was superfluous if the Board's interpretation of that requirement is carried to its logical conclusion. As a threshold matter in all cases, the three physicians specified in section 3-115 would each have to certify that the applicant was disabled * * *. The opinion of a lone minority dissenter like Doctor Harris (five contrary opinions notwithstanding) would ipso facto defeat a pension claim, thus rendering section 3-115 a virtual summary dismissal provision. A pension board would have no use for an evidentiary hearing in such cases because, regardless of the weight of the claimant's evidence, and regardless of any credibility issues pertaining to the lone dissenting physician, the outcome of the case would be predetermined by the mere existence of a disagreement between witnesses. We cannot believe the legislature would establish the adjudicatory process outlined in the Pension Code expecting that the process would be so easily precluded." (Emphasis in original.) Coyne, 347 Ill.App.3d at 729, 283 Ill. Dec. 435, 807 N.E.2d at 1288-89.
Coyne, thus, rejected the literal construction of section 3-115's certification requirement, holding instead that section 3-115 requires the mere filing of three medical certificates "addressing a claimant's disability status generally, regardless of the doctor's ultimate opinion [as to the disability]." (Emphasis added.) Coyne, 347 Ill. App.3d at 728, 283 Ill. Dec. 435, 807 N.E.2d at 1288. Under this construction, Marconi complied with the requirements of section 3-115 because Dr. Harris submitted a medical certificate to the Pension Board, albeit certifying that Marconi was not disabled.
As the Pension Board points out, Coyne was criticized in the Second District's decision of Wade v. City of North Chicago Police Pension Board, 353 Ill.App.3d 852, 289 Ill. Dec. 411, 819 N.E.2d 1211 (2004), vacated by Wade v. City of North Chicago Police Pension Board, 215 Ill. 2d 620, 293 Ill. Dec. 312, 828 N.E.2d 282 (2005). In Wade, as in Coyne, Rizzo and Knight, and as in this case, only two of the three doctors selected by the pension board found the officer disabled and issued certificates of disability to that effect. Wade, 353 Ill.App.3d at 854, 289 Ill. Dec. 411, 819 N.E.2d at 1213. The court in Wade followed Rizzo and an earlier Fourth District decision in Daily v. Board of Trustees of the Police Pension Fund, 251 Ill.App.3d 119, 190 Ill. Dec. 533, 621 N.E.2d 986 (1993), which also adhered to the literal interpretation of section 3-115. Wade, 353 Ill.App.3d at 857-60, 289 Ill. Dec. 411, 819 N.E.2d at 1216-18. Wade also discounted the authority of Knight, where the matter was remanded to the pension board with the instructions to grant the officer a disability pensiondespite the lack of unanimous concurrence among the three doctors chosen by the board as to the officer's disability (Knight, 338 Ill.App.3d at 906, 272 Ill. Dec. 901, 788 N.E.2d at 215). In distinguishing Knight, Wade noted, among other things, that Knight neither addressed Rizzo[6] nor construed section 3-115. Wade, 353 Ill.App.3d at 861, 289 *724 Ill.Dec. 411, 819 N.E.2d at 1219. Ultimately, the court in Wade affirmed the denial of a disability pension for failure to comply with the requirements of section 3-115 and did not consider the argument that the pension board erred in its determination that the officer had failed to prove his disability. Wade, 353 Ill.App.3d at 862, 289 Ill. Dec. 411, 819 N.E.2d at 1220.
While the instant case was pending on appeal, the supreme court issued a supervisory order in Wade in light of its recent decision in Turcol v. Pension Board of Trustees of the Matteson Police Pension Fund, 214 Ill. 2d 521, 293 Ill. Dec. 307, 828 N.E.2d 277 (2005). See Wade v. City of North Chicago Police Pension Board, 215 Ill. 2d 620, 293 Ill. Dec. 312, 828 N.E.2d 282 (2005). The supreme court directed the Second District to vacate its judgment and resolve the issue of whether the pension board erred in its determination that the officer had not proven his disability. See Wade, 215 Ill. 2d 620, 293 Ill. Dec. 312, 828 N.E.2d 282. However, the ground for the supervisory order was not that Wade's strict construction of section 3-115 was unconstitutional. Rather, as the supreme court explained in Turcol, it is proper for a reviewing court to engage in section 3-115 analysis only after deciding that the pension board erred in its determination that the officer failed to prove his or her disability:
"[W]ere we to agree with the [strict] construction of section 3-115, we would then have to consider plaintiff's claim that section 3-115 is unconstitutional. It is fundamental that courts should consider the constitutionality of a statute only when necessary to decide the case." Turcol, 214 Ill.2d at 524, 293 Ill. Dec. 307, 828 N.E.2d at 278.
Ours is such a case. We have already concluded that, from an evidentiary standpoint, the Pension Board's decision to deny Marconi a disability pension was clearly erroneous. Consequently, our ultimate decision as to whether the Pension Board's ruling must, nevertheless, be affirmed turns on the construction of section 3-115 and the resolution of the constitutional concerns that are implicated. In this regard our review is de novo. See Land v. Board of Education of the City of Chicago, 202 Ill. 2d 414, 421, 269 Ill. Dec. 452, 781 N.E.2d 249, 254 (2002).
In interpreting a statute, we must ascertain the legislative intent, which is found in the plain and ordinary meaning of the language used in the statute. Land, 202 Ill.2d at 421, 269 Ill. Dec. 452, 781 N.E.2d at 254. It is well established that where the statutory language is clear, we are to give that language effect without resorting to other aids of construction. Paris v. Feder, 179 Ill. 2d 173, 177, 227 Ill. Dec. 800, 688 N.E.2d 137, 139 (1997). Equally well established is the tenet that a statute capable of two interpretations should be given that which is reasonable and will not produce results that are either unconstitutional or "absurd, unjust, unreasonable or inconvenient." Collins v. Board of Trustees of Firemen's Annuity & Benefit Fund of Chicago, 155 Ill. 2d 103, 110, 183 Ill. Dec. 6, 610 N.E.2d 1250, 1253 (1993); In re Loss, 119 Ill. 2d 186, 194-95, 116 Ill. Dec. 160, 518 N.E.2d 981, 984 (1987). As noted, section 3-115 requires three "certificates of the police officer's disability" from the doctors chosen by the Pension Board. 40 ILCS 5/3-115 (West 2002). Webster's dictionary defines a "certificate" as "a document containing a certified * * * statement," "a signed, written, or printed testimony to the truth of something," and to "certify" is "to attest * * * authoritatively" or "to confirm or attest * * * as being true, meeting a standard, or being as represented." Webster's *725 Third New International Dictionary 367 (1993). We further note that the certification requirement is an antifraud provision designed to ensure the integrity of the pension fund. Trettenero, 333 Ill.App.3d at 799, 267 Ill. Dec. 468, 776 N.E.2d at 847. Thus, it would appear that Wade and Rizzo were correct in holding that the plain and ordinary meaning of the foregoing statutory language requires three formal documents affirmatively attesting that the police officer was disabled. However, as discussed, the court in Coyne felt compelled to give the certification requirement a different meaning because it held that the plain meaning interpretation of section 3-115 is unconstitutional as applied to applicants such as Marconi because it violates their right to procedural due process. Under Coyne, though, the certification requirement is reduced to a mere empty formalityeven three certificates stating that an applicant is not disabled would satisfy the statute. In essence, Coyne neutered the certification requirement to save it from being struck down.
We must, therefore, address those infirmities under the plain meaning of the statute, as interpreted by Wade and Rizzo, that implicate due process considerations. The due process clause of the fourteenth amendment provides that a state cannot deprive individuals of certain substantive rightslife, liberty, and propertyexcept pursuant to constitutionally adequate procedures. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494, 503 (1985); Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 901, 47 L. Ed. 2d 18, 31 (1976); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571, 92 S. Ct. 2701, 2706, 33 L. Ed. 2d 548, 557 (1972). The Supreme Court has long made clear that the property interests protected by procedural due process "extend well beyond actual ownership of real estate, chattels, or money." Roth, 408 U.S. at 572, 92 S. Ct. at 2706, 33 L.Ed.2d at 557. Protected property interests include those benefits to which a person has "a legitimate claim of entitlement." Roth, 408 U.S. at 577, 92 S. Ct. at 2709, 33 L.Ed.2d at 561. Pension benefits fall into this category. See Ill. Const.1970, art. XIII, § 5 ("[m]embership in any pension * * * system of the State, any unit of local government * * *, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired"); People ex rel. Sklodowski v. State, 182 Ill. 2d 220, 228-29, 230 Ill. Dec. 884, 695 N.E.2d 374, 377 (1998); Miller v. Retirement Board of Policemen's Annuity & Benefit Fund, 329 Ill.App.3d 589, 597, 264 Ill. Dec. 727, 771 N.E.2d 431, 437-38 (2002); Stillo v. State Retirement Systems, 305 Ill.App.3d 1003, 1009, 239 Ill. Dec. 453, 714 N.E.2d 11, 16 (1999); Wendl v. Moline Police Pension Board, 96 Ill.App.3d 482, 486, 51 Ill. Dec. 949, 421 N.E.2d 584, 587 (1981).
Although the Supreme Court has never definitively ruled that applicants for governmental benefits are "entitled" to those benefits in a sense that would entitle them to the same due process protections as the recipients whose benefits are being terminated, to hold otherwise would leave the applicants "without procedural safeguards against totally arbitrary actions by government administrators." 3 R. Rotunda and J. Nowak, Treatise on Constitutional Law § 17.5, at 71 (3d ed.1999). Thus, federal circuits have held with virtual unanimity that where a statute purports to spell out an entitlement to governmental benefits, due process attaches not only to the determination of continued eligibility for benefits, but to the initial determination of eligibility as well. See, e.g., Kelly v. R.R. Retirement Board, 625 F.2d 486, 490 *726 (3rd Cir.1980); Mallette v. Arlington County Employees' Supplemental Retirement System II, 91 F.3d 630, 634, 637-38 (4th Cir.1996); Holbrook v. Pitt, 643 F.2d 1261, 1278 n. 35 (7th Cir.1981); Schroeder v. City of Chicago, 927 F.2d 957, 963 (7th Cir.1991) (Ripple, C.J., concurring); Daniels v. Woodbury County, 742 F.2d 1128, 1132-33 (8th Cir.1984); Griffeth v. Detrich, 603 F.2d 118 (9th Cir.1979), cert. denied, sub nom. Peer v. Griffeth, 445 U.S. 970, 100 S. Ct. 1348, 64 L. Ed. 2d 247 (1980).[7] We follow the majority view that applicants for governmental benefits must be afforded due process protections.
We further note that the Pension Board cannot prevail on an argument that because the legislature created an entitlement to a disability pension, it may prescribe whatever application procedures for that benefit it sees fit. It has been firmly established that the legislature cannot grant persons a right to a benefit which would be an "entitlement" for due process purposes and at the same time, by statutory action, give those persons fewer procedural safeguards than required by due process. See Loudermill, 470 U.S. at 541, 105 S. Ct. at 1492-93, 84 L.Ed.2d at 503 (an individual cannot be deprived of life, liberty or property, except pursuant to constitutionally adequate proceduresalthough the legislature may confer an "entitlement," "`it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.' [Citation.]"); 3 R. Rotunda and J. Nowak, Treatise on Constitutional Law § 17.5, at 72 (3d ed.1999).
Having determined that the safeguards of the due process clause apply to Marconi's application, "`the question remains what process is due.'" Loudermill, 470 U.S. at 541, 105 S. Ct. at 1493, 84 L.Ed.2d at 503, quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972). As discussed, this question involves constitutional considerations and, thus, "the answer to [it] is not to be found in the [Illinois] statute." Loudermill, 470 U.S. at 541, 105 S. Ct. at 1493, 84 L.Ed.2d at 503.
"`The fundamental requisite of due process of law is the opportunity to be heard.'" Goldberg v. Kelly, 397 U.S. 254, 267, 90 S. Ct. 1011, 1020, 25 L. Ed. 2d 287, 299 (1970), quoting Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779, 783, 58 L. Ed. 1363, 1369 (1914); accord Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 178, 71 S. Ct. 624, 652, 95 L. Ed. 817, 857 (1951) (at a minimum, the Constitution requires notice and some opportunity to be heard). In other words, due process requires that the applicant be "given a meaningful opportunity to present [his] case." Mathews, 424 U.S. at 349, 96 S. Ct. at 909, 47 L.Ed.2d at 41. Administrative proceedings are no exception to this rule. See Goldberg, 397 U.S. at 270, 90 S. Ct. at 1021, 25 L.Ed.2d at 300; Wendl, 96 Ill.App.3d at 486, 51 Ill. Dec. 949, 421 N.E.2d at 587 (administrative proceedings must conform to the constitutional requirements of due process of law).
Where the applicant alleges that the administrative proceedings did not afford him due process, we must determine whether he received some kind of a constitutionally adequate hearing. See Mathews, 424 U.S. at 349, 96 S. Ct. at 909, 47 L.Ed.2d at 41. A hearing is intended to allow the applicant who raises meritorious arguments to affect the outcome of his case. See Loudermill, 470 U.S. at 543 n. *727 8, 105 S. Ct. at 1494 n. 8, 84 L. Ed. 2d at 505 n. 8. Put differently, "[t]he opportunity to present reasons * * * why proposed action should not be taken is a fundamental due process requirement." (Emphasis added.) Loudermill, 470 U.S. at 546, 105 S. Ct. at 1495, 84 L.Ed.2d at 506. Here, the source of substantive meritorious arguments is to be found in the applicable state statutory scheme. See Loudermill, 470 U.S. at 544-45 nn. 9-10, 105 S. Ct. at 1494-95 nn. 9-10, 84 L. Ed. 2d at 505-06 nn. 9-10. The applicant, therefore, is entitled to raise at the hearing any factually arguable issues that implicate the statutory requirements, and this right to present one's side of the case "does not depend on a demonstration of certain success." Loudermill, 470 U.S. at 544, 105 S. Ct. at 1494, 84 L.Ed.2d at 505.
The "plain meaning" interpretation of the certification provision, as proffered in Wade and Rizzo, would not satisfy the minimum due process requirements. Under that interpretation, an applicant does not receive a disability pension unless all three doctors chosen by the pension board certify him as disabled. The certification requirement, on its face, gives the applicant no right to question the pension board's choice of doctors or set aside unfavorable certificates thus obtained. As pointed out in Coyne, in the event that the pension board's doctors do not unanimously certify the applicant as disabled, whatever meritorious arguments the applicant might raise at a hearing have no bearing on the outcome of his case because just one unfavorable certificate renders the entire proceeding pointless. In other words, although such applicant may have technically had a hearing, that hearing's negative outcome would have been predetermined before the hearing ever started since, in any event, the lack of unanimous certification by the three doctors would preclude the receipt of the pension. It has long been established, however, that a hearing with a predetermined outcome is no hearing at all. See Matthews v. Harney County, Oregon, School District No. 4, 819 F.2d 889, 893 (9th Cir.1987); Continental Box Co. v. National Labor Relations Board, 113 F.2d 93, 95-96 (5th Cir.1940) ("`It is a fundamental principle that no judicial or quasi judicial hearing is valid, where the maxim "audi alteram partem" [translated as "hear the other side"] is ignored, and it is therefore of the essence of a valid judgment that the body which pronounces it shall be unbiased, shall have no interest whatever in the outcome of the issue, and shall not have in any manner prejudged or predetermined it,'" quoting Local No. 7 of Bricklayers', Masons' & Plasterers' International Union of America v. Bowen, 278 F. 271, 278 (D.C.Tex.1922)). As one court recently explained:
"[I]t is clear that when the evidence establishes that the outcome of a * * * hearing has been predetermined regardless of the proof presented, the concerns and goals of the * * * hearing as set forth in Loudermill have not been met. * * * [S]uch a hearing * * * is, in fact, nothing more than a sham proceeding. [Citation.] * * * [I]f countenanced by the [c]ourt, [such a proceeding] would eviscerate the protections afforded * * * under the Due Process Clause of the Fourteenth Amendment." Wagner v. City of Memphis, 971 F. Supp. 308, 318-19 (W.D.Tenn.1997).
The constitutional infirmity of the certification requirement is thus intensified by the fact that the statute gives the Pension Board an absolute right to preselect those doctors whose negative position on the issue of disability has been firmly established, i.e., Dr. Harris, who had served the function as the sole dissenting doctor in several cases discussed so far, namely, *728 Knight, Trettenero, and Coyne. Therefore, if unfavorable certificates are not challengeable, the applicant's right to a hearing can be effectively denied by the pension board's preselection of its doctors.
As noted, this unconstitutional infirmity is what compelled the court in Coyne to reinterpret the statutory language to require merely certificates addressing the applicant's disability. We, however, cannot accept the solution which Coyne offers. While we acknowledge the principle that statutory interpretation should not produce unconstitutional results, the interpretation offered in Coyne would totally neuter the antifraud provision so as to serve no apparent purpose and, therefore, render it meaningless. In this respect, we must agree with the courts in Wade and Rizzo where such interpretation was rejected in favor of the plain meaning consonant with that found in the Webster's dictionary. Our decision leaves us in a position where we agree with the "plain meaning" interpretation of Wade and Rizzo and, on the other hand, agree with Coyne that the "plain meaning" of the certification requirement leads to unconstitutional results.
Since section 3-115 cannot be saved through reinterpretation as proposed in Coyne, we have considered whether its constitutionality can be salvaged by reading into it a requirement of good faith and a requirement that a "certificate" encompass a report consistent with the medical certification so that the reports submitted by the examining doctors be consistent with their conclusions in the certificates. See, e.g., Collins, 155 Ill.2d at 112, 183 Ill. Dec. 6, 610 N.E.2d at 1254 ("the judiciary has the authority to read language into a statute that the legislature omitted through oversight"); Wade, 353 Ill.App.3d at 861, 289 Ill. Dec. 411, 819 N.E.2d at 1219 ("[w]e presume that persons who serve on administrative tribunals are fair and honest"). This construction would permit cross-examination of the certifying doctors as to the basis of their reports and allow an applicant an opportunity to impeach their certifications. However, we tend to agree with the Coyne majority that such an interpolation into the statute which is along the lines suggested, in part, by the Coyne dissent "is troublesome because it transforms legislative silence into authorization for unspoken acts" (Coyne, 347 Ill. App.3d at 729, 283 Ill. Dec. 435, 807 N.E.2d at 1289).
Moreover, although providing for an impeachment of a certificate would appear to cure the constitutional infirmity of section 3-115, that would leave the statute incomplete and unworkable. Under this construction, if an applicant were to successfully challenge the dissenting certificate on the foregoing grounds, that would result in leaving him with fewer than three certificates of disability required under section 3-115. It has been suggested by Wade's majority, as well as by the dissent in Coyne, that in such a case the pension board should appoint a fourth physician to examine the applicant. See Wade, 353 Ill.App.3d at 861, 289 Ill. Dec. 411, 819 N.E.2d at 1219; Coyne, 347 Ill.App.3d at 732, 283 Ill. Dec. 435, 807 N.E.2d at 1291 (Schmidt, J., concurring in part and dissenting in part). Such a solution, on its face, even if otherwise properly read into the statute, would, in effect, invite a never-ending process of impeaching the pension board's hand-picked experts, a result that cannot reasonably be attributed to the legislative intent. Furthermore, even if we were to imply such a provision into section 3-115, that provision, for all practical purposes, would be useless. As discussed, a doctor should evaluate the applicant's disability at or near the time of the officer's removal from active duty. See Hahn, 138 Ill.App.3d at 210, 92 Ill. Dec. 825, 485 *729 N.E.2d at 874. The results of medical examinations conducted much latereven eight or nine months after the officer's removal from duty, which was the case in Hahnare not "pertinent evidence," i.e., are generally not probative of the applicant's condition at the relevant time. Hahn, 138 Ill.App.3d at 210, 92 Ill. Dec. 825, 485 N.E.2d at 874. By the same token, any medical examination conducted after a proceeding that resulted in the impeachment of a certificate would, in all likelihood, have taken place years after the officer's removal from duty. We note that in the instant case, it has been nine years since Marconi was removed from active duty. It would make no sense to remand the matter to the Pension Board to appoint another doctor to opine on his condition in September of 1996. Such an examination, under Hahn, is incapable of producing competent evidence to support a replacement certificate. Accordingly, the solution proposed by Wade's majority and the dissent in Coyne would still leave the statute in a posture where it would require extensive legislative restructuring.
Nor could such extensive legislative revision be obviated through judicial interpretation which would permit the applicant to substitute his selected doctors in the place of successfully impeached pension board's certifying doctors or, in the alternative, forego the strict requirement of three certificates upon the successful impeachment of one or more of the pension board's doctors. Such attempted judicial interpolations would be in open contravention to the express language of the statute and, consequently, overtly contrary to its articulated intent.
Where the intent of our legislature cannot be carried out in conformity with the due process requirements, the statute must yield to the Constitution. See Loudermill, 470 U.S. at 541, 105 S. Ct. at 1492-93, 84 L.Ed.2d at 503 (an individual cannot be deprived of property except pursuant to constitutionally adequate proceduresalthough the legislature may confer an "entitlement," "`it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.' [Citation.]"). This is not to imply that section 3-115 is facially unconstitutional. "[A] statute is facially invalid only if no set of circumstances exist under which [it] would be valid." In re Parentage of John M., 212 Ill. 2d 253, 269, 288 Ill. Dec. 142, 817 N.E.2d 500, 509 (2004). Obviously, section 3-115 presents no due process concerns where the three doctors chosen by the pension board unanimously certify an applicant as disabled. It is with regard to applicants like Marconi that we state that the intent of our legislature cannot be carried out in conformity with the due process requirements. Accordingly, the certification requirement of section 3-115, as it is currently drafted, is unconstitutional as applied to Marconi and, as such, does not bar him from receiving a disability pension. Our decision to reverse the Pension Board's ruling in this matter therefore remains unchanged.
Because we have found that it was clearly erroneous for the Pension Board to deny Marconi a disability pension, Marconi is entitled to such, retroactive to the date of his application and subject to periodic eligibility reviews. In addition, Marconi is entitled to prejudgment interest. See Martino, 331 Ill.App.3d at 983, 265 Ill. Dec. 251, 772 N.E.2d at 296. However, we must remand this matter for further proceedings because the Pension Board did not make a determination as to whether Marconi is entitled to a "line of duty" pension, which pays higher benefits, or a "not on duty" pension. Unlike in Knightwhere this court instructed the pension board to grant the officer a "line of duty" disability pension because the record *730 contained "ample evidence" that the officer's disability was related to his undercover police work (Knight, 338 Ill. App.3d at 905, 906, 272 Ill. Dec. 901, 788 N.E.2d at 214-15)the instant case presents a question of fact as to whether Marconi's disability resulted from his work or from his outside life circumstances. In this regard, we note that Dr. Conroe opined that Marconi's disability was, to a large degree, work-related. Dr. Wahlstrom, on the other hand, opined that both the work environment and the outside stressors contributed to Marconi's disability. Similarly, Dr. Rubens opined that the cause of Marconi's disability was twofolddue to his job as a police officer, as well as his preexisting personality disorder. In contrast, Dr. Gannellen indicated that Marconi's condition was not directly related to the shooting incidents. Given the conflicting evidence in this matter, a remand is necessary.
The Declaratory Action
On appeal from the grant of summary judgment in the declaratory action, Marconi maintains that the Pension Board violated his due process rights because it failed to render a decision on his disability application in a timely manner. Marconi seeks a declaration that he is entitled to a "line of duty" disability pension as a remedy for that violation.[8]
Summary judgment is appropriate where the pleadings, depositions, admissions and affidavits on file, viewed in the light most favorable to the nonmovant, show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2002); Sollami v. Eaton, 201 Ill. 2d 1, 6, 265 Ill. Dec. 177, 772 N.E.2d 215, 218 (2002). Our review of a grant of summary judgment is de novo. Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 462, 272 Ill. Dec. 176, 786 N.E.2d 1010, 1014 (2003).
As Marconi points out, the due process right to be heard encompasses the right to be heard within a reasonable period of time. See Lyon v. Department of Children and Family Services, 335 Ill. App. 3d 376, 385, 269 Ill. Dec. 276, 780 N.E.2d 748, 756 (2002) ("[e]xcessive delays in administrative proceedings in which constitutionally protected interests are at stake make the proceedings fundamentally unfair"); Kelly, 625 F.2d at 490 (due process is violated when the administrative determination of eligibility for benefits takes too long). With respect to what time delay in processing the application is so long as to become unreasonable, the court in Kelly stated:
"Although there is no magic length of time after which due process requirements are violated, we are certain that three years, nine months, is well past any reasonable time limit, when no valid reason for the delay is given." Kelly, 625 F.2d at 490.
Here, as noted, more than five years passed between the time Marconi filed his application and the Pension Board rendered its initial decision. However, as the Pension Board points out, there is evidence in the record that Marconi consented to some of the delays. We further note that in the course of the declaratory action, Marconi conducted no discovery to obtain additional facts supporting his due process claims. On this record, we are unable to determine, as a matter of law, whether the delays here violated Marconi's due process rights.
*731 Even if we were to agree with Marconi that his due process rights were violated, it would not change the outcome of this matter. As a remedy for the due process violation, Marconi asks that we reverse the Pension Board's decision to deny his pension application and order the Pension Board to grant him a "line of duty" disability pension. As discussed, we have already decided to reverse the Pension Board's decision as clearly erroneous. However, we do not agree with Marconi's position that he should be awarded a "line of duty" disability pension because of the Pension Board's misconduct. Marconi relies on Kelly and Parker v. R.R. Retirement Board, 441 F.2d 460 (7th Cir.1971). His reliance on these cases is misplaced. Kelly and Parker did not hold that the remedy for a due process violation is an entitlement to the benefits sought. In both cases, the reviewing court determined that the "substantial evidence" in the record supported the award of the benefits and, consequently, no further hearings were necessary. See Kelly, 625 F.2d at 495-96; Parker, 441 F.2d at 464. A close reading of these cases also reveals that although the reviewing courts mandated an award of the benefits, no additional compensation was awarded to the plaintiffs for the due process violations.
In a practical sense, it appears that the remedy for unreasonable delay in the proceedings is of a coercive, rather than a compensatory, nature. More recently it has been expressed that the most appropriate, and perhaps the only, vehicle for raising claims of unreasonable delay is a mandamus action. See Schroeder, 927 F.2d at 960. As a corollary, it would seem that when the mandamus action becomes moot, so do such claims of delay. Marconi's mandamus action became moot when the Pension Board concluded the hearings and rendered its decision. In a similar vein, a retroactive receipt of disability benefits would extinguish claims of unreasonable delay, unless irreparable harm resulted from the delay. See Schroeder, 927 F.2d at 960. Our disposition of the administrative appeal, mandating that Marconi receive a disability pension retroactive to the date of his application, extinguishes Marconi's due process claims. Marconi cannot claim to have suffered irreparable harm. As Schroeder stated:
"[A] loss of the time value of money, consequent on delay in receiving money to which one is entitled, is not considered an irreparable harm, even though it is a real loss, and even if there is no way to recover it." Schroeder, 927 F.2d at 960.
We, therefore, need not reach the Pension Board's counterarguments in the declaratory action that Marconi's due process claims were properly dismissed by the circuit court because they were filed after the expiration of the applicable statute of limitations and, in the alternative, because the Pension Board was entitled to quasi-judicial immunity. Because no controversy remains in the declaratory action, the circuit court's grant of summary judgment in favor of the Pension Board is affirmed.
For the reasons set forth above, we affirm the grant of summary judgment in the declaratory action, but reverse the circuit court's affirmance of the Pension Board's decision to deny Marconi a disability pension and remand the matter to the Pension Board for further proceedings consistent with this opinion.
Affirmed in part and reversed in part; cause remanded.
McBRIDE and O'MALLEY, JJ., concur.
NOTES
[1] Via his attorney.
[2] The record shows that Marconi was placed on disability leave on September 10, 1996.
[3] Dr. Wahlstrom also called the police chief directly to warn her that Marconi was dangerous to her and made threats about harming her.
[4] Marconi brought a holstered gun with him to the interview.
[5] Which he characterized as a "short-lived depression."
[6] We note, however, that Knight preceded Rizzo.
[7] Cf. Gregory v. Town of Pittsfield, 479 A.2d 1304 (Me.1984), cert. denied 470 U.S. 1018, 105 S. Ct. 1380, 84 L. Ed. 2d 399 (1985), which, in the context of an application for welfare benefits, held that due process did not attach.
[8] To the extent that Marconi may argue that he is also entitled to compensatory damages, that issue is waived on appeal. Marconi did not raise the compensatory damages issue in his appellant's brief and raised it for the first time before this court during the oral argument. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/151162/ | FILED
NOT FOR PUBLICATION JUL 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT L. FINLEY, No. 09-16258
Plaintiff - Appellant, D.C. No. 2:06-CV-01086-RLH-
LRL
v.
DWIGHT NEVEN, Warden; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Chief Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Robert L. Finley, a former Nevada state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action implicating the
Eighth Amendment and alleging that defendants deprived him of a mattress. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
*
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).
decision regarding qualified immunity. Ramirez v. City of Buena Park, 560 F.3d
1012, 1019 (9th Cir. 2009). We affirm.
The district court properly concluded that defendants were entitled to
qualified immunity because prisoners do not have a clearly established right to
sleep on a comfortable mattress. See Rhodes v. Chapman, 452 U.S. 337, 347
(1981) (“[C]onditions that cannot be said to be cruel and unusual under
contemporary standards are not unconstitutional. To the extent that such
conditions are restrictive and even harsh, they are part of the penalty that criminal
offenders pay for their offenses against society.”); Hernandez v. Denton, 861 F.2d
1421, 1424 (9th Cir. 1988) (a short term deprivation of a mattress is insufficient to
state an Eighth Amendment violation), judgment vacated on other grounds, 493
U.S. 801 (1989). The record reflects that during the time period when Finley
alleges he did not have a mattress, defendants provided him with an “alternative
mattress,” consisting of three wool blankets.
Finley’s remaining contentions are unpersuasive.
AFFIRMED.
2 09-16258 | 01-03-2023 | 07-21-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/153462/ | 89 F.3d 850
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Joseph V. LIBRETTI, JR., Plaintiff-Appellant,v.Monty MECHAM, in his individual capacity and in his officialcapacity as Green River Police Department Lieutenant; TonyYoung, individually and in his official capacity as an agentof the Wyoming Division of Criminal Investigation; KennethBray, individually and as an agent of the Bureau of Alcohol,Tobacco and Firearms, Defendants-Appellees.
No. 95-8073.
United States Court of Appeals, Tenth Circuit.
June 4, 1996.
Before ANDERSON, BARRETT and LOGAN, Circuit Judges.
1
ORDER AND JUDGMENT*
2
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
3
Plaintiff pro se Joseph V. Libretti, Jr. appeals the district court's judgment dismissing his 42 U.S.C. § 1983 claims alleging defendants violated plaintiff's civil rights in connection with searches and seizures conducted during an investigation of plaintiff for drug trafficking. As a result of that investigation, plaintiff pleaded guilty to a charge of continuing criminal enterprise and agreed to a forfeiture of assets. He later challenged the forfeiture order, which was upheld. See United States v. Libretti, 38 F.3d 523, 525 (10th Cir.1994), affirmed, 116 S.Ct. 356 (1995).
4
In his two complaints, which were consolidated by the district court, plaintiff alleged defendants violated his Fourth Amendment rights against unreasonable search and seizure. The district court found that plaintiff's guilty plea in the criminal case precluded relitigation of the search and seizure issues, including those by the state authorities, citing Metros v. United States Dist. Court for Dist. of Colo., 441 F.2d 313, 317 (10th Cir.1971). We have considered the arguments in appellant's brief and examined the record and are satisfied that the district court accurately summarized the facts and correctly applied the law. We therefore AFFIRM for substantially the reasons stated by the district court in its order of September 29, 1995.
5
AFFIRMED.
*
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 | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3848571/ | The plaintiff, Camp Chicopee, conducts a boy's camp in Wayne County. It owns a tract of land containing fifty acres. Its lands extend into Kline's Pond or lake, a natural body of water containing about thirty acres; some four acres of its lands are covered by the waters of the lake. On the opposite side of the lake there was, prior to September 15, 1861, a rectangular tract of seventy-five acres, which also extended into the pond and abutted in part against the fifty acre tract first mentioned, *Page 153
so that about fifteen acres of the seventy-five acre tract were also covered by the waters of the pond. On the date named, September 15, 1861, the seventy-five acre tract was owned by John Reynard, who on that day conveyed to William Bonesteel in fee so much of it as was covered with the waters of the pond, together with certain rights of flowage. On September 11, 1874, thirteen years later, John Reynard made a conveyance to Thomas Burke in fee, in which the entire seventy-five acre tract was fully described, the description including that part of the tract covered by the water of the pond. The deed contained the following exception, "Excepting and reserving from the southwest corner of said lot of land above described nineteen and one-half acres of land as surveyed by Albre Skinner and sold to Samuel Dibyner by articles of agreement dated April 1, 1867. Also the right to flow Kline's Pond in accordance with privileges granted by deed to William Bonesteel." While this exception is somewhat ambiguous, it put upon the subsequent purchaser Burke and those claiming through him notice of the deed to Bonesteel and full inquiry as to what the grant to him embodied: Finley v. Glenn, 303 Pa. 131. An examination of the record of the deed to Bonesteel would have disclosed that he was the owner in fee of that part of the seventy-five acre tract beneath the waters of the lake. Bonesteel's title has become vested in plaintiff and Burke's title in defendant. In addition, the latter claims title by adverse possession to the land formerly owned by Bonesteel, all of which is under the lake, and to that part of the waters thereof which cover this land.
In the assertion of his claim, while a large number of boys in plaintiff's camp accompanied by officials and employees thereof, were in boats on that part of the lake granted to plaintiff, the defendant, accompanied by others, approached them in boats, and, with threatening and abusive language, ordered them to withdraw from that part of it. Asserting in the bill, which it shortly *Page 154
thereafter filed, that the portion of the lake in question was a necessary part of its camp property, without the continuous use and enjoyment of which the camp could not be successfully carried on, plaintiff asked an injunction restraining defendant from entering upon that portion of the lake belonging to plaintiff or interfering with its use thereof. A preliminary injunction was issued. Defendant answered, setting up his record title and claim by adverse possession. Exceptions were filed by plaintiff to the answer, to the effect that it was insufficient to raise an issue, as the record title pleaded showed defendant's grant to be subsequent to that of plaintiff, and that the alleged acts of adverse possession, if duly proven, were not sufficient to ripen into a title; and furthermore, title by adverse possession could not be acquired of land covered with water, since it was physically impossible to exercise, upon property of that character, such possessory acts as are required to give title by adverse possession. The court on hearing sustained the exceptions and made the preliminary injunction permanent; from the decree so ordering defendant appeals.
Plaintiff rested its case on its record title which is complete and antedates that of defendant. The only claim of title which defendant can urge is that of adverse possession. The possessory acts set up by defendant as giving him title are: That he caused the entire seventy-five acre tract to be assessed to him and paid taxes thereon. (This could not work a divestiture of Bonesteel's title: McDermott v. Hoffman, 70 Pa. 31; Coxe v. Deringer, 82 Pa. 236; Bear Valley Coal Co. v. Dewart, 95 Pa. 72.) That Burke built a fence on his line and extended it into the water of the pond so far as practicable and maintained it for the statutory period. This fence, however, was only a line fence, it enclosed nothing and could not in any way give notice of an adverse claim to the land. That Burke cut ice from the pond and fished and boated thereon during the statutory *Page 155
period. As was observed by the able and experienced chancellor who heard the case, "It goes without saying that these are not such acts as would indicate any claim of ownership of the land on the part of the person performing them." An entry upon another man's lands to hunt or fish can never give title: Wheeler v. Winn, 53 Pa. 122. That Burke declared the property to be his and warned all persons from trespassing thereon without his permission. Such statements could not in any way prejudice the title of the vested owner of the property. That during the statutory period the record owner exercised no acts of ownership that could be held adverse to the claim of Burke. It is a novel proposition that the holder of a record title must from time to time make proclamation on every part of his land of his right thereto under penalty that he will lose it to an intruder if he does not. We said in Muzzio v. Steele,279 Pa. 226, quoting from Mr. Justice DEAN in an earlier case, that an owner of a coal mine does not have to live in it in order to prevent the acquiring of a title thereto by adverse possession, and the same thing can be said with equal propriety and force as to the lands covered by the waters of a lake. The owner thereof does not have to become amphibious and dwell part of the time in the lake in order to retain his title thereto. Dougherty v. Welshans, 233 Pa. 121, presents a somewhat analagous situation and lays down the like principle, the land there being wild and mountainous.
None of the things set up by defendant nor all of them put together meet the requirements of the law to obtain title by adverse possession. "Where a party relies on the statute of limitations, as giving him a positive title, one with which he can successfully assail even the holder of the legal title in possession, he ought to be held to show all the elements constituting it conjoined and united in his hands; and that he, or those under whom he claims, entered into the possession of the premises, claiming the same as and for his own property, and that *Page 156
as such he has held actual, adverse, continued, visible, notorious, distinct, and hostile possession thereof for the full period of twenty-one years": Johns v. Johns, 244: Pa. 48, 56; O'Boyle v. Kelly, 249 Pa. 13, 17; Stark v. Penna. Coal Co.,241 Pa. 597; Boyer v. Lengel, 224 Pa. 357.
Another circumstance appearing in the record should be noted as it raises a barrier to defendant's assertion of title. In the deed to Burke, defendant's predecessor, there is an exception in favor of Bonesteel, plaintiff's predecessor. "The grantee, by accepting a deed containing an exception of certain lands previously sold and conveyed to another and then entering into possession of the land thus excepted, will be deemed in law to have entered in subserviency to the title of the grantee of the excepted land, and to continue to hold in subserviency thereto, unless he can establish the contrary by some unequivocal act or claim of title in himself": 2 C. J., page 147, section 256; Olwine v. Holman, 23 Pa. 279.
We need not determine, because not necessary to the decision of the case, whether adverse possession can be acquired to land covered by water where the alleged possessory acts are performed on or in the water and not upon the land itself.
The decree is affirmed at appellant's cost. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3852843/ | The question we have just decided in the case of Volta v.Markovitz Brothers, Inc., 351 Pa. 243, is precisely the same question as is raised by the pleadings in this case and our opinion and decision in that case apply to this case.
The judgment is affirmed. *Page 247 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/153475/ | 89 F.3d 852
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Thomas Dean WEBB, Petitioner-Appellant,v.Joseph T. BOOKER, Warden; United States Parole Commission,Respondents-Appellees.
No. 96-1034.
United States Court of Appeals, Tenth Circuit.
June 5, 1996.
Before BRORBY, EBEL, and HENRY, Circuit Judges.1
ORDER AND JUDGMENT*
EBEL, Circuit Judge.
1
Petitioner Thomas Dean Webb pled guilty in the United States District Court for the Eastern District of California to conspiracy and possession, and aiding and abetting with possession, with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. § 2. On June 23, 1986, Webb was sentenced, inter alia, to a fifteen year suspended sentence with a five year term of probation. Webb was paroled on June 15, 1988.
2
While serving his five year term of probation, Webb was convicted in California Superior Court for narcotic offenses. On November 19, 1990, he was sentenced to the California Department of Corrections for a prison term of eight years and four months. Based on the state convictions, Webb's probation was revoked and he was sentenced in the United States District Court for the Eastern District of California to a fifteen year term of imprisonment. That sentence included a special parole term of ten years. On May 18, 1994, Webb was released from the California Department of Corrections into the custody of the United States Bureau of Prisons to begin serving his fifteen year federal term of imprisonment.
3
On June 6, 1995, the Parole Commission conducted a parole hearing to consider Webb's application for parole on his fifteen year term. This application was ultimately denied on June 26, 1995, and the Commission ordered Webb to continue to a presumptive parole date of April 14, 2001. On July 10, 1995, Webb requested a thirty day extension of time in which to file an administrative appeal of the Commission's decision. The Commission granted Webb a sixty day extension, however, Webb did not file an administrative appeal.
4
On August 23, 1995, Webb filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Colorado. At the time of the filing, Webb was incarcerated at the Federal Correctional Institute at Florence, Colorado. He is now housed at the Federal Correctional Institute at El Paso, Texas. The district court retained jurisdiction despite Webb's transfer. In the Petition, Webb claimed that the sentencing court illegally sentenced him to a term of special parole and that the Parole Commission improperly exceeded the parole guidelines in determining Webb's presumptive parole date. On December 4, 1995, a United States Magistrate recommended that the case be dismissed because Webb failed to exhaust his administrative remedies and because he failed to challenge the legality of his special term in the sentencing court. The district court adopted the magistrate's recommendation on December 21, 1995 and dismissed the case.
5
We grant Webb's motion for leave to proceed on appeal in forma pauperis and affirm the district court's Order of Dismissal for substantially the same reasons set forth therein. With respect to Webb's claim that the Parole Commission erred in setting his presumptive parole date, he has failed to exhaust his administrative remedies. Webb failed to appeal the Commission's decision with the National Appeals Board of the USPC. Therefore, this claim was properly dismissed by the district court. See Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir.1987). The district court also lacked jurisdiction to consider Webb's attack on the sentence imposed by the sentencing court in the Eastern District of California. Although the petition is styled as a habeas corpus petition under 28 U.S.C. § 2241, Webb challenges the validity of the imposed sentence, thus his claim should have been brought pursuant to 28 U.S.C. § 2255. Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir.1965). Webb has made no showing that his remedies under § 2255 would be inadequate or ineffective to test the legitimacy of his sentence. Furthermore, the sentencing court, in this case the United States District Court for the Eastern District of California, is the proper forum for a § 2255 petition. Id. at 367 ( § 2255 is meant to "provide a method of determining the validity of a judgment by the court which imposed the sentence, rather than by the court in the district where the prisoner is confined"); Carter v. Attorney General, 782 F.2d 138, 141 (10th Cir.1986) ("Motions under the federal habeas statute must be brought in the sentencing court, preferably before the sentencing judge who is most familiar with the case."). For these reasons, we AFFIRM the dismissal of Webb's petition in the district court. The mandate shall issue forthwith.
1
After examining the briefs and the appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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 | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4523586/ | Case: 19-2183 Document: 31 Page: 1 Filed: 04/08/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TINA M. NOFFKE,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2019-2183
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-18-0540-I-1.
______________________
Decided: April 8, 2020
______________________
DARRIN WAYNE GIBBONS, Gibbons Law Firm PLC,
Richmond, VA, for petitioner.
DOMENIQUE GRACE KIRCHNER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
JOSEPH H. HUNT, REGINALD THOMAS BLADES, JR., ROBERT
EDWARD KIRSCHMAN, JR.
______________________
Before DYK, SCHALL, and O’MALLEY, Circuit Judges.
Case: 19-2183 Document: 31 Page: 2 Filed: 04/08/2020
2 NOFFKE v. DEFENSE
DYK, Circuit Judge.
Tina M. Noffke seeks review of a decision from the
Merit Systems Protection Board (“Board”). The Board af-
firmed the National Geospatial-Intelligence Agency’s
(“NGA”) decision to remove Ms. Noffke from her position at
the NGA for absence without leave (“AWOL”), falsification,
and conduct unbecoming a federal employee. We affirm.
BACKGROUND
Ms. Noffke was first employed by the agency in 1991.
In her most recent position, she worked as a Budget Ana-
lyst in the NGA’s St. Louis office. Ms. Noffke worked on a
flexible schedule, as she often required time off to attend to
personal matters.
All NGA employees are required to report their work
hours through an electronic system. Each employee, prior
to submitting time sheets, is provided with a notice that
“[k]nowingly submitting an inaccurate time sheet is con-
sidered time reporting fraud and is subject to disciplinary
action, including removal.” J.A. 397. In addition, employ-
ees are required to swipe an access card and enter an ac-
cess code to enter or exit NGA facilities. Each employee’s
entry and exit times are recorded by the NGA’s Access Con-
trol Records (“ACRs”). The NGA’s Office of Inspector Gen-
eral (“OIG”) investigates discrepancies between an
employee’s logged work hours and the ACRs.
On February 13, 2018, the OIG interviewed Ms. Noffke
and informed her that she was being investigated for a dis-
crepancy between her reported work hours and her ACRs.
At the interview, Ms. Noffke was provided with copies of
OIG time and attendance analysis spreadsheets, which
showed the discrepancies between her reported work hours
and ACRs.
On May 3, 2018, the agency notified Ms. Noffke that it
proposed to remove her from her position. The OIG at-
tached a report (“the OIG report”) to the notice, which
Case: 19-2183 Document: 31 Page: 3 Filed: 04/08/2020
NOFFKE v. DEFENSE 3
included the time and attendance analysis spreadsheets
and a written Douglas factor analysis. See Douglas v. Vet-
erans Admin., 5 M.S.P.R. 280, 296–97 (1981) (setting forth
the factors relevant in determining the appropriateness of
a penalty). The notice included a detailed accounting of the
hours that Ms. Noffke was AWOL (48 hours), the hours
that Ms. Noffke was charged with falsifying (145.50 hours),
and the hours as to which Ms. Noffke was charged with
conduct unbecoming a federal employee (234.07 hours). 1
The notice provided Ms. Noffke with an opportunity to re-
spond orally and in writing and placed her on paid admin-
istrative leave until the NGA reached its decision. On June
7, 2018, Ms. Noffke made an oral response to the agency’s
proposal.
On July 17, 2018, the agency issued a decision sustain-
ing the charges. Ms. Noffke appealed to the Board. The
administrative judge found that the agency had shown all
of its charges by a preponderance of the evidence, and that
the agency had satisfied due process by providing Ms.
Noffke with notice, an opportunity to respond, and the evi-
dence that the agency relied on in making its decision. Be-
cause Ms. Noffke did not seek review by the full Board, the
decision of the administrative judge became the decision of
the Board. Ms. Noffke filed this timely appeal, and we have
jurisdiction under 28 U.S.C § 1295(a)(9).
1 The agency considers an employee to be AWOL if
absent from the workplace for five or more hours without
leave. A falsification is any instance where the employee
falsely reported more than 20 work hours in a pay period
in excess of his or her hours worked. A specification for
conduct unbecoming a federal employee includes any in-
stance where the employee falsely reported excess hours
that were less than 20 hours in a pay period.
Case: 19-2183 Document: 31 Page: 4 Filed: 04/08/2020
4 NOFFKE v. DEFENSE
DISCUSSION
Our review of Board decisions is limited by statute. We
may only set aside Board decisions that are: “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c).
I
Ms. Noffke challenges the agency’s charges for (1) fal-
sification and (2) conduct unbecoming a federal employee.
She argues that they lack the specificity required by due
process because neither of the two charges alleges a specific
date of misconduct. The charging document, however,
specified the pay periods and number of hours for each of
these charges, and the attached spreadsheets provided a
detailed accounting of the exact dates and times that
formed the basis of the agency’s charges. We see no error
in the Board’s decision rejecting that argument. See Pope
v. United States Postal Serv., 114 F.3d 1144, 1148–49 (Fed.
Cir. 1997) (rejecting appellant’s argument that “his due
process rights were violated because the charges lacked
specificity regarding dates, times, and places” because
“[t]he notice given to [the appellant was] quite detailed and
clearly informed him of the charges as well as the evidence
the [agency] had in support”).
II
Ms. Noffke argues that the Board’s decision was not
supported by substantial evidence. Ms. Noffke asserts that
the Board could not rely on the OIG report because it was
not an original record and instead referred to other evi-
dence gathered by the OIG.
The Administrative Procedure Act (APA) allows the
agency to receive “any oral or documentary evidence,” and
only requires the agency to exclude “irrelevant,
Case: 19-2183 Document: 31 Page: 5 Filed: 04/08/2020
NOFFKE v. DEFENSE 5
immaterial, or unduly repetitious evidence.” 5 U.S.C.
§ 556. “[I]t has long been settled that [hearsay] may be
used in administrative proceedings and may be treated as
substantial evidence, even without corroboration, if, to a
reasonable mind, the circumstances are such as to lend it
credence.” Hayes v. Dep’t of Navy, 727 F.2d 1535, 1538 &
n.2 (Fed. Cir. 1984) (collecting cases).
The OIG report, which had been supplied to Ms.
Noffke, set forth ample evidence to sustain all three of the
agency’s charges. And the Board had discretion to admit
the OIG report as evidence. See Kewley v. HHS, 153 F.3d
1357, 1364 (Fed. Cir. 1998). We conclude that the Board
properly relied on the OIG report and that substantial evi-
dence supported the Board’s decision. 2
III
Ms. Noffke asserts that she was entitled to receive the
evidence underlying the OIG report, “including, but not
limited to attendance records, emails, witness statements,
and computer record audits, and tape recordings of state-
ments.” Appellant’s Br. 7. She argues that the failure to
supply these documents when the agency was considering
the charges was a violation of due process.
After her initial interview with OIG, Ms. Noffke made
a request for these documents. The agency denied that re-
quest. Ms. Noffke was, however, provided with detailed
spreadsheets at her interview, and the record shows that
she left her interview with copies of the OIG time and at-
tendance analysis spreadsheets. We conclude that the
agency provided Ms. Noffke with sufficient notice,
2 There is no merit to Ms. Noffke’s argument that the
deciding official needed to rely on the evidence underlying
the OIG report in the pre-termination proceedings. There
is no bar to the deciding official’s relying on summary doc-
uments.
Case: 19-2183 Document: 31 Page: 6 Filed: 04/08/2020
6 NOFFKE v. DEFENSE
including “an explanation of [its] evidence” to satisfy her
due process rights and the NGA’s regulations. See Cleve-
land Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985);
5 C.F.R § 752.404(b)(1); see generally NGA Manual for Dis-
ciplinary and Adverse Actions, Number 1455.1 (Feb. 19,
2015). We note that Ms. Noffke never sought discovery of
those materials in the Board proceedings.
AFFIRMED | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523587/ | Case: 19-1957 Document: 35 Page: 1 Filed: 04/08/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE: C. DOUGLASS THOMAS,
Appellant
______________________
2019-1957
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 11/960,449.
______________________
Decided: April 8, 2020
______________________
C. DOUGLASS THOMAS, TI Law Group, PC, San Jose,
CA, pro se.
BRIAN RACILLA, Office of the Solicitor, United States
Patent and Trademark Office, Alexandria, VA, for appellee
Andrei Iancu. Also represented by THOMAS W. KRAUSE,
AMY J. NELSON, FARHEENA YASMEEN RASHEED.
______________________
Before DYK, SCHALL, and O’MALLEY, Circuit Judges.
PER CURIAM.
C. Douglass Thomas appeals a decision of the Patent
Trial and Appeal Board (“Board”) affirming the examiner’s
rejection of all pending claims in U.S. Patent Application
No. 11/960,449 (“’449 application”) under 35 U.S.C. § 101.
Case: 19-1957 Document: 35 Page: 2 Filed: 04/08/2020
2 IN RE: THOMAS
The ’449 application is titled “Method and User Interface
for Requesting and Reviewing Notifications Pertaining to
Publications.” J.A. 36. Independent claim 1 is representa-
tive of the subject matter at issue on appeal:
A computer-implemented method for notifying us-
ers having patents of subsequent publications that
reference the patents of the users, said computer-
implemented method comprising:
identifying a user patent associated with a
user;
determining whether one or more subsequent
publications reference the user patent;
producing a notification message for the user to
inform the user of the one or more subsequent
publications; and
sending the notification message to the user,
wherein said identifying, said determining,
said producing and said sending are performed
by one or more computing devices,
wherein said sending comprises transmitting
the notification message to the user as an elec-
tronic mail message,
wherein the notification message comprises an
active link to a world wide web page containing
the descriptive information about the one or
more subsequent publications, and
wherein the method further comprises:
determining whether the one or more sub-
sequent patents are associated with at
least one notifiee that is one of a plurality
of previously identified notifiees; and
Case: 19-1957 Document: 35 Page: 3 Filed: 04/08/2020
IN RE: THOMAS 3
determining a predetermined authoriza-
tion type for publication notifications for
the at least one notifiee; and
wherein said producing of the notification mes-
sage includes an indication of the authorization
type for the at least one notifiee.
J.A. 27.
Applying the two-step framework set forth in Alice
Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014), the Board
found that the claims are directed to the abstract idea of
“alerting by notification message notice of a new publica-
tion indicated as relevant to the notifiee.” J.A. 4–9. The
Board also found that the claims do not contain an in-
ventive concept beyond the abstract idea. J.A. 23–24. We
agree with the Board on both points. We therefore adopt
the Board’s reasoning in its decision and its decision deny-
ing rehearing. See J.A. 1–25.
We have considered Thomas’s arguments on the patent
eligibility of the claims but find them unpersuasive. The
decision of the Board is affirmed.
AFFIRMED
COSTS
The parties shall bear their own costs. | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3853971/ | Argued May 6, 1941.
This is an action of trespass brought by the only surviving parent for the death of her minor son, who assisted in her support. His death resulted from an automobile accident which occurred at the southerly end of a bridge over Campbells Run Road, both road and bridge being maintained by the County of Allegheny. The statement of claim alleged negligent maintenance and improper construction and design of the approach to the bridge and of the bridge and the southerly wing wall thereof. A brother of the deceased was driving north on this road with the deceased and another (the owner of the car) as passengers in a single seated model "A" Ford coupe about 10:00 o'clock on the night of November 7, 1936. There was a self-illuminating "Narrow Bridge" sign about 185 feet from the bridge on the right. The road was surfaced with "black top" and the berm and part of the pavement were dark colored ashes. The road curved slightly to the left onto the bridge and a stone wing wall extended about 10 feet from the end of the right girder of the bridge across the ashed berm which was 10 feet wide. There were no special markings on this wall, although it had been whitewashed the summer before the accident. The automobile struck the end of the girder, whirled around to the right and the right side of it struck the top stone of the wall, weighing about 3600 pounds, so hard as to knock it from its place. The two passengers were thrown from the car over the wall, into the creek bed. The decedent was cut so badly that he died almost immediately. The car stopped, upright, at about the middle of the bridge.
The case was tried before the court and a jury on *Page 332
April 23 and 24, 1940, which rendered a verdict for the plaintiff in the amount of $1,000. Motions for judgment n.o.v. and for a new trial were filed by the defendant and were argued before the court en banc on November 16, 1940. The motion for a new trial was refused but the motion for judgment n.o.v. was granted and judgment was duly entered for the defendant, an opinion being filed by DITHRICH, J., in which the court held that the bridge and highway were not negligently maintained under the evidence, and that the proximate cause of the accident was not the alleged negligence of the defendant but the negligence of the driver of the car. This appeal followed.
On the evidence in this record there is nothing to support a finding by a court or jury of any negligence in the plan, design or construction of the bridge that would justify a verdict and judgment against the county because of it.
Quoting from the able opinion of DITHRICH, J., on behalf of the court en banc: "The negligence relied on by plaintiff is the alleged failure of the county to properly maintain the bridge and the north approach thereto. A `Narrow Bridge' sign, clearly visible to any motorist, was erected one hundred and eighty-five feet from the bridge. The highway curves slightly to the left beginning fifty feet from the northerly end of the bridge, painted white, and plaintiff contends that it should have erected a curve sign in addition to the `Narrow Bridge' sign, as an additional warning. The wing wall was painted white, and plaintiff contends that it should have been `cross-hatched' in black and white to make it more visible. There was also testimony that a white line in the center of the highway, which began about two hundred feet north of the bridge, ended at about the beginning of the curve, and that there was no clear line of demarcation between the paved portion of the highway and the berm, which increased in width from four feet, *Page 333
twenty feet from the wing wall, to ten feet, at the wing wall."
Even if we should assume, for the sake of argument that the county was negligent in failing to have provided any of the safeguards which appellant claims should have been provided, it will not sustain a recovery unless they or any of them were theproximate cause of the accident without any other intervening agency.
While it is the duty of the county to maintain its roads in a reasonably safe condition for the use of the general traveling public, it is also the duty of the latter to use those roads in a usual and ordinary manner and to exercise reasonable care.
The driver of the automobile admitted that the night in question was not foggy, that it was not raining and that the road was dry; that his lights illuminated the road the same as any other car, being on high beam, and inspected one week before; he also admitted that he saw the "narrow bridge" sign at least 185 feet from the bridge on the side he was traveling, but did not slacken the speed of the automobile traveling at the rate of 25 or 35 miles an hour, until it was too late to negotiate the slight curve leading onto the bridge, striking it with such force as to knock 3600 pounds of abutment or coping off the bridge wing wall, and catapulting two of the occupants of the car over the wall fifteen or twenty feet into the bed of the stream. He stated that he did not know at the time what he had struck.
We believe that the instant case is governed by the case ofPilvelis et al. v. Plains Township, 140 Pa. Super. 561,14 A.2d 557, in which President Judge KELLER applied the principles controlling the right to recover in a very comprehensive opinion, which was relied on by the court below in the present case. We quote therefrom as follows: "The principle is stated in the Restatement of Torts, in § 430, as follows: `In order that a negligent actor shall be liable for another's bodily *Page 334
harm, it is necessary not only that the actor's conduct be negligent toward the other in the particulars stated in § 281, clause (b) and comment thereon, but also that the negligence of the actor be a legal cause of the other's harm.' In order that the negligent conduct may be a legal cause, it must be asubstantial factor in bringing about the harm (§ 431); and the negligent conduct should be such that the actor should recognize that the act creates an appreciable chance of causing the harm done (§§ 281 and 289); and in § 447, `The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act, or (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal response to a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent.' The Restatement, in effect, thus holds that the intervening negligent act of a third person does make it a superseding cause, (1) if the actor had no reason to realize that the third party might act as he did, or (2) that a reasonable man, in the circumstances present, would regard it as highly extraordinary that the third party would so act, or (3) that the intervening act was extraordinarily negligent.
"Our Pennsylvania decisions are generally in accord with the principles enunciated in the Restatement, if the term `proximate cause' is substituted for `legal cause," bearing in mind that the latter must be a `substantial factor' in bringing about the harm or injury."
In our opinion, the intervening negligent act of the driver caused the accident and was so clearly unforeseeable *Page 335
and extraordinarily negligent that the alleged negligence of the county in failing to provide the safeguards suggested by appellant was not the "proximate cause" of the decedent's death. The proximate, or substantial and effective cause was not the negligence of the county in the matters alleged, but the reckless and negligent act of the driver whose actions nobody could reasonably foresee.
The cases cited by appellant are readily distinguishable from the instant case.
The assignment of error is overruled and judgment affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3853973/ | Argued December 9, 1929.
Charges of intemperance were filed with the school board against M.R. Coogan, a supervising principal of the schools of Blythe Township, Schuylkill County.
Section 1208 of the School Code, approved the 18th of May, 1911, P.L. 309, provides as follows:
"Any principal or teacher employed in any school district may be dismissed, at any time, by the board of school directors, on account of immorality, incompetency, intemperance, cruelty, negligence, or for the violation of any of the provisions of this act: Provided, That before any principal or teacher is dismissed, he shall be given an opportunity to be heard, after reasonable notice in writing of the charges made against him."
Notice was given to Coogan of the charges and a hearing was held, with more or less formality. Michael Stiles, who appeared as one of the witnesses, was sworn by a justice of the peace and testified in support of the charges against Coogan. Thereafter, Coogan had Stiles arrested for perjury. In due course of time, the case came on for trial and the court, on motion of the defendant's counsel, quashed the bill of indictment for the reason that the bill charged no indictable offense. Thereupon, the Commonwealth took this appeal.
The indictment charges that the defendant "did *Page 561
unlawfully, wilfully, corruptly and falsely swear before the school board of the Township of Blythe, Schuylkill County, Penna., then and there sitting to inquire the truth of charges filed against Michael Coogan, supervising principal of said township, the said oath being duly administered to the said Michael Stiles, according to law, by the said Charles Reese. He, the said Charles Reese, a justice of the peace, said county, then and there having competent authority to administer the same, and it being then and there material for the said school board to know whether the said M.R. Coogan, supervising principal of schools of Blythe Township, Penna., was a man of intemperate habits, in the employ of the said school board."
The indictment was founded under section 14 of the Act approved March 31, 1860, P.L. 382, which provides, inter alia:
"If any person shall wilfully and corruptly commit wilful and corrupt perjury ...... on his or her oath or affirmation, legally administered ...... in any judicial proceedings, matter or cause which may be pending in any of the courts thereof, or before any judgment, justice, mayor, recorder, alderman, or other magistrate ...... or if any person in taking any other oath or affirmation required or that may hereafter be required by any Act of Assembly of this Commonwealth, shall be guilty of wilfully and corruptly making a false oath or affirmation; ...... every person so offending shall be guilty of a misdemeanor."
The contention of the appellant is that this defendant took a false oath before a justice of the peace in such a judicial proceeding as is contemplated by the Act and that the oath was required by an Act of Assembly.
The hearing was of a quasi-judicial character. It was attended by the parties interested and their counsel; testimony was given by the defendant after he had been sworn by the justice of the peace. The school *Page 562
board was required to exercise its judgment as to whether the charges were well founded: McCrea v. Pine Township School District, 145 Pa. 550. But such a hearing was not the judicial proceeding contemplated by the act. The school directors did not have the authority to issue subpoenas or attachments for non-appearance, or administer oaths, nor are they judicial officers. Although a justice of the peace administered the oath to this defendant, the hearing was not before him in his official capacity and no oath was required under the statute. The oath was extrajudicial and, if false, was not subject to indictment for perjury: Linn v. Commonwealth, 96 Pa. 285. The accused had a right to demand of the board of school directors an opportunity to be heard, but the act is silent as to requiring the testimony taken at a quasi-judicial hearing to be given under oath. We cannot read something into an Act of Assembly, especially a penal statute, that is not clearly expressed therein by the law makers. If an oath is voluntarily taken by an officer authorized to administer oaths in a quasi-judicial proceeding, when it is not required by law, and it proves to be false, the affiant is not subject to indictment for perjury: Linn v. Commonwealth, supra.
The court properly sustained the motion to quash. Judgment is affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3859771/ | Argued September 30, 1930.
The defendant appellant was convicted in the court below on an indictment charging him with having received stolen goods, to-wit, a lot of copper wire, knowing the same to have been feloniously stolen, taken and carried away; he was sentenced and the court *Page 297
below made an order that this appeal should operate as a supersedeas.
The appellant assigns as error (1) the court's refusal to quash the indictment, (2) that the court erred in refusing to withdraw a juror due to a remark of the district attorney in his opening address to the jury, (3) that the court erred in its charge to the jury relative to the doctrine of reasonable doubt, and (4) that the trial judge erred in pronouncing sentence upon the defendant.
As to the first assignment of error, it appears from the record that the information against the defendant was made on February 6, 1928 and on April 1, 1928 he entered bail for his appearance at the next term of court. The indictment, however, was not presented to the grand jury at the next term of court on the first Monday of May, 1928, as the alderman's return was not filed until April 25, 1929, more than a year after the bail was entered. The indictment was presented to the grand jury and a true bill found on May 9, 1929. Before a plea was entered or the jury sworn the defendant moved to quash the indictment on the sole ground that no notice was given to the defendant that the indictment was to be presented to the grand jury at May Sessions 1929. As the record did not disclose service of notice on the defendant, the Commonwealth, before any other witnesses were sworn and immediately after the motion to quash was made, called one Robert L. Evans, a constable, who testified that at least several days before the beginning of the May Sessions of 1929 he mailed a letter to the defendant, notifying him that this case, which he identified by number and term in the letter, was scheduled to be tried on a certain date during the May term of 1929 and that the defendant was to be present at the Schuylkill County court house. This evidence was not contradicted by the defendant and all the record discloses *Page 298
is the notice to the defendant as testified to by the constable. Although the defendant contends that this notice was not sufficient, he must have received the notice in due time as he was present with counsel when the case was called. He was not prejudiced because he had an opportunity to challenge the array of grand jurors at any time before entering his plea. See Commonwealth v. Magid and Dickstein, 91 Pa. Super. 513.
As to the second assignment of error, it appears that the district attorney in his opening address to the jury stated in substance that the Commonwealth proposed to show that on more than one occasion there was a delivery (of stolen property) and that the stolen property was received on more than one occasion. The exact language used by the district attorney does not appear on the record. The defendant's counsel moved to withdraw a juror, which was refused. The remarks in substance as stated were not sufficient to prejudice the jury against the defendant and no further reference thereto was made in the trial of the case.
The third assignment of error covering the doctrine of reasonable doubt is the serious part of this case. The court below in its charge to the jury on the question of reasonable doubt stated: "A reasonable doubt is a doubt for which you can give a reason." This definition was clearly error, — see Commonwealth v. Baker, 93 Pa. Super. 360, and Commonwealth v. Ariff, 97 Pa. Super. 283.
The court below followed the above definition with this explanation: "It is not a doubt which is conjured up in the minds of the jurors for the purpose of escaping the performance of a disagreeable duty. It is such a doubt that arises in a case in the mind of a juror when, after consideration of all the evidence fairly and conscientiously the juror is left in the state or frame of mind which causes him or her to pause *Page 299
and hesitate to reach a conclusion of guilt, such pause or hesitation being so great as would, in matters affecting his or her own highest interest, cause the juror to pause or hesitate. If, after fairly and conscientiously considering all the evidence in this case your mind is left in the state of pause or hestitation that you are not impelled to a conclusion of guilt, or if you are in a state of pause or hesitation as to any essential requirements necessary to make out this offense, it is your duty to give the benefit of that doubt to the defendant, and the only way in which you can do that is by acquitting him. On the other hand, if, after fairly and conscientiously considering all the evidence in the case, you are satisfied beyond a reasonable doubt of the defendant's guilt, then it is equally your duty to say so by your verdict, and to convict." There is nothing in the subsequent statements by the court below that would separate the word "doubt" as defined by it from one for which a "reason can be given" and in our opinion the above explanation was not sufficient to remove from the minds of the jury the definition of a reasonable doubt as "one for which a reason can be given." This is sufficient ground for reversal.
It is unnecessary to deal with the fourth assignment of error with respect to the sentence.
The first, second and fourth assignments of error are overruled, the third assignment is sustained, the judgment is reversed and a new trial awarded. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1714103/ | 311 S.W.2d 1 (1958)
Eugene A. MOONEY and Ruth M. Mooney, his Wife, Respondents,
v.
Samuel L. CANTER and Lillian R. Z. Canter, his Wife, Appellants.
No. 45971.
Supreme Court of Missouri, Division No. 1.
March 10, 1958.
*2 Ennis & Pannell, William L. Pannell, Festus, for appellants.
Dearing, Richeson & Weier, H. L. C. Weier, Hillsboro, for respondents.
HOLLINGSWORTH, Presiding Judge.
This suit arose out of a dispute between plaintiffs and defendants as to the location of the boundary line between their adjoining tracts of land situate in a rough, wooded area of Jefferson County, Missouri. Plaintiffs' land lies to the east and defendants' land lies to the west of the line in controversy. Plaintiffs, alleging title to the strip of land in dispute by adverse possession for a period of more than ten years under the provisions of Section 516.010 RSMo 1949, V.A.M.S., instituted this action in three counts: count one, to quiet their title; count two, for ejectment; and count three, to enjoin defendants from trespassing upon said tract. Defendants' answer (not entirely clear) admitted plaintiffs' possession of an undesignated portion of said tract, denied plaintiffs' possession of an undesignated portion and asserted their record title to an undesignated portion. The issue of plaintiffs' title by adverse possession to the strip in question was submitted to a jury and the counts in ejectment and for injunction were submitted to the court. Upon return of the jury's verdict finding title in plaintiffs, judgment was rendered in favor of plaintiffs on all three counts of their petition. Defendants have appealed, contending, in essence, that although plaintiffs pleaded title by adverse possession and their case was submitted and adjudged upon that theory, the evidence actually showed that plaintiffs claimed title only to their true boundary; that such evidence will not support a verdict and judgment based upon a plea of adverse possession; and that defendants' motion for a directed verdict should have been sustained. (Inasmuch as neither the plaintiff wife of plaintiff, Eugene A. Mooney, nor the defendant wife of defendant, Samuel L. Canter, participated in the trial, we shall, for convenience, frequently refer to Eugene A. Mooney as though he were the sole plaintiff and to Samuel L. Canter as though he were the sole defendant.)
In determining whether plaintiffs made a submissible case of title by adverse possession as pleaded in their petition and submitted to the jury under the instructions of the court, we accept the evidence most favorable to plaintiffs. See collected cases in Vol. 3, Part 1, Missouri Digest, Appeal and Error, k930(1). Such evidence supports a finding of facts in substance as hereinafter set forth.
Plaintiffs' farm is described in their deed as "Lot Four (4) being the Southeast part of U. S. Survey No. 2138, * * * containing 160 acres, less * * *1½ acres which was reserved, * * *", etc. (The acreage reserved is not here involved.) The farm is generally described as being one-half mile in length north and south and one-half mile in width east and west. It was acquired by William Kleinschmidt in 1887. Following his death, it was owned by his heirs until it was conveyed to William C. Grass and Irene Grass, husband and wife, in 1943, who owned it until they conveyed it to plaintiffs on December 11, 1946. Defendants purchased their land to the west of the disputed tract from H. W. Dornan in 1949, who had acquired it in 1927.
The strip to which plaintiffs asserted title by adverse possession is 2,706 feet in its north and south length. It lies west of the Plattin-Flucom County Road (hereinafter referred to as the "road"). Its north, south and west boundaries are straight and form, approximately, the three sides of a rectangle, but, due to the winding course of the road forming its east boundary, the strip varies in width as the road winds. At its south end, which coincides with the south *3 line of Survey No. 2138, the strip is 750 feet in width, at its north end it is 460 feet in width, and at its narrowest point (approximately midway of its north-south length), it is about 150 feet in width. The road runs in a general north-south direction along and within the west boundary of the farm. An aerial map, introduced into evidence by agreement of the parties, shows that the road "bows" quite deeply (several hundred feet) to the west at a point beginning some 900 to 1200 feet north of plaintiffs' south boundary line. The westward bow thus made extends on northward for some 600 to 900 feet, at which point the road curves back to a north-easterly course until it crosses plaintiffs' north boundary. Plattin Creek, a meandering stream flowing in a general north-south direction, is west of the road. At the south boundary of plaintiffs' farm, the creek appears to be from 400 to 500 feet west of that road. Near the most western part of the bow in the road, the creek bed approaches and, apparently, for a short distance, encroaches beyond the boundary line asserted by plaintiffs. At the north line of plaintiffs' farm, the creek appears to be some 250 to 350 feet west of the road. The bow in the road produces V-shaped tracts of land between the road and the creek at the southwest and northwest corners of plaintiffs' farm. The south tract contains approximately four and one-half acres. The north tract contains approximately two acres. Between these tracts there are gravel bars and an area used for picnicking and parking automobiles.
There seems not to have been any actual dispute about the boundary until defendants acquired their title in 1949. It was the use of and profits derived from the gravel bars and picnic area, together with ingress and egress from the road thereto, that provoked this controversy. Prior to the time defendants acquired their land, plaintiffs, under claim of ownership, sold gravel from the bars and charged for picnicking and parking privileges. After defendants came to their farm, they undertook to avail themselves of these rights, to the exclusion of plaintiffs. It should be here noted, however, that Mr. Dornan, from whom defendants purchased their tract, testified in behalf of defendants that he was unable to state where he claimed the boundary to be. He, at first, said it ran along the east side of the creek. Later in his testimony he said that the southeast corner of defendants' farm was 250, possibly 200, feet west of the road and about 20 feet, as he remembered, west of the creek. The record does not establish with any degree of certainty the location of the line as either Mr. Dornan claimed or defendants now claim it to be.
Plaintiff Eugene A. Mooney testified that the southwest corner of the tract, as claimed by him, is marked by an old blue ash tree yet standing as a "witness tree" and that "there was a pile of rocks there at one time for a corner." That corner is 750 feet west of the road. A line run northward at right angles from that point for a distance of 2,706 feet marks the northwest corner of the tract claimed by plaintiff. That corner is 460 feet west of the road and is marked by two trees, an old black oak and a sycamore. The line between the "witness tree" at the southwest corner and the sycamore tree at the northwest corner constitutes the east boundary of the land that he has had in possession since he purchased from Mr. Grass in 1946. The west boundary line, as thus described by plaintiff, was outlined in red pencil on the aerial map and admitted into evidence.
On cross-examination, plaintiff testified:
"Q. Is that your testimony, Mr. Mooney, you own this property outlined on the map, do you own that by deed? A. I am testifying that outlined in red has been in possession since 1887, belonged to that farm.
" * * * * * *
"Q. The land you claim has been in possession since 1887, are you claiming the land outlined in red is included in the deed to your property, the record title you now hold? A. Yes, sir, absolutely."
*4 William C. Grass, from whom plaintiffs purchased the land in 1946, testified that the southwest corner of the tract, as he pointed it out to plaintiff on a plat at the time of sale, was about 750 feet west of the road and that the west boundary line of the tract extended northward from that point, and that he had always claimed to that line.
James H. LaPree farmed the land claimed by plaintiffs as a tenant of the Kleinschmidt heirs and their successors in title, Mr. and Mrs. Grass, from 1931 until after Christmas in 1945. A certain Mr. Harris made a survey of it. There was a corner west of the creek at the southwest end, at which there was a corner pile of stones, that was considered the line. At the north end, on the west bank of the creek, there was also a pile of stones marking that corner.
George H. Vaughan, aged 74 years, occupied the land owned by defendants for about 18 years, beginning in 1920. He helped to survey the tract in question on two occasions. The southwest corner of plaintiffs' farm is on the west side of the creek and the northwest corner is located by a big black oak tree and a sycamore standing by the side of it, west of the creek. Mr. Harris put rocks at the southwest corner. The line between those corners was always the boundary line between plaintiffs' and defendants' land and there was no dispute about it "until these late years." (It is clear from the entire record of the witness' testimony that he refers to the line claimed by plaintiffs to be the boundary line between the farms of plaintiffs and defendants.)
Defendants did not dispute plaintiffs' title to the four and one-half acre tract at the south end nor to the two acre tract at the north end. Mr. Canter testified that he never disputed plaintiffs' title to any land east of the creek. He claims, however, that defendants' southeast corner "is within 20 feet of the creek on the west side." He does not know exactly where plaintiffs' northwest corner is located, but he understood that plaintiffs had a survey run by Holt and "they showed me a line up by a sycamore tree." "The way the creek cuts it off it is about ten feet."
"Q. In this suit, Mr. Canter, Mr. Mooney is claiming some land 750 west of the Plattin Road at the south boundary. Part of that you agree is in his property as called for by his deed, is that right? A. That is right.
"Q. It is the rest of the property that you are disputing? A. That is right.
"Q. Does the same hold true on the north end? A. That is right.
"Q. As far as you are concerned the Plattin County Road at the south end and north end runs through Mr. Mooney's property, he owns property on both sides of the road? A. That is right."
As stated, defendants insist that the judgment rendered herein cannot stand, because, as their brief states, "when the plaintiff, Eugene A. Mooney, testified, he claimed the disputed land was included in the description contained in his deed. Therefore, he could not be holding possession which was adverse to himself. Such a position is ridiculous and untenable." Further, say defendants, "It is well settled that where a person is claiming land only to the true boundary and such is his intention, and that person is actually possessing land beyond the true boundary by mistake, `his possession of a part of his neighbor's land included in the inclosure is not adverse.' Goltermann v. Schiermeyer, 111 Mo. 404, 19 S.W. 484, loc. cit. 487." Defendants also strongly rely upon and quote from Chostner v. Schrock, Mo., 252 S.W. 381, 382, wherein the court said: "Where possession is held to a supposed boundary line and the parties intend to claim only to the true line, whereever it might be, or to hold subject to future ascertainment, then the possession is not adverse and the statute will not run."
The fallacy of defendants' argument is that it misconstrues the real nature and *5 extent of plaintiffs' claim and their evidence in support thereof. First, it is clear (according to plaintiffs' evidence) that plaintiffs believe their deed was intended to and did include the strip in dispute. But, second, whether it did or did not, they further insist, as they pleaded and their evidence tends to show, that they and their predecessors in title have occupied and claimed as their own the strip in question for more than ten years.
As said in State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174, 176-177: "The principle, as stated in all of our prior decisions, may be reduced to this: If the possessor occupies the land in question intending to occupy that particular piece as his own, his occupancy is adverse. It is not necessary that he intend to take away from the true owner something which he knows belongs to another, or even that he be indifferent as to the facts of the legal title. It is the intent to possess, and not the intent to take irrespective of his right, which governs. Possession is a legal concept. * * * One may have such an intent in the case of property actually belonging to another, because he intentionally wants to take it away from the owner. But he may also have this intent because he is mistaken as to the facts of legal ownership."
The doctrine therein announced has been consistently followed: Landers v. Thompson, 356 Mo. 1169, 205 S.W.2d 544, 545-546; Peterson v. Harpst, Mo.Sup., 247 S.W.2d 663, 666-667; Agers v. Reynolds, Mo.Sup., 306 S.W.2d 506, 511-512.
So it is that regardless of whether plaintiffs are right or wrong in asserting that their record title includes the tract in dispute, their evidence supports a finding that plaintiffs and their predecessors in title have been in hostile, actual, open and notorious, exclusive and continuous possession of the tract in dispute under an unqualified claim of ownership for more than ten years. That is sufficient. State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174, 176; Five Twelve Locust v. Mednikow, Mo.Sup., 270 S.W.2d 770, 775.
The judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3993569/ | 1 Reported in 183 P.2d 780.
Four demand promissory notes form the basis of the four causes of action contained in the complaint filed by C.A. Easton, in the superior court for King county, against Homer Bigley and Reva Bigley, his wife, on November 2, 1945. It was alleged that each of the four notes had been assigned by Barto Company, a corporation, payee, to C.A. Easton, without recourse, and that plaintiff was the holder of each of such notes.
The note in the first cause of action was executed by Bigley and wife, in favor of Barto Company, on September 9, 1937, and was for the principal sum of five hundred dollars. It was alleged that various payments of interest had been made on this note, the last payment having been made on December 17, 1943; that there was due on this note a balance of five hundred dollars, principal, together with the sum of $456.75, interest, calculated to September 18, 1945.
The note which forms the basis of the second cause of action was for three hundred dollars and was executed by Bigley and wife on May 23, 1938. It was alleged that a payment of interest was made on this note on December 17, 1943, and that there was due and owing the principal sum of three hundred dollars, and interest in the sum of $253.60, calculated to September 18, 1945.
The third cause of action was based upon a note for thirty-five dollars, executed and delivered by Homer Bigley to Barto
Company on May 31, 1938. It was alleged that a payment of interest in the sum of five dollars was made upon the note on December 17, 1943, and there was due and owing on this note the principal sum of thirty-five dollars, together with the sum of $25.65, interest, calculated to September 18, 1945.
The fourth cause of action was based upon a note for ten dollars, executed and delivered by Homer Bigley to Barto
Company on July 16, 1938. It was alleged that interest on this note in the sum of $1.32 was paid on December 17, 1943, and that there was due and owing on such note the principal sum of ten dollars, and $7.28, interest, calculated to September 18, 1945. *Page 676
Defendants Bigley and wife, by their answer, admitted the execution of the notes referred to in the four causes of action set out in the complaint, and denied all the other allegations in the several causes of action.
As a first affirmative defense, defendants alleged that the interest payment referred to in each cause of action as having been made on December 17, 1943, was not made by either of the defendants; that in May, 1938, defendants deposited with Barto
Company a certificate of trustee stock, bearing interest coupons; that the alleged interest payment referred to in each cause of action as having been made on December 17, 1943, was made by Barto Company clipping such interest coupons and applying the proceeds thereof to the payment of interest, without the knowledge or authority of the defendants, and without any notice to them. It was further alleged that such interest payments were not voluntary payments on account by either defendant on December 17, 1943; that no voluntary payments had been made by either defendant on any of such notes since 1938; and that the statute of limitations had run against each note.
As a second affirmative defense, it was alleged that each of the notes referred to in the complaint had been fully settled and paid.
Plaintiff, by his reply, denied the allegations of defendants' first and second affirmative defenses and alleged that, during the year 1938, defendants delivered to Barto Company a certificate known as Trustee Standard Oil-shares, with attached coupons coming due thereafter on January 15th and July 15th of each year; that, when the certificate was delivered to Barto
Company, it was delivered under an oral agreement between Barto
Company and defendants that Barto Company would collect the installments on January 15th and July 15th of each year and, as collected, credit the payments upon defendants' indebtedness represented by the notes herein sued upon; that Barto Company did so collect such payments and credit them on the indebtedness, with the full knowledge and consent of defendants. *Page 677
The cause came on for hearing before the court on October 23, 1946, and, after a hearing, the court, on December 13, 1946, made and entered its findings of fact, conclusions of law, and judgment.
The court concluded that plaintiff was entitled to judgment against defendants on his first cause of action in the sum of five hundred dollars, with interest thereon from September 9, 1937 (date of note), at twelve per cent per annum, less $24.75, interest payments credited upon the note; on his second cause of action, in the sum of three hundred dollars, with interest thereon from May 23, 1938 (date of note), less ten dollars, interest payment credited December 17, 1943; on his third cause of action, in the sum of thirty-five dollars, with interest thereon at the rate of twelve per cent per annum from May 31, 1938 (date of note), less five dollars, interest payment credited on the note December 17, 1943; and on his fourth cause of action, in the sum of ten dollars, with interest thereon from July 16, 1938 (date of note), at twelve per cent per annum, less $1.32, interest payment credited on note December 17, 1943.
Judgment was entered in accordance with the conclusions, and this appeal by defendants followed.
Appellants assign as error the holding of the court that the statute of limitations had not run; the finding that appellants had made payments on the notes; and the entry of conclusions of law and judgment in favor of respondent.
Respondent called as a witness Mr. Barto, who stated he knew appellant Homer Bigley. The four notes hereinbefore mentioned were marked as exhibit No. 1. Counsel for appellants admitted the execution of the notes. Mr. Barto then stated that payments were made on the notes, and that such payments were endorsed on the back of the notes on the dates they were made.
It may be stated here that we are concerned with the endorsement made upon the back of each note on December 17, 1943. The endorsements show payments on the notes on that date as follows: On the $500 note, $10; on the $300 *Page 678
note, $10; on the $35 note, $5; and on the $10 note, $1.32. The notes were admitted in evidence.
Mr. Barto testified in part as follows:
"Q. Mr. Barto, referring to the note for $500.00, all of the payments noted on the back are 1938 except one for $10.00 to apply on interest, and you have that dated December 17, 1943? That is correct, is it not? A. Yes. Q. How was that payment made in 1943? A. That was a coupon from a certificate that had been left with us by Mr. Bigley of Standard Oil shares, a kind of an investment trust proposition that had some annual dividends on it. Q. When did the defendant leave this coupon bearing stock with you? A. In 1938, I believe it was. Q. In 1938? A. Yes. Q. And why was that left with you? A. Well, it was left with us for the purpose of crediting these payments on his account as they came due. THE COURT: The purpose of what, Mr. Barto? THE WITNESS: It was left with us — the dividends from this certificate were supposed to help keep up the interest on his account. It was left with us as a collateral with the understanding that those payments would be credited. Q. [by counsel for appellants] Was that left with you as partial payment of the notes or as security? A. Well, it was left as security, I would say. Q. Will you tell us what was said by you and what was said by Mr. Bigley at the time the stock was handed to you? A. Well — Q. Strike that. Let me ask you first: Whose suggestion was it that the stock be left with you, yours or the defendant's? A. Well, I didn't know he owned it until he told me about it, of course. Q. When he told you about it, you asked him to bring it in? A. Yes, because the other security that he had had or expected to have didn't materialize. Q. When you told him to bring it in, what was said by you at that time as to the purpose for bringing it to you? A. Well, I can't remember what was said at the time. It was brought in for the purpose of partially securing the account and partially taking care of the interest on the account. Q. What specifically was said as to what you were to do with the interest coupons as they came due? A. Well, I was instructed to use them as they came due and credit them on the account. Q. Why was there nothing credited on the notes from 1938 to 1943 then? A. Well, the amount that was due on them was very small, I think — . . .
"Q. When you cashed those coupons in 1943 and applied them on the notes, did you at that time get the defendant's *Page 679
permission to do so? A. I didn't get any further permission than I had, than in the first case, first instance. Q. In other words, you didn't contact the defendant in 1943 with regard to your right to clip the coupons? A. No. Q. The only transaction then that you had with the defendant regarding the stock and the attached coupons was in 1938 when he gave them to you? A. That is right. Q. And the 1943 endorsement of payment on interest of $10.00 on this $500.00 note is part of the proceeds then of interest bearing coupons that you clipped in 1943? A. That is right. Q. Based on consent that was given to you by the defendant in 1938 when he handed you the stock? A. That is right. Q. The $300.00 note has only one payment endorsed on the back, which is also the same day, December 17, 1943, $10.00? A. Part of the same. Q. That money came from the same source? A. Yes. Q. The $35.00 note has only one payment credited on the back, also December 17, 1943, for $5.00? A. Part of the same thing. Q. That came from the same source? A. Yes. Q. And the last note for $10.00 has only one payment credited on the back, dated also December 17, 1943, $1.32 to apply on interest? A. Yes. Q. That money also came from the same source? A. Yes. That made the total of $26.32, the total derived from the — THE COURT: Those four applications were the total of your collections? THE WITNESS: That is right. Q. [By counsel for appellants] In other words, from 1938 to 1943 nothing happened; and in December of 1943 you cashed in certain coupons attached to the stock and applied the proceeds to these four notes in accordance with the way you thought they should be applied? Is that right? A. Yes. Q. You did not receive any further permission from the defendant in 1943 as to how to apply the money? A. No. The only instructions I received from him is when he left it with me."
Mr. Barto was the only witness called.
The question presented by this appeal is whether the application upon the notes, on December 17, 1943, of the money realized from the interest coupons attached to the stock certificate, which certificate was left with Barto Company in 1938 as security for the four notes, with instructions that, as the interest coupons came due, they were to be collected and credited on appellants' account, tolled the running of the statute of limitations. *Page 680
Appellants contend such application did not toll the running of the statute, for the reason that in order to toll the running of the statute, the payment must be made under such circumstances as to show an intentional acknowledgment by the debtor of his liability for the whole debt as of the date of payment, from which arises a new implied promise, supported by the original consideration, to pay the residue.
Respondent contends that the application of the proceeds from the coupons tolled the running of the statute, his theory being that, when Homer Bigley instructed Barto Company to collect on the security and apply the proceeds on the notes, Bigley made Barto Company his agent for such purpose, and that the act of the creditor, Barto Company, in applying the proceeds of the security on the debt, constituted a voluntary payment made by Bigley through his agent, Barto Company.
Respondent cites no authority from this state to support the agency theory, and the cases cited by him from other jurisdictions proceed upon that theory.
[1] In the case of Arthur Co. v. Burke, 83 Wash. 690,145 P. 974, after a consideration of many cases and the principles therein announced, we stated:
"The rationale of these principles is this: the payment must be made under such circumstances as to show an intentionalacknowledgment by the debtor of his liability for the whole debtas of the date of payment, from which arises a new implied promise, supported by the original consideration, to pay the residue. . . .
"It has been usually held that where part payment of a note is made from money realized by the sale of collateral, a new promise is not to be implied as of the date of the sale of the collateral nor as of any date later than the transfer of thecollateral to the creditor. Wolford v. Cook, supra [71 Minn. 77,73 N.W. 706, 70 Am. St. 315]; Brown v. Latham, 58 N.H. 30, 42
Am. Rep. 568; Jones v. Langhorne (rehearing), 19 Colo. 206,34 P. 997; Thomas v. Brewer, 55 Iowa 227, 7 N.W. 571; Campbellv. Baldwin [130 Mass. 199]; and Leach v. Asher, supra
[20 Mo. App. 656]." (Italics ours.) *Page 681
In the Arthur Co. case, we then quoted from Wolford v.Cook, supra, as follows:
"`Wolford's right to receive the proceeds of the collateral mortgages, and apply them in part payment of defendant's note, was acquired under and by virtue of the contract made at the time the collaterals were transferred to him. His subsequent exerciseof that right was not a voluntary payment made by the defendantfrom which a promise to pay the residue can be inferred. The defendant had done nothing since he transferred the collaterals to Wolford in March, 1889. The fact that he made no objection when informed by Wolford that he had applied the proceeds of these collaterals on his note could not take the case out of the statute. He had no reason to object, and, if he had done so, it would have been futile. Wolford had merely exercised a contract right which he acquired in 1889. Defendant's passive acquiescence in the exercise of that right constituted neither a voluntary payment as of that date, nor a new promise in writing to pay the balance of the debt. Harper v. Fairley, 53 N.Y. 442; Smith v.Ryan, 66 N.Y. 352; Brown v. Latham, 58 N.H. 30.'" (Italics ours.)
We quote further from the Wolford case:
"The principle upon which part payment of a debt will take a case out of the statute is that such payment amounts to an acknowledgment of the existence of the debt, from which the law implies a new promise to pay the balance. To have that effect, the payment must be voluntarily made by the debtor in person who is sought to be charged with the effect of it, or by some one authorized by him to make a new promise on his behalf. It has been held, or at least intimated, in some cases, that a sale of collaterals made within a reasonable time after they are deposited with the creditor, and the application of the proceeds on the debt, will operate as a part payment at the date of thereceipt of such proceeds, so as to interrupt the operation of the statute. This doctrine rests upon the mistaken idea that the creditor is thereby made the agent of the debtor for the collection or sale of the collaterals, ignoring the fact that the creditor cannot be made the agent of the debtor to such an extent as to make an act done by him [the creditor] operate as a new promise to himself, without which element a payment can never operate to remove *Page 682
the bar of the statute. Wood, Lim. Act. § 101." (Italics ours.)
We have set out the last quotation from the Wolford case as showing more particularly the reason for the first quotation from that case above made.
This court, in the Arthur Co. case, supra, after quoting from the Wolford case, supra, Brown v. Latham, supra, and 1 Wood, Limitations (2d ed.) 282 et seq., stated:
"The grounds of the foregoing authorities seem to us sound, but it is not necessary to adopt them here. We need not go so far."
While it is true that the decision in the Arthur Co. case was based on a factual situation which the court held did not require the application of the above principles, we are of the opinion this court clearly indicated in the case that it was not in accord with the agency theory contended for by respondent in the case at bar.
After a consideration of the cases, we are of the opinion that the rules as above announced in the Wolford case, supra, are the better rules and supported by the better reasoning, and we hereby adopt them as applicable to the facts in the instant case.
[2] In the case of Walker v. Sieg, 23 Wash. 2d 552,161 P.2d 542, we quoted from the case of Stockdale v. Horlacher,189 Wash. 264, 64 P.2d 1015, as follows:
"`Where reliance is placed upon a part payment to remove the bars of the statute, the burden of proving the payment within the statutory period rests upon the party asserting it. Arthur Co.v. Burke, 83 Wash. 690, 145 P. 974. Where circumstances are relied upon to toll the running of the statute of limitations,they must show a clear and unequivocal intention on the part ofthe obligor to keep alive the debt. Berteloot v. Remillard,130 Wash. 587, 228 P. 690; Abrahamson v. Paysse, 159 Wash. 516,293 P. 985.'" (Italics ours.)
[3] The case of Berteloot v. Remillard, supra, announced the rule that where property is turned over to third parties to be applied upon an indebtedness, such payments made by the persons to whom the property *Page 683
was delivered do not toll the statute of limitations unless the agreement clearly indicates that it was the intention of the debtor that the transferee should act as his agent with power torevive the whole debt; in other words, that it must clearly appear that the payment is a voluntary partial payment.
[4] We are of the opinion that it does not appear in this case that it was the clear and unequivocal intention of appellants to empower respondent to revive the whole debt, or to set the statute of limitations in motion anew, but that the only purpose of the agreement between appellants and Barto Company as to the application of the proceeds from the certificate was to instruct Barto Company as to how the collateral should be handled; in other words, the application of the payments in 1943 by Barto Company did not constitute a voluntary payment by appellants at that time, under circumstances showing an intentional reacknowledgment of the whole debt as of the date of payment.
For the reasons assigned, the judgment of the trial court is reversed and remanded, with instructions to dismiss the action.
MALLERY, C.J., STEINERT, ROBINSON, and HILL, JJ., concur. *Page 684 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3395479/ | This cause grows out of a disagreement over the amount due on a policy of insurance. The declaration alleges in substance that appellee is the beneficiary in a life insurance policy issued by appellant to Eugene Yancey Conklin, Sr., February 12, 1934, in the sum of $5,000, that premiums were payable quarterly in the sum of $43.50, that all premiums were paid except one due August 12, 1942, upon which a grace period of 31 days was allowed, that the insured died August 21, 1942, and that the company then became obligated to pay her the face policy less certain loans and the quarterly premium due August 12, 1942, that all prerequisites have been complied with by the beneficiary to recover the sum claimed but the company has failed and refused to pay her claim.
A demurrer to the declaration was overruled when defendant tendered pleas alleging the existence of its custom *Page 5
permitting policy holders the continuing right to reduce the face of any policy of insurance, that such custom was known to the insured who applied in writing to reduce the face of his policy from $5000 to $2500, that such permission was granted and defendant credited the cash surrender value of the $2500 of cancelled insurance on the outstanding loan of the policy. It is contended that the exercise of this option reduced the liability of the company on the policy from $5,000 to $2,500.
There is no dispute as to the foregoing facts. Neither is it disputed that the insurance requested the reduction in his policy, to apply the cash surrender value of the cancelled insurance on defendant's outstanding loan against the policy, that the defendant agreed in writing to make the requested change, that all necessary papers were sent to the insured, properly executed by him and returned to defendant before his death. The court sustained the demurrer to these pleas and defendant refusing to plead further, final judgment was entered for the plaintiff to which appeal was prosecuted.
The demurrer to defendant's pleas was sustained on the theory that while there was a clear intent shown by both parties to reduce the contract of insurance the agreement for that purpose was not executed in compliance with the terms of the policy prior to the death of the insured.
The conditions relied on to support this contention are embraced in the policy and are as follows:
"Only the President, Vice-President, or the Secretary has the power on behalf of the Company, and then only in writing, to make or modify this or any contract of insurance, or to extend the time for paying any premium, and the Company shall not be bound by any promise or representation heretofore or hereafter given by any Agent or person other than the above."
It is admitted that the contract to reduce the policy was not approved by the President, Vice-President, or Secretary of the Company but appellant contends that this did not prevent the Company and the insured from making a new contract such as was made in this case and when done superseded in its entirety, the original contract of insurance. It is *Page 6
further contended that the new contract became effective as of the date the defendant granted the insured's request for reduction.
It may be that the contract to reduce the insurance was a new contract and superseded the original one but if that be true, we take the view that the all inclusive words of the provision of the policy quoted, "to make or modify this or any contract of insurance" was intended to protect the defendant against a new contract or a change in the present one in so far as the insured is affected unless made by one of the three officers named.
The defendant could have rejected the contract to reduce the insurance any time before it was shown to have been approved by one of the officers named so it was not final until so approved. Such provisions supersede prevailing customs and must be followed even though there may be a mutual agreement to modify. Since it is not shown that the President, Vice-President, or the Secretary agreed to or approved the modification in this case, the amended fifth plea interposing the continuing option as a custom was not a sufficient defense to the declaration.
The judgment appealed from is therefore affirmed.
Affirmed.
BUFORD, C. J., CHAPMAN and ADAMS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3850959/ | In its essential facts, this case is the same as Commonwealth ex rel. v. Benn, and both were presented together; all that is said in the opinion there filed applies here.
The demurrer to defendant's answer is overruled and the writ is dismissed. *Page 444 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1713901/ | 906 S.W.2d 120 (1995)
ELGIN BANK OF TEXAS, Appellant
v.
TRAVIS COUNTY, TEXAS, Appellee.
No. 03-94-00669-CV.
Court of Appeals of Texas, Austin.
August 16, 1995.
Rehearing Overruled October 11, 1995.
*121 R. Harry Akin, Pearce, Smith & Akin, L.L.P., Austin, for appellant.
Ken Oden, County Attorney and John McCormick, Assistant County Attorney, Austin, for appellee.
Before POWERS, JONES and KIDD, JJ.
PER CURIAM.
Appellant Elgin Bank of Texas challenges the trial court's grant of summary judgment in favor of appellee Travis County and denial of the Bank's motion for summary judgment. We will reverse the trial court's judgment.
Elgin Bank owns an approximately 150.35-acre tract of land in Travis County. The land is not within the corporate limits or the extra-territorial jurisdiction of any municipality. Elgin Bank wants to subdivide the property for sale in multiple tracts using metes and bounds descriptions but does not want to file a subdivision plat.[1] Since the property has access to existing roads, Elgin Bank does not plan to build streets or roads within the subdivision. Travis County asserts that Texas Local Government Code section 232.001(a) requires that Elgin Bank file a subdivision plat. We disagree.
Texas Local Government Code section 232.001(a) provides:
The owner of a tract of land located outside the limits of a municipality who divides the tract into two or more parts to lay out a subdivision of the tract, including an addition, or to lay out suburban lots or building lots, and to lay out streets, alleys, squares, parks, or other parts of the tract intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on or adjacent to the streets, alleys, squares, parks, or other parts must have a plat of the subdivision prepared.
Tex.Loc.Gov't Code Ann. § 232.001(a) (West Supp.1995) (emphasis added). The question we decide is whether Travis County can, under section 232.001(a),[2] require the owner of a tract of land who subdivides, but does not plan to lay out streets, alleys, squares, parks, or other parts of the tract for public or private use, to prepare a plat of the subdivision.
Common words should be interpreted as they are commonly used. Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex. 1969). The word "and" is generally used as a conjunctive. Board of Ins. Comm'rs v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906, 908-09 (1944). On its face, the plain language of the statute requires a plat only if the owner both divides the property and lays out streets or other public areas. See Op.Tex.Att'y Gen. No. JM-1100 (1989) (stating that county could require plat only if land was subdivided and public areas were planned). The word "and" may be construed as a disjunctive to prevent an absurd result. Guardian Life Ins. Co. of Tex., 180 S.W.2d at 908-09. However, as discussed below, we conclude that no absurd result arises from a straight-forward construction of the statutory language.
Our interpretation of the plain language of section 232.001(a) is supported by our analysis of Texas Local Government Code section 212.004(a). Section 212.004(a) authorizes a municipality to regulate subdivisions within its corporate limits or extraterritorial jurisdiction. Before 1993, relevant portions of section 212.004(a) were identical to section *122 232.001(a). Section 212.004(a) formerly provided:[3]
The owner of a tract of land located within the limits or in the extraterritorial jurisdiction of a municipality who divides the tract in two or more parts to lay out a subdivision of the tract, including an addition to a municipality, or to lay out suburban, building, or other lots, and to lay out streets, alleys, squares, parks, or other parts of the tract intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on or adjacent to the streets, alleys, squares, parks, or other parts must have a plat of the subdivision prepared.
Act of May 11, 1987, 70th Leg.R.S., ch. 149, § 1, 1987 Tex.Gen.Laws 707, 970 (emphasis added). Section 212.004(a) was amended in 1993 by substituting the word "or" for the word "and" and adding a provision that excluded parts greater than five acres, if each part has access and no public improvement is being dedicated. Act of May 26, 1993, 73rd Leg., R.S., ch. 1046, § 1, Tex.Gen.Laws 4469. Section 212.004(a) now provides:
The owner of a tract of land located within the limits or in the extraterritorial jurisdiction of a municipality who divides the tract in two or more parts to lay out a subdivision of the tract, including an addition to a municipality, to lay out suburban, building, or other lots, or to lay out streets, alleys, squares, parks, or other parts of the tract intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on or adjacent to the streets, alleys, squares, parks, or other parts must have a plat of the subdivision prepared.... A division of a tract under this subsection does not include a division of land into parts greater than five acres, where each part has access and no public improvement is being dedicated. Tex.Loc.Gov't Code Ann. § 212.004(a) (West Supp.1995) (emphasis added).
The 1993 amendments to section 212.004(a) were made after the Attorney General issued Opinion No. JM-1100, concluding that section 212.032 allowed counties to require a plat only when the subdivider also planned to dedicate streets, alleys, squares, and other property to public use. Op.Tex. Att'y Gen. No. JM-1100 (1989). We reject Travis County's contention that the Legislature was attempting to correct the Attorney General's misinterpretation of section 232.001(a) by correcting section 212.004(a) or that the Legislature erred by changing section 212.004(a) but not 232.001(a). Rather, the Legislature's amendment of section 212.004(a) but not section 232.001(a) suggests that it intended for section 232.001(a), as written and interpreted, to remain unchanged.[4]See Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975) (revised statute presumed to be enacted with full knowledge of existing condition of law); c.f. Driscoll v. Harris County Comm'rs Court, 688 S.W.2d 569, 571 (Tex. App.Houston [14th Dist.] 1984, writ ref'd n.r.e.) (legislature "undoubtably" amended statute in response to attorney general opinion).
The trial court concluded that it would be absurd to require an owner who plans to subdivide his property and to lay out streets to plat the property, while the owner who subdivides without laying out streets is not so required. We believe the result is sensible rather than absurd because the county may only consider street design and construction in approving plats.
The county may refuse to approve a plat only if the plat does not meet the requirements "prescribed by or under" chapter 232 of the Texas Local Government Code. Tex. Loc. Gov't Code Ann. § 232.002 (West Supp. *123 1995); Projects Am. Corp. v. Hilliard, 711 S.W.2d 386, 389 (Tex.App.Tyler 1986, no writ) (approving writ of mandamus requiring commissioners to approve plat that both parties agreed met requirements of chapter 232). With certain exceptions applicable only in particular counties,[5] the only requirements prescribed by chapter 232 are those under section 232.003. Section 232.003 authorizes the commissioner's court to adopt rules regulating the design and construction of roads.[6] Except for the requirement that a purchase contract state whether and when water will be available, which is independent of the platting requirement,[7] all of the powers enumerated in section 232.003 presuppose planned roads. Section 232.003 is the only authority upon which the county may base platting requirements. Projects Am.Corp., 711 S.W.2d at 389. Since the standard for approving the plat is whether planned roadways conform with the county's design and construction standards, it would be pointless to require a plat of property that does not include roads.
By contrast, a municipality's power to regulate subdivisions is much broader. The governing body of a municipality may adopt rules governing plats and subdivisions of land within the municipality's jurisdiction to promote the health, safety, morals, or general welfare of the municipality and the safe, orderly, and healthful development of the municipality. Tex.Loc.Gov't Code Ann. § 212.002 (West 1988). The municipal authority approves the plat only if the plat conforms to the general plan of the municipality and its current and future streets, alleys, parks, playgrounds, and public utility facilities; the plat conforms to the general plan for the extension of the municipality, taking into account access to and extension of sewer and water mains and the instrumentalities of public utilities; any applicable bonds are filed; and the plat conforms to any rules adopted to promote the health, safety, morals, or general welfare of the municipality. Tex.Loc.Gov't Code Ann. § 212.010 (West Supp.1995).[8] Because a municipality regulates *124 much more than the design and construction of roads via the plat, it is reasonable for a municipality to require a plat even if no roads are planned.[9]
We also note that under Travis County's interpretation, developers of lots greater than five acres, which have access to roads but do not plan public improvements, would be exempt from the platting requirement within city limits but not within counties. Given the relatively greater authority of cities as opposed to counties, that result would be anomalous.
Finally, we consider section 232.001(f). It provides that in certain counties the owner of a tract of land who "divides the tract into two or more parts to lay out suburban lots or building lots for resale of five acres or less must have a plat of the subdivision prepared." Tex.Loc.Gov't Code Ann. § 232.001(f) (West Supp.1995). In this subsection, the Legislature created a category of development that requires a plat for any division of land into lots of five acres or less, regardless of the intent to lay out streets. Section 232.001(f) is part of legislation designed to promote the development of water resources and to increase the availability of water in certain economically distressed counties. See generally Act of May 28, 1989, 71st Leg., R.S., ch. 624, § 1.01, 1989 Tex.Gen. Laws 2063, 2063-64. And, if a plat is required under section 232.001(f), the affected county has additional powers under sections 232.0035, 232.0036, 232.0046, 232.0047 and 232.0049 to require the developer to provide water and sewer service. Once again, the population subject to the platting requirement is consistent with the platting requirements to be enforced. Once again, the Legislature demonstrated that it could, were it inclined to, draft legislation that required plats in any subdivision.
Based on the plain language of section 232.001, its apparent purpose, and our comparison of it to sections 212.004(a) and 232.001(f), we hold that Travis County may not require an owner who subdivides but who does not lay out streets, alleys, squares, parks, or other parts of the tract intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on or adjacent to the streets, alleys, squares, parks, or other parts to prepare a plat.
Accordingly, we sustain Elgin Bank's single point of error. We reverse the trial court's judgment, render judgment that Travis County may not require Elgin Bank to plat the property under these circumstances, and remand to the trial court the issue of attorney's fees.[10]
NOTES
[1] A plat is a map of specific land showing the location and boundaries of individual parcels of land subdivided into lots, with streets, alleys, and easements drawn to scale. Black's Law Dictionary 1151 (6th ed.1990).
[2] The commissioner's court has only specific enumerated powers. See Tex. Const. art. V, § 18; Projects Am. Corp. v. Hilliard, 711 S.W.2d 386, 389 (Tex.App.Tyler 1986, no writ). Therefore, both parties agree that section 232.001 controls the disposition of this issue.
[3] Travis County claims that the original language of § 212.004(a), which basically mirrored § 232.001, had been judicially interpreted to require a plat whenever land was subdivided, regardless of whether streets, alleys, squares, or other parts of the tract were dedicated to public use. Travis County is wrong. The cases that it cites, including Cowboy Country Estates v. Ellis County, 692 S.W.2d 882 (Tex.Civ.App.Waco 1985, no writ), and City of Weslaco v. Carpenter, 694 S.W.2d 601 (Tex.App.Corpus Christi 1985, writ ref'd n.r.e.), do not address this issue.
[4] Attorney general's opinions are considered by the courts in construing statutes. Although they are not binding, they are persuasive and entitled to due consideration. Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex.App.Austin 1990, no writ).
[5] The exceptions are provisions relating specifically to economically distressed areas: §§ 232.0035, 232.0036, 232.0046, 232.0047 and 232.0049. These sections are discussed below.
[6] Section 232.003 provides that the commissioner's court may:
(1) require a right-of-way on a street or road that functions as a main artery in a subdivision, of a width of not less than 50 feet or more than 100 feet;
(2) require a right-of-way on any other street or road in a subdivision of not less than 40 feet or more than 70 feet;
(3) require that the shoulder-to-shoulder width on collectors or main arteries within the right-of-way be not less than 32 feet or more than 56 feet, and that the shoulder-to-shoulder width on any other street or road be not less than 25 feet or more than 35 feet;
(4) adopt, based on the amount and kind of travel over each street or road in a subdivision, reasonable specifications relating to the construction of each street or road;
(5) adopt reasonable specifications to provide adequate drainage for each street or road in a subdivision in accordance with standard engineering practices;
(6) require that each purchase contract made between a subdivider and a purchaser of land in the subdivision contain a statement describing the extent to which water will be made available to the subdivision and, if it will be made available how and when; and
(7) require that the owner of the tract to be subdivided execute a good and sufficient bond in the manner provided by Section 232.004.
Tex.Loc.Gov't Code Ann. § 232.003 (West Supp. 1995).
[7] The requirement regarding purchase contract provisions is independent of the platting requirement. See Act of May 28, 1989, 71st Leg., R.S., ch. 624, § 3.04, 1989 Tex.Gen.Laws 2063, 2087 (eliminating requirement that plat contain statement describing extent to which water will be available). The requirement regarding purchase contract provisions is presumably enforceable under § 232.005, which authorizes the county attorney or other prosecuting attorney to enjoin violations of rules adopted under chapter 232 and to recover damages. Tex.Loc.Gov't Code Ann. § 232.005 (West Supp.1995).
[8] Section 212.010 provides that the municipal authority approves the plat only if:
(1) it conforms to the general plan of the municipality and its current and future streets, alleys, parks, playgrounds, and public utility facilities;
(2) it conforms to the general plan for the extension of the municipality and its roads, streets, and public highways within the municipality and in its extraterritorial jurisdiction, taking into account access to and extension of sewer and water mains and the instrumentalities of public utilities;
(3) a bond required under Section 212.0106, if applicable, is filed with the municipality; and
(4) it conforms to any rules adopted under Section 212.002.
Tex.Loc.Gov't Code Ann. § 212.010 (West Supp. 1995).
[9] Travis County quotes extensively from Precision Sheet Metal Mfg. v. Yates, 794 S.W.2d 545, 552 (Tex.App.Dallas 1990, writ denied), regarding the purposes of § 212.004. The discussion of the purposes of § 212.004 is irrelevant to a consideration of the purposes of § 212.032 since counties have been delegated far fewer powers under chapter 232 than were cities under chapter 212.
[10] Elgin Bank pleaded for attorney's fees in their motion for summary judgment. The Texas Supreme Court recently held that the Declaratory Judgment Act waives governmental immunity for awards of attorney's fees. Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 444-46 (Tex.1995). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3848591/ | Argued March 27, 1934.
In this action to recover damages for personal injuries, verdicts were rendered for plaintiffs in the court below. Defendant moved for judgments non obstante veredicto, which the court refused, entering judgments on the verdicts. Defendant, specifying this action as error, brings before us the record for review.
The minor plaintiff, Joseph F. Hough, at the time he was injured was fifteen years of age. He was riding on the right running board of an automobile which was proceeding east on Bayard Street in Pittsburgh. When Neville Street, which runs at right angles to Bayard *Page 236
Street, was reached, the driver of the automobile turned to the right to enter that street. On the corner was an apartment house, so located as to obstruct his view of the thoroughfare into which he was turning. As the driver was making the turn at a speed of about fifteen miles an hour, he saw defendant's two-horse garbage wagon which was being driven toward Bayard Street on the left (wrong) side of Neville Street. In an endeavor to avoid colliding with it he swung his automobile suddenly to the left and in passing in front of the horses, the minor plaintiff was struck by the tongue of the wagon and swept off the running board, and received quite serious injuries.
Appellant contends that the boy was contributorily negligent because he was riding on the running board, and that no negligence of defendant was shown. As to contributory negligence, the case is ruled by Hull v. Bowers, 273 Pa. 429; Robinson v. American Ice Co., 292 Pa. 366, and Sexauer v. Pittsburgh Rys. Co., 305 Pa. 319.
In Hull v. Bowers, the plaintiff was riding on an electric railway work car, seated on the floor with his feet on the step of the car which extended beyond its body. The defendant backed an automobile into the car, injuring the plaintiff. We there pointed out the difference in right of recovery between actions against the operator of the vehicle on which the injured person is riding and actions against third persons who negligently collide with the vehicle, and we held that in the latter cases the question of the plaintiff's contributory negligence is for the jury.
In Robinson v. American Ice Co., the plaintiff was injured while riding on the step of a truck from which he was knocked to the ground by defendant's wagon, and we allowed a recovery.
In Sexauer v. Pittsburgh Rys. Co., where the plaintiff was standing on the running board of a truck with which a street car collided, we held that the question of the plaintiff's contributory negligence was for the jury. *Page 237
In Schomaker v. Havey, 291 Pa. 30, much relied upon by appellant, the action was against the operator of the automobile on the running board of which plaintiff's deceased husband was riding. In that case no third party was involved, and we sustained a nonsuit entered on the ground of contributory negligence.
Appellant on this phase of the case also contends that the injured plaintiff was contributorily negligent, because he did not warn the driver of the automobile of the presence of the wagon and did not jump from the running board before the tongue of the wagon struck him. There is no evidence in the case to show that he saw the wagon before the driver of the automobile did or in time to warn him. As we recognized in the Sexauer Case, there is danger in jumping from the running board of a moving automobile. The testimony does not so clearly demonstrate that the plaintiff had a chance to jump or that he could have saved himself by jumping as to enable us to determine as a matter of law that he should have done so. The whole question of contributory negligence was for the jury.
On the question of defendant's negligence the evidence is not as clear as it might be regarding the position of defendant's wagon at the time the automobile rounded the corner. The testimony indicates that after the accident the wagon was in the middle of Neville Street. We think, however, there was sufficient in the testimony of the driver of the automobile to justify the jury in concluding that the team was on the wrong side of the street. His evidence is susceptible of the construction that the wagon was on the part of Neville Street that he was turning into, that is to say, on the wrong side of the street and that it was at an angle from that side moving toward the middle of the highway. Under the Act of May 1, 1929, P. L. 905, section 1004, it was the duty of defendant's employee to drive his wagon on the right half of the highway, and as it was a slow-moving vehicle, as closely as possible to the right-hand edge or curb. The *Page 238
duty to drive on the right side of the street was imposed upon him under section 1005 also, as he was about to cross an intersection.
The judgments are affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1058970/ | 611 S.E.2d 404 (2005)
269 Va. 383
Clarence W. JENKINS
v.
Daymion Wayne PYLES, et al.
Record No. 041892.
Supreme Court of Virginia.
April 22, 2005.
*405 Bradford M. Young (The Chandler Law Group, on briefs), Charlottesville, for appellant.
Humes J. Franklin, III (Wharton, Aldhizer & Weaver, on briefs), Harrisonburg, for appellees.
Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and COMPTON, S.J.
KEENAN, Justice.
In this personal injury action arising out of a motor vehicle accident, we consider whether the circuit court erred in setting aside a jury verdict in favor of the plaintiff on the ground that the plaintiff was guilty of contributory negligence as a matter of law.
The accident at issue occurred in June 2000, when Clarence W. Jenkins, Jr. was driving a pickup truck on State Route 259, a two-lane road, in Rockingham County. Daymion W. Pyles was driving a truck owned by his employer, Valley Implement Sales, Inc. (Valley), on the same road in the opposite direction. Pyles' truck was towing a six-row corn planter, which was 14 feet wide and extended a few feet into Jenkins' lane of travel. The corn planter collided with Jenkins' vehicle as the two trucks met and passed each other.
Jenkins filed a motion for judgment against Pyles and Valley (collectively, the defendants), alleging that he was injured because of Pyles' negligence in failing to keep his vehicle and the towed farm machinery under proper control in his designated lane of travel. The defendants filed grounds of defense denying that they were negligent and asserting that Jenkins' negligence caused the collision.
In a jury trial, Jenkins presented evidence that at the time of the accident, he was driving his pickup truck up a hill behind a large telephone service truck (the telephone truck) and was unable to see Pyles' truck and the corn planter in time to avoid the collision. Dean S. Webster, the Virginia State Trooper who investigated the accident, testified that at the point of impact, Route 259 has a "slight, gradual incline." He stated that each lane of the road is 12 feet wide, and that the corn planter was 14 feet wide and extended over the double solid line into Jenkins' lane of travel. Webster also stated that the telephone *406 truck traveling in front of Jenkins' vehicle was greater in height than Jenkins' pickup truck.
Sheldon Cline testified that at the time of the collision, he was operating a tractor-trailer truck directly behind Jenkins' truck. Cline stated, without objection, that he did not think Jenkins could see the corn planter because the telephone truck in front of Jenkins was greater in height and width than Jenkins' pickup truck. Cline also testified that his truck and Jenkins' truck were both moving up the hill at the time of the collision.
Jenkins testified that at the time of the accident, his truck was traveling up a hill between two and three truck lengths behind the telephone truck. He stated that the telephone truck suddenly "shot off the side of the road," and that three or four seconds later he collided with the corn planter. He stated that he was unable to see Pyles' truck or the corn planter because of the crest of the hill.
When Jenkins was asked by defense counsel whether he took any evasive action prior to the collision, Jenkins replied, "You can't avoid something you can't see, sir." Jenkins also testified that even if he had seen Pyles' truck and the corn planter, he would not have been able to avoid the collision because there was an embankment on his side of the roadway at that location.
Pyles testified that his truck had a "wide load" sign on its front bumper, and that the vehicle's four-way "flashers" were activated. He also stated that the corn planter had two orange warning flags mounted on each side. Pyles related that as he drove down the hill, he could see both the telephone truck and Jenkins' truck coming toward him. Pyles testified that after the telephone truck "slightly pulled off to the side of the road," Jenkins "drifted out, and it was too late" to avoid a collision with him.
Wayne E. Crider, the driver of the telephone truck, testified that he first saw the corn planter about 200 yards in front of him after his telephone truck crested the hill. He stated that he had "plenty of time" to slow down, move his truck to the side of the road, and bring the truck to a complete stop. Crider stated that he was "not sure," but estimated that the corn planter passed his telephone truck between three and five seconds after he had steered the truck off the road.
Crider could not see anything behind his telephone truck when he drove back onto the road, and he traveled about 50 yards farther before hearing a "crash." He also confirmed that his telephone truck was greater in height and width than Jenkins' truck, and that the corn planter extended at least two feet into Jenkins' lane of travel.
At the conclusion of the evidence, the jury returned a verdict in favor of Jenkins, awarding him damages of $65,137.40, the exact amount of his claimed medical and special damages. The defendants moved to set aside the jury verdict, arguing that the evidence established as a matter of law that Jenkins failed to maintain a proper lookout, and that reasonable persons could not disagree that his negligence was a contributing cause of the accident. Jenkins made a motion including a request for a new trial on the issue of damages only, contending that the jury verdict was inadequate as a matter of law.
The circuit court granted the defendants' motion and entered final judgment for the defendants. Jenkins appeals.
Jenkins argues that the circuit court erred in setting aside the jury verdict. He asserts that the issue of contributory negligence was a factual question for the jury to resolve based on the conflicting evidence. Jenkins emphasizes that he presented evidence that both the hill and the telephone truck impaired his ability to see Pyles' truck and the corn planter, and that the jury reasonably could have relied on this evidence in reaching its verdict.
Jenkins also argues that the circuit court erred in refusing to award a new trial on the issue of damages. He asserts that because the jury returned a verdict in the exact amount of his claimed medical and special damages, the verdict was inadequate as a matter of law under the holding in Bowers v. Sprouse, 254 Va. 428, 492 S.E.2d 637 (1997). Jenkins contends that if this Court awards *407 him a new trial, it should be limited to the issue of damages because the jury plainly decided the issue of liability against the defendants.
In response, the defendants concede that contributory negligence is ordinarily a question for the jury to decide, but argue that the circuit court properly set aside the jury verdict because reasonable minds could not differ that Jenkins' inattention contributed to the accident. The defendants contend that the evidence established as a matter of law that Jenkins failed to keep a proper lookout because Pyles' truck and the corn planter were in his plain line of sight.
Alternatively, the defendants argue that if this Court reverses the circuit court's judgment, a new trial should be ordered on all issues. The defendants contend that the issue of liability was not clearly decided by the jury verdict because in addition to the evidence of contributory negligence, the issue of primary negligence was contested and apparently affected the jury's determination of damages. We disagree with the defendants' arguments.
The circuit court's authority to set aside a jury verdict is explicit and narrowly defined. Carter v. Lambert, 246 Va. 309, 314, 435 S.E.2d 403, 405 (1993); Rogers v. Marrow, 243 Va. 162, 166, 413 S.E.2d 344, 346 (1992). Such authority may be exercised only if a jury verdict is plainly wrong or without credible evidence to support it. Cohn v. Knowledge Connections, Inc., 266 Va. 362, 366, 585 S.E.2d 578, 581 (2003); Shalimar Dev., Inc. v. FDIC, 257 Va. 565, 569-70, 515 S.E.2d 120, 123 (1999); Henderson v. Gay, 245 Va. 478, 480, 429 S.E.2d 14, 16 (1993); Lane v. Scott, 220 Va. 578, 581, 260 S.E.2d 238, 240 (1979); see Code § 8.01-430. Thus, if the evidence is conflicting on a material point, if reasonable persons may draw different conclusions from the evidence, or if a conclusion is dependent on the weight the fact finder gives to the testimony, a judge is not permitted to substitute his or her conclusion for that of the jury merely because he or she would have reached a different result. Cohn, 266 Va. at 366, 585 S.E.2d at 581; Shalimar Dev., 257 Va. at 570, 515 S.E.2d at 123; Henderson, 245 Va. at 480-81, 429 S.E.2d at 16; Lane, 220 Va. at 581, 260 S.E.2d at 240.
Because the jury's function is to determine the credibility of the witnesses and the weight of the evidence, and to resolve all conflicts in the evidence, we will reinstate the verdict on appeal if credible evidence supports the verdict. Hoar v. Great E. Resort Mgmt., Inc., 256 Va. 374, 378, 506 S.E.2d 777, 780 (1998); Carter, 246 Va. at 314, 435 S.E.2d at 405-06; Rogers, 243 Va. at 166, 413 S.E.2d at 346. In making this determination, we will give the recipient of the jury verdict the benefit of all substantial conflicts in the evidence, as well as the reasonable inferences that may be drawn from the evidence. Cohn, 266 Va. at 366, 585 S.E.2d at 581; Shalimar Dev., 257 Va. at 570, 515 S.E.2d at 123; Henderson, 245 Va. at 481, 429 S.E.2d at 16.
We also consider the familiar principles of law defining contributory negligence. Contributory negligence is an affirmative defense that must be proved according to an objective standard whether the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances. Sawyer v. Comerci, 264 Va. 68, 74, 563 S.E.2d 748, 752 (2002); Ponirakis v. Choi, 262 Va. 119, 124, 546 S.E.2d 707, 710 (2001); Artrip v. E.E. Berry Equip. Co., 240 Va. 354, 358, 397 S.E.2d 821, 823-24 (1990). The essential concept of contributory negligence is carelessness. Sawyer, 264 Va. at 74, 563 S.E.2d at 752; Ponirakis, 262 Va. at 124, 546 S.E.2d at 711; Artrip, 240 Va. at 358, 397 S.E.2d at 823-24.
The issue whether a plaintiff is guilty of contributory negligence is ordinarily a question of fact to be decided by the fact finder. Sawyer, 264 Va. at 74, 563 S.E.2d at 752; Hot Shot Express, Inc. v. Brooks, 264 Va. 126, 135, 563 S.E.2d 764, 769 (2002); Ponirakis, 262 Va. at 125, 546 S.E.2d at 711. The issue becomes one of law for the circuit court to decide only when reasonable minds could not differ about what conclusion could be drawn from the evidence. Hot Shot Express, 264 Va. at 135, 563 S.E.2d at 769; Love v. Schmidt, 239 Va. 357, 360, 389 S.E.2d 707, 709 (1990).
*408 In the present case, in holding that that Jenkins was guilty of contributory negligence as a matter of law, the circuit court stated:
Jenkins could offer no explanation as to why he did not see Pyles in the opposite lane of travel or why in the several seconds from when the [telephone] truck pulled to the right shoulder he saw nothing and made no effort to move his own vehicle to his right the one foot or less which would have avoided a collision.
Based on this analysis, the circuit court concluded that "reasonable [persons] could not differ ... that Jenkins failed to see what he should have seen and failed to act as a reasonable person would have acted for his safety."
We hold that this was not a proper basis for setting aside the jury verdict. The evidence was in conflict concerning Jenkins' ability to see Pyles' truck and the corn planter in the oncoming lane. As stated above, Jenkins testified that he was unable to see the oncoming truck and corn planter because of the hill Jenkins' truck was ascending at the time of the accident. Sheldon Cline, who was traveling directly behind Jenkins' truck, corroborated the fact that Jenkins' truck was moving up the hill at the time of the collision. There also was evidence that the telephone truck traveling in front of Jenkins' truck was greater in height and width than Jenkins' truck, and that the size of the telephone truck impaired Jenkins' ability to see the corn planter.
The jury reasonably could have concluded from this evidence that although Jenkins maintained a proper lookout, he nevertheless was unable to see Pyles' truck and the corn planter in time to avoid a collision because the hill and the telephone truck in front of him restricted his ability to see the oncoming traffic. Likewise, the jury was entitled to disregard the conflicting testimony and inferences that could be drawn concerning the location of the various vehicles and Pyles' line of sight at the time of the accident. Therefore, we hold that because reasonable persons could differ regarding whether Jenkins was guilty of contributory negligence, that issue was a question of fact for the jury and the circuit court erred in setting aside the verdict for Jenkins.
We are not permitted to reinstate the jury verdict, however, because the jury returned its verdict in the exact amount of Jenkins' claimed medical and special damages. Such a verdict is inadequate as a matter of law. Rice v. Charles, 260 Va. 157, 168, 532 S.E.2d 318, 324 (2000); Bowers, 254 Va. at 431, 492 S.E.2d at 639. We also observe that although the evidence of liability was contested and there was sufficient evidence to support a verdict in favor of either party, the jury awarded a substantial verdict in favor of Jenkins. Accordingly, we will reverse the circuit court's judgment and award Jenkins a new trial on the issue of damages only. See Rawle v. McIlhenny, 163 Va. 735, 750, 177 S.E. 214, 221 (1934).
For these reasons, we will reverse the circuit court's judgment, reinstate the verdict in favor of Jenkins as it relates to the issue of liability, and remand the case for a new trial limited to the issue of Jenkins' damages.
Reversed and remanded. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3848593/ | Argued May 23, 1933.
Lancaster, a city of the third class, owns its own water system supplying water to its citizens and, through water companies, to inhabitants of the suburbs. In 1931 the city decided to enlarge its plant and equipment by constructing additional storage facilities and a new and more efficient filtration plant; also to extend and improve its sewerage and drainage system by erecting a disposal plant, the latter pursuant to an order of the state department of health intended to prevent the use of the Conestoga Creek as an open sewer. Accordingly, after a report by its engineers and proper action by council, the electors authorized an increase of indebtedness in the sum of $3,250,000, to provide the moneys necessary to take care of both the water and sewerage systems. It was estimated that approximately $1,000,000 would complete the improvements to the former, the balance being necessary for the latter. It was decided by council that no new tax was to be levied to take care of the debt service charge resulting from this increase in debt, but provision was made in the ordinances for an issue of bonds to care for this charge through a lump sum to be taken from general taxes.
At the time the first million dollars was authorized by council, after the electors had voted in favor of the increase of debt, that body by ordinance created a new schedule of water rates repealing all former ordinances fixing rate schedules. The increase in rates ranged from 70% to 150% depending on the classification, or from a former gross total of $295,000 to an estimated gross return of $452,500. The actual billing for the first six months under the new rates was $239,000.
Appellee, a citizen and consumer, being dissatisfied with the rates, filed a bill charging the rates were unreasonable and asking the court below to enjoin their imposition *Page 162
and collection. The question involved was whether the municipality could make a profit from its water business. The ascertainment of a proper rate base was ignored. After hearing, the court struck out certain items included in operating charges, disallowed any profit and as the rates reflected these items it decreed the rates unreasonable and restrained their collection by the city. As the decree left the city without any water rates, a supersedeas was allowed which is still in force.
Municipal corporations are creatures of the State, created, governed and abolished at its will. They are subordinate governmental agencies established for local convenience and in pursuance of public policy. The authority of the legislature over all their civil, political, or governmental powers is, in the nature of things, supreme, save as limited by the federal Constitution or that of the Commonwealth. As Justice MITCHELL, speaking for the court, said in Com. v. Moir, 199 Pa. 534, 541: "They have no vested rights in their offices, their charters, their corporate powers, or even their corporate existence. This is the universal rule of constitutional law, and in no state has it been more clearly expressed and more uniformly applied than in Pennsylvania."1 *Page 163
While the foregoing statement of the law is true with respect to the absolute control of the legislature in matters coming within the sphere of a municipality's governmental functions and possibly as to all property acquired by reason thereof,2 the legislature's control of the property of a municipality acquired in its proprietary or private character
is another question. These powers, in their nature unlimited, are not conferred primarily or chiefly from considerations connected with the government of the state at large, nor of the municipality, but for the private advantage, comfort and convenience of the compact community which is incorporated as a distinct legal personality or corporate individual. As to such powers, and to the property acquired thereunder, and contracts made with reference thereto, the corporation is to be regarded quo ad hoc as a private corporation, or at least not public in the sense that the power of the legislature over it or the rights represented by it is omnipotent; all its property of a distinctly private character is fully protected by the constitutional provision protecting private property of an individual or private corporation: New Orleans v. New Orleans Water Works, 142 U.S. 79; Dillon, Municipal Corporations (5th ed.), volume 1, section 109, page 182; McQuillin on Municipal Corporations (2d ed.), volume 1, section 238, 239.3 *Page 164
The municipal corporation is regarded as trustee for the inhabitants of the territory embraced within its limits.
Though a municipality has no vested right in the powers conferred for governmental purposes, and the public moneys raised through such functions (taxes) are subject to the primary powers of the state to control and make appropriate provision therefor, revenues derived in its private capacity, as a return from its water or other utility works, are trust funds and cannot be controlled or taken directly for state purposes. See Board of Commrs. v. Lucas, 93 U.S. 108; People v. Ingersoll, 58 N.Y. 1; Cary Library v. Bliss, 151 Mass. 364,25 N.E. 92. This is so even if such revenues were to be used for public purposes; they fall within the protection of the 14th Amendment.4 They may be taxed as other similar receipts are taxed: Com. v. P. R. T. Co., 287 Pa. 70. The revenues of a municipality from the property thus owned in its private and proprietary character are for the beneficiaries.
Property employed by a municipality in furnishing *Page 165
water to its inhabitants is not used for governmental purposes, and in its ownership and operation the municipality acts in its proprietary character,5 and as this court has already pointed out in The Western Savings Fund Society v. City of Phila.,31 Pa. 175, Ibid. 185, the power of the legislature in relation to the water works of a municipality is not "omnipotent." But the protection of Amendment 14 of the federal Constitution prohibiting the deprivation of property without due process of law, does not limit the authority of the legislature to regulate and control, through rates and allied subjects, this or other species of private property devoted to public use even though owned by a municipality. This power of control is inherent in the state in its soveregin capacity, exercised for the public welfare under its police power.
This power of regulation and control is exclusively a legislative matter.6 Where a state constitutes a commission *Page 166
with general powers of regulation over utilities, it includes all such bodies, municipal or otherwise, unless there is definite classification and exemption therefrom. In this State, municipalities as a class are specifically exempted from the Public Service Act, with certain stated exceptions: Barnes Laundry Co. v. Pbg., 266 Pa. 24. See Springfield G. E. Co. v. Springfield, 257 U.S. 66.
Municipally owned utilities, in the matter of rates and their regulation, are controlled by the courts under the Act of June 16, 1836, P. L. 1835-6, 785, 790, section 13. We held in Barnes Laundry Co. v. Pbg., supra,7 that this act granted to the courts of common pleas broad chancery powers, and that the right of review of municipal water rates came within the jurisdiction of these courts. The right to originally fix rates of municipally owned plants is given to the municipality under some form of authority, and our power to regulate such rates or determine their reasonableness must come to us direct from the legislature; we cannot assume such power, though at common law redress could be had for unjust discrimination, *Page 167
overcharges and other similar matters.8 No greater power is, or can be, given to the courts in the matter of the regulation of rates as to their reasonableness than the legislature itself possessed, nor can we, any more than the legislature, make orders contrary to the federal Constitution.
After considering all the cases and the enabling acts under which these water works are constructed, under what guise could the legislature or the courts prohibit a municipal water plant from making a profit? If the legislature or the courts could deprive a plant owned by the municipality of a fair return which includes a profit, they could prevent a privately owned water company from earning a profit or a fair return. Assuredly, the legislature, or a commission through them, has no such power and it could not prevent a municipality from earning a fair return. If it cannot, from what source do the courts get the power so to do unless they arrogate it to themselves or the enabling acts empowering the city to build or acquire such property limited their right to earn a profit? The limit of our power is (a) to prevent abuse in the exercise of the police powers by rate reviewing bodies, (b) not to abuse that power ourselves in reviewing rates of municipalities when the power of regulation is left to the court. We cannot abuse the power to regulate municipal rates so as to work confiscation of property or discrimination against users. We may, under the police power, for the public welfare, pursuant to the Act of 1836, restrict profits to a fair return or, in other words, bring profits through fair return within the *Page 168
zone of reasonableness. This is the function of courts and it must be left to the municipal authority to fix the rates which the municipality may receive, with the right of redress in the electorate-taxpayers if their managers do not act as they desire in the matter of profits.
The fundamentals of municipal ownership of a water plant are common convenience, efficiency, quality and low cost of the commodity to the consumer. Water, like air, is a necessity of life, and from a municipally owned plant, in theory at least, should come to the consumer without profit to the seller as such term is understood in the utility field, but such theory does not exclude the idea of profit, as we have recognized in our decisions: Rieker v. Lancaster, 7 Pa. Super. 149; Consol. Ice Co. v. Pbg., 274 Pa. 558, 562; Farnham on Water Rights, volume 1, section 162, page 855. This is generally conceded in other jurisdictions,9 especially where, as in this case, the enabling act contains no limitation.
There are, of course, differences between a private water concern and a municipally owned water system in the matter of profits. These exist because of the difference in the character of ownership and of methods of financing. These are matters which concern the persons *Page 169
affected. In whatever light we may regard this ownership whether in the municipality as trustee for its taxable inhabitants or in such inhabitants, there can be no division of profits. Where a large amount of capital is necessary for a city water system, it must be raised by borrowed money, the repayment of which must be made in the first instance by the citizens through taxation. A privately owned water company, on the other hand, may dispose of its profits among its shareholders, and its plant is wholly responsible for its funded debt. In general, however, the business of supplying water by a municipality must be regarded and dealt with in the same manner as that of a private corporation. Should the supplying of water be determined to be a governmental function, inevitably there would follow endless confusion in the administration of the basic principles underlying the same business in the identical matter of rates, and also in other public and private relations which come before the courts.
In determining the amount of profit a municipality may receive, a rate base must be found. That base is the fair value of all the property used and useful in the business. It is only upon a fair value that the question of reasonable or oppressive rates can be determined. When the entire scheme of municipal water rates is under review by a court, it cannot tell whether the "acts" of the municipality are "contrary to law, prejudicial to the interests of the community or the rights of individuals" (Act of 1836), without a knowledge of the value of property involved. Under such review, the cost of operating the plant cannot be made the sole basis for rates as was done by the court below. Aside from profit, there are too many other elements that must be provided for in return, as, for illustration, depreciation, which cannot be provided for unless it is known what is to be depreciated. In supplying water to corporations and individuals outside the city, the applicable rates are subject to the jurisdiction of the public service commission though prescribed *Page 170
by city ordinance; and the law requires the fair value standard to sustain such charges.
The determination of the fair value of a municipality's water system must be made in the same manner as that of a private corporation. See Ben Avon Boro. v. Ohio Valley Water Co.,68 Pa. Super. 561; also Ibid. 271 Pa. 346; and the vast number of cases since decided: Los Angeles G. E. Corp. v. R. R. Comm., 289 U.S. 287.
The burden was on appellee to submit proof as to this value when challenging all municipal water rates as unreasonable in equitable proceedings; he failed to sustain the burden of proof. If the proceeding involved a privately owned utility before the public service commission, the effective date of an increase in rates determines where the burden of proof lies: Suburban Water Co. v. Oakmont Boro., 268 Pa. 243. There is no such rule in equity where rates are challenged as here. The court, however, may require the city to furnish to complainants' engineers a complete inventory of plant equipment, water mains, where the same is situated or located, its cost and all items entering into value. Taxpayers having an interest, similar in this regard to shareholders, may compel such disclosures where the charge is, as here, mismanagement.
The city did produce some evidence as to cost value, but it was not sufficient to permit finding a rate base or the fair value of the property. The running accounts submitted may contain many items of value which, through obsolescence, depreciation, or because no longer useful, should be eliminated. In determining any value, accrued depreciation should be deducted: Knoxville v. Knoxville Water Co.,212 U.S. 1, 10. In fixing the fair value of the entire property, the value of that part which may be allocated to service outside the city must be ascertained and deducted therefrom. While the public service commission has power to determine that value, where the commission has not acted on an application like the present one, the court hearing the case has power to ascertain *Page 171
the value of the property used and useful in connection with the service outside the city, and may deduct such value from the value of the entire property. The balance remaining after this deduction will be the rate base for charges within the city.
Coincidently with determining the fair value of the property, the cost of operating the plant must be ascertained. It includes all charges or expenses involved in the production, supply and distribution of the commodity. This embraces among other items mentioned not only the salaries or wages of all persons employed directly by the city, but also a just portion of the salaries of elective officers whose time is engaged in that business. Such expenses as telephone, insurance, printing, stationery, etc., connected with supply and distribution must be given a place. All taxes, whether on the plant as such, or on any bonds that may be properly allocated as an indebtedness against the plant should be taken into consideration and allowed for. When this figure is ascertained in a given sum, a proportionate part of these expenses must be allocated to the business or service outside the city, and the balance must be provided for by rates within the city. A depreciation charge should also be provided for.
If this were a private water company and a sum sufficient had been found to cover operating expenses and contingencies, there would be allowed in addition a fair return on the present value of the property. It would be a lump sum representing a given percentage on the fair value. That is the fair return to investors. This fair return must take care of such items as interest and sinking fund on funded or other debts and dividends. No allowance in rates is specifically made for such items. It has happened, in cases before the public service commission, that the fair value may be less than the capital invested; indeed, sometimes less than its funded debt. These are occasioned through extravagant outlay or over capitalization. The public does not underwrite such extravagance *Page 172
and rates cannot properly be based thereon or on the debt service necessary to meet it.
Fair return to a municipality should not exceed that allowed private concerns and may be less as the municipal authorities decide. If they determine not to make a profit or a profit less than ordinary, fair return may properly include consideration of such items as debt service charge to the extent the value of the property warrants. With this in mind, a return may be allowed which will compensate the city for any debt service charge on any funded debt, the money from which was used directly in building or improving the water system. This charge would include a portion of an allied indebtedness with which the water system is inseparably connected and which is necessary to the water system's successful operation though such indebtedness, in addition, has in fact been devoted to other uses such as a sewerage system. While under the Constitution such debt service charges are imposed directly on taxable property there is no reason why the municipal authorities cannot reimburse the general revenues for these expenditures by a fair return from the water system. In fact, section 15, of article IX, of the Constitution, seems to contemplate such steps. This places the paying burden where it belongs. A certain portion of this debt service should be allocated to that portion of the plant used and useful for outside consumers.
The difficulty arising from fixing a return in excess of these items does not come from its receipt, but its administration or disbursement. No difficulty would arise if the consumers and the use of the commodity bore an equitable relation to the taxpayers and the value of their property since such profits might then be equally distributed in the payment of governmental expenses generally. But the price for the use of water depends, as it should, on the quantity used. It is easily conceivable that profits may be used so as to work gross discrimination or preference among taxable inhabitants. For illustration: *Page 173
The City of "X," with 10,000 population, owns its own water system from which it has a profit of $50,000 yearly. The annual budget for the city's governmental expenses is $150,000, of which $100,000 is raised by taxation, the balance paid by the profit realized from its water consumers, inhabitants and taxpayers. Among its taxable inhabitants is a corporation which is assessed with nine-tenths of the total value of property within the city. It has its own water supply, is not a consumer, nor is it in any other way burdened for anything on account of the water system. It is manifest that the use of these profits to pay the balance of the city's governmental expenses, is equivalent to a gift to this company since ordinarily it would be required to make up part of the governmental expense by a tax. While the illustration is broad, it may be reduced to smaller units, and we merely mention it to emphasize what is to follow. Water rates are simply charges for a commodity sold as any others sell commodities: Barnes Laundry Co. v. Pbg., supra. They are not a substitute for taxes.
While it is our considered judgment that this court does not have the power to deprive a municipality from making a profit in its water business, we can lay down some rules with regard to the use of the profits. The city should not make profits the basis for manifestly unreasonable discrimination or preference in the tax burdens. In this connection the use of the profits from service outside the city is within the control of the authorities and may be used generally for any purpose. Ordinarily the purpose for which any profits are used is within the sound discretion of the municipal authorities, and this discretion will not be interfered with unless it is abused.
When that question is considered, courts will be confronted with the analogous problem that always arises in connection with municipal endeavors or municipal improvements. In all of these endeavors, some discriminations and some preferences must be made against one portion of the community for the apparent sole benefit *Page 174
of another. Take for illustration the paving of highways. While the property owners adjoining the highway pay a certain portion of its cost, the taxable property of the city as a whole is made to bear a part of that burden. This is on the theory that there is a general benefit, but, it does not obviate the fact that the great benefit comes to the property owners immediately adjoining the improved street. It is clearly within reason that the particular street paved may never be used or scarcely ever used by the property owners in a distant part of the city. This is within the necessary theory of government. These benefits cannot always be worked out equally, and so in the use of profit from the supply of water, unless manifest injustice is shown, courts will not interfere. Municipal authorities, if they determine to make a profit, and that matter is solely within their control, should bear in mind that municipal ownership implies the furnishing of water at the lowest cost possible, consistent with efficiency, service, quality of the commodity and the preservation of the plant; and profits should not be used to create manifest preference or discrimination among other taxpayers. We leave this admonition with the municipal authorities, noting again that the power of this court comes only through the regulation of the rates.
We summarize from the record as follows: (a) The present fair value of the entire plant should be ascertained and that part used or useful in service outside the city deducted.
(b) A sum should be ascertained to cover operating expenses and contingencies; there should be deducted from it that portion necessary for service outside the city.
(c) A depreciation charge should be set up.
(d) It must then be ascertained whether the rates as fixed after allowing for (b) and (c) yield more than the fair return permitted on the present value of the plant to incorporated water companies as fixed by the public *Page 175
service commission and this court (see Ben Avon Boro. v. Ohio Valley Water Co., supra). If it does, the amount of return allowable should be stated, and the city should be directed to adopt a schedule of rates within that sum and items (b) and (c).
(e) Debt service charges, as discussed, may be compensated from such return.
(f) Governmental expenses may be paid from the residue unless it manifestly prejudices a portion of the taxpayers.
The decree of the court below is reversed, and the record is remitted with directions to proceed in accordance with this opinion.
1 Phila. v. Fox, 64 Pa. 169, 180-1, SHARSWOOD, J., said: "The City of Philadelphia is a municipal corporation, that is, a public corporation created by the government for political purposes, and having subordinate and local powers of legislation. . . . . . It is merely an agency instituted by the sovereign for the purpose of carrying out in detail the objects of government, essentially a revocable agency, having no vested right to any of its powers or franchises, the charter or act of erection [creation?] being in no sense a contract with the State, and, therefore, fully subject to the control of the legislature who may enlarge or diminish its territorial extent or its functions, may change or modify its internal arrangements or destroy its very existence with the mere breath of arbitrary discretion. . . . . . The sovereign may continue its corporate existence and yet assume or resume the appointments of all its officers and agents into its own hands; for the power which can create and destroy can modify and change."
2 "Where property is held by a municipal corporation purely as an agent of the State in the exercise of its governmental functions, such municipality only holds the title thereto as trustee for public and governmental purposes, and the State has the right, if it desires, to change the trustee, and may do so by transferring the property to another governmental agency for the same purpose, without compensation to the municipality and without imposing upon the new agency any obligation to pay debts incurred by the municipality in acquiring the property": Dillon on Municipal Corporations (5th ed.), volume 1, section 115, page 196.
3 People v. The Common Council of Detroit, 28 Mich. 227, in a case involving a compulsory statute requiring the City of Detroit to erect fountains and improve and embellish a park for the recreation and enjoyment of its citizens, COOLEY, J., states: "As to the property it thus holds for its own private purposes, a city is to be regarded as a constituent in state government, and is entitled to the like protection in its property rights as any natural person who is also a constituent. The right of the State as regards such property, is a right of regulation, and though broader than exists in the case of individuals, is not a right of appropriation. The constitutional principle that no person shall be deprived of property without due process of law, applies to artificial persons as well as natural, and to municipal corporations in their private capacity, as well as to corporations for manufacturing and commercial purposes. . . . . .
"Whoever insists upon the right of the State to interfere and control by compulsory legislation the action of the local constituency in matters exclusively of local concern, should be prepared to defend a like interference in the action of private corporations and of natural persons."
See Higginson v. Slattery, 212 Mass. 583, 99 N.E. 523.
4 State v. Barker, 116 Iowa 96; Small v. Danville, 51 Me. 359; Higginson v. Slattery, supra; People v. Common Council of Detroit, supra; Helena Water Co. v. Steele, 20 Mont. 1,49 P. 382; Western Savings Fund Society v. Phila., 31 Pa. 175; Montpelier v. East Montpelier, 27 Vt. 704; Town of Milwaukee v. City of Milwaukee, 12 Wis. 94.
5 Pub. Ser. Com. v. Helena, 52 Mont. 527, 159 P. 24, following Helena Consolidated Water Co. v. Steele, supra; Blades v. Detroit Water Commrs., 122 Mich. 366, 81 N.W. 271; Kenton Water Co. v. Covington, 156 Ky. 569, 576, 161 S.W. 988; Covington v. Com., 19 Ky. Law R. 105, 107, 39 S.W. 836. See State v. Andresen, 75 Or. 509, 147 P. 526, 529; Russell v. Tacoma,8 Wn. 156; West Bend v. West Bend Heating Lighting Co.,186 Wis. 184, 202 N.W. 350. This principle has been adopted by this court: Am. Aniline Prod. v. Lock Haven, 288 Pa. 420; Central Iron Steel Co. v. Hbg., 271 Pa. 340; Girard Life Ins. Co. v. Phila., 88 Pa. 393.
6 "In Relief Elec. L., H. P. Co.'s Petition, 63 Pa. Super. 1,8 [it was said], 'The power to regulate and control belongs to the legislature and by it may be delegated to a commission,' citing Railroad Commission Cases, 116 U.S. 307,336; Atlantic Coast Line v. North Carolina Corp. Comm.,206 U.S. 1, 19; Stanislaus Co. v. San Joaquin C. I. Co.,192 U.S. 201, 207, 208": Com. v. Benn, 284 Pa. 421, 435. In Terminal R. R. Assn. v. U.S., 266 U.S. 17, at 30, it is stated: "The making of rates is a legislative and not a judicial function: Keller v. Potomac Elec. Co., 261 U.S. 428, 440; Ohio Valley Co. v. Ben Avon Boro., 253 U.S. 287, 289 . . . . . .," but within a few lines it is recognized that the reasonableness of the rates fixed may be considered by the court after proper application to the commissioners has been made.
7 The courts under the act have never attempted a review of an entire rate schedule of a municipality. When they do they become a fact finding administrative body at the same time exercising that "independent judgment" necessary in determining the question of confiscation under the 14th Amendment. We have passed on: May the municipality impose any water rates? (Jolly v. Monaca Boro., 216 Pa. 345); may it insist upon meter rates? (Consolidated Ice Co. v. Pbg., 274 Pa. 588); may it charge more outside than within its limits? (Youngman v. Erie Water Commrs., 267 Pa. 490); may it establish ready to serve charges? (Central Iron Steel Co. v. Hbg., 271 Pa. 340); may it serve water to some and refuse it to others similarly situated? (Reigle v. Smith, 287 Pa. 30); may it agree to give free water to a manufacturing establishment? (American Aniline Prod. Co. v. Lock Haven, 288 Pa. 420.) See also Leechburg Boro. v. Water Works Co., 219 Pa. 263; Turtle Creek v. Penna. Water Co.,243 Pa. 401; Mechanicsburg Boro. v. G. W. Co., 246 Pa. 232.
8 Louisville Nashville R. Co. v. Walker, 110 Ky. 961,63 S.W. 20; McCallum v. Minneapolis, etc., R. Co., 129 Minn. 121,151 N.W. 974; McGregor v. Erie Ry. Co., 35 N.J.L. 89; Lough v. Outerbridge, 143 N.Y. 271; Harmony v. Bingham, 12 N.Y. 99; Hardaway v. So. Ry. Co., 90 S.C. 475, 73 S.E. 1021; Parker v. Great Western Ry., 7 Man. G. 253; Panton v. Duluth Gas
Water Co., 50 Minn. 175, 52 N.W. 527; St. Louis Brewing Assn. v. St. Louis, 140 Mo. 419, 37 S.W. 525; American Brewing Co. v. St. Louis, 187 Mo. 367, 86 S.W. 129.
9 Wagner v. Rock Island, 146 Ill. 139, 21 L.R.A. 518, 34 N.E. 545; Preston v. Water Commrs., 117 Mich. 589, 76 N.W. 92; Twitchell v. Spokane, 55 Wn. 86, 104 P. 150, 24 L.R.A. N. S. 290; In re Sparta, 12 Wis. R. C. R. 532, 535-7; Re Kenosha, P. U. R. 1918 D. 751; Skogwo v. River Falls, P. U. R. 1917 E. 964; City of Cincinnati v. Roettinger, 105 Ohio St. 145,137 N.E. 6; Alcorn v. Dickebach, 31 Ohio Appellate Reports 142, 28 Ohio L. Rep. 415; Re Bluffton, P. U. R. 1921 B. 716; Re Frankfort, P. U. R. 1920 C. 551; Apple v. Brazil, P. U. R. 1915 C. 561; Re Goshen, P. U. R. 1919 B. 525; Re Linton, P. U. R. 1921 E. 295; Booth v. Brookfield, P. U. R. 1917 D. 224. There are some contrary opinions, but most of them are based on statutes or deal with particular situations: Feil v. City of Coeur d'Alene, 23 Idaho 32, 129 P. 643, where the question was the constitutional limit of indebtedness; Uhler v. Olympia,87 Wn. 1, 151 P. 117; Texas Electric and Ice Co. v. Vernon,266 S.W. 600. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/26125/ | UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41327 through 01-41335
No. 01-41366 (Consolidated)
No. 01-11481 (Consolidated)
No. 01-51209 (Consolidated)
No. 01-51241 (Consolidated)
BILLY ARNOLD, JR., ET AL.,
Plaintiffs - Appellees,
VERSUS
GARLOCK, INC.,
Defendant - Appellant.
Appeals from the United States District Court
for the Southern District of Texas, Corpus Christi
December 28, 2001
Before DeMOSS, PARKER and DENNIS, Circuit Judges
ROBERT M. PARKER, Circuit Judge:
Before us are 37 nearly identical motions by the Appellant,
Garlock, Inc. (“Garlock”), to stay the proceedings of various
district courts throughout the four federal districts in Texas
pending Garlock’s intended appeal. Having reviewed the various
motions, which we treat as a single motion, the appellees’
1
responses and the amici1 briefs filed in the case, we deny
Garlock’s motion.
I. Background.
The cases before us were all originally brought as personal
injury tort or wrongful death (“PITWD”) claims by various
plaintiffs against a group of co-defendants which is, by and large,
similar in each case. The plaintiffs’ claims arise from exposure
to asbestos in one manner or another. The result of this exposure
has allegedly led to a plaintiffs’, or a plaintiffs decedents’,
developing one or more forms of respiratory disease leading to
severe health problems or death.2 The defendants, including
1
Two amici briefs have been filed. The first was “Brief Amici
Curiae of Baron & Budd, P.C. and Provost Umphrey in Opposition to
Garlock’s Motion to Stay” purporting to represent the interests of
“thousands of victims of asbestos-related disease with cases
pending in the state courts of Texas and elsewhere” who could be
adversely affected by a stay in Garlock’s case. The second was
“Memorandum of Amicus Curiae the Official Committee of Asbestos
Claimants of Federal-Mogul Global, Inc., in Response to Garlock
Inc.’s Motions for a Stay Pending Appeal,” also arguing that a stay
in asbestos litigation would adversely affect plaintiffs in other
cases and is not warranted here as a matter of law.
2
As of December 13, 2001, appellees asserted that they
collectively numbered 82 individual plaintiffs and that the
diseases involved in their various lawsuits included:
7 Living plaintiffs with asbestos-related mesothelioma;
18 Plaintiffs’ decedents with asbestos-related mesothelioma;
17 Living plaintiffs with asbestos-related lung cancer;
26 Plaintiffs’ decedents with asbestos-related lung cancer;
4 Living plaintiffs with asbestos-related laryngeal or
esophageal cancer;
3 Plaintiffs’ decedents with asbestos-related laryngeal or
esophageal cancer;
6 Living plaintiffs with asbestosis;
1 Living plaintiff with asbestos-related pleural disease.
See Appellees’ Additional Response to Appellant’s Motion for Stay
2
Garlock, number from about 40 to over 60 in the various individual
cases. Their commonality is to be, or to have been, in a business
either producing or making use of asbestos.3 In each of the
instant cases, both Garlock and Gasket Holdings, Inc. (“Gasket
Holdings”), a subsidiary of Federal-Mogul, Inc. (“Federal-Mogul”),
were named as co-defendants, among the many others. All of the
cases were originally filed under Texas state law in Texas state
court without implicating federal jurisdiction.
In October 2001, Federal-Mogul filed for protection pursuant
to reorganization under Chapter 11 of Title 11 of the United States
Code, in bankruptcy. Federal-Mogul included each of its 156
affiliates and subsidiaries, including Gasket Holdings, in the
Chapter 11 filing. All of the bankruptcy cases were filed in the
United States Bankruptcy Court for the District of Delaware.
Pending Appeal (hereinafter, “Appellees’ Additional Response”) at
2. Motions in additional cases have been filed since these figures
were compiled.
3
The specifics of the claims in these cases are not in the record
before us because we are considering only whether to place a stay
on the various proceedings to permit a formal appeal and review of
the individual records on appeal. There have been hundreds of
thousands of asbestos-related lawsuits brought in Texas and
throughout the country in the last three decades, however. A
typical claim asserts that the numerous “named defendants either
made, sold, marketed, brokered, imported, specified or used
asbestos-containing products in Texas which were defective and
unreasonably dangerous as designed, manufactured and marketed.”
See, e.g., Broyles v. U.S. Gypsum Co., 266 B.R. 778, 780 (E.D. Tex.
2001). The claims then generally assert causes of action for
“negligence, gross negligence, fraud, deceit, misrepresentation,
battery and defective products theories under Texas state law.”
Id. at 780-81.
3
In mid October, Garlock began systematically removing asbestos
cases in which Garlock and Gasket Holdings appeared as co-
defendants. Garlock asserted that because the Federal-Mogul group,
including Gasket Holdings, was in bankruptcy and because Garlock
had made a claim for contribution under Texas state law4 against
Gasket Holdings, invoking federal jurisdiction was appropriate
because the contribution claim was “related to” a claim under Title
11 in accordance with 28 U.S.C. § 1334(b). Garlock therefore
proceeded with removal actions in several federal district courts
throughout Texas. Besides the 37 cases now before us, Garlock
removed about 40 similar cases in the federal districts of Texas.
In each of the 37 instant cases,5 Garlock moved in the
respective district court for the entire case to be transferred to
the United States District Court for the District of Delaware under
28 U.S.C. § 157(b)(5). Such a transfer would permit that district
court to determine the appropriate venue, either itself or the
federal district court in which the respective action arose
originally, in which to adjudicate the PITWD claims against the
debtor and against Garlock as a non-debtor co-defendant who asserts
4
See TEX. CIV. PRAC. & REM. CODE §§ 32.001-003, 33.001-004, 011-017.
5
In Garlock’s haste to remove cases to federal district court,
it removed a case in which Garlock and the plaintiffs had already
reached a settlement. That erroneously removed case, filed as
Smith v. Able Supply Co., Civil Action number G-01-673 in the
United States District Court for the Southern District of Texas,
Galveston Division, was included in Garlock’s flurry of motions to
stay under Fifth Circuit Case No. 01-41370. Garlock has since
filed a notice of withdrawal of appeal in this one case.
4
a claim for contribution against the debtor.
The plaintiffs in every such removed case uniformly responded
with a motion to dismiss debtor Federal-Mogul/Gasket Holdings
(hereinafter, “debtor”) as a defendant, a motion to sever any
remaining claims against the debtor and a motion for the district
court to exercise mandatory or discretionary abstention or to
remand for lack of subject matter jurisdiction or for equitable
reasons. The district judge in each case ruled for the plaintiffs
and either dismissed the debtor as a defendant or remanded the
remainder of the case to Texas state court or both. The 37 cases
now under emergency motion for stay to this court originated in the
Corpus Christi Division and Galveston Divisions of the Southern
District, the Beaumont and Paris Divisions of the Eastern District,
the Dallas Division of the Northern District, and the San Antonio
and Austin Divisions of the Western District.
The district court in Corpus Christi dismissed the debtor with
prejudice, severed all remaining claims against the debtor and
transferred them under 28 U.S.C. § 157(b)(5) to the United States
District Court for the District of Delaware, and remanded all
remaining claims to Texas state court for lack of subject matter
jurisdiction under 28 U.S.C. § 1447(c) and/or for equitable reasons
under 28 U.S.C. § 1452(b). The district court made no ruling
regarding either mandatory or discretionary abstention.
The district court in Dallas referred to the Corpus Christi
5
court’s reasoning as “unassailable” and entered an order with
identical results.
The district court in Galveston determined that bankruptcy
subject matter jurisdiction under 28 U.S.C. § 1334(a) and (b) did
not exist and that the case had been improperly removed under 28
U.S.C. § 1452(a). The court therefore remanded the entire case and
all parties to Texas state court for lack of subject matter
jurisdiction.
The district court which ruled in the Beaumont and Paris
Division cases held that Garlock’s claim for contribution was
“scantily asserted” and unsupported, and even if real, was so
tenuously related to the debtor’s bankruptcy case as to be
virtually immaterial. The court remanded for lack of subject
matter jurisdiction under § 1447(c) and alternatively for equitable
reasons under § 1452(b).
The district court in San Antonio cited the decisions of
several other federal district courts, including the Corpus Christi
district court, and determined that subject matter jurisdiction did
not exist, remanded its cases on that basis alone and dismissed the
plaintiffs’ motions to sever as moot.
The district court in Austin severed all claims against the
debtor and transferred them to the District of Delaware under §
157(b)(5) and remanded all other claims to the Texas state court.
Following each of the district courts’ rulings, which occurred
between November 9 and December 5, Garlock filed a notice of appeal
6
and moved in the respective district court for a stay of the
court’s order pending appeal. Some of the district courts issued
a denial and some had not yet ruled on Garlock’s stay motion;
regardless, Garlock filed emergency motions to stay the respective
district courts’ orders under FED. R. APP. P. 8 before this court.6
Garlock asserts that it is not attempting to appeal an
unappealable order of remand. Instead, Garlock states that it is
appealing the “appealable” orders of the various district courts,
including the inherent denials of Garlock’s transfer motion under
§ 157(b)(5), any decision to abstain and any dismissal of the
debtor. In so doing, Garlock claims that the “automatic stay”
feature of 11 U.S.C. § 362, relating to cases in bankruptcy, not
only stayed all actions against the debtor when it filed for
bankruptcy, but that it stayed all related actions before the
various district courts as well. Garlock further contends that the
10-day automatic stay of judgment under FED. R. CIV. P. 62 should
have prevented the clerks of the district courts from certifying
the remands back to state courts before Garlock could perfect its
appeal. Some of the district clerks’ offices mailed certified
copies of the remand orders either before or after Garlock’s notice
6
Initially, Garlock filed documents titled “Petition for Writ of
Mandamus to the United States District Court for the Southern
District of Texas [Corpus Christi Division] and Petitioner’s
Emergency Motion for Stay Pursuant to Federal Rule of Appellate
procedure 8(a)(1) Pending Appeal.” In later actions, Garlock has
simply filed an “Emergency Motion for Stay Pending Appeal” from one
or another federal district court. We treat all of Garlock’s
motions as motions for stay.
7
of appeal; some have not yet certified the remand.
What Garlock seeks, essentially, is a procedural path that
would invalidate the clerks’ certification of remand and freeze
further action in the district courts while permitting Garlock to
perfect its appeal on the § 157(b)(5) transfer issue, without
frontally challenging an unappealable remand order. On the basis
of such a transfer, Garlock contends, it seeks a fair and
consolidated proceeding for all parties.
The appellees bring a different view to this court. They
contend that Garlock’s true intent is simply to delay any
proceeding against it for as long as possible. Such a dilatory
intent, appellees contend, will have a devastating effect on them,
some of whom are dying.
Appellees further contend that Garlock’s dilatory intent is
focused solely against these appellees because they have refused to
enter into any standardized settlement plan or agreement such as
those allegedly arranged between Garlock and other law firms
engaged in asbestos litigation. It is true that Garlock has
brought no other, similar case to this court on motions to stay or
transfer except those in which the appellees’ counsel appears for
the plaintiffs. On that basis, counsel characterizes Garlock’s
interest not as an attempt to legitimately pursue a coordinated
remedy under the bankruptcy law but as a cynical attempt to
minimize its exposure with a law firm which “treats each case
individually and attempts to achieve maximum value for its
8
clients.” See Appellees’ Additional Response at 3.
Because of the “emergency” nature of Garlock’s motions, we
implemented a temporary stay in each case to provide sufficient
time to fairly consider whether a formal stay pending appeal should
issue. We have determined that no such stay should issue and, by
this order, dissolve the temporary stays.
Our decision in this case is predicated on two primary bases.
First, that Garlock does not have a valid claim for contribution
against Federal-Mogul or its associated business, Gasket Holdings,
upon which to assert “related to” jurisdiction under the bankruptcy
laws. Second, we find that Garlock has not otherwise met the
elements necessary to obtain a discretionary stay pending appeal by
this court. We will address each point raised in this complex
matter.
II. Jurisdiction, Stays, Transfer of Claims, and Effect of Remand.
We will examine the basis for federal bankruptcy jurisdiction
and the framework of Garlock’s contentions therein.
A. Removal Authority and “Related To” Jurisdiction.
Authority to remove a case relating to a case under title 11
resides in 28 U.S.C. § 1452(a):
A party may remove any claim or cause of action in a
civil action other than a proceeding before the United
States Tax Court or a civil action by a governmental unit
to enforce such governmental unit’s police or regulatory
power, to the district court for the district where such
civil action is pending, if such district court has
jurisdiction of such claim under section 1334 of this
title.
9
Title 28 U.S.C. § 1334(a) provides that “the district courts
shall have original and exclusive jurisdiction of all cases under
title 11.”
Certain matters related to the debtor’s bankruptcy may be
included within the ambit of federal bankruptcy jurisdiction under
28 U.S.C. § 1334, et seq. Specifically, “[n]otwithstanding any Act
of Congress that confers exclusive jurisdiction on a court or
courts other than the district courts, the district courts shall
have original but not exclusive jurisdiction of all civil
proceedings arising under title 11, or arising in or related to
cases under title 11.” See id. § 1334(b).
As the United States Supreme Court has noted, “related to”
bankruptcy proceedings include (1) causes of action owned by the
debtor which become property of the estate pursuant to 11 U.S.C. §
541, and (2) suits between third parties which have an effect on
the bankruptcy estate. Celotex Corp. v. Edwards, 514 U.S. 300, 308
n.5 (1995). Garlock’s asserted claim for contribution against the
debtor falls into the second category.
Most of the federal circuits, including the Fifth Circuit,
derive their “related to” jurisprudence from Pacor, Inc. v.
Higgins, 743 F.2d 984 (3rd Cir. 1984). See Celotex, 514 U.S. at
308 n.6. In Pacor, the Third Circuit determined that a third-party
controversy not directly involving a debtor in bankruptcy was not
related to the bankruptcy, but was, at best, a precursor to a claim
10
against the debtor. See Pacor, 743 F.2d at 995. The Third Circuit
so ruled on the basis that any judgment between the two third
parties could not have any preclusive effect by either res judicata
or collateral estoppel against the debtor, who would be free to
relitigate any claim brought against it. Id. Thus, “related to”
jurisdiction would not come into play until a litigant brought a
direct claim under bankruptcy jurisdiction based on the result of
the prior judgment.
Within the Fifth Circuit, the test for whether a proceeding
properly invokes federal bankruptcy jurisdiction is the same as the
Third Circuit’s Pacor test, namely, whether “the outcome of that
proceeding could conceivably have any effect on the estate being
administered in bankruptcy.” In re Canion, 196 F.3d 579, 585 (5th
Cir. 1999). Certainty, or even likelihood of such an effect is not
a requirement. Id. at 587 n.30 (citing Copelin v. Sprico, Inc.,
182 F.3d 174 (3rd Cir. 1999)).
In In re Canion, a judgment creditor of the debtor, Canion,
brought a direct action against several family members, employees,
friends and associates of the debtor, asserting claims of fraud and
tortious interference with the judgment creditor’s recovery of the
judgment. In re Canion, 196 F.3d at 582. Our determination was
that this circumstance fell within the “related to” bankruptcy
jurisdiction at the time the case was referred to the bankruptcy
court (which is the time at which jurisdiction is tested) because
11
the outcome of the proceedings against the defendants conceivably
could have increased the debtor’s estate. Id. at 587. Appellees
argue that Garlock presents no such direct claim and that its claim
for contribution, not based on a contractual relationship, is too
tenuous to connect the underlying asbestos PITWD claims to the
debtor.
1. “Contribution” as a basis for “related to” jurisdiction
and the automatic stay provision in bankruptcy.
The Sixth Circuit has held that a claim for contribution is a
sufficient basis for finding “related to” jurisdiction in
bankruptcy and, in fact, is a sufficient ground upon which to
direct a transfer of venue for related tort claims under 28 U.S.C.
§ 157(b)(5), the same relief sought by Garlock here. In In re Dow
Corning, 86 F.3d 482 (6th Cir. 1996), where a relatively small
number of non-debtor co-defendants were closely related to the
pending breast implant litigation against debtor Dow Corning, a
claim of contribution by the co-defendants against Dow Corning,
even if only intended and not yet asserted, was sufficient to
invoke “related to” bankruptcy jurisdiction.
In In re Walker, 51 F.3d 562 (5th Cir. 1995), a party held
liable to a debtor for a violation of the automatic stay provided
in 11 U.S.C. § 362 sought to invoke “related to” jurisdiction
against a third party by asserting a claim of contribution under §
362. Id. at 565-66. We found no federal contribution right to be
12
invoked in § 362 and denied the appellant’s claim. Id. at 567-68.
Here, Garlock has asserted its contribution rights entirely under
Texas state law. As we discuss in Part III, Garlock’s contribution
claim is invalid and therefore no “related to” jurisdiction could
exist in this case.
B. Transfer of Personal Injury Tort and Wrongful Death Claims
under 28 U.S.C. § 157(B)(5).
Garlock seeks to transfer all of the PITWD claims in each of
the lawsuits against it in accordance with 28 U.S.C. § 157, which
empowers the district court where a bankruptcy is proceeding to
determine the venue for certain PITWD claims related to the
bankruptcy. Specifically,
The district court shall order that personal injury tort and
wrongful death claims shall be tried in the district court in
which the bankruptcy case is pending, or in the district court
in the district in which the claims arose, as determined by
the district court in which the bankruptcy case is pending.
See 28 U.S.C. § 157(b)(5). Use of this transfer provision in the
mass tort context is not strictly novel, but is to date uncommon.7
In the cases before us, the various district courts either
explicitly or implicitly denied Garlock’s motions to transfer all
underlying PITWD claims from the districts in Texas to the District
of Delaware.
The Sixth Circuit has held that the denial of a motion to
7
Section 157(b)(5) was the basis for transferring the PITWD
claims in A.H. Robins v. Piccinin, 788 F.2d 994 (4th Cir. 1986) and
In re Dow Corning, 86 F.3d 482 (6th Cir. 1996).
13
transfer under § 157(b)(5) is immediately appealable on different
grounds including a less rigid view of the “finality” requirement
for bankruptcy judgments and under the collateral order doctrine of
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). See In
re Dow Corning, 86 F.3d 482, 488 (6th Cir. 1996). Because of our
ultimate holding herein, we need not determine the same issue for
this circuit. Regardless, Garlock claims it should benefit from a
stay of the district courts’ orders to present an appeal.
C. Stays Applicable to Bankruptcy Proceedings.
1. Title 11 U.S.C. § 362.
Once a party files in bankruptcy, under Chapter 11, for
example, 11 U.S.C. § 362, et seq., stays further actions against
the debtor. Virtually any act attempting to enforce a judgment
against or obtain property from the estate of the debtor is stayed
once the title 11 proceedings are commenced. See id. § 362(a)(1)-
(8). In the instant cases, Garlock contends that § 362 should stay
any further actions against the non-debtor co-defendants and should
stay the various district courts from dismissing debtor Federal-
Mogul companies or remanding the related cases to state court.8
Section 362 is rarely, however, a valid basis on which to stay
actions against non-debtors. See Wedgeworth v. Fibreboard Corp.,
8
Such a stay would enable Garlock to perfect an appeal of the
district courts’ explicit or inherent denials of Garlock’s §
157(b)(5) transfer motion without having to contend with an order
of remand.
14
706 F.3d 541, 544 (5th Cir. 1983)(“[w]e join [the cited courts] in
concluding that the protections of § 362 neither apply to co-
defendants nor preclude severance”).
By exception, a bankruptcy court may invoke § 362 to stay
proceedings against nonbankrupt co-defendants where such identity
between the debtor and the third-party defendant exists that the
debtor may be said to be the real party defendant and that a
judgment against the third-party defendant will in effect be a
judgment or finding against the debtor. A.H. Robins Co., 788 F.2d
994, 999 (4th Cir. 1986). In that case, however, the non-debtor
co-defendants were indemnified associates, employees or insureds of
the debtor sole manufacturer of the Dalkon Shield intrauterine
device. Here, Garlock is one of scores of different asbestos
makers, users, importers, etc., with no interest to establish such
an identity with debtor Federal-Mogul/Gasket Holdings. There is no
claim of a formal tie or contractual indemnification to create such
an identity of interests.
2. Federal Rule of Civil Procedure 62.
Garlock has also asserted that FED. R. CIV. P. 62(a) should have
operated to effect a ten-day stay of the various district courts’
orders before they were executed. In pertinent part, Rule 62(a)
establishes that “no execution shall issue upon a judgment nor
shall proceedings be taken for its enforcement until the expiration
of 10 days after its entry.” Garlock’s concern is that, lacking
15
the protection of the ten-day stay, the district clerks’ offices
were free to certify the various remand orders at any time and by
doing so, potentially destroy federal jurisdiction without
possibility of appellate review.9 Garlock contends that it is not
seeking appellate review of an order to remand, but seeks a stay of
the remand order in the district court under FED. R. CIV. P. 62(d)
upon appeal of the § 157(b)(5) issue.
Rule 62(d) relates to Rule 62(a) in that Rule 62(a) provides
a respite from the immediate execution of a judgment, except for an
interlocutory or final judgment in an action for an injunction or
in a receivership action, or for an accounting in an action for
infringement of letters patent. Rule 62(d) then provides for a
stay pending appeal, subject to the exceptions in Rule 62(a).
The stay provisions of Rule 62 pertain to judgments for money.
Hebert v. Exxon Corp, 953 F.2d 936, 938 (5th Cir. 1992). That does
not preclude diverse forms of judgment pertaining to monetary
responsibility from a stay under Rule 62(d) pending appeal nor Rule
62(a) for ten-day automatic stay of judgment. See id. at 938-39
(overturning a district court’s denial of a stay of declaratory
9
Garlock’s references to FED. R. CIV. P. 62, et seq., in the
Petitioner’s Motions for Stay are primarily aimed at an argument to
establish an appeal as a matter of right. Once Garlock discovered,
however, that the federal district court in Corpus Christi had
already mailed certified copies of the court’s remand orders
without waiting the ten-day period specified in Rule 62(a), it
filed a series of “Emergency Motion[s] for Supplemental Relief”
asking this court to direct the district clerk’s office to, in
effect, “de-certify” its certification.
16
judgment where the declaratory judgment was, in effect, a money
judgment suitable for a Rule 62(d) stay subject to the requirements
of Rule 62(a)).
In the instant cases, however, the subject matter of Garlock’s
motion is not for a stay of judgment, declaratory or otherwise. It
is for a stay of remand under Rule 62. A remand of an ongoing case
is not a final judgment following a full adjudication of a claim,
the result of which may be appealed. Even if the subject matter of
the underlying litigation is solely money damages, there is no
“money judgment” inherent in its remand. Accordingly, there is no
basis in Rule 62 for such a stay. See City of New Orleans v. Nat’l
Serv. Cleaning Corp., No. 96-1601, 1997 WL 5915, at *1 (E.D. La.
Jan. 6, 1997).
Further, Rule 62 itself provides no authority to revoke a
remand once it has become effective. See, e.g., Rivera-Perez v.
Mass. Gen. Hosp., 193 F.R.D. 43, 45 (D.P.R. 2000).
On that basis, Garlock is not entitled to the Rule 62
automatic stay.
D. Effect of Remand.
We have consolidated many of these cases according to date or
by court, but as indicated in Part I, the orders are not entirely
uniform. All of them include a remand for lack of subject matter
jurisdiction, citing 28 U.S.C. § 1447(c). However, two of the
courts did not make such a finding until after the debtor had been
17
dismissed with prejudice from the plaintiffs’ cases and the
remaining cross-claims for contribution severed and transferred to
the District of Delaware. Two others remanded for lack of subject
matter jurisdiction without dismissing the debtor, without detailed
explanation. One court did not dismiss the debtor but found
Garlock’s claims for contribution to be scanty and, if real, too
tenuous and remanded. Some courts remanded on equitable grounds.
1. Remand for lack of subject matter jurisdiction.
A remand for lack of subject matter jurisdiction under 28
U.S.C. § 1447(c) is ordinarily barred from appellate review by 28
U.S.C. § 1447(d). See State of Rio de Janeiro v. Philip Morris,
Inc., 239 F.3d 714, 716 (5th Cir. 2001)(noting that as long as a
district court’s remand order is based on lack of subject matter
jurisdiction, a court of appeals lacks authority to review a remand
under § 1447(d); also referring to “the black hole force of a
remand for want of jurisdiction”). There are few exceptions.
Notably, remand under a district court’s citation of § 1447(c) for
a reason not embraced within that statute is subject to appellate
review. Id. at 715 (citing Thermtron Products, Inc. v.
Hermansdorfer, 423 U.S. 336, 343 (1976)). That exception is
inapplicable here.
Rather than fruitlessly attempting an appellate review of a
district court’s remand order, we instead examine the steps leading
from a district judge’s decision to remand to execution of the
18
remand order.
A § 1447(c) order of remand is not self-executing. Section
1447(c) provides, in pertinent part, that upon determination that
a case should be remanded, “[a] certified copy of the order of
remand shall be mailed by the clerk to the clerk of the State
court. The State court may thereupon proceed with such case.” See
McClelland v. Gronwaldt, 155 F.3d 507, 514 n.5 (5th Cir. 1998).
This provision creates legal significance in the mailing of a
certified copy of the remand order in terms of determining the time
at which the district court is divested of jurisdiction. Id.
(citing the discussion and references in Browning v. Navarro, 743
F.2d 1069, 1078-79 (5th Cir. 1984)). On that basis, the federal
court is not divested of jurisdiction until the remand order,
citing the proper basis under § 1443(c), is certified and mailed by
the clerk of the district court.
Once the remand order is certified and mailed, however, the
matter remanded is removed from federal jurisdiction. Of all the
cases brought before us under Garlock’s motions, most have already
been certified and mailed by the respective district clerks.
2. Equitable remand.
Of greater import in this particular case is the effect of an
equitable remand.
The court to which [claim or cause of action related to
bankruptcy cases] is removed may remand such claim or
cause of action on any equitable ground. An order
entered under this subsection remanding a claim or cause
19
of action, or a decision to not remand, is not reviewable
by appeal or otherwise by the court of appeals under
section 158(d), 1291, or 1292 of this title or by the
Supreme Court of the United States under section 1254 of
this title.
See 28 U.S.C. § 1452(b). This remand statute, unlike § 1447(c),
carries no certification and mailing requirement, nor have we found
authority to require such, as much as that would promote procedural
consistency with § 1447(c). Whether such an equitable remand is
self-executing is less important than the stricture that, once a
matter related to a bankruptcy case is equitably remanded, it is
not subject to federal appellate review on any basis. See Hawking
v. Ford Motor Credit Co., 213 F.3d 540, 550 (5th Cir. 2000); Sykes
v. Texas Air Corp., 834 F.2d 488, 490 (5th Cir. 1987)(even an
equitable remand based on a substantive law issue such as lack of
subject matter jurisdiction is unreviewable, in part because of the
likelihood of throwing matters into confusion months or years later
after other proceedings, e.g., in state courts).
Garlock’s emergency petition seeks to halt the progress of a
remand before it leaves the district court for an immediate appeal
of a collateral order. The determination of venue for PITWD cases
such as these under 28 U.S.C. § 157(b)(5) would seem to be the type
of matter which could be readily decided without creating the type
of confusion following an order of remand with which we were
concerned in Sykes. The equitable remand of bankruptcy-related
matters harbors no such opportunity.
20
Because some of the various subject-matter jurisdiction
remands have not yet been certified and mailed, and because some
have not been remanded equitably, we will proceed with an analysis
of whether Garlock should otherwise be granted a stay pending
appeal under our authority in FED. R. APP. P. 8 in those matters not
barred from further review.
III. Merits of the Motion for Stay.
When presented with a motion for a discretionary stay pending
appeal, we employ a four-part test. See In re First S. Sav.
Assoc., 820 F.2d 700, 704 (5th Cir. 1987)(citing Ruiz v. Estelle,
666 F.2d 854, 856 (5th Cir. 1982)(“Ruiz II”)). While each part
must be met, the appellant “need not always show a ‘probability’ of
success on the merits; instead, the movant need only present a
substantial case on the merits when a serious legal question is
involved and show that the balance of the equities weighs heavily
in favor of granting the stay.” Id. (quoting Ruiz v. Estelle, 650
F.2d 555, 565 (5th Cir. Unit A June 1981)(“Ruiz I”)).
A. Whether the movant has made a showing of likelihood of success
on the merits.
Despite the possible availability of a discretionary stay
pending appeal, even if Garlock had avoided remand, it could not
show a probability of success on appeal.
First, there was no 11 U.S.C. § 362 automatic stay of actions
available to the non-debtor co-defendants of the debtor, Federal-
21
Mogul/Gasket Holdings. Therefore, while § 362 acted to stay any
claims against the Federal-Mogul entities, including Garlock’s
putative claim of contribution, it carried no force to stay actions
as between the remaining co-defendants, the debtor and the various
plaintiffs. On that basis, the plaintiffs were free to dismiss
Federal-Mogul and its associated entities under FED. R. CIV. P.
41(a)(1). Even if Garlock had filed a counterclaim against the
plaintiffs in each such case, which Garlock does not assert, the
district court would have been within its discretion to dismiss by
order of the court under Rule 41(a)(2).
For those cases in which the debtor was formally dismissed,10
such dismissal was with prejudice and, under Texas law, eliminated
Garlock’s contribution claim against the debtor. It is well
established under Texas case law that neither contribution nor
indemnification can be recovered from a party against whom the
injured party has no cause of action. See Safway Scaffold Co. of
Houston, Inc. v. Safway Steel Products, Inc., 570 S.W.2d 225, 228-
29 (Tex. App.--Houston [1st Dist.] 1978, writ ref’d n.r.e.). In
modern Texas code, a “responsible third party” from whom
contribution is sought must “be liable to the plaintiff for all or
a part of the damages claimed against the named defendant or
defendants.” See TEX. CIV. PRAC. & REM. CODE ANN. §
10
By our reckoning, this includes all of the cases ruled on by
the district courts in Corpus Christi and Dallas.
22
33.011(6)(A)(iii)(Vernon 2001). Thus, no claim for contribution
may lie in those cases wherein the district court dismissed the
debtor with prejudice.
Second, the Texas code eliminates a debtor in bankruptcy as a
“responsible third party” from whom contribution may be sought,
except to the extent that liability insurance or other source of
third party funding may be available to pay the claims asserted
against that debtor. Id. § 33.011(6)(B)(ii). Garlock has
addressed the issue of the debtor’s insurance peripherally, but has
not clearly represented whether the insured debtor is Federal-Mogul
itself, Federal-Mogul’s subsidiary Gasket Holdings (successor to
Flexitallic, another gasket-producing company), or whether either
or both of them have liability insurance available to pay any
claims.
Third, Garlock has relied in part on two past decisions
transferring PITWD claims under § 157(b)(5) to the district in
which a debtor was proceeding in bankruptcy.
In A.H. Robins, the Fourth Circuit upheld an order of the
United States District Court for the Eastern District of Virginia
transferring, under § 157(b)(5), thousands of PITWD claims against
a small number of non-debtor co-defendants to itself for
coordinated review while the debtor, A.H. Robins Co., Inc.,
proceeded in bankruptcy in that district. A.H. Robins, 788 F.2d at
23
1016.11 Robins was the manufacturer of the Dalkon Shield
intrauterine device, a unique product. Its co-defendants were
employees or other close associates who were contractually
indemnified by Robins. Here, the various co-defendants
manufacture, use, specify, or handle many different asbestos
products without such close relationship. Additionally, Garlock
makes no claim of indemnification here whatsoever.
In In re Dow Corning, the Sixth Circuit reversed and ordered
the United States District Court for the Eastern District of
Michigan to transfer under § 157(b)(5) a relatively small number of
non-debtor co-defendants who had asserted claims for contribution,
or announced the intent of doing so, against the debtor
manufacturer of silicone breast implants. In re Dow Corning, 86
F.3d at 498. In that case, each of the co-defendants was closely
involved in using the same material, originating with the debtor,
to make the same, singular product, sold to the same market and
incurring substantially similar injuries. This circumstance
created a unity of identity between the debtor and the co-
defendants not present here, where the co-defendants variously use
asbestos for brake friction products, insulation, gaskets, and
other uses.
Therefore, while we do not disagree that certain mass tort
11
The circuit court’s ruling remanded for clarification and to
provide notice for claimants’ objections, but otherwise affirmed.
24
claims in some circumstances might be consolidated with bankruptcy
proceedings in a single district in accordance with § 157(b)(5),12
the relationship of the co-defendants in A.H. Robins and In re Dow
Corning is distinguishable from Garlock’s asserted relationship,
through a claim for contribution, to the debtor here.
Fourth, Garlock’s contribution claim against the debtor is
based on universally-pled claims against all defendants in all
asbestos lawsuits in which Garlock appears as a co-defendant.
Garlock has never litigated a contribution claim to collection in
any of approximately 250,000 previous asbestos lawsuits in which
Garlock was a co-defendant. In the face of this criticism, Garlock
has made a late attempt to color its failure to pursue an actual
payment of contribution.13 Garlock now asserts that in past
lawsuits, the “larger” or “major” defendants, now in bankruptcy,
had been present to pay their fair share of claims and that it was
12
Some writers and commentators would bar mass tort parties from
being transferred for consolidated review under § 157(b)(5). See,
e.g., Lori J. Forlano, Why Bankruptcy “Related To” Jurisdiction
Should Not Reach Mass Tort Nondebtor Codefendants, 73 N.Y.U. L.
Rev. 1627 (1998)(arguing, generally, against consolidation on
grounds of comity and federalism). We would not go so far as to
bar such consolidation in the face of a coordinated federal
bankruptcy scheme. Instead, we would balance each case
individually, as we have herein, for the relationship or unity of
identity of the co-defendants and the debtor(s), the uniformity of
source of the injury or wrongful death, and the general status of
pending cases in the state courts and the effect a consolidation
would have on them.
13
See Reply of Garlock, Inc., to Plaintiffs’ Response, filed
December 19, 2001, at 7-8.
25
not cost-effective for Garlock to litigate the relatively small
amounts left in controversy. It is only since the Federal-Mogul
entities proceeded to Chapter 11 protection that, Garlock contends,
it must seriously proceed with its claims for contribution.
Garlock has not, however, commenced discovery in any of these
cases, but has spent its time seeking the § 157(b)(5) transfer
addressed herein. The appellees characterize that as a dilatory
intent and, if such, Garlock’s actions are tantamount to being
frivolous.
Additionally, the district judges ruling in the various cases
before us found, on the facts before them, no merit in Garlock’s
claims. One district judge, for example, noted that in his court,
Garlock’s claims were “scantily asserted” and presented no facts to
support them. As such, the contribution claims were “so tenuously
related to the bankruptcy case” as to be “virtually immaterial.”
All of the district judges ultimately found no verifiable basis in
Garlock’s claims so as to justify a mass transfer to the District
of Delaware.
We are not prepared to say that Garlock’s motives were purely
dilatory and its motions frivolous. We need not, however, decide
the issue of motivation when determining the potential for success
on the merits of Garlock’s “related to” jurisdiction assertion and
associated motion to transfer under § 157(b)(5). Given the
preliminary analysis herein, Garlock would not succeed on the
merits if granted a stay to appeal the § 157(b)(5) transfer issue.
26
Our determination in this element is sufficient to deny the
stay pending appeal; however, we will briefly address the remaining
points of analysis.
B. Whether the movant has made a showing of irreparable injury if
the stay is not granted.
We have determined that Garlock has no valid claim for
contribution against the debtor. Therefore, no irreparable harm
will ensue if a stay is not granted.
C. Whether the granting of the stay would substantially harm the
other parties.
There may be a danger of inconsistent results in the various
state and federal courts in which Garlock and the other parties
appear if these cases are not consolidated in the District of
Delaware. That is, however, the circumstance under which asbestos
litigation has proceeded for nearly 30 years.
What is certain is that delay where plaintiffs have
mesothelioma, asbestosis, or pleural disease, or where decedents’
survivors await compensation for support substantially harms those
parties.
Additionally, delay in or lengthy interruption of state court
proceedings already in progress for months or years may
substantially harm the ability of the state courts to resolve the
cases.
We therefore hold that, in this circumstance, the harm to the
27
plaintiffs in delay substantially outweighs the harm to Garlock if
not delayed.
D. Whether the granting of the stay would serve the public
interest.
Consolidation of PITWD cases related to a bankruptcy would
facilitate management of an estate in bankruptcy and potentially
provide an even-handed and fair apportionment of the bankrupt’s
estate to its creditors, including those claiming contribution in
the mass tort scenario.
Such consolidation would also deprive states and state courts
of their right to conduct proceedings brought under state law. In
a mass tort case of the scope of asbestos litigation, transferring
cases related to a bankruptcy could well result in depriving the
states of cognizance over thousands of cases. Many of these cases
are founded on well-developed state law and years of precedent and
represent a significant amount of time in individual litigation.
The negative effect on comity between the federal and state court
systems must be given some account.
Armstrong Work Industries, U.S. Gypsum, W.R. Grace and Owens
Corning are all proceeding through Chapter 11 in Delaware in
addition to Federal-Mogul. The burden of these five asbestos-
related bankruptcies and the direct claims against them alone has
resulted in the Third Circuit appointing a district judge full-time
to stewarding those cases in coordination with a bankruptcy judge.
28
The transfer of all of the PITWD claims against asbestos co-
defendants to that court has the potential to overload the court
with thousands of individual claims to resolve. It is difficult to
see how the public interest is served in that manner.
At the bottom, there is justification for aggregation, but the
tenuous relationship between Garlock and the debtor and the
insubstantial claims of contribution reflected herein do not
justify ignoring comity and loading thousands of cases on a single
district in this case.
IV. Issue Preclusion.
Garlock contends that a transfer of venue to the District of
Delaware would obtain “a ‘centralized,’ ‘efficient,’ cost-effective
application of a uniform, fair system for assessing and
compensating asbestos-related claimants” under 28 U.S.C. §
157(b)(5) and the automatic stay feature of 11 U.S.C. § 362, “to
avoid unnecessary repetition, confusion, inconsistent results in
multiple trials of common issues, cost or delay where these many
cases do not have to be multiplied.”14 In addition to seeking a
14
See Petitioner’s Emergency Motion for Stay at 3 (for cases
consolidated under Fifth Circuit Case No. 01-41327). In cases
filed at later dates and consolidated under other case numbers,
Garlock’s intent is stated in a different location. For example,
“[a] stay in this action will promote the stated congressional
public policy reflected in § 157(b)(5) of having all matters
‘related to’ bankruptcy reviewed toward implementing centralized,
efficient and expeditious proceedings conserving the debtor’s
resources and distributing the debtor’s assets for the benefit of
all creditors alike.” See Petitioner’s Emergency Motion for Stay
at 14 (for cases consolidated under Fifth Circuit Case No. 01-
29
centralized forum under federal bankruptcy laws, which, we note,
Garlock may desire as much for perceived protection from judgments
in the state courts, Garlock appears to be contemplating the
availability of coordinated federal court judgments for their
preclusive effect in future actions.
To the extent that Garlock’s contention can be read to embrace
one made more explicitly by the “Big Three” automobile
manufacturers15--that transfer to the District of Delaware
bankruptcy court would facilitate a ruling on the ability of
friction products to be a producing cause of asbestos-related
diseases, a ruling that would be used for purposes of issue
preclusion in other cases--Garlock faces formidable obstacles. As
an initial matter, we note that Garlock has not attempted to
certify as a class these and other asbestos cases--the only widely-
51209). Regardless, all of the motions reflect the same underlying
general facts, legal theory and intent.
15
The “Big Three” automobile manufacturers, who are co-defendants
in many of these same cases, are being sued as users of asbestos
friction products, such as brakes in automobiles. They moved in
the District of Delaware to transfer all such claims against them
under § 157(b)(5) for the specifically stated intent of conducting
Daubert hearings for the admission of scientific evidence and a
ruling that brake/friction products are conclusively not a possible
source of disease-producing asbestos. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Such a ruling
would then be used for issue preclusion in future cases. Garlock
and amici have briefed the auto manufacturers’ effort from their
opposing perspectives and counsel for Ford Motor Co.,
DaimlerChrysler Corp. and General Motors Corp. has further informed
us by letter dated December 12, 2001, that the District of Delaware
has provisionally transferred only those claims to that court for
further determinations.
30
credited medium for disposing of multiple claims while barring
relitigation of resolved issues. Less well-accepted is
consolidation under Rule 42, but this approach is complicated by
the cases involved having been filed in multiple courts in diffuse
districts and by the absence of complete uniformity among parties
and interests. Even more tenuous would be resort to judicial
notice under FED. R. EVID. 201. For a party to tee up an issue for
decision in a selected court with the expectation that any rulings
would not only be referenced by subsequent courts but also applied
as binding--and in the face of inconsistent decisions previously
rendered elsewhere--is to hope for a most novel application of that
rule indeed.
But no matter how creative the procedural avenue, and in spite
of the fact that this litigation would benefit from a uniform
approach, at almost every turn this circuit has rejected attempts
at aggregation and issue preclusion in asbestos cases. Our
adversity toward group resolution sounds in our concern that no one
be deprived the right to a full and fair opportunity to litigate
their claims. In C.A. Hardy v. Johns-Manville Sales Corp., 681
F.2d 334 (5th Cir. 1982), we turned aside a district court’s order
that nonparty asbestos companies were estopped from relitigating
issues of dangerousness and causation as violative of the
fundamental right to trial by jury. We reached this conclusion
based on the manufacturers’ each having an interest in the
31
plaintiffs proving the same set of facts. Indeed, in Hardy we went
so far as to conclude that the presence of inconsistent findings in
other cases on the same questions at issue in Hardy made the
application of collateral estoppel highly problematic even as to
the parties themselves. Of course Garlock need not be reminded of
Hardy’s place in this circuit’s jurisprudence for it was one of the
defendants that opposed any attempt to bar the relitigation of key
dispositive issues.
The passage of time has not weakened the teachings of Hardy.
In re Fibreboard, 893 F.2d 706 (5th Cir. 1990), saw this court
issue a writ of mandamus against the trial of a representative
group of plaintiffs on the issues of duty and damages. There, we
said that adherence to state substantive law and to the Seventh
Amendment right to trial by jury would not tolerate making the
resolution of a handful of claims binding as to defendant asbestos
manufacturers’ liability with respect to all plaintiffs. In Cimino
v. Raymark Industries, Inc., 151 F.3d 297 (5th Cir. 1998), we again
revisited the same district court’s revised effort at mass
resolution. There, we emphasized that federal rules providing for
aggregation of claims--specifically, FED. R. CIV. P. 23 and 42--
cannot override the necessity of proving causation as to each
defendant, a requirement of the state law providing the cause of
action and of the right to trial by jury. As we did in Fibreboard,
we refused to tolerate deviation from fundamental principles of due
32
process simply because asbestos cases threatened to swamp the
resources of the federal courts.
The closest this circuit has come to utilization of issue
preclusion in the asbestos context is Jenkins v. Raymark, 831 F.2d
550 (5th Cir. 1987). In that case, a certified class of 753
claimants were permitted to try common issues in a single trial,
the result of which was applicable to the class. The procedure
approved in Jenkins, however, still required individual jury
determinations of causation and damages.
The efficiencies to be obtained from issue preclusion,
therefore, cannot in this circuit serve as a basis for the transfer
of cases under 28 U.S.C. § 157(b)(5).
V. Abstention.
A § 157(b)(5) motion ordinarily requires an abstention
analysis. In re Dow Corning, 86 F.3d 482, 497 (6th Cir. 1996). 28
U.S.C. § 1334 provides for two types of abstention: discretionary
abstention under § 1334(c)(1) and mandatory abstention under §
1334(c)(2). See, e.g., Broyles v. U.S. Gypsum Co., 266 B.R. 778
(E.D. Tex. 2001) (finding both doctrines apply, as well as
equitable remand, in circumstances not involving a transfer under
28 U.S.C. § 157(b)(5)).
We agree with the district judge in Corpus Christi. Any
abstention issues remaining in these cases regarding claims now
before the bankruptcy court in the District of Delaware may be
33
decided by that district court.
VI. Conclusion.
We do not disagree that the transfer provisions of 28 U.S.C.
§ 157(b)(5) may be applicable to multiple, non-debtor co-defendants
in a mass tort case. Our holding today is that Garlock, in these
cases and under these circumstances, has not shown that such a
transfer is appropriate.
It is hereby ORDERED that,
The Petitioner’s Motions for Stay under FED. R. APP. P. 8 are
DENIED. It is further ORDERED that,
The temporary stays issued in our consolidated Orders are
hereby dissolved.
34 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/151168/ | 615 F.3d 455 (2010)
Jaimi L. BOWERS, Plaintiff-Appellant,
v.
Honorable Michael W. WYNNE, Secretary of the Air Force, Defendant-Appellee.
No. 09-3566.
United States Court of Appeals, Sixth Circuit.
Argued: March 4, 2010.
Decided and Filed: July 21, 2010.
*456 ARGUED: Geoffrey P. Damon, Butkovich & Crosthwaite Co., LPA, Cincinnati, Ohio, for Appellant. Lisa Hammond Johnson, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Geoffrey P. Damon, Butkovich & Crosthwaite Co., LPA, Cincinnati, Ohio, for Appellant. Lisa Hammond Johnson, Assistant United States Attorney, Cleveland, Ohio, for Appellee.
Before SILER and ROGERS, Circuit Judges; BELL, District Judge.[*]
BELL, J., delivered the opinion of the court, in which SILER, J., joined. ROGERS, J. (pp. 468-70), delivered a separate opinion concurring in the result.
OPINION
BELL, District Judge.
In this action alleging gender and disability discrimination as well as retaliatory termination, Plaintiff-Appellant Jaimi L. Bowers ("Bowers") appeals the district court's order dismissing her complaint. For the reasons that follow, we affirm the decision of the district court.
I. BACKGROUND
During the relevant time period, Bowers worked at the Youngstown Air Reserve Station as a Logistics Support Specialist in the Logistics Readiness Squadron, 910th Maintenance Support Group. As an Air *457 Reserve Technician ("ART"), she was a federal civilian employee of the Air Force, but she held the military rank of Staff Sergeant and was required, as a condition of her employment, to maintain membership in the Air Force Reserve. Bowers alleges that she suffers from several emotional and medical disorders, including anxiety, depression, gastroesophageal reflux disease, and gastritis. She alleges that Major Dawn Sturdevant, her supervisor, and Major Ronald Coburn interfered with the grant of a security clearance and "went beyond the normal requirements" in requiring her to substantiate her medical disabilities. (R. at 4.) She asserts that "Defendant Secretary Michael W. Wynne, acting through Major Sturdevant and Major Coburn, acted maliciously by disregarding Ms. Bowers' medical documentation, and by using a pretext regarding the processing of a security clearance, to discharge Ms. Bowers." (Id. at 5.) Bowers filed a fraud, waste, and abuse complaint alleging that Major Sturdevant was forging signatures on performance recommendations and engaging in "abuse of power and conduct unbecoming an officer, particularly fraternization with enlisted." (Id. at 115, 116.) Bowers was terminated from her position on August 15, 2005. She contends that she was wrongfully charged with being absent without leave and discharged on the basis of her gender, her disabilities, and in retaliation for filing the fraud, waste, and abuse complaint. Following a CORE[1] fact-finding proceeding in November of 2007, and a final agency decision in June of 2008, Bowers filed her complaint in United States District Court for the Northern District of Ohio, naming as defendant Defendant-Appellee Michael W. Wynne, the Secretary of the Air Force (the "Secretary"). Bowers's complaint contains three counts: (1) discrimination in violation of the Rehabilitation Act of 1973, (2) unlawful retaliatory discrimination, and (3) gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. On February 12, 2009, the Secretary moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that Bowers's claims were barred by the doctrine of Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950). On March 31, 2009, the district court granted the Secretary's motion. Bowers now appeals the dismissal of her complaint.
II. LAW AND ANALYSIS
A. Standard of Review
Because the Secretary attached evidence in support of its motion to dismiss, the parties and the court construed the Secretary's motion as an attack on the factual basis for subject matter jurisdiction. "When a Rule 12(b)(1) motion attacks the factual basis for jurisdiction, the district court must weigh the evidence and the plaintiff has the burden of proving that the court has jurisdiction over the subject matter." Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir.2005). The Court reviews the district court's application of the law to the facts de novo and its factual determinations for clear error. Id. The Court reviews de novo a district court's determination of the applicability of the Feres doctrine. Lovely v. United States, 570 F.3d 778, 781 (6th Cir.2009).
B. Feres doctrine
In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the *458 Supreme Court held that military personnel could not pursue claims against the government under the Federal Tort Claims Act for injuries that "arise out of or are in the course of activity incident to service." Id. at 146, 71 S. Ct. 153. Because "the relationship of military personnel to the Government has been governed exclusively by federal law," the Court did not "think that Congress, in drafting this Act, created a new cause of action dependent on local law for service-connected injuries or death due to negligence." Id.
Thereafter, the Supreme Court applied the analysis in Feres to discrimination claims brought by naval personnel against their superiors pursuant to the Bivens doctrine. Chappell v. Wallace, 462 U.S. 296, 299, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983). The Court explained that "[i]n the last analysis, Feres seems best explained by the `peculiar and special relationship of the soldier to his superiors, [and] the effects on the maintenance of such suits on discipline.'" Id. (quoting United States v. Muniz, 374 U.S. 150, 162, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963)). The Court determined that the "unique disciplinary structure of the military establishment and Congress' activity in the field" constituted "special factors" making it inappropriate to allow a judicially-created remedy. Id. at 304, 103 S. Ct. 2362.
The Supreme Court reiterated its concern to avoid intrusion into military discipline and military decisionmaking in United States v. Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985). In that case, the Court held that the mother of an army private could not pursue a FTCA claim based on the murder of her son by another member of the military. Id. at 59, 105 S. Ct. 3039. Her son was off duty and away from his base when he was killed. Id. at 53, 105 S. Ct. 3039. The plaintiff alleged that the government was negligent in its supervision and control over the killer. Id. at 54, 105 S. Ct. 3039. The Court rejected the appellate court's heavy reliance on the site of the murder and the duty status of the army private when the murder occurred because "the situs of the murder is not nearly as important as whether the suit requires the civilian court to second-guess military decisions and whether the suit might impair essential military discipline." Id. at 57, 105 S. Ct. 3039 (internal citations omitted).
In United States v. Johnson, 481 U.S. 681, 107 S. Ct. 2063, 95 L. Ed. 2d 648 (1987), the Supreme Court invoked the military discipline rationale underlying the Feres doctrine in a case involving negligence on the part of civilian employees of the government. Id. at 683, 107 S. Ct. 2063. The plaintiff's husband, a member of the Coast Guard, was killed when his helicopter crashed during a rescue mission. Id. at 682-83, 107 S. Ct. 2063. The plaintiff alleged that the crash resulted from the negligent actions of civilian radar controllers. Id. The Court held that the plaintiff could not pursue her FTCA claim, in part, because:
[M]ilitary discipline involves not only obedience to orders, but more generally duty and loyalty to one's service and to one's country. Suits brought by service members against the Government for service-related injuries could undermine the commitment essential to effective service and thus have the potential to disrupt military discipline in the broadest sense of the word.
Id. at 691, 107 S. Ct. 2063. The Court noted that "[c]ivilian employees of the Government also may play an integral role in military activities," and reasoned that, "[e]ven if military negligence is not specifically alleged in a tort action, a suit based upon service-related activity necessarily implicates the military judgments and decisions *459 that are inextricably intertwined with the conduct of the military mission." Id. at 691 & n. 11, 107 S. Ct. 2063 (emphasis added). Because the plaintiff's husband was engaged in an activity incident to his service and was acting pursuant to the standard operating procedures of the Coast Guard, the Court determined that "the potential that [the] suit could implicate military discipline is substantial." Id. at 691-92, 107 S. Ct. 2063.
In United States v. Stanley, 483 U.S. 669, 107 S. Ct. 3054, 97 L. Ed. 2d 550 (1987), the Supreme Court affirmed the broad "incident to service test" from Feres. The plaintiff was a member of the military claiming injury as a result of his participation in a military program designed to test the long-term effects of LSD. Id. at 671-72, 107 S. Ct. 3054. The plaintiff argued that his case did not involve the sort of chain-of-command issues that were at issue in Chappell because he was not acting under orders from superior officers, and because at least some of the defendants were not his superior officers. Id. at 679, 107 S. Ct. 3054. The Court declined to limit Feres to claims by officers against their superiors because even an inquiry into whether a suit questions "military discipline and decisionmaking would itself require judicial inquiry into, and hence intrusion upon, military matters." Id. at 682-83, 107 S. Ct. 3054.
This Court extended the analysis in Feres and Chappell to discrimination claims brought by military personnel pursuant to Title VII and the Rehabilitation Act in Coffman v. Michigan, 120 F.3d 57 (6th Cir.1997). See id. at 59 ("Consistent with the reasoning in Chappell, courts of appeals have consistently refused to extend statutory remedies available to civilians to uniformed members of the armed forces absent a clear direction from Congress to do so."). By its terms, 42 U.S.C. § 2000e-16(a) applies to all personnel actions affecting "employees" of the "military departments." Id. However, "[t]he Equal Employment Opportunity Commission and the circuits that have considered this statute have interpreted it to apply only to suits by civilian employees of the military departments, and not members of the armed forces." Fisher v. Peters, 249 F.3d 433, 438 (6th Cir.2001); see Brown v. United States, 227 F.3d 295, 298 n. 3 (5th Cir.2000) (citing cases); 29 C.F.R. § 1614.103(d)(1).
C. Sixth Circuit Precedent
This Court has never considered claims brought under Title VII or the Rehabilitation Act by an ART. In Leistiko v. Stone, 134 F.3d 817 (6th Cir.1998), the plaintiff alleged that he had been discharged from his position as a National Guard technician in violation of the Rehabilitation Act. Id. at 818. Like an ART, a National Guard technician occupies a hybrid civilian/military position. National Guard technicians are federal civilian employees that must, as a condition of their employment, be members of the National Guard. 32 U.S.C. § 709(b)(2); 10 U.S.C. § 10216(a)(1)(B). This Court affirmed the district court's grant of summary judgment in favor of the defendant because "`[e]very court having occasion closely to consider the capacity of National Guard technicians has determined that capacity to be irreducibly military in nature.'" Leistiko, 134 F.3d at 821 (quoting Leistiko v. Sec'y of the Army, 922 F. Supp. 66, 73 (N.D.Ohio 1996)); see Wright v. Park, 5 F.3d 586, 588-89 (1st Cir.1993) ("[S]ince National Guard technicians' positions are encompassed within a military organization and require the performance of work directly related to national defense, such positions are themselves military in nature."); Stauber v. Cline, 837 F.2d 395, 400 (9th Cir.1988) (noting that plaintiff and *460 defendant, both National Guard technicians, were always under the command of active-duty military officers, were subject to military discipline, and were performing work "integral to routine military activities"); NeSmith v. Fulton, 615 F.2d 196, 201 (5th Cir.1980) ("Formally, a civilian technician is a federal civil employee outside the competitive civil service. In substance, however, the position is one in a military organization.").[2] This Court has reiterated the holding from Leistiko on several occasions. See, e.g., Brown v. Roche, 206 Fed.Appx. 430, 432 (6th Cir. 2006) (unpublished); Fisher v. Peters, 249 F.3d 433, 439 (6th Cir.2001).
In Fisher v. Peters, the Court considered a Title VII claim by a National Guard technician who alleged that her supervisors had downgraded her performance appraisal and denied her requests for promotion. 249 F.3d at 435-36. In her technician position, the plaintiff was responsible for paying invoices provided to the base and for processing travel vouchers. Id. at 434. She was also required to wear a military uniform, observe military courtesies, and participate in unit training activities one weekend per month. Id. The Court affirmed a grant of summary judgment in favor of the defendant because the National Guard technician position is irreducibly military in nature:
In the case at hand, Plaintiff attempts to distinguish Leistiko by emphasizing that Leistiko's dismissal from his civilian employment was precipitated by a military decision. While that distinction may be accurate, Plaintiff ignores the unambiguous statements made in Leistiko that the positions of National Guard technicians are "irreducibly military in nature." In affirming the grant of summary judgment, this court did not discuss the facts of the underlying employment action taken which precipitated the suit. Rather, we simply confirmed that National Guard technician positions are irreducibly military in nature and that the Rehabilitation Act does not apply to hybrid positions that are irreducibly military in nature.
Id. at 439.
In the case before the Court, the district court determined that Fisher was controlling because the court could not discern any distinction between an ART and a National Guard technician. On appeal, Bowers contends that ARTs and National Guard technicians are governed by different statutes and that, unlike National Guard technicians, ARTs are not statutorily required to wear a uniform while performing their civilian functions. See 32 U.S.C. § 709(b) (requiring National Guard technicians to "wear the uniform appropriate for the member's grade and component of the armed forces" while "performing duties as a military technician (dual status)").[3]
*461 Courts in some other circuits take a different approach to analyzing Title VII or Rehabilitation Act claims by dual status technicians. See Fisher, 249 F.3d at 440-43. Those courts consider the nature of the technician's claim or the challenged conduct. Id. For example, in the Ninth Circuit, dual status technicians are barred from bringing claims where "the challenged conduct is integrally related to the military's unique structure." Mier v. Owens, 57 F.3d 747, 750 (9th Cir.1995). In the Fifth Circuit, only claims "arising purely" from the employee's civilian status may be brought. Brown v. United States, 227 F.3d 295, 299 (5th Cir.2000). If the claim is difficult to characterize, the court will consider whether the conduct at issue is "integrally related to the military's unique structure." Id. at 299 n. 5. The Second and Third Circuits have adopted the approach used in the Fifth Circuit. Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 95 (2d Cir. 2004); Luckett v. Bure, 290 F.3d 493, 499 (2d Cir.2002); Willis v. Roche, 256 Fed. Appx. 534, 537 (3d Cir.2007) (unpublished).
In Fisher, this Court determined in the alternative that, even if the plaintiff's position was not military in nature, her claims were "in the military sphere" because she challenged a performance appraisal during a period in which her supervisors were military officers who supervised her in both her military and civilian roles, and because the positions to which she was denied promotion had military components with military qualifications. Fisher v. Peters, 249 F.3d 433, 443-44 (6th Cir.2001).
In the instant case, the district court determined, in the alternative, that Bowers's claims were military in nature because it was not disputed that Bowers's claims involved the conduct of individuals that supervised her in both her civilian and military capacities.[4] The district court also noted that Bowers alleged that she was terminated in retaliation for filing a fraud, waste, and abuse complaint, which involved military matters because it included allegations that Major Sturdevant "engaged in conduct unbecoming an officer and improperly engaged in fraternization." (R. at 117.)
D. ARTs
Following the Court's approach in Fisher, at issue is whether an ART constitutes a civilian employee or a member of the armed forces. See Fisher, 249 F.3d at 438. ARTs are defined as:
Full-time civilian employees who are also members of the Air Force Reserve unit in which they are employed. In addition to their civilian assignments, they are assigned to equivalent positions in the Reserve organization with a Reserve military rank or grade. ARTs must maintain active membership in their Reserve unit of assignment and satisfactory participation in order to keep their ART position.
(R. at 114, Air Force Instruction 36-108, Air Reserve Technician (ART) Program *462 (July 29, 1994), Attachment 1, at 5.) The ART and National Guard technician positions are both subject to 10 U.S.C. § 10216(a)(1), which provides:
For purposes of this section and any other provision of law, a military technician (dual status) is a Federal civilian employee who
(A) is employed under section 3101 of title 5 or section 709(b) of title 32;
(B) is required as a condition of that employment to maintain membership in the Selected Reserve; and
(C) is assigned to a civilian position as a technician in the organizing, administering, instructing, or training of the Selected Reserve or in the maintenance and repair of supplies or equipment issued to the Selected Reserve or the armed forces.
Id. The position of National Guard technician has a different history than the ART position. Congress enacted the National Guard Technicians Act of 1968, as amended, 32 U.S.C. § 709, to regulate National Guard technicians, whereas the ART position is subject to the general employment authority of the military departments in 5 U.S.C. § 3101. One of the authorities cited by the district court in Leistiko for the proposition that a National Guard technician position is "irreducibly military in nature" examined the intent of Congress in defining that position, as set forth in the National Guard Technicians Act. See Wright v. Park, 5 F.3d 586 (1st Cir.1993). That analysis is summarized as follows:
Appellant, who remains a colonel in the [Air National Guard], argues strenuously that, for purposes of this case, his civilian status may be disentangled from his military status, and that he should be free to sue for discrimination implicating the former. But this balkanization of technicians' work is belied by Congress's description of the functions that ANG technicians serve, by the unmistakable intendment of the Technician Act (the statute that Congress enacted in 1968 to regulate such personnel), and by the resulting ties that bind technicians' civilian and military roles.
[T]he Technician Act evidences Congress's intention that technicians, while retaining their positions as civil employees outside the competitive civil service, will serve simultaneously as employees of the appropriate military department, subject to its regulation.
It is axiomatic that the National Guard is military in character.... We think it follows that technicians are martial in character. Indeed, under the Technician Act's composite regime, technicians are considerably more than nominal members of the military establishment.... Because National Guard technicians serve as the Guard's support staff and are, in fact, those whose job it is to maintain and assure the Guard's strength and organization, they are indispensable to this nation's defense. See, e.g., 32 U.S.C. § 709(a) (assigning to technicians such distinctively military tasks as "(1) the administration and training of the National Guard; and (2) the maintenance and repair of supplies issued to the National Guard or the armed forces")....
[S]ince National Guard technicians' positions are encompassed within a military organization and require the performance of work directly related to national defense, such positions are themselves military in nature.
Id. at 588-89 (emphasis added). The reasoning in Wright readily applies to the ART position. Like National Guard technicians, ARTs are encompassed within a military organization and require the performance of work directly related to national defense.
*463 The functions performed by ARTs and National Guard technicians, as described in the applicable statutes, are substantially the same. The "distinctively military tasks" noted by Wright in the National Guard Technicians Act, 32 U.S.C. § 709(a)(1)-(2), are duplicated in 10 U.S.C. § 10216(a)(1)(C), where they are applicable to both National Guard technicians and ARTs. See id. (indicating that dual status technicians, including ARTs employed under 5 U.S.C. § 3101 and National Guard technicians employed under 32 U.S.C. § 709(b), may be assigned to "organizing, administering, instructing, or training of the Selected Reserve or in the maintenance and repair of supplies or equipment issued to the Selected Reserve or the armed forces"). The National Guard Technicians Act also provides that National Guard technicians may be called to perform the following "additional duties":
(A) Support of operations or missions undertaken by the technician's unit at the request of the President or the Secretary of Defense.
(B) Support of Federal training operations or Federal training missions assigned in whole or in part to the technician's unit.
(C) Instructing or training in the United States or the Commonwealth of Puerto Rico or possessions of the United States of
(i) active-duty members of the armed forces;
(ii) members of foreign military forces (under the same authorities and restrictions applicable to active-duty members providing such instruction or training);
(iii) Department of Defense contractor personnel; or
(iv) Department of Defense civilian employees.
32 U.S.C. § 709(a)(3). Similarly, 10 U.S.C. § 10216(a)(3) provides that dual status technicians employed under 5 U.S.C. § 3101 may be assigned the following "additional duties":
(A) Supporting operations or missions assigned in whole or in part to the technician's unit.
(B) Supporting operations or missions performed or to be performed by
(i) a unit composed of elements from more than one component of the technician's armed force; or
(ii) a joint forces unit that includes
(I) one or more units of the technician's component; or
(II) a member of the technician's component whose reserve component assignment is in a position in an element of the joint forces unit.
(C) Instructing or training in the United States or the Commonwealth of Puerto Rico or possessions of the United States of
(i) active-duty members of the armed forces;
(ii) members of foreign military forces (under the same authorities and restrictions applicable to active-duty members providing such instruction or training);
(iii) Department of Defense contractor personnel; or
(iv) Department of Defense civilian employees.
10 U.S.C. § 10216(a)(3).
Furthermore, ARTs fulfill a uniquely military function, even in their civilian capacity, to ensure the combat readiness of the reserve units in which they are employed:
The ART workforce provides stable, continuous full-time management, administration, and training of the Ready *464 Reserve and oversees the transition from peacetime to a wartime or national emergency situation to ensure mobilization readiness is maintained. ARTs train reservists, provide continuity within the Reserve unit of assignment, and support the unit's gaining major command.
(R. at 110, Air Force Instruction 36-108 (July 26, 1994).); see 10 U.S.C. § 10216(d)(1) (requiring ARTs and other dual status technicians to maintain membership in the unit in which they are employed or that they are employed to support). The history of the ART position provides additional context:
In a letter dated June 25, 1957, the Civil Service Commission (CSC) authorized the Air Force to proceed with its Air Reserve Technician plan (hereinafter ART). The primary goal of the plan was to increase the combat readiness of Air Force Reserve units, as well as their effectiveness in the event of mobilization. Prior to ART, the Air Reserve Flying Centers utilized for training Air Reserve Wings were maintained and operated by Air Force units which were composed of approximately half military and half civilian personnel and were organizationally separate from the reserve wings. ART, by replacing military support personnel with civil servants and requiring civilian support personnel to be active reserve members, in effect integrated the support organizations into the Air Reserve Wings. In their civilian capacity, ART incumbents were to provide the basic maintenance and supply functions previously provided by the support organization; in their military capacity, ART employees were to provide training for the remainder of the wing personnel, who reported only on weekends and during summer active duty tours. Since this "hard core" of highly skilled reservists would be available for immediate mobilization, the Air Force anticipated that combat readiness would be enhanced.
Am. Fed'n of Gov't Employees v. Hoffman, 543 F.2d 930, 932-33 (D.C.Cir.1976). Hoffman explains the importance of dual status technicians to ensuring the combat readiness of their unit:
Technicians are an integral part of the Army Reserve and they possess certain skills essential to the unit if it should be called to active duty. Since the transition from a Reserve status to active duty is critical, dual status personnel, who have been working for the unit and are familiar with unit administrative requirements are employed when the unit is mobilized to enable the critical functions to be performed effectively. When a substitute must replace a technician who does not accompany his unit, the function performed will suffer in some degree.
Id. at 939. In other words, an ART is not merely a civilian employee that occupies a separate military position in the reserve forces. Instead, the ART's civilian duties and military role are intricately entwined. The civilian aspect of the ART position exists to serve the ART's military role and the military capacity of the ART's unit. It follows, then, that an adverse personnel decision regarding an ART, even if that decision is related solely to the ART's nominally civilian role, necessarily implicates the ART's military role and function. Cf. Wright v. Park, 5 F.3d 586, 589 (1st Cir.1993) (observing that because "the [National Guard] technician's several roles are inextricably intertwined, it follows that the adverse employment action ... necessarily implicates his military as well as his civilian status.").
Bowers contends that the district court should have considered that, unlike National *465 Guard technicians, ARTs are not required to wear uniforms while performing their civilian duties, ARTs are subject to civil service laws and regulations applicable to the competitive civil service, and ARTs receive separate military and civilian pay. See Hoffman, 543 F.2d at 933 n. 3, 942-43 (noting that "the CSC has provided for separation of ART employees' civilian and military functions to the extent practicable").
Bowers argues that the uniform requirement is an important distinction because the EEOC regulations implementing Title VII specifically exclude "[u]niformed members of the military departments." 29 C.F.R. § 1614.103(d)(1) (emphasis added). However, the Court interprets the EEOC regulations to refer to the nature of the position rather than an individual's state of dress. There is no dispute that ARTs are "uniformed members of the military departments" in their capacity as members of the reserve forces. See Roper v. Dep't of Army, 832 F.2d 247, 248 (2d Cir.1987) (determining that Title VII does not apply to a member of the Army Reserve). Notwithstanding the benefits of civilian status that are enjoyed by ARTs, but not National Guard technicians, including the absence of a statutory requirement to wear a uniform when performing civilian duties, and the protections available to employees of the competitive civil service, ARTs hold a military rank in a military organization and perform work that is essential to the military capacity of that organization. See 10 U.S.C. § 10216. The distinctions identified by Bowers do not materially diminish the military nature of the relationship between an ART and the unit that she is employed to support, or the irreducibly military nature of the ART position as a whole.
Bowers cites McGinnis v. United States Air Force, 266 F. Supp. 2d 748 (S.D.Ohio 2003), as evidence that there is nothing intrinsically military about the Logistics Management Specialist position. In that case, individuals that had been employed by the United States Air Force as Logistics Management Specialists alleged that the Air Force had engaged in discriminatory practices in violation of Title VII. Id. However, the court discussed the plaintiffs' claims without examining whether they might be barred because of the military status of the plaintiffs. Moreover, there is no indication that the plaintiffs in McGinnis were anything other than strictly civilian employees of the Air Force. Whatever may be the case for other types of military technicians, dual status technicians are assigned a military rank and serve a distinctly military role in the units that they support. See 10 U.S.C. § 10216(a), (d). When this Court reiterated in Fisher that the capacity of a National Guard technician is irreducibly military in nature, it did not question whether the particular tasks performed by the plaintiff in that case, an Accounting Technician, were more or less intrinsically military; instead, it held that the position of National Guard technician, as a whole, is irreducibly military in nature. See Fisher v. Peters, 249 F.3d 433, 443 (6th Cir.2001).
The Court's determination is supported by the case law. Though other circuits take a different approach to Title VII claims by dual status technicians, they have consistently identified a military nexus sufficient to bar such claims. See, e.g., Williams v. Wynne, 533 F.3d 360, 368 (5th Cir.2008) (ART tested positive for cocaine use while on military status and the decision to discharge him as a result was, therefore, a military personnel management decision); Walch v. Adjutant Gen.'s Dep't of Tex., 533 F.3d 289, 292 (5th Cir. 2008) (National Guard technician discharged from his military position in the *466 Texas Air National Guard); Willis v. Roche, 256 Fed.Appx. 534, 537 (3d Cir. 2007) (ART challenged conduct by an officer supervising him in both his military and civilian capacities); Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 96 (2d Cir.2004) (National Guard technician alleged misconduct by his supervisor, who was his immediate military superior, occurring while plaintiff was working on a military base, in military uniform, to ensure the military's airlift capacity); Luckett v. Bure, 290 F.3d 493, 499 (2d Cir.2002) (dual status technician transferred out of his position in the reserve forces by his military supervisors); Brown v. United States, 227 F.3d 295, 299 (5th Cir.2000) (ART discharged for failure to maintain his position in the reserve forces); Hupp v. U.S. Dep't of the Army, 144 F.3d 1144, 1148 (8th Cir.1998) (plaintiff denied a National Guard technician position through an application process involving consideration of military qualifications); Mier v. Owens, 57 F.3d 747, 748 (9th Cir. 1995) (National Guard technician failed to receive a military promotion).
Even under the tests used in other circuits, Bowers's claims are barred. In response to the Secretary's motion, Bowers did not dispute or otherwise respond to the contention that Majors Sturdevant and Coburn supervised in both her military and civilian capacities. See Fisher v. Peters, 249 F.3d 433, 443-44 (noting that the plaintiff challenged conduct by supervisors who reviewed her in both her military and civilian positions); Willis v. Roche, 256 Fed.Appx. 534, 537 (3d Cir.2007) (noting that the ART challenged conduct by an officer supervising him in both his military and civilian capacities).
Bowers contends on appeal that Majors Sturdevant and Coburn did not supervise her in her military capacity and were not in her military side chain of command; however, it is not disputed that she held a military rank in her reserve unit, and that her claims challenge the conduct of superior military officers serving at the same military station, if not within the same unit, in a direct supervisory capacity. Thus, any investigation into the allegedly discriminatory and retaliatory actions by these officers necessarily threatens an intrusion into officer-subordinate relationships and the "unique structure" of the military establishment. See Mier, 57 F.3d at 749-50 ("Military personnel cannot sue superior officers to recover damages for alleged constitutional violations because the `relationship between enlisted military personnel and their superior officers ... is at the heart of the necessarily unique structure of the Military Establishment.'" (quoting Chappell v. Wallace, 462 U.S. 296, 300, 305, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983))); cf. Overton, 373 F.3d at 96 ("Any attempt surgically to dissect and analyze the civilian relationship between Overton and Fletcher, with its military dimensions, moreover, would itself threaten to intrude into their military relationship.").
Bowers urges the Court to follow the Federal Circuit's analysis in Jentoft v. United States, 450 F.3d 1342 (Fed.Cir. 2006). In that case, a National Guard technician alleged that she had been discriminated against in violation of the Equal Pay Act, 29 U.S.C. § 206(d). Jentoft, 450 F.3d at 1343. That statute applies to "employees," a term that includes a person employed "as a civilian in the military departments." 29 U.S.C. § 203(e)(2)(A)(i). The Court of Appeals for the Federal Circuit allowed her claim to proceed based on its reading of 10 U.S.C. § 10216(a)(1), which provides, in relevant part:
For purposes of this section and any other provision of law, a military technician *467 (dual status) is a Federal civilian employee who
(A) is employed under section 3101 of title 5 or section 709(b) of title 32;
(B) is required as a condition of that employment to maintain membership in the Selected Reserve; and
(C) is assigned to a civilian position as a technician in the organizing, administering, instructing, or training of the Selected Reserve or in the maintenance and repair of supplies or equipment issued to the Selected Reserve or the armed forces.
Id. (emphasis added). The court reasoned that "there is no language in § 10216(a) limiting the circumstances in which a dual status technician can be considered a federal civilian employee." Jentoft, 450 F.3d at 1348. The court distinguished this Court's decision in Fisher because Fisher did not consider the language in § 10216(a). Id. at 1349.
In two separate opinions, the Fifth Circuit has rejected the holding in Jentoft as applied to Title VII claims by National Guard technicians and ARTs. In Walch v. Adjutant General's Department of Texas, 533 F.3d 289 (5th Cir.2008), the Fifth Circuit noted that the enactment and amendment of § 10216 in 1996-97 did not change the status of National Guard technicians; they were already civilian employees under the National Guard Technicians Act. Id. at 299-300. In a separate case involving an ART, the Fifth Circuit concluded:
Title VII claims arising from an ART's military status constitute an impermissible "intrusion into military personnel decisions." Nothing in the legislative history of § 10216(a)(1)(B) suggests that Congress intended to intrude on such military personnel decisions. Adopting the rule implied by appellant's distinction would create an absolute right of ARTs, as dual status employees, to assert Title VII claims against the Air Force, even for claims arising from events falling wholly within "the military sphere." Section 10216(a) does not countenance this result, and based on [the Fifth Circuit's earlier decision in] Brown we reject it.
Williams v. Wynne, 533 F.3d 360, 367 (5th Cir.2008) (citations omitted); see also Zuress v. Donley, 606 F.3d 1249, 1255 (9th Cir.2010) (disagreeing with Jentoft and noting that "[t]here is no mention of Title VII in the legislative history of the 1997 Amendments [to § 10216(a)], nor is there any indication that Congress intended to authorize any cause of action that was previously unavailable to a dual status technician").
The Court declines to follow Jentoft in this case. First, the Court notes that Jentoft is distinguishable because it involved a claim under the Equal Pay Act. Whether that act should be interpreted to allow claims by dual status technicians is not before the Court.
Second, as applied to Title VII claims, the reasoning in Jentoft is not persuasive. In its previous cases, the Court acknowledged, along with every other circuit that has considered claims by dual status technicians, that National Guard technicians occupy a position with a civilian component. Fisher v. Peters, 249 F.3d 433, 438 (6th Cir.2001); see also Brown v. Roche, 206 Fed.Appx. 430, 431 (6th Cir.2006) (unpublished) (citing 10 U.S.C. § 10216). But § 10216(a)(1) does not end with the statement that dual status technicians are federal civilian employees. It states that National Guard technicians and ARTs are "dual status" employees because they are federal civilian employees and members of the reserve forces. 10 U.S.C. § 10216(a)(1). Thus, like the courts in Walch, Williams, and Zuress, the Court is not persuaded that the language of *468 § 10216(a)(1) constitutes clear direction from Congress to extend remedies under Title VII or the Rehabilitation Act to individuals occupying dual status.
Finally, Bowers urges the Court to adopt the three-factor "incident to service" test used in Parker v. United States, 611 F.2d 1007 (5th Cir.1980), to determine whether an injured service member was barred from bringing an FTCA claim. Those factors include: (1) the duty status of the service member, (2) the site of the injury, and (3) the function performed by the service member when the injury occurred. Id. at 1013-14. However, Bowers offers no authority or rationale for applying this test to claims under Title VII or the Rehabilitation Act. The Court declines to depart from its approach in Leistiko and Fisher.
III. CONCLUSION
In short, Bowers's claims may not be brought because they arise from her position as an ART. It was not error for the district court to conclude that the Court's precedent in Fisher and Leistiko, which held that the National Guard technician position is irreducibly military in nature, also applies to ARTs. The Court is not persuaded that the ART position is materially different from the position of National Guard technician such that ARTs could pursue remedies under Title VII or the Rehabilitation Act that are not available to National Guard technicians. Moreover, even if the Court were to adopt the approach used in other circuits, Bowers's claims would be barred because they challenge the conduct of supervisory military officers of superior rank, and thereby threaten intrusion into officer-subordinate relationships. Accordingly, the decision of the district court is AFFIRMED.
CONCURRING IN THE RESULT
ROGERS, Circuit Judge, concurring.
I agree entirely with the majority's application of the Feres doctrine to Bowers' case, and I concur in the result. However, I would affirm based on Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, rather than based on Rule 12(b)(1) for lack of subject-matter jurisdiction.
The Supreme Court has refrained from treating the Feres doctrine as jurisdictional, and this court's use of justiciability language in one Feres opinion was not necessary to that case's outcome. Under Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), and its corollaries, no cause of action exists for Bowers' allegations, and dismissal is appropriate for failure to state a claim, a result distinct from holding that the court lacks subject-matter jurisdiction or that the case is not justiciable. As the Supreme Court has recently noted, "[s]ubject-matter jurisdiction ... refers to a tribunal's power to hear a case. It presents an issue quite separate from the question whether the allegations the plaintiff makes entitle him to relief." Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. ___, 130 S. Ct. 2869, 2876-77, 177 L. Ed. 2d 535 (2010) (internal quotation marks omitted) (citations omitted); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 510-12, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006).
In Feres, the Supreme Court explicitly stated that it was not relying on the jurisdiction-granting portion of the Federal Tort Claims Act:
Jurisdiction is necessary to deny a claim on its merits as a matter of law as much as to adjudge that liability exists. We interpret this language to mean all it says, but no more. Jurisdiction of the defendant now exists where the defendant was immune from suit before; it *469 remains for courts, in exercise of their jurisdiction, to determine whether any claim is recognizable in law.
340 U.S. at 141, 71 S. Ct. 153 (emphasis added). The Court concluded not that the district courts lacked jurisdiction, but that "the Government is not liable." Id. at 146, 71 S. Ct. 153. The Supreme Court reaffirmed Feres without mentioning jurisdiction or justiciability in United States v. Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985), and United States v. Johnson, 481 U.S. 681, 107 S. Ct. 2063, 95 L. Ed. 2d 648 (1987).
In Chappell v. Wallace, 462 U.S. 296, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983), while the Supreme Court referred to some cases involving justiciability to conclude that "the unique disciplinary structure of the Military Establishment and Congress' activity in the field constitute `special factors' which dictate it would be inappropriate to provide ... a remedy," the Court's actual holding was that "military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations," id. at 304-05, 103 S. Ct. 2362 (emphasis added), not that the district court lacked jurisdiction.
In United States v. Stanley, 483 U.S. 669, 107 S. Ct. 3054, 97 L. Ed. 2d 550 (1987), in rejecting the applicability of official immunity precedents, the Supreme Court made clear that the Chappell and Stanley holdings refer to whether a cause of action exists:
[T]he availability of a damages action under the Constitution for particular injuries (those incurred in the course of military service) is a question logically distinct from immunity to such an action on the part of particular defendants. When liability is asserted under a statute, for example, no one would suggest that whether a cause of action exists should be determined by consulting the scope of common-law immunity enjoyed by actors in the area to which the statute pertains.
Id. at 684, 107 S. Ct. 3054 (third emphasis added).
Although we also used "justiciability" language to decide a Feres issue in Fisher v. Peters, 249 F.3d 433, 445 (6th Cir.2001), justiciability analysis was not necessary to that decision and the court should be reluctant to perpetuate the usage if it is not necessary to do so. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 91, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998). Before Fisher, we treated Feres under Rule 12(b)(6), whether the plaintiff has stated a claim, rather than under Rule 12(b)(1), whether the court has subject-matter jurisdiction, Leistiko v. Stone, 134 F.3d 817, 819-20 (6th Cir.1998); Coffman v. Michigan, 120 F.3d 57, 58-59 (6th Cir. 1997), and after Fisher, we noted uncertainty surrounding whether the Feres doctrine was jurisdictional and declined to decide the issue, Lovely v. United States, 570 F.3d 778, 782 n. 2 (6th Cir.2009). Our sister circuits remain divided. See, e.g., Wright v. Park, 5 F.3d 586, 591 (1st Cir. 1993) (using justiciability language); NeSmith v. Fulton, 615 F.2d 196, 201 (5th Cir.1980) (treating Feres as a question of whether a claim was stated); Hupp v. U.S. Dep't of the Army, 144 F.3d 1144, 1145-47 (8th Cir.1998) (stating that the district court had jurisdiction, but that the case was not justiciable under Feres); Stauber v. Cline, 837 F.2d 395, 398-99 (9th Cir. 1988) (treating the Feres doctrine as a limit on the court's jurisdiction). Because the Supreme Court has never treated Feres and its progeny as jurisdictional, I would affirm the district court's dismissal of this case under Rule 12(b)(6) for failure to state a claim.
Affirmance based on Rule 12(b)(6) is appropriate even though the district *470 court's ruling was based on Rule 12(b)(1) because the district court's analysis did not turn on the application of Rule 12(b)(1) rather than Rule 12(b)(6). See Morrison, 130 S.Ct. at 2877-78 (citing Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 359, 381-84, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959)); Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1007-08 (6th Cir.2009).
The district court's consideration of documents outside the complaint also does not preclude affirmance under Rule 12(b)(6). When ruling on a Rule 12(b)(6) motion, courts consider the complaint as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S. Ct. 2499, 168 L. Ed. 2d 179 (2007); see also J.P. Silverton Indus. L.P. v. Sohm, 243 Fed.Appx. 82, 86-87 (6th Cir.2007). In a Rule 12(b)(6) dismissal, the court may take judicial notice of Air Force Instruction 36-108 because it is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R.Evid. 201(b). The court may also consider the fraud, waste, and abuse complaint because Bowers' federal complaint refers to the fraud, waste, and abuse complaint, thereby incorporating it by reference.
Therefore, I would affirm the district court's decision to dismiss Bowers' complaint, but I would do so for failure to state a claim upon which relief can be granted.
NOTES
[*] The Honorable Robert Holmes Bell, United States District Judge for the Western District of Michigan, sitting by designation.
[1] CORE is an acronym for "Compressed, Orderly, Rapid, Equitable," and it refers to the Air Force's Equal Employment Opportunity dispute resolution procedure. See Air Force Instruction 36-1201, Equal Employment Opportunity Complaints (Feb. 12, 2007), available at http://www.adr.af.mil/shared/media/ document/AFD-070402-075.pdf.
[2] The Fifth Circuit eschews this Court's "categorical" approach to Title VII claims by dual-status technicians, and distinguishes the First Circuit's opinion in Wright and its own decision in NeSmith because those cases involved 42 U.S.C. § 1983 claims. Brown v. United States, 227 F.3d 295, 299 n. 4 (5th Cir.2000). According to Brown, "[i]n Title VII cases, as opposed to 42 U.S.C. § 1983 cases, we are required to differentiate the civilian and military positions associated with a dual-status job. This is because Title VII specifically provides for claims against the government for civilian employees in the military departments." Id. Notwithstanding the distinction noted in Brown, the conclusion in Wright has been accepted by this Court and applied to Title VII claims.
[3] Though not dispositive in this matter, it appears that the Air Force changed its rules in August of 2007 to require ARTs to wear uniforms while performing their civilian duties. See Air Force Instruction 36-703, Civilian Conduct and Responsibility ¶ A.7 (Feb. 17, 2009) ("Air Reserve Technicians will adhere to the requirements as those prescribed in AFI 36-2903, Dress and Personal Appearance of Air Force Personnel, when wearing the military uniform in civilian status."); Air Force Print News Today, Rules change to require technicians to wear uniforms fulltime (Aug. 8, 2007), http://www.af.mil/news/story. asp?id=XXXXXXXXX.
[4] The Secretary asserted in its brief in support of the motion to dismiss that Majors Coburn and Sturdevant supervised Bowers in both her civilian and military capacities. Bowers did not respond to this contention in her response to the motion to dismiss. On appeal, Bowers contends that Majors Coburn and Sturdevant supervised her only in her civilian capacity. | 01-03-2023 | 07-21-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4567090/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
In the Matter of the )
Federal Bureau of Prisons’ Execution )
Protocol Cases, )
)
LEAD CASE: Roane, et al. v. Barr ) Case No. 19-mc-145 (TSC)
)
THIS DOCUMENT RELATES TO: )
)
Roane v. Gonzales, 05-cv-2337 )
)
MEMORANDUM OPINION
Defendants have moved to vacate this court’s preliminary injunctions barring the
executions of Plaintiffs James Roane, Richard Tipton, Cory Johnson, Orlando Hall, Bruce
Webster, Anthony Battle, and Jeffrey Paul. (ECF No. 173, Defs. Mot. to Vacate Prelim. Inj.)
For the reasons set forth below, the motion is GRANTED.
Defendants’ September 11, 2020 Notice urged the court to rule on this motion with
“dispatch,” requested an expedited ruling, and noted that it had, on several occasions, asked the
court for a ruling by September 4. Although the court was aware of the motion and intended to
resolve it expeditiously, as the parties are aware, this is not the only case on the court’s docket.
Nevertheless, the court has prioritized resolving the issues presented in this case—which has
involved at least eight motions for preliminary injunction and emergency relief over the course
of seven scheduled executions—and has endeavored to ensure the opinions and orders issued
adequately address the parties’ claims and requests. Given the number of plaintiffs and the speed
at which the government has sought to execute them—after eight years of inaction—careful
consideration and resolution of the myriad claims presented necessarily requires time. The
government’s desire to carry out executions in rapid succession must yield to the need to resolve
1
the substantive legal claims at issue, many of which have been placed before the court on the
government’s own motion. No further requests for expedited rulings or deadlines—from any
party in this case—should be filed absent a bona fide emergency.
I. BACKGROUND
In 2005, Plaintiffs Roane, Tipton, and Johnson sued, challenging the three-drug lethal
injection protocol then employed by the Bureau of Prisons (BOP) alleging various constitutional
and Administrative Procedure Act (APA) violations. (Roane v. Gonzales, No. 05-cv-2337
(D.D.C.), ECF No. 1.) Shortly thereafter, they sought a preliminary injunction barring their
executions, which were scheduled for May 2006. (Roane, ECF No. 2.). Defendants consented
to the entry of a preliminary injunction pending the Supreme Court’s disposition of Hill v.
Crosby, which involved a method-of-execution challenge. (Roane, ECF No. 4.) Judge Huvelle,
who was presiding over the case at that time, temporarily enjoined the executions of Roane,
Tipton, and Johnson. (Roane, ECF No. 5.) The preliminary injunction remained, however, after
the Supreme Court decided Hill. See Hill v. McDonough, 547 U.S. 573 (2006); (Roane, ECF
No. 7.)
The following year, Plaintiffs Webster, Battle, and Hall intervened and filed
unopposed motions for preliminary injunctions, which Judge Roberts granted. (See Roane, ECF
Nos. 27 (Webster), 67 (Battle), 68 (Hall)). Defendants stipulated to the preliminary injunctions
but did not “waive any objections or arguments on the merits of the issues in this litigation and
d[id] not admit the veracity of any of the allegations of any of the operative pleadings in this
case.” (Roane, ECF No. 39.)
Defendants sought to dissolve the preliminary injunctions on multiple occasions. (See
Roane, ECF Nos. 61, 160.) Due to litigation over the scope of discovery, the court declined to
2
rule on the motion to lift the stay. (See Roane, ECF No. 209 (ordering further briefing “before
the defendants’ motion to lift the stays currently in place should be considered”).)
On October 6, 2009, Plaintiff Paul sought to intervene and to obtain a preliminary
injunction, (Roane, ECF No. 228), which Defendants opposed, (Roane, ECF No. 242). While
that litigation continued throughout 2010, in December of that year, BOP announced plans to
schedule Paul’s execution date. (Roane, ECF No. 273.) Then in July 2011, after BOP
determined it could no longer obtain one of the drugs in its protocol, Defendants informed the
court that BOP had “decided to modify its lethal injection protocol,” and would “submit a
monthly status report to the Court on the status of finalizing the protocol revisions.” (Roane,
ECF No. 288.)
On July 25, 2019, Defendants notified the Court it had adopted a new, single-drug
protocol on July 25, 2019. (Roane, ECF No. 385.) On the same day, BOP set execution dates
for five inmates, four of whom immediately sought a preliminary injunction. This court
consolidated all four actions into the present case and has since consolidated additional actions
filed by other death-row inmates.
II. DISCUSSION
In light of the new one-drug execution protocol announced by the BOP in July 2019,
Defendants have moved to vacate the existing preliminary injunctions discussed above. (See
generally Defs. Mot. to Vacate Prelim. Inj.) They contend that “the legal and factual premises
underlying the injunctions have fundamentally and undisputedly changed.” (Id. at 7.) Plaintiffs
oppose the motion but have not provided an adequate basis to keep the injunctions in place.
Accordingly, the court will grant Defendants’ motion and the preliminary injunctions prohibiting
3
the executions of Plaintiffs Roane, Tipton, Johnson, Hall, Webster, Battle, and Paul will be
vacated.
A. Legal Standard
Under Federal Rule of Civil Procedure 60(b), a court may “relieve a party . . . from
a[n] . . . order” when “applying it prospectively is no longer equitable” or upon a showing of
“any . . . reason that justifies relief.” Hudson v. AFGE, 281 F. Supp. 3d 11, 13 (D.D.C. 2017)
(quoting Fed. R. Civ. P. 60(b)(5) and (6)). Thus, a court may modify an injunction pursuant to
that rule in its “equitable discretion.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080,
2087 (2017). The party seeking relief from an injunction has the burden of showing “a
significant change either in factual conditions or in law” such that continued enforcement of the
injunction would be “detrimental to the public interest.” Horne v. Flores, 557 U.S. 433, 447
(2009). That significant change, moreover, must be “unanticipated” by the parties and the court.
Am. Council of the Blind v. Mnuchin, 878 F.3d 360, 367 (D.C. Cir. 2017).
“[D]issolution should depend on the same considerations that guide a judge in deciding
whether to grant or deny a preliminary injunction in the first place”—i.e., “[t]he familiar quartet”
of “likelihood of success, the threat of irreparable injury to the party seeking interim relief, the
equities and the public interest.” Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222,
1225 (1st Cir. 1994).
B. Changed Circumstances and Injunctive Relief Factors
The court agrees with Defendants that circumstances have indeed changed since the
injunctions at issue were entered (most more than ten years ago). The basis for these injunctions
was a three-drug protocol that is no longer in use, and Plaintiffs have superseded the complaint
upon which the prior injunctions were based. And while it is true that the claims in the operative
4
complaint are similar to those challenging the three-drug protocol (Due Process Clause, Eighth
Amendment, and APA violations), Plaintiffs now challenge the government’s use of
pentobarbital, a drug that was not utilized used in prior protocols.
Ultimately, Plaintiffs cannot succeed on the merits of a complaint that has been
superseded. And it defies logic to maintain an injunction pertaining to an outdated execution
protocol when Plaintiffs have been unable to demonstrate they are entitled to injunctive relief
under the new protocol. (See, e.g., ECF No. 226; ECF No. 261.)
Death is certainly irreparable. But Plaintiffs have been sentenced to death for crimes
after trial, and their convictions have been upheld on appeal. This court’s injunction was issued
in order to consider and rule on matters pertaining to the method and manner of execution.
Moreover, Plaintiffs are protected from the irreparable harm that formed the basis of the original
injunction because the government will no longer use the methods detailed in the three-drug
protocol to execute them. This factor, accordingly, weighs in favor of lifting the injunction.
The court finds it would not be equitable to leave the prior injunctions in place when the
government will no longer be using the three-drug protocol. Thus, the balance of the equities
favors Defendants. The same is true for the public interest factor. Though the public has a
“powerful and legitimate interest in punishing the guilty,” Calderon v. Thompson, 523 U.S. 538,
556 (1998), this court has repeatedly expressed its view that the public is also strongly served by
ensuring that persons sentenced to death are not executed in a manner that violates the U.S.
Constitution or laws passed by Congress. Those concerns are not implicated here. The legal
claims that formed the basis of the prior injunctions have been resolved—they are moot. This
factor, again, weighs in favor of dissolution.
5
Thus, the changed circumstances and the factors for injunctive relief all weigh in favor of
vacating the injunction.
Plaintiffs fail to advance a convincing reason to leave the injunction in place. First, they
argue that the court may not lift an injunction absent “extraordinary” circumstances. (See ECF
No. 197, Pls. Opp’n at 10.) But this is the standard for relief from final judgment, not for relief
for a preliminary injunction. See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (“[O]ur cases
have required a movant seeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances’
justifying the reopening of a final judgment.”); SEC v. Bilzerian, 815 F. Supp. 2d 324, 328
(D.D.C. 2011) (addressing permanent injunctions that had been affirmed by the D.C. Circuit).
Next, Plaintiffs argue that the new Protocol did not moot their claims; they note, for
instance, that their challenge to Defendants’ failure to disclosure the relevant procedures that will
be used to execute them remains live. But this claim has now been dismissed in the court’s
Order of September 20, 2020. (See ECF No. 261.)
Plaintiffs also argue that vacating the injunction would thwart the original purpose on
which the injunction was based, namely to “allow[] the orderly adjudication of a complex
dispute that has urgent implications for Plaintiffs and great significance for the public at large.”
(Pls. Opp’n at 11.) The purpose of the prior injunction, however, was to preserve the status quo
while the court adjudicated claims on which Plaintiffs were likely to succeed on the merits.
Those claims are no longer at issue.
Finally, Plaintiffs argue that Defendants’ motion is untimely, but identify no authority for
that argument. Rule 60(c) requires that motions for relief therein be filed within a “reasonable
time.” Given the speed at which issues have been raised in this litigation, the court does not find
6
the timing of Defendants’ motion to be unreasonable. 1 The preliminary injunction here was
intended to be temporary. The fact that the injunctions have been in place this long—and that
Defendants did not move to vacate them sooner—did not prejudice Plaintiffs.
For the foregoing reasons, Plaintiffs have not supplied a justifiable reason to leave the
preliminary injunctions in place, and they will be VACATED.
Date: September 20, 2020
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
1
Plaintiffs refer to a purported intra-Circuit, three-month timeline to address relief from
judgment motions, but, again, the authority cited for that proposition addresses relief from final
judgment. (Pls. Opp’n at 6 (citing THEC Int’l-Homdard Cordova Group-Nazari Constr. Co. v.
Cohen Moher, LLP, 301 F. Supp. 3d 1, 9 (D.D.C. 2018); Darby v. Shulkin, 321 F.R.D. 10, 12
(D.D.C. 2017)).)
7 | 01-03-2023 | 09-21-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1975093/ | 623 A.2d 1207 (1993)
James O. MACAULEY, Petitioner,
v.
DISTRICT OF COLUMBIA TAXICAB COMMISSION, Respondent.
No. 91-AA-376.
District of Columbia Court of Appeals.
Argued April 8, 1993.
Decided April 30, 1993.
James O. Macauley, pro se.
Philip Lattimore, Asst. Corp. Counsel, for respondent. John Payton, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Sidney R. Bixler, Asst. Corp. Counsel, were on the brief for respondent.
Before ROGERS, Chief Judge, and STEADMAN and SULLIVAN, Associate Judges.
PER CURIAM:
Petitioner, a taxicab driver, appeals from a decision imposing a $50 civil fine for "loitering," purportedly rendered pursuant to regulations of the Taxicab Commission.[1]*1208 Because the procedures followed by the administrative agency do not follow those set forth in its own regulations, we vacate the decision and remand for further proceedings.
A.
Alerted to the necessity of dealing with the issue of a remand,[2] the government conceded at oral argument that administrative proceedings for violations such as the one charged to appellant are governed by 31 DCMR ch. 4, entitled "Hearing Procedures Applicable to Notices of Infractions." Briefly, that chapter provides that upon a request for a hearing by a person who wishes to contest the imposition of a civil fine, the following administrative procedures shall be followed. First, the case is assigned to a hearing examiner, who shall hold a hearing. §§ 323.1(d), 400.2. Upon completion of the hearing, the hearing examiner shall issue a "proposed decision." § 402.1. Any party may file written exceptions within ten days, whereupon the chairperson of the Taxicab Commission "shall designate a three member component of the [Panel on Adjudication] to consider the record of the hearing, the proposed decision, and the written exceptions, and to hear any argument to be presented." § 403.3. See also 40 D.C. Code § 40-1709.1(c) (1992 Supp.). An order adopted by a three member component of the panel, unless appealed to the full Panel on Adjudication within ten days, becomes final; when such an appeal is taken, the Panel may issue a final order or adopt the order of the three member component as its final order. §§ 404.2, 404.3. Thereafter an appeal may be taken to this court. § 404.4. See D.C. Code § 1-1510(a) (1992).
B.
Despite the government's arguments to the contrary, we do not find it reasonably possible to square the actual proceedings before the agency with the requirements of the Commission's own procedural regulations. The record before us reveals the following sequence of events. On October 26, 1990, petitioner was sent a notice that a hearing on the ticket he received for a "hacking violation" would be held "per your request on Tuesday, Nov. 20, 1990 before a hearing examiner for the Panel on Adjudication." That hearing was held as scheduled, at the conclusion of which the hearing examiner announced: "Ticket number XXXXXXXXX, loitering, I'm going to hold you liable and impose a fine of fifty dollars. You have a right to appeal my decision." A "Hearing Record Order" dated that same day was signed by the hearing examiner imposing the $50 fine and written in under a section entitled "Comments: [Include findings of fact and conclusions of law]" was the following: "IO [Investigating Officer] stated that Resp. was the seventh cab on a five cab stand. Resp. stated that he was cleaning his cab behind the hack stand." At the bottom of the form a printed legend appeared, stating "If you wish to appeal this hearing result, you must file within ten days of the date of this decision to the Panel on Adjudication, D.C. Taxicab Commission. Directions for how to file such an appeal are available in the Commission's offices."[3]
Presumably in response to this notice, petitioner on the same day as the hearing examiner's decision filed a second "request for hearing" before the Panel on Adjudication "as provided in its rules of organization and procedure." To this form notice, petitioner attached a handwritten note stating: *1209 "I am appealing the decision because all over in the District of Columbia, there are limitations on the number of cabs to a hotel stand which number is posted in front of the hotel," but that "at the J.W. Marriott there is no such limitation" and therefore "one has to conclude that there is no such limitation."[4]
In response to this, petitioner received a letter with a typewritten date of January 29, 1991, and bearing a date stamp of March 5, 1991. The letter stated in its two opening paragraphs:
On 11/20/90 you requested reconsideration of the decision of a Taxicab Commission Hearing Examiner regarding the above listed ticket.
This is to inform you that your request for reconsideration of your hearing decision before the Panel on Adjudication, District of Columbia Taxicab Commission has been denied.
The letter then quotes from 31 DCMR § 354.2,[5] which controls the right to a rehearing and states the five grounds which may be invoked. The letter then concludes:
Your request for reconsideration has failed to meet the above requirements and hence, must be denied.
You may appeal this decision within thirty days to the District of Columbia Court of Appeals.
The letter is signed "BY ORDER OF THE PANEL ON ADJUDICATION" with a set of initials "for Barbara W. Garnett."
The government asserts that this letter constitutes compliance with the procedures set forth in chapter four. We cannot agree. The hearing examiner did not issue anything which purported to be a "proposed decision." No notice was given of a right to file "written exceptions." There is no indication that the Chairperson appointed a three member panel or who its members were or that any such panel heard "any argument to be presented" or that the panel either adopted the proposed order or issued its own. No notice was given of any right of further appeal to the full Panel on Adjudication, nor is there any ruling by the full Panel. In short, nothing in the letter suggested that it was anything other than what it purported to be: a ruling on a "motion for reconsideration," found in a different chapter and addressed to a situation where the original deciding hearing panel is asked to reconsider its own decision.[6]
C.
It is a basic tenet of administrative law that an administrative agency is bound to follow its own rules and regulations. See Service v. Dulles, 354 U.S. 363, 388-89, 77 S. Ct. 1152, 1165, 1 L. Ed. 2d 1403 (1957); Seman v. District of Columbia Rental Housing Comm'n, 552 A.2d 863, 866 (D.C. 1989); Dankman v. District of Columbia Bd. of Elections, 443 A.2d 507, 513 (D.C. 1981) (en banc).[7] Since, insofar as we can determine from this record and from oral argument before us, this principle was not adhered to here, we must vacate the order and remand for further proceedings in accordance with this opinion. See D.C. Code § 1-1510 (1992).
So ordered.
NOTES
[1] Nowhere in the record before us is a citation made to the precise regulation that appellant was charged with violating. The ticket merely states "loiteringthe 7th cab." The government in its brief asserts that the charged offense was an alleged violation of 31 DCMR § 821.2 (1990), which reads in pertinent part: "When a taxicab stand is occupied to its full capacity, no taxicab shall loiter or wait nearby for the purpose of occupying space on the stand." Another form of loitering is governed by § 819.3: "No taxicab operator shall loiter with a taxicab around or in front of any hotel, theater, public building, or place of public gathering, except to take on or discharge a passenger." See also D.C. Code § 40-725 (1990). It appears that the ticket was given to appellant because he was the seventh cab in line at the J.W. Marriott Hotel at Pennsylvania Avenue and 14th Street, N.W., outside the marked taxicab waiting zone.
[2] We issued a pre-argument order in this appeal asking that the parties be "prepared to address the issue of whether the case should be remanded to the agency for further proceedings pursuant to 31 DCMR ch. 4."
[3] The government asserts that this "order" was the "proposed decision" contemplated by § 402.1. However, it gives no indication of any such tentative status; moreover, the party is not invited to file written exceptions but instead is told that he or she may file an appeal.
[4] Inter alia, petitioner seeks to have us review the legal issue. Because of the limited procedures followed here, we do not have before us a reasoned interpretation by the agency of its own regulations to which we can afford the requisite deference.
[5] The letter cited to 18A DCMR § 354.2. However, as of October 1990, the regulations for "Taxicabs & Public Vehicles for Hire" are contained in Title 31 in lieu of Title 18A. The section on rehearings bears the same number in the old Title 18A and the new Title 31, 354.2.
[6] We previously have taken note of the disparity between the Commission's regulations and its actual practice in adjudicating taxicab infractions. See Le Chic Taxicab Co. v. District of Columbia Taxicab Comm'n, 614 A.2d 943 (D.C. 1992). In that case, however, unlike the one before us, the Panel on Adjudication reached the merits. See note 4, supra.
[7] We do not attempt to deal here with any issues relating to possible failure to comply with the statutory provisions governing decision-making by the Commission or its Panel on Adjudication. See D.C. Code §§ 40-1701 through -1720 (1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3395700/ | Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/151191/ | NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MARIO G. MANCINI, JR.,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2010-3006
__________________________
Petition for review of the Merit Systems Protection
Board in CH0752090272-I-1.
___________________________
Decided: July 21, 2010
___________________________
KENNETH J. HEISELE, Weprin, Folkerth & Routh, LLC
of Dayton, Ohio, for petitioner.
JOSHUA E. KURLAND, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,
JR., Assistant Director.
MANCINI v. VA 2
__________________________
Before DYK, FRIEDMAN, and MOORE, Circuit Judges.
PER CURIAM.
Mario G. Mancini, Jr., (“Mancini”) petitions for review
of a final order of the Merit Systems Protection Board (the
“MSPB” or “Board”) affirming a decision of the Depart-
ment of Veterans Affairs (the “VA” or “agency”). The VA
removed Mancini for “Inappropriate Conduct,” “Neglect of
Duty,” “Using Government Computer to Transmit Inap-
propriate Materials,” and “Providing Inconsistent State-
ments Under Oath.” See Mancini v. Dep’t of Veterans
Affairs, No. CH-0752-09-0272-I-1 (M.S.P.B. Aug. 6, 2009)
(“Final Order”). We affirm.
I BACKGROUND
Mancini was employed as a vocational rehabilitation
specialist at the Dayton Veterans Affairs Medical Center
(“Dayton VA”) from 1992 until January 2, 2009. The four
charges for which Mancini was removed from this position
relate to multiple, distinct events that occurred over a
short period of time.
Neglect of Duty
A. Failure to Transfer
During Fall 2007 and early 2008, Mancini served as a
counselor to a female veteran (the “Veteran”) with dimin-
ished mental capacity who was receiving treatment at the
Dayton VA. On October 18, 2007, Mancini concluded that
he believed it was in the Veteran’s best interests for her
to be transferred to the care of a female vocational reha-
3 MANCINI v. VA
bilitation specialist, Debbie Oberg (“Oberg”). Mancini
took steps to transfer the Veteran to Oberg, but the
transfer was never completed, and the Veteran stayed
under Mancini’s care. The parties dispute whether it was
Mancini’s or Oberg’s fault that the transfer was not
completed. Mancini’s failure to complete the transfer of
the Veteran to Oberg after he had determined that such a
transfer was necessary became the basis for one of the
two specifications supporting a Neglect of Duty charge.
B. Improper Supervision of Intern
On October 19, 2007, Mancini recorded in a progress
note that the Veteran was “very manipulative and is
becoming increasingly seductive to male staff” and that
Mancini “now believes this veteran is extremely problem-
atic in her judgment, insight, physical limitations, rela-
tionships with men.” J.A. 884. He further noted that the
Veteran had asked Mancini’s student intern (the “Intern”)
to drive her to Florida, which the Intern had declined to
do. The Intern had also told Mancini that a “friendship”
had started developing between the Intern and the Vet-
eran. J.A. 175, 177. Mancini testified that he cautioned
the Intern both that driving the Veteran to Florida and
that developing a friendship with the Veteran would be
inappropriate. Later, the Intern disclosed to Mancini that
the Veteran had called the Intern from Florida. The
Intern took a break from his internship the following
academic quarter. On February 29, 2008, the Veteran
disclosed to Mancini that she had become involved in a
consensual, sexual relationship with the Intern during his
break from the internship. Mancini’s allegedly improper
supervision of the Intern formed a second basis for the
Neglect of Duty charge against Mancini.
MANCINI v. VA 4
Providing Inconsistent Statements Under Oath
Mancini appeared before the First Administrative
Board of Investigation to provide sworn testimony relat-
ing to the relationship between the Intern and the Vet-
eran on March 21, 2008, and April 11, 2008. An alleged
inconsistency between Mancini’s testimonies on these two
dates formed the basis for the charge of Providing Incon-
sistent Statements Under Oath.
Inappropriate Conduct
A. Provision of Daughter’s Contact Information
In February 2008, the Veteran expressed an interest
in motorcycles to Mancini. Mancini provided the Veteran
with the contact information for his daughter, Candace
Pickrel (“Pickrel”), who was knowledgeable about motor-
cycles. Like Mancini, Pickrel was trained to provide
rehabilitation services, but she was unaffiliated with the
Dayton VA.
On March 25 or 26, 2008, which was four or five days
after Mancini first appeared before the Board of Investi-
gation, the Veteran was allegedly raped by another pa-
tient (“Mr. K”), who was being treated for sexual
addiction at the Dayton VA. Pickrel subsequently became
an advocate for the Veteran with regard primarily to the
alleged rape, as well as to the Veteran’s treatment and
personal relationships at the Dayton VA.
The Code of Professional Ethics for Rehabilitation
Counselors (the “CPERC”) discourages the development of
familial relationships with clients “that could impair
professional judgment or increase the risk of harm to
clients.” J.A. 397. Mancini’s provision of his daughter’s
telephone number to the Veteran in February 2008 alleg-
5 MANCINI v. VA
edly violated the CPERC and provided the basis for the
first of two specifications supporting the charge of Inap-
propriate Conduct against Mancini. In this specification,
the agency “noted that Ms. Pickrel became the patient’s
advocate in matters in which [Mancini] clearly had a
vested interest.” J.A. 721.
B. Transportation on Personal Motorcycle
On April 25, 2008, Mancini transported the Veteran
off of the Dayton VA premises after-hours on his personal
motorcycle. Mancini claims he was taking the Veteran “to
look at a motorcycle to educate her on budgeting skills
and try to talk her out of buying the motorcycle.” Pet’r’s
Br. 6. Mancini’s use of his motorcycle to transport the
Veteran became the basis for the second specification
supporting the charge of Inappropriate Conduct.
Using Government Computer to Transmit Inappropri-
ate Materials
During the investigation of some of the foregoing alle-
gations, an examination of the files in Mancini’s computer
was conducted. The investigation discovered that
Mancini had forwarded two emails to his wife and daugh-
ter. One email contained a pornographic image of a
naked woman bending over and another email contained
a racial joke. These emails provided the basis for a
charge, Using Government Computer to Transmit Inap-
propriate Materials. This charge included two specifica-
tions relating to the two emails Mancini forwarded to his
wife and daughter.
On October 23, 2008, the Dayton VA issued Mancini a
notice proposing his removal based on the four charges of
misconduct: (1) Inappropriate Conduct; (2) Neglect of
MANCINI v. VA 6
Duty; (3) Using Government Computer to Transmit
Inappropriate Materials; and (4) Providing Inconsistent
Statements Under Oath. Mancini provided an oral re-
sponse to the charges.
In December of 2008, the agency sustained the
charges and removed Mancini. On January 14, 2009,
Mancini appealed his removal to the MSPB. An Adminis-
trative Judge (“AJ”) issued an Initial Decision sustaining
all four of the charges, as well as the penalty of removal,
on May 1, 2009. Mancini v. Dep’t of Veterans Affairs, No.
CH-0752-09-0272-I-1 (M.S.P.B. May 1, 2009) (“Initial
Decision”). Mancini filed a petition for review with the
full Board, which was denied, making the initial decision
of the AJ the final decision of the Board. Mancini timely
appealed to this court, and we have jurisdiction over his
appeal pursuant to 28 U.S.C. § 1295(a)(9).
II DISCUSSION
Our review of an MSPB decision is limited. We must
sustain a decision of the Board unless it is “found to be (1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; [or] (3) unsupported by substantial evidence.”
Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1545 (Fed. Cir.
1994) (citing 5 U.S.C. § 7703(c)).
A Neglect of Duty and Inappropriate Conduct
With respect to two of the specifications, we agree
with Mancini that the decision of the Board is not sup-
ported by substantial evidence. First, the Board’s deci-
sion with respect to the allegation that Mancini
improperly supervised the Intern, which is the second
7 MANCINI v. VA
specification of the Neglect of Duty charge, is plainly
based on a misapprehension of the record. Mancini points
out that the Board mistakenly concluded that the rape of
the Veteran was committed by the Intern, whereas the
rape was actually committed by a third person, Mr. K.
The Board’s error on this point appears to have contrib-
uted to its decision to sustain this specification. See
Initial Decision, slip op. at 6 (“T]he appellant’s actions
resulted in harm to [the Veteran]. She pursued com-
plaints about the intern’s actions based on her belief she
was ‘basically raped’ . . . . I therefore find that discipli-
nary action based on this specification was warranted . . .
.”).
Second, the Board’s decision with respect to the alle-
gation that Mancini provided his daughter’s contact
information to the Veteran in violation of the CPERC, the
first specification of the Inappropriate Conduct charge, is
not supported by substantial evidence. The Board con-
cluded that Mancini had violated the CPERC by providing
his daughter’s telephone number to the Veteran because
it was reasonably foreseeable that his daughter would
become involved as the Veteran’s advocate on issues over
which he had a “vested interest.” We see no basis in the
record for this conclusion. The Board’s decision on this
specification again confuses the Intern and Mr. K.
Mancini’s daughter’s advocacy efforts related primarily to
the alleged rape by Mr. K, over which Mancini had no
vested interest. At the time the daughter’s name was
provided, the rape by Mr. K had not even occurred, and
there is no basis for believing that the Veteran would
even require the services of an advocate. While we con-
clude that these two specifications are not sustainable, as
we now discuss, we conclude that Mancini’s challenges to
the other charges and specifications are without merit.
MANCINI v. VA 8
With regard to the remaining Neglect of Duty and In-
appropriate Conduct specifications, Mancini’s primary
argument is that the MSPB erred by relying on the testi-
mony of the agency’s witnesses in finding the specifica-
tions of these two charges supported by substantial
evidence. The MSPB found the testimony of the agency’s
witnesses more persuasive than that of Mancini. We
have often held that when the MSPB’s credibility deter-
minations are not inherently improbable or discredited by
undisputed fact, we are not in a position to re-evaluate
them. See Pope v. U.S. Postal Serv., 114 F.3d 1144, 1149
(Fed. Cir. 1997); Hambsch v. Dep’t of Treasury, 796 F.2d
430, 436 (Fed. Cir. 1986); DeSarno v. Dep’t of Commerce,
761 F.2d 657, 661 (Fed. Cir. 1985); Griessenauer v. Dep’t
of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985). We find
nothing in the record here to justify reconsidering the
Board’s credibility determinations. The first specification
of the Neglect of Duty charge, which concerned Mancini’s
failure to transfer the Veteran to a female vocational
rehabilitation specialist, and the second specification of
the Inappropriate Conduct charge, which concerned the
transportation of the Veteran on Mancini’s personal
motorcycle, are supported by substantial evidence. Since
each charge is supported by a specification that we have
sustained, we conclude that all of the charges must be
sustained.
B Using Government Computer to Transmit Inappropri-
ate Materials
The third charge, Using Government Computer to
Transmit Inappropriate Materials, relates to the emails
containing sexual and racial innuendos that Mancini sent
to his wife and daughter. Mancini explains that “[t]his is
not a situation where [he] was regularly emailing inap-
propriate materials to mass number of recipients. [He]
9 MANCINI v. VA
forwarded emails on two occasions to immediate family
members merely to show what he was receiving at work.”
Pet’r’s Br. 20-21. To remove Mancini from federal service
on the basis of these emails, the VA was required to
prove, among other things, that “a relationship [was
present] between the misconduct and the objective of
promoting the efficiency of the service.” See James v.
Dale, 355 F.3d 1375, 1378 (Fed. Cir. 2004). Mancini
asserts that the MSPB failed to specify how a nexus
existed between his conduct in forwarding these emails
and the efficiency of the Dayton VA. He claims that the
MSPB “merely parroted the ‘efficiency of the service’
language without supporting facts.” Pet’r’s Reply Br. 11.
We disagree.
The MSPB described Mancini’s conduct and the con-
tents of the emails in detail. The MSPB then discussed
how the VA Handbook, Part IX, provides that government
property may only be used for officially-approved pur-
poses. The MSPB explained that “use of the [government]
computer to forward messages containing sexual or racial
innuendos is not appropriate, even assuming the mes-
sages were only forwarded to the appellant’s wife and
daughter. . . . Because improper use of government
property harms the efficiency of the service, the charge is
sustained.” Initial Decision, slip op. at 9. We see no error
in the MSPB’s finding. It is self-evident that using gov-
ernment resources to send racially and sexually charged
emails is inappropriate; such conduct is a misuse of public
funds and reflects poorly on the agency.
C Providing Inconsistent Statements Under Oath
The fourth charge against Mancini is that he provided
inconsistent statements under oath. When he was ques-
tioned on March 21, 2008, Mancini testified that the
MANCINI v. VA 10
Intern had informed him that the Intern was developing a
friendship with the Veteran. While giving sworn testi-
mony on April 11, 2008, however, Mancini claimed that
the Intern had “never” told him that “a friendship or
relationship” was developing with the Veteran. J.A. 635.
Contrary to Mancini’s assertions, we agree with the
MSPB that his statements were inconsistent. There is
also no merit to Mancini’s contention that he could not be
disciplined for making inconsistent statements. We
therefore sustain the Board’s decision as to this charge.
D Reasonableness of Penalty
Finally, Mancini challenges the Board’s determination
that removal was an appropriate penalty. Mancini argues
that the MSPB erred in failing to consider all of the
relevant factors pursuant to Douglas v. Veterans Admini-
stration, 5 M.S.P.R. 280 (1981), which provides a list of
twelve factors that should be considered in determining
the appropriateness of a penalty. The Board, however, is
not required to “consider every one of the 12 Douglas
factors ‘mechanistically by [a] preordained formula.’”
Webster v. Dep’t of Army, 911 F.2d 679, 686 (Fed. Cir.
1990) (quoting Douglas, 5 M.S.P.R. at 306). The deciding
official here, whose determinations were adopted by the
MSPB, expressly considered all of the Douglas factors.
Because we uphold the Board’s decision with respect to
each of the charges against Mancini and because the
Board did not err in finding that removal was not an
inappropriate sanction, we sustain the Board’s decision as
to penalty. Our decision setting aside the Board’s deci-
sion as to the two specifications does not affect the pen-
alty since there is no indication that the agency would
have reached a different result absent those two specifica-
tions.
AFFIRMED
11 MANCINI v. VA
COSTS
No costs. | 01-03-2023 | 07-21-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3395743/ | This case is here on writ of error to review a judgment for plaintiff below entered by the Circuit Court of Dade County, Florida. The plaintiff below sustained personal injuries on April 13, 1940, by stepping into a depression, hole or excavation situated in a public parkway of the City of Miami Beach adjacent to 63rd Street, which is located between Indian Creek Drive and Collins Avenue. The plaintiff was injured *Page 327
while walking across a grass plot in which the city maintained and operated a pumping station. The negligence alleged was the failure of the city to keep the parkway in a safe condition for the use and benefit of pedestrians.
The testimony discloses that the plaintiff, while walking across the parkway at the point described in the declaration, stepped into the depression or excavation and was injured. The extent of the injuries sustained can or may be admitted for the purpose of a decision of this case. The pivotal point presented is whether or not the defendant, under the circumstances and conditions presented by this record, was guilty of negligence in permitting or allowing the depression to exist in a public parkway used by pedestrians.
It is settled law that a municipal corporation is liable for resulting injuries from a failure to repair streets or sidewalks. It is required to exercise reasonable diligence in repairing defects after the unsafe condition of the street or sidewalk is known or ought to have been known to the officers thereof having authority to act. See City of Orlando v. Heard,29 Fla. 581, 11 So. 182. Likewise, the same rule was subsequently enunciated when it was held that municipal corporations have the power under the statutes of Florida to regulate and control the grading, constructing and repairing of streets and sidewalks, and in the exercise of this power, it is charged with the duty of exercising reasonable diligence in the repair of defects in streets and sidewalks after the unsafe condition thereof is known to the officers having authority to act. See City of Daytona v. Edson, 46 Fla. 463, 34 So. 954; City of Pensacola v. Jones, 58 Fla. 208, 50 So. 874. The same rule was reiterated by this *Page 328
Court in City of Clearwater v. Gautier, 119 Fla. 476,161 So. 433, and City of St. Petersburg v. Roach, not yet reported.
Plaintiff's Exhibit No. 6 is a photograph of the depression in the parkway into which plaintiff stepped, fell and sustained injuries. The depression does not appear to be on a street or sidewalk, but in a parkway. The power conferred upon municipal corporations by statutes to regulate and control the grading, construction and repair of streets and sidewalks cannot, in the absence of statutory authority, be extended to include a park or parkway within a municipality. The several statutes make it the mandatory duty of a municipality to exercise reasonable diligence in the repair of defective streets and sidewalks after the unsafe condition thereof is known, or ought to have been known to the officers having authority to act. If the municipality fails to discharge its mandatory duty in repairing defective streets and sidewalks, then it is liable in damages for injuries because of the non performance of its duty. The evidence in this case fails to bring the plaintiff within the rule. It was error on the part of the trial court to deny the defendant's motion for a directed verdict.
The judgment appealed from is hereby reversed.
TERRELL, BUFORD and ADAMS, JJ., concur.
THOMAS, J., agrees to conclusion.
BROWN, C. J., and WHITFIELD, J., dissent. *Page 329 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3851072/ | I do not agree with all that is said in the opinion of the court. I agree that the judgment must be reversed on the ground (1) the evidence is sufficient to go to the jury on the issue of defendant's negligence; and (2) that decedent's alleged contributory negligence was not shown to be so clear as to allow the court to declare the fact.
Mr. Justice HORACE STERN and Mr. Justice ALLEN M. STEARNE concur in this opinion. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3395745/ | The facts of the case are stated in the opinion of Mr. Justice Davis filed in connection herewith.
Section 18, Article III, Constitution, provides that:
"No law shall take effect until sixty days from the final adjournment of the session of the Legislature at which it may have been enacted unless otherwise specially provided in such law."
Chapter 16848, Laws of Florida, 1935, Senate Bill No. 724, provides:
"Section 20. This Act shall become effective immediately upon its becoming a law."
The Act was approved by the Governor June 1st, 1935, and became a law upon such executive approval. Section *Page 203
28, Article III, Constitution. Parker v. Evening News Pub. Co.,54 Fla. 482, 44 So. 718.
The taxes levied by Subdivision A of Section 4 of the Act "shall be due and payable on the first day of July of each and every year." The taxes levied and imposed by Subdivision B of Section 4 of this Act "shall be paid monthly * * * on or before the fifteenth day of August, 1935, and on or before the fifteenth day of every calendar month thereafter." There is nothing in the Act authorizing the courts to change the effective date of the statute that is "specially provided in such law" under the Constitution, or to change the dates on which statutory taxes "shall be due and payable" by the express terms of the law. When a statute pursuant to the Constitution specifically states the time when the "law shall take effect" or "shall become effective" the courts are without legal power or authority to change the time.
Section 18 of Chapter 14868, Acts of 1935, provides that if any portion "of this Act" be "held or declared to be unconstitutional, inoperative or void, such holding for invalidity shall not affect the remaining portions of this Act; * * * and the remainder of the Act after the exclusion of such part or parts shall be deeded and held to be valid as if such excluded parts had not been included herein." Such provisions authorize the court to consider as excluded from the Act any part thereof held to be "unconsitutional, inoperative or void," and it is enacted that the "remainder of this Act * * * shall be deemed and held to be valid." There is no authority given to change any words used in the Act, or to substitute other provisions for those contained in the Act.
The provisions of the Act imposing taxes are specific, affirmative and severable, not indefinite or misleading; *Page 204
and distinct, severable portions of such tax provisions are held to be constitutional. As such valid provisions have not heretofore been adjudged invalid by this Court, such severable valid portions of the Act are constitutional from the date of enactment, and are enforceable as specifically provided in the statute. The Circuit Court in granting a temporary injunction held the entire Act to be unconstitutional, but that decree was subject to appeal and is here appealed. This litigation is not a criminal prosecution, nor is it for the collection of penalties. The question is not one of indefiniteness and construction, but of the constitutionality of the whole of the severable parts of the specific, plain and positive provisions of the Acts which impose the taxes.
Smith v. Cahoon, 283, U.S. 553, 51 Sup. Ct. 582, 75, L. Ed. 1264, was a habeas corpus proceeding in a criminal prosecution, under a regulatory statute which was indefinite in defining the obligation it imposed upon the petitioner, Smith. In Pierce Oil Corp. v. Hopkins, 264 U.S. 137, 44 Sup. Ct. 251, 68 L. Ed. 593, questions of whether the Act was unconstitutional and whether its alleged uncertainty was removed by construction were treated as wholly different matters.
In Wiseman v. Phillips (Ark.) 84 S.W.2d 91, the following statute of that State was applicable:
"Whenever, by the decision of any circuit court, a construction may be given to any penal or other statute, every act done in good faith in conformity with such construction after the making of such decision, and before the reversal thereof by the Supreme Court, shall be so far valid that the party doing such act shall not be liable to any penalty or forfeiture for any such act that shall have been adjudged lawful by such decision of the Circuit Court." *Page 205
There is no statute of that nature in this State.
As required by the Constitution, Chapter 16848, Acts of 1935, expressly provides that the Act "shall become effective immediately upon becoming a law," which was upon the approval of the Act by the Governor, June 1, 1935. The statute also expressly provides that the annual taxes imposed by Subdivision A of Section 4 of the Act shall be due and payable July 1st, "of each and every year" and that the gross receipts taxes imposed by Subdivision B of Section 4 of the Act "shall be paid monthly * * * on or before the fifteenth day of August, 1935, and on or before the fifteenth day of every calendar month thereafter." Such express provisions of the statute as to when the taxes "shall be due and payable" are not adjudged to be unconstitutional.
All of the taxes imposed by Subdivision A of Section 4, and the monthly gross receipts tax imposed by Class 1 "upon one store," a several portion of Subdivision B of Section 4 of the Act, are held to be constitutional; and this court has no authority to suspend or postpone the operation of the valid portions of the statute from the dates in 1935, expressly fixed therein, until February 25, 1936.
The foregoing views are concurred in by Mr. Justice TERRELL and Mr. Justice BROWN, who, with the writer, have reached the conclusion that the injunction granted below should be so modified or dissolved as to permit the terms of Chapter 16848, Acts 1935, as construed and upheld to be valid in part by this Court, to be enforced as of July 1, 1935, in accordance with its terms. The views of Mr. Justice ELLIS are stated in the separate opinion prepared and filed by him. The views of Mr. Justice DAVIS, which are concurred in by Mr. Justice BUFORD, are set forth in the separate opinion prepared and filed by Mr. Justice DAVIS. *Page 206
This court being evenly divided as to instructions or directions that should be given to the Circuit Court with reference to the orders appealed from, Mr. Justice DAVIS concurs in the conclusion that the injunction granted June 18, 1935, against the enforcement of the Act should have been dissolved upon the motion of the State Comptroller, and that the cause should now be remanded to the Circuit Court with specific direction to the Chancellor to grant such dissolution.
Order refusing to modify or vacate injunction reversed with directions to dissolve the injunction as prayed for. Order permitting filing of supplemental and amended bill of complaint affirmed, but without prejudice to assertion of appropriate motions or defenses to same.
TERRELL and BROWN, J.J., concur.
BUFORD, and DAVIS, J.J., concur in the conclusion stated.
ELLIS, P.J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3850746/ | Argued January 31, 1927.
The question here involved is the same as was presented in the preceding case: Com. v. Pastor et al. Here the appellant, a corporation of the State of Delaware, *Page 28
is proposing to sell its capital stock through its officers acting without compensation, no commission being charged and no officer being engaged in selling the stock for a profit. The court below determined in the first instance that the corporation was not a dealer and dismissed the proceedings. Subsequently the attorney general called to the court's attention the decision of the Superior Court in the Pastor Case, which had not been rendered at the time the case at bar was determined in the common pleas; thereupon the court reversed its decision and entered judgment in favor of defendant and plaintiff appealed.
For the reasons stated in the case of Com. v. Pastor et al., the judgment is reversed and the proceeding dismissed at the cost of appellee. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/106000/ | 361 U.S. 516 (1960)
BATES ET AL.
v.
CITY OF LITTLE ROCK ET AL.
No. 41.
Supreme Court of United States.
Argued November 18, 1959.
Decided February 23, 1960.
CERTIORARI TO THE SUPREME COURT OF ARKANSAS.
Robert L. Carter argued the cause for petitioners. With him on the brief was George Howard, Jr.
*517 Joseph C. Kemp argued the cause for the City of Little Rock, respondent. With him on the brief was C. Richard Crockett.
MR. JUSTICE STEWART delivered the opinion of the Court.
Each of the petitioners has been convicted of violating an identical ordinance of an Arkansas municipality by refusing a demand to furnish city officials with a list of the names of the members of a local branch of the National Association for the Advancement of Colored People. The question for decision is whether these convictions can stand under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Municipalities in Arkansas are authorized by the State to levy a license tax on any person, firm, individual, or corporation engaging in any "trade, business, profession, vocation or calling" within their corporate limits.[1] Pursuant to this authority, the City of Little Rock and the City of North Little Rock have for some years imposed annual license taxes on a broad variety of businesses, occupations, and professions.[2] Charitable organizations which engage in the activities affected are relieved from paying the taxes.
In 1957 the two cities added identical amendments to their occupation license tax ordinances. These amendments require that any organization operating within the municipality in question must supply to the City Clerk, *518 upon request and within a specified time, (1) the official name of the organization; (2) its headquarters or regular meeting place; (3) the names of the officers, agents, servants, employees, or representatives, and their salaries; (4) the purpose of the organization; (5) a statement as to dues, assessments, and contributions paid, by whom and when paid, together with a statement reflecting the disposition of the funds and the total net income; (6) an affidavit stating whether the organization is subordinate to a parent organization, and if so, the latter's name. The ordinances expressly provide that all information furnished shall be public and subject to the inspection of any interested party at all reasonable business hours.[3]
*519 Petitioner Bates was the custodian of the records of the local branch of the National Association for the Advancement of Colored People in Little Rock, and petitioner Williams was the custodian of the records of the North Little Rock branch. These local organizations supplied the two municipalities with all the information required by the ordinances, except that demanded under § 2E of each ordinance which would have required disclosure of the names of the organizations' members and contributors. Instead of furnishing the detailed breakdown required by this section of the North Little Rock ordinance, the petitioner Williams wrote to the City Clerk as follows:
*520 "E. The financial statement is as follows:
January 1, 1957 to December 4, 1957.
Total receipts from membership and
contributors $252.00.
Total expenditures. . . . . . . . . . . . . . . . $183.60
(to National Office)
Secretarial help. . . . . . . . . . . . . . . . . 5.00
Stationery, stamps, etc. . . . . . . . . . . . . . 3.00
________
Total. . . . . . . . . . . . . . . . . . . . . . $191.60
On Hand . . . . . . . . . . . . . . . . . . . . . . 60.40
"F. I am attaching my affidavit as president indicating that we are a Branch of the National Association for the Advancement of Colored People, a New York Corporation.
"We cannot give you any information with respect to the names and addresses of our members and contributors or any information which may lead to the ascertainment of such information. We base this refusal on the anti-NAACP climate in this state. It is our good faith and belief that the public disclosure of the names of our members and contributors might lead to their harassment, economic reprisals, and even bodily harm. Moreover, even aside from that possibility, we have been advised by our counsel, and we do so believe that the city has no right under the Constitution and laws of the United States, and under the Constitution and laws of the State of Arkansas to demand the names and addresses of our members and contributors. We assert on behalf of the organization and its members the right to contribute to the NAACP and to seek under its aegis to accomplish the aims and purposes herein described free from any restraints or interference from city or state officials. In addition we assert the right of our *521 members and contributors to participate in the activities of the NAACP, anonymously, a right which has been recognized as the basic right of every American citizen since the founding of this country. . . ."
A substantially identical written statement was submitted on behalf of the Little Rock branch of the Association to the Clerk of that city.
After refusing upon further demand to submit the names of the members of her organization,[4] each petitioner was tried, convicted, and fined for a violation of the ordinance of her respective municipality. At the Bates trial evidence was offered to show that many former members of the local organization had declined to renew their membership because of the existence of the ordinance in question.[5] Similar evidence was received in the Williams *522 trial,[6] as well as evidence that those who had been publicly identified in the community as members of the National Association for the Advancement of Colored People had been subjected to harassment and threats of bodily harm.[7]
On appeal the cases were consolidated in the Supreme Court of Arkansas, and, with two justices dissenting, the convictions were upheld. 229 Ark. 819, 319 S.W.2d 37. The court concluded that compulsory disclosure of the membership lists under the circumstances was "not an unconstitutional invasion of the freedoms guaranteed. . ." but "a mere incident to a permissible legal result."[8] Because of the significant constitutional question involved, we granted certiorari. 359 U.S. 988.
Like freedom of speech and a free press, the right of peaceable assembly was considered by the Framers of our Constitution to lie at the foundation of a government *523 based upon the consent of an informed citizenrya government dedicated to the establishment of justice and the preservation of liberty. U. S. Const., Amend. I. And it is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the Fourteenth Amendment from invasion by the States. De Jonge v. Oregon, 299 U.S. 353, 364; N. A. A. C. P. v. Alabama, 357 U.S. 449, 460.
Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference. Grosjean v. American Press Co., 297 U.S. 233; Murdock v. Pennsylvania, 319 U.S. 105; American Communications Assn. v. Douds, 339 U.S. 382, 402; N. A. A. C. P. v. Alabama, supra; Smith v. California, 361 U.S. 147. "It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective . . . restraint on freedom of association. . . . This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.. . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." N. A. A. C. P. v. Alabama, 357 U. S., at 462.
On this record it sufficiently appears that compulsory disclosure of the membership lists of the local branches of the National Association for the Advancement of Colored People would work a significant interference with the freedom of association of their members.[9] There was *524 substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm. There was also evidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw. This repressive effect, while in part the result of private attitudes and pressures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members' names. N. A. A. C. P. v. Alabama, 357 U. S., at 463. Thus, the threat of substantial government encroachment upon important and traditional aspects of individual freedom is neither speculative nor remote.
Decision in this case must finally turn, therefore, on whether the cities as instrumentalities of the State have demonstrated so cogent an interest in obtaining and making public the membership lists of these organizations as to justify the substantial abridgment of associational freedom which such disclosures will effect. Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling. N. A. A. C. P. v. Alabama, 357 U.S. 449. See also Jacobson v. Massachusetts, 197 U.S. 11; Schneider v. State, 308 U.S. 147; Cox v. New Hampshire, 312 U.S. 569, 574; Murdock v. Pennsylvania, 319 U.S. 105; Prince v. Massachusetts, 321 U.S. 158; Kovacs v. Cooper, 336 U.S. 77.
It cannot be questioned that the governmental purpose upon which the municipalities rely is a fundamental one. No power is more basic to the ultimate purpose and function of government than is the power to tax. See James v. Dravo Contracting Co., 302 U.S. 134, 150. Nor can it be doubted that the proper and efficient exercise of this *525 essential governmental power may sometimes entail the possibility of encroachment upon individual freedom. See United States v. Kahriger, 345 U.S. 22; Hubbard v. Mellon, 55 Ohio App. D. C. 341, 5 F.2d 764.
It was as an adjunct of their power to impose occupational license taxes that the cities enacted the legislation here in question.[10] But governmental action does not automatically become reasonably related to the achievement of a legitimate and substantial governmental purpose by mere assertion in the preamble of an ordinance. When it is shown that state action threatens significantly to impinge upon constitutionally protected freedom it becomes the duty of this Court to determine whether the action bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification.
In this record we can find no relevant correlation between the power of the municipalities to impose occupational license taxes and the compulsory disclosure and publication of the membership lists of the local branches of the National Association for the Advancement of Colored People. The occupational license tax ordinances of the municipalities are squarely aimed at reaching all the commercial, professional, and business occupations within the communities. The taxes are not, and as a matter of state law cannot be, based on earnings or income, but upon the nature of the occupation or enterprise conducted.
Inquiry of organizations within the communities as to the purpose and nature of their activities would thus appear to be entirely relevant to enforcement of the ordinances. Such an inquiry was addressed to these organizations and was answered as follows:
"We are an affiliate of a national organization seeking to secure for American Negroes their rights as *526 guaranteed by the Constitution of the United States. Our purposes may best be described by quoting from the Articles of Incorporation of our National Organization where these purposes are set forth as:
" `. . . voluntarily to promote equality of rights and eradicate caste or race prejudice among the citizens of the United States; to advance the interest of colored citizens; to secure for them impartial suffrage; and to increase their opportunities for securing justice in the courts, education for their children, employment according to their ability, and complete equality before the law. To ascertain and publish all facts bearing upon these subjects and to take any lawful action thereon; together with any kind and all things which may lawfully be done by a membership corporation organized under the laws of the State of New York for the further advancement of these objects.'
"The Articles of Incorporation hereinabove referred to are on file in the office of the Secretary of State of the State of Arkansas. In accord with these purposes and aims, [this] . . . Branch, NAACP was chartered and organized, and we are seeking to effectuate these principles within [this municipality]."
The municipalities have not suggested that an activity so described, even if conducted for profit, would fall within any of the occupational classifications for which a license is required or a tax payable. On oral argument counsel for the City of Little Rock was unable to relate any activity of these organizations to which a license tax might attach.[11] And there is nothing in the record to indicate *527 that a tax claim has ever been asserted against either organization. If the organizations were to claim the exemption which the ordinance grants to charitable endeavors, information as to the specific sources and expenditures of their funds might well be a subject of relevant inquiry. But there is nothing to show that any exemption has ever been sought, claimed, or granted and positive evidence in the record to the contrary.
In sum, there is a complete failure in this record to show (1) that the organizations were engaged in any occupation for which a license would be required, even if the occupation were conducted for a profit; (2) that the cities have ever asserted a claim against the organizations for payment of an occupational license tax; (3) that the organizations have ever asserted exemption from a tax imposed by the municipalities, either because of their alleged nonprofit character or for any other reason.
We conclude that the municipalities have failed to demonstrate a controlling justification for the deterrence of free association which compulsory disclosure of the membership lists would cause. The petitioners cannot be punished for refusing to produce information which the municipalities could not constitutionally require. The judgments cannot stand.
Reversed.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, concurring.
We concur in the judgment and substantially with the opinion because we think the facts show that the ordinances as here applied violate freedom of speech and *528 assembly guaranteed by the First Amendment which this Court has many times held was made applicable to the States by the Fourteenth Amendment, as for illustration in Jones v. Opelika, 316 U.S. 584, at 600, dissenting opinion adopted by the Court in 319 U.S. 103; Murdock v. Pennsylvania, 319 U.S. 105, at 108; Kingsley Corp. v. Regents, 360 U.S. 684. And see cases cited in Speiser v. Randall, 357 U.S. 513, 529, at 530 (concurring opinion).
Moreover, we believe, as we indicated in United States v. Rumely, 345 U.S. 41, 48, at 56 (concurring opinion), that First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government. One of those rights, freedom of assembly, includes of course freedom of association; and it is entitled to no less protection than any other First Amendment right as N. A. A. C. P. v. Alabama, 357 U.S. 449, at 460, and De Jonge v. Oregon, 299 U.S. 353, at 363, hold. These are principles applicable to all people under our Constitution irrespective of their race, color, politics, or religion. That is, for us, the essence of the present opinion of the Court.
NOTES
[1] Ark. Stat., 1947, § 19-4601.
[2] Little Rock Ord. No. 7444. North Little Rock Ord. No. 1786. These ordinances have been amended numerous times by adding various businesses, occupations and professions to be licensed, and by changing the rates of the taxes imposed.
[3] The pertinent provisions of the ordinances are as follows:
"Whereas, it has been found and determined that certain organizations within the City . . . have been claiming immunity from the terms of [the ordinance], governing the payment of occupation licenses levied for the privilege of doing business within the city, upon the premise that such organizations are benevolent, charitable, mutual benefit, fraternal or non-profit, and
"Whereas, many such organizations claiming the occupation license exemption are mere subterfuges for businesses being operated for profit which are subject to the occupation license ordinance;
"Now, Therefore, Be It Ordained by the City Council of the City . . . .
"Section 1. The word `organization' as used herein means any group of individuals, whether incorporated or unincorporated.
"Section 2. Any organization operating or functioning within the City . . . including but not limited to civic, fraternal, political, mutual benefit, legal, medical, trade, or other organization, upon the request of the Mayor, Alderman, Member of the Board of Directors, City Clerk, City Collector, or City Attorney, shall list with the City Clerk the following information within 15 days after such request is submitted:
"A. The official name of the organization.
"B. The office, place of business, headquarters or usual meeting place of such organization.
"C. The officers, agents, servants, employees or representatives of such organization, and the salaries paid to them.
"D. The purpose or purposes of such organization.
"E. A financial statement of such organization, including dues, fees, assessments and/or contributions paid, by whom paid, and the date thereof, together with the statement reflecting the disposition of such sums, to whom and when paid, together with the total net income of such organization.
"F. An affidavit by the president or other officiating officer of the organization stating whether the organization is subordinate to a parent organization, and if so, the name of the parent organization.
"Section 3. This ordinance shall be cumulative to other ordinances heretofore passed by the City with reference to occupation licenses and the collection thereof.
"Section 4. All information obtained pursuant to this ordinance shall be deemed public and subject to the inspection of any interested party at all reasonable business hours.
"Section 5. Any section or part of this ordinance declared to be unconstitutional or void shall not affect the remaining sections of the ordinance, and to this end the sections or subsections hereof are declared to be severable.
"Section 6. Any person or organization who shall violate the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined . . . ."
[4] Section 2E of the ordinances does not explicitly require submission of membership lists, but, rather, of "dues . . . and/or contributions paid, by whom paid . . . ." That the effect of this language was to require submission of the names of all members was made clear in the supplemental request made by the City Clerk of North Little Rock to the petitioner Williams:
"Dear Madam:
"At a regular meeting of the North Little Rock City Council held in the Council Chamber on December 9, 1957, I was instructed to request a list of the names and addresses of all the officers and members of the North Little Rock Branch of the NAACP.
"This portion of the questionaire answered by you on December 4, 1957 did not furnish this information. The above information must be received not later than December 18, 1957 as requested in the original questionaire received by you on December 3, 1957."
(In fact, the names of all the officers of the North Little Rock branch had already been submitted in accordance with § 2C of the ordinance.)
[5] For example, petitioner Bates testified: "Well, I will say it like thisfor the past five years I have been collecting, I guess, 150 to 200 members each yearjust renewals of the same people. This year, I guess I lost 100 or 150 of those same members because when I went back for renewals they said, `Well, we will wait and see what happens in the Bennett Ordinance.' "
[6] For example, a witness testified: "Well, the people are afraid to join, afraid to join because the peoplethey don't want their names exposed and they are afraid their names will be exposed and they might lose their jobs. They will be intimidated and they are afraid to join. They said, `Well, you will have to wait. I can't do it.' They are afraid to give theirbecause they are afraid somebody, if their names are publicized, then they will lose their jobs or be intimidated or what-not."
[7] For example, petitioner Williams testified: "Well, I havewe were not able to rest at night or day for quite a while. We had to have our phone number changed because they call that day and night and then wethey have found out the second phone number and they did the same way and they called me all hours of night over the telephone and then I had to get a new number and they have been trying to find out that one, of course. I would tell them who is talking and they have throwed stones at my home. They wrote meI got aI received a letter threatening my life and they threaten my life over the telephone. That is the way."
[8] The Arkansas Supreme Court construed § 2E of the ordinances as requiring disclosure "of the membership list." 229 Ark., at ___, 319 S. W. 2d, at 41.
[9] The cities do not challenge petitioners' right to raise any objections or defenses available to their organizations, nor do the cities challenge the right of the organizations in these circumstances to assert the individual rights of their members. Cf. N. A. A. C. P. v. Alabama, 357 U.S. 449, at 458-459.
[10] See note 3, supra.
[11] A "catch-all" provision of the Little Rock ordinance imposes an annual tax upon "[a]ny person, firm, or corporation within the City . . . engaging in the business of selling any and all kinds of goods, wares, and merchandise, whether raw materials or finished products, or both, from a regularly established place of business maintained within the City . . . ." The tax is measured by "the gross value of the average stock inventory for the preceding year," with a minimum of $25. It was conceded on oral argument by counsel for the City of Little Rock that this provision was inapplicable. No brief was filed nor oral argument made on behalf of the City of North Little Rock. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3859815/ | When this case was here before, the Commonwealth was neither a party to the record nor represented at the argument. We then held, for the reasons stated in an opinion filed December 14, 1936, that the Attorney General in appointing, under the provisions of Section 907 of the Administrative Code of April 9, 1929, Article IX, P.L. 177, 239, 71 P. S. § 297,1 John L. Pipa, Jr., Esq., appellant herein, a special attorney to investigate criminal charges against certain persons and prosecute the alleged offenders in Snyder County, had power to fix the compensation of his appointee, but was without authority in law to direct and require that any part of that compensation be paid by the County of Snyder.
On December 22, 1936, the Attorney General filed his petition for leave to intervene and for a reargument; this petition was granted and the case reargued during the Harrisburg Term.
We have not been convinced by the able argument in *Page 299
behalf of the Commonwealth that our prior disposition of this appeal was erroneous. The fundamental question with which the Commonwealth is concerned may be thus broadly stated: When the Attorney General, pursuant to the provisions of Section 907 of the Administrative Code of 1929, retains and employs a special attorney to represent the Commonwealth in criminal proceedings arising in any county, may he, without the consent of the commissioners thereof, impose upon such county liability for the payment of the compensation of his appointee?
Two main propositions were advanced at the reargument by the representatives of the Commonwealth in support of their contention that the Attorney General has that authority.
First, that Section 907 of the Code repeals by implication so much of Section 3 of the Act of May 2, 1905, P.L. 351, 71 P. S. § 819, as provides that the compensation of such an appointee shall be "paid by warrant drawn by the Auditor General upon the State Treasurer."
Their second proposition is that, as the appointment of a special attorney is not mandatory, the Attorney General may insert as a condition of the appointment a provision that the compensation of the appointee be paid by the county in which his services are to be rendered.
As applied to the case in hand, attention is directed to the fact that the commissioners of Snyder County did not protest against the payment of appellant's compensation until after his services had been rendered and it is argued that they, therefore, impliedly accepted all the conditions of the order appointing appellant.2 *Page 300
We considered the first proposition to some extent in our former opinion. Reference was there made, inter alia, to the relation between Article IX of the Administrative Code of June 7, 1923, P.L. 498, 548, superseded by the same article of the Code of 1929, supra, and the Act of 1905, supra. The Act of 1905 was the first legislation providing for the appointment by the Attorney General, upon the request of a president judge, of special attorneys to conduct criminal proceedings in a judicial district. The first and second sections of the Act of 1905 were included practically verbatim in Section 907 of each code. The provision of Section 3 of the Act of 1905 authorizing the Attorney General to fix the compensation of special attorneys retained and employed by him was also carried into Section 907 of the codes. We also set forth our reasons for concluding there was no occasion for repeating in the codes the provision of Section 3 of the Act of 1905 expressly directing that the compensation of the special attorneys, whose appointments were therein provided for, should be paid out of the State Treasury, because under the Code of 1929 these special attorneys were specifically classified with the special deputy attorneys general authorized to be appointed by the Attorney General under Section 906, and therefore entitled to receive their compensation out of the State Treasury.
We need not here repeat what was said in that opinion upon that subject, but, in view of the contention of the Commonwealth that the provision of the Act of 1905 for payment out of the State Treasury has been impliedly repealed by the Code of 1929, we may add the following observations:
Concededly, no part of the Act of 1905 has been specifically repealed by either code. "Repeal is wholly a question of legislative intent." Com. ex rel. v. Brown, *Page 301 210 Pa. 29, 36, 59 A. 479. In the present case regard must be had to the character and scope of the legislation embodied in the codes. The question of the constitutionality of the Code of 1923 was before our Supreme Court in Com. ex rel. v. Snyder, 279 Pa. 234,123 A. 792. It was there pointed out that, as stated in its title, its purpose was to provide for and reorganize "the conduct of the executive and administrative work of the Commonwealth" by the executive departments thereof, rather than to revise and codify matters of substantive law. Article XXIX of the Code of 1929, relating to its interpretation and effective date, Section 2902, reads: "Continuation of Existing Laws. The provisions of this act, so far as they are the same as those of existing laws, shall be construed as a continuation of such laws and not as new enactments."
Repeal by implication is not favored, particularly where, as here, there is no repugnancy or irreconcilable conflict between the statutory enactments under consideration: Patterson et al. v.Penna. Liquor Control Board, 125 Pa. Super. 192,189 A. 883; Carpenter v. Hutchison, 243 Pa. 260, 90 A. 154; Com. ex rel.v. DeCamp, 177 Pa. 112, 35 A. 601; Provident Life and Trust Co.v. Klemmer et al., 257 Pa. 91, 100, 101 A. 351; and Shibe's Case,117 Pa. Super. 7, 177 A. 234. Werner et al. v. King et al.,310 Pa. 120, 164 A. 918, cited to the contrary, is a case in which a former method of publishing the lists of mercantile appraisers was fully supplied by the Fiscal Code of April 9, 1929, P.L. 343, in which it was expressly provided that "all acts and parts of acts supplied by this act are hereby repealed."
The most that can be said in this case is that there is a discrepancy between the Act of 1905 and the codes, but the existence of such a discrepancy does not result in a repeal by implication: Keller et al. v. Staley et al., 78 Pa. Super. 184. We think the principles thus *Page 302
expressed in Com. v. Curry, 285 Pa. 289, 294, 132 A. 370, are applicable here: "Where there is no specific repeal of a prior act, or of any named part of it, by a subsequent statute on the same general subject, and where, as in the present instance, the latter, while omitting a definite provision of the former, yet contains nothing touching on, much less actually antagonistic to, the omitted part, the last legislation, in the absence of a demonstrated intention to deal with every aspect of the general subject in hand, does not necessarily repeal such omitted part, particularly where, as here, the later statute confines its repeal of former acts to such parts of them as are inconsistent with the provisions contained in the repealing statute. Com. v.Crowl, 245 Pa. 554, 559."
Additional support for our conclusion that the legislature intended to place the special attorneys, authorized to be appointed by Section 907, in the same class with the special deputy attorneys general provided for in Section 906 is found in the fact that in the Code of 1923 paragraph (b) of Section 906 authorized the Attorney General "from time to time to appoint and fix the compensation of special deputy attorneys general to represent the Commonwealth or any department, board or commission thereof, in special work or in particular cases," but when this paragraph was repeated in the Code of 1929 the legislature significantly included therein the "special attorneys" authorized to be appointed under Section 907. Section 906 obviously provides for the appointment of "special deputy attorneys general," as distinguished from "such deputy attorneys general as may be appointed to assist in the conduct of the regular work of the department." We think it equally clear that the legislature has definitely and expressly classified the "special attorneys" formerly appointed under the Act of 1905, in so far as the extent and source of *Page 303
payment of their compensation is concerned, with special deputy attorneys general.
Notwithstanding what was said in our former opinion with relation to the distinctions between the present case and the case of Com. ex rel. v. Irvin, 110 Pa. Super. 387,168 A. 868, the representatives of the Commonwealth attempt in their brief to support their present contention by reference to certain expressions contained in the opinion in that case. One of them (p. 394) reads: "It might be urged with considerable force that the Act of 1905 was repealed by implication." This, however, was followed by the distinct statement that we did not decide in that case "whether or not the Act of 1905 was repealed." Another expression relied upon by the Commonwealth is found at page 395 and reads: "Counties have the primary responsibility for the cost of all criminal proceedings, unless expressly relieved therefrom." The compensation here involved is not "costs" of the administration of criminal justice, as that term is used in our statutes and decisions. The rule applicable to charges of the nature here involved was thus stated in Com. v. Garramone,115 Pa. Super. 588, 176 A. 263: "As an agent or arm of the Commonwealth [a county] is liable to pay only such costs, in criminal cases, as the legislature has specifically imposed upon it, and in order to make [it] liable there must be clear statutory warrant or authority for such action, (citing cases)." See also Com. v. Henderson, 113 Pa. Super. 348, 173 A. 868.
So that there may be no further misunderstanding about the scope of our decision in the Irvin case, we now overrule the above quoted expressions and any other statements therein which may seem to be in conflict with the conclusions stated in our former opinion in the case now at bar or in this supplemental opinion.
The difficulty with the second proposition advanced *Page 304
in behalf of the Commonwealth, to the effect that the Attorney General had the right in making the appointment to impose the condition that appellant's compensation be paid by Snyder County, is that, when followed to its logical conclusion, it proves too much. It is to be noted that we are not dealing with an intervention by the Attorney General, personally or through one of his regular deputies, in the exercise of the common law powers vested in the Attorney General. These powers were fully considered by our Supreme Court in Com. ex rel. Minerd v.Margiotti and Com. ex rel. Reilly v. Margiotti, 325 Pa. 17,188 A. 524. It was there held that entirely aside from Article IX of the Administrative Code the Attorney General of Pennsylvania "is clothed with the powers and attributes which enveloped Attorneys General at common law." Prior to the Act of 1905 the only way the Attorney General could intervene was through the exercise of his common law powers. In the proceedings just cited it was held that these powers of the Attorney General were in nowise curtailed by the Act of 1905 (now Section 907 of the Administrative Code) but were somewhat enlarged thereby. The intervention with which we are here concerned was strictly under the provisions of Section 907. Such intervention does not take place by the Attorney General upon his own motion; it is statutory and the special attorney provided for may be appointed only upon the request of the president judge of the judicial district in question. If, as now contended in behalf of the Commonwealth, the Attorney General may impose as a condition of granting the request of the president judge that the compensation of the special attorney shall be paid by the county, it would logically follow that the president judge who made the request would be at liberty to accept or reject the condition, and, if he rejected, would *Page 305
be under no obligation to recognize the authority of the Attorney General's appointee.
In the case of Com. v. Ryan et al., 126 Pa. Super. 306,188 A. 764, one of the judges of Fayette County declined to recognize the authority of a special attorney appointed by the Attorney General under the provisions of Section 907 and quashed certain indictments signed by the appointee. Upon appeal to this court, the orders quashing the indictments were reversed and the indictments reinstated. Although the matter has, in our opinion, no particular bearing upon the merits of this case, it may be noted that the record shows that the appointment of appellant did not originate either with the district attorney or the president judge of Snyder County, but was pointedly suggested by the Attorney General and his fellow members of the Board of Pardons during certain proceedings before that tribunal.
Since the filing of our former opinion we have had the benefit of a declaration by our Supreme Court that a special attorney, appointed as was appellant, is not an "officer" of any kind but, practically, an employee of the Attorney General. In Com. ex rel.Minerd et al. v. Margiotti, supra, Mr. Justice SCHAFFER said (p. 31): "It is argued that the special attorney thus appointed holds an office. We think this by no means follows. He is just what the act says he is, a special attorney `retained and employed' by theAttorney General to represent the Commonwealth in the particular matter or matters just as the Attorney General may retain and employ special attorneys to represent the Commonwealth in other special situations when in his judgment it is proper to do so. The person so retained and employed is the representative of theAttorney General for the time being and in the business confidedto his care." (Italics supplied)
We think this supports our conclusion that the legislature *Page 306
intended that the Commonwealth, and not the county to which a special attorney happens to be assigned, should pay for the services of the person employed on its behalf by its chief law officer.
Upon this reconsideration of the questions involved under this appeal, we are still of the opinion that the Attorney General was without authority in law to impose upon the County of Snyder liability for the payment of appellant's compensation.
Order affirmed.
1 "Special Attorneys in Criminal Cases. — When the president judge, in the district having jurisdiction of any criminal proceedings, before any court of oyer and terminer, general jail delivery, or quarter sessions, in this Commonwealth, shall request the Attorney General to do so, in writing, setting forth that, in his judgment, the case is a proper one for the Commonwealth's intervention, the Attorney General is hereby authorized and empowered to retain and employ a special attorney or attorneys, as he may deem necessary, properly to represent the Commonwealth in such proceedings, and to investigate charges, and prosecute the alleged offenders against the law. Any attorney, so retained and employed, shall supersede the district attorney of the county in which the case or cases may arise, and shall investigate, prepare, and bring to trial the case or cases to which he may be assigned. He shall take the oath of office required by law to be taken by district attorneys, and shall be clothed with all the powers and subject to all the liabilities imposed upon them by law. The compensation for services rendered, and necessary expenses incurred by such attorney or attorneys, shall be fixed by the Attorney General."
2 "I hereby retain and employ as special attorney to represent the Commonwealth in the above proceedings, to investigate the charges therein and prosecute the alleged offenders, John L. Pipa, Jr., of Shamokin, Pennsylvania. Mr. Pipa will receive such compensation from the County of Snyder as shall hereafter be fixed by me and also his actual expenses incurred by him in performing his duties under this appointment." | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3849016/ | Argued March 18, 1925.
This litigation is between father and daughter; the father is plaintiff, the daughter, defendant and appellant.
The essential facts out of which the case arises are these: The father purchased a store property; he paid $12,000 for it, $7,500 in cash and assumed two mortgages amounting to $4,500. The property represented substantially all his possessions. The daughter was not present when he made the settlement; he directed that the deed should be made to her, which was done. She admits she paid none of the consideration, that her father paid it all. On the latter's behalf the argument is made that this fact of itself raises the presumption of a resulting trust in his favor. "Where one purchases an *Page 171
estate with his own money and the deed is taken in the name of another, a trust of the land results by presumption or implication of law, and without any agreement, to him who advances the money": Casciola v. Donatelli, 218 Pa. 624, 630; Lynch v. Cox, 23 Pa. 265, 268; Asam v. Asam, 239 Pa. 295, 297; King v. King, 281 Pa. 511, 513.
Appellant contends that where, as here, title to the purchased property has been placed in a daughter's name, there is a presumption of a gift to her. Although appellant has cited only cases involving husband and wife in support of her contention, there are decisions which show our rule to be the same as to father and child, namely, that, although a father has made payment of the purchase price, if title is made in the name of a child, there is a presumption of a gift to the child: Phillips v. Gregg, 10 Watts 158, 171; Murphy v. Nathans, 46 Pa. 508,513; Shaw v. Read, 47 Pa. 96, 103; Wheeler v. Kidder,105 Pa. 270, 274; Kern v. Howell, 180 Pa. 315, 322. This, however, is only a presumption and even in cases involving husband and wife, father and child, or other closely related persons, whether the transaction was a gift is a matter of intention which is to be ascertained from the attending circumstances: Phillips v. Gregg, 10 Watts 158, 171; Murphy v. Nathans, 46 Pa. 508,513; Kern v. Howell, 180 Pa. 315, 322; Hiester v. Hiester,228 Pa. 102, 107; 1 Perry on Trusts (6th ed.) secs. 146 and 147. Being only a presumption, it can, of course, be rebutted by competent evidence that the father's actual intention was not to make a gift to his daughter but, rather, to retain the equitable estate for himself. To ascertain the real intention, evidence tending both to rebut and to sustain the presumption will be received. Explanatory circumstances accompanying the transaction or subsequent conduct which tends to show what the past intention was are competent for this purpose: Phillips v. Gregg, 10 Watts 158, 171; Murphy v. Nathans, 46 Pa. 508, 513; Kern v. Howell, 180 Pa. 315, *Page 172
322; Hiester v. Hiester, 228 Pa. 102, 104; Gassner v. Gassner,280 Pa. 313, 317; 1 Perry on Trusts (6th ed.) sec. 147; 3 Pomeroy's Equity Jurisprudence (4th ed.) sec. 1041.
That the father paid the entire purchase price not being disputed, we are not concerned with any question of the weight and sufficiency of the evidence which is necessary to establish a resulting trust in his favor (as to which, see Walker v. Walker, 254 Pa. 220, 228; Olinger v. Shultz, 183 Pa. 469,474-5) but the question as to the evidence necessary to overcome the presumption of a gift to the daughter remains. The appellant contends that it should be clear, precise and indubitable. Although there is some confusion in the cases and a failure in others to distinguish between the situations (a) where the main question is as to whether the alleged cestui que trust furnished the purchase money, and (b) where it is admitted that he did furnish the consideration but the dispute is as to whether a gift was intended, these are separate and distinct problems calling for different degrees of proof: 3 Pomeroy's Equity Jurisprudence (4th ed.) 2362, note. Whatever quantum is necessary in the former instance, as to the latter we agree with the Supreme Court of Illinois (Hartley v. Hartley, 279 Ill. 593, 117 N.E. 69, 73, a case strikingly similar to the one in hand) that, "it is the intention of the parties in such cases that must control, and what that intention was may be proved by the same quantum or degree of evidence required to establish any other fact upon which a judicial tribunal is authorized to act." See also Kern v. Howell, 180 Pa. 315, 322; Gassner v. Gassner, 280 Pa. 313, 317. The evidence in rebuttal of the presumption must be directly to the point, but, if it is, though contradicted, the weight of the evidence which satisfies the conscience of the chancellor is sufficient.
It is the daughter's contention that the testimony in plaintiff's behalf did not overcome the presumptive gift to her and the evidence which she produced that there *Page 173
had been an actual gift, which fact she asserted. A witness called by her testified that he had heard the father tell his daughter he had bought a property for her, but on cross-examination he was in doubt as to whether plaintiff said he had bought, or was going to buy, and as to whether he had said he was going to give it to his daughter or had given it to her. On behalf of the father, it was shown, without contradiction, that he negotiated the purchase, paid the entire consideration and that its payment represented practically his entire estate (an important circumstance: Dorman v. Dorman,187 Ill. 154, 58 N.E. 235; Skahen v. Irving, 206 Ill. 597,69 N.E. 510), this the daughter knew; that he made other payments on account of the property out of his own pocket for insurance, interest on mortgage and for repairs, that he went into possession of the property, that when it was sold for $16,600, the check in settlement was drawn to the order of the daughter, who deposited it in bank and immediately gave him $4,000 thereof, $1,000 in cash and $3,000 in a check, which he deposited in his own bank account; the balance of the consideration, $8,600, was placed in a saving fund account to the daughter's credit. It further appeared, without contradiction, that the father paid the daughter's expenses connected with going to this settlement. Immediately after purchasing the property, the father went into possession of it and conducted a business therein, paying no rent for the part he occupied and receiving all the rents from those who were tenants of the other portions of it. He deposited the rents in the daughter's name, but when the property was sold she turned over to him all of the money in this account.
The father and his wife did not live together, and after the property had been sold he went to live with the defendant, although it does not appear that there was any agreement on the latter's part to support him. Differences arose between them, which resulted in his leaving the house and demanding from her the balance of the purchase price of the property. She refused to give it to *Page 174
him. He retained counsel, who notified the bank not to pay the money over to the daughter, but before this notice was received, she went to the bank and being unable to draw the money because of a rule of the institution as to notice, negotiated a loan from it for an amount slightly less than the deposit and received the money, which she appears to have secreted, although claiming to have invested it in liberty bonds. Her testimony as to where she bought the bonds and as to what she had done with them was so incredible that the chancellor gave no weight to it. He credited the testimony of the father and refused to believe that of the daughter alleging the gift, and found as a fact that there was no gift. Such finding, supported as it is by the evidence, is accepted by us: Gassner v. Gassner, 280 Pa. 313. Since the presumption of a gift to the daughter has been rebutted, her standing is the same as that of a stranger. It being admitted that the father paid the purchase price and having been shown to the chancellor's satisfaction that it was not his intention, by putting title in his daughter, to make a gift of the property to her, there is a resulting trust by implication of law in favor of the father.
The question was duly raised by appellant as to whether equity had jurisdiction, the allegation being made that the demand of the father was but a money demand. When the bill was filed, however, against the daughter and the bank in which she had deposited the money, there was still money left in the bank in the daughter's name and whatever its amount it was chargeable with the trust in the father's favor if the trust was established. This gave equity jurisdiction, and, jurisdiction having attached in equity for any purpose, it will be retained to round out the controversy: Schermer v. Wilmart,282 Pa. 55; Miron v. Percheck, 279 Pa. 456; 1 Pomeroy's Equity Jurisprudence, (4th ed. 1918) secs. 181, 231 et seq.; 21 Corpus Juris 137. *Page 175
The final decree entered by the chancellor directed defendant to pay over to plaintiff the money in her hands found to belong to him, with interest thereon, and that the bank pay the plaintiff the balance of the deposit remaining with it to the credit of the defendant. We have not been convinced that this disposition of the case was wrong. The court below had the parties and their witnesses before it; their credibility was for it, not for us. There is sufficient evidence in the record to uphold the decree, and, therefore, it is affirmed, and the defendant, Fannie Ratkosky, is directed to pay the costs. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1275500/ | 10 Mich. App. 121 (1968)
159 N.W.2d 162
PEOPLE
v.
SHIRK.
Docket No. 33.
Michigan Court of Appeals.
Decided March 25, 1968.
April 15, 1968.
Case remanded July 24, 1968.
*123 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, S. Jerome Bronson, Prosecuting Attorney, and Raymond J. Hand, Assistant Prosecuting Attorney, for the people.
Douglas W. Booth, for defendant on appeal.
Leave to appeal granted April 15, 1968.
And case remanded to Court of Appeals July 24, 1968. See 381 Mich. 764.
J.H. GILLIS, J.
Defendant, Richard H. Shirk, and one Gerald McKay were charged with first-degree murder[*] in the death of Carlo Vitale whose body was found in Oakland county on January 19, 1960. They were tried together before a jury in the Oakland county circuit court, which trial commenced on Tuesday, May 17, 1960. On May 20, 1960, the prosecuting attorney was allowed to file an amendment to the information, thereby adding a second count charging Gerald McKay with murder in the second degree. This was done after police officers testified as to confessions made by McKay which had implicated Richard H. Shirk. Gerald McKay then offered, and the court accepted, a plea of guilty to the second count. The trial proceeded as to defendant Shirk only.
During the course of the trial and prior to McKay's plea, when the confession of McKay was introduced into evidence, defendant Shirk's counsel requested, and the court gave, instructions to the jury that such confession could be considered by the jury only against defendant McKay.
*124 After defendant Shirk had testified denying all knowledge of the killing, McKay was called as a rebuttal witness by the prosecution. His testimony was, in part, as follows:
"Q. Do you know the respondent Richard McKay or Richard Shirk, rather?
"A. Yes.
"Q. Are you acquainted with the facts surrounding the shooting of Carlo Vitale?
"A. I am not going to answer.
"Q. Were you present when Carlo Vitale was killed?
"A. I am not going to answer any questions, Mr. Barry.
"Q. You are here under subpoena of this court?
"A. Yes.
"Q. Would you tell this court and the jury why you refuse to answer questions concerning this matter?
"A. Because I am afraid of Dick, that is why.
"Q. Of Dick Shirk?
"A. Yes.
"Q. In what way?
"A. Just afraid of him, that's all. I don't want to be wrong about anything. I am not going to answer any questions.
"Mr. Barry: Your witness."
Then on cross-examination he testified:
"Q. Were you told to say that now, sir?
"A. Was I told to say that? No. What I was told I was that is what I told I was going to say.
"Q. You told the police that Carlo Vitale was killed on November 28th.
"A. I am not going to answer any questions.
"Q. Was Carlo Vitale killed on November 28th?
"A. I am not answering any questions, Mr. Bedrosian."
*125 The jury returned a verdict of guilty of first-degree murder against defendant Shirk.
This appeal asserts two errors:
(1) The accused was denied his right to be confronted by the witnesses against him guaranteed by the Michigan Constitution of 1908, art 2, § 19, and the United States Constitution, Am 6.
(2) The evidence (properly admitted) against defendant Shirk was insufficient to support a finding of guilt beyond a reasonable doubt.
With regard to the second assertion of error we find little merit. One witness, David Henry Crow, testified that he, together with Shirk and Vitale (the deceased), held up the Designing Engineers Credit Union. Thereafter the witness and Shirk discussed the fact that Vitale was "hot" wanted by the police and Shirk said that the best thing to do would be to "plant" him someplace. Crow also testified that Shirk asked if Crow would help him dispose of the body, saying that he (Shirk) would "send him (Vitale) on his way."
This testimony was corroborated in part by Jo Ann Huldquist.
Shirk admitted he left town with Vitale and McKay shortly prior to Vitale's death.
One witness (Detective Schlacter) testified that Shirk admitted he was involved in disposing of the body. In our view this testimony, if believed, was adequate to support a finding of guilt beyond a reasonable doubt.
In analyzing the first assertion of error, however, we are confronted with a more difficult task. It is clear that when a confession of one joint defendant is admitted under circumstances such as in the instant case, the instruction the court is required to give to the jury must provide sufficient protection to the defendant. See Paoli v. United States (1957), 352 U.S. 232 (77 S. Ct. 294, 1 L. Ed. 2d 278). The *126 question of the sufficiency of the jury instructions is whether or not the limiting instructions "kept the jury from considering the contents [of the statements] with respect to the guilt of anyone but the declarant." See Wong Sun v. United States (1963), 371 U.S. 471, 490 (83 S. Ct. 407, 419, 9 L. Ed. 2d 441, 457). The instructions given by the trial court were accurate and clear.
A reading of the testimony of the rebuttal witness leads us to a different conclusion from that reached in the dissenting opinion. The prosecutor may have been forewarned that McKay was going to take the stand and decline to testify. We do not know whether the prosecutor hoped that once McKay was sworn in as a witness he would change his mind and testify, or whether the prosecutor put him on the stand for the purpose of eliciting the testimony that he was afraid of Shirk. Any comments on this point are but speculative. While we agree that it would have been better if the witness had not testified that he was afraid of Shirk, the statement as made was not so prejudicial as to require a new trial. Defendant's argument that he was denied his constitutional right of confrontation of the witness is not persuasive. The prosecutor turned the rebuttal witness over to the defense for cross-examination and the fact that the defense was dissatisfied with the cross-examination is not grounds for reversal.
Affirmed.
McGREGOR, J., concurred with J.H. GILLIS, J.
T.G. KAVANAGH, P.J. (dissenting).
If we could adopt the theory that the end justifies the means, we could affirm the defendant's conviction without compunction.
*127 Richard Shirk and Gerald McKay killed Carlo Vitale. Gerald McKay confessed the murder to the police investigating it. Richard Shirk, in an unusual effort to obtain a new trial after he had been convicted and sentenced to life in prison, admitted it in a letter to the trial judge.
While his admission was in direct contradiction to his sworn testimony at trial, a fact which the trial judge used as the basis for denying the request, a reading of the testimony of the witnesses touching upon the interstate flight of the defendants and the deceased, leads to the inescapable conclusion that at long last, Richard Shirk told the truth when he admitted the murder.
So we have a confessed killer jailed for murder. Justice has been served if the end justifies the means.
But our whole system of administering justice is based on the concept that no man is guilty until his guilt has been established in a fair trial. In our tradition even Richard Shirk should not be imprisoned without a fair trial.
Among myriad instances of prejudicial conduct which the record of this trial discloses, one is so blatant that my vote for reversal is based squarely upon it.
After the defendant McKay was permitted to plead guilty to second-degree murder, following the admission of his confession which implicated Shirk, he was called as a rebuttal witness after Shirk had testified that he had not committed the killing. The excerpt from the transcript quoted in the majority opinion discloses how he persisted in his refusal to testify and explained his refusal by his fear of Shirk.
My brothers maintain that to conclude the prosecutor knew, before McKay took the stand, what he would say from his statement:
*128 "Was I told to say that? No. What I was told I was that is what I told I was going to say", is to speculate on the prosecutor's forewarning. While such indulgence may appear as a more charitable view towards the prosecutor's position, we cannot practice charity towards the prosecutor if it requires injustice to the defendant.
The prosecutor either knew what McKay would say or he didn't. If he knew, he should be censured for calling him. If he didn't know, when McKay's testimony presented such a surprising affront, since the prosecutor had made it possible by calling McKay, he had a duty to try and correct it, either by requesting that the court compel answers or moving for a mistrial. The fact that he merely said, "Your witness", persuades me that he was neither surprised nor disappointed.
In my view the necessary effect of this performance was so totally prejudicial to the defendant as to vitiate the whole trial.
I would set aside the conviction and remand for proper prosecution.
NOTES
[*] CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548). REPORTER. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3859571/ | Argued October 11, 1939.
No appeal was taken from the order of the court of common pleas granting a new trial, on motion of the plaintiff, for inadequacy of the verdict. The order dismissing defendant's motion for judgment in its favor, non obstante veredicto, is affirmed on the opinion of Judge BROWN, who presided at the trial. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3395931/ | In habeas corpus proceedings before the Circuit Judge, the petitioner charged with the statutory offense of aiding in the publication of a false written statement or representation concerning land, under Chapter 10233, Acts of 1925, was remanded to custody and was allowed and took writ of error.
It is argued that section 11 of the statute is invalid because in violation of Section 16, Article III, Constitution, *Page 1048
in that the title contains a subject affecting real estate brokers and real estate salesmen while the provision defining this offense is a separate subject applicable to persons generally and is not properly connected with the subject expressed in the title of the act; and that the information is fatally defective.
The title of Chapter 10233 and section 11 thereof involved herein are as follows:
"AN ACT Providing for the Licensing, Regulating and Registering of and Defining the Terms 'Real Estate Brokers' and 'Real Estate Salesmen,' Empowering the County Judges to Grant, Suspend or Revoke Licenses and Prescribing the Procedure; Creating the Real Estate Brokers' Registration Board, Providing for Appointment of its Members, its Powers and Duties, Providing for its Expenses to be paid Out of the 'Real Estate Brokers Registration Fund' Herein Created, Prescribing Certain Offenses and the Penalties for Violating the Provisions Thereof."
"Section 11. Every officer, agent or employee of any company, and every other person who knowingly authorizes, directs or aids in the publication, advertising, distribution or circulation of any false written statement or representation concerning any land or subdivision thereof offered for sale, and every person, who with knowledge that any advertisement, pamphlet, representation or letter concerning any said land or subdivision contains any written statement that is false or fraudulent, issues, circulates, publishes or distributes the same, or shall cause the same to be issued, published or distributed, or who, in any other respect wilfully violates or fails to comply with any of the provisions of this Act, shall be guilty of a misdemeanor, and shall be punished as hereinafter provided. It shall be the duty of the County Solicitor and State's Attorney, in and for each County, to prosecute all violations." *Page 1049
The Constitution contains the following: "Each law enacted in the legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title." Sec. 16, Article III.
The purpose of the first clause of Section 16, Art. III of the State Constitution are singleness of the subject of a legislative enactment and to require the title of an act to give a fair and reasonable notice to the legislators and the public of the nature of the provisions contained in the act. The subject of an enactment may be as broad or as restrictive as the legislature may determine, in the absence of controlling organic provisions. The subject expressed in the title may be broader or more comprehensive than the subject covered by the provisions of the act; but the subject expressed in the title should not be less comprehensive than the subject contained in the body of the act.
All the provisions contained in an act must be of such a nature as to be fairly included within the subject expressed in the title of the act, or be matters properly connected with the subject expressed in the title; otherwise the required notice would not be duly given of the contemplated enactments and the quoted organic provision would be violated. The title should at least be sufficient to put all interested persons on notice that would reasonably lead to enquiry as to the contents of the act; and when the title is restrictive, matters not a part of or properly connected with such restrictive subject, as it is reasonably and fairly understood, cannot be incorporated in the act without violating the organic provision.
The title to Chapter 10233 expresses a number of matters all of which, including the offenses and penalties, may relate to the limited subject of licensing and regulating "Real Estate Brokers" and "Real Estate Salesmen," while section 11 of the act defines a crime of general application *Page 1050
to all persons, which provision is broader than the subject expressed in the title and is not matter properly connected with the narrower subject expressed in the title. See Ex parte Knight, 52 Fla. 144, 41 South. Rep. 786; State ex rel. Gonzalez v. Palmes, 23 Fla. 620, 3 South. Rep. 171; Savannah, F. W. Ry. Co. v. Geiger, 21 Fla. 669.
The constitution only requires the subject of a legislative act to be "briefly" expressed in the title; but an elaborate title may not violate the constitution if it expresses only a single subject. The title need not be an index to the contents of the act; and the title need not express or refer to matters that are properly connected with the subject expressed in the title; but the title must not express two distinct subjects; and the act must not contain any provision that is not covered by the single subject expressed in the title or that is not matter properly connected with or germane to the subject that is stated in the title.
A wide latitude must of necessity be accorded the legislature in its enactments of law; and it must be a plain case of violating the requirements of the organic law as to titles of acts before the courts will nullify statutes or portions thereof as not being within the purpose and scope of the subject as expressed in the title and of "matter properly connected therewith." Butler v. Perry, 67 Fla. 405,66 South. Rep. 150.
But where it clearly appears that matter contained in the body of an act does not relate to the subject, whether restricted or broad, that is expressed in the title or is not matter properly connected with such subject, it is the duty of the court, in appropriate proceedings, to so adjudicate, whereupon the constitution by its own dominant force, renders inoperative such provision. Carr v. Thomas, *Page 1051 18 Fla. 736; Wade v. Atlantic Lumber Co., 51 Fla. 628,41 South. Rep. 72.
Provisions that are necessary incidents to or that tend to make effective or to promote the object and purpose of the legislation that is included in the subject expressed in the title of the act, may be regarded as matter properly connected with the subject of the act, as in People v. Newcom, ___ Ill. ___, 149 N.E. Rep. 269; but where such provisions constitute a broader or an essentially different subject that is not properly connected with the stated subject of the act, such provisions violate Section 16, Article III of the Constitution, and are inoperative. See Prairie Pebble Phosphate Co. v. Silverman, 80 Fla. 541, 86 South. Rep. 508; Carr v. Thomas,18 Fla. 736; Wade v. Atlantic Lumber Co., 51 Fla. 628,41 South. Rep. 72.
The provisions of Section 11, Chapter 10233, making it a crime for any one to publish or to aid in publishing a false statement concerning land, as such provisions are generally understood, are broader than and are not properly connected with the restricted subject of licensing and regulating the business of real estate brokers and real estate salesmen, that is expressed in the title of the act, therefore under Section 16, Article III of the Constitution, Section 11, Chapter 10233 is inoperative as to this petitioner who is not alleged to be either a real estate broker or a real estate salesman, though the provisions of section 11 do not affect the remainder of the statute. Sec. 14, Chap. 10233, Acts of 1925. The petitioner should have been discharged, the statutory provision under which he was charged with a crime being inoperative as to him. Ex Parte Knight, 52 Fla. 144, 41 South. Rep. 786; Harper v. Galloway, 58 Fla. 255, 51 South. Rep. 266.
It is not necessary to here decide whether section 11 of the statute would be effective in a prosecution under it of *Page 1052
a person who is a real estate broker or a real estate salesman as defined in the statute.
A statutory regulation may, consistently with organic law, be applied to one class of cases in controversy, and may violate the constitution as applied to another class of cases. This does not destroy the statute; but imposes the duty to enforce the regulation when it may be legally applied. In re Seven Barrels of Wine, 79 Fla. 1, 83 South. Rep. 627; Seaboard Air Line Ry. v. Robinson, 68 Fla. 407, 67 South. Rep. 140; Dutton Phosphate Co. v. Priest, 67 Fla. 370, 65 South. Rep. 282; Cason v. Quinby, 60 Fla. 35, 53 South. Rep. 741; Osborne v. State,33 Fla. 162, 14 South. Rep. 588; Dahnke-Walter Milling Co. v. Bondurant, 257 U.S. 282, 42 Sup. Ct. Rep. 106; Kansas City Southern R. Co. v. Anderson, 233 U.S. 325,34 Sup. Ct. Rep. 599; Brooks v. Southern Pac. Co., 207 U.S. 463, 28 Sup. Ct. Rep. 256; El Paso N.E. R. Co. v. Gutierrez, 215 U.S. 87,30 Sup. Ct. Rep. 21; Poindexter v. Greenhow, 114 U.S. 270,5 Sup. Ct. Rep. 903, 962.
A provision similar to Section 11, Chapter 10233, is contained in Section 10, Chapter 11336, under a somewhat similar title. See Section 14 of Chapter 10233 and Section 13 of Chapter 11336 as to invalid portions of the acts respectively.
The information charges that the accused "did then and there unlawfully and knowingly authorize, direct or aid in the publication, advertising or circulation of a certain false written statement or representation concerning land, or a subdivision known as 'Melbourne Heights,' which said false written statement is as follows, to-wit: 'The trend of the City's growth is in that direction, and developments are springing up all around it. Lots in this new suburb are high ground, pine tree land,' contrary," c. It is not alleged that the accused was a real estate broker or salesman. *Page 1053
On habeas corpus proceedings the court will inquire whether the complaint upon which a defendant is held, or has been convicted, charges a public offense, and when it finds that to the charge preferred no criminality is attached by law, the party imprisoned is entitled to his discharge. Ex parte Bailey,39 Fla. 734, text 735, 23 South. Rep. 552.
There is no direct, positive allegation that the "written statement or representation" alleged to have been published is false, or wherein it is false or how it was published, advertised or circulated, so as to fairly apprise the accused of "the nature and cause of the accusation against him" as is required by Section 11 of the Declaration of Rights of the State Constitution, therefore the information is fatally defective. See Reyes v. State, 34 Fla. 181, 15 South. Rep. 875; Hamilton v. State, 30 Fla. 229, 11 South Rep. 523; Stevens v. State, 18 Fla. 903; Grant v. State, 35 Fla. 581,17 South. Rep. 225.
Reversed.
TERRELL AND BUFORD, J. J., concur;
BROWN, C. J., AND ELLIS, J., concur in the opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3395960/ | Appellee, Lillian Barnum Albertson, owned a tract of land containing twenty acres from which she agreed to sell appellants Tract "A," with a frontage of 400 feet, and Tract "C," with a frontage of sixty-five feet. Tract "B," with a frontage of seventy-five feet, lay between Tracts "A" and "C." In making a sale of Tract "B" to a third party, appellee included in the description thereof the north ten feet of Tract "A." The purchaser of Tract "B" went into possession and made valuable improvements on it. With knowledge of the third party's claim to the ten-foot strip on the north side of Tract "A," appellants continued in possession of the remainder of the said tract, made payments on the purchase price, and did not repudiate the transaction for five years, during which time material changes had taken place in land values and economic conditions generally.
The contract of purchase was made in March, 1925, and the original bill to foreclose the purchase contract was filed by the vendor (appellee), in March, 1931. By answer and counterclaim the vendees (appellants) pray for rescission and cancellation of the sales contract and to impress a lien on the lands described therein, for the amount of the purchase money paid thereon, and the cost of improvements placed on the property, including taxes and interest. The basis for rescission being that the ten-foot strip on the north *Page 843
side of Tract "A" having been sold, it cannot now be delivered to them as contracted for.
These facts are the primary ones made by the pleadings and constituted the predicate for the chancellor's decree in favor of appellee. It is quite true that appellants took a different view of the facts but such was the interpretation placed on them by the chancellor and, being amply supported, we find no reason to disturb his finding. In fact, he was confronted by a suit growing out of a typical boom-time transaction in which a zealous purchaser paid too dear for his whistle and after the frolic was over and sanity restored insisted that his vendor pay for the confetti.
Able and exhaustive briefs have been filed on both sides which have been read with care. As ground for reversal, appellants rely on the failure of appellee to convey the ten feet in controversy. Appellee counters with the contention that appellants by their conduct waived and condoned such failure. The latter contention was established by the proof.
To discuss all the questions raised would require a lengthy opinion that would serve no useful purpose. The case turns on the question of the right of appellants to cancel and rescind the contract under the facts stated. That question was conclusively settled contrary to appellants' contention in Bardwell, et ux.,
v. Albertson, 120 Fla. 106, 162 So. 321, in which the identical question affecting the same piece of land was involved. This is a stronger case from the standpoint of delay and acquiescence than the latter case. In addition to delay and acquiescence, it is shown that the condition of the parties had changed and the price of real estate had collapsed.
For the reason thus stated the judgment below is affirmed.
Affirmed. *Page 844
ELLIS, C.J., and WHITFIELD, TERRELL, BROWN, BUFORD and DAVIS, J.J., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3990879/ | 1 Reported in 111 P.2d 247.
Plaintiff brought this action as administratrix of the estate of her deceased husband, William Hynek, for her own benefit and that of the four minor children of herself and William Hynek.
The complaint alleged that the city of Seattle maintains and operates a street car line upon Fifteenth avenue west, crossing west Boston street; that the tracks of the street car line extend in a northerly and southerly direction upon Fifteenth avenue west and across west Boston street, which runs in an easterly and westerly direction.
The complaint further alleged that February 22, 1938, between the hours of six-thirty p.m. and seven p.m., William Hynek, having the intention of becoming a passenger upon a south bound street car upon Fifteenth avenue west, was crossing that avenue from the east to the west on the southerly crosswalk of west Boston street; that, as he crossed the intersection, he signalled the operator of the street car of his intention to board the car; that, when William Hynek was at a place in the immediate vicinity of the easterly rail of the westerly car track, on which the car was approaching, he was struck and instantly killed by the street car.
The complaint then set out several charges of negligence on the part of the operator of the street car, which included failure to keep a proper lookout ahead, to keep the car under control, to heed the signal of William *Page 389
Hynek to slow down at the usual stopping place, to apply the brakes, to avoid a collision with deceased, and to use reasonable care in the street car's operation; and in operating it at a dangerous speed of thirty-five miles per hour. Allegations followed relative to the ability of William Hynek to care for and support his family.
The answer contained a general denial of the allegations contained in the complaint and two affirmative defenses. The first affirmative defense pleaded ordinance No. 64692 of the city of Seattle, while the second affirmative defense pleaded contributory negligence on the part of William Hynek. The reply put in issue the allegations contained in the answer.
The case was tried to the court sitting with a jury, and resulted in a verdict in favor of plaintiff. After denying a motion for judgment n.o.v., or, in the alternative, for a new trial, the court entered judgment upon the verdict. The city of Seattle has appealed.
The assignments of error are: (1) Failure to sustain appellant's challenge to the sufficiency of the evidence to show primary negligence; (2) failure to decide as a matter of law that the negligence of the deceased was the direct, proximate cause of the accident; (3) refusing to grant appellant's judgment nonobstante veredicto; and (4) refusing to grant appellant a new trial. Error was also predicated upon the giving of certain instructions.
The material facts are not in dispute. A brief summation of those most favorable to the respondent will suffice for the points to be considered. The deceased was thirty-nine years of age and in possession of all his faculties. He had owned and operated a cheese factory for about fifteen years in Faithhorn, Michigan. Other occupations in which he had been engaged were carpenter work, work in the fur business, and farming *Page 390
in Alaska. The Hyneks arrived in Seattle a few days before the night of the fatal accident, having lived in small rural communities for many years, and were not familiar with the operation of street cars in the city of Seattle. This lack of familiarity extended to the knowledge of the side of an intersection on which street cars ordinarily stopped.
The accident in question took place at Fifteenth avenue west and west Boston street in Seattle. Fifteenth avenue west runs north and south and is paved for a width of about 53 1/2 feet from curb to curb, and slopes to the south on a 2.2 grade. There are two street car tracks in the center of the street. West Boston street extends east and west. It is improved east of Fifteenth avenue west, but is not improved west thereof. The customary place for taking on passengers for south bound street cars is at the north side of west Boston street, which is the northwest corner of the intersection. A building known as the "Finnish Hall" stands at the southeast corner of the intersection, and another known as the "Mattress Factory" is located on the northwest corner of the intersection. A store called the "White Building" is situated on the west side of Fifteenth avenue approximately 280 feet north of the intersection.
Shortly prior to the accident, which happened between six-thirty and seven p.m. on a dark and rainy evening, Mr. and Mrs. Hynek, intending to go down town, walked west on west Boston street and stopped under the canopy of the building on the southeast corner of the intersection. Their intention was to wait for a south bound street car. They waited under the canopy for some time and finally observed the lights and headlight of an approaching street car coming from the north at a distance of approximately 705 feet. They then stepped out toward the street, intending to board *Page 391
that car. They walked to the west in a direct line with the south sidewalk of west Boston street.
In describing the acts of herself and husband, respondent testified:
"Q. When you saw those lights, what did you do? A. We started to go across the street. Q. Where did you go to? A. We went to the right-hand side of the telephone pole. Q. Do you mean to the — A. To the north. Q. You walked out to the telephone pole? A. Yes, to the north side of the telephone pole. Q. When you got there, did you step into the street immediately? A. No, we didn't. Q. What did you do? A. There was two cars coming from the south, and we waited until those two cars went through. Q. Was there any other traffic from the south? A. There was traffic, but quite a ways down. Q. Where was that traffic traveling, with reference to the middle of the street? What did it look to you like? A. Upon on the pavement, in the center of the street. Q. You say you stood there to let those cars go by? A. Yes sir. Q. Did you step into the street then? A. After the cars went through, we did. Q. Did you see this car again, after you saw it at West Wheeler Street, and before you actually stepped into the street? A. Yes, we did. I saw it coming down by this white building there. Q. Did you know what was a white building at that time? A. I didn't know what it was, at that time. Q. Do you remember this light up the street? A. Yes. Q. And that is how you locate it now? A. Yes. Q. So you were in this vicinity someplace? A. Yes. Q. When you stepped off the curb? A. Yes. Q. In which direction did you travel when you stepped off the curb, in this angle, or that angle, or did you go directly across on the crosswalk? A. Directly across. . . . Q. When you saw this car, somewhere in the vicinity of this white building, you say you proceeded to walk across the street? A. Yes sir. Q. Tell us what Mr. Hynek was doing at that time, when you stepped off the sidewalk. A. When I stepped off the sidewalk, he let go of my arm, and he started on across. Q. He helped you off the curb? A. Yes. Q. And you proceeded across the street? A. Yes. Q. Was he ahead *Page 392
of you? A. He was. Q. How far do you think he was walking ahead of you, in your best judgment? A. I should judge about a foot or a foot and a half. Q. Were you directly behind him? A. Yes sir. Q. When you walked across the street, going across the street did you keep your eye on the car? A. Yes, I did. Q. Did you do anything with reference to this car you saw coming up the center of the street? A. Yes, I did. Q. What did you do? A. When we got about half-way in the concrete there, I glanced to the south. . . Q. You say you were watching this car coming down? A. Yes. Q. Did your husband continue to go right ahead? A. Yes, sir, he did. Q. Do you know whether he was watching for the car, too? A. He was. Q. As you approached this easterly cartrack here, and when you turned back, did you see the car coming in here, again? (Indicating) A. Yes sir, I did. Q. Where was it when you saw it again there? A. It was — Q. Here is the Imperial Mattress Company's building. Where was it, with reference to being north of that? I want you to locate it with reference to that building. A. It was in between the white building and the — Q. Somewhere between this place and this one? A. Yes sir. Q. What was your husband doing then, and what were you doing? A. We were watching the streetcar. Q. Were you doing anything else? A. No; just walking across. Q. Did you give any signal to the car? A. Yes, I did. Q. What was your husband doing? A. We were both waving our hands. Q. You were both waving your hands? A. Yes. Q. When you saw this car approaching this mattress factory, did you keep your eye on it? A. Yes sir. Q. What did it do? A. It slowed down, when it got close to this Imperial Mattress building. Q. What did you think it was going to do? A. I knew it was going to stop, after he started to slow down. Q. That was after you gave the signal? A. Yes. Q. So after you gave the signal, was it your opinion that the car was slowing down as the result of your signal? A. It was. Q. Did the car ring any bell in there anyplace? A. I didn't hear it. Q. Would you have heard it, if it had been rung? A. Yes. Q. When you saw it in there and it was slowing *Page 393
down, where was your husband then, and where were you walking then, with reference to the cartracks? A. When he was thrown down, my husband was already on the next rail. Q. This one, or this one? (Indicating) MR. McCULLOUGH: The record will not show that. Q. Your recollection. A. The east one of the west rails. Q. All right. Did you watch the car, as it progressed? A. Yes, I did. Q. And what happened? A. When he — When I was in between the two tracks and he was on the track, I noticed that the car wasn't going to stop. Q. Where was it? A. It was just coming into the intersection. Q. Coming into the intersection. Had the car increased its speed or decreased its speed, or have the same speed? A. When the car got to the edge of the intersection, it was gaining speed. Q. You saw it, did you? A. Yes, I did. Q. What did you do? A. I yelled at my husband, and I said, `The car isn't going to stop.' And I jumped back. And he was startled, and he jumped. He immediately jumped back; and the car hit him. And I jumped back."
On cross-examination, she testified:
"Q. Did you warn your husband, prior to his being hit? A. Yes, I did. Q. Do you remember telling him, `I don't think we can make it?' A. Yes. Q. Where was the streetcar? A. The streetcar was coming into the intersection. Q. The street car was coming into the intersection? A. Yes. Q. Let's point that out. Here is the sidewalk line, and that line, continued out, would be about like my pencil. Point to where the front of the car was, in coming into the intersection. A. About there. (Indicating) Q. X-5. That is where the streetcar was when you told your husband you didn't think you could make it? A. Yes. Q. You hadn't reached the streetcar tracks yet? A. No. Q. And he was about a foot and a half ahead of you? A. Yes."
As indicated on a map introduced in evidence, X-5, referred to by respondent, was a point indicating the north boundary of the intersection fifty feet north of the place where Mr. Hynek was struck. *Page 394
The motorman, during the time Mr. and Mrs. Hynek were walking across the street, was looking for intending passengers on the northwest corner of the intersection at the customary stopping place, and he failed to see Mr. and Mrs. Hynek until the car was but a few feet away from them, at which time it was impossible to stop the car quickly enough to avoid the accident. The motorman, having failed to see anyone waiting at the usual stopping place, had released his brakes as he entered the intersection, causing the car to accelerate its speed.
The evidence showed that an incandescent light was located some distance north of the intersection and an arc light was over the intersection; that the visibility, in spite of the rain, was adequate to bring persons on the crosswalk within the light reflected from the arc light. It was also shown that, although the motorman "dynamited" his car when he first saw Mr. and Mrs. Hynek, his car traveled some two hundred feet before it came to a stop. "Dynamiting" a car was explained as the application of the air brakes and the throwing of the controls into reverse. Respondent testified that the car was going "terribly fast," at a speed of thirty-five or forty miles per hour, at the time of the collision. Her estimate of speed was based upon comparing the speed of the street car with that of an imaginary automobile traveling at the same place, respondent being an experienced driver. Her observation was made from the time the car was from fifty feet away until the time of the impact.
For the purposes of this case, we will assume, without deciding, that the motorman was negligent, and therefore will discuss but two propositions presented, that of contributory negligence and of last clear chance. In doing so, we are mindful of the rule *Page 395
that the evidence must be considered most favorably to respondent and that the question of contributory negligence was for the jury, unless we can say that the deceased was guilty of contributory negligence as a matter of law. Scott v. PacificPower Light Co., 178 Wn. 647, 35 P.2d 749.
[1] Restatement of the Law, Torts, 1227, § 463, defines contributory negligence as follows:
"Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, co-operating with the negligence of the defendant in bringing about the plaintiff's harm."
It is said in the comment:
"Contributory negligence differs from that negligence which subjects the actor to liability for harm done to others in one important particular. Negligence is conduct which creates an undue risk of harm to others. Contributory negligence is conduct which involves an undue risk of harm to the person who sustains it. In the one case the reasonable man, whose conduct furnishes the standard to which all normal adults must conform, is a person who pays reasonable regard to the safety of others; in the other, the reasonable man is a reasonably prudent man, who as such pays reasonable regard to his own safety."
In § 465, the Restatement says:
"The plaintiff's negligent exposure of himself to danger or his failure to exercise reasonable care for his own protection is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility because of the manner in which his conduct contributed to his harm."
The principal case upon which the doctrine of contributory negligence is founded is that of Butterfield v. *Page 396 Forrester, 11 East. 60, 61, 103 Eng. Reprint 927, 19 E.R.C. 189, in which Lord Ellenborough said:
"One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff."
In 45 C.J. 941, 942, and 943, § 500, we find the following:
"The doctrine of contributory negligence rests in the law of tort as applied to negligence, and is governed by the principles peculiarly applicable to that branch of jurisprudence.
"Different reasons have been assigned by the courts as the basis of the doctrine that contributory negligence bars recovery for injuries negligently inflicted. It has been asserted that it is an application of the doctrine of proximate cause; that it is founded upon the ground that the law will not undertake to apportion the consequences of concurring acts of negligence; and that it is an application of the rule, expressed in the maxim, Volenti non fit injuria, that one who invites an injury cannot make it the basis of a recovery. Still another view finding favor with the courts is that the rule precluding recovery is in the nature of a penalty, established by public policy, to admonish all to use due care for their own safety. In other words, the doctrine is said to be founded on the impolicy of allowing a party to recover for his own wrong, and the policy of making personal interests of men dependent upon their own prudence and care.
"Contributory negligence is conduct for which plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause. Contributory negligence is usually the personal default of plaintiff; and it must be either his own or that of some one whose negligence is legally attributed to him. It has been said that *Page 397
there is no substantial distinction or essential difference between negligence for which defendant is responsible and contributory negligence, and the rules of law applicable to the former are, in general, applicable to the latter. As in the case of defendant's negligence, contributory negligence may be due to either acts of omission or commission. In other words, contributory negligence may consist in doing the wrong thing at the time and place in question, or it may arise from doing nothing when something should have been done."
In Beach on Contributory Negligence (3rd ed.), 50, § 35, we find the following summary statement of the doctrine of contributory negligence as a defense:
"However it may have been expressed, the principle underlying all these decisions seems to be, and verily it is the only sound basis upon which they can rest, that whenever the plaintiff's case shows any want of ordinary care under the circumstances, even the slightest, contributing in any degree, even the smallest, as a proximate cause of the injury for which he brings his action, his right to recover is thereby destroyed. Anything more than this imposes upon the plaintiff the duty of exercising more than ordinary care, and refuses him a remedy for injuries that others inflict upon him; and anything less than this, covered up never so mistily in belabored and confusing legal phraseology, imposes upon the defendant the duty of exercising more than ordinary care, requires him to take better care of the plaintiff than the law requires the plaintiff to take of himself, and compels him to pay damages for injuries that he did not inflict. There can be no middle ground; either the truth of these elementary propositions must be conceded or the whole theory of our modern law of contributory negligence must be abandoned. Without this it is a theory of oppression and injustice. There is no room for it in the common law."
The supreme court of the United States, in the case ofRailroad Co. v. Gladmon, 82 U.S. 401, 21 L.Ed. 114, made the following statement: *Page 398
"By the adult there must be given that care and attention for his own protection that is ordinarily exercised by persons of intelligence and discretion. If he fails to give it, his injury is the result of his own folly, and cannot be visited upon another."
This court, conforming to the general rule, has defined contributory negligence as some act or omission on the part of the injured person, which caused, or contributed to cause, the injury, ajd that such act or omission was not such as would have been done or omitted by a person exercising ordinary prudence under the circumstances. Williams v. Ballard Lumber Co.,41 Wn. 338, 83 P. 323; Akin v. Bradley Engineering MachineryCo., 51 Wn. 658, 99 P. 1038; Chadwick v. Ek, 1 Wn.2d 117, 95 P.2d 398; Morris v. Chicago, M. St. P. P.R. Co.,1 Wn.2d 587, 97 P.2d 119, 100 P.2d 19.
[2] It will be noted that the burden of proving contributory negligence is borne by the defendant, although the plaintiff's evidence or pleadings may serve the function of showing his own contributory negligence. Northern Pac. R. Co. v. Hess, 2 Wn. 383,26 P. 866; Spurrier v. Front St. Cable R. Co., 3 Wn. 659,29 P. 346; Inland Seaboard Coasting Co. v. Tolson,139 U.S. 551, 35 L.Ed. 270, 11 S.Ct. 653; Washington Georgetown R.Co. v. Harmon, 147 U.S. 571, 37 L.Ed. 284, 13 S.Ct. 557.
[3] Ordinarily, of course, the question of whether or not there has been negligence or contributory negligence is one for the jury. However, there are factual situations which make it possible for the court to find negligence or contributory negligence as a matter of law, the rule being as follows:
"When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are *Page 399
such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court." Grand Trunk R. Co. v. Ives,144 U.S. 408, 36 L.Ed. 485, 12 S.Ct. 679.
In Chadwick v. Ek, 1 Wn.2d 117, 95 P.2d 398, we stated:
"The rule upon the subject, as declared by this court, is that in only two classes of cases may the question of contributory negligence be determined by the court as a conclusion of law: (1) Where the circumstances of the case are such that the standard of duty is fixed, and the measure of duty defined, by law and are the same under all circumstances; (2) where the facts are undisputed and but one reasonable inference can be drawn from them."
Other cases announcing the same rule are Henry v. SeattleElectric Co., 55 Wn. 444, 104 P. 776; Jackman v. Seattle,187 Wn. 446, 60 P.2d 78; and Poland v. Seattle, 200 Wn. 208,93 P.2d 379.
As for the application of the doctrine of contributory negligence to persons or vehicles crossing over street car tracks, the case of Nappli v. Seattle, R. S.R. Co., 61 Wn. 171,112 P. 89, sets forth the following general statements:
"The question in the case is whether the court should have said, as a matter of law, that the respondent was guilty of contributory negligence in crossing the street car tracks as he did. If respondent drove his team in front of a car which he knew, or should have known, was coming down upon him and could not be stopped, he is himself negligent and cannot recover. The rule, we think, is correctly stated in McCarthy v. ConsolidatedR. Co., 79 Conn. 73, 63 A. 725, and cited by the appellant, as follows:
"`At highway crossings, a street car has no paramount right as against any other vehicle approaching on the cross street. The right attaching to each is equal, and must be exercised with due regard to that *Page 400
attaching to the other, and so as not to interfere with or abridge it unreasonably. It is not necessarily the duty of the driver of an approaching team to wait until the street car has passed, nor is it necessarily his right to push on and cut off its advance. Each party must act reasonably under all the attending circumstances. The driver of an ordinary vehicle can, under ordinary circumstances, be justified in proceeding, at a highway crossing, to go over a street railway in the face of an approaching car, when, and only when, he has reasonable ground for believing that he can pass in safety if both he and those in charge of the car act with reasonable regard to the rights of each other. The duty to slow up or stop, if necessary to prevent a collision, rests equally on each party. In practical effect these doctrines give any railroad car approaching a highway crossing, what amounts to a right of precedence. This follows from the rule respecting contributory negligence. No man has the right to calculate close chances as to his ability to reach the track before the car, and throw the risk of injury on the other party. As to whether the chances were close, however, and the railroad company were not the one really in fault, or whether the party injured did not push forward under circumstances of emergency which left him no time for calculation, will ordinarily be a question for the jury.'
". . . If the approaching car is so close and coming so fast that it cannot be stopped in time to avoid a collision, and such facts are or should be observed, then a person attempting to cross may be said to be negligent as a matter of law. But where an approaching car is far enough away to be stopped after a person has passed upon the tracks, or when a reasonably careful man would undertake to cross ahead of it, then it cannot be said, as a matter of law, that a person attempting to cross is negligent. This rule was substantially applied in Denny v.Seattle, Renton Southern R. Co., 60 Wn. 426, 111 P. 450."
Again in Armstrong v. Spokane Inland Empire R. Co.,71 Wn. 624, 129 P. 379, we stated: *Page 401
"The basic principle of all the cases is: Was the injured person, at the time of the injury, exercising such care for personal safety as a person of ordinary care and prudence would exercise under like circumstances; and if not, was such lack of care a proximate cause of the injury? As the question is answered, contributory negligence is or is not established."
[4] It should be noted that we have held in a number of cases that the "stop, look, and listen" rule, ordinarily applied in railroad cases, is not applied to street car cases, and that it is not necessarily negligence per se for one to enter upon street car tracks without stopping, looking, and listening.Roberts v. Spokane Street R. Co., 23 Wn. 325, 63 P. 506, 54 L.R.A. 184; Burian v. Seattle Electric Co., 26 Wn. 606,67 P. 214; Morris v. Seattle, R. S.R. Co., 66 Wn. 691,120 P. 534; Slipper v. Seattle Electric Co., 71 Wn. 279,128 P. 233.
[5] In those cases, we indicated that the same degree of care is required of street cars as is required of pedestrians or others crossing over the street car tracks. In other words, we found reciprocal duties on the part of both to avoid injuries, and imposed no greater degree of care upon those crossing over the tracks than upon those operating street cars upon them.
In line with our holdings to the effect that the duties in cases of this type are reciprocal, and that each party must use reasonable and ordinary care to avoid accidents, we have recognized the right of those crossing over street car tracks to rely upon an assumption that street car operators will exercise that degree of care, and we have many times held that it is not necessarily contributory negligence as a matter of law for persons to enter upon car tracks in the path of oncoming street cars. Richmond v. Tacoma R. P. Co., 67 Wn. 444,122 P. 351. *Page 402
At the same time, we have recognized a right on the part of operators of street cars to rely upon the assumption that those crossing the tracks will use due care, and they may do so until the conduct of such persons warns them to the contrary. Fluhartv. Seattle Electric Co., 65 Wn. 291, 118 P. 51; Johnson v.Washington Water Power Co., 73 Wn. 616, 132 P. 392. As for the right to those crossing the tracks to continue to assume that street car operators will exercise due care to avoid hitting them, it is not an absolute one, of course.
"A person must, nevertheless, exercise ordinary care for his own protection against injury. He may not rely upon the assumption that others will not be guilty of any breach of their duty to avoid injuring him where, under the same or similar circumstances, an ordinarily prudent person would not do so." 45 C.J. 956, § 512.
[6] One further generality merits our attention before we look to the particular type of factual situation with which we are here confronted. This rule was expressed by us in Hull v.Seattle, R. S.R. Co., 60 Wn. 162, 110 P. 804, as follows:
"A victim of an accident is entitled to have his conduct judged by the circumstances surrounding him at the time of the accident — by the conditions as they appeared to one in his then situation — and if his conduct when so judged appears to be that of a reasonably prudent person, he cannot be said to be guilty of negligence."
We now shall consider a number of cases in this jurisdiction and in others dealing with the type of factual situation with which we find ourselves faced in the instant case.
In Burian v. Seattle Electric Co., 26 Wn. 606, 67 P. 214, a pedestrian crossed a double track without looking or listening to learn whether a car was approaching, *Page 403
and he was injured by a car coming suddenly over the top of the hill upon which he was walking. In that case, we held that the plaintiff's contributory negligence presented a question for the jury. It is distinguishable from the case at bar in that the plaintiff had no actual knowledge of the approach of the street car, and reasonable men could differ as to whether or not he was negligent in entering upon the tracks without first determining whether or not he was safe.
In Chisholm v. Seattle Electric Co., 27 Wn. 237,67 P. 601, a pedestrian looked for cars when he left the sidewalk to cross a busy downtown street. He saw two going south, but none moving north. He was then hit by a car going north. We held that there was no contributory negligence as a matter of law, and that it was a jury question. There, too, however, we dealt with facts which differed from those in the case at bar, since there was no actual knowledge that a car was approaching, and no showing that had the plaintiff exercised his senses, he must have seen the approaching car.
In Skinner v. Tacoma R. P. Co., 46 Wn. 122, 89 P. 488, the plaintiff entered a street and started walking toward the car tracks, which were some thirty feet away. The evidence was to the effect that the approaching street car's headlight was burning and that the car was readily visible all the time from the moment he left the curb until the moment of impact. It was further shown that the street car was but ten feet away from the plaintiff at the time he stepped upon the track, and there was no likely chance of getting over the track before the car would reach the spot, considering its rate of speed. Plaintiff's daughter, who was accompanying him across the street, saw the oncoming car just as they stepped upon the tracks, *Page 404
stepped back, and called to and caught at her father, but he was struck before she could get him out of danger. In that case, we held that there was contributory negligence as a matter of law, even though the evidence was to the effect that the plaintiff had no actual knowledge of the approach of the street car. We deemed the facts to warrant a conclusion that the only reason for not knowing that the car was approaching must have been an utter disregard by the plaintiff of ordinary precautions.
In Helliesen v. Seattle Electric Co., 56 Wn. 278,105 P. 458, the plaintiff contended that she looked for approaching street cars a short time before she entered the space between the car tracks, and failed to see any at all. The plaintiff was familiar with the street and knew that street cars were wont to pass at that point. In holding that the plaintiff was contributorily negligent in that case, we stated that, although the general rule may be that it is not necessarily contributory negligence per se to enter upon street car tracks without looking and listening, the fact still remains that one cannot heedlessly and carelessly cross tracks without using his senses to protect himself, and it does not follow that one can shut his eyes and ears to matters which he must have seen and heard, had he exercised ordinary care. We then held that, since the plaintiff must have known of the oncoming car, it was clearly negligent to have crossed upon the tracks when it was almost upon her.
In passing upon the facts, this court expressed its view as follows:
"We cannot understand how one looking for a car can fail to see a lighted car with its headlight throwing on the track ahead of it, and only forty-two feet away. The physical facts of the situation are a unit in showing respondent could not have used ordinary care in attempting the crossing. If she looked she must have seen the *Page 405
car, or else she gave such an indifferent and casual glance as was of no value to her in determining whether or not a car was approaching. In either event, she was not using ordinary care. The car was there with its lights burning, and such a look as would be given by an ordinary, prudent person would have located it. Pedestrians in crossing the tracks of a street railway in the daytime or in the nighttime, knowing as respondent knew that the crossing was one where cars frequently passed, must use their senses to apprise them of danger, if any; they cannot heedlessly and carelessly cross the track, and throw the entire burden of their safety upon the motorman of any approaching car. The rights of the pedestrian and that of the street railway are equal. Their duties are reciprocal. Neither has the exclusive right of way; each must have due regard to the rights of the other."
In Fluhart v. Seattle Electric Co., supra, we again held that, when the facts were such that plaintiff must have seen the approaching street car, which was well illuminated, it was contributory negligence as a matter of law to step in front of it when it was but a short distance away and going at a rapid rate of speed.
Richmond v. Tacoma R. P. Co., supra, also involved a case where the plaintiff claimed that he looked for approaching street cars, but failed to see any. The factual situation was somewhat different from those prevailing in the last two cases cited, however. The range of vision along the car track at the time the plaintiff entered the street was only about two hundred feet, and at that time no car could be seen. The car of defendant was greatly exceeding the speed limit, and rushed down upon the plaintiff as he was upon the track. Under those facts, we held that the question of contributory negligence was for the jury to determine.
In Beeman v. Puget Sound Traction L. P. Co., 79 Wn. 137,139 P. 1087, the plaintiff, when about to step from the sidewalk, looked along the tracks and saw *Page 406
a street car about four hundred and fifty feet away. The headlight was burning. The plaintiff proceeded to pick his way across the muddy street, paying no further attention to the oncoming street car, and was struck by it as he stepped upon the tracks. In that case, we held the plaintiff to be contributorily negligent as a matter of law, holding that, since the plaintiff knew that the street car was coming toward him, he had a duty to keep his eye upon it and avoid getting in its path, and that a failure to do so was negligence beyond any reasonable doubt.
In deciding that case, Judge Chadwick, speaking for the court, stated:
"While no absolute duty to stop, look, and listen rests upon one who is about to cross a street car track (Roberts v. SpokaneSt. R. Co., 23 Wn. 325, 63 P. 506, 54 L.R.A. 184; Richmondv. Tacoma R. Power Co., supra), we do not understand that this or any other court has ever held that one, knowing a street car to be approaching, can shut his eyes to the fact and step heedlessly in front of it under the mental assumption that the car will not overtake him. Accidents are not ordained or prescribed. They happen, and generally it is the unexpected that happens. What might happen is one of the cogent factors in determining questions of relative duty. . . .
"Whether a pedestrian should have known of the approach of a street car would no doubt be, in almost any conceivable case, a question for the jury; but when admitting that he knew it, there is a duty — not a duty owing to another, but a duty owing to self — to keep in mind the fact that a car is approaching; for as is most aptly said by the Wisconsin court in a street car case:
"`He is not at liberty to calculate how long it will take an approaching train to reach the crossing if running at a lawful and usual rate of speed. He must anticipate that it may be running at an excessive speed and may reach the crossing before he can safely pass it.' Grimm v. Milwaukee Elec. R. LightCo., 138 Wis. 44, 119 N.W. 833." *Page 407
Again, in Knight v. Seattle, 128 Wn. 246, 222 P. 471, we dealt with a situation in which the plaintiff had looked along the tracks before leaving the curb, saw the street car standing across the street, and then proceeded to cross without paying any further attention to the car in question. She looked again for the first time when the car was right upon her, and was unable to escape. We held the plaintiff was contributorily negligent as a matter of law for walking directly in front of an approaching car without looking for its approach, although in a situation where she had reason to expect its approach, and in a situation where there was nothing to distract her attention from it.
McClelland v. Pacific Northwest Traction Co., 138 Wn. 527,244 P. 710, is another case in which we found the plaintiff pedestrian contributorily negligent as a matter of law. In that case, the plaintiff was fully conscious of the approach of the car, and kept her eye upon it continually for a distance of about 250 feet of its approach. Her view was unobstructed at all times. We held that the plaintiff, being a pedestrian, had thorough control over her movements, and could have protected herself easily by simply stopping before entering upon the tracks in the face of the rapidly approaching car, and that a failure to do so constituted contributory negligence as a matter of law.
In Hersey v. Seattle, 141 Wn. 23, 250 P. 467, the plaintiff was engaged in assisting an aged woman across the street at the time of the accident, which took place upon a dark, misty night. The evidence was to the effect that, although the street car's lights were burning, they were very much dimmed, due to the atmospheric conditions. We held in that case that the question of contributory negligence was properly submitted to the jury, due to the facts peculiar to the case, as set forth above. *Page 408
The case of Johnson v. Seattle, 141 Wn. 385, 250 P. 409, involved an accident in which the plaintiff, along with a number of other persons, crossed the tracks toward a loading platform, intending to catch the street car which injured him. Before entering upon the road in which the tracks lay, the plaintiff looked along the tracks and saw the car approaching. It was about half a block away, and was approaching slowly. The plaintiff thought the car was going to stop, and that he would have plenty of time to catch it. He did not look again until he stepped upon the track, at which time the car was already almost upon him. The car had been speeded up by the motorman after the plaintiff had looked at it, the motorman not intending to stop at that place. We held that the plaintiff was not contributorily negligent as a matter of law. The cited case may be distinguished from the case at bar in that the plaintiff in that case had no actual knowledge of how close the car was when he stepped onto the tracks, the plaintiff having failed to look along the tracks after his initial glance. In the case at bar, on the other hand, the Hyneks were looking at the car all the while, and were signaling it as it approached them.
The case of Hoyer v. Spokane United Railways, 153 Wn. 450,279 P. 742, was very similar in its facts to the case at bar. There, as here, the plaintiff thought that the street car was going to stop at the corner he was approaching, and there, as here, he entered upon the street waving and signaling to the operator. However, the testimony of the plaintiff in that case was to the effect that the headlight of the approaching street car was shining brightly, and he was unable to gauge its distance from him at the time he entered the space between the tracks. In view of that fact, we *Page 409
held that the question of contributory negligence was for the jury to decide.
In Thomson v. Seattle, 160 Wn. 225, 294 P. 979, we failed to find that the plaintiff was contributorily negligent as a matter of law where he saw the street car approaching some 250 feet away on the tracks, the plaintiff then being about fifteen feet away from the tracks. The night was quite foggy and misty, and the vision of the plaintiff was impaired for that reason. Thinking he had ample time to cross over the tracks, the plaintiff continued forward, but was struck by the street car, which was advancing at an excessive rate of speed. That case is distinguishable from the cases which found contributory negligence to be present as a matter of law, in that the atmospheric and climatic conditions were such that the plaintiff was unable to tell whether the car was approaching at an excess speed, and may have been said, by the jury, to have been justified in relying upon the defendant's operating the car at a prudent and lawful rate of speed, in which case he would have ample time to cross over the tracks.
In the case of Lamoreaux v. Tacoma R. P. Co., 176 Wn. 307,28 P.2d 1019, we held that the plaintiff's allegations, in a complaint to which a demurrer had been sustained, did not show contributory negligence as a matter of law, the facts alleged being to the effect that the plaintiff had looked for and had seen the street car in question when it was a block away, and, thinking she had ample time to cross in front of it safely, proceeded to cross the street. She was carrying an umbrella at the time, and carried it in such manner as to cut off her view of the approaching car, and was struck by it as she crossed the tracks. In that case, this court decided that the plaintiff was entitled to rely upon the defendant's *Page 410
exercising due care, and felt that it was a jury question as to whether she failed to exercise ordinary care in crossing the street with knowledge of the fact that the street car was approaching from a point a block distant. Under those circumstances, it would seem that the failure of the plaintiff to maintain a continuing lookout for the approaching car was not as negligent as was the case in other situations discussed above.
The case of Hohman v. Seattle, 179 Wn. 663, 38 P.2d 242, discloses that the plaintiff saw the defendant's street car when it was about three hundred and fifty feet away from the point at which she was struck. She was then about thirty feet away from the landing platform toward which she was going. She waved her shopping bag at the motorman and started across the tracks, and didn't see the car again until it was right upon her. We held that the plaintiff's contributory negligence was for the jury to find, and that the plaintiff had the right to assume that the motorman would heed her signal.
The case of Jackman v. Seattle, 187 Wn. 446, 60 P.2d 78, is one in which the question of the plaintiff's contributory negligence was found to be for the jury, but in that case the facts showed that the accident happened on a very foggy morning, when visibility was exceedingly poor. The plaintiff's testimony was to the effect that he had looked for approaching cars, but was unable to see a thing approaching, even though he was constantly looking as he neared the tracks. Under those facts, it was decided that reasonable men could differ as to whether or not the plaintiff had failed to exercise reasonable care for his own safety and welfare.
The case of Poland v. Seattle, 200 Wn. 208, 93 P.2d 379, was one in which the plaintiff's actions were found to have been contributorily negligent as a matter *Page 411
of law. In that case, the plaintiff contended that he had looked for approaching cars, but failed to see any. However, there was evidence to the effect that the plaintiff's vision was good, and that he had an unobstructed view of the tracks for some one hundred and eighty feet. The street car was illuminated fully at the time. We held that, since the object must have been seen had there been an exercise of ordinary care, the plaintiff was to be held to that same degree of care which would have been required if he had actually seen the object.
A search of the authorities in other jurisdictions has revealed several cases involving factual situations very much akin to that presented in the case at bar.
The case of Stockton v. Philadelphia Rapid Transit Co.,260 Pa. 372, 103 A. 922, was one in which the plaintiff was struck while attempting to cross the car tracks of the defendant. He had seen the car of the defendant approaching, and held up his hand to indicate to the motorman his intention of crossing. When the car was several feet away from him, he stepped onto the track and was struck. In disposing of the case, it was decided by the court that, as a matter of law, the plaintiff had been contributorily negligent. No discussion of the matter was set forth.
In Clark v. Pittsburgh Railways Co., 314 Pa. 404,171 A. 886, the plaintiff saw the approaching street car from a time when it was four hundred feet down the track. He entered upon the street at that time. He testified that when it was about seventy feet away it was diminishing its speed, although it was running "pretty fast" at that time, just before he stepped onto the rails. He was held to have been contributorily negligent as a matter of law for not having maintained a constant lookout as he continued forward, and for *Page 412
stepping into the path of the oncoming car, of whose approach he was aware. The court remarked:
"That a person who crosses a track in front of a `pretty fast' moving street car 70 feet away without again looking at the car until it is four or five feet away from him is guilty of contributory negligence is too plain for argument. Inattention in an obviously hazardous situation is negligence. We said in Hawkv. P.R.R. Co., 307 Pa. 214, 220, 160 A. 862: `Common prudence requires alert watchfulness and celerity in getting out of a zone of danger as well as caution in getting into such a zone. It has been aptly said: "When human life is at stake, the rule of due care and diligence requires everything that gives reasonable promise of its preservation to be done, regardless of difficulties or expense": 20 Ruling Case Law, page 25, section 18.'"
In Thompson v. Metropolitan St. R. Co., 89 App. Div. 10,85 N Y Supp. 181, the decedent saw the oncoming car slow up when a short distance away. The speed was increased again, however, and as the decedent stepped upon the tracks he was struck by the car. In holding the intestate to have been contributorily negligent as a matter of law, the court stated:
"Whether or not a signal of the approach of the car was given is of no importance, because the evidence is conclusive upon the point that the intestate saw the car. He `looked at the car,' and must have known that it was approaching, because it was then only 8 or 10 feet from him. Nor is there any force in the suggestion that he had a right to assume, because the car had commenced to slow up, that it would be so controlled that he could cross the street in safety. It was the duty of the motorman as the car approached the crossing to have it under reasonable control.Hoyt v. Metropolitan St. Ry. Co., 73 App. Div. 249, 76 N.Y. Supp. 832. But this did not give the intestate the right to assume that it would come to a stop, or that its speed would be so controlled as to give him time to pass over the tracks *Page 413
without being injured. He had no more right to indulge in this assumption, under the facts set out in the record, than the motorman had to indulge in the assumption that the intestate would keep out of the way of the car. The intestate, of course, was as much obligated to look out for his own safety as the defendant was to prevent his being injured. The obligation resting upon each was mutual in this respect. Both had an equal right to the use of the street at this point, and while it was the duty of the defendant to move its car with care, to the end that the intestate would not be injured, he was also required to exercise the same care to prevent being injured. We are of the opinion that the record failed to establish the negligence of the defendant, or the intestate's freedom from negligence."
In Welsh v. Concord, M. H. St. R. Co., 223 Mass. 184,111 N.E. 693, the deceased saw the street car in question when it was about eight hundred and seventy-five feet away, and then began to cross the street toward a loading zone, intending to catch that street car. She waved her arms in the direction of the car as she crossed the street. When the car was only about ten feet away from her, the deceased entered upon the tracks, and was killed. We deem the language of the court worthy of quotation, due to its applicability to the facts in the case at bar:
"A person travelling upon the highway must exercise care to avoid known dangers. The gong was not sounded upon the car, nor was any signal given of its approach, but this is immaterial so far as the conduct of the deceased is concerned. She knew that the car was approaching and was endeavoring to take it at the white post. The facts as they appear from the undisputed evidence make it plain that, in her hurry and confusion to obtain passage upon the car, the plaintiff's intestate ran upon the track directly in the path of the car without regard to the manifest danger which confronted her. The car had been in plain sight from the time she left the Coyne house up to the time she was *Page 414
struck. There was no reason why she should have left a place of safety upon the highway and started to run or walk across the track when the car was but a few feet away and approaching at a high rate of speed. There was, so far as the evidence discloses, nothing to distract her attention, and no evidence that her senses were defective. While the accident was most unfortunate, we cannot escape the conclusion that the deceased, in her hurry to reach the post and take the car, in utter disregard for her safety, precipitated herself upon the track in front of a rapidly moving car, a place of great and obvious peril."
Again, in Smith v. Boston Elevated R., 23 N.E.2d (Mass.) 857, contributory negligence was found as a matter of law where the plaintiff saw the approaching street car for some distance, and stepped into its path when it was but a few feet away. The court gave no weight to the plaintiff's statement to the effect that she thought the street car was slowing down, and that she thought she had plenty of time to cross over the tracks. The court held that at the moment she left the zone of safety and entered upon the car tracks, the street car was so close to her that there was clearly a failure to exercise due care.
The case of Devore v. Rapid R. Co., 235 Mich. 405,209 N.W. 111, involved a factual situation which differed from that in the case at bar in that the plaintiff was injured as a result of standing too close to the car tracks, instead of being injured as a result of attempting to cross in front of the street car. However, the following language from that case is very much in point:
"When the plaintiff placed himself close to the track and gave the customary signal and received no negative response, he had a right to assume that the car would stop, but he had no right to continue to indulge in that presumption after there was presented to him positive evidence that it was not going to stop. It continued towards him with increasing speed, and gave no indication that it was going to stop. When it was *Page 415
within 10 feet of him running at a rapid rate of speed he must have known that it was intending to pass. It could not stop then in time to avoid hitting him. He had no right to be indulging in any presumptions at that time. He knew that it would strike him unless he withdrew from the track, which he could have done instantly. He could have done so when it was within 5 feet of him. So it must be held that he realized the impending danger and had ample time to withdraw to a place of safety. He did not do so. In view of these undisputed facts, the plaintiff was guilty of contributory negligence, and the circuit judge was right in so holding as a matter of law."
In Griffith v. Denver Consol. Tramway Co., 14 Colo. App. 504,61 P. 46, the decedent was found to have been contributorily negligent as a matter of law when it was shown that she saw an oncoming street car, wanted to board it, and proceeded to cross the street waving her handkerchief as a signal to the motorman to stop for her. The court held that for her to have entered upon the space between the tracks with full knowledge of the rapid approach of the street car was an act so negligent as to preclude any disagreement as to its character.
Liutz v. Denver City Tramway Co., 43 Colo. 58, 95 P. 600, was a case in which the decedent had seen the street car approaching, had signaled it to stop, and then proceeded to cross the street. It was shown that at the moment the decedent stepped upon the car tracks it was only about five feet away from her, and was approaching rapidly. This being the case, the court found that the decedent had been contributorily negligent as a matter of law in so doing.
In Hendricks v. Virginia Electric Power Co., 161 Va. 793,172 S.E. 160, the plaintiff was injured while crossing the car tracks to approach a spot at which he alleged he believed the street car would stop. That spot was not the regular stopping place, however, and *Page 416
the court began by failing to find that the defendant was negligent. Having done so, the court pointed out that it would be incorrect to refer to the plaintiff's conduct as being contributorily negligent, but held that it was in itself the only negligent conduct involved in the accident, and was the sole proximate cause thereof. The court held that the plaintiff's knowledge of the approach of the street car, on which he alleged he had kept his vision fixed for some time, was such a reckless and rash act that it was clearly negligent, pointing out the fact that pedestrians can, in most cases, avoid such injuries by "the exercise of the slightest care," by stopping and not taking the fatal step into obvious danger.
To summarize, we find the Burian, Chisholm, Richmond, Hersey,Johnson, Hoyer, Thomson, Lamoreaux, Hohman, and Jackson cases hold that, under the facts present in those cases, the question of contributory negligence was for the jury, while in theSkinner, Helliesen, Fluhart, Beeman, Knight, McClelland, andPoland cases, this court decided that the injured party was guilty of contributory negligence as a matter of law.
We have already distinguished some of our cases upon the facts. However, the facts present in the last mentioned cases and in theJohnson, Lamoreauz, and Hohman cases are so similar in all material aspects that they cannot be easily harmonized or distinguished. We are therefore forced to adopt the reasoning of one set or the other.
[7] In the light of the definition of the term "contributory negligence," as contained in the quotations set out in the first portion of this opinion, our own decisions, and those of other jurisdictions, we hold that every person must use ordinary care and caution for his own safety, and that one who knowingly approaches *Page 417
a dangerous vehicle, such as a rapidly moving street car, and deliberately steps in its path at a time when there is nothing to detract his attention or reasonably lull him into a feeling of security, is guilty of contributory negligence as a matter of law.
After considering the definition of contributory negligence, and the force of the reasoning contained in the Skinner,Helliesen, Fluhart, Beeman, Knight, McClelland, and Poland
cases, and in those from the other states which we have cited, we feel constrained to adhere to, and adopt, the holdings in the last mentioned cases. They reflect a better application of the general rule and conform more closely to the weight of authority.
Applying the rules to the facts present in the instant case, we find that Mr. Hynek was in possession of all of his faculties. He saw the lights of the approaching car when it was seven hundred feet from the place where he was standing. He then walked across the street with his eyes upon the approaching street car. He was at all times in a position to judge its speed, and there was no traffic of any kind to distract his attention. He saw that the street car, weighing several tons, was traveling at a rapid rate of speed toward him, that it traveled on a fixed course upon rails inbedded in the street. The rails and the moving car were in themselves notices of danger which any reasonable man was compelled to appreciate.
The thought is well expressed in the following quotation fromLewis v. Seattle Taxicab Co., 72 Wn. 320, 130 P. 341:
"On the question of the degree of care required of persons while crossing public streets used by passing vehicles, the appellant cites from this and other courts a number of cases of injury caused by railroad trains and passing street cars; but it is at once apparent that *Page 418
these cases can hardly be said to be in point except as they may state general principles. The degree of care required of a pedestrain crossing a railroad or street car track is much higher than is the care required of one crossing an ordinary public street where only passing teams or automobiles are to be encountered. Railroad trains and street cars must move on a fixed track, and the track is, for that reason, at once a warning of danger and a marking of the zone of safety; the cars are heavy and cumbersome and cannot turn aside to avoid a collision or be brought quickly to a stop when once in motion; hence the persons directing the movements of such cars are limited in their powers to protect persons found upon the track. But this is not true with reference to ordinary vehicles. The driver of these has freedom of choice as to the part of the street he will drive them upon; they can be turned quickly to one side or the other, and are capable of easy control otherwise. As to these, therefore, the footman may rely on the presumption that, so long as he occupies one place or pursues a given course, he need not be run into, and to fail to keep a lookout for the approach of such vehicles is not necessarily want of care. The degree of care required of such a person of course varies with the circumstances. It depends largely upon place and upon the condition of the street; whether the street is crowded with traffic or comparatively free therefrom; whether he enters the street at a place usually used by travelers on foot, and perhaps on many other conditions, but the degree of care required is ordinary care under the circumstances, and this as we say may be vastly different from ordinary care with reference to crossing fixed tracks upon which railway or street cars are operated."
Notwithstanding the prominent facts which we have pointed out, Mr. Hynek deliberately walked across the street and then stepped in front of the rapidly approaching car in the face of known danger and the warning given to him by his wife at a time when the car was fifty feet north of him.
It is true that he may have believed that the car's *Page 419
regular stopping place was at the southern corner of the intersection, and that when he saw the car slowing down he thought it was an answer to his signal; however, the evidence of respondent was to the effect that it was plain that the speed of the car was again being accelerated when it was still some fifty feet away from the point where he was struck, and he was warned of that fact by his wife.
The minds of reasonable men will not differ in opinion that an individual is guilty of contributory negligence when so acting. Respondent's evidence conclusively shows that the acts of her husband constituted contributory negligence which became the predominate, proximate cause of his death. We are compelled to hold that such conduct on the part of one injured precludes recovery. To hold otherwise would be to relieve pedestrians of all duty and put a premium upon carelessness.
[8] We are next faced with the question of whether respondent was entitled to recover because of the application of the last clear chance doctrine.
We are of the opinion that the court was in error in submitting the instruction relative to last clear chance to the jury, and that respondent cannot lean upon that rule in order to sustain her judgment.
The doctrine of last clear chance has two phases, dependent upon whether the defendant actually saw the plaintiff in time to have avoided the accident, or whether the defendant should have seen the plaintiff in time to avoid the accident, but really did not.
Under the first phase, involving actual knowledge of plaintiff's plight, the rule of this court has been that the doctine is applicable even though the negligence of the plaintiff may have continued down to the moment of the impact.
Under the second phase, however, in which the defendant *Page 420
should have seen the plaintiff in time to avoid the injury, but actually did not, we have consistently held that the doctrine has no effect unless it is shown that the negligence of the plaintiff terminated or culminated in a situation of peril from which he could not extricate himself. Mosso v. Stanton Co., 75 Wn. 220,134 P. 941, L.R.A. 1916A, 943; O'Brien v. WashingtonWater Power Co., 79 Wn. 82, 139 P. 771; Leftridge v.Seattle, 130 Wn. 541, 228 P. 302; Larson v. Tacoma R. P.Co., 146 Wn. 660, 264 P. 419; Zettler v. Seattle,153 Wn. 179, 279 P. 570.
In the case at bar, it is plain that the negligence of the decedent was not apparent until the moment of the impact. Mr. Hynek was not in a position of danger until the moment he stepped in front of the car, and the motorman, had he seen him, would not be required to anticipate that Hynek would so negligently conduct himself as to risk his life by stepping from his place of safety directly in front of the moving car.
There is no room for the application of the rule until the negligence of the injured person has commenced. Stubbs v.Boone, 164 Wn. 368, 2 P.2d 727.
In Hartley v. Lasater, 96 Wn. 407, 165 P. 106, we stated:
"Last clear chance implies thought, appreciation, mental direction, and the lapse of sufficient time to effectually act upon the impulse to save another from injury, or the proof of circumstances which will put the one charged to implied notice of the situation."
The application of that holding is clearly apparent.
The foregoing considerations make it unnecessary to pass upon the other points which have been raised.
The judgment of the trial court is reversed, with instructions to dismiss the action.
ROBINSON, C.J., BEALS, STEINERT, and JEFFERS, JJ., concur. *Page 421 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3395993/ | The writ of error herein was allowed and taken under the statute to a final order made in habeas corpus proceedings before the Circuit Judge in Union County in which county the State Prison is located. The court held the sentence of the petitioner to imprisonment in the State Prison to be void, and ordered that the petitioner "be taken before the Circuit Court in due course for a proper sentence."
The petitioner was convicted in the Circuit Court for Seminole County and sentenced to "be confined at hard labor in the State Prison of the State of Florida, for and during the period of three years."
The statute provides that every person who violates its provisions "shall be deemed guilty of a felony and upon conviction shall be punished by imprisonment for not more than ten years." Section 7251 (5150), Compiled General Laws. *Page 748
It is contended that as the statute does not specifically state that the imprisonment shall be in the State Prison or State Penitentiary, that the imprisonment should be in the county jail. Walden v. State, 50 Fla. 151, 39 So.2d 151, is relied upon. In that case the statute provided for punishment "by imprisonment not more than ten years, or by fine not exceeding two thousand dollars, or by both fine and imprisonment." Section 1, Chapter 4965, Acts of 1901. The statute there did not make the offense a felony and did not provide for imprisonment in either the State Penitentiary or in the county jail; therefore, Section 7103 (5004), Compiled General Laws, required the imprisonment to be in county jail as for a misdemeanor, and not in the State Prison as for a felony.
The Constitution provides that "the term felony, whenever it may occur in this Constitution or in the laws of the State, shall be construed to mean any criminal offense punishable with death or imprisonment in the State penitentiary." Section 25, Article XVI.
The statutes contain the following:
"Whenever punishment by imprisonment is prescribed and the said imprisonment is not expressly directed to be in the State prison, it shall be taken and held to be imprisonment in the county jail, and whenever the punishment is prescribed to be fine or imprisonment (whether in the State prison or county jail), in the alternative, the court may, in its discretion, proceed to punish by both fine and such imprisonment." Section 7103 (5004), Compiled General Laws.
"Any crime punishable by death, or imprisonment in the State prison, is a felony, and no other crime shall be so considered. Every other offense is a misdemeanor." Section 7105 (5006), Compiled General Laws.
In this case the statute expressly provides that every *Page 749
person violating the section "shall be deemed guilty of a felony and upon conviction shall be punished by imprisonment for not more than ten years." As under the Constitution the term felony shall be construed to mean any criminal offense punishable with death or imprisonment in the State penitentiary, and as under Section 7105 (5006), Compiled General Laws, a crime punishable by death or imprisonment in the State prison is a felony, Section 7251 (5150), Compiled General Laws, in making the offense a felony followed by the imposition of a penalty of "imprisonment for not more than ten years," necessarily means imprisonment in the State penitentiary as for a felony and not imprisonment in the county jail as for a misdemeanor; and Section 7103 (5004), Compiled General Laws, is not controlling as it was in the Walden case,supra.
If under Section 25, Article XVI, of the Constitution, a felony is any criminal offense punishable with death or imprisonment in the State penitentiary, then under Section 7105 (5006), Compiled General Laws, any criminal offense punishable by death or imprisonment in the State prison is a felony; and if an offense is by statute made a felony; it is "punishable" by death or imprisonment in the State penitentiary; and when a criminal offense is made a felony by statute and the period of imprisonment is fixed by statute without stating the place of imprisonment, it means imprisonment in the State penitentiary. This is the necessary effect of Section 25, Article XVI, of the Constitution and of Section 7105 (5006), Compiled General Laws, upon the provision for imprisonment contained in Section 7251 (5150), Compiled General Laws, under which the defendant in error was convicted and sentenced to imprisonment in the State prison.
Reversed. *Page 750
TERRELL and BROWN, J. J., concur.
BUFORD, C. J., and ELLIS, J., dissent.
DAVIS, J., disqualified.
ON REHEARING. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523639/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DWIGHT D. STIRLING, No. 18-55834
Plaintiff-Appellant,
D.C. No.
v. 8:18-cv-00205-
AG-JCG
LARRY MINASIAN, Lt. Col.,
Erroneously Sued As David
Minasian, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted November 8, 2019
Pasadena, California
Filed April 8, 2020
Before: Mary M. Schroeder and Michelle T. Friedland,
Circuit Judges, and Roslyn O. Silver, * District Judge
Opinion by Judge Schroeder
*
The Honorable Roslyn O. Silver, United States District Judge for
the District of Arizona, sitting by designation.
2 STIRLING V. MINASIAN
SUMMARY **
Removal Jurisdiction / Federal Officer
The panel affirmed the district court’s order denying
Dwight Stirling’s motion to remand his case to California
state court after the defendant removed the case to federal
court.
Stirling is an attorney in the Judge Advocate General
Corps (“JAG”) of the California Army National Guard, and
a member of the California State Bar. Stirling sought to
obtain a ruling that his JAG colleague Lawrence Minasian
was engaged in the unauthorized practice of law because
Minasian was licensed only in states outside of California.
Minasian is an attorney licensed in Tennessee and Arkansas,
who lives in California and serves as a Regional Defense
Counsel in the California Army National Guard’s JAG Trial
Defense Service (TDS).
28 U.S.C. § 1442(a)(1) allows for the removal to federal
court of a “civil action or criminal prosecution” against the
“United States or any agency thereof or any officer (or any
person acting under that officer) of the United States.”
The panel held that Minasian was entitled to remove this
case to federal court as a “person acting under” an officer of
the United States.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
STIRLING V. MINASIAN 3
The panel rejected Stirling’s argument that this was not
a “civil action or criminal prosecution” under 28 U.S.C.
§ 1442(a)(1). First, the panel held that Minasian was a
“person” within the meaning of the statute. Second, the
panel held that there was a causal nexus between Stirling’s
claims and Minasian’s actions taken pursuant to a federal
officer’s directions, where Minasian was directly supervised
by a federal Title 10 officer who served as the Chief of the
Army National Guard Trial Defense Service, and Minasian’s
practice reflected the type of federal supervision and
management envisioned by the applicable federal
regulations and guidance. Third, the panel held that
Minasian raised a colorable federal defense under the
Supremacy Clause whereby Minasian was appointed and
practiced under a federal regulatory scheme that preempted
a claim by a private individual that would have the effect of
invalidating those federal regulations in states, like
California, that do not require all TDS attorneys to become
members of the State Bar.
COUNSEL
Corey Lovato (argued), Phoenix, Arizona, for Plaintiff-
Appellant.
David Pinchas (argued), Assistant United States Attorney;
David M. Harris, Chief, Civil Division; Nicola T. Hanna,
United States Attorney; United States Attorney’s Office, Los
Angeles, California; for Defendant-Appellee.
4 STIRLING V. MINASIAN
OPINION
SCHROEDER, Circuit Judge:
Dwight Stirling is an attorney in the Judge Advocate
General Corps (JAG) of the California Army National
Guard. He is a member of the California State Bar, but not
all of his colleagues are. Applicable federal law requires
only membership in good standing of the bar of any state,
territory, or the District of Columbia to practice as a JAG
attorney in limited ways, including (as relevant to this case)
when those attorneys defend members of the California
Army National Guard in administrative actions,
investigations, or inquiries. See, e.g., National Guard
Regulation (“NGR”) 27-12 § 2-1. The California Bar has
concluded, in response to complaints from Stirling, that such
practice is also consistent with California law. Nevertheless,
Stirling has tried unsuccessfully for a number of years to
obtain a ruling that his JAG colleagues must also be
members of the California Bar. See In re Lusk, No. SACV
16-0930 AG (JCGx), 2016 WL 4107671 (C.D. Cal. July 30,
2016), appeal dismissed sub nom. Stirling v. Lusk, No. 16-
56199, 2017 WL 7733073 (9th Cir. Nov. 16, 2017).
Stirling now appeals the district court’s order denying his
motion to remand the case to California state court, where he
wants to pursue his claim that a JAG colleague, defendant
Lawrence Minasian, is engaged in the unauthorized practice
of law because Minasian is licensed only in states outside of
California. Minasian, represented by the United States
Attorney, removed Stirling’s action against him to federal
court.
The precise issue we must decide is a narrow one.
28 U.S.C. § 1442(a)(1) allows for the removal to federal
court of “[a] civil action or criminal prosecution” against
STIRLING V. MINASIAN 5
“[t]he United States or any agency thereof or any officer (or
any person acting under that officer) of the United States.”
The issue presented in this appeal is whether Minasian was
entitled to remove this case to federal court as a “person
acting under” an officer of the United States.
The issue has been framed by the background of these
proceedings. Minasian is an attorney licensed in Tennessee
and Arkansas. He lives in California and serves as a
Regional Defense Counsel in the California Army National
Guard’s JAG Trial Defense Service (TDS). In response to a
complaint from Stirling, the California State Bar previously
determined that, as a National Guard attorney, Minasian is
not engaged in the unauthorized practice of law in
California. Nonetheless, Stirling filed this action against
Minasian in state court, seeking a writ seizing Minasian’s
law practice for having engaged in the unauthorized practice
of law. Minasian removed the case to federal court on the
basis that this case challenges Minasian’s actions taken
while acting under an officer of the United States, and
moved to dismiss. Stirling sought to remand the case back
to state court, contending that Minasian is not entitled to
removal under 28 U.S.C. § 1442(a)(1), because when
Minasian is serving in the California Army National Guard
he is subject to state laws and state control. See NGR 500-5
§ 10-3(a).
The district court denied Stirling’s motion to remand and
then dismissed the entire case on the ground of issue
preclusion, reasoning that the same issues had already been
resolved against Stirling in his earlier, similar case against a
different JAG colleague. On appeal, Stirling challenges only
the denial of remand. While Stirling’s reasons for wanting
Minasian declared unqualified to serve as a JAG attorney in
California are not clear, Stirling’s desire to have the dispute
6 STIRLING V. MINASIAN
resolved in California state court is apparent. He cannot
achieve this, however, because Minasian was “acting under”
an officer of the United States, so removal to federal court
was proper.
Members of the California Army National Guard, like
their counterparts in other states, serve both the state in
which they are located, as well as the federal government
when needed. See Bowen v. Oistead, 125 F.3d 800, 802 n.1
(9th Cir. 1997). Members simultaneously enlist in the state
National Guard and in the National Guard of the United
States. See Perpich v. Dep’t of Def., 496 U.S. 334, 345
(1990) (describing dual enlistment provisions enacted after
WWI). When members are called into federal active duty
status, they serve pursuant to Title 10 of the United States
Code (“Armed Forces”), which pertains to all active duty
members of the armed services of the United States. See
10 U.S.C. § 101(d)(1) (defining “active duty”).
When members are not on federal active duty, they are
in federal reserve status. Bowen, 125 F.3d at 804 n.4. One
form of federal reserve status is service in a “hybrid” status
pursuant to Title 32 of The United States Code (“National
Guard”), in which members provide military support as state
National Guard members under state control while also in
the service of the federal government and funded by the
federal government. See 10 U.S.C. § 101(d)(5) (defining
“full-time National Guard duty” service pursuant to
provisions of Title 32); Stirling v. Brown, 227 Cal. Rptr. 3d
645, 651 (Ct. App. 2018) (“Title 32 status is a hybrid in that
a National Guard member operates under state active duty
and under state control but in the service of the federal
government. While under title 32 status, the National Guard
service member is on state active duty funded by the federal
government, but authorized, organized, implemented and
STIRLING V. MINASIAN 7
administered by the state.”). As we explained in Bowen, the
Title 32 “hybrid” program is “authorized by federal statute
and [was] created to provide full-time military support
personnel to assist in the administration of the National
Guard of the various states.” 125 F.3d at 802 (citation
omitted). Both Stirling and Minasian are JAG officers and
Title 32 Guard members, serving pursuant to 32 U.S.C.
§ 502(f).
Aside from federal active duty pursuant to Title 10 and
hybrid duty pursuant to Title 32, a member of a state
National Guard may also serve in a non-hybrid form of state
active duty. Such members act “under state control for state
purposes” and—unlike those on Title 32 hybrid duty—“at
state expense.” Brown, 227 Cal. Rptr. 3d at 650 (quoting
NGR 500-5 § 10-2(a)). This case does not involve anyone
serving in this capacity.
Title 32’s introductory sections epitomize the hybrid
nature of the National Guard. The initial section establishes
that National Guard members serving under Title 32 are
trained and organized at the expense of the federal
government in order to provide for the common defense,
pursuant to Article I, Section 8, Clause 16 of the
Constitution. 32 U.S.C. §§ 101(4), 101(6). The next section
explains that the Army National Guard exists to ensure that
the strength of the United States Army be maintained at all
times and that the Army National Guard must be made
available for active duty service during emergencies. Id.
§ 102. That purpose is mirrored in Title 10’s description of
the Army Reserve. See 10 U.S.C. § 10102 (the Army
reserve is “to provide trained units and qualified persons
available for active duty in the armed forces, in time of war
or national emergency”).
8 STIRLING V. MINASIAN
National Guard regulations embody the hybrid nature of
Title 32 service. The key regulation is NGR 500-5 § 10-3(a).
It provides that Title 32 members are “employed in the
service of the United States for a primarily federal purpose,”
but while in reserve status under Title 32 they operate “under
the command and control of the state and thus in a state
status.” NGR 500-5 § 10-3(a) (quotation marks omitted).
Subsection (c) of the regulation provides historical examples
of Title 32 National Guard members ordered to emergency
federal duty. National Guard members were needed to
provide “security at many of the nation’s airports after
September 11, 2001,” and to participate “in Hurricanes
Katrina and Rita-related disaster relief operations.” Id. § 10-
3(c).
The case law therefore recognizes that when called into
active federal service, National Guard members are under
federal control, but when they are in reserve status under
Title 32, they operate under state control. See, e.g., Clark v.
United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003)
(“[M]embers of the National Guard only serve the federal
military when they are formally called into the military
service of the United States. At all other times, National
Guard members serve solely as members of the State militia
under the command of a state governor.”); United States v.
Hutchings, 127 F.3d 1255, 1258 (10th Cir. 1997) (same);
Knutson v. Wis. Air Nat’l Guard, 995 F.2d 765, 767 (7th Cir.
1993) (same).
Accordingly, Stirling’s major argument in this case is
that because National Guard members in reserve status are
under state control, Minasian’s practice of law must be
solely a matter of state interest, with his appointment and
practice traceable only to state law and not to any federal
authority or federal officials. We disagree.
STIRLING V. MINASIAN 9
We considered the status of Title 32 National Guard
members in Bowen, 125 F.3d 800. The issue was whether
immunity under the Feres doctrine barred the suit of a Title
32 Alaska Air National Guard member against the Alaska
National Guard, among other defendants. Id. at 802–03.
The Feres doctrine prohibits members of the armed services
from suing the federal government for injuries that resulted
from their duties. Feres v. United States, 340 U.S. 135, 146
(1950). The plaintiff sought damages for, among other
things, wrongful termination and contended that the Feres
doctrine could apply only if he had been serving the federal
government in Title 10 active duty status. Bowen, 125 F.3d
at 804. We held Feres immunity applied, because of state
National Guards’ “integral role” in “the nation’s defense
force and the substantial degree to which the state National
Guards are financed, regulated, and controlled by the federal
government even when not called into active federal
service.” Id. at 805.
The issue in this case involves removal. Removal was
proper if this is “[a] civil action or criminal prosecution” and
Minasian demonstrated he was “acting under” an officer of
the United States. See 28 U.S.C. § 1442(a)(1). As an initial
matter, we reject Stirling’s argument that this is not a “civil
action or criminal prosecution.” As used in 28 U.S.C.
§ 1442, that term “include[s] any proceeding . . . to the
extent that in such proceeding a judicial order . . . is sought
or issued.” Id. § 1442(d)(1). Here, Stirling filed a petition
“asking the Orange County Superior Court to file an
application with the Fresno County Superior Court seeking
assumption by the Fresno County Superior Court over
Lawrence Minasian’s practice of law” pursuant to California
Business & Professions Code section 6126.3. That statute,
one of California’s provisions enforcing the ban on the
unauthorized practice of law, describes a process by which a
10 STIRLING V. MINASIAN
superior court, in the county where a person is practicing law
without a license, can assume jurisdiction over that person’s
practice. See Cal. Bus. & Prof. Code § 6126.3(e). Stirling’s
invocation of this statute shows that he ultimately seeks, at a
minimum, a judicial order assuming jurisdiction over
Minasian’s practice. See id.
Stirling relies on statements in unrelated case law that
describe “disciplinary proceedings heard by the [California]
State Bar Court” as “sui generis, neither civil nor criminal in
character.” See In re Rose, 993 P.2d 956, 440 (Cal. 2000)
(quoting Yokozeki v. State Bar, 521 P.2d 858, 865 (Cal.
1974)). But, even if that could mean that some attorney
disciplinary proceedings adjudicated by the California State
Bar Court are not covered by the definition of “civil action
or criminal prosecution” in 28 U.S.C. § 1442—an issue we
do not decide—Stirling’s argument fails because this action
does not involve a disciplinary proceeding before the
California State Bar Court. Cf. In re Commonwealth’s
Motion to Appoint Counsel Against or Directed to Def. Ass’n
of Phila., 790 F.3d 457, 467 (3d Cir. 2015) (motions by the
Commonwealth of Pennsylvania seeking to disqualify their
opposing counsel “are not attorney disciplinary
proceedings”).
As to whether Minasian was “acting under” a federal
officer, this statutory language “must be ‘liberally
construed’” in favor of removal. Watson v. Philip Morris
Cos., 551 U.S. 142, 147 (2007) (quoting Colorado v. Symes,
286 U.S. 510, 517 (1932)). There is a three-part inquiry
when assessing the propriety of a removal under this
provision. Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099
(9th Cir. 2018). That test requires that the “defendant in a
state court action . . . ‘demonstrate that (a) it is a person
within the meaning of the statute; (b) there is a causal nexus
STIRLING V. MINASIAN 11
between its actions, taken pursuant to a federal officer’s
directions, and plaintiff’s claims; and (c) it can assert a
colorable federal defense.’” Id. (quoting Durham v.
Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir.
2006)). Each part of this test is satisfied here.
First, as Stirling does not dispute, Minasian is a “person”
within the meaning of the statute. See 1 U.S.C. § 1 (noting
“person” includes “individuals”).
Second, there is a causal nexus between Stirling’s claims
and Minasian’s actions pursuant to a federal officer’s
directions. Our inquiry focuses on whether Minasian was
involved in “an effort to assist, or to help carry out, the duties
or tasks of [a] federal superior.” Watson, 551 U.S. at 152
(emphasis omitted). The relationship between someone
acting under a federal officer and the federal officer
“typically involves ‘subjection, guidance, or control.’”
Fidelitad, 904 F.3d at 1099 (quoting Watson, 551 U.S.
at 151). “[E]xtensive ‘federal regulation alone’” is
insufficient. Riggs v. Airbus Helicopters, 939 F.3d 981, 987
(9th Cir. 2019) (quoting Fidelitad, 904 F.3d at 1100),
petition for cert. filed, No. 19-1158 (U.S. Mar. 20, 2020).
Here, the record reflects that Minasian was directly
supervised by Colonel Timothy Rieger, a federal Title 10
officer who serves as the Chief of the Army National Guard
Trial Defense Service. There is no dispute that Colonel
Rieger is an officer of the United States. And Colonel
Rieger’s declaration establishes that Minasian was
practicing law in California—and doing so without being a
member of the California Bar—pursuant to his orders from
federal superiors including Colonel Rieger. After explaining
that he serves under federal orders pursuant to Title 10,
Colonel Rieger stated,
12 STIRLING V. MINASIAN
I am LTC Minasian’s direct supervisor. I rate
his performance and oversee his day to day
work and assign him tasks. I am also required
to ensure that he conforms to the military
rules of professional responsibility . . . . No
State officer conducts such oversight over
LTC Minasian’s practice.
Rieger Decl. ¶ 6.
Minasian’s practice reflects the type of federal
supervision and management envisioned by the applicable
federal regulations and guidance. Regional Defense Counsel
in TDS, including Minasian, are JAG attorneys who provide
legal defense services to Title 32 National Guard members.
See NGR 27-12 § 1-1. Title 10 federal officers appoint TDS
Regional Defense Counsel. Dep’t of the Army, Legal
Support to the Operational Army, Field Manual 1-04 App’x
B § B-2 (2013) (“FM 1-04”). Additionally, Title 10 officers
supervise and evaluate TDS attorneys. National Guard
regulations describe that the Chief of the Army National
Guard TDS, who is a Title 10 federal officer, is responsible
for “[t]echnical supervision, management, direction, and
legal defense training for all members of the [Army National
Guard] TDS while in a Title 32 . . . status.” NGR 27-12 § 1-
4(e)(2).
National Guard regulations also provide that TDS
attorneys like Minasian may serve “a Federal function not
subject to regulation by the States.” NGR 27-12 § 2-2(a).
As a Regional Defense Counsel representing National Guard
members in adverse administrative actions, investigations,
or inquiries, Minasian does not appear in California civil
court or any other state court, and he performs legal work
pursuant to federal regulation. See generally NGR 27-12.
STIRLING V. MINASIAN 13
And, crucially, this case presents a challenge to actions that
directly applicable federal regulations authorized Minasian
to perform “regardless of” his “states of licensure.” See id.
§ 2-1. For these reasons, the causal nexus requirement is
met.
Third, Minasian has raised a colorable federal defense
under the Supremacy Clause. As discussed, Minasian was
appointed by and reports to a federal officer and is permitted
by federal regulation to practice law, in a specific and limited
capacity, without becoming a member of the California Bar.
Minasian has a colorable defense that this federal regulatory
scheme preempts a claim by a private individual that would
have the effect of invalidating those federal regulations in
states, like California, that do not require all TDS attorneys
to become members of the California Bar. We do not
express a view on whether this defense is “in fact
meritorious”; we hold only that it is “colorable.” See Leite
v. Crane Co., 749 F.3d 1117, 1124 (9th Cir. 2014). We also
express no view on whether a similar defense would be
colorable against a claim brought in a state that does
expressly require membership in its bar as a condition of
JAG service in that state’s National Guard. See, e.g., Ariz.
Rev. Stat. § 26-1006(A)-(B); Nev. Rev. Stat. § 412.264(1)-
(2).
The provisions of 28 U.S.C. § 1442(a)(1) allow for
removal of an action against the United States, an officer of
the United States, or an individual acting under such U.S.
officer. As the relevant laws, regulations, and record in this
case all demonstrate, a Title 10 federal officer supervises
Minasian’s work pursuant to federal regulation. Thus, a
federal forum must be available to Minasian to defend
against this action.
14 STIRLING V. MINASIAN
Because Minasian properly removed this action as
someone “acting under” a federal officer, we need not decide
whether the United States itself is appropriately viewed as a
“real party in interest” defendant to the case, or whether the
case was removable under the statute that is specific to
removal by members of the armed forces of the United
States, 28 U.S.C. § 1442a.
The district court correctly denied Stirling’s motion to
remand the matter to California state court, because
Minasian was “acting under” a federal officer within the
meaning of 28 U.S.C. § 1442(a)(1).
AFFIRMED. | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/182213/ | 628 F.3d 827 (2011)
UNITED STATES of America, Plaintiff-Appellee,
v.
John Reece ROTH, Defendant-Appellant.
No. 09-5805.
United States Court of Appeals, Sixth Circuit.
January 5, 2011.
*829 ON BRIEF: Thomas H. Dundon, Joshua J. Phillips, Neal & Harwell, PLC, Nashville, Tennessee, for Appellant.
Jeffrey E. Theodore, A. William Mackie, Assistant United States Attorneys, Knoxville, Tennessee, for Appellee.
Before: MARTIN, GIBBONS, and KETHLEDGE, Circuit Judges.
OPINION
BOYCE F. MARTIN, JR., Circuit Judge.
This case involves violations of the Arms Export Control Act, which imposes export controls on "defense articles and services" without a license. Defendant-appellant John Roth worked as a consultant on a United States Air Force defense research project, which had been awarded to Atmospheric Glow Technologies, Inc. in Knoxville, Tennessee. The project entailed developing plasma technology for use on military aircraft. The government charged Roth with exporting data from the project on a trip to China and allowing two foreign nationals in Knoxville access to certain data and equipment in violation of the Act. A jury in United States District Court for the Eastern District of Tennessee convicted him of one count of conspiracy, fifteen counts of exporting defense articles and services without a license, and one count of wire fraud. He appeals his convictions. For the following reasons, we AFFIRM.
I. BACKGROUND
Roth is a published author in the field of plasma technology and was a professor of electrical engineering at the University of Tennessee at Knoxville during the events underlying this case. His former student, Daniel Sherman, was a principal at Atmospheric, of which Roth was a minority owner. The two men had co-authored a paper explaining how plasma technology devices can be used to affect electrohydrodynamic flow, a topic relating to aircraft flight.
In October 2003, the Air Force solicited contract proposals to develop plasma actuators that could be used to control the flight of small, subsonic, unmanned, military drone aircraft. The project would be broken down into Phase I, which entailed developing the design of the actuators, and Phase II, which entailed testing the actuators in a wind tunnel and on a non-military aircraft.
Atmospheric submitted the winning Phase I proposal and the Air Force awarded it the contract in May 2004 with Roth working as a consultant for the project. At or around that time, Sherman told Roth that the project would be paid for with "6.2" funds, which Roth knew implied that the research would be subject to export control laws that prohibit allowing access to the research outside of the United States or to foreign nationals unless a license has been obtained.
When Phase I was completed, Roth assisted Atmospheric in drafting the contract proposal for Phase II, which the Air Force also assigned to Atmospheric. Roth also assisted in writing, and signed, Task Order 102, a subcontract between him and Atmospheric acknowledging that Phase II work was subject to export controls. The Air Force identified some of the technical data reports in the Phase II contract as being export controlled, such as the Quarterly *830 Reports, Technology Transfer Reports, Final Report, and Test Plan. Jesse Crump, who worked for the Department of Defense, testified at trial that the data contained in the Weekly Reports and Quarterly Reports was unquestionably export controlled information, partly because it could only be intended for military use. Additionally, the contract and the subcontract incorporated federal regulations prohibiting foreign nationals from working on the project. Nevertheless, Roth proposed that two of his graduate research assistantsTruman Bonds, an American, and Xin Dai, a Chinese nationalwould work with him on the project. Sherman originally protested Dai's involvement, so it was decided that Bonds was to work at Atmospheric on the export controlled data and Dai would work at the University without access to the export controlled data. Bonds testified at trial that the main reason for the separation of work was because of Dai's foreign citizenship and the export controlled data. Roth did not think that Dai needed to be shielded from the data and Dai eventually gained access to the Weekly Reports from Atmospheric.
As part of the testing of the plasma actuators, a device called the Force Stand was developed for the project and installed in labs at Atmospheric and the University in the fall of 2005. It was used to test the actuators and gather data before proceeding to the stage in which the actuators would be tested in a wind tunnel. Dai worked with the Force Stand, and another graduate student named Sirous Nourgostar, an Iranian national, had access to it multiple times. Crump testified that the Force Stand was a defense article because it was designed specifically to collect data for this project, which had a military purpose.
In anticipation of Dai's completion of his doctorate, Roth informed Sherman and Atmospheric that he intended to replace Dai with Nourgostar. After meeting with reluctance and opposition from Sherman because of Nourgostar's foreign citizenship, and especially because of America's contentious affairs with Iran, Roth sought support from Carolyn Webb, an administrator at the University who supervised research contracts. Webb worried that some parts of the project might concern export controlled data and referred Roth to Robin Witherspoon, the University's officer in charge of export controls. At their initial meeting, Roth explained to Witherspoon that the project was military in nature, but that the subject of the research was part of the public domain, which meant it was publicly available, and, thus, not export controlled. Witherspoon indicated that she was concerned that the data from the research was export controlled. She later followed up with Roth via e-mail and phone to explain that she had concluded that the data was export controlled. At that time, Dai was removed from the project. Additionally, knowing of Roth's upcoming trip to lecture in China, Witherspoon warned him that he could not take anything from Phase II abroad. In a similar vein, Sherman obtained agreement from Roth that he would not take any data from the project to China.
Aside from the Phase II project, Sherman and Atmospheric submitted another contract proposal in May 2005 to the Defense Advance Research Projects Agency, an arm of the Department of Defense that assigns and funds advanced weapons projects. Roth and Sherman spoke about Roth working on the project, and Roth sent Sherman a plan for part of the project that was incorporated into the Agency Proposal. Sherman e-mailed Roth a completed copy of the Proposal, which contained export controlled information from *831 the Boeing Company's weapons division, and marked all but one of the pages with "Proprietary and Export Controlled Information."
On May 16, 2006, Roth traveled to China to lecture at universities regarding his work. He took with him a paper copy of a Phase II Weekly Report, a flash drive with electronic copies of Phase II reports, and a laptop computer on which was stored a copy of the Agency Proposal. Neither Roth nor anyone else accessed any of the electronic files stored on the thumb drive or the laptop, but Roth had Dai send him a copy of a paper containing Phase II data by way of a Chinese professor's e-mail address. Roth later gave Nourgostar access to the paper in the fall of 2007.
On May 20, 2008, a grand jury in United States District Court for the Eastern District of Tennessee returned an indictment against Roth and Atmospheric claiming that Roth had taken Phase II data and the Agency Proposal to China, and both Roth and Atmospheric had allowed Dai and Nourgostar access to the data and the Force Stand. Roth was charged with one count of conspiracy to export defense articles in violation of the Act, fifteen counts of exporting defense articles in violation of the Act, and one count of wire fraud. Before the court delivered instructions to the jury, Roth requested an instruction regarding willfulness that required the government to prove beyond a reasonable doubt that he knew the data and items he allegedly exported were listed on the United States Munitions List. Additionally, he requested a separate instruction regarding ignorance of the law as a defense. However, the district court declined to deliver a separate instruction on ignorance of the law as an affirmative defense, and gave the jury the following instruction regarding willfulness:
To prove that defendant acted knowingly and willfully, the government must prove beyond a reasonable doubt that the defendant voluntarily and intentionally violated a known legal duty. In other words, the defendant must have acted voluntarily and intentionally and with the specific intent to do something he knew was unlawful, that is to say, with intent either to disobey or disregard the law. Negligent conduct, or conduct by mistake or accident, or with a good faith belief that the conduct was lawful, is not sufficient to constitute willfulness.
The jury found Roth guilty of all counts on September 3. He timely filed a motion for judgment of acquittal on grounds of legal and factual insufficiency. He also filed a motion for a new trial, arguing that the district court's jury instructions were improper because the court failed to read to the jury the proper instruction for willfulness and declined to give a separate instruction on ignorance of the law as a defense. The district court denied both motions.
II. DISCUSSION
On appeal, Roth claims that: (1) the Phase II data and the data included in the Agency Proposal are not defense articles or services as a matter of law; (2) the district court incorrectly instructed the jury as to willfulness and improperly failed to deliver his proposed instruction regarding ignorance of the law; and (3) there was insufficient evidence to support the jury's conclusion that he willfully exported the Agency Proposal.
A. Defense Articles and Services Under the Act
We review questions of statutory interpretation de novo. United States v. Gagnon, 553 F.3d 1021, 1025 (6th Cir.2009) *832 (citing United States v. Parrett, 530 F.3d 422, 429 (6th Cir.2008)).
The Act allows for the President of the United States to identify "defense articles and defense services" on the United States Munitions List that cannot be exported without a license from the United States. 22 U.S.C. § 2778(a)-(b) (2006). Furthermore, section 2778(c) imposes criminal penalties for "[a]ny person who willfully violates any provision of [the Act]." In part, the Munitions List identifies as defense articles:
(a) Aircraft, including . . . drones . . . which are specifically designed, modified, or equipped for military purposes.
. . . .
(h) Components, parts, accessories, attachments, and associated equipment (including ground support equipment) specifically designed or modified for the articles in paragraphs (a) through (d) of this category, excluding aircraft tires and propellers used with reciprocating engines.
(i) Technical data (as defined in § 120.10) and defense services (as defined in § 120.9) directly related to the defense articles enumerated in paragraphs (a) through (h) of this category (see § 125.4 for exemptions), except for hot section technical data associated with commercial aircraft engines. Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.
22 C.F.R. § 121.1, Category VIII (2010). Section 120.10 of the Code of Federal Regulations proceeds to define "technical data" as:
(1) Information . . . which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation.
And section 120.09 instructs that a "defense service" is, in relevant part, "[t]he furnishing to foreign persons of any technical data controlled under this subchapter (see § 120.10), whether in the United States or abroad."
Initially, we take note that courts may not review whether items are properly designated as defense articles on the Munitions List. 22 U.S.C. § 2778(h). Our query, therefore, is not whether technical data and components are defense articles, but whether the data from Phase II and the Agency Proposal and the Force Stand fall under the definitions of technical data and components. See United States v. Pulungan, 569 F.3d 326, 328 (7th Cir.2009) (referencing 22 U.S.C. § 2778(h)).
Roth argues that the Phase II data, Agency Proposal, and Force Stand were not defense articles because they were not developed to put plasma actuators on anything designated on the Munitions List. He draws this conclusion because during the time he worked on the project, future stages of Phase II envisioned testing actuators on commercially available aircraft, which are not covered on the Munitions List, before incorporating the actuators into military aircraft. He asserts that his removal from Phase II before actuators were ever applied to any aircraft signifies that his actions could have no connection to a military aircraft.
However, the federal regulations extend export controls to all stages of defense projects that are covered by the Act, not just the final stages when military devices are directly involved. In pertinent part, the federal regulations define "technical *833 data," which is a category of defense article, as "[i]nformation . . . which is required for the design, development, production, manufacture, [and] assembly . . . of defense articles" such as drones. 22 C.F.R. §§ 120.10, 121.1. These terms envision that research requires multiple stages before a project reaches completion, and apply export controls to all those phases. Furthermore, the regulations define "components" as "parts, accessories, attachments, and associated equipment. . . specifically designed or modified for the articles" such as drones. Id. The regulations have been written to cover a broad range of articles at all stages of research and development in projects covered by the Act.
Somehow, Roth ignores the fact that the final goal of Phase II was to incorporate plasma actuators on military drone aircraft. While the project might have called for the data to be tested on a commercially available drone plane at some point in the project, Roth admits that all the data collected, as well as the Force Stand that was developed to collect it, were derived for eventual military use. What is more, he does not argue that the data and Force Stand would not have been defense articles once they were used in conjunction with a military aircraft. This omission implies that the data and the Force Stand would have qualified as defense articles at some point. It seems that Roth thinks that barriers exist between the stages of the project that prevent the defense article qualification from being imputed from one stage to another, which is incorrect according to 22 C.F.R. §§ 120.10, 121.1.
Because the final objective of this project was incorporating plasma actuators into military drones, the district court properly concluded that the underlying data and component were defense articles and services pursuant to 22 C.F.R. § 121.1, Category VIII.
B. Jury Instructions
When a party claims a jury instruction improperly or inaccurately stated the law, we review that claim de novo. United States v. Blanchard, 618 F.3d 562, 571 (6th Cir.2010); H.C. Smith Invs., L.L.C. v. Outboard Marine Co., 377 F.3d 645, 650 (6th Cir.2004) (citing Fisher v. Ford Motor Co., 224 F.3d 570, 576 (6th Cir.2000)). On the other hand, "[a] district court's refusal to give a jury instruction is reviewed for abuse of discretion." H.C. Smith Invs., L.L.C., 377 F.3d at 650 (citing Fisher, 224 F.3d at 576). Roth's claim that the court instructed the jury on the incorrect definition of willfulness is reviewed de novo. His claim that the court erred by not giving the jury an instruction on ignorance of the law as a separate and complete defense is reviewed for abuse of discretion.
1. Willfulness
Neither the Supreme Court nor our Court has defined "willfulness" under section 2778(c). Roth argues that it requires the defendant to intentionally export defense articles or services that he specifically knows are on the Munitions List. The government counters that willfulness under the statute only requires a defendant to know of the general unlawfulness of his conduct, not to know of the specific statutory provision he is violating.
"[A] fundamental canon of statutory construction is that `when interpreting statutes, the language of the statute is the starting point for interpretation, and it should also be the ending point if the plain meaning of that language is clear.'" Thompson v. Greenwood, 507 F.3d 416, 419 (6th Cir.2007) (citing United States v. Boucha, 236 F.3d 768, 774 (6th Cir.2001)). Here, the language cannot be our ending point as the Supreme Court has commented that willfulness can be "`a word of *834 many meanings' whose construction is often dependent on the context in which it appears." Bryan v. United States, 524 U.S. 184, 191, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (quoting Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943)). Generally though, in criminal cases, "in order to establish a `willful' violation of a statute, `the Government must prove that the defendant acted with knowledge that his conduct was unlawful.'" Id. (quoting Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)).
Other circuits have interpreted the willfulness element of section 2778(c) and produced different results. Multiple circuits have interpreted willfulness as requiring a defendant to know generally that the act of exporting the underlying items is unlawful without requiring that the defendant know the items are on the Munitions List. See United States v. Murphy, 852 F.2d 1, 7 (1st Cir.1988) (holding that willfulness was sufficiently established under section 2778(c) if the defendant "knew he had a legal duty not to export the weapons"); see also United States v. Hsu, 364 F.3d 192, 198 n. 2 (4th Cir.2004) (rejecting the defendants' argument that "the [jury] instructions as to `willfulness' were deficient because the `jury was not instructed that the government had to show that the defendants knew that the KIV-7HS was covered by the Munitions List . . . [or that] the device was designed for military use'"); United States v. Tsai, 954 F.2d 155, 160-62 (3d Cir.1992) (affirming court's instructions that the defendant did not have to have read the Munitions List or know all the details of the law, and holding that the "[district] court did not err in instructing the jury that it could convict if it found that defendant knew that the export was illegal"); United States v. Smith, 918 F.2d 1032, 1038 (2d Cir.1990) (finding jury instructions were proper because "[t]he jury was told that defendant must have known that the helicopters to be exported were subject to the licensing requirements of the Arms Export Control Act and that he intended to export them in a manner inconsistent therewith" even though the Munitions List was not referenced).
Conversely, in United States v. Gregg, 829 F.2d 1430, 1437 & n. 14 (8th Cir.1987), the Eighth Circuit appears to have interpreted willfully to require that a defendant knew the underlying exported items were on the Munitions List. In applying section 2778(c), the court approved of a jury instruction that "plainly directed acquittal if the jury was not satisfied beyond a reasonable doubt that the defendant knew that the items exported were on the Munitions List and required license." Id. at 1437 n. 14 (emphasis added).
Additionally, it is helpful to consider Bryan, 524 U.S. at 194-95, 118 S.Ct. 1939, in which the Supreme Court decided the meaning of willfulness in a statute analogous to section 2778(c). In Bryan, the defendant was convicted of conspiring to willfully deal firearms without a license in violation of the Federal Firearms Statute, 18 U.S.C. §§ 922(a)(1)(A), 924(a)(1)(D). Id. at 190-91, 118 S.Ct. 1939. At that time, the statute criminalized multiple types of acts, but in pertinent part, it made it illegal for anyone to "willfully violate[] any other provision of this chapter." 18 U.S.C. § 924(a)(1)(D) (1994). The Supreme Court held that the willfulness requirement of section 924(a)(1)(D) only required that a defendant know his act was unlawful. Bryan, 524 U.S. at 195, 118 S.Ct. 1939. The defendant argued that the Court should extend to section 924(a)(1)(D) the exception from Ratzlaf and Cheek v. United States, 498 U.S. 192, 200, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), that requires knowledge of a law to satisfy willfulness requirements. Id. at 194, 118 S.Ct. 1939. The Court refused, however, and distinguished *835 those cases by explaining that they involved "highly technical statutes," such as tax laws and banking regulations, "that presented the danger of ensnaring individuals engaged in apparently innocent conduct." Id. at 194-95, 118 S.Ct. 1939. The Court stated that those cases could not apply to the defendant in Bryan because a jury had already found that he knew what he did was unlawful, therefore, precluding him from mistaking his action as innocent. Id. at 195, 118 S.Ct. 1939.
In our view, the arguments in the multiple cases from the other circuits deciding the section 2778(c) willfulness issue and the Supreme Court's interpretation of analogous section 924(a)(1)(D) are persuasive. All that section 2778(c) expressly requires is that someone willfully violate a provision of the Act. Congress did not instruct courts to apply the willfulness requirement to any specific provision, let alone the Munitions List, even though it could have. Furthermore, no court has conclusively held that willfulness requires knowledge that an item is on the Munitions List. Additionally, as in Bryan, the underlying conduct concerned in the Act exporting defense articles and services without a licenseis not innocent in the way an everyday, uninformed citizen may unintentionally violate complex, confusing tax laws. Rather, exporting defense articles can only be achieved by educated parties with atypical access to proprietary military weapons, systems, and data. By Roth's own admission, he knew that receiving "6.2" funds from the Air Force imposed regulations on his research. Finally, the Federal Firearms Act considered in Bryan is extremely similar to the statute considered here. Both impose criminal sanctions for actions involving highly regulated weapons, and both have similar willfulness requirements that apply broadly to violations of their respective statutes. It follows, then, that the Supreme Court's analysis in Bryan applies to the Act.
Accordingly, following Bryan and the swath of cases from other circuits interpreting section 2778(c), we hold that section 2778(c) does not require a defendant to know that the items being exported are on the Munitions List. Rather, it only requires knowledge that the underlying action is unlawful.
The instruction given by the district court defined willfulness as doing something intentionally that the defendant knew was unlawful, which falls in line with Bryan, the other circuits' interpretations of section 2778(c), and now our holding here. As a result, the district court's jury instruction regarding willfulness was proper.
2. Ignorance of the law
When a district court refuses to give a requested jury instruction, we will reverse that decision "only when (1) the requested instruction is a correct statement of the law; (2) the requested instruction is not substantially covered by other instructions actually delivered; and (3) the failure to give the requested instruction impairs the defendant's theory of the case." United States v. Tarwater, 308 F.3d 494, 510 (6th Cir.2002) (citing United States v. Chesney, 86 F.3d 564, 573 (6th Cir.1996)).
The ignorance of the law as a defense instruction would not have been a correct statement of law. Roth incorrectly asserts that multiple circuits have held that ignorance of the law is a separate defense to charges under the Act. In fact, no circuit court has decided this issue. Indeed, the Supreme Court has identified only a few areas, such as tax law, where "ignorance of the law is a defense," and that is because the tax system is so complex. United States v. Abboud, 438 F.3d 554, 581 (6th Cir.2006) (citing Cheek, 498 U.S. at 199-200, 111 S.Ct. 604). Only *836 when "highly technical statutes . . . present[] the danger of ensnaring individuals engaged in apparently innocent conduct," as in the example of tax laws and banking regulations, has the Supreme Court "held that . . . statutes `carve out an exception to the traditional rule' that ignorance of the law is no excuse." Bryan, 524 U.S. at 194-95, 118 S.Ct. 1939 (citing Cheek, 498 U.S. at 200, 111 S.Ct. 604; Ratzlaf, 510 U.S. at 149, 114 S.Ct. 655).
It should be noted that two cases from the Fifth Circuit have addressed ignorance of the law in the context of charges brought under the Act. In United States v. Davis, 583 F.2d 190, 194 (5th Cir.1978) (citing United States v. Schilleci, 545 F.2d 519, 524 (5th Cir.1977)), the court noted that, with specific intent crimes, juries should not be instructed that ignorance of the law is not a defense. Later, in United States v. Hernandez, 662 F.2d 289, 292 (5th Cir. Oct.1981), the Fifth Circuit cited Davis and commented that a "court should put squarely before the jury the relevance of ignorance of the law" in cases charging specific intent crimes. Both cases instructed that ignorance can be critical when instructing a jury about the defendant's state of mind when specific intent is an element of the crime. However, neither case went so far as to hold that ignorance is a separate, affirmative defense that juries must be instructed about when considering specific intent crimes. They left open the possibility that a court may instruct a jury regarding ignorance of the law in some other fashion, such as when explaining the required mens rea of the crime.
Furthermore, it appears that the instruction given by the district court regarding willfulness substantially covered Roth's proposed ignorance instruction. Roth admits as much in his brief. The first two sentences of the proposed instruction actually concern willfulness as an element of the crime. It is not until the third and fourth sentences of the proposed instruction that Roth really addresses and explains ignorance of the law as an affirmative and separate defense. There, he would have instructed the jury that:
An innocent or negligent mistake by the Defendant is insufficient to support a finding of a knowing and willful export. So if Defendant was ignorant of the requirements of the Arms Export Control Act or was aware of the requirements of the Act but believed that he was complying with those requirements, he did not act knowingly or willfully, and you must find him not guilty.
This, however, is extremely similar to the court's instruction that "[n]egligent conduct, or conduct by mistake or accident, or with a good faith belief that the conduct was lawful, is not sufficient to constitute willfulness," which was delivered to the jury through the willfulness instruction. Both the proposed and actual instructions address negligence, mistake, and a good faith belief regarding compliance with the law.
Roth's proposed instruction was not a correct statement of the law, and the portion that was correct was substantially covered by another instruction. Furthermore, because the district court addressed much of the proposed instruction in the willfulness instruction, failing to deliver Roth's proposed ignorance of the law instruction to the jury impaired his case only slightly, if at all. Therefore, the district court did not abuse its discretion in declining to deliver Roth's proposed instruction on ignorance of the law as a separate defense.
C. Sufficiency of the Evidence Supporting Roth's Conviction for Exporting the Agency Proposal
When reviewing a conviction for sufficiency of evidence, we ask "`whether, *837 after viewing the evidence in the light most favorable to the prosecution, and after giving the government the benefit of all inferences that could reasonably be drawn from the testimony, any rational trier of fact could find the elements of the crime beyond a reasonable doubt.'" United States v. Ross, 502 F.3d 521, 529 (6th Cir.2007) (quoting United States v. M/G Trans. Servs., Inc., 173 F.3d 584, 589 (6th Cir.1999)). This is a "`very heavy burden.'" Id. (quoting United States v. Davis, 397 F.3d 340, 344 (6th Cir.2005)).
Roth claims that there was insufficient evidence to support the jury's finding that he willfully exported the Agency Proposal because he never opened the electronic file and could not have known its contents until after he returned from China. However, the purpose of the Agency Proposal was to eventually build military munitions, and it was premised upon the Phase II technology, which University officials had told Roth was export controlled. Furthermore, University officials instructed Roth to take nothing concerning Phase II with him to China. Moreover, Roth and Sherman had discussed the Boeing information and it is not disputed that Roth knew it was export controlled. While Roth might not have opened the Proposal to see that the Boeing information was contained therein, it would only make sense that Roth and Sherman discussed it in regard to either Phase II or the Proposal. Ultimately, Roth knew that the research he was conducting in Phase II was export controlled, and it was essentially the same technology used in the Proposal. He also knew that the information from Boeing was export controlled. Roth's conviction could be sufficiently supported by nothing more than circumstantial evidence. Tucker v. Palmer, 541 F.3d 652, 657 (6th Cir. 2008) (citing United States v. Kelley, 461 F.3d 817, 825 (6th Cir.2006)). Therefore, when viewing all the facts in the light most favorable to the government, a rational jury could find beyond a reasonable doubt that Roth knew that the Proposal contained export controlled information.
III. CONCLUSION
The data from Phase II and the Agency Proposal, as well as the Force Stand, are defense articles and services as a matter of law because the ultimate objective of the project was to apply plasma actuators to military aircraft. Additionally, the district court did not err in its jury instructions. Finally, there was sufficient evidence to support Roth's conviction for exporting the Agency Proposal. Accordingly, we AFFIRM. | 01-03-2023 | 01-05-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/27430/ | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40908
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO PINEDA-CALDERON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-111-ALL
--------------------
April 11, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Ricardo Pineda-Calderon (“Pineda”) appeals his guilty-plea
conviction for illegally reentering the U.S. after having been
deported following an aggravated felony conviction, in violation
of 8 U.S.C. § 1326. He argues that his indictment violates the
Fifth and Sixth Amendments because it does not allege general
intent. As Pineda concedes, however, his argument is foreclosed
by Fifth Circuit precedent. See United States v. Berrios-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-40908
-2-
Centeno, 250 F.3d 294, 297-300 (5th Cir.), cert. denied, 122 S.
Ct. 288 (2001); see also United States v. Guzman-Ocampo, 236 F.3d
233, 237-39 (5th Cir. 2000), cert. denied, 121 S. Ct. 2600
(2001). He raises the argument only to preserve it for Supreme
Court review.
The district court’s judgment is AFFIRMED. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/698751/ | 59 F.3d 78
32 Fed. R. Serv. 3d 1020
Ruby JARAMILLO, minor; Bienvenida Jaramillo, as legalguardian and next friend, Appellants,v.Joseph G. BURKHART; Olsen Brothers, Inc., Appellees.Cindy JARAMILLO, minor; Bienvenida Jaramillo, as legalguardian and next friend, Appellants,v.Joseph G. BURKHART; Olsen Brothers, Inc., Appellees.
Nos. 94-2650NE, 94-2651NE.
United States Court of Appeals,Eighth Circuit.
Submitted March 13, 1995.Decided June 27, 1995.
Edward F. Fogarty, Omaha, NE, argued, for appellant.
Mark C. Laughlin, Omaha, NE, argued (Robert F. Rossiter, Jr., on brief), for appellee.
Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.
FAGG, Circuit Judge.
1
Bienvenida Jaramillo appeals the district court's order dismissing these diversity personal injury actions with prejudice. We reverse and remand.
2
In 1986 Jaramillo's daughter, Carmen, and Carmen's daughters, Cindy and Ruby, were passengers in a car that collided with a truck owned by Olsen Brothers, Inc. and driven by the corporation's employee, Joseph G. Burkhart. As a result of the accident, Carmen died and Cindy and Ruby were injured. The next year, Jaramillo filed three negligence actions against Burkhart and Olsen Brothers, Inc. (collectively Burkhart). Jaramillo filed one action for Carmen's wrongful death as administrator of her estate, and one personal injury action for each of her granddaughters as their legal guardian.
3
Carmen's lawsuit was tried in 1989 and a jury found in favor of Burkhart. We affirmed the jury's verdict in an unpublished opinion. Jaramillo v. Burkhart, 985 F.2d 567 (8th Cir.1991) (table) (Jaramillo I ). Based on the jury's finding of no liability in Carmen's lawsuit, Burkhart moved for summary judgment in Cindy's and Ruby's lawsuits. The district court granted the motion, holding collateral estoppel prevented Jaramillo from relitigating the liability issue in her granddaughters' lawsuits. On the claims for Cindy's and Ruby's medical expenses, the district court alternatively held their father, Danny Nava, was the proper plaintiff rather than Jaramillo.
4
Jaramillo appealed the summary judgment. We reversed and remanded, holding that under controlling Nebraska law, collateral estoppel did not preclude relitigation of the negligence question in Cindy's and Ruby's lawsuits. Jaramillo v. Burkhart, 999 F.2d 1241, 1245-46 (8th Cir.1993) (Jaramillo II ). As for the district court's alternative holding on the medical expense claims, we could not determine from the record whether the district court had given Jaramillo a reasonable time to substitute or join Nava as the proper plaintiff. We thus stated, "On remand the district court should allow Jaramillo a reasonable time to substitute or join Nava as the real party in interest with respect to the claims for the girls' medical expenses." Id. at 1246.
5
Four months after we issued our decision, Jaramillo filed a motion to amend the complaint to add Nava as a plaintiff on the claims for medical expenses and to add claims for emotional distress and loss of consortium. The district court denied the motion to amend, stating, "[A]t this point [Burkhart] would be unduly prejudiced by the addition of a party and new legal theories." The court did not explain how Burkhart would be prejudiced or further explain its denial.
6
Based on the denial of leave to amend, Jaramillo filed a motion to dismiss her granddaughters' complaints without prejudice under Federal Rule of Civil Procedure 41(a). Burkhart filed a brief opposing the motion, arguing he would be prejudiced by a dismissal without prejudice seven years after Jaramillo filed the lawsuit because Jaramillo would reframe the issues and reopen discovery in a new action. Burkhart also argued that proceeding with the lawsuits would waste judicial time and resources because any recovery was unlikely. In his brief's conclusion, Burkhart asked the court to either dismiss the lawsuits with prejudice or bring them to trial. The district court then dismissed the actions with prejudice, without giving Jaramillo notice of its intention or an opportunity to respond, or stating any reasons for its decision.
7
Jaramillo now appeals, arguing the district court abused its discretion in dismissing the actions with prejudice. To decide whether the district court abused its discretion in dismissing with prejudice, we review the facts and circumstances surrounding the district court's actions in this case. Moser v. Universal Eng'g Corp., 11 F.3d 720, 724 (7th Cir.1993). We agree with Jaramillo that the district court abused its discretion.
8
Federal Rule of Civil Procedure 41(a) provides for the voluntary dismissal of actions at the plaintiff's request. Under Rule 41(a)(2), dismissals sought by the plaintiff are without prejudice unless the district court's order specifies otherwise. Thus, Rule 41(a)(2) implicitly permits the district court to dismiss an action with prejudice in response to a plaintiff's motion for dismissal without prejudice. Choice Hotels Int'l, Inc. v. Goodwin & Boone, 11 F.3d 469, 471 (4th Cir.1993); Shinrone, Inc. v. Insurance Co. of N. Am., 570 F.2d 715, 719 (8th Cir.1978). When a plaintiff requests dismissal without prejudice and the district court intends to dismiss with prejudice, however, the district court must give the plaintiff notice of its intention and a chance to withdraw the request and proceed with litigation. Choice Hotels, 11 F.3d at 471 n. 1; Gravatt v. Columbia University, 845 F.2d 54, 56 (2d Cir.1988); Andes v. Versant Corp., 788 F.2d 1033, 1037 (4th Cir.1986); see Moser, 11 F.3d at 725-26. Otherwise, the district court would deny the plaintiff the option of trying the case on the merits, because unlike a dismissal without prejudice, a dismissal with prejudice operates as a rejection of the plaintiff's claims on the merits and res judicata precludes further litigation. See Gravatt, 845 F.2d at 56. Because the district court did not give Jaramillo notice of its intention to dismiss with prejudice and the opportunity to address the issue, the district court abused its discretion in dismissing with prejudice.
9
We also note the district court's disregard of our mandate forced Jaramillo to move for dismissal without prejudice so her granddaughters' claims could be pursued in another action. When the district court denied Jaramillo's motion to amend to add Nava, the district court eliminated a significant theory of damages--medical expenses--and violated our mandate in Jaramillo II. Under the law of the case doctrine, a district court must follow our mandate, and we retain the authority to decide whether the district court scrupulously and fully carried out our mandate's terms. In re Ivan F. Boesky Sec. Litigation, 957 F.2d 65, 69 (2d Cir.1992). Although the district court normally has discretion in deciding whether to grant a motion to amend, the district court must allow amendment when our mandate directs amendment. Rutherford v. United States, 806 F.2d 1455, 1460 (10th Cir.1986). In Jaramillo II we directed the district court to give Jaramillo a reasonable time to substitute or join Nava. Because Jaramillo filed her motion to amend four months after our decision and this is a reasonable time, the district court lacked discretion to deny Jaramillo's motion to amend to add Nava.
10
We reverse the district court's dismissal with prejudice and remand for further proceedings consistent with this opinion. On remand, the district court should permit amendment of the complaints to add Nava as the plaintiff on the girls' claims for medical expenses. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1087952/ | 511 U.S. 863 (1994)
DIGITAL EQUIPMENT CORP.
v.
DESKTOP DIRECT, INC.
No. 93-405.
United States Supreme Court.
Argued February 22, 1994.
Decided June 6, 1994.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
*865 *865 Souter, J., delivered the opinion for a unanimous Court.
John G. Roberts, Jr., argued the cause for petitioner. With him on the briefs were David G. Leitch, Laurence R. Hefter, David M. Kelly, and Thomas C. Siekman.
Rex E. Lee argued the cause for respondent. With him on the brief were Carter G. Phillips, Gene C. Schaerr, Janet M. Letson, John Paul Kennedy, and H. Ross Workman.[*]
Justice Souter, delivered the opinion of the Court.
Section 1291 of the Judicial Code confines appeals as of right to those from "final decisions of the district courts." 28 U. S. C. § 1291. This case raises the question whether an order vacating a dismissal predicated on the parties' settlement agreement is final as a collateral order even without a district court's resolution of the underlying cause of action. See Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949). We hold that an order denying effect to a settlement agreement does not come within the narrow ambit of collateral orders.
I
Respondent, Desktop Direct, Inc. (Desktop), sells computers and like equipment under the trade name "Desktop Direct." Petitioner, Digital Equipment Corporation, is engaged in a similar business and in late 1991 began using that trade name to market a new service it called "Desktop Direct from Digital." In response, Desktop filed this action in the *866 United States District Court for the District of Utah, charging Digital with unlawful use of the Desktop Direct name. Desktop sent Digital a copy of the complaint, and negotiations between officers of the two corporations ensued. Under a confidential settlement reached on March 25, 1992, Digital agreed to pay Desktop a sum of money for the right to use the "Desktop Direct" trade name and corresponding trademark, and for waiver of all damages and dismissal of the suit. That same day, Desktop filed a notice of dismissal in the District Court.
Several months later, Desktop moved to vacate the dismissal and rescind the settlement agreement, alleging misrepresentation of material facts during settlement negotiations. The District Court granted the motion, concluding "that a fact finder could determine that [Digital] failed to disclose material facts to [Desktop] during settlement negotiations which would have resulted in rejection of the settlement offer." App. to Pet. for Cert. 13a. After the District Court declined to reconsider that ruling or stay its order vacating dismissal, Digital appealed.
The Court of Appeals for the Tenth Circuit dismissed the appeal for lack of jurisdiction, holding that the District Court order was not appealable under § 1291, because it neither "end[ed] the litigation on the merits" nor "[fell] within the long-recognized `collateral order' exception to the final judgment requirement." 993 F. 2d 755, 757 (1993). Applying the three-pronged test for determining when "collateral order" appeal is allowed, see Cohen, supra; Coopers & Lybrand v. Livesay, 437 U. S. 463 (1978), the Court of Appeals concluded that any benefits claimed under the settlement agreement were insufficiently "important" to warrant the immediate appeal as of right. Although Digital claimed what it styled a "right not to go to trial," the court reasoned that any such privately negotiated right as Digital sought to vindicate was different in kind from an immunity rooted in an explicit constitutional or statutory provision or "compelling *867 public policy rationale," the denial of which has been held to be immediately appealable. 993 F. 2d, at 758-760.[1]
The Tenth Circuit recognized that it was thus deviating from the rule followed in some other Courts of Appeals, see Forbus v. Sears, Roebuck & Co., 958 F. 2d 1036 (CA11 1992); Grillet v. Sears, Roebuck & Co., 927 F. 2d 217 (CA5 1991); Janneh v. GAF Corp., 887 F. 2d 432 (CA2 1989); but see Transtech Industries, Inc. v. A & Z Septic Clean, 5 F. 3d 51 (CA3 1993), cert. pending, No. 93-960. We granted certiorari, 510 U. S. 942 (1993), to resolve this conflict and now affirm.
II
A
The collateral order doctrine is best understood not as an exception to the "final decision" rule laid down by Congress in § 1291, but as a "practical construction" of it, Cohen, supra, at 546; see, e. g., Coopers & Lybrand, supra, at 468. We have repeatedly held that the statute entitles a party to appeal not only from a district court decision that "ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment," Catlin v. United States, 324 U. S. 229, 233 (1945), but also from a narrow class of decisions that do not terminate the litigation, but must, in the interest of "achieving a healthy legal system," cf. Cobbledick v. United States, 309 U. S. 323, 326 (1940), nonetheless be treated as "final." The latter category comprises only those district court decisions that are conclusive, that resolve important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action. See generally Coopers & Lybrand, supra. Immediate appeals from such orders, we have explained, *868 do not go against the grain of § 1291, with its object of efficient administration of justice in the federal courts, see generally Richardson-Merrell Inc. v. Koller, 472 U. S. 424 (1985).
But we have also repeatedly stressed that the "narrow" exception should stay that way and never be allowed to swallow the general rule, id., at 436, that a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated, see United States v. Hollywood Motor Car Co., 458 U. S. 263, 270 (1982). We have accordingly described the conditions for collateral order appeal as stringent, see, e. g., Midland Asphalt Corp. v. United States, 489 U. S. 794, 799 (1989), and have warned that the issue of appealability under § 1291 is to be determined for the entire category to which a claim belongs, without regard to the chance that the litigation at hand might be speeded, or a "particular injustic[e]" averted, Van Cauwenberghe v. Biard, 486 U. S. 517, 529 (1988), by a prompt appellate court decision. See also Richardson-Merrell, supra, at 439 (this Court "has expressly rejected efforts to reduce the finality requirement of § 1291 to a case-by-case [appealability] determination"); Carroll v. United States, 354 U. S. 394, 405 (1957).
B
Here, the Court of Appeals accepted Digital's claim that the order vacating dismissal (and so rescinding the settlement agreement) was the "final word on the subject addressed," 993 F. 2d, at 757 (citation omitted), and held the second Cohen condition, separability, to be satisfied, as well. Neither conclusion is beyond question,[2] but each is best left *869 untouched here, both because Desktop has made no serious effort to defend the Court of Appeals' judgment on those points and because the failure to meet the third condition of the Cohen test, that the decision on an "important" question be "effectively unreviewable" upon final judgment, would in itself suffice to foreclose immediate appeal under § 1291.[3] Turning to these dispositive factors, we conclude, despite Digital's position that it holds a "right not to stand trial" requiring protection by way of immediate appeal, that rights under private settlement agreements can be adequately vindicated on appeal from final judgment.
C
The roots of Digital's argument that the settlement with Desktop gave it a "right not to stand trial altogether" (and that such a right per se satisfies the third Cohen requirement) are readily traced to Abney v. United States, 431 U. S. 651 (1977), where we held that § 1291 entitles a criminal defendant to appeal an adverse ruling on a double jeopardy claim, without waiting for the conclusion of his trial. After holding the second Cohen requirement satisfied by the distinction between the former jeopardy claim and the question of guilt to be resolved at trial, we emphasized that the Fifth Amendment not only secures the right to be free from multiple *870 punishments, but by its very terms embodies the broader principle, "`deeply ingrained in . . . the Anglo-American system of jurisprudence,' " that it is intolerable for "`the State, with all its resources . . . to make repeated attempts to convict an individual [defendant], thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.' " 431 U. S., at 661-662 (quoting Green v. United States, 355 U. S. 184, 187-188 (1957)). We found that immediate appeal was the only way to give "full protection" to this constitutional right "not to face trial at all." 431 U. S., at 662, and n. 7; see also Helstoski v. Meanor, 442 U. S. 500 (1979) (decision denying immunity under the Speech and Debate Clause would be appealable under § 1291).
Abney `s rationale was applied in Nixon v. Fitzgerald, 457 U. S. 731, 742 (1982), where we held to be similarly appealable an order denying the petitioner absolute immunity from suit for civil damages arising from actions taken while petitioner was President of the United States. Seeing this immunity as a "functionally mandated incident of the President's unique office, rooted in the . . . separation of powers and supported by our history," id., at 749, we stressed that it served "compelling public ends," id., at 758, and would be irretrievably lost if the former President were not allowed an immediate appeal to vindicate this right to be free from the rigors of trial, see id., at 752, n. 32.
Next, in Mitchell v. Forsyth, 472 U. S. 511 (1985), we held that similar considerations supported appeal under § 1291 from decisions denying government officials qualified immunity from damages suits. An "essential attribute," id., at 525, of this freedom from suit for past conduct not violative of clearly established law, we explained, is the "entitlement not to stand trial or face the other burdens of litigation," id., at 526, one which would be "effectively lost if a case [were] erroneously permitted to go to trial," ibid. Echoing the reasoning of Nixon v. Fitzgerald, supra (and Harlow v. Fitz- *871 gerald, 457 U. S. 800 (1982)), we explained that requiring an official with a colorable immunity claim to defend a suit for damages would be "peculiarly disruptive of effective government," and would work the very "distraction . . . from .. . dut[y], inhibition of discretionary action, and deterrence of able people from public service" that qualified immunity was meant to avoid. See 472 U. S., at 526 (internal quotation marks omitted); see also Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 147 (1993) (State's Eleventh Amendment immunity from suit in federal court may be vindicated by immediate appeal under § 1291).
D
Digital puts this case on all fours with Mitchell. It maintains that it obtained dual rights under the settlement agreement with Desktop, not only a broad defense to liability but the "right not to stand trial," the latter being just like the qualified immunity held immediately appealable in Mitchell. As in Mitchell, that right must be enforceable on collateral order appeal, Digital asserts, or an adverse trial ruling will destroy it forever.
While Digital's argument may exert some pull on a narrow analysis, it does not hold up under the broad scrutiny to which all claims of immediate appealability under § 1291 must be subjected. To be sure, Abney and Mitchell are fairly cited for the proposition that orders denying certain immunities are strong candidates for prompt appeal under § 1291. But Digital's larger contention, that a party's ability to characterize a district court's decision as denying an irreparable "right not to stand trial" altogether is sufficient as well as necessary for a collateral order appeal, is neither an accurate distillation of our case law nor an appealing prospect for adding to it.
Even as they have recognized the need for immediate appeals under § 1291 to vindicate rights that would be "irretrievably lost," Richardson-Merrell, 472 U. S., at 431, if review *872 were confined to final judgments only, our cases have been at least as emphatic in recognizing that the jurisdiction of the courts of appeals should not, and cannot, depend on a party's agility in so characterizing the right asserted. This must be so because the strong bias of § 1291 against piecemeal appeals almost never operates without some cost. A fully litigated case can no more be untried than the law's proverbial bell can be unrung, and almost every pretrial or trial order might be called "effectively unreviewable" in the sense that relief from error can never extend to rewriting history. Thus, erroneous evidentiary rulings, grants or denials of attorney disqualification, see, e. g., RichardsonMerrell, supra, and restrictions on the rights of intervening parties, see Stringfellow v. Concerned Neighbors in Action, 480 U. S. 370 (1987), may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final district court judgment, cf. Carroll, 354 U. S., at 406; Parr v. United States, 351 U. S. 513, 519-520 (1956); and other errors, real enough, will not seem serious enough to warrant reversal at all, when reviewed after a long trial on the merits, see Stringfellow, supra. In still other cases, see Coopers & Lybrand v. Livesay, 437 U. S. 463 (1978), an erroneous district court decision will, as a practical matter, sound the "death knell" for many plaintiffs' claims that might have gone forward if prompt error correction had been an option. But if immediate appellate review were available every such time, Congress's final decision rule would end up a pretty puny one, and so the mere identification of some interest that would be "irretrievably lost" has never sufficed to meet the third Cohen requirement. See generally Lauro Lines s.r.l. v. Chasser, 490 U. S. 495, 499 (1989) ("It is always true, however, that `there is value . . . in triumphing before trial, rather than after it' ") (quoting United States v. MacDonald, 435 U. S. 850, 860, n. 7 (1978)); Richardson-Merrell, supra, at 436.
*873 Nor does limiting the focus to whether the interest asserted may be called a "right not to stand trial" offer much protection against the urge to push the § 1291 limits. We have, after all, acknowledged that virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a "right not to stand trial," see, e. g., Midland Asphalt, 489 U. S., at 501; Van Cauwenberghe v. Biard, 486 U. S., at 524. Allowing immediate appeals to vindicate every such right would move § 1291 aside for claims that the district court lacks personal jurisdiction, see Van Cauwenberghe, supra, that the statute of limitations has run, see 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3918.5, and n. 65, p. 521 (1992), that the movant has been denied his Sixth Amendment right to a speedy trial, see MacDonald, supra, that an action is barred on claim preclusion principles, that no material fact is in dispute and the moving party is entitled to judgment as a matter of law, or merely that the complaint fails to state a claim. Such motions can be made in virtually every case, see generally id., at 862; United States v. Hollywood Motor Car Co., 458 U. S., at 270, and it would be no consolation that a party's meritless summary judgment motion or res judicata claim was rejected on immediate appeal; the damage to the efficient and congressionally mandated allocation of judicial responsibility would be done, and any improper purpose the appellant might have had in saddling its opponent with cost and delay would be accomplished. Cf. Richardson-Merrell, supra, at 434 (appeals from "entirely proper" decisions impose the same costs as do appeals from "injudicious" ones). Thus, precisely because candor forces us to acknowledge that there is no single, "obviously correct way to characterize" an asserted right, Lauro Lines, supra, at 500, we have held that § 1291 requires courts of appeals to view claims of a "right not to be tried" with skepticism, if not a jaundiced eye. Cf. Van Cauwenberghe, supra, at 524-525.
*874 In Midland Asphalt, for example, we had no trouble in dispatching a defendant's claim of entitlement to an immediate appeal from an order denying dismissal for alleged violation of Federal Rule of Criminal Procedure 6(e), forbidding disclosure of secret grand jury information. Noting "`a crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges,' " 489 U. S., at 801, quoting Hollywood Motor Car, supra, at 269, we observed that Rule 6(e) "contains no hint," 489 U. S., at 802, of an immunity from trial,and we contrasted that Rule with the Fifth Amendment's express provision that "[n]o person shall be held to answer" for a serious crime absent grand jury indictment. Only such an "explicit statutory or constitutional guarantee that trial will not occur," we suggested, id., at 801, could be grounds for an immediate appeal of right under § 1291.[4]
The characterization issue surfaced again (and more ominously for Digital, see infra, at 880) in Lauro Lines, supra, where a defendant sought to appeal under § 1291 from an order denying effect to a contractual provision that a Neapolitan court would be the forum for trying all disputes arising from the parties' cruise-ship agreement. While we realized of course that the value of the forum-selection clause would be diminished if the defendant could be tried before appealing, we saw the contractual right to limit trial to an Italian forum as "different in kind" from the entitlement to "avoid *875 suit altogether" that Abney and Mitchell held could be "adequately vindica[ted]" only on immediate appeal. 490 U. S., at 501.
E
As Digital reads the cases, the only things standing in the way of an appeal to perfect its claimed rights under the settlement agreement are the lone statement in Midland Asphalt, to the effect that only explicit statutory and constitutional immunities may be appealed immediately under § 1291, and language (said to be stray) repeated in many of our collateral order decisions, suggesting that the "importance" of the right asserted is an independent condition of appealability. See Brief for Petitioner 28-34. The first, Digital explains, cannot be reconciled with Mitchell `s holding, that denial of qualified immunity (which we would be hard pressed to call "explicitly . . . guarantee[d]" by a particular constitutional or statutory provision) is a collateralorder under § 1291; as between Mitchell and the Midland Asphalt dictum, Digital says, the dictum must give way. As for the second obstacle, Digital adamantly maintains that "importance" has no place in a doctrine justified as supplying a gloss on Congress's "final decision" language.
1
These arguments miss the mark. First, even if Mitchell could not be squared fully with the literal words of the Midland Asphalt sentence (but cf. Lauro Lines, 490 U. S., at 499, noting that Midland Asphalt was a criminal case and Mitchell was not), that would be only because the qualified immunity right is inexplicit, not because it lacks a good pedigree in public law. Indeed, the insight that explicitness may not be needed for jurisdiction consistent with § 1291 only leaves Digital with the unenviable task of explaining why other rights that might fairly be said to include an (implicit) "right to avoid trial" aspect are less in need of protection by immediate review, or more readily vindicated on appeal from final *876 judgment, than the (claimed) privately negotiated right to be free from suit. It is far from clear, for example, why § 1291 should bless a party who bargained for the right to avoid trial, but not a party who "purchased" the right by having once prevailed at trial and now pleads res judicata, see In re Corrugated Container Antitrust Litigation v. Willamette Industries, Inc., 694 F. 2d 1041 (CA5 1983); or a party who seeks shelter under the statute of limitations, see, e. g., United States v. Weiss, 7 F. 3d 1088 (CA2 1993), which is usually understood to secure the same sort of "repose" that Digital seeks to vindicate here, see Brief for Petitioner 25; or a party not even subject to a claim on which relief could be granted. See also Cobbledick, 309 U. S., at 325 ("Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship"); Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 378 (1981) ("[P]otential harm" should be compared to "the harm resulting from other interlocutory orders that may be erroneous") (internal quotation marks omitted).
Digital answers that the status under § 1291 of these other (seemingly analogous) rights should not give us pause, because the text and structure of this particular settlement with Desktop confer what no res judicata claimant could ever have, an express right not to stand trial.[5] But we cannot attach much significance one way or another to the supposed clarity of the agreement's terms in this case. To ground a ruling here on whether this settlement agreement in terms confers the prized "right not to stand trial" (a point Desktop by no means concedes) would flout our own frequent admonitions, see, e. g., Van Cauwenberghe, 486 U. S., at 529, that availability of collateral order appeal must be determined at *877 a higher level of generality. Indeed, just because it would be the rare settlement agreement that could not be construed to include (at least an implicit) freedom-from-trial "aspect," we decide this case on the assumption that if Digital prevailed here, any district court order denying effect to a settlement agreement could be appealed immediately. (And even if form were held to matter, settlement agreements would all include "immunity from suit" language a good deal plainer than what Digital relies on here, see Tr. of Oral Arg. 44.) See also Van Cauwenberghe, supra, at 524 ("For purposes of determining appealability, . . . we will assume, but do not decide, that petitioner has presented a substantial claim" on the merits).[6]
2
The more fundamental response, however, to the claim that an agreement's provision for immunity from trial can *878 distinguish it from other arguable rights to be trial free is simply that such a right by agreement does not rise to the level of importance needed for recognition under § 1291. This, indeed, is the bone of the fiercest contention in the case. In disparaging any distinction between an order denying a claim grounded on an explicit constitutional guarantee of immunity from trial and an order at odds with an equally explicit right by private agreement of the parties, Digital stresses that the relative "importance" of these rights, heavily relied upon by the Court of Appeals, is a rogue factor. No decision of this Court, Digital maintains, has held an order unappealable as "unimportant" when it has otherwise met the three Cohen requirements, and whether a decided issue is thought "important," it says, should have no bearing on whether it is "final" under § 1291.
If "finality" were as narrow a concept as Digital maintains, however, the Court would have had little reason to go beyond the first factor in Cohen, see also United States v. 243.22 Acres of Land in Babylon, Suffolk Cty., 129 F. 2d 678, 680 (CA2 1942) (Frank, J.) ("`Final' is not a clear one-purpose word"). And if "importance" were truly aberrational, we would not find it featured so prominently in the Cohen opinion itself, which describes the "small class" of immediately appealable prejudgment decisions in terms of rights that are "too important to be denied review" right away, see 337 U. S., at 546. To be sure, Digital may validly question whether "importance" is a factor "beyond" the three Cohen conditions or whether it is best considered, as we have sometimes suggested it should be, in connection with the second, "separability," requirement, see, e. g., Coopers & Lybrand, 437 U. S., at 468; Lauro Lines, 490 U. S., at 498, but neither enquiry could lead to the conclusion that "importance" is itself unimportant. To the contrary, the third Cohen question, whether a right is "adequately vindicable" or "effectively reviewable," simply cannot be answered without a judgment about the value of the interests that would be lost *879 through rigorous application of a final judgment requirement. See generally Van Cauwenberghe, supra, at 524 ("`[T]he substance of the rights entailed, rather than the advantage to a litigant in winning his claim sooner,' " is dispositive) (quoting MacDonald, 435 U. S., at 860, n. 7); Lauro Lines, supra, at 502-503 (Scalia, J., concurring).
While there is no need to decide here that a privately conferred right could never supply the basis of a collateral order appeal, but cf. n. 7, infra (discussing 9 U. S. C. § 16), there are surely sound reasons for treating such rights differently from those originating in the Constitution or statutes. When a policy is embodied in a constitutional or statutory provision entitling a party to immunity from suit (a rare form of protection), there is little room for the judiciary to gainsay its "importance." Including a provision in a private contract, by contrast, is barely a prima facie indication that the right secured is "important" to the benefited party (contracts being replete with boilerplate), let alone that its value exceeds that of other rights not embodied in agreements (e. g., the right to be free from a second suit based on a claim that has already been litigated), or that it qualifies as "important" in Cohen `s sense, as being weightier than the societal interests advanced by the ordinary operation of final judgment principles. Where statutory and constitutional rights are concerned, "irretrievabl[e] los[s]" can hardly be trivial, and the collateral order doctrine might therefore be understood as reflecting the familiar principle of statutory construction that, when possible, courts should construe statutes (here § 1291) to foster harmony with other statutory and constitutional law, see, e. g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1018 (1984); United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407, 437-438 (1921) (Holmes, J., dissenting). But it is one thing to say that the policy of § 1291 to avoid piecemeal litigation should be reconciled with policies embodied in other statutes or the Constitution, and quite another to suggest that this *880 public policy may be trumped routinely by the expectations or clever drafting of private parties.[7]
Indeed, we do not take issue with the Tenth Circuit's observation that this case shares more in common with Lauro Lines than with Mitchell. It is hard to see how, for purposes of § 1291, the supposedly explicit "right not to be tried" element of the settlement agreement in this case differs from the unarguably explicit, privately negotiated "right not to be tried in any forum other than Naples, Italy," in that one. There, no less than here (if Digital reads the settlement agreement correctly), one private party secured from another a promise not to bring suit for reasons that presumably included avoiding the burden, expense, and perhaps embarrassment of a certain class of trials (all but Neapolitan ones or, here, all prompted by Desktop). Cf. Lauro Lines, supra, at 501 (asserted right was "surely as effectively vindicable" on final judgment appeal as was the right in Van Cauwenberghe ).[8] The losing argument in Lauro Lines should be a losing argument here.
*881 Nor are we swayed by Digital's last-ditch effort to come within Cohen' s sense of "importance" by trying to show that settlement-agreement "immunities" merit first-class treatment for purposes of collateral order appeal, because they advance the public policy favoring voluntary resolution of disputes. It defies common sense to maintain that parties' readiness to settle will be significantly dampened (or the corresponding public interest impaired) by a rule that a district court's decision to let allegedly barred litigation go forward may be challenged as a matter of right only on appeal from a judgment for the plaintiff's favor.
III
A
Even, finally, if the term "importance" were to be exorcised from the Cohen analysis altogether, Digital's rights would remain "adequately vindicable" or "effectively reviewable" on final judgment to an extent that other immunities, like the right to be free from a second trial on a criminal charge, are not. As noted already, experience suggests that freedom from trial is rarely the sine qua non (or "the essence," see Van Cauwenberghe, 486 U. S., at 525) of a negotiated settlement agreement. Avoiding the burden of a trial is no doubt a welcome incident of out-of-court dispute resolution (just as it is for parties who prevail on pretrial motions), but in the run-of-the-mill cases this boon will rarely compare with the "`embarrassment' " and "`anxiety' " averted by a successful double jeopardy claimant, see Abney, 431 U. S., at 661-662, or the "`distraction from . . . dut[y],' " Mitchell, 472 *882 U. S., at 526, avoided by qualified immunity. Judged within the four corners of the settlement agreement, avoiding trial probably pales in comparison with the benefit of limiting exposure to liability (an interest that is fully vindicable on appeal from final judgment). In the rare case where a party had a special reason, apart from the generic desire to triumph early, for having bargained for an immunity from trial, e. g., an unusual interest in preventing disclosure of particular information, it may seek protection from the district court.
The case for adequate vindication without immediate appeal is strengthened, moreover, by recognizing that a settling party has a source of recompense unknown to trial immunity claimants dependent on public law alone. The essence of Digital's claim here is that Desktop, for valuable consideration, promised not to sue, and we have been given no reason to doubt that Utah law provides for the enforcement of that promise in the same way that other rights arising from private agreements are enforced, through an action for breach of contract. See, e. g., VanDyke v. Mountain Coin Machine Distributors, Inc., 758 P. 2d 962 (Utah App. 1988) (upholding compensatory and punitive damages award against party pursuing suit in the face of settlement agreement); see generally 5A A. Corbin, Corbin on Contracts § 1251 (1964); cf. Yockey v. Horn, 880 F. 2d 945, 947 (CA7 1989) (awarding damages for breach of settlement agreement promise not to "participate in any litigation" against plaintiff); see also Richardson-Merrell, 472 U. S., at 435, and n. 2 (existence of alternative fora for vindicating asserted rights is relevant to appealability under § 1291). And as for Digital's suggestion, see Brief for Petitioner 25, that Desktop is using this proceeding not to remedy a fraud but merely to renege on a promise because it now thinks it should have negotiated a better deal, when a party claims fraud or otherwise seeks recision of a settlement for such improper purposes, its opponent need not rely on a court of appeals for protection. See *883 Fed. Rule Civ. Proc. 11 (opponent may move for sanction when litigation is motivated by an "improper purpose, such as . . .unnecessary delay or needless increase in the cost of litigation").
B
In preserving the strict limitations on review as of right under § 1291, our holding should cause no dismay, for the law is not without its safety valve to deal with cases where the contest over a settlement's enforceability raises serious legal questions taking the case out of the ordinary run. While Digital's insistence that the District Court applied a fundamentally wrong legal standard in vacating the dismissal order here may not be considered in deciding appealability under § 1291, see n. 6, supra, it plainly is relevant to the availability of the discretionary interlocutory appeal from particular district court orders "involv[ing] a controlling question of law as to which there is substantial ground for difference of opinion," provided for in § 1292(b) of Title 28. Indeed, because we suppose that a defendant's claimed entitlement to a privately negotiated "immunity from suit" could in some instances raise "a controlling question of law . . . [which] . . . may materially advance the ultimate termination of the litigation," the discretionary appeal provision (allowing courts to consider the merits of individual claims) would seem a better vehicle for vindicating serious contractual interpretation claims than the blunt, categorical instrument of § 1291 collateral order appeal. See Van Cauwenberghe, 486 U. S., at 529-530 (internal quotation marks omitted); Coopers & Lybrand, 437 U. S., at 474-475.[9]
*884 IV
The words of § 1291 have long been construed to recognize that certain categories of prejudgment decisions exist for which it is both justifiable and necessary to depart from the general rule, that "the whole case and every matter in controversy in it [must be] decided in a single appeal." McLish v. Roff, 141 U. S. 661, 665-666 (1891). But denying effect to the sort of (asserted) contractual right at issue here is far removed from those immediately appealable decisions involving rights more deeply rooted in public policy, and the rights Digital asserts may, in the main, be vindicated through means less disruptive to the orderly administration of justice than immediate, mandatory appeal. We accordingly hold that a refusal to enforce a settlement agreement claimed to shelter a party from suit altogether does not supply the basis for immediate appeal under § 1291. The judgment of the Court of Appeals is therefore
Affirmed.
NOTES
[*] James W. Geriak filed a brief for Spectra-Physics, Inc., et al. as amici curiae urging reversal.
[1] The Tenth Circuit also denied Digital's request to stay the District Court proceedings. We granted a stay pending our disposition ofDigital's petition for certiorari.510 U. S. 804 (1993).
[2] It might be argued that given the District Court's "somewhat cryptic" reference, 993 F. 2d, at 757, to what "a trier of fact could determine," its recision order here was merely "tentative," Coopers & Lybrand v. Livesay, 437 U. S. 463, 469, n.11 (1978),and thus inadequate under the first Cohen test, or that the basis for vacating, Digital's alleged misrepresentations about when it first learned of Desktop's use of the trade name, was so "enmeshed in the factual and legal issues comprising the plaintiff's cause of action," 437 U. S., at 469 (internal quotation marks omitted), i. e., whether Digital (willfully) misappropriated the name, as to elude Cohen `s second requirement for collateral order appeal. Indeed, it is possible that the District Court phrased its order here in equivocal terms precisely because it assumed that this lack of separability would preclude any immediate appeal under § 1291.
[3] We have of course held that the Cohen requirements go to an appellate court's subject-matter jurisdiction, see Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 379 (1981), and thus, were it necessary here, we would be obliged to assess whether each condition was met, without regard to whether the parties believe it to be satisfied.
[4] That reasoning echoed our decision one Term earlier in Van Cauwenberghe v. Biard, 486 U. S. 517 (1988), where we unanimously rejected the contention that a defendant brought to the United States under an extradition treaty could appeal immediately under § 1291 from a decision denying a motion to dismiss based on the principle of "specialty," which he asserted immunized him from service of civil process in the United States.Even if such an immunity might supply a basis for vacating a judgment on appeal,we held,the right"should becharacterizedasthe right notto be subject to a binding judgment of the court," and so understood, it could therefore"be effectivelyvindicatedfollowing finaljudgment." Id., at 526-527.
[5] But cf. Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 429 430 (1934) ("`[T]he laws which subsist at the time and place of the making of a contract . . . enter into and form a part of it, as if they were expressly referred to . . . in its terms' ") (quoting Von Hoffman v. City of Quincy, 4 Wall. 535, 550 (1867)).
[6] Similarly, we must reject as patently irrelevant for § 1291 purposes Digital's repeated claims that the District Court applied the "wrong legal standard" in granting Desktop's motion to vacate the dismissal order. If Digital is right that a settlement agreement confers a contractual "immunity from suit," that protection is no more "irretrievably lost," and thus no more appealable under § 1291, when a district court applies an erroneous legal standard than when it commits a plain vanilla mistake in misapplying the proper standard.
Nor do we accept uncritically Digital's novel and highly convenient contention that such a right to be free from trial is,either in this case or generally, more valuable than other rights conferred by a settlement agreement. See infra, at 881-882. While Digital emphasizes that, under the terms of the settlement here, Desktop is owed a larger sum for "dismissal of the above referenced lawsuit and a waiver of all damages" than for "all rights to the Trademarks," that proves little, if anything. To compare those two amounts is to place the bargained-for damages waiver on the wrong side of the ledger: that (typically quite valuable) right isprecisely the sort that is fully vindicable on postjudgment appeal. Moreover, even if a high price tag might otherwise be an indicator of a right's "importance" to the benefited party, we cannot ignore that settlement agreement "prices" may be structured for tax, accounting, and business strategy reasons that have nothing to do with their true value to the party.
[7] This is not to say that rights originating in a private agreement may never be important enough to warrant immediate appeal. To the contrary, Congress only recently enacted a statute, 102 Stat. 4671, see 9 U. S. C. § 16 (1988 ed., Supp. IV), essentially providing for immediate appeal when a district court rejects a party's assertion that, under the Arbitration Act, a case belongs before a commercial arbitrator and not in court, a measure predicted to have a "sweeping impact," 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3914.17, p. 11 (1992); see generally id., at 7-38. That courts must give fulleffect to this express congressional judgment that particular policies require that private rights be vindicable immediately, however, by no means suggests that they should now be more ready to make similar judgments for themselves. Congress has expressed no parallel sentiment, to the effect that settlementagreement rights are, as a matter of federal policy, similarly "too important" to be denied immediate review.
[8] To be fair, the Lauro Lines opinion does contain language that, taken alone, might lend succor to petitioner's claim, see 490 U. S., at 501 ("[A]n entitlement to avoid suit is different in kind from an entitlement to be sued only in a particular forum"), but the opinion is not easily read as endorsing Digital's claim that a privately negotiated right not to stand trial would be immediately appealable. To the contrary, Lauro Lines expressly adopted (at least for criminal appeals) Midland Asphalt `s limitation that "`[a]right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee,' " 490 U. S., at 499, quoting 489 U. S., at 801, and stated that the collateral order doctrine operates "[s]imilarly" in civil cases, 490 U. S., at 499.
[9] We recognize that § 1292 is not a panacea, both because it depends to a degree on the indulgence of the court from which review is sought and because the discretion to decline to hear an appeal is broad, see, e. g. , Coopers & Lybrand, 437 U. S., at 475 (serious docket congestion may be adequate reason to support denial of certified appeal). On the other hand, we find nothing in the text or purposes of either statute to justify the concern, expressed here by Digital, that a party's request to appeal under § 1292(b) might operate, practically or legally, to prejudice its claimed right to immediate appeal under § 1291. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3396180/ | Appeal dismissed on motion of counsel for Appellant. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1802139/ | 831 F. Supp. 137 (1993)
UNITED STATES of America, Plaintiff,
v.
AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, et al., Defendants.
In the Matter of the Applications of CAPITAL CITIES/ABC, INC. and CBS, Inc., Applicants,
For the Determination of Reasonable License Fees for Their Television Networks.
No. Civ. 13-95 (WCC).
United States District Court, S.D. New York.
August 11, 1993.
*138 *139 *140 Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Jay Topkis, Allan Blumstein, Robert N. Kravitz, John F. O'Sullivan, Nicole L. Felton, of counsel), and Bernard Korman, New York City (Richard Reimer, of counsel), for ASCAP.
Weil, Gotshal & Manges by R. Bruce Rich, New York City (Evie C. Goldstein, Beth K. Neelman, Martha Applebaum, and Charles Stanford, Capital Cities/ABC, Susanna M. Lowy, CBS, Inc., of counsel), for applicants.
OPINION AND ORDER
WILLIAM C. CONNER, District Judge.
These applications, progeny of the consummation of an historic shotgun union, are made to this Court in its enduring capacity as the so-called "rate-court" under Section IX of the Amended Consent Judgement ("Consent Decree") entered in United States v. ASCAP, 1950-51 Trade Cases (CCH) ¶ 62,595 (S.D.N.Y.1950). The Consent Decree, originally entered in 1941 and subsequently amended in 1950, settled the United States' antitrust suit against the American Society of Composers, Authors and Publishers ("ASCAP"). Today, the terms of the Consent Decree continue to regulate the manner in which ASCAP licenses its music inventory. This Court's jurisdiction, an artifact of the Consent Decree, Section XVII, is retained to oversee the ongoing implementation of these provisions.
As amended, the Consent Decree requires ASCAP to offer to users of music a "blanket license," permitting the non-exclusive right to perform, in unlimited fashion, any music contained in the ASCAP repertory. Section IX(A) of the Consent Decree provides that ASCAP and the users of its music are to attempt, in the first instance, to negotiate a license fee; failing to reach agreement after 60 days, the prospective licensee may then apply to this Court "for the determination of a reasonable fee."
Applicants in the instant proceeding are two television networks owned, respectively, by Capital Cities/ABC, Inc. ("ABC"), and CBS Inc. ("CBS"). Both seek a judicial determination of the reasonable fee to be paid to ASCAP for blanket licenses that authorize the performance of ASCAP music in the programming transmitted by each network.[1] ABC seeks determination of a fee for the period January 1, 1986 to December 31, 1993; CBS seeks determination of a fee for the period January 1, 1991 to December 31, 1993.
BACKGROUND
ASCAP is an unincorporated membership association that licenses public performing rights to the copyrighted musical compositions of its members. ASCAP's members include over 50,000 music composers, lyric writers, and publishers who own the copyrights to a vast number of musical compositions, and who have granted ASCAP a non-exclusive right to license the performing rights to these compositions. SF ¶ 1.[2] The society serves both as the licensing agent and as the collector and distributor of royalties for licensed performances. ASCAP v. Showtime/The Movie Channel, Inc., 912 F.2d 563, 573 (2d Cir.1990). ASCAP also endeavors to monitor the public performances of its members' music to assure that such performances are licensed. See Broadcast Music, Inc. v. CBS, 441 U.S. 1, 20-23, 99 S. Ct. 1551, 1562-64, 60 L. Ed. 2d 1 (1979); Tr. at 673-80. ASCAP's repertory contains over three million compositions. The performing rights for *141 these compositions are licensed by ASCAP to a wide variety of users, including television and radio networks and stations, cable program services, restaurants, clubs, bars, and other establishments that publicly perform music. SF ¶ 2.
Because ASCAP represents a pooling by members of their copyrights which, among other advantages, enhances their commercial posture in negotiating with music users, the society became subject to an antitrust suit filed by the United States Department of Justice. The suit was settled in 1941 when the parties entered into a Consent Decree that imposed certain limitations on ASCAP. See, United States v. ASCAP, 1940-43 Trade Cases (CCH) ¶ 56,104 (S.D.N.Y.1941). In broad terms, the Consent Decree, as amended in 1950, permits ASCAP to obtain from its members only a non-exclusive agency to issue performance licenses. The members retain the right to negotiate directly the performance licenses for their own compositions, or to assign that role to another entity, and ASCAP is prohibited from interfering with a member's prerogative to pursue these alternatives. The Decree addresses the manner in which ASCAP is to issue performance licenses and requires, inter alia, that ASCAP "use its best efforts to avoid any discrimination among the respective fees fixed for the various types of licenses which would deprive the licensees or prospective licensees of a genuine choice from among such various types of licenses." Consent Decree, Sec. VIII.[3]
As previously noted, the Consent Decree, Section VI, requires ASCAP to offer a blanket license covering all of the compositions in its repertory.[4] A substantially similar blanket license is offered by Broadcast Music, Inc. ("BMI"), the other major music performing rights licensing organization. Showtime, 912 F.2d at 565. BMI's repertory also contains a vast number of musical compositions, though fewer than the number in the ASCAP repertory. SF ¶ 7. The background and nature of the blanket license has been discussed in several opinions considering antitrust challenges to its validity. See Broadcast Music, Inc. v. CBS, 441 U.S. 1, 99 S. Ct. 1551, 60 L. Ed. 2d 1 (1979); Buffalo Broadcasting Co. v. ASCAP, 744 F.2d 917 (2d Cir.1984), cert. denied, 469 U.S. 1211, 105 S. Ct. 1181, 84 L. Ed. 2d 329 (1985); Columbia Broadcasting System, Inc. v. ASCAP, 620 F.2d 930 (2d Cir.1980), cert. denied, 450 U.S. 970, 101 S. Ct. 1491, 67 L. Ed. 2d 621 (1981).
Applicant ABC operates the ABC Television Network, which transmits programs, commercial, promotional and public service announcements (collectively "broadcast material") broadcast by more than 200 affiliated local stations, including eight stations that are owned and operated by ABC. SF ¶ 3. Applicant CBS operates the CBS Television Network, which transmits broadcast material aired by more than 200 affiliated local stations, including ten that are owned and operated by CBS. SF ¶ 4. Similar broadcast material is aired by the NBC Television Network operated by the National Broadcasting Company ("NBC"), with over 200 affiliated stations, including seven that are owned and operated by NBC. SF ¶ 6.
ABC and CBS acquire, produce and distribute broadcast material to affiliated stations who then broadcast such programs to the viewers within their area. SF ¶ 8. Typically, a majority of the programs transmitted by networks to affiliates are supplied to the networks by independent producers; the balance are produced by the networks themselves. SF ¶ 10. While programs may be sourced from a multitude of producers or packagers, each network customarily deals with only a limited number of such suppliers. SF ¶ 11. Under the network-affiliate relationship, the networks generate revenues primarily through the sale of commercial announcements that are aired by affiliates in conjunction with the programs furnished by the networks.[5] SF ¶ 9.
*142 While the uses of music in broadcast material aired by the networks vary, they may generally be classified as either feature, theme, or background music. Feature music is the principal focus of audience attention, such as a song sung on a variety show. Theme music is played at the start or conclusion of a program and serves to enhance the identification of the program. Music in a program that is neither feature nor theme is generally considered background music. SF ¶ 13.
The music contained in programs supplied to the networks by independent producers is typically selected for those programs by the producers.[6] SF ¶ 14. The producers obtain from the copyright owners of the music selected the right to record the music on the soundtrack of the program's film or videotape in synchronization with the action. Acquisition of this so-called "synch" right does not carry with it the separate right to perform the music. SF ¶ 14. By longstanding practice, the right to perform music is licensed to the networks by ASCAP and BMI. SF ¶ 14.
During trial, applicants presented considerable testimony concerning the current licensing regime under which, in order to broadcast the programs acquired from producers, the networks must acquire music performing rights for music which is already fully integrated into the programs. Tr. at 373-75, 660-70. The frequently mentioned alternatives to acquiring a music performing license from ASCAP and BMI are "source" or "direct" licensing. Source licensing entails the program producer procuring performing rights to the music used in the program from the copyright proprietors, and conveying those rights to the network in conjunction with the performing rights to all other components of the program. Direct licensing entails the network obtaining music performing rights directly from individual copyright proprietors. As noted, however, the networks typically have not secured source or direct licenses, but rather customarily obtained from ASCAP and BMI blanket licenses permitting television performance of all the music in the repertories of these societies. SF ¶ 14; see, Buffalo Broadcasting, 744 F.2d at 920-22.
Since 1949, the networks have entered into various blanket license agreements with ASCAP. SF ¶ 20. Of particular relevance to this proceeding are the four most recent agreements reached between ASCAP and the networks. In June, 1981, CBS entered an agreement ("1981 CBS Agreement"), which retroactively finalized license fees for the 1970-1980 period,[7] and prospectively established fees for the 1981-1985 period. JX 21. The agreement called for total payments to ASCAP of $51.0 million, $6.2 million of which was allocated to the 1970-1980 period,[8] and the balance, $44.8 million, used to establish final fees for the 1981-85 period. The 1981-1985 fees were not apportioned evenly, but rather began at $8.0 million in 1981 and escalated to $9.8 million in 1985.[9]
In November, 1985, ABC concluded an agreement with ASCAP, ("1985 ABC Agreement") retroactively finalizing fees for the 1977-1985 period. JX 12. For the period 1977-1980, ABC fees were finalized at $18.84 million, allocated over the entire period rather than on a per-year basis.[10] For the period *143 1981-1985, ABC's final fees totaled $44.8 million, the same amount as paid by CBS for that period. But where the CBS payment schedule called for escalating fees, ABC allocated a fee of $8.96 million to each year. JX 12.
In December, 1985, CBS negotiated an agreement ("1985 CBS Agreement"), which prospectively established fees for the 1986-1990 period. JX 22. The fees began at $9.8 million in 1986, and escalated to $11.3 million in 1990.[11]
In April, 1992, NBC consummated an agreement with ASCAP ("1992 NBC Agreement"), retroactively finalizing fees for the period 1976-1991, and prospectively finalizing fees for the period 1992-1993.[12] JX 32. The agreement called for an additional payment by NBC of $17.5 million to finalize fees for the period 1976-1990. For 1991, NBC's fees to ASCAP were finalized at $11.3 million. For 1992, NBC agreed to pay an amount equal to 0.44 percent of NBC's average gross network revenue[13] for the years 1991 and 1993.[14] For 1993, NBC agreed to pay an amount equal to 0.44 percent of the gross network revenues earned in 1993. JX 32.
Applicant CBS remains "open" with regard to final fees for the period 1991-1993. During this period, CBS has paid interim fees to ASCAP in the amount of $9.8 million per year for the years 1991 and 1992. SF ¶ 21. Applicant ABC remains open with regard to final fees for the period 1986-1993. During this period, ABC has also paid interim fees to ASCAP in the amount of $9.8 million per year for the years 1986-1992. SF ¶ 21. Both applicants seek to finalize fees for the years they respectively remain open.
DISCUSSION
As noted, the Consent Decree establishes a procedure by which the fees payable for an ASCAP license are to be determined. Upon receipt of a written application for a license, Section IX requires ASCAP to "advise the applicant in writing of the fee which it deems reasonable for the license requested." If the parties are unable to agree upon a reasonable fee within 60 days, the applicant may apply to the Court for the determination of a reasonable fee. In such a proceeding, the burden of proof falls upon ASCAP to establish the reasonableness of its fee proposal. Consent Decree, Section IX.
The Consent Decree does not provide further direction as to how the Court should arrive at a license fee, nor does it specify any criteria by which to gauge what constitutes a reasonable royalty. In ASCAP v. Showtime, 912 F.2d at 569, the Second Circuit indicated that the task of assessing such a fee necessitates an appraisal of "fair market value" an appraisal based essentially on an estimation of "the price that a willing buyer and a willing seller would agree to in an arms-length transaction." And in the lower court opinion in Showtime, affirmed on appeal, Magistrate Judge Dolinger noted that a proper analysis should seek to "define a rate or range of rates that approximates the rates that would be set in a competitive market." See ASCAP v. Showtime, 912 F.2d at 576 (opinion of trial court).[15]
Yet the very need for such an approximation reveals the problematic nature of the analysis envisioned and the enigmatic task thrust upon a court that must undertake this *144 evaluation. For underlying such an analysis is the recognition that the market for blanket licenses does not typify the model of a competitive market, in the sense that it is not characterized by multiple sellers, each possessing negligible market power. Rather, ASCAP and BMI are in the position of being the sellers of a unique product to their licensees, and the providers of a unique service to their constituent members. See BMI v. CBS, 441 U.S. at 20, 99 S.Ct. at 1562. Inasmuch as applicants in this proceeding, and others similarly situated in like proceedings, may prefer to depict the product offered by ASCAP as the composite of individual musical compositions, the blanket license is "truly greater than the sum of its parts." BMI v. CBS, 441 U.S. at 21, 99 S.Ct. at 1563. Beyond the performing rights to the music actually used, the license offers the flexibility of immediate and unlimited access to a vast repertory of compositions, without the cost and delay of consummating individual agreements, and without the concern of exposure to liability for copyright infringement. With regard to ASCAP members, the blanket license achieves efficiencies in the monitoring and enforcement of individual copyrights; its absence would significantly raise the cost of licensing, and undoubtedly alter the supply and cost of using the desired compositions. The efficiencies obtained from an aggregate license explain the genesis of this atypical market: "a bulk license of some type is a necessary consequence of the integration necessary to achieve these efficiencies, and a necessary consequence of an aggregate license is that its price must be established." BMI v. CBS, 441 U.S. at 21, 99 S.Ct. at 1563. In short, the market for blanket licenses appears to be one whose natural consequence is the lack of broad-based competition. To postulate what prices would prevail were such a market "competitive" is perplexing in theory, impractical in practice, and dubious in outcome given the efficiencies obtained due to the aggregating nature of the service rendered. Little can be adduced as to the expected behavior of such a market were it populated by multiple sellers. It is questionable whether such a market could sustain many sellers; whether the market would function efficiently and the price levels at which its supply and demand would converge are even more uncertain.[16] In addition, limited evidence is discernible as to the incremental costs facing ASCAP.[17] Consequently, any rate-setting standard that calls, in the abstract, for a theoretic construct of a competitive market in blanket licensing must confront the reality that there exists minimal evidence as to what that market would look like, much less the prices it would yield.
Lacking the instruments with which to construct from start a model to price fairly the rights at issue, it becomes necessary to establish a tangible foundation from which to commence this inquiry. Thus, as in prior proceedings, the Court finds it appropriate to consider previous agreements voluntarily entered between the parties, or those similarly situated, as the starting point of its analysis. See Showtime, 912 F.2d at 577 (opinion of trial court) ("we must look to very imperfect surrogates, particularly agreements reached either by these parties or by others for the purchase of comparable rights"). Such an approach offers a workable means by which to advance the analysis in a manner consonant with the stated aims of the Consent Decree. See Showtime, 912 F.2d at 576-77 (opinion of trial court) (deliberating the countervailing considerations relevant to a rate-setting inquiry, beyond policy of encouraging price restraint upon ASCAP). The Decree demands the determination of a "reasonable" fee; as ASCAP remarks, it does not require the Court to create the "platonic ideal" of a competitive market. ASCAP Br. at 4. Rather than speak in terms of competitive market pricing, when such a term carries *145 vague significance within the context of the blanket license market, we believe it more instructive to view the Court's role as a moderating influence on ASCAP that serves "to minimize the likelihood that ASCAP's evident market leverage may be exerted to obtain unacceptably inflated price levels for its licensees." Showtime, 912 F.2d at 576 (opinion of trial court) (citing cases). Performing this function does not require the Court to ignore the history of the parties' preferences as expressed in their prior agreements; on the contrary, prices negotiated voluntarily in an arms-length transaction offer the only palpable point from which to proceed towards an estimation of fair value for later periods. See Showtime, 912 F.2d at 569; see also, United States v. ASCAP; Application of Home Box Office, Slip Op. at 11 (S.D.N.Y. July 11, 1986) (interim fee opinion) ("invocation of a previously negotiated agreement as a guide to interim fees is based on the premise that both parties' uncoerced acquiescence to the terms of the contract reflects their conclusion that those terms are reasonable under then-current conditions").
Of course, we do not merely endorse as appropriate for today the terms of compromises concluded yesterday. Rather, this inquiry must faithfully address both challenges to the validity of negotiated agreements as reliable benchmarks of reasonable rates at the time entered, as well as changed circumstances that may make prior benchmarks outdated measures of fair value. The very existence of a rate court necessitates the initial inquiry:
Though the rate court's existence does not mean that ASCAP has violated the antitrust law, the court need not conduct itself without regard to the context in which it was created. The opportunity of users of music rights to resort to the rate court whenever they apprehend that ASCAP's market power may subject them to unreasonably high fees would have little meaning if that court were obliged to set a "reasonable" fee solely or even primarily on the basis of the fees ASCAP had successfully obtained from other users.
Showtime, 912 F.2d at 570. Where prior agreements form the starting point of a rate-setting inquiry, the Court will consider the distinctive conditions impacting those agreements, and evaluate claims that the agreements were the product of a disparity in bargaining leverage. With regard to changed circumstances, the Court must account for alterations in the economic conditions confronting the parties, as well as appraise variations in the nature and value of the rights at issue.
With these general principles in mind, we examine the divergent proposals submitted by the parties as measures of reasonable blanket license fees. Since ASCAP bears the burden of establishing the reasonableness of its approach, its proposal will be evaluated first.
A. ASCAP's Fee Proposal
ASCAP seeks to discharge its burden by relying primarily on the terms of an agreement recently entered into between ASCAP and NBC. The 1992 NBC agreement retroactively finalized fees for the period 1976-1991, and prospectively finalized fees for the period 1992-1993. ASCAP's fee proposal suggests for ABC and CBS terms identical to as those agreed to by NBC for the particular period for which each applicant seeks to finalize its fees. Thus ASCAP proposes for ABC the same terms agreed to by NBC for the years 1986 to 1993, and for CBS the terms agreed to by NBC for the years 1991 to 1993. The fees assented to by NBC for these years are as follows:
1986 [redacted]
1987 [redacted]
1988 [redacted]
1989 [redacted]
1990 [redacted]
1991 $11,300,000
1992 0.44% of 1991/1993
average gross revenue[18]
1993 0.44% of gross revenue[19]
*146 SF ¶ 21. According to applicants' projections, ASCAP's percentage-of-revenue proposal for 1992 and 1993 would yield the following fees:
ABC CBS
1992 [redacted] [redacted]
1993 [redacted] [redacted]
AX 127, 152. ASCAP's proposal also seeks from the applicants interest on the amounts by which the recommended fees exceed previous interim fee payments; interest is to be computed from April 30, 1992, the date of the NBC agreement. Tr. at 37; ASCAP Br. at 6-7.
The principal argument advanced by ASCAP in support of its proposal rests on the theory that there is no better measure of a reasonable fee than the price recently agreed to voluntarily, in an arms-length transaction, by a network situated similarly to the two applicants. Indeed, the Consent Decree itself adjures ASCAP to treat users evenhandedly; Section IV(C) enjoins discrimination in license fees between licensees similarly situated. In broad terms, ABC and CBS do appear to be situated similarly to NBC. All three networks are approximately the same size,[20] operate in the same manner,[21] earn roughly equivalent revenues,[22] and use ASCAP music in a similar fashion and in approximately the same amounts. Tr. at 79-80; DX Q.
Additionally, ASCAP's proposal professes to respect the experience of applicants' own history; the fees resulting from the present proposal are "in line," ASCAP maintains, with fees generated by prior agreements entered into by ABC and CBS. ASCAP Br. at 7-9; Tr. at 50-51 (testimony of ASCAP chief economist Dr. Peter Boyle that ASCAP's proposal is "status-quo type deal"). With regard to CBS, the proposed 1991 fee of $11.3 million is the same as the fee paid by CBS in 1990; adjusted for inflation, the fee would be lower than the prices CBS had previously agreed to for each of the last ten years. Tr. at 55-56; DX N.[23] Using applicants' projections, ASCAP's percentage-of-revenue proposal for 1992 and 1993 yields, in absolute dollar terms, fees equal to or lower than the amounts paid by CBS in 1989 and 1990. AX 127, 152; SF ¶ 21. As a percentage of gross revenue, the 0.44% rate sought for 1992 and 1993 is lower than the average rate reflected in the fixed fees paid by CBS during the years 1981 to 1990 (an average of [redacted] of gross network revenue).[24] DX D. With regard to ABC, while the proposed fees are higher in absolute dollar terms than the final fees ABC has paid in prior years, adjusted for inflation, the average of the fees proposed for the years 1986 through 1991 is lower than the average of the fees paid by ABC during the years 1981 through 1985. See DX M.[25] As a percentage of gross revenue, the 0.44% rate for 1992 and 1993 is close to the average rate yielded by the fixed fees paid by ABC during 1981 to 1985 (an average *147 of [redacted] of network revenue).[26] DX OOO; see Tr. at 51-60.
1. Prior Benchmarks
Applicants vigorously contest the validity of reliance on the prior agreements between the networks and ASCAP. With respect to replicating the 1992 NBC agreement on the assumption that it is probative of reasonable fees for ABC and CBS, applicants maintain that they are not situated in a position similar to that of NBC at the time that network negotiated its contract. Testimony from the NBC executive who directed the negotiations culminating in the 1992 agreement profiles the circumstances unique to NBC that formed the basis for this agreement. Tr. at 249-87 (testimony of Richard Cotton, NBC Executive Vice-President and General Counsel). Prior to 1992, NBC remained open with respect to finalizing its ASCAP fees for a prolonged period dating from the last quarter of 1976. Tr. at 250. NBC's interim payments to ASCAP for the 1976-1990 period totalled approximately $15 million less than the amounts paid as final fees by CBS. Tr. at 126, 257; App.Br. at 23. In its fee discussions with NBC, ASCAP appears to have asserted that the network should make-up the $15 million shortfall as well as pay interest for the substantial period it had use of this money. Tr. 126-28, 255-57, 266-68; DX A. While NBC repeatedly resisted the notion of paying interest attributable to the 1976-1990 period, the network apparently viewed ASCAP's interest claim seriously. Tr. 255-60, 266-68. The trial record reveals assessments of NBC's interest exposure, ranging from NBC's appraisal of $25 to $45 million,[27] to ASCAP's estimate of $15 to $17 million.[28] Tr. at 257, 128. The parties appear to have agreed, in their fee discussions, to settle the 1976-1990 open period in conjunction with the determination of fees for the period 1991 to 1993. Tr. at 260-62, 265-68, AX 4. The 1992 NBC agreement ostensibly represents the compromise struck to settle the "whole ball of wax;" the means by which to set fees on a forward basis through 1993, as well as to arrive at a final disposition for the previous period, including a resolution of the interest issue. Tr. at 266-278. NBC asserts that it viewed the deal as an explicit exchange: ASCAP bartering its claim to a payment designated as interest in return for both premium fees during the 1991 to 1993 period and ASCAP's preferred percentage of revenue format for 1992 and 1993.[29] Tr. 271-79, 282-83. Based on this testimony, applicants urge that the agreement entered into by NBC was induced by concerns particular to NBC and cannot be considered as the benchmark of reasonable fees for ABC and CBS.App.Br. at 22-27.
ASCAP disputes NBC's characterization of the 1992 agreement. Initially, ASCAP notes *148 that it was far from a foregone conclusion that NBC would match the fees CBS had paid for the 1976 to 1990 period, much less pay a sizable sum of interest on the shortfall.[30] ASCAP's interest claim rested largely on the award of interest in Showtime, Slip Op. at 3, (October 13, 1989); generally, prior agreements between the parties did not provide for interest payments. ASCAP Br. at 15. ASCAP also argues that the fees prescribed by the NBC agreement "are consistent with" the fees that CBS accepted in its most recent agreement, undermining the contention that the NBC deal was distinctive due to NBC's peculiar position and thus inappropriate for ABC and CBS. Finally, ASCAP suggests that the claim that NBC would agree to pay a premium in fees to ASCAP during any period between 1986 to 1993 imputes a significant degree of imprudence on the network's part with regard to its fee obligations to BMI; NBC's contracts with BMI required the network to pay final fees equalling 85% of NBC's final fees to ASCAP for the period 1986 to 1990, and 100% of the final fees NBC paid to ASCAP for the years 1991 and 1992. Tr. 287-301; ASCAP Br. at 16-18; JX 94-97. Consequently, it would be reckless for NBC to agree to pay substantial excesses to ASCAP for the 1986 to 1992 period, when the premiums reflected in those fees would have to be duplicated in large part in the fees paid to BMI.
Despite the explications offered by ASCAP, we think applicants have raised sufficient questions as to the similarity in circumstance between themselves and NBC to cast doubts on the validity of replicating the terms of the NBC agreement for ABC and CBS. Even if it remained uncertain that NBC would ultimately have to match CBS's payments to ASCAP for the 1976 1990 period, as well as pay interest on the shortfall, it is readily apparent that ASCAP pressed its interest claims and that NBC took these claims seriously. The magnitude of the interest calculations arrived at by NBC, the network's awareness of the Showtime[31] decision and the interest levels assessed in that case, the repeated references in fee discussions to ASCAP's interest claims and NBC's view that an unfavorable resolution of the question was a "dealbreaker," all support the conclusion that NBC's interest exposure influenced the terms to which it acquiesced. The fact that the fees dictated by the NBC agreement are roughly "consistent with" the amounts under the 1985 CBS agreement[32] does not address squarely the claim that in 1992, NBC deemed a lower fee to be reasonable and may have struck a more favorable bargain if unencumbered by its peculiar circumstances. With regard to the reference to NBC's BMI obligations, we agree that the magnitude of the premium that applicants, in their post-trial briefs, claim is reflected in the NBC fees does not indicate an entirely sound or balanced approach by NBC towards its total cost for purchasing music performance licenses: it seems imprudent to pay premiums of $3 to $4 million a year to ASCAP to offset an interest exposure that ASCAP itself estimated to be in the range of $15 to $17 million, and for which ASCAP had indicated it would accept a $9 million payment in settlement, if those premiums were to be duplicated, dollar for dollar, in the fees paid to BMI for 1991 and 1992.[33]See App.Br. at 24-27, ASCAP Rep.Br. at 5-6; Tr. at 128, 255-56, 267. However, the fact that music users are apt to make exaggerated estimates of the amounts paid in excess to ASCAP does not *149 invalidate entirely the claim that there was some degree of premium reflected in the fees agreed to by NBC to compensate ASCAP for interest due over the considerable period that NBC had failed to finalize its fees. If the premiums are appraised at a lower order of magnitude, the NBC agreement appears more sound with respect to the additional royalties due BMI. Indeed, if we take Mr. Cotton's testimony at face value, it would appear that NBC was "so focused on avoiding the payment of any interest fee in the ASCAP arrangement," that the network did not consider the consequences as to BMI.[34] Tr. at 292. Even if we were to discount Mr. Cotton's testimony as ASCAP would prefer, it is simply inconceivable that the 1992 NBC agreement would not reflect the duration of the open period and the interest claims accumulated therefrom. To accept this position would compel us to ignore the reality of NBC's open period dating to 1976, ASCAP's repeated demands for interest and NBC's steady resistance, the network's insistence that a resolution of these questions be part of any agreement reached between the parties, ASCAP's ability to obtain its preferred percentage-of-revenue format, which was a substantial departure from prior practice,[35] and NBC's success in avoiding a lump sum payment to ASCAP designated as interestall facts with which ASCAP does not take issue, and all facts that strongly suggest a compromise. Even if the agreement may not have been as explicit a "horse trade" as applicants claim, the record reveals that it was at least implicitly influenced, if not entirely induced by the unique conditions confronting NBC. Consequently, we do not find ourselves obliged to prescribe fees for applicants on the basis of what ASCAP was able to obtain from another user when the facts indicate a high order of probability that the fees obtained were through circumstances particular to that party. See Showtime, 912 F.2d at 570. We thus agree with applicants that ASCAP has failed to meet its burden of demonstrating that the 1992 NBC agreement is probative of reasonable fees for ABC and CBS.
Applicants also take issue with the validity of relying on any of the other three prior agreements between ASCAP and the networks as benchmarks of reasonable royalties. With regard to the 1981 CBS agreement, applicants contend that the loss of CBS's antitrust suit in 1981 eliminated a meaningful constraint on ASCAP's market power; the subsequent agreement reached between CBS and ASCAP reflects the performance society's unbridled ability to price the blanket license at levels reflecting the limited alternatives available to CBS. App. Br. at 32-34, Tr. at 706-07, 710-13 (testimony of applicants' expert economist, Professor George Benston). Nothing else, applicants contend, can account for the precipitous increase in fees between 1980 and 1981.
Applicants' theory is untenable. First, the CBS 1981 agreement finalized fees retroactively for the 1970 to 1980 period, as well as prospectively for the 1981 to 1985 period. That the same agreement established the fees for both periods quickly undermines the hypothesis that the pendency of the antitrust litigation was the reason for the difference in *150 fee levels between 1980 and 1981.[36] Second, CBS cannot adequately explain why it did not seek rate-court adjudication of its 1981 to 1985 fees, if it truly believed the "precipitous increase" reflected, in large part, a premium over the reasonable sums due. Third, the fact that the 1985 ABC agreement established the same total amount as that paid by CBS for the 1981 to 1985 period, while simultaneously setting lower fees than CBS's payments for 1977 to 1980, supports the contention that the 1981 to 1985 fees were deemed reasonable. Finally, ASCAP offers an assortment of factorsthe growth enjoyed by the networks in the 1970's, the surge in inflation during the period at issue, and the dynamics of ASCAP-network relations in the 1970's that offer more viable explanations for the increase in ASCAP fees during the early 1980's than the one posited by applicants.
With respect to the 1985 ABC agreement that finalized fees for the 1977 to 1985 period, applicants appear to advance the same argument as that raised against the 1981 CBS agreement. App.Br. at 43-45. Applicants seem to suggest that the failure of the CBS antitrust suit, which resulted in CBS agreeing to inflated fees for the 1980 to 1985 period, also saw ABC inevitably faced in 1985 with no viable alternative than to agree to the rates acquiesced in by CBS in 1981. As noted above, we find little merit in this theory. In fact, ABC's position is even less tenable than that of CBS: ABC's fees were established retroactivelythus the network had the perspective of CBS's experience as well as the benefit of hindsight.
In their post-trial brief, applicants also allude to their difficulties in obtaining viable per-program licenses from ASCAP, despite a persistent five-year effort beginning in 1981. App.Br. at 44-45. The networks appear to imply that the lack of viable per-program alternatives may have influenced ABC to accept reluctantly the terms ASCAP offered for blanket licenses in 1985. The record provides sparse support for this proposition. Moreover, the rate-court alternative remained ever-present; applicants do not explain why ABC failed to pursue its objective further through adjudication, if the network had in fact favored per-program licenses. See Consent Decree, Sec. VIII (enjoining ASCAP from discriminating among fees for various types of licenses so as to deprive users of genuine choice); see also, United States v. ASCAP, 586 F. Supp. 727, 729 (S.D.N.Y.1984) ("mandatory per-program option remains an integral part of the injunctive relief provided for by the decree, necessary to provide users with a viable alternative to the blanket license"). In any event, there is meager evidence in the record that ABC's frustration in accessing the per-program route induced it to enter the 1985 agreement. Because applicants did not vigorously press this claim, we do not discuss it at greater length.
Applicants make two claims with respect to the unsuitability of the 1985 CBS agreement as a benchmark of reasonable royalties. First, applicants claim that the agreement was the outcome of an overly optimistic outlook on the network's part as to its future prospects. Based on "rosy" projections contained in a series of reports entitled The Road to 1990, prepared under the direction of David Poltrack, CBS Senior Vice President of Planning and Research, the network submits that it anticipated robust economic health into the 1990's; the fees CBS agreed to pay ASCAP reflect that mistaken optimism. App.Br. at 40-43.
The record contains few if any facts that support this claim. There is scant evidence that CBS relied on the Poltrack forecasts in arriving at a fee for ASCAP. While the testimony of CBS's able negotiator George Vradenburg suggests that the forecasts were the source of "general corporate optimism," there is no indication that these reports influenced, *151 much less formed the basis for the fees negotiated with ASCAP.[37] Tr. 425-26, 435-37. Absent from the record is any credible connection between the Poltrack predictions and the claim that CBS was amenable to increased outlays in its programming costs. Nor do The Road to 1990 reports appear to be in the nature of a financial planning guide to which CBS may have referred in assessing the expenses it was willing to incur. The forecasts are silent with regard to the changing cost structure confronting the networks and thus, by themselves, are an inappropriate basis for financial decision-making of any sort. Tr. at 348-50. Moreover, the reports do not aspire to a careful appraisal of CBS's individual economic prospects, but rather speak broadly in terms of cumulative network growth, three-network share, and collective network performance. It appears that in the face of gloomy forecasts for network decline[38], The Road to 1990 reports were offered as assuring estimates of the promising performance of network television in an environment sporting new competitive challenges testaments to the enduring viability of the network "dinosaurs" in the evolving climate envisioned ahead. See Tr. at 308, 350-53, 436. The Poltrack predictions thus seem to be more in the nature of reports prepared for public relations or for designing marketing and sales strategies, than as reliable guides for financial planning, or as the basis of decisions respecting the costs of production or operation. Tr. at 308. In any event, the record is barren of facts that can persuade the Court that a sophisticated and seasoned market participant such as CBS was moved to generosity in the music licensing fees it was willing to pay by pie-in-the-sky forecasts of the nature contained in The Road to 1990.
Second, applicants also claim that the 1985 CBS agreement was the reluctant result of the network's failure to achieve alternative source and direct licensing for music performing rights. George Vradenburg, CBS's former general counsel, testified to a four-year effort by the network to obtain agreements with composers, publishers and program packagers to convey their music performing rights to CBS, in the event CBS chose at some future date not to operate under a blanket license. Tr. 403-06. The testimony suggests that despite fairly "serious and intense" efforts, CBS's venture proved fruitless: while the network was able to obtain cooperation from the composers it hired for programs produced in-house, it was able to obtain agreement from only a handful of program packagers. Tr. 416-24. Even if CBS had been successful in overcoming the reluctance of many to grant the options it sought, the network estimated the total cost would have exceeded the cost of a blanket license due to two factors: first, the incentive for individual suppliers to hold-out and charge premium prices for music rights knowing the network was obliged to obtain all licenses at the source;[39] second, the "inflated royalties" ASCAP furnishes to members whose works have been performed on networks.[40] The result of these failures, argue *152 applicants, was that CBS had no alternative but to agree to the terms ASCAP demanded for a blanket license.
The evidence submitted provides an inadequate basis to find that the 1985 agreement saw a frustrated CBS resigned to paying an unreasonable price for a blanket license after the failure of exhaustive efforts to secure alternative forms of licensing. Evidence regarding the source and direct licensing initiatives pursued by CBS remains insufficient for the Court to assess the intensity or purposefulness of the efforts undertaken.[41] Nor are we able to determine the posture under which these initiatives arose; whether they were exploratoryin the nature of attempts to obtain leverage against ASCAP or to procure a competitive yardstick for the blanket licenseor whether they were serious efforts to establish a system of alternative licensing capable of prompt and practical implementation. In any event, the difficulties CBS faced in opening the source and direct licensing routesincluding any hurdles erected by hold-outs and by ASCAP's distribution methods are relevant here only insofar as they affect the prices CBS agreed to pay in the 1985 agreement. On this score, the record is conspicuously silent. There was no testimony indicating either the prices CBS suggested as reasonable, or the premiums it believed it paid due to its failure to secure source and direct licenses. While CBS declares that it saw no alternative but to come to terms with ASCAP on blanket license fees, there is nothing in the record to indicate the amount of excess fees, if any, that ASCAP was able to extract as a result.[42] On the contrary, the record suggests that fees agreed upon were acceptable to CBS:
[T]he absence of a competitive measure of the value of the ASCAP/BMI licensed rights is a real, business issue; as a practical matter, however, if a license is available to CBS at current rates in years after 1984, there probably won't be an "issue" which will require people to focus on trying to find alternatives to current practices.
AX 27 (Vradenburg memorandum describing discussion with ASCAP general counsel Bernard Korman in December 1984 regarding CBS's source licensing efforts). The prices agreed upon were in fact consistent with then-current rates: the 1986 fee was identical to that of 1985, while subsequent years showed moderate increases in line with those of the prior period ($1.5 million over five years).
Related to the claims concerning CBS's experiences at seeking source and direct licensing, applicants also attempt to characterize each of the prior agreements between the parties as products of the substantial market power that the blanket license affords ASCAP. Given the nature of music use in network television, a licensing system combining direct and source licenses could function efficiently, argue applicants, were it not for the restraints imposed by the blanket license regime. Most network programming is pre-recorded, and most of the music contained therein is composed specifically for the program pursuant to composer-for-hire agreements. SF ¶ 10. Tr. 373-74, 584-84. In these transactions, the producers select composers and negotiate the prices for the services performed, as well as the fees for the licensing of synchronization rights; music performing rights, however, are reserved for *153 licensing by the composer's chosen music performing rights society. Applicants maintain that absent the blanket licensing system, there would be no reason why the producer could not also acquire from the composer music performing rights on the networks' behalf. The "all-or-nothing" aspect of the blanket license, however, makes it prohibitively costly for parties to pursue this course;[43] in order to benefit from accessing licenses at the source, the network would have to be prepared to forgo the blanket license entirely. Thus, before crossing such a rubicon, the network would have to succeed in obtaining performing rights to all the music in its programs, a daunting task both in theory and practice.
The issues raised by these claims sound strikingly similar to issues deliberated at great length in the antitrust cases brought against the performing rights societies. See, e.g., CBS v. ASCAP, 400 F. Supp. 737 (S.D.N.Y.1975), rev'd, 562 F.2d 130 (2d Cir. 1977), rev'd, BMI v. CBS, 441 U.S. 1, 99 S. Ct. 1551, 60 L. Ed. 2d 1 (1979), on remand, 620 F.2d 930 (2d Cir.1980), cert. denied, 450 U.S. 970, 101 S. Ct. 1491, 67 L. Ed. 2d 621 (1981); Buffalo Broadcasting Co. v. ASCAP, 546 F. Supp. 274 (S.D.N.Y.1982), rev'd, 744 F.2d 917 (2d Cir.1984), cert. denied, 469 U.S. 1211, 105 S. Ct. 1181, 84 L. Ed. 2d 329 (1985). The final result of those cases was a rejection of the claim that the blanket license prevents music users from licensing performing rights through alternative means so as to function as a restraint of trade. Applicants urge that the context in which their theories are raised in this proceeding distinguishes the conclusions reached in those cases. The focus of the antitrust cases was on whether the blanket license operates an unlawful restraint of trade; the inquiry centered on plaintiffs sustaining their burden of establishing that they lacked realistic alternatives to the blanket license. The focus in the instant case is on whether ASCAP has discharged its burden of establishing that its fees are reasonable; the inquiry raised by applicants' claims concerns whether the blanket license empowers ASCAP to extract excessive fees from the networks, so as to undermine reliance on the prior agreements entered between the parties. See Showtime, 912 F.2d at 570 (failure of antitrust plaintiffs to prove an antitrust violation does not mean that Magistrate lacked evidence sufficient to support a finding that ASCAP enjoys more market power than it would in a freely competitive market for music rights). Inasmuch as the Court was not eager to retry, in this limited rate proceeding, issues raised and resolved in prior antitrust cases, we permitted applicants to proceed with their inquiry, confined to the specific purpose of demonstrating the consequences of blanket licensing on the prices the networks ultimately consented to in their agreements with ASCAP.[44]
The cornerstone of applicants' claim is that the "all-or-nothing" aspect of the blanket license makes other licensing alternatives virtually impossible. Yet as the Second Circuit found, and as applicants themselves seem to recognize,[45] the availability of per-program licenses substantially undermines this claim. See Buffalo Broadcasting v. ASCAP, 744 F.2d at 926-29 ("the availability of the program license enables [the stations] to forgo the blanket license and still obtain music rights for any program for which direct licensing proves infeasible"). While applicants assert that ASCAP has consistently resisted offering per-program licenses, they are unable to explain why the networks did not resort to the Court if ASCAP's fee demands deprived them of a "genuine choice" among licenses. Indeed the path remained ever-open; in 1984, this Court denied ASCAP's motion to amend the Consent Decree to permit ASCAP the prerogative to deny perprogram *154 licenses to broadcasters that held blanket licenses with BMI. See United States v. ASCAP, 586 F. Supp. 727 (S.D.N.Y. 1984). While ABC did pursue per-program license negotiations with ASCAP that ultimately faltered, none of the networks availed themselves of the rate-court alternative. They should not be heard now to complain that high fee levels precluded resort to per-program licenses:
The availability of a judicially enforceable requirement of a `reasonable' fee precludes any claim that the program license rate is too high, especially in the context of television stations regularly represented by a vigorous committee with the demonstrated resources, skill, and willingness to invoke the rate-adjustment process.
Buffalo Broadcasting v. ASCAP, 744 F.2d at 927. Consequently, it is difficult for the Court to accept that the nature of the blanket license forecloses access to other licensing options when the vital path bridging these alternatives does not appear to have been vigorously pursued by any of the interested parties. Cf. id. at 926-33 (characterizing per-program license as bridge to source and direct licensing).
ASCAP, of course, submits that the blanket license has always been the license of choice due to the efficiencies it provides. Indeed, this claim finds much support in the language of the antitrust cases ASCAP has survived. See, e.g., Buffalo Broadcasting, 744 F.2d at 934 (Winter, J., concurring) ("the lack of use of alternatives does not signal a restraint on competition but merely reflects the competitive superiority of the blanket license"). Applicants, however, maintain that irrespective of the efficiencies the blanket license may generally afford, within the context of network music use, source licensing can offer an equally efficient alternative. Tr. 668-85 (testimony of Professor George Benston). Accepting applicants' theory at face value, the prospect that networks may be able to access performing licenses at the source without incurring prohibitive transaction costs could appear as a viable alternative from the networks' perspective; however, any theory extolling the feasibility of such alternatives must address the efficiencies lost from the perspective of composers and publishers. In the absence of licensing through ASCAP, alternative mechanisms for monitoring music use and enforcing copyrights must be engaged. Applicants' theory does not appear to account fully for the time and capacity required to fulfill these functions in situations where a license conferring blanket immunity upon a user is no longer available. Indeed, it is not surprising that producers would be reluctant to fly to the undiscovered country of source and direct licensing, when the blanket license has been known over the years to be an efficient manner by which to license music as well as facilitate the protection of copyrights. In short, we remain highly skeptical of the claim that source or direct licensing alternatives would be able to match the overall efficiencies afforded by the blanket license. More pertinent from the perspective of this proceeding, we are unpersuaded that the blanket license has obstructed the networks' assiduous efforts to develop a system of source or direct licensing and that, as a result, ASCAP has been persistently able to obtain inflated royalties for its license from the networks.
The networks' theory fails to overcome one inescapable fact: the availability of the rate-court in instances where the fees demanded by ASCAP appeared unreasonable. Given the tenacity with which applicants present their case in this proceeding, one would expect that the networks, faced with intransigent demand by ASCAP, would fly to the Court for relief. Applicants blame their previous reluctance on the fact that invocation of the Court's jurisdiction is risky, costly, and time consuming; the availability of the rate-court mechanism is therefore a feeble constraint, they argue, on ASCAP's ability to exert its market power and extract excessive fees from the networks. The risks and costs of litigation, however, must be borne by both parties. If anything, these burdens would appear to weigh more onerously on ASCAP: the networks are likely to have the greater wherewithal with which to wage litigation; moreover ASCAP, in each proceeding, must bear the burden of proving that its proposals are reasonable. Consequently, it is difficult to accept that parties in the position of applicants, represented by skillful negotiators and *155 able counsel, would be incapable of wielding the leverage afforded by the rate-court alternative. Nor can we give credence to the claim that the television networks were repeatedly willing to succumb to ASCAP's demand for substantially inflated fees rather than taking the matter to the Court to determine a reasonable fee.
The theories advanced by applicants are similar to those successfully advanced against ASCAP at the lower Court level in the Showtime proceeding. See, 912 F.2d 563, 573-98. Indeed, applicants repeatedly remind the Court of the standards enunciated and the findings made in Showtime. In that proceeding, Magistrate Judge Dolinger declined to use ASCAP agreements with two competing cable services, HBO and Disney, as benchmarks of reasonable fees for Showtime. The decision in Showtime, however, cannot support applicants disclaimers' in the present proceeding against the prior agreements which ABC and CBS themselves entered into with ASCAP. Several facts distinguish this case from Showtime. First, in Showtime, ASCAP sought to set fees for one user based on fees agreed to by another; the Court here has already rejected the NBC agreement as a reliable benchmark of fees for ABC and CBS, and now seeks only to rely on prices to which the two applicants themselves agreed.[46] Second, in Showtime, Judge Dolinger specifically credited the testimony of cable company executives who stated they viewed the rate-court as "ASCAP-friendly," thus accepting the cable companies' "aversion" to invoke this alternative. 912 F.2d at 585. No similar testimony is available to applicants here to justify the absence of attempts to invoke the rate-court's jurisdiction in the face of unreasonable fee demands.[47] Third, Judge Dolinger noted that per-program licenses were essentially unavailable to cable suppliers due to ASCAP's position that the Consent Decree did not require these to be offered to cable stations;[48] applicants cannot claim here that the per-program alternative is similarly denied the networks. 912 F.2d at 585. Fourth, Showtime placed substantial weight on the fact that the ASCAP fee rates for HBO and Disney were far higher than the rates BMI was able to obtain from these users. 912 F.2d at 587-88. No such disparity exists between the fees ASCAP and BMI are able to generate from the networks.[49] Finally, the Showtime opinion itself contrasts the cable suppliers with the television networks and stations in terms of the latter entities' substantially enhanced capacities to negotiate fairly with ASCAP. 912 F.2d at 584. For all these reasons, the claims successfully presented in Showtime will not sustain applicants' theories in this proceeding.
Thus, our evaluation of the prior agreements between the networks and ASCAP leads to the following conclusions. We agree with applicants insofar as rejecting the 1992 NBC agreement as probative of reasonable fees for ABC and CBS. With regard to each of the other three contracts, we do not believe there exist valid grounds to doubt their *156 reliability as benchmarks of reasonable royalties at the time they were entered into.
2. Changed Circumstances
ASCAP contends that the fee levels it proposes are modest in comparison to the general upward trend in network programming costs. The rise in total broadcast expenses, however, does not appear to be due to across-the-board increases in all aspects of network programming cost. Rather, it appears that certain costsnotably license fees for sports and for popular prime-time programming, and salaries for sought-after scriptwriters, producers and actorshave risen, on some occasions dramatically, and have largely accounted for the increase in overall broadcast expense, despite rigorous cost-cutting measures implemented elsewhere by the networks. Tr. at 540-49 (testimony of Jay Gold, CBS Vice President of Finance); 623-33 (testimony of John Wolters, ABC Senior Vice President of Finance). Senior executives at CBS and ABC testified credibly as to the concerted cost containment efforts embraced by both networks; efforts entailing a range of administrative cuts, including reductions in staff, salaries, station compensation and the closing of news bureaus around the world, as well as changes in programming mix to introduce lower cost shows such as news and reality-based broadcasting. Tr. at 540-50, 623-33. Thus the argument that ASCAP's fees should increase, or at least should not be singled out for reduction, when all other network costs are generally rising, does not find support in the record. Rather, if reference must be made to other programming costs, it seems more precise, though admittedly more difficult, to determine whether music performing rights represent the sort of programming factor that should be deemed to fall within the category of factors subject to the networks' cost-cutting measures, or whether they represent an element of programming whose value would likely command fees consistent with or above prior levels.
In this regard, both parties sought at trial to illustrate the relative value of music to network programming. Applicants presented testimony to the effect that music does not play a substantial role in attracting or retaining viewers, and therefore does not fall within the category of the "make-or-break" elements of programming whose costs have historically escalated. Tr. at 584-90, 599-600 (testimony of producer Robert Berger). Applicants also suggested that the recent rise in news and reality-based programming has seen a marked diminution in the use and significance of music to network broadcasting. ASCAP, for its part, entertained the Court with two plays of one episode from the popular television drama series "Dallas" once with music as would it normally be aired to a television audience, and once without music, in order to highlight the essential contribution music makes to a dramatic presentation.
Despite such inventive efforts, the Court must admit that it remains incapable of quantifying the value of music to any particular television program. Nor do we believe that the rate-setting function requires us to venture any such assessment. Surveying the fluctuations in the amount of music used by a network over time provides an adequate proxy by which to gauge whether the significance of music to network programming has changed relative to prior years; assuming all other factors remain constant, the direction in which a network's music use has headed should chart the course for the music licensing fees owed to ASCAP. See, United States v. ASCAP; Application of Turner Broadcasting, Inc., Slip Op. at 18-21, 1989 WL 222654 * 20-25 (S.D.N.Y. October 12, 1989). With reference to the above-mentioned efforts undertaken to trim costs at ABC and CBS, if the networks' consumption of music has remained fairly constant, or has increased over the years, the networks should not be heard to complain that their music licensing fees should be reduced in accordance with cuts implemented elsewhere. If, on the other hand, music use has steadily decreased, this would provide support for the position that music performing licenses have been relatively less valuable to network programming in recent years than in the past. In the absence of any other yardstick by which to measure the varying value of music to network programming over time, the necessity of incorporating changes in music use *157 into the calculation of music licensing fees becomes apparent. Because ASCAP's percentage-of-revenue formula takes no account of changes in music use, it is not an acceptable method of arriving at a reasonable fee.
In defense of its proposal, ASCAP strenuously contests the claim that the networks' use of ASCAP music has declined markedly. Given that the most comprehensive source of data measuring music use on network programming comes from ASCAP, the debate over the direction in which music use has changed is ultimately a debate over the interpretation of ASCAP data. See Tr. at 137-155; 823-42. The dispute centers around the reliability of ASCAP data on music use in the so-called "other" category[50]a question that will be deliberated in due course. At this stage, it is not so relevant whether music use actually increased, decreased or remained constant for purposes of evaluating the reasonableness of a rate-setting formula from a methodological point of view. What is relevant is the fact that no formula which fails to account for the changes in the level of network music use can be a fair method of assessing a reasonable fee.[51]
In addition to emphasizing that the networks' gross revenues bear little relationship to applicants' use of ASCAP music,[52] applicants also challenge the other justifications offered for ASCAP's percentage-of-revenue proposal. With respect to the rationale that revenue-based licenses are common in the field of intellectual property, applicants point out that in these cases, the licensing agreements have generally been "product and user-specific."[53] Tr. at 218-19. Consequently, *158 the comparison to other intellectual property situations is inapt.[54] With respect to fees the networks pay for other creative elements of television programming, the percentage-of-revenue approach represents an anomaly; ASCAP can point to no other element of network programming for which the price is determined solely as a percentage of gross revenues. Tr. at 105, 629. ASCAP's reliance on the 1992 NBC agreement as vindicating the suitability of a revenue-based formula does not support its application to ABC and CBS; as discussed already, it appears likely that the NBC deal was driven by considerations specific to NBC. As to the contention that flat fee arrangements engender spiraling disputes between ASCAP and the networks and occasion long "open" periods, ASCAP fails to present any convincing rationale as to why a formula based on revenues promises a panacea.[55] We remain convinced that an approach based solely on calculating some percentage of a networks' gross revenue cannot serve as a reasonable measure of the value of a music performance license.
On the other hand, considerable advantages may be gained by relying on the change in a networks' gross revenue over time as one of the key variables involved in the calculation of a music performance licensing fee. As ASCAP points out, a formula that allows for fluctuations in gross revenues takes into account a host of considerations. It adjusts automatically for changes in the economyprimarily inflationas well as changes in the financial fortunes of the network, such as the consequences of competition from other sources of home entertainment.[56] Tr. at 40, 82-83, 199. It accounts for the financial effect on the network of variations in viewership or audience share. Tr. 82-83. On a forward-looking basis, it allows for a complex of changing circumstances that cannot be anticipated and shares between the parties the risk therefrom. Tr. at 199. Finally it facilitates even-handed treatment among licensees to the extent that it self-adjusts for variations in the relative financial fortunes of each network. Tr. at 40. See Consent Decree, Sec. IV(C) (encouraging even-handed treatment between licensees similarly situated). In short, gauging the changes in gross revenue provides a practical proxy by which to incorporate a range of considerations. Thus it appears to the Court that a formula that factors into the calculation of a royalty for the right to perform music on network television, the changes in both the levels of gross income earned by a network and the degree to which music is used by a network, provides an approach that addresses many of the concerns raised by the parties.
*159 Applicants would prefer the Court to focus on the networks' profitability, the "key economic indicator" from their perspective. App.Br. at 53; Tr. 631. During trial, applicants presented evidence of their deteriorating net income positions, and the net operating losses sustained in the recent past.[57] AX 126, 129, 151; Tr. 549-51, 631. It seems applicants would invite the Court to use net profits rather than gross revenues as a factor in fee-setting. The Court declines to do so. The perception that profitability is an element inherently difficult to measure meaningfully and is easily susceptible to manipulation, was substantiated by the trial testimony of witnesses from both parties. Tr. 81-82, 761-62. Gauging profitability would potentially open the Court to a critical audit of the networks' financial statements and a probing inspection of the networks' operations, as well as absorb us in complex calculations involving accounting and allocation issues. Indeed, applicants' own expert, Professor George Benston, agreed that the concept of tying fees to profitability was "not a very good idea." Tr. at 761. Moreover, we do not believe that network profitability is a matter entirely pertinent to the task of assessing the fees for the rights to perform music in network programming. Profitability is a function of many variables that have nothing to do with the use of ASCAP music;[58] in broad terms, profitability accounts for the cost of all the inputs involved in generating a network's income. We are not persuaded that the cost of all other factors of production, most of which are entirely unrelated to the input at issue, must be factored into the price assessed for this particular input.[59] Applicants do not vigorously press this position, nor do we believe there is substantial support in theory or practice for its application here. In sum, we think a focus on profitability would only serve to obfuscate rather than illuminate our analysis.[60]
B. Applicants' Counter-Proposal
Applicants present an alternative fee-setting formula that gives force to the various factors the networks believe are relevant in measuring the reasonable royalties for music performance licensing. In the absence of any market measure of the blanket license, applicants' fee proposal admits the necessity of relying on prior negotiated prices as starting points from which to calculate the fees currently reasonable. The approach presented involves two steps: first, a determination of the prior agreement on which to rely as most closely approximating fair value,[61] and second, the adjustments required to "carry forward" the fees to the periods at issue. App.Br. at 59.
1. Choice of Base Fee
Applicants' preferred approach is to use the fees paid by ABC and CBS in 1980 as *160 the base level from which to make the adjustments necessary to carry forward prior fee levels to the present period. The rationale offered for reaching this far back is that the 1980 rates reflect the pendency of the CBS antitrust suit against the music performing rights societies; the suit, applicants submit, operated as a meaningful constraint on ASCAP's market power and thus the 1980 fees, being so constrained, should be viewed as being "closer to a competitive market price" than the fees for the years following the loss of the antitrust case. App.Br. at 60. The Court has already addressed and rejected this rationale in discussing the exceptions applicants posed with regard to the CBS 1981 agreement. See note 36 supra and accompanying text. The fact that the 1980 fees were finalized retroactively in 1981, subsequent to the termination of CBS's antitrust suit, effectively undermines any claim that the fee levels were the consequence of the pendency of the antitrust litigation.[62] There thus remains no viable rationale that warrants reaching back to 1980 to find reasonable rates to use as base levels in implementing this analysis.
Moreover, to the extent that our evaluation of the parties' prior agreements found them to be benchmarks of reasonable royalties at the time entered, we feel justified in relying on fees fixed by later contracts between the parties. Applicants themselves offer the fees paid in 1985 as an alternative to their preferred 1980 base-year approach. We think it appropriate to rely on the price paid by each of the networks in 1985 as the suitable base level upon which to predicate the present analysis. With regard to ABC, the 1985 rates are fitting in that they represent the latest fees finalized by the parties; further, these fees were set retroactively so that both parties had the benefit of hindsight in evaluating their reasonableness.
With regard to CBS, the 1985 prices also represent a suitable starting point, even though the network entered a later contract the 1985 CBS agreementfinalizing fees prospectively through 1990. First, the fees CBS paid for 1985 were identical to the fees set for 1986 by the last agreement between the parties, reinforcing the reliability of the 1985 rate as an appropriate base. Second, given the claim that substantial changes in circumstance, particularly in the networks' use of music, have made the prices fixed by prior agreements outdated measures of present fair value, it seems improper to take 1990 as the base year from which to commence analysis when much of the changes to which applicants refer occurred over the 1986 to 1990 period. Though the prices set prospectively by the 1985 CBS agreement are deemed to have appeared reasonable to the parties at the time the agreement was reached, the substance of applicants' claim is that subsequent changesin the economic conditions confronting the networks, and in the value to the networks of the rights represented in the blanket license make the prices prospectively fixed over this period no longer valid bases upon which to establish fees for future periods. Starting with 1985 as a base permits the Court to evaluate the merits of this claim; to use the fee levels of later years as a base would be to gloss over any unanticipated changes that occurred, and assume, perhaps quite erroneously, that the fees paid for these later years constitute reasonable royalties under then-prevailing conditions.
There remains the question of what the actual base level figure for 1985 should be. ABC's 1985 fee was $8.96 million, while CBS's fee was $9.8 million. The total fees paid by ABC and CBS for the 1981-1985 period, however, were identical ($44.8 million). While CBS's fees were set prospectively by the 1981 agreement, ABC's fees were finalized retroactively in 1985, providing ABC the benefit of CBS's fee-setting experience. The difference in fee levels for 1985 reflects the independent allocation decisions reached by the networks in their respective agreements with ASCAP. CBS's fee schedule called for escalating payments from $8.0 million in 1981 to $9.8 million in 1985, while *161 ABC's schedule prescribed uniform payments of $8.96 million per year. Based on this information, we believe that the CBS fee of $9.8 million is the proper base level upon which to predicate our analysis for both networks. Regardless of the reasons that motivated the different payment schedules, the data from this period reveal that ABC's revenues steadily increased from 1981 to 1985,[63] while its music use experienced considerable year-to-year volatility, but eventually exhibited a slight increase from 1981 to 1985.[64] Because these factorsgross revenue and music useare critical in assessing the royalties for an ASCAP license, the flat payment schedule for ABC over the 1981-1985 period is not, in our estimation, a realistic reflection of the varying value of the blanket license to the network over that period. Rather, we believe it more consistent from the perspective of the rate-setting approach adopted here, and from the viewpoint of even-handed treatment among users, to take the CBS 1985 fee of $9.8 million as the appropriate base figure for both CBS and ABC.
2. Accounting For Changed Circumstances
Applicants' proposal seeks to adjust the base fees chosen to account for inflation, and for changes in the "use and value" of ASCAP music to ABC and CBS. The first modification is accomplished by indexing the base fees to the Consumer Price Index. The second modification involves two steps: 1) adjustments to account for year-to-year changes in applicants' use of music, and 2) adjustments to account for changes in the number of viewers reached by network programming. The issues raised by each of these alterations are addressed in turn.
With regard to applicants' use of the Consumer Price Index to account for inflation, our discussion so far has already indicated we consider that another factornamely changes in the networks' gross revenues compensates quite adequately for the diminution in the value of the dollar as well as a number of other key variables. As a measure of inflation, the gross revenue earned by a network offers a more industry-specific index than does CPI. Moreover, accounting for changes in gross revenue gives effect to other considerations, including competition from alternative entertainment media, changes in the relative economic fortunes of the networks, and variations in network viewership or audience share. In short, we think the movement in the revenues received by applicants provides a more accurate index of the overall changes in the economic conditions confronting the networks.
With regard to adjustments made to account for the annual changes in the audiences reached by network programming, we share ASCAP's misgivings concerning the necessity for such a modification. Applicants' reliance on "total household impressions"[65] overlooks the essential element: the true value of audience share to the networks, in terms of the advertising revenues generated. Revenues are not dependent solely upon the overall number of households reached but rather based on the advertisers' evaluations of various demographic and temporal criteria and the their decisions to allocate resources accordingly. Tr. 503-05. Moreover, the prices advertisers are willing to pay vary over time so that it is possible for a network's revenues to increase, though audience share may actually decline.[66] Thus network revenue offers a far more reliable yardstick with which to measure the overall value of programming to the network. From a broader perspective, the Court's preference *162 for relying on gross revenue in its calculus already accounts for variations in viewership. Applicants' expert admitted as much at trial, agreeing with the Court that because advertising rates bear a relationship to audience share, a formula that factors in changes in gross revenue automatically takes into consideration the audience share held by a network. Tr. at 740-41. Consequently, including variations in viewership as a factor in addition to changes in a network's gross revenue would constitute double counting.[67]
With regard to adjustments made to account for changes in the networks' use of music, ASCAP emphatically contests the validity of any approach that relates blanket license fees to changes in the amounts of music actually used. First, ASCAP notes that such an approach marks a substantial departure from previous experience. The fact that the parties have generally negotiated flat-fee arrangements, however, does not signify that they did not independently consider the amounts of both previous and expected music use in their fee deliberations, or that this Court should ignore applicants' claims concerning a significant decrease in their use of ASCAP music in arriving at a reasonable royalty.
Second, ASCAP emphasizes that actual music use only represents one advantage of the blanket license, and does not reflect the value of unlimited access to the substantial ASCAP repertory and blanket indemnification from infringement actions. Because the networks are bulk users, argues ASCAP, these latter advantages are of substantial value. As stated at the outset of this discussion, the Court readily acknowledges the significance of all the rights conveyed by the blanket license and the value of the efficiencies achieved thereby. However, because the Court believes it is valid to predicate our calculations upon the prior prices negotiated between the parties, it must accept that the perceived values of all advantages of the blanket license were reflected in the prices agreed upon. What remains to be determined is how these values have changed since the time the agreement in question was reached. In this context, we think it is appropriate to rely on the change in the amounts of music actually used as a measure of the change in the value to the network of all the rights conveyed by the blanket license. This decision is based on the belief that the "access" and "indemnification" components of the blanket licensecomprising, essentially, an option to use with impunity as much ASCAP music as desiredmust themselves be wholly dependent on the amount of music a licensee expects to use. Indeed, it is obvious that the option to use even an unlimited amount of ASCAP music has no value to an entity that uses no ASCAP music. It also seems clear that the value of the "option" feature of the blanket license is directly proportional to the amount of music the licensee uses. Thus, on a prospective fee-setting basis, one who expects to use large amounts of ASCAP music may be expected to accede to higher prices than those agreed to by one who expects to use lesser amounts. Thus, for the purposes of a rate-setting inquiry, we think it appropriate to assume that the value of the blanket license to a network will vary in direct proportion to the amounts of music used by that network, all other factors remaining equal.
The alternative posed by ASCAPto disregard changes in music use in calculating a reasonable usage feewould oblige us to ignore entirely the claim that evolving conditions have transformed the value to the networks of the rights contained in the blanket license. We find this alternative unacceptable. The blanket license is, after all, a music performance license; to ignore variations in the amounts of music actually performed, would be to engage in a fee calculation inconsonant with reality.
*163 In measuring the changes in the amounts of music used by the networks, applicants' analysis excluded music-use data for the so-called "other" category, comprising music used in commercials and network promotional and public service announcements. The grounds for this exclusion are rooted in the testimony of ASCAP's own economist, which revealed that the data within this category was plagued with problems of a sort that made it unreliable for the purposes of trends analysis. Tr. at 824-42. ASCAP attempts to portray the problems as primarily timing related, so that comparing averages, rather than year-to-year statistics eliminates the variances. The data, however, belie this explanation. The statistics reveal astronomical leaps in use credits exhibited in the "other" category between 1981 and 1991, particularly during the later years.[68]See DX Q. These surges are aberrational as compared with use credits for the remaining music categories. ASCAP offered no evidence to rationalize these marked discrepancies in use-credit data, or to explain increases in the order of magnitude presented by the statistics reported within the "other" category. The reluctance to rely on ASCAP's data as offered does not stem from concerns as to the credibility of the statistics contained in the later years, but rather from doubts as to the dependability of data for the earlier years; as noted by the Court during trial, the problem is not fear of overstatement in the later periods, but understatement in the earlier periods due to the possibilities of under-reporting and lags in obtaining network compliance. Tr. at 836-42. ASCAP remains unable to verify that the exceptional escalation in reported "other" use credits was the result of increased music use and not a product of changes in network reporting patterns and/or increased diligence in ASCAP's monitoring during the later years. Tr. 838-42. Nor does taking averages eliminate the problem. The weight of the "other" use credits in the later years defeats the desired smoothing effect of taking an average: comparing the average of ABC's "other" use credits over the 1981-1985 period to a similar average over the 1986-91 period shows an increase of nearly 350%. See JX Q. The incongruities in CBS "other" use credit data are less striking, but no less apparent. It is clear that inclusion of statistics from the "other" category will distort any analysis of trends in network music use. Consequently, we agree with applicants that use-credits data for the "other" category is better excluded from an approach that seeks to account for the changes in network music use.[69]
Applicants also advocate the exclusion of 1991 use credit data because the numbers reported are out of line with prior years. App.Br. at 63; Tr. at 721-22, 145-47. See DX Q. With regard to CBS, it appears appropriate to substitute the higher 1990 music use data in place of the numbers reported in 1991. ASCAP represents that CBS 1991 data are incompletea fact applicants do not disputeand also that the 1990 statistics are "closer to the norm;" Tr. at 147, 727-28. We find this to be sufficient ground to use the 1990 data for both 1990 and 1991. With regard to ABC, the excuse of incomplete data is not available to justify exclusion of the 1991 statistics. True, the 1991 numbers do appear to be significantly and inexplicably higher than those of prior years. See DX Q; Tr. 145-47, 721-22. However, testimony from witnesses presented by both parties reveals that music use data are occasionally marked by timing problems caused by lags in reporting, so that data from one year appears "bunched" with data in another year. Tr. 823-42, 721-22. Thus while ABC's use data show an aberrational leap in 1991, they also show an equally inexplicable dive in *164 1988.[70] JX Q. Excluding the peaks without excluding the troughs would be unfair. On average, however, the numbers as reported do indicate a balance and, indeed, this is an instance where taking an average over the 1986 to 1991 period would smooth out the year-to-year variances.[71]
In analyzing the networks' counter-proposal, the discussion so far has underscored the defects the Court finds in applicants' methodology. The Court agrees that a calculus that begins with a base fee deemed fair at the time entered, and adjusts that fee to account for the appropriate changes in circumstance, provides a suitable approach with which to arrive at a reasonable royalty. As previously stated, we believe that the fees paid in 1985, rather than 1980, offer the proper base from which to begin. With regard to the appropriate changes in circumstance for which to account, we agree with applicants as to the propriety of adjusting for changes in network music use, but disagree as to the propriety of indexing fees both to the Consumer Price Index and to variations in viewership when the changes in network revenue provides a straightforward way by which to account for both inflation and changes in audience share.
C. Calculating A Reasonable Royalty
As indicated, the approach adopted by the Court takes the fees paid by each network in 1985 and adjusts it to account for changes in applicants' gross revenues and use of ASCAP music. The change in gross revenue not only compensates for inflation but reflects changes in the overall value of programming to the network, for example due to changes in viewership. The change in applicants' use of ASCAP music provides a measure of the varying value of the music contained in the programming broadcast.
Not surprisingly, the parties differ in their views as to how this approach should be implemented. Applicants, for the most part, advocate that changes in gross revenue and music used should be based on a comparison of the actual data in the years being compared: to set fees for 1991, applicants would adjust the 1985 base fee for the percentage change in revenue and music use between 1985 and 1991.[72] ASCAP advocates the use of multi-year averages to compare the changes in revenue and music use: to set fees for 1991, ASCAP would adjust the 1985 base fee by the percentage changes in revenue and music use between the average over the 1981-1985 period and the average over the 1986-1991 period. ASCAP prefers the use of averages to smooth out fluctuations in the year-to-year data that may otherwise distort the analysis.
After studying the data,[73] we are convinced that the use of averages is necessary to provide meaningful comparison. The raw data do exhibit sizable year-to-year variances which could potentially skew the computation, particularly if the base year against which changes are measured is statistically aberrational. For example, CBS's 1985 gross revenue figure is larger than the figure from the previous year and the figures from each of the subsequent three years. DX PPP. Fluctuations are especially evident in music use data; as already discussed, the ABC 1988 and 1991 numbers are both outliers, and the 1991 CBS numbers are incomplete, requiring the substitution of 1990 CBS data for 1991. The reasons for the year-toyear *165 fluctuations in data were explained by the testimony of more than one witness. With regard to the use-credit statistics, as already noted, timing problems caused by lags in reporting result in noticeable anomalies. With respect to gross revenue, while no doubts are raised as to the accuracy of the networks' accounting, the revenue figures in any particular year may yet be aberrational due to the incidence of unusual programming.[74] For these reasons, we think it appropriate to use averages rather than statistics for individual years. Since the 1985 fee is used as the base rate, a comparison of the average revenue and average music use between the 1981-1985 period and the 1986-1991 period offers a suitable procedure to account for changing trends and thus carry forward the 1985 fees into the present period.
The approach outlined may be implemented as follows. We start with the 1985 fee and adjust for the percentage changes in average revenue and in average music use from the 1981-1985 period to the 1986-1991 period. For CBS, the analysis yields the following results. Average music-use credits for CBS during the 1986-1991 period were [redacted] of the average use credits for the 1981-1985 period.[75] Average gross revenues for CBS during the 1986-1991 period were [redacted] of the average gross revenues for the 1981-1985 period. Applying these percentages to the CBS base fee of $9.8 million yields a figure of $9.75 million. We believe this to be the reasonable royalty due ASCAP from CBS for 1991.
For ABC the calculations proceed as follows. Average music-use credits for ABC during the 1986-1991 period were [redacted] of the average use credits for the 1981-1985 period.[76] Average gross revenues for ABC during the 1986-1991 period were [redacted] of the average gross revenues for the 1981-1985 period. Applying these percentages to the ABC base fee of $9.8 million yields a figure of $10.47 million. Since ABC remains open with regard to final fees for a period dating back to 1986, we think this figure represents the reasonable fee due ASCAP from ABC for each of the years 1986 to 1991.
It is interesting (and reassuring) to note that the 1991 royalties for ABC and CBS computed by the formula approved above each represent [redacted] of their gross revenues for that year, so that as between these two respective companies, there can be no serious question of disparate treatment. We also note the substantial similarity between the rate yielded by the present analysis for ABC and CBS and the 0.44% rate paid by NBC in 1992.
With regard to the fees due ASCAP for 1992 and 1993, the Court is faced with two alternatives. We could leave the parties free to calculate their respective fees, based on the formula prescribed herein, once music use and revenue data become available for these years. This would keep open the final fee determination for 1992 and 1993 until well into 1994. Alternatively, the Court could establish the prices determined above to be the final fees for 1992 and 1993. This bears the obvious flaw of assessing a fee derived from an analysis of changing trends in revenue and music use over a period where the data for the pertinent time span are currently unavailable.
Despite the evident problems with the latter approach, we believe it best to set now the fees for 1992 and 1993 at the dollar levels arrived at under the above analysis. First, this has the manifest advantage of achieving finality, rather than leaving the determination of final fees open until well into the next year. Second, establishing the fees presently obviates the need for further scrutiny of statistical data; we have some apprehension about adopting a fee-setting formula whose *166 implementation is dependent on data the parties produce in the future. This would risk leaving the partiesand perhaps the Courtopen to addressing disputes as to the reliability of particular data for the purposes of trends analysis. The degree of scrutiny given to statistical data in the present proceeding the resolution of the difficulties posed by the use-credits data in the "other" category, the deficiencies in the CBS 1991 use-credit statistics, and the deviations in ABC data for 1988 and 1991underscores the concern that the parties will perforce engage in similar polemics over the reporting of future data. Third, we have some confidence that the prices derived from the present analysis provide a fair approximation of the royalties reasonably due over the next two years. The trends analyses undertaken spanned a decade of datafrom 1981 to 1991to assess the effect of changing conditions on the networks, and to appraise variations in the value of the rights at issue. Our aim was not to pin-point prices precisely, accounting for each variant on a year-to-year basis, but rather to arrive at a reasonable approximation of the fair royalties due after giving consideration to the broad changes purported to have made the fees previously negotiated outdated measures of fair value. We believe that accounting for the effect of relevant changes over the last six years on the fees negotiated at the start of that period provides a good indication of the rates reasonable for the immediate future. For these reasons we find that the figures derived above$10.47 million for ABC and $9.75 million for CBSare also appropriate levels for the fees due ASCAP in 1992 and 1993.
D. Interest
ASCAP's proposal sought interest from applicants in the amount its recommended fees exceeded applicants' previous interim fee payments. To the extent its proposal endeavored to replicate the NBC agreement, ASCAP contended that interest be computed from April 30, 1992, "the date on which NBC paid the fees it agreed to pay in excess of its interim payments." ASCAP Contentions ¶ 3.
We believe a provision for interest is appropriate. The rationale for assessing interest from the date of the 1992 NBC agreement is not applicable, however, since the Court declined to adopt the NBC rates as reasonable for ABC and CBS. Rather, it appears more logical to assess interest from the period covered by each interim payment. Interest should be computed at a rate of 6% per annum on a simple interest basis.
With respect to ABC, the parties inform the Court that they have agreed on the computation of interest due ASCAP, in the manner and at the rate provided above, for the period beginning January 1, 1986 and ending June 30, 1993. The agreed upon computations are as follows: the additional fees due (in excess of ABC's interim payments) total $5,025,000, and the interest due on these additional amounts totals $1,143,187. Thus ABC owes ASCAP an aggregate additional amount of $6,168,187 in fees and interest to cover the period January 1, 1986 to June 30, 1993. In addition, ABC will owe ASCAP the balance of the $10.47 million per annum fee prescribed by this Opinion and Order for the period July 1, 1993 to December 31, 1993.
With respect to CBS, since the network's interim payments exceed the amount of the final fees assessed herein, we believe it appropriate that ASCAP pay CBS interest in the manner and at the rate provided above. The parties have also agreed on the computation of interest due CBS from ASCAP for the period beginning January 1, 1991 and ending June 30, 1993. The agreed upon computations are as follows: the excess payments made by CBS total $125,000 and the interest on these excess amounts totals $9,688. Thus ASCAP owes CBS an aggregate amount of $134,688 for the period January 1, 1991 to June 30, 1993. CBS will owe ASCAP the balance of the $9.75 million per annum fee prescribed by this Opinion and Order for the period July 1, 1993 to December 31, 1993.
CONCLUSION
For the foregoing reasons, the royalties due ASCAP are finalized as follows. ABC's blanket license fee for the period January 1, 1986 to December 31, 1993 shall be $10.47 million per annum. ABC shall pay ASCAP interest on the amount by which this final fee *167 exceeds the interim payments made by the network on a 6% per annum simple interest basis. This will result in a total payment (net of the interim payments made and interest due) of $6,168,187 from ABC to ASCAP for the period ending June 30, 1993. ABC will owe ASCAP the balance of the fee provided for herein for the period July 1, 1993 to December 31, 1993.
CBS's blanket license fee for the period January 1, 1991 to December 31, 1993 shall be $9.75 million per annum. ASCAP shall pay CBS interest on the amount by which the interim payments made by the network exceed the final fee on a 6% per annum simple interest basis. This will result in a total payment of $134,688 from ASCAP to CBS for the period ending June 30, 1993. CBS will owe ASCAP the balance of the fee provided for herein for the period July 1, 1993 to December 31, 1993.
ASCAP should submit to the Court a proposed Judgment Order for settlement upon ten days notice to applicants.
SO ORDERED
NOTES
[1] Applicants initially also sought a separate fee determination for a per-program license, permitting the non-exclusive right to perform, in unlimited fashion, any music contained in the ASCAP repertory on the particular program for which the license is issued. Prior to trial, however, applicants withdrew their application for determination of per-program license fees, without prejudice to their right to secure such licenses on reasonable terms for succeeding license periods.
[2] The designation "SF" refers to Stipulated Facts. Hereinafter, "AX" will be used to refer to Applicants' exhibits, "DX" for ASCAP exhibits, "JX" for joint exhibits, and "Tr." for the trial transcript. Applicants' brief will be referred to as "App. Br.", and their reply brief as "App. Rep. Br." ASCAP's brief will be referred to as "ASCAP Br.", and its reply brief as "ASCAP Rep. Br."
[3] For a brief history of the evolution of the Consent Decree see, United States v. ASCAP, 782 F. Supp. 778, 782-85 (S.D.N.Y.1991).
[4] The Consent Decree, Section VII(B), also requires ASCAP to make a per-program license available to users.
[5] The affiliates earn revenues primarily through the sale of commercial announcements in and around locally-originated programs, syndicated programs and network programs. They also receive payments from the networks as compensation for airing network programming. SF ¶ 9.
[6] For programs produced by the networks themselves, music selection is made by the individual networks and may include pre-existing compositions, works obtained from music libraries or production companies, or music composed specifically for the program. SF ¶ 15.
[7] For the period 1970-1980, CBS had heretofore paid interim fees in the amount $4.32 million per year. JX 21.
[8] The 1981 CBS agreement prescribed fees for each of the years 1970-1980. In 1985, however, CBS received a most-favored-nations rebate of $3.64 million, attributable to the 1977-1980 period. This amount was not allocated to specific years, leaving the total final fees paid for the 1977-1980 period at $18.84 million (an average of $4.71 million per year). See SF 21.
[9] The CBS 1981-1985 fees ran as follows: $8.0 million for 1981; $8.5 million for 1982; $9.0 million for 1983; $9.5 million for 1984; $9.8 million for 1985. JX 21.
[10] It was this agreement that triggered the most-favored-nations rebate of $3.64 million to CBS, thus resulting in equal fees for CBS and ABC for the 1977-1980 period.
[11] The CBS 1986-1990 fees ran as follows: $9.8 million for 1986; $10.2 million for 1987; $10.7 million for 1988; $11.0 million for 1989; $11.3 million for 1990. JX 22.
[12] Until this agreement, NBC had not paid final license fees to ASCAP since the third quarter of 1976. The interim fees NBC had paid ASCAP between 1976-1990 totalled roughly $15 million less than the sums paid as final fees by CBS for that period. Tr. at 126, 257.
[13] Gross network revenue was defined as the total amount payable to NBC for the broadcast of commercial announcements, net of agency commissions. JX 32.
[14] NBC broadcast the Olympic games in 1992, earning extraordinary revenues for that year, but also facing expenses from the games that potentially exceeded the revenues derived. Consequently, in order to avoid saddling NBC with ASCAP fees calculated from an excessively high gross revenue base, it was agreed that 1992 revenues would be ignored entirely, and instead an average of 1991 and 1993 revenues would be substituted as the appropriate revenue base from which to derive 1992 fees. Tr. 99-102.
[15] The trial court's opinion in Showtime is published in the Federal Reporter as an appendix to the Second Circuit's opinion. ASCAP v. Showtime, 912 F.2d at 572-98.
[16] See BMI v. CBS, 441 U.S. at 19, n. 32, 99 S.Ct. at 1562, n. 32: "It takes an organization of rather large size to monitor most or all uses and to deal with users on behalf of the composers. Moreover, it is inefficient to have too many such organizations duplicating each other's monitoring of use." (citing Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 162, 95 S. Ct. 2040, 2047, 45 L. Ed. 2d 84 (1975)).
[17] The striking feature of the blanket license is that it lowers ASCAP's monitoring cost and therefore may be cheaper to offer than an alternative performing license that grants the user something less than blanket immunity.
[18] Consistent with the provisions of the 1992 NBC agreement, ASCAP's proposal calculates 1992 fees for each of the networks as a percentage of the average network gross revenue for 1991 and 1993. Of course, the purported rationale behind that provision of the NBC contract, the surge in NBC revenues and costs in 1992 due to the Olympic Games, does not apply to ABC and CBS. See note 14, supra.
[19] Consistent with the NBC agreement, gross revenue is taken to mean broadcast revenue, net of agency commissions.
[20] SF ¶ 3, 4, 6.
[21] SF ¶ 8-11.
[22] JX 4, 5; AX 7.
[23] Using the consumer price index as a measure of inflation, with the average of CPI for 1982 through 1984 as the base.
[24] CBS's fixed fees, when expressed as a percentage of revenue, yielded a lower rate in each of the years 1990 to 1981 than the 0.44% rate presently proposed, with the exception of one year, 1983, where the fee amounted to [redacted] of gross revenue. DX D.
[25] The Court calculated, from ASCAP exhibit M, the average of the proposed fees for 1986 through 1991, as expressed in real dollars, and compared it to the average of the fees, as expressed in real dollars, paid during the years 1981 through 1985. ASCAP preferred a comparison that used 1981 as the base year to show that the proposed fee for each of the years 1986 through 1991 is lower than the 1981 fee in real dollar terms. However, the same does not hold true when comparing the fees ASCAP proposes to the fees paid in the years 1983 through 1985. See DX M. The difference may be explained by the fact that ABC's total fees for 1981 through 1985 were apportioned evenly across each of those years, rather than on an escalating scale, and thus the 1981 fees are bound to appear higher in real dollar terms. In short, taking an average over the two periods provides a more instructive comparison.
[26] ASCAP points out ABC's revenue figures through 1984 include "other" revenuerevenue not derived from the sale of broadcast time while the figures for 1985 to 1991 do not. If the "other" revenue were excluded from the pre-1985 figures for consistent comparison, the revenue figures would be lower and thus the percentage of revenue rate yielded by the fixed fees for the 1981 to 1985 period would be higher.
[27] This range reflects two internal computations performed at NBC. One was based on the rate used by the Court in Showtimeprime plus three percentresulting in interest in the order of $37 to $45 million, depending on the compounding method employed. The other was based on the flat prime rate, resulting in interest in the order of $25 to $29 million. Tr. at 257. That a base amount of $15 million could generate interest levels in the magnitude of $45 million seems, at a glance, to be the product of fairly generous interest rates applied on a compound rather than simple interest basis. Were the matter to be litigated, the prospects of interest exposure of these magnitudes may have affected NBC's view of its total liability; however, from the perspective of negotiating the 1992 agreement, the claim that NBC considered itself offsetting a $45 million dollar exposure must be viewed with skepticism when the facts reveal that ASCAP's significantly lower estimates were communicated to NBC. Tr. at 255, 267.
[28] Mr. Cotton's testimony reveals that the lowest amount ASCAP was willing to accept as interest was $9 million. Tr. at 267.
[29] The percentage-of-revenue approach represents a departure from the practice of the prior 20 years. Tr. at 216. During fee negotiations, NBC appears to have expressed its willingness to discuss a percentage of revenue format, as "an additional carrot to try to get settlement discussions going." Tr. at 271-72. NBC maintains it deemed the revenue-based approach undesirable and inappropriate, but offered to acquiesce in the hopes of reaching a resolution acceptable to the network in terms of its exposure from the open period. Tr. 271-75.
[30] ASCAP explains that NBC made it clear that it would seek to pay less than CBS if the matter were litigated. ASCAP Br. at 14; AX 6.
[31] That ASCAP's interest claim "rested almost entirely" on the Showtime decision does not alter the reality that this Opinion was the only litigated final fee decision to date; NBC did not have the benefit of a judicial precedent on the issue to the contrary. ASCAP apparently requested an interest award in that proceeding, as it does in the present proceeding.
[32] Specifically, the NBC agreement prescribed fees in amount of approximately $2.2 million more than what CBS paid for the period 1976 to 1990, a 1991 fee that matched CBS's 1991 payment, and a percentage of revenue formula for 1991 and 1992. SF ¶ 21.
[33] A premium of $4 million a year to ASCAP for 1991 and 1992, would result in a total premium of $16 million in music licensing expense, if it is assumed that an equivalent payment to BMI also constitutes a $4 million premium to that society. It hardly appears a bargain for NBC to agree to these sums, when the estimate that ASCAP itself brought to the table to initiate negotiations was a demand for $15 to $17 million in interest, and when ASCAP indicated it may accept $9 million lump sum to settle the interest issue. Of course, if NBC realistically believed it faced exposure in the order of $37 to $45 million were the matter litigated, then the numbers proffered by applicants in their post-trial submissions may appear more plausible.
[34] Questions as to the impact of the 1992 agreement on NBC's fees to BMI arose during cross-examination of Mr. Cotton. Tr. at 287-302. The testimony does not offer a full picture as to how NBC viewed its BMI exposure relative to the considerable weight it placed on avoiding an ASCAP agreement authorizing a lump sum payment to ASCAP designated as interest.
[35] ASCAP submits that NBC willingly pursued the percentage-of-revenue approach, while the network maintains it consistently preferred the flat fee arrangements of previous years, but offered to relent to resolve the interest question. Irrespective of the degree to which NBC may have been amenable to the revenue based method, it is apparent that ASCAP favored the formula and endorsed its application for NBC, as it does here for ABC and CBS.
[36] Applicants attempt to explain away this glaring fact by attributing the difference in pre- and post-1981 fees to the allocation or distribution constraints facing ASCAP. Tr. at 712-14. However, applicants' expert failed to explain to any degree of satisfaction why an agreement that spans an extended period and spawns artificially inflated fees would then see the premiums produced allocated to one particular interval of the entire period, at the expense of another interval. See Tr. 712-14.
[37] Notably, Mr. Vradenburg never testified that he had Mr. Poltrack's projections in mind, much less relied on them in arriving at the fee levels to which he was willing to accede for music performance licensing. Nor did he suggest that favorable forecasts fostered a generous disposition at CBS towards the operating costs the network was willing to bear into 1990.
[38] Both Mr. Poltrack and Mr. Vradenburg testified that they were aware that other predictions were considerably more pessimistic those contained in The Road to 1990. Tr. 436, 35-53.
[39] One of the advantages of the blanket license is that it obviates the need for individual negotiations and thus eliminates the difficulties of dealing with hold-outs.
[40] The reference is to an ASCAP distribution practice known as the "spot adjustment factor." SF 17; Tr. 155-57. Since 1967, a percentage of the license fees collected by ASCAP from local television stations has been allocated, for distribution purposes, to ASCAP members whose works have been performed by the networks. This percentage represents an estimation by ASCAP's independent survey experts of the percentage of local station license fees derived from the revenue generated by commercials in or adjacent to network programs. The practice is permitted by Court Order, see JX 2 at 2, and is not challenged here. Nor is it really clear what effect the practice would have on the cost of source and direct licensing were specific terms and prices to be precisely negotiated (Mr. Vradenburg's testimony indicates that CBS's negotiations were only over options to obtain source and direct licenses, with prices to be determined later, when CBS chose to exercise its options).
[41] ASCAP goes to great lengths to reveal the "curiously incomplete" nature of the evidence presented. Applicants failed to call as a witness the individual who primarily conducted the source and direct licensing efforts. Instead, the testimony offered, and the documents submitted, largely provide second-hand accounts of the results reached. Missing from these accounts is an explication of the types of resistance encountered or of the nature of the concerns expressed by the publishers and program packagers. Moreover, much of the correspondence submitted as exhibits post-dates the 1985 CBS agreement and therefore is not pertinent as to the impact of these efforts on the terms of the 1985 contract.
[42] Even Mr. Vradenburg's testimony does not manifest that the fees agreed upon were unreasonable:
"We were looking for a two-to-three-year license so that we could continue our efforts, and ASCAP quoted us a blanket license fee which at least in our estimation was unwarranted.... It had significant jumps in the fees. We went back to ASCAP and sought lower fees. They would agree to lower fees only if we extended the license five years. So we ended up agreeing to a five year license from '86 to '90.
Tr. at 425.
[43] The blanket license agreements between ASCAP and the networks do not contain carve-out features under which the network would receive credit against its blanket license fees for the compositions it was able to access through source or direct licensing.
[44] Despite the assault applicants make on all agreements entered into with ASCAP, the fee proposal applicants advance also admits the necessity of finding a prior agreement from which to commence analysis.
[45] See App.Br. at 16, n. 10: "A fairly priced per-program license would facilitate resort to source and direct licensing."
[46] Cf. Showtime, 912 F.2d at 570 (opportunity to resort to rate court would have little meaning if that court were "obliged to set a `reasonable' fee solely or even primarily on the basis of fees ASCAP had successfully obtained from other users"). (emphasis added).
The Second Circuit also noted that the Disney rate was rejected as a benchmark for fees due from Showtime "because this rate was agreed to at an early stage of the Disney Channel's existence and thus reflected considerations not pertinent to arms-length bargaining between ASCAP and an established cable service like SMC." Showtime, 912 F.2d at 567. No such comparison can be made in the instant case; as ASCAP points out, ABC and CBS have been giants in the television industry for nearly half a century.
[47] While Mr. Vradenburg testified that CBS viewed the Court to be in an "impossible position," in rate-setting in having to either ratify prior agreements or undertake a "rather difficult" analysis, neither he nor other network executives testified to any previous aversion on the networks' part toward this Court based on fears of bias. Tr. at 424.
[48] The issue was ultimately litigated and decided in the cable suppliers' favor. See United States v. ASCAP (Application of Turner Broadcasting System, Inc., 782 F. Supp. 778 (S.D.N.Y.1991), aff'd, 956 F.2d 21 (2d Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 1950, 118 L. Ed. 2d 554 (1992).
[49] CBS's fee to BMI in 1981 was 75% of the fee paid to ASCAP; the 1985 BMI fee was 85% of the ASCAP fee. For 1992, CBS agreed to pay BMI 100% of the final fee the network pays ASCAP. JX 84, 87; SF ¶ 21.
[50] See JX Q. The "other" category comprises music in commercial announcements, promotional announcements and public service announcements. Tr. 138.
[51] ASCAP also maintains that gauging the fluctuations in the amount of music used by a network does not provide a full measure of the value of a blanket license; beyond the music actually used, the license offers the additional rights of unlimited access to the entire ASCAP repertory and blanket indemnification against infringement actions. The degree to which reliance on changes in the amounts of music used by the networks provides an adequate measure of the full value of a blanket license is also a matter to be addressed later in this opinion. The fact that there may be other valuable components to the blanket license does not diminish the reality that actual music use remains an indispensable factor in evaluating the overall worth of the license to the network.
[52] Applicants note that while music may enhance the dramatic presentation of any program, it can hardly be said to be the essential element behind the success of most programs and thus the driving force behind a network's revenues. See Tr. at 580-592; see also, Tr. at 238, 275-6, 540-48, 560-62. The networks' decisions as to the types of programming likely to attract viewers and, in turn, to attract advertising revenues are generally unaffected by the musical content of the programs. Tr. at 588-90. Moreover the testimony of network finance executives suggests that the sizable sources of revenue in the recent past have come from types of programming that depend little on music, such as sports, news and reality-based programming. Tr. at 540-55, 612-31, 274-76. Indeed, the very fact that ASCAP agreed to structure NBC's 1992 fees based on an average of 1991 and 1993 revenuesin recognition of the fact that the surge in revenues due to the broadcast of the 1992 Olympic Games, which relied little on ASCAP music and which turned little profit for the network, would distort the fees due ASCAPserves as an acknowledgement of this reality. Tr. at 274-76.
[53] Such arrangements bear a marked distinction, applicants argue, from the regime instituted under an ASCAP blanket license. In other intellectual property cases, creators receive payment based on the success of the creation to which they have personally contributed. Where a patent licensee generates revenues from the use of the patented product or process, it may be appropriate to index the fees owed to the creator to the revenues generated by the specific use of that product. Similarly, where an author receives royalties based on sales, such royalties reflect a percentage of the publisher's gross from the sale of that author's book, not a percentage share of the publisher's total receipts from all publishing endeavors. App.Rep.Br. at 29, n. 26. The same is true for scriptwriters and directors; residuals are paid as a percentage of the revenues resulting from the exhibition of the shows on which they worked, not as a share of the revenues collected in connection with the distribution of all other films. In each of these cases, a percentage-of-revenue formula occasions compensation based on the success of the creations to which the licensor has directly contributed. In contrast, the percentage-of-revenue formula for the blanket license gives ASCAP a share of the network's revenue from all programs, including those programs that contain no ASCAP music. Because the formula takes no account of music use, it would provide a windfall for ASCAP in situations where large revenues are generated from programs that use no music. Cf. Consent Decree, Sec. VII(A) (enjoining ASCAP from demanding fee based on a percentage of income from programs that contain no ASCAP music).
[54] ASCAP's allusion to its experience with radio stations, which have historically acquiesced to revenue-based agreements, also seems inapposite. Tr. at 40-42. As applicants note, the radio broadcasters' traditionally extensive dependence on feature music raises considerations as to the propriety of revenue-based licenses not applicable to the television networks' circumstance. As to ASCAP's reference to the experience of local stations, (Tr. at 42), we are aware that it can hardly be claimed to offer an enthusiastic endorsement of the revenue-based approach. See, United States v. ASCAP; Application of Buffalo Broadcasting Co., Inc., et al., Slip. Op. at 18-20, (S.D.N.Y. February, 17, 1987) (interim fee opinion).
[55] It appears to the Court that fee disputes and the resultant open periods occur when the networks refuse to assent to ASCAP's proposed fee levels; irrespective of whether those levels were generated by a percentage of revenue formula or by a flat fee arrangement, it seems the networks' resistance would remain equally resolved. Indeed the very existence of this litigation and the networks' emphatic opposition to a revenue-based formula underscores this point. And ASCAP's own economist, Dr. Boyle, allowed that the total dollars to be paid ASCAP were ultimately the crucial consideration, regardless of the method employed in generating those fee levels. Tr. at 124.
[56] At trial, applicants presented considerable testimony concerning the proliferation of competitive forces facing the networks; the accessibility of VCR's, the growth of independent stations, the emergence of the Fox Broadcasting Company, and the spread of cable television present powerful challenges to the once uncontested primacy of network television. Tr. 449-61, 480-88 (testimony of Alan Wurtzel, Senior Vice-President for ABC). To the extent these alternative sources of home entertainment diminish the perceived ability of the networks to reach households, and thus reduce their attractiveness from the perspective of advertisers, the networks' gross revenues provide a yardstick by which to measure the impact of these forces on the financial performance of the network.
[57] ASCAP maintains that the networks' prospects are not as dire as applicants claim for purposes of this proceeding. ASCAP Br. at 24-26. The networks are still the most efficient and effective way for advertisers to reach households. Tr. at 500. With regard to applicants' net income positions, ASCAP points out that ABC has posted healthy profits since 1989, while CBS's recent losses were due in large part to over-spending on sports licensing, including write-downs for future years. Tr. at 549-53.
[58] We are aware that applicants raise the same objection to the use of gross revenuethat it bears little relation to the networks' use of ASCAP music. Indeed the concerns expressed formed the basis for our rejection of a formula based solely on revenues. See note 52 above and accompanying text. An approach that accounts for fluctuations in music use should address the concerns applicants raised. The observation made here regarding profits arises with respect to different considerations as the discussion indicates.
[59] In fact, taking into account all other costs of operation, which the reliance on net profits would entail, may actually cut against applicants' interests. If net profits have declined due to substantial increases in overall network expense, this provides greater support for ASCAP's contention that its fees should not be singled out for reduction, than it does for applicants' contention that ASCAP should be penalized for the networks' deteriorating bottom-line performance.
[60] ASCAP also notes that applicants never advanced this position previously, when their profits were "vaulting ahead." ASCAP Rep.Br. at 4.
[61] Applicants speak in terms of finding a prior agreement which "could be said most closely to approximate competitive market fee levels." App.Br. at 59. As our analysis at outset of this discussion indicates, we prefer to eschew such analysis because we believe it involves such nebulous concepts as to be of little assistance in the Court's assigned task.
[62] The Supreme Court denied certiorari in the CBS v. ASCAP on March 2, 1981, see 450 U.S. 970, 101 S. Ct. 1491, 67 L. Ed. 2d 621 (1981), and denied CBS's petition for rehearing on April 6, 1981, see 450 U.S. 1050, 101 S. Ct. 1772, 68 L. Ed. 2d 247 (1981). The 1981 CBS agreement was joined with ASCAP in June, 1981. JX 21.
[63] ABC's 1981 gross revenue (broadcast revenue net of agency commissions) in 1981 was [redacted]; its gross revenue in 1985 was [redacted]. DX OOO, AX 151.
[64] ABC's total use credits (excluding use credits in the disputed "other" category) for 1981 were 7,501; its use credits for 1985 were 7,926.
[65] Total household impressions reflect, on an annual basis, the average number of U.S. television households viewing network television per minute, across a total network broadcast day, multiplied by the number of minutes of network programming transmitted that year. The viewership data on which applicants rely was compiled by A.C. Nielson Co. App.Br. at 64, n. 36; Tr. at 717-24.
[66] ASCAP notes that despite reaching fewer viewers, the networks have been able to maintain, or increase their advertising revenues.
[67] ASCAP also points to a technical problem posed by any analysis that seeks to rely on changes in network audience share. Evidently, A.C. Nielson Co. altered its measurement technique in 1987, raising questions as to the comparability of pre- and post-1987 Nielson data. Tr. at 478, 461-475. Whether the drop in network audience share is due, in part, to the adoption of new measurement mechanisms need not be evaluated, given the methodological reasons why the Court chooses to avoid audience share statistics entirely.
[68] For example, comparing ABC's 1991 "other" use credits to those of 1985 shows an increase of nearly 900%. Taking an average for ABC for 1990 and 1991 and comparing it to the average of the 1981 to 1985 period shows an increase of over 700%. JX Q.
[69] ASCAP argues that its music use data bear strong indicia of reliability: the vigilance of ASCAP members, whose income depends on ASCAP's music use credits data provides a "built-in check" of the statistics reported. ASCAP Br. at 30; Tr. at 841-42. However, as the Court observed during trial, ASCAP's members cannot be presumed to be eternally vigilant; moreover, they surely rely for the most part on ASCAP's diligent watchfulness to protect their interests. Tr. at 842.
[70] The numbers reported in 1991 are 25% higher than the 1986-1991 average; the numbers reported in 1988 are 22% lower than this same 1986-1991 average. See DX Q.
[71] The situation presented by the 1991 music use data must be distinguished from the dilemma posed by the data in the "other" category. In the latter case, there appeared a systematic bias towards larger use credits reported in later years, and the discrepancies exhibited were of a striking order of magnitude. The same cannot be said of the 1991 music use data.
[72] Applicants advocate the use of averages with respect to the ABC music use data between 1986 to 1991, based on the fact that the numbers reported for ABC in 1991 are aberrationally higher than those of previous years.
[73] The data for music use are taken from ASCAP's exhibit Q. The data for network gross revenue are taken from Applicants' exhibit 129 (CBS) and Applicants' exhibit 151 (ABC). Gross network revenue is assumed to mean gross broadcast revenue net of agency commissions, as defined in the 1992 NBC agreement. The revenue data are also contained in ASCAP exhibit PPP (CBS) and ASCAP exhibit OOO (ABC).
[74] For example, NBC experienced extraordinary revenues in 1992 due to the broadcast of the Olympic games. Similarly, ABC experienced a year in which it broadcast football playoff games from two different seasons as well as the Super Bowl, sizably increasing its revenues over that of previous years. Tr. at 615-16.
[75] The calculations were made excluding data from the "other" category and using 1990 use credits data for both 1990 and 1991. See DX Q.
[76] As in the case of CBS, use credits from the "other" category were excluded. Unlike CBS, however, ABC's 1991 use credit numbers were taken as represented. See DX Q. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1439000/ | 635 F. Supp. 534 (1986)
ASSOCIATION OF RETAIL TRAVEL AGENTS, LTD. (ARTA), Plaintiff, Counterdefendant,
v.
AIR TRANSPORT ASSOCIATION OF AMERICA (ATA), et al., Defendant, Counterplaintiff.
Civ. A. No. 84-2942.
United States District Court, District of Columbia.
April 9, 1986.
*535 Barry Roberts, Roberts & Singer, Washington, D.C., for plaintiff.
David B. Lytle, Harry T. Jones, Jr., Hogan & Hartson, Washington, D.C., for defendant.
MEMORANDUM
OBERDORFER, District Judge.
The Association of Retail Travel Agents, Ltd. (ARTA) brings this action against the Air Transport Association of America (ATA), its member carriers, and members of the ATA board of directors. The focus of the litigation is the Airlines Reporting Corporation (ARC) program, which is run by ATA to coordinate the dealings between the airline members and approved travel agencies. In the primary action, ARTA alleges that aspects of the ARC program are anticompetitive and in violation of the antitrust laws. ATA has filed a counterclaim against ARTA, alleging that ARTA's activities relating to the formation of the ARC program violated the antitrust laws. After the Court indicated that it planned to dismiss the counterclaim, ATA filed an amended counterclaim. The action is now before the Court on ARTA's motion for judgment on the pleadings as to the amended counterclaim.
ATA's counterclaim contains three counts. Count I is brought under section 1 of the Sherman Act, 15 U.S.C. § 1, and alleges restraint of trade. Counts II and III are brought under section 2 of the Sherman Act, 15 U.S.C. § 2, and allege *536 attempt to monopolize and conspiracy to monopolize, respectively.
The counterclaim identifies three categories of allegedly illegal activity engaged in by ARTA. First, the counterclaim alleges that after the unveiling of ATA's working draft for the ARC program in June 1984, ARTA, in agreement with some of its members and others "not yet known to Counterplaintiff," entered into "a deliberate campaign to delay, inhibit, interfere with, and otherwise prevent the development, establishment, or operation of the ARC travel agency program." Amended Counterclaim at ¶ 12 (filed May 20, 1985). ARTA's actions allegedly included "repeated demands for slowdowns in the proceedings; demands to be present at all meetings, followed by abrupt walk-outs from meetings; demands for consideration of ill-conceived notions solely to interfere with the Task Force's orderly consideration of the issues; and the inducement of others to join in its disruptive tactics." Id. at ¶ 13. ATA also alleges that ARTA developed an alternative plan to ARC "and secretly solicited certain air carriers (and possibly others not yet known to Counterplaintiff ATA) to join in its plan as a device to undermine the ARC program proposal." Id. at ¶ 14. ARTA's program allegedly "contained patently anticompetitive provisions," id., as opposed to the "procompetitive" ARC program. Id. at ¶ 7. As the second allegedly illegal activity, ATA states that ARTA President Ronald A. Santana "sought to organize a boycott of the ARC program by travel agents through repeated public statements inviting travel agencies jointly to refuse to participate in the program." Id. at ¶ 15. The third category of activity alleged is "the initiation and maintenance of a pattern of baseless and sham judicial and administrative proceedings." Id. at ¶ 16.
For the first two categories of the alleged illegal activity, ATA's only alleged injury is "ATA's additional costs and expenses in the conduct of its trade association activities, including the development and establishment of the ARC program." Id. at ¶ 20. For the third category of activity, ATA seeks the attorneys fees and costs of defending the allegedly baseless actions.
ATA's claim regarding the third category of activity was dismissed on May 24, 1985. 1985-1 Trade Cas. (CCH) ¶ 66,632 (D.D.C. 1985). This Order stayed discovery as to ATA's other two categories of activities claimed to violate the antitrust laws. The Memorandum and Order addressed the effect of the counterclaim on ARTA's "First Amendment right to petition for redress of grievances." Id. at 66,124. Consequently, the Court found "no occasion" to address or dismiss the other aspects of ATA's counterclaim which at the time of the Court's ruling had not been fully briefed or argued. Id. Because ARTA's motion for judgment on the pleadings is now ripe for disposition, the occasion to address these other two allegations has now arisen.
II.
A.
Section 1 of the Sherman Act requires a party to show concerted activity in restraint of trade. 15 U.S.C. § 1. To establish concerted activity, counterplaintiff here merely alleges that ATA conspired with its members. It provides no factual basis for this allegation. Although a trade association can conspire with its members, National Soc. of Professional Engineers v. United States, 435 U.S. 679, 98 S. Ct. 1355, 55 L. Ed. 2d 637 (1978); Mardirosian v. American Institute of Architects, 474 F. Supp. 628, 636 n. 16 (D.D.C.1979), mere membership in a trade association does not give rise to an inference of conspiracy. Hanson v. Shell Oil Co., 541 F.2d 1352, 1359 (9th Cir.1976), cert. denied, 429 U.S. 1074, 97 S. Ct. 813, 50 L. Ed. 2d 792 (1977); James Julian, Inc. v. Raytheon Co., 557 F. Supp. 1058, 1064 (D.Del.1983). Proof of knowing, intentional participation in the illegal activities of the association is required. James Julian, Inc., supra, 557 F.Supp. at 1065 (citing Zenith Radio Corp. v. Matsushita Electric Industrial Co., 513 F. Supp. 1100, 1149 (E.D.Pa.1981)). Counterplaintiff has alleged no facts to support *537 its allegation that ARTA enjoyed the knowing participation of any of its members in illegal activity in restaint of trade. Counterplaintiff has thus failed sufficiently to allege concerted activity in violation of section 1 of the Sherman Act.
Counterplaintiff also fails to allege activities "in restraint of trade" as required under section 1 of the Sherman Act. ATA is an association of air carriers. ARTA is an association of travel agents. ARC is an "industry travel agency program for the retail sale in the United States of passenger air transportation" which is run by ATA. Amended Counterclaim at ¶ 7. All of ATA's allegations relate to activities of ARTA during the development of the ARC program. They thus relate to vertical negotiations between producers and distributors of air travel services, through their agents, as to the structure of the distribution network. In fact, according to the allegation of the counterclaim, counterdefendant sought competitive input into the formation of the air travel sale distribution network. Counterplaintiff's injuries, e.g., increased cost in the development of the program, appear to have resulted from its failure to suppress such competitive input. Similarly, ARTA's alternate plan, as alleged, was merely a proposal that ATA and its individual members were free to accept or reject. A producer cannot sue under the antitrust laws simply because a distributor, or a group of distributors, do not accept without question all of its terms and conditions. The general rule is that an entity is allowed, absent monopolistic purpose, to deal with any chosen customer or supplier. United States v. Colgate & Co., 250 U.S. 300, 307, 39 S. Ct. 465, 468, 63 L. Ed. 992 (1919). Mere refusal to deal, without an agreement or conspiracy, is not a violation of the antitrust laws. Dahl, Inc. v. Roy Cooper Co., 448 F.2d 17, 19 (9th Cir.1971); Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1220 (9th Cir.1977).
The antitrust laws "were enacted for `the protection of competition not competitors.'" Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S. Ct. 690, 697, 50 L. Ed. 2d 701 (1977) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S. Ct. 1502, 1521, 8 L. Ed. 2d 510 (1962)) (emphasis in original). To distinguish its claim from a mere business tort, counterplaintiff must allege significant anticompetitive effects resulting from counterdefendant's actions. Walker v. U-Haul Co. of Mississippi, 734 F.2d 1068, 1073 & n. 18 (5th Cir.1984); Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 554 (7th Cir.1980); Mizlou Television Network, Inc. v. National Broadcasting Co., 603 F. Supp. 677, 683 (D.D.C.1984) (citing id.). The only injuries alleged by counterplaintiff are "ATA's additional costs and expenses in the conduct of its trade association activities, including the development and establishment of the ARC program." Amended Counterclaim at ¶ 20. These injuries are quintessentially business tort injuries harm to a competitor not harm to competition in the market. Absent factually supported allegations of anticompetitive effect, counterplaintiff's counterclaim fails to state a claim under section 1 of the Sherman Act and must be dismissed. Walker, supra; Havoco of America, Ltd., supra; Mizlou Television Network, Inc., supra.
Like its other allegations as to restraint of trade, counterplaintiff's allegations as to alleged efforts to organize a boycott of the ARC program appear to have been simply part of the give and take of negotiations. Most fundamentally, however, a boycott is traditionally a horizontal restraint whereby "traders at one level ... seek to protect themselves from competition from nongroup members who are competing ... at that level. They do this by taking concerted action aimed at depriving the excluded [traders] of some trade relationship which they would need to compete effectively at th[at] ... level." L. Sullivan, Handbook of the Law of Antitrust 230 (1977). To constitute an illegal boycott, ARTA's action must have been aimed at fellow travel agents, to be influenced by a boycott of the ARC program. ATA does not allege such an intent. And even if it *538 did allege such an intent, as an association of air carriers it would not have standing to sue for any competitive injuries suffered by travel agents. Transource International, Inc. v. Trinity Industries, Inc., 725 F.2d 274, 280 (5th Cir.1984). On its face ATA's counterclaim recites antitrust terminology, but fails to support its terminology with facts which would make such allegations meaningful under antitrust theory. As such, the claim under section 1 of the Sherman Act must be dismissed. Mizlou Television Network, Inc., supra, 603 F.Supp. at 683.
B.
To state a claim for attempted monopolization counterplaintiff must allege (1) a specific intent to destroy competition or control competition in the relevant market and (2) a dangerous probability of success. Swift & Co. v. United States, 196 U.S. 375, 396, 25 S. Ct. 276, 279, 49 L. Ed. 518 (1905); Transource International, Inc., supra, 725 F.2d at 282; Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 841 (2d Cir.1980); Consolidated Terminal Systems, Inc. v. ITT World Communications, Inc., 535 F. Supp. 225, 228 (S.D.N.Y.1982); Merit Motors, Inc. v. Chrysler Corp., 417 F. Supp. 263, 269-70 (D.D.C.1976), aff'd, 569 F.2d 666 (D.C.Cir. 1977). Counterplaintiff alleges the elements of the offense in only a conclusory fashion. Nowhere does ATA allege "a single fact to document [ARTA's] supposed actual or probable market power," Mizlou Television Network, Inc., supra, 603 F.Supp. at 684, or any other reason to find a dangerous probability of success. The "omission is fatal." Id. Such conclusory allegations will not survive a motion to dismiss. Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 995 (11th Cir.1983);[*]id.
C.
The elements necessary to establish a claim of conspiracy to monopolize are: (1) the existence of a combination or conspiracy to monopolize; (2) overt acts done in furtherance of the combination or conspiracy; (3) an effect upon an appreciable amount of interstate commerce; and (4) a specific intent to monopolize. J.T. Gibbons, Inc. v. Crawford Fitting Co., 704 F.2d 787, 796 (5th Cir.1983); Olsen v. Progressive Music Supply Inc., 703 F.2d 432, 438 (10th Cir.), cert. denied, 464 U.S. 866, 104 S. Ct. 197, 78 L. Ed. 2d 172 (1983). This count of the counterclaim suffers from some of the same deficiencies as the allegations of the other counts. First, counterplaintiff does not adequately allege a conspiracy between ARTA and any of its members to monopolize the retail travel sale market. And second, counterplaintiff does not allege that counterdefendant "has the power to control price and exclude competition generally in the relevant market." Mizlou Television Network, Inc., supra, 603 F.Supp. at 684 (emphasis in original). Absent the necessary factual support, counterdefendant's claim of conspiracy to monopolize must be dismissed.
* * * * * *
Counterplaintiff has failed to support its conclusory allegations of antitrust violations with facts necessary to state a claim. The accompanying Order will dismiss ATA's counterclaim with prejudice.
NOTES
[*] ATA cites Quality Foods in support of its argument that a complainant is not required to plead market power for an attempt to monopolize claim. But, that court recognized that some allegation as to market power was necessary to survive a motion to dismiss, stating:
[T]he complaint implies that [defendant] possessed sufficient market power to effect a change in the price of frozen vegetables in the United States ...
Id. at 996. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/90651/ | 106 U.S. 89 (____)
COTTON-TIE COMPANY
v.
SIMMONS.
Supreme Court of United States.
Mr. Samuel A. Duncan for the appellants.
Mr. Benjamin F. Thurston for the appellees.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is an appeal by the plaintiffs in a suit in equity from a decree dismissing the bill of complaint. The suit was brought for the infringement of three several letters-patent, No. 19,490, granted to Frederic Cook, March 2, 1858, for an "improvement in metallic ties for cotton-bales," and extended for seven years from March 2, 1872; reissued letters-patent No. 5333, granted to James J. McComb, as assignee of George Brodie, March 25, 1873, for an "improvement in cotton-bale ties" (the original patent having been granted to Brodie, as inventor, March 22, 1859, and reissued to him April 27, 1869, and extended for seven years from March 22, 1873); and No. 31,252, granted to J.J. McComb, Jan. 29, 1861, for an "improvement in iron *90 ties for cotton-bales," and extended for seven years from Jan. 29, 1875. They are severally known as the Cook, the Brodie, and the McComb patents. The Cook patent expired March 2, 1879; the Brodie patent, March 22, 1880; and the McComb patent, Jan. 29, 1882. The plaintiffs are the American Cotton-Tie Company, Limited, a British corporation; James J. McComb, administrator of Mary F. McComb, deceased; and the said James J. McComb, Charles G. Johnsen, and Emerson Foote, each in his own behalf and as a copartner in a firm called the American Cotton-Tie Company. The defendants are Simeon W. Simmons and two other persons, doing business as the Providence Cotton-Tie Company. The Cook patent was assigned to McComb March 21, 1872. The Brodie reissue of 1869, with all rights to reissue, renewal, and extension, was assigned to McComb March 19, 1873. On the 22d of June, 1874, McComb assigned to himself, Johnsen, and Foote, who composed the firm called the American Cotton-Tie Company, the Cook patent as extended, and the Brodie patent as reissued in 1869 and as extended. Mary F. McComb became, in 1861, the owner of the McComb patent. She died in 1874, intestate, and McComb was appointed her administrator. On the 1st of March, 1876, the firm called the American Cotton-Tie Company assigned to the corporation called the American Cotton-Tie Company, Limited, the Cook patent as extended, and the Brodie patent as extended and as reissued in 1873. On the same day McComb, individually and as administrator, assigned to the said corporation the McComb patent and its extension.
The bill is in the usual form, and was filed in November, 1876. It alleges that the defendants have made, used, and sold to others to be used, the patented inventions, and, also, metallic ties for cotton bales containing the patented inventions. No defence affecting the validity of the patents sued on is set up in the answer. The only defence pleaded or made is as to infringement.
The corporation plaintiff, since it acquired title to the three patents in March, 1876, has carried on the business of making cotton-bale ties under the patents. The form of tie it has principally made is the form of the McComb patent, which is called the "arrow tie," from the shape of the five-sided hole *91 cut in the plate of the buckle. It has not granted any licenses to make the ties, but has itself supplied the demand for them. The tie consists of a buckle and a band, all made of metal. The band goes around the bale, and the two ends of it are confined by means of the buckle. On each of the buckles which the corporation has made and put upon the market it has placed the words "Licensed to use once only," stamped into the body of the metal. This practice was also observed by its predecessor, the copartnership firm. The tie, consisting of buckle and band, is purchased by the person who desires to use it to confine the cotton in the bale, and is placed around the bale on the plantation or at the cotton-press. It remains on the bale until the bale reaches the cotton-mill, and the band of the tie, which is of hoop-iron, is then cut. The buckle and the band, thus free, become scrap-iron, and are sold as such. The hoop is too short for the length required for baling, if it were to be mended by lapping and riveting the two ends at the place of severance, and to bale with it requires that there should be a free end which may be confined at the buckle in the process of baling. The defendants buy the buckles and severed hoops at the cotton-mills, as scrap-iron, the hoops, when bought, being in bundles, bent, and being pieces of unequal lengths, some cut at one distance from the buckle, and some at another. The defendants straighten the old pieces of hoop and roll them by cold rolling, and punch the ends with holes, and rivet the pieces together, and form a band by cutting it to the proper length, which band, with the buckle accompanying it, makes a tie ready for use. In using the tie one end of the band is attached to one end of the buckle by a loop in that end of the band, and then the band is passed around the bale, and its free end is slipped, by a loop made in it, through a slit in the buckle, around the other end of the buckle, while the bale is under pressure. When the pressure is removed the expansive force of the compressed cotton holds the looped ends of the bands in place in the buckle, the looped ends being confined between the bale and the body of the band. The use of the arrow tie has been very extensive. The defendants sell to others to be used the ties which they so prepare, and do not themselves bale cotton with them. Baled cotton is sold in the *92 United States without tare, that is, the iron of the buckle and the hoop is weighed with the cotton and the bagging, and the whole is sold by weight at the price of the cotton per pound. The scrap-iron consisting of the buckles and cut hoops is sold at one cent and a quarter per pound, while the corporation sells its ties at six cents per pound.
The specification of the Cook patent describes a buckle with a slot cut through one of its end bars, so that the end of the band may be slipped through sidewise instead of being pushed through endwise. The third claim is to "the herein-described `slot,' cut through one bar of clasp, which enables the end of the tie or hoop to be slipped sidewise underneath the bar in clasp, so as to effect the fastening with greater rapidity than by passing the end of the tie through endwise."
The specification of the Brodie reissue states that his invention "relates to the combination with open-slot ties of metallic bands having their ends free, and held in position by the expansion of the bale." Some of the drawings show an open slotted link or buckle in connection with a band, and the specification states that the ends of the band are "turned under the link and held in position by the pressure exerted by the expansion of the bale." It adds: "In the latter mode of use the slack may be readily taken up by forming the loop in the iron at the moment of making the fastening, and passing the end thus looped through the opening in the side of the link. The band is thus slipped sidewise through the opening into the slot instead of thrusting it through endwise." The third, fourth, and fifth claims of the Brodie reissue are in these words: "3. The combination of an open slot for introducing the band sidewise with a link having a single rectangular opening for holding both ends of a metallic band, and the band. 4. An open slotted link, when combined with metallic bands, the ends of which are turned under the link and held in position by the expansion of the bale. 5. The method of baling cotton with metallic bands, and taking up the slack of the band by bending the same at any desired point into the form of a loop, and passing such loop sidewise through an open slit into the slot intended to receive it and over the bar of the clasp intended to hold it."
*93 The specification of the McComb patent states that the nature of his invention "consists in the use of a peculiarly shaped buckle as a fastening or tie for the ends of the iron hoops." It says that the "buckle is a piece of wrought-iron or other metallic substance, about the eighth of an inch thick, an inch and three-quarters wide, and two inches long (the size being modified to suit the width of the hoop used), with an oblong hole or aperture cut or punched through the centre;" that the five sides of the plate of the buckle are equal and parallel; and that the two largest of the five sides of the oblong hole are of equal length, and are equal in length to the width of the hoop. The drawings show the two sides forming the arrow part as of equal length. The slit or slot is cut through one of the sides of the plate opposite one of the two longest sides of the central hole, so that one of the loops of the hoop stretches across and covers the slit. The claim of the patent is this: "Forming a link or tie with an oblong aperture, one end of which is arrow-shaped, or rather presents two sides of an equilateral triangle, the design of this arrow-shaped end being not only to force the loop or bend of the hoop over the slot, which it does with unerring precision when the bale expands after being released from the press, but, also, to secure an equal bearing upon the separated parts of the slotted side of the tie."
A buckle without a band will not confine a bale of cotton. Although the defendants use a second time buckles originally made by those owning the patents and put by them on the market, they do not use a second time the original bands in the condition in which those bands were originally put forth with such buckles. They use bands made by piecing together severed pieces of the old bands. The band in a condition fit for use with the buckle is an element in the third claim of the Brodie reissue. That claim is for a combination of the open slot arranged to allow of the sidewise introduction of the band, the link or buckle with the single rectangular opening arranged so as to hold both ends of the band, and the band. The old buckle which the defendants sell has the slot of Cook, and the slot and rectangular opening of Brodie, and the slot and arrow-shaped opening of McComb. Whatever right the defendants could acquire to the use of the old buckle, *94 they acquired no right to combine it with a substantially new band, to make a cotton-bale tie. They so combined it when they combined it with a band made of the pieces of the old band in the way described. What the defendants did in piecing together the pieces of the old band was not a repair of the band or the tie, in any proper sense. The band was voluntarily severed by the consumer at the cotton-mill because the tie had performed its function of confining the bale of cotton in its transit from the plantation or the press to the mill. Its capacity for use as a tie was voluntarily destroyed. As it left the bale it could not be used again as a tie. As a tie the defendants reconstructed it, although they used the old buckle without repairing that. The case is not like putting new cutters into a planing-machine in place of those worn out by use, as in Wilson v. Simpson, 9 How. 109. The principle of that case was, that temporary parts wearing out in a machine might be replaced to preserve the machine, in accordance with the intention of the vendor, without amounting to a reconstruction of the machine.
The defendants contend that they do not combine the band with the buckle, and do not infringe the third claim of the Cook patent, or the third, fourth, and fifth claims of the Brodie reissue, or the claim of the McComb patent, because they do not bale cotton with the tie. But they participate in combining the open slot, the buckle, and the band, the whole being so arranged that the ends of the band can be turned under the buckle and held in position by the expansion of the bale, and that the slack of the band can be taken up by bending the band into the form of a loop, and passing the loop sidewise through the open slit into the hole and over the holding-bar of the plate. They sell the tie having the capacity of use in the manner described, and intended to be so used. Only the bale of cotton and the press are needed to produce the result set forth in the specifications of the patents, and without the bale of cotton and the press the tie would not be made or sold. The slot through the end bar of the buckle in the Cook patent is of no practical use apart from the band and the bale of cotton, and the same thing is true of the link of the McComb patent with its arrow-shaped aperture; and although a person *95 who merely makes and sells the buckle or link in each case may be liable for infringing those patents, he is so liable only as he is regarded as doing what he does with the purpose of having the buckle or link combined with a band and used to bale cotton. Because the defendants prepare and sell the arrow tie, composed of the buckle or link and the band, intending to have it used to bale cotton and to produce the results set forth in the Cook and the McComb patents, they infringe those patents. Saxe v. Hammond, 1 Holmes, 456; Bowker v. Dows, 3 Banning & Arden, 518. We do not decide that they are liable as infringers of either of the three patents merely because they have sold the buckle considered apart from the band or from the entire structure as a tie.
We are, therefore, of opinion that the defendants infringed the third claim of the Cook patent, the third, fourth, and fifth claims of the Brodie reissue, and the claim of the McComb patent.
Decree reversed, with costs, with directions to enter a decree for the plaintiffs, in respect to those claims, for an account of profits and damages, as prayed in the bill, and to take such further proceedings in the suit as may be in conformity with the opinion of this court. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3849084/ | These appeals are taken from the refusal to grant a new trial or to enter judgment non obstante veredicto. On the morning of October 26, 1940, about 7:30 a.m., a coal truck owned by John Olivia and driven by his employee, Thomas Pagano, attempted to pass a two-ton G. M. C. truck owned by Harold Levan and driven by his employee, Ernest Schiele. Claude Parsons, another employee of Levan, was riding in this truck. Both these trucks were traveling easterly from Reading toward Boyertown over a 16-foot concrete highway which had shoulders four feet wide. The atmosphere was misty, but at or near the scene of the accident a pocket of dense fog lay over the road. Schiele was traveling about 35 miles an hour, but as he approached the fog pocket he reduced his speed and Pagano, driving a coal truck, attempted to pass to the left of Schiele. When Pagano was almost alongside of the G. M. C. truck driven by Schiele, and fully occupying the left lane of the highway in the direction they were traveling, the truck of the Motor Freight Express, Inc., driven by Holtzer, emerged from the fog. Pagano, driving the coal truck, turned to the left, went over the berm, and down into a field. Holtzer drove to his right, getting his right wheels on the berm, and after so proceeding for 36 feet, swerved back across the concrete highway onto the left side of the road and collided with the G. M. C. truck driven by Schiele, injuring Schiele and killing Parsons.
Holtzer states that the weather was hazy and visibility was reduced to 50 or 75 feet; that he had come from Philadelphia and had encountered pockets of fog; that he was driving a truck and trailer which had a capacity of a little over ten tons when loaded, but on the morning in question carried between six and seven tons; that his speed was between 25 and 30 miles an hour, 30 miles being *Page 527
the maximum speed for a truck of the size he was driving under the laws of Pennsylvania. He further states that as he came to the scene of the accident he met a somewhat heavier blanket of fog, he could not see more than 50 or 75 feet, and at that time he was going 25 to 30 miles an hour. He first saw the coal truck 50 to 75 feet from him and on his side of the highway. He states he never saw the G. M. C. truck, driven by Schiele, yet no testimony ever places the coal truck in advance of the G. M. C. truck. To travel into a pocket of heavy fog with vision limited to 50 or 75 feet, driving a ten-ton truck and trailer carrying a load of six or seven tons and going at a speed of 25 to 30 miles an hour, would be sufficient evidence to submit to the jury, from which they might find the driver negligent. Such celerity of movement under the conditions which he describes could not be determined to be with due care: Mason v. C. LewisLavine, Inc., 302 Pa. 472, 477, 153 A. 754. In driving his truck through a fog bank, which was clearly visible in advance, at a speed of 25 to 30 miles an hour, it must be held he was testing a manifest danger: Janeway v. Lafferty Bros., 323 Pa. 324,328, 185 A. 827. "Cautious movement in fog is required of motorists (as it always has been of navigators). To take 'a leap in the dark' is to invite self-injury or self-destruction. On the night of this unfortunate accident the plaintiff had been well aware of the presence of fog on the highway. Even though he characterized this as 'light fog', he should nevertheless have proceeded with the utmost caution both from fog bank to fog bank and through them. * * * Fog is fog and its obscurative qualities are known to all individuals who possess even the slight amount of intelligence legally required to qualify one to drive an automobile on the public highways.":Shoffner v. Schmerin, 316 Pa. 323, 326, 328, 175 A. 516.
The court below properly stated: "It is true that the careless and unlawful conduct of the driver of the coal truck, in attempting to pass the G. M. C. truck, under the circumstances, was a proximate cause of the accident, *Page 528
but it was not necessarily the sole proximate cause. 'Where there would have been no injury whatever but for the continuing negligence of the defendant who first put the plaintiff in peril, and which existed when the negligence of the other turned the peril into actual injury, the negligences are concurrent and both defendants are jointly and severally liable for the injuries thereby occasioned.' Hughes et ux. v.Pittsburgh Transportation Co. et al., 300 Pa. 55, 60." Weinbergv. Pavitt et al., 304 Pa. 312, 326, 155 A. 867.
"We have frequently stated that the sudden emergency rule will not apply if the emergency arises through the prior negligence of him who seeks the protection of the rule:Montgomery v. Phila., 270 Pa. 346; Lieberman v. Pittsburgh Rys.Co., 305 Pa. 412; Stewart v. P. R. T., 103 Pa. Super. 366. ": Casey v. Siciliano, 310 Pa. 238, 241, 165 A. 1.
Although it is clear from the evidence that the appellant was a party to bringing about the sudden emergency, he complains of the court's charge as setting up a wrong standard of care under such circumstances. The whole of the court's charge on this point must be considered, and therein it is pointed out that the driver of the truck must use such care as a reasonable driver is likely to use "in a sudden emergency"; that he was not necessarily negligent if "he showed bad judgment" or "did not do the thing which upon cool judgment afterwards might be seen to have been the best thing to have done." The charge of the court covered the rule we have laid down, that "negligence cannot be imputed because of the failure to perform a duty so suddenly and unexpectedly arising that there is no opportunity to apprehend the situation and act according to the exigency":Eastburn v. U.S. Express Co., 225 Pa. 33, 73 A. 977; Post v.Richardson, 273 Pa. 56, 59, 116 A. 531; Brennen v. PittsburghRailways Company, 323 Pa. 81, 86, 186 A. 743; Gaskill v.Melella, 144 Pa. Super. 78, 82, 18 A.2d 455. See alsoMulheirn v. Brown, 322 Pa. 171, *Page 529
176, 185 A. 304; Miller v. Southern Asphalt Company et al.,314 Pa. 289, 297, 171 A. 472.
The appellant questions the right of the trial judge to permit recovery of damages for future loss of earning power "in the absence of evidence of permanent injury." Dr. Fox testified that Schiele had a ruptured kidney; he had a fractured rib on the left side; a fractured left leg; that he had both the tibia and fibula on the left side and the femur broken; he had a weakness in his left abdominal wall which appears like a tear of the soft parts, particularly muscles perhaps; when he would stand it would protrude a bit, and when he would strain it would protrude more, and he complained of a weakness there when he was active. The doctor further testified that Schiele had three fractured ribs and a ruptured kidney, and that he gave "treatment, of course, to his left extremity, where he complained of a lot of weakness and pain, [which] continued even to the time that I last saw him." This medical testimony was supplemented by proof that Schiele could no longer drive a truck on account of the weakened muscular condition of the abdomen which requires him to wear a belt. He now has a job as a janitor at considerable less pay than for the work he was doing before the accident. The trial judge charged: "He now has a rupture which may I believe call for an operation. I don't think there was any testimony that he has an incurable rupture, but he does have a weakened muscular condition there which causes him to wear a belt and which was testified to by the doctor as existing, and there is evidence from which you may find that it has apparently caused him some loss of earning power." In McCaffrey v. Schwartz, 285 Pa. 561, 567, 132 A. 810, it was stated: "It was their (the jurors') duty to determine, from the evidence, whether plaintiff's impairment of earning power would last until the end of his life expectancy, or, if not, how soon it would probably change for the better, and to adjust their award of damages on that score accordingly." Until the rupture of the muscles *Page 530
of the abdomen could be corrected by operation, if it could be so cured, there was a future loss of earning power to the plaintiff, Schiele, for which he was entitled to recover in damages. The appellants' complaint on this point is not well taken.
After reading the whole of the record, we are satisfied there is sufficient competent testimony to show that negligence of Holtzer in the operation of the truck of the Motor Freight Express, Incorporated, existed prior to and concurrent with that of Pagano and was a proximate cause of the accident.
Judgments affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3853593/ | Argued March 14, 1928.
This is a proceeding under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, wherein the executor of the will of Andrew Kidd, as also executor of Isabella, his wife, seeks to have determined what interests, if any, their two surviving daughters took in the real estate of which the former died seized. The petitioner claims that, as executor of Mrs. Kidd, he may convey the property in question, as the testatrix acquired a fee simple estate under the terms of the husband's will, and that, under the powers conferred by her last testament, he is authorized to make sale of the same. The two children, respondents, deny the *Page 24
existence of any such right, insisting that their mother's interest was one for life only. The orphans' court sustained the contention of the petitioner, and from the decree entered this appeal was taken.
The controversy resolves itself into one of the proper construction of the will of Andrew Kidd. If he thereby devised to his wife a fee simple estate, her executor is expressly granted the authority to sell, now sought to be exercised. By the second paragraph he directed: "I devise and bequeath to my beloved wife all my real estate and personal property remaining after my just debts are fully satisfied to hold and enjoy as she thinks best as long as she remains my widow, and to dispose of at her death among the children, as she thinks best except as follows." In subsequent paragraphs he gave certain legacies to grandchildren, and these were held by Judge TRIMBLE, in a concurring opinion below, to be charges on the absolute estate granted Mrs. Kidd. Counsel for the appellee agreed at the argument this was the proper construction, if a fee was given, and it will be so regarded by us in disposing of the question involved.
A reading of the will leads to the conclusion that Mrs. Kidd became seized of a fee simple estate. It is true that no words of inheritance were used, but this was not necessary under the Act of April 18, 1833, section 9, P. L. 250, now supplied by the Act of June 7, 1917, section 12, P. L. 403, which provides that "all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation or otherwise in the will, that the testator intended to devise a less estate." The omission of such words cannot be construed as indicating a lack of intent to give an absolute interest: Cross v. Miller,290 Pa. 213. The devisee was here given the right "to hold and enjoy," which is equivalent to the permission to use and consume; *Page 25
and the words employed have the same significance as similar expressions, such as "to hold" (Cooke v. Doron, 215 Pa. 393,398), "to have and to hold" (Hege v. Ickes, 267 Pa. 57), "for the use and benefit" (Koble v. Bennett, 40 Pa. Super. 79), or "for the use and behoof": Redding v. Rice, 171 Pa. 301. Where there is an implied power to consume, as given here, there follows the right to dispose of the property, in the absence of subsequent qualifying phrases, and the fee passes: Kennedy v. P. L. E. R. R. Co., 216 Pa. 575; Edwards v. Newland, 271 Pa. 1; Houser v. Houser, 268 Pa. 401.
The devisee in this case was not only given the right to "hold and enjoy," but testator directed that she should have the right to do so "as she thinks best." The grant of such discretionary power clearly indicates an intention to permit the wife to dispose of the property and consume, unless some limiting clause be found: Eichman v. Wall, 273 Pa. 236. It is further to be noticed that, subject to certain qualifications which will be later referred to, all of the estate was given to the wife for her use and enjoyment "except" as to certain legacies which were made charges thereon, indicating that the testator had in mind that, by the words preceding, he had made an actual bestowal of his property: Brown's Est., 289 Pa. 101.
Appellants argue that, though the words so far referred to would give a fee simple estate if nothing else appeared, yet other phrases used in connection therewith disclose an intention to devise a less estate to the wife. The guiding rule to be applied in passing upon this contention was thus stated in Deeter's Est., 280 Pa. 135: "Where the dominant purpose shown by a devise is to vest a fee, this estate cannot be stripped of its inherent attributes by subsequent words indicating an intent to do so." If the language employed is sufficient to vest an absolute interest, the testator must reveal a fairly clear purpose to take away the estate previously *Page 26
given before a divestiture can be upheld: Long's Est., 270 Pa. 480; Smith v. Bloomington Coal Co., 282 Pa. 248. Applying this principle, a fee first given was held not to be cut down by a limitation of the right to sell during a specified period (Pattin v. Scott, 270 Pa. 49), or by clauses intended to limit the course of descent: Cross v. Miller, supra; Smith v. Bloomington Coal Co., supra; Robinson's Est., 282 Pa. 531.
It is first urged that the limitation of the right to hold and enjoy "as long as she remains my widow" is indicative of an intention not to pass a fee. A similar suggestion has frequently been the subject of consideration by this court, and it has uniformly held that such words do not cut down the absolute estate granted, though the same is defeasible in case of remarriage, becoming absolute in case of death without the happening of this condition: Redding v. Rice, supra; Scott v. Murray, 218 Pa. 186; Huber v. Hamilton, 211 Pa. 289. Of course, additional language may appear, which, taken with the words already referred to, discloses an intent to grant only a life estate (Schaper v. Pittsburgh Coal Co., 266 Pa. 154), but no such expressions are found here.
Again, it is said the addition in the devise to the wife of the phrase "to dispose of at her death among my children," shows an intent to give less than a fee. It will be noticed that there is no grant of the remainder over to be found in the will, but only the request that what is left of the estate when she dies, — for by apt words she had previously been given the right to consume, — be given to the children. What was said in Good v. Fichthorn, 144 Pa. 287, 293, where the testator "enjoined and directed" the devisee to make certain disposition of his property, applies here: "The testator gave an absolute fee, with express powers to consume or convey. [In the case before us the words used were the equivalent.] He did not devise the unconsumed residue himself, but desired his wife to do so. He put *Page 27
his request in strong words, ordinarily importing command, but so used as to indicate only an intent, not to reduce the estate previously given, but to control one of its incidents. Where that is the intent, no words, however strong, amount to more than a request which cannot be enforced by law."
The husband expressed a desire that his wife give the part remaining to the children "as she thinks best." These words must be considered as precatory only, and do not establish an intention to reduce the fee previously given. Such was the conclusion reached where similar language was considered in Boyle v. Boyle, 152 Pa. 108, an authority controlling the present situation. Mere indication of wish as to the ultimate disposition, and request that it be so made, will not cut down the estate already devised: Miller v. Stubbs, 244 Pa. 482; Smith v. Bloomington Coal Co., supra; Miller v. Cross, supra. If there had been an express direction that all of the unconsumed property remaining at the death of the one named should pass to others, then the rule of Stanton v. Guest,285 Pa. 460, and earlier authorities holding likewise, and cited by appellants, would apply, but they cannot control in construing a devise couched in the language found in paragraph two of testator's will.
After careful consideration, we are led to the conclusion that Mrs. Kidd became possessed of a fee simple estate by her husband's will, charged with the legacies provided for the grandchildren. The interest acquired passed by her will, by the terms of which the executor was given the power to sell, as now proposed, and he is in position to convey without the joinder or consent of the two surviving children, who are appellants here.
The decree of the court below, and the declaratory judgment entered, are affirmed at the cost of appellants. *Page 28 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1714296/ | 339 Mich. 231 (1954)
63 N.W.2d 426
DAVIS
v.
DAVIS.
Docket No. 57, Calendar No. 45,704.
Supreme Court of Michigan.
Decided April 5, 1954.
V.O. Braun, for plaintiff.
Milton G. Schancupp, for defendant.
*232 BUTZEL, C.J.
Laura Davis, appellee, sued Arthur Davis, appellant, for a divorce on the ground of extreme cruelty. He filed an answer and cross bill, asking that he be granted the divorce upon a similar ground. After considerable testimony was taken at the hearing, the judge expressed some doubt as to whether he should not deny a divorce to each party. The testimony showed such antagonism over a very long period that there was little chance for reconciliation. The judge, nevertheless, waited a long time before entering a decree so as to give the parties an opportunity for reconciliation. He finally granted a divorce to appellant, defendant and cross plaintiff, but awarded the custody of the minor children to plaintiff, the cross defendant. He ordered the appellant to pay her $18 a week for the support of the 2 children while they were living with her, but otherwise gave her no alimony. The family property, consisting mainly of a small house valued at $3,600, was ordered to be sold and the proceeds divided equally, with the right, however, of either party to buy out the other's interest by the payment of $1,800. The household furniture was given to the appellee, the automobile to the appellant. The judge also gave the appellant liberal periods when he might have the custody of the children, particularly during school vacations. Both parties seemed satisfied with the decree, except that the appellant has appealed from the part of the decree that awards the custody of the children to the appellee.
The parties were married in 1940 and have had 4 children, only 2 of whom survived, a girl and a boy, respectively of the ages of 9 and 4 at the time the decree was signed. There had been a previous divorce suit instituted by the plaintiff against defendant but it was discontinued upon a reconciliation. The parties had led a drab life. They lived in a small home without modern conveniences in *233 the village of Lennon, Shiawassee county, Michigan. Except for the period during which he was in the United States navy, appellant was a steady and industrious factory worker. There is testimony that he occasionally became intoxicated and it is also alleged that he abused appellee in a very shameful manner. She did the housekeeping, looked after the children, and kept them neat and clean.
A family by the name of Taylor resided within a hundred feet of the Davis home and appellee was a frequent and welcome visitor in the Taylor home. The entire Taylor family were very good friends of appellee. Marvin Taylor was particularly attentive to her, his attentions to the appellee being the basic cause of the marital discord. He had been divorced and was engaged to a woman in Tennessee. Appellant was away from home a large part of the time as he worked in Flint. Appellee very frequently went to a food supply store with the Taylors in Marvin Taylor's automobile. There were taverns and beer gardens in the vicinity to which appellee and members of the Taylor family frequently went, and occasionally appellee took the small children with her. This never happened, however, on the evenings preceding the days when the little girl went to school. Testimony also indicated that appellant had also stopped at a beer garden and left his young son in the car.
Appellee and Marvin Taylor, also referred to as Mr. X, became very fond of each other; they at times acted like an engaged couple. Adultery was neither charged nor proved. As a rule, members of the Taylor family were present when appellee and Marvin Taylor greeted each other in an affectionate manner. The employees of a detective agency, which had been retained by appellant, testified that on one occasion Taylor and appellee acted in a very indecent manner. It is claimed that this occurred *234 in an automobile under a bright light with several persons looking on. Both Taylor and appellee vigorously denied that such an incident took place. Judging from the exaggerated statements by the operators of the detective agency as to other events we have considerable doubt as to whether the incident took place as testified to. We believe, however, that there was sufficient testimony so as to show that the judge was justified in granting the divorce to appellant and awarding the custody of the children to appellee.
Appellant desired to place the children with his sister who lived some 6 miles from where he worked. He would, therefore, as he testified, be able to visit them every night or at least on week ends.
Appellee evidently has had a very unhappy life. She has lost much weight and is in need of an operation, but she is devoted to the children. There is no question but that these young children should not be taken to taverns by appellee. Nor should appellee, if she leads an immoral life, be entitled to look after the bringing up of the children. We are satisfied that appellee will conduct herself properly and carefully look after the children. The brief of the appellee calls attention to the fact that the judge had the report of the friend of the court, which does not appear in the record.
While appellee claims that $18 a week for the support of 2 children is inadequate, she does not cross appeal. The minor children remain the wards of the court, Wallace v. Wallace, 310 Mich. 30; Geark v. Geark, 318 Mich. 614, and a decretal order in regard to custody of the children can always be revised and altered on good cause being shown, CL 1948, § 552.17 (Stat Ann § 25.97). Parties as a rule conduct themselves in such a manner so as to make it unnecessary for the courts to step in and make any further orders.
*235 Many cases on which both parties rely are cited. As a rule the facts in divorce cases vary. We have frequently approved decrees where one party is given the divorce and the other party the custody of the children. The recent case of Remus v. Remus, 325 Mich. 641, is analogous to the case at bar and fully supports the opinion and decree of the trial court.
The decree is affirmed, with costs to appellee.
CARR, BUSHNELL, SHARPE, BOYLES, REID, DETHMERS, and KELLY, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3396236/ | Dismissed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/102344/ | 293 U.S. 328 (1934)
DAVIS
v.
AETNA ACCEPTANCE CO.
No. 68.
Supreme Court of United States.
Argued November 9, 1934.
Decided December 3, 1934.
CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, FIRST DISTRICT.
*329 Mr. Franklin D. Trueblood, with whom Messrs. Edward A. Zimmerman and George A. Edwards were on the brief, for petitioner.
Mr. William S. Kleinman for respondent.
MR. JUSTICE CARDOZO delivered the opinion of the Court.
A discharge in bankruptcy, pleaded as a defense to a declaration in trover for the conversion of a chattel, has been ruled by the courts below not to constitute a bar. The question is whether upon the evidence and the findings the bar should have been upheld.
*330 The petitioner was a dealer in automobiles, selling them at retail and maintaining a salesroom where his wares were displayed. To put himself in funds for the acquisition of the cars, he obtained loans from the respondent, the Aetna Acceptance Company, in thirty-five or more transactions. In particular he borrowed $1,181.87 on July 10, 1929, procuring title thereby to an Auburn sedan. This was 90% of the cost of the car, the residue of the price being paid out of his own money. At once upon receipt of the sedan, he delivered to the respondent a set of four papers; a promissory note for $1,181.87 to the order of the respondent payable in sixty days; a chattel mortgage covering the automobile and securing payment of the note; a trust receipt, acknowledging receipt of the automobile, and agreeing to hold it as the property of the respondent for the purpose of storage, and not to sell, pledge or otherwise dispose of it except upon consent in writing; and finally a bill of sale, absolute in form.
On August 3, 1929, the automobile, then on exhibit in the petitioner's showroom, was sold by one of his salesmen, and thereupon or soon afterwards petitioner received the price. There is a stipulation that the sale was made without concealment and in the ordinary course of business, though without written consent. According to the petitioner's testimony, notice of the transaction was given the same day to one of the respondent's officers. There is also testimony tending to support the inference that on many other occasions cars held upon like terms had been sold without express consent and the proceeds accounted for thereafter. On this occasion the petitioner promised to make prompt remittance of a check, subject to an offset or credit growing out of other dealings. He did not keep his promise. Instead, he filed a petition in bankruptcy on September 13, 1929, obtaining later his discharge after duly listing the respondent in his schedule of creditors. *331 The filing of that petition was followed by this action for conversion. The trial judge, overruling the special plea of a discharge, gave judgment in favor of the respondent for damages and costs. The Illinois Appellate Court affirmed. There was a refusal of leave to appeal to the Supreme Court of the State, permission being requisite because of the amount involved. The case is here on certiorari.
The effect of a discharge in bankruptcy is to "release a bankrupt from all of his provable debts," with excepted liabilities enumerated in the statute. Bankruptcy Act, § 17; 11 U.S.C. § 35. There is no dispute that the respondent had a provable debt. It might have proved upon the note, "a fixed liability as evidenced by . . . an instrument in writing." Bankruptcy Act, § 63 (1); 11 U.S.C. § 103a. If its grievance was the sale, it might have proved "upon a contract, express or implied," § 63 (4), waiving the tort and standing upon the implied assumpsit. Crawford v. Burke, 195 U.S. 176, 193; Tindle v. Birkett, 205, U.S. 183. What it did is not decisive. Crawford v. Burke, supra; Tindle v. Birkett, supra. Enough that a method of proof had been provided to be used at its election.
The debt being provable, the next inquiry must be whether the liability back of it is within one of the excepted classes. For present purposes, only two of the exceptions, § 17 (2) and (4), will have to be considered. The others by concession have no relation to this case. Subdivision 2 excludes from the release "liabilities for . . . willful and malicious injuries to the person or property of another." Subdivision 4 excludes the liabilities of a bankrupt "created by his fraud, embezzlement, misappropriation or defalcation while acting as an officer or in any fiduciary capacity."
1. The respondent contends that the petitioner was liable for a wilful and malicious injury to the property *332 of another as the result of the sale and conversion of the car in his possession. There is no doubt that an act of conversion, if wilful and malicious, is an injury to property within the scope of this exception. Such a case was McIntyre v. Kavanaugh, 242 U.S. 138, where the wrong was unexcused and wanton. But a wilful and malicious injury does not follow as of course from every act of conversion, without reference to the circumstances. There may be a conversion which is innocent or technical, an unauthorized assumption of dominion without wilfulness or malice. Boyce v. Brockway, 31 N.Y. 490, 493; Laverty v. Snethen, 68 N.Y. 522, 527; Wood v. Fisk, 215 N.Y. 233, 239; 109 N.E. 177; Stanley v. Gaylord, 1 Cush. (Mass.) 536, 550; Compau v. Bemis, 35 Ill. App. 37; In re De Lauro, 1 F. Supp. 678, 679. There may be an honest, but mistaken belief, engendered by a course of dealing, that powers have been enlarged or incapacities removed. In these and like cases, what is done is a tort, but not a wilful and malicious one. Turning to the findings here, we see that wilfulness and malice have been unmistakably excluded. Cf. In re Dixon, 21 F. (2d) 565, 566; In re Burchfield, 31 F. (2d) 118, 119. The trial court made a special finding as follows: "The court finds that the defendant in this case was not actuated by wilful, malicious or criminal intent in disposing of the car in question." In these circumstances the respondent is not helped by the later and general finding that the petitioner was "guilty of legal conversion of the property, as described in the count in trover." The special controls the general, just as upon the verdict of a jury. Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 598; Victor American. Fuel Co. v. Peccarich, 209 Fed. 568, 571.
Nothing in the judgment of the Illinois Appellate Court is at war with the exculpatory finding made upon the trial. The Appellate Court repeats the words of the *333 trial judge without hint of disapproval. Its only comment is that under the law of Illinois malice and wrongful intent are not necessary constituents of a cause of action in trover. This, of course, is true, but though true, it is beside the mark. The discharge will prevail as against a showing of conversion without aggravated features.
2. The respondent contends that irrespective of wilfulness or malice, the petitioner is within the exception declared by subdivision 4, his liability arising, it is said, from his fraud or misappropriation while acting in a fiduciary capacity. The meaning of these words has been fixed by judicial construction for very nearly a century. Chapman v. Forsyth, 2 How. 202, decided in 1844, is a decision to the effect that within the meaning of a like provision in the Act of 1841, a factor does not act in a fiduciary capacity; the statute "speaks of technical trusts, and not those which the law implies from the contract." 2 How. at p. 208. The scope of the exception was to be limited accordingly. Through the intervening years that precept has been applied by this court in varied situations with unbroken continuity. Neal v. Clark, 95 U.S. 704; Hennequin v. Clews, 111 U.S. 676, 682; Noble v. Hammond, 129 U.S. 65, 68; Upshur v. Briscoe, 138 U.S. 365; Crawford v. Burke, supra; Tindle v. Birkett, supra. Cf. Cronan v. Cotting, 104 Mass. 245; Clair v. Colmes, 245 Mass. 281; 139 N.E. 519. It is not enough that by the very act of wrongdoing out of which the contested debt arose, the bankrupt has become chargeable as a trustee ex maleficio. He must have been a trustee before the wrong and without reference thereto. In the words of Blatchford, J., "The language would seem to apply only to a debt created by a person who was already a fiduciary when the debt was created." Upshur v. Briscoe, supra, at p. 378. Was petitioner a trustee in that strict and narrow sense?
*334 We think plainly he was not, though multiplicity of documents may obscure his relation if the probe is superficial. The only writing at all suggestive of a trust is the one that is characterized as a trust receipt. What effect would be given to it if it stood alone there is no occasion to consider. It does not stand alone, but is a member of a group which must be read with a collective meaning. The note, the chattel mortgage, the trust receipt and the bill of sale were made at the same time. We must view them all together. Clearly the respondent's only interest in the car was as security for the debt; this is the central fact, the coordinating element, that unifies the whole transaction. The bill of sale may seem to make the creditor a purchaser; whatever its recitals, it is a mortgage in another form. Whittemore v. Fisher, 132 Ill. 243. The trust receipt may state that the debtor holds the car as the property of the creditor; in truth it is his own property, subject to a lien. Barchard v. Kohn, 157 Ill. 579, 585, 586; 41 N.E. 902. The substance of the transaction is this, and nothing more, that the mortgagor, a debtor, has bound himself by covenant not to sell the mortgaged chattel without the mortgagee's approval. The resulting obligation is not turned into one arising from a trust because the parties to one of the documents have chosen to speak of it as a trust. Cf. In re Butts, 120 Fed. 966, 971; Bloomingdale v. Dreher, 31 F. (2d) 93. The relation would be no different if the duty had been stated in terms of covenant alone without descriptive epithet. A mortgagor in possession before condition broken is not a trustee for the mortgagee within the meaning of this statute, though he has charged himself with a duty to keep the security intact. Cf. Ten Eyck v. Craig, 62 N.Y. 406, 422.
No question as to a cause of action arising from a conversion of the proceeds of the sale with wilfulness and *335 malice as distinguished from one arising from the conversion of the car itself is before us on this record.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/109267/ | 421 U.S. 723 (1975)
BLUE CHIP STAMPS ET AL.
v.
MANOR DRUG STORES.
No. 74-124.
Supreme Court of United States.
Argued March 24, 1975.
Decided June 9, 1975.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
*724 Allyn O. Kreps argued the cause for petitioners. With *725 him on the briefs were Michael D. Zimmerman, G. Richard Doty, and Thomas J. Ready.
James E. Ryan argued the cause for respondent. With him on the brief was J. J. Brandlin.
David Ferber argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief were Solicitor General Bork, Lawrence E. Nerheim, and Richard E. Nathan.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
This case requires us to consider whether the offerers of a stock offering, made pursuant to an antitrust consent decree and registered under the Securities Act of 1933, 48 Stat. 74, as amended, 15 U.S. C. § 77a et seq. (1933 Act), may maintain a private cause of action for money damages where they allege that the offerer has violated the provisions of Rule 10b-5 of the Securities and Exchange Commission, but where they have neither purchased nor sold any of the offered shares. See Birnbaum v. Newport Steel Corp., 193 F.2d 461 (CA2), cert. denied, 343 U.S. 956 (1952).
I
In 1963 the United States filed a civil antitrust action against Blue Chip Stamp Co. (Old Blue Chip), a company in the business of providing trading stamps to retailers, and nine retailers who owned 90% of its shares. In 1967 the action was terminated by the entry of a consent decree. United States v. Blue Chip Stamp Co., 272 F. Supp. 432 (CD Cal.), aff'd sub nom. Thrifty Shoppers Scrip Co. v. United States, 389 U.S. 580 (1968).[1] The decree contemplated a plan of reorganization *726 whereby Old Blue Chip was to be merged into a newly formed corporation, Blue Chip Stamps (New Blue Chip). The holdings of the majority shareholders of Old Blue Chip were to be reduced, and New Blue Chip, one of the petitioners here, was required under the plan to offer a substantial number of its shares of common stock to retailers who had used the stamp service in the past but who were not shareholders in the old company. Under the terms of the plan, the offering to nonshareholder users was to be proportional to past stamp usage and the shares were to be offered in units consisting of common stock and debentures.
The reorganization plan was carried out, the offering was registered with the SEC as required by the 1933 Act, and a prospectus was distributed to all offerers as required by § 5 of that Act, 15 U.S. C. § 77e. Somewhat more than 50% of the offered units were actually purchased. In 1970, two years after the offering, respondent, a former user of the stamp service and therefore an offeree of the 1968 offering, filed this suit in the United States District Court for the Central District of California. Defendants below and petitioners here are Old and New Blue Chip, eight of the nine majority shareholders of Old Blue Chip, and the directors of New Blue Chip (collectively called Blue Chip).
Respondent's complaint alleged, inter alia, that the prospectus prepared and distributed by Blue Chip in connection with the offering was materially misleading in its overly pessimistic appraisal of Blue Chip's status and future prospects. It alleged that Blue Chip intentionally made the prospectus overly pessimistic in order to discourage respondent and other members of the allegedly large class whom it represents from accepting what was *727 intended to be a bargain offer, so that the rejected shares might later be offered to the public at a higher price. The complaint alleged that class members because of and in reliance on the false and misleading prospectus failed to purchase the offered units. Respondent therefore sought on behalf of the alleged class some $21,400,000 in damages representing the lost opportunity to purchase the units; the right to purchase the previously rejected units at the 1968 price; and in addition, it sought some $25,000,000 in exemplary damages.
The only portion of the litigation thus initiated which is before us is whether respondent may base its action on Rule 10b-5 of the Securities and Exchange Commission without having either bought or sold the securities described in the allegedly misleading prospectus. The District Court dismissed respondent's complaint for failure to state a claim upon which relief might be granted.[2] On appeal to the United States Court of Appeals for the Ninth Circuit, respondent pressed only its asserted claim under Rule 10b-5, and a divided panel of the Court of Appeals sustained its position and reversed the District Court.[3] After the Ninth Circuit denied rehearing en banc, we granted Blue Chip's petition for certiorari. 419 U.S. 992 (1974). Our consideration of the correctness of the determination of the Court of Appeals requires us to consider what limitations there are on the class of plaintiffs who may maintain a private cause of action for money damages for violation of Rule 10b-5, and whether respondent was within that class.
II
During the early days of the New Deal, Congress enacted two landmark statutes regulating securities. *728 The 1933 Act was described as an Act to "provide full and fair disclosure of the character of securities sold in interstate and foreign commerce and through the mails, and to prevent frauds in the sale thereof, and for other purposes." The Securities Exchange Act of 1934. 48 Stat. 881, as amended, 15 U.S. C. § 78a et seq. (1934 Act), was described as an Act "to provide for the regulation of securities exchanges and of over-the-counter markets operating in interstate and foreign commerce and through the mails, to prevent inequitable and unfair practices on such exchanges and markets, and for other purposes."
The various sections of the 1933 Act dealt at some length with the required contents of registration statements and prospectuses, and expressly provided for private civil causes of action. Section 11 (a) gave a right of action by reason of a false registration statement to "any person acquiring" the security, and § 12 of that Act gave a right to sue the seller of a security who had engaged in proscribed practices with respect to prospectuses and communication to "the person purchasing such security from him."
The 1934 Act was divided into two titles. Title I was denominated "Regulation of Securities Exchanges," and Title II was denominated "Amendments to Securities Act of 1933." Section 10 of that Act makes it "unlawful for any person . . . (b) [t]o use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." The "Commission" referred to in the section was the Securities and Exchange Commission *729 created by § 4 (a) of the 1934 Act. Section 29 of that Act provided that "[e]very contract made in violation of any provision of this chapter or of any rule or regulation thereunder" should be void.
In 1942, acting under the authority granted to it by § 10 (b) of the 1934 Act, the Commission promulgated Rule 10b-5, 17 CFR § 240.10b-5, now providing as follows:
"§ 240.10b-5 Employment of manipulative and deceptive devices.
"It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
"(a) To employ any device, scheme, or artifice to defraud,
"(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
"(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, "in connection with the purchase or sale of any security."
Section 10 (b) of the 1934 Act does not by its terms provide an express civil remedy for its violation. Nor does the history of this provision provide any indication that Congress considered the problem of private suits under it at the time of its passage. See, e. g., Note, Implied Liability Under the Securities Exchange Act, 61 Harv. L. Rev. 858, 861 (1948); A. Bromberg, Securities Law: FraudSEC Rule 10b-5 § 2.2 (300)-(340) (1968) (hereinafter Bromberg); S. Rep. No. 792, 73d Cong., 2d *730 Sess., 5-6 (1934). Similarly there is no indication that the Commission in adopting Rule 10b-5 considered the question of private civil remedies under this provision. SEC Securities Exchange Act Release No. 3230 (1942); Conference on Codification of the Federal Securities Laws, 22 Bus. Law. 793, 922 (1967); Birnbaum v. Newport Steel Corp., 193 F. 2d, at 463; 3 L. Loss, Securities Regulation 1469 n. 87 (2d ed. 1961).
Despite the contrast between the provisions of Rule 10b-5 and the numerous carefully drawn express civil remedies provided in the Acts of both 1933 and 1934,[4] it was held in 1946 by the United States District Court for the Eastern District of Pennsylvania that there was an implied private right of action under the Rule. Kardon v. National Gypsum Co., 69 F. Supp. 512. This Court had no occasion to deal with the subject until 25 years later, and at that time we confirmed with virtually no discussion the overwhelming consensus of the District Courts and Courts of Appeals that such a cause of action did exist. Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n. 9 (1971); Affiliated Ute Citizens v. United States, 406 U.S. 128, 150-154 (1972). Such a conclusion was, of course, entirely consistent with the Court's recognition in J. I. Case Co. v. Borak, 377 U.S. 426, 432 (1964), that private enforcement of Commission rules may "[provide] a necessary supplement to Commission action."
Within a few years after the seminal Kardon decision, the Court of Appeals for the Second Circuit concluded that the plaintiff class for purposes of a private damage action under § 10 (b) and Rule 10b-5 was limited to actual purchasers and sellers of securities. Birnbaum v. Newport Steel Corp., supra.
*731 The Court of Appeals in this case did not repudiate Birnbaum; indeed, another panel of that court (in an opinion by Judge Ely) had but a short time earlier affirmed the rule of that case. Mount Clemens Industries, Inc. v. Bell, 464 F.2d 339 (1972). But in this case a majority of the Court of Appeals found that the facts warranted an exception to the Birnbaum rule. For the reasons hereinafter stated, we are of the opinion that Birnbaum was rightly decided, and that it bars respondent from maintaining this suit under Rule 10b-5.
III
The panel which decided Birnbaum consisted of Chief Judge Swan and Judges Learned Hand and Augustus Hand: the opinion was written by the last named. Since both § 10 (b) and Rule 10b-5 proscribed only fraud "in connection with the purchase or sale" of securities, and since the history of § 10 (b) revealed no congressional intention to extend a private civil remedy for money damages to other than defrauded purchasers or sellers of securities, in contrast to the express civil remedy provided by § 16 (b) of the 1934 Act, the court concluded that the plaintiff class in a Rule 10b-5 action was limited to actual purchasers and sellers. 193 F.2d, at 463-464.
Just as this Court had no occasion to consider the validity of the Kardon holding that there was a private cause of action under Rule 10b-5 until 20-odd years later, nearly the same period of time has gone by between the Birnbaum decision and our consideration of the case now before us. As with Kardon, virtually all lower federal courts facing the issue in the hundreds of reported cases presenting this question over the past quarter century have reaffirmed Birnbaum's conclusion that the plaintiff class for purposes of § 10 (b) and Rule 10b-5 private damage actions is limited to purchasers and sellers *732 of securities. See 6 L. Loss, Securities Regulation 3617 (1969). See, e. g., Haberman v. Murchison, 468 F.2d 1305, 1311 (CA2 1972); Landy v. FDIC, 486 F.2d 139, 156-157 (CA3 1973), cert. denied, 416 U.S. 960 (1974); Sargent v. Genesco, Inc., 492 F.2d 750, 763 (CA5 1974); Simmons v. Wolfson, 428 F.2d 455, 456 (CA6 1970), cert. denied, 400 U.S. 999 (1971); City National Bank v. Vanderboom, 422 F.2d 221, 227-228 (CA8), cert. denied, 399 U.S. 905 (1970); Mount Clemens Industries, Inc. v. Bell, supra; Jensen v. Voyles, 393 F.2d 131, 133 (CA10 1968). Compare Eason v. General Motors Acceptance Corp., 490 F.2d 654 (CA7 1973), cert. denied, 416 U.S. 960 (1974), with Dasho v. Susquehanna Corp., 380 F.2d 262 (CA7), cert. denied sub nom. Bard v. Dasho, 389 U.S. 977 (1967).
In 1957 and again in 1959, the Securities and Exchange Commission sought from Congress amendment of § 10 (b) to change its wording from "in connection with the purchase or sale of any security" to "in connection with the purchase or sale of, or any attempt to purchase or sell, any security." 103 Cong. Rec. 11636 (1957) (emphasis added); SEC Legislation, Hearings on S. 1178-1182 before a Subcommittee of the Senate Committee on Banking & Currency, 86th Cong., 1st Sess., 367-368 (1959); S. 2545, 85th Cong., 1st Sess. (1957); S. 1179, 86th Cong., 1st Sess. (1959). In the words of a memorandum submitted by the Commission to a congressional committee, the purpose of the proposed change was "to make section 10 (b) also applicable to manipulative activities in connection with any attempt to purchase or sell any security." Hearings on S. 1178-1182, supra, at 331. Opposition to the amendment was based on fears of the extension of civil liability under § 10 (b) that it would cause. Id., at 368. Neither change was adopted by Congress.
*733 The longstanding acceptance by the courts, coupled with Congress' failure to reject Birnbaum's reasonable interpretation of the wording of § 10 (b), wording which is directed toward injury suffered "in connection with the purchase or sale" of securities,[5] argues significantly in favor of acceptance of the Birnbaum rule by this Court. Blau v. Lehman, 368 U.S. 403, 413 (1962).
Available evidence from the texts of the 1933 and 1934 Acts as to the congressional scheme in this regard, though not conclusive, supports the result reached by the Birnbaum court. The wording of § 10 (b) directed at fraud "in connection with the purchase or sale" of securities stands in contrast with the parallel antifraud provision of the 1933 Act, § 17 (a), as amended, 68 Stat. 686, 15 U.S. C. § 77q,[6] reaching fraud *734 "in the offer or sale" of securities. Cf. § 5 of the 1933 Act, 15 U.S. C. § 77e. When Congress wished to provide a remedy to those who neither purchase nor sell securities, it had little trouble in doing so expressly. Cf. § 16 (b) of the 1934 Act, 15 U.S. C. § 78p (b).
Section 28 (a) of the 1934 Act, 15 U.S. C. § 78bb (a), which limits recovery in any private damages action brought under the 1934 Act to "actual damages," likewise provides some support for the purchaser-seller rule. See, e. g., Bromberg § 8.8, p. 221. While the damages suffered by purchasers and sellers pursuing a § 10 (b) cause of action may on occasion be difficult to ascertain, Affiliated Ute Citizens v. United States, 406 U. S., at 155, in the main such purchasers and sellers at least seek to base recovery on a demonstrable number of shares traded. In contrast, a putative plaintiff, who neither purchases nor sells securities but sues instead for intangible economic injury such as loss of a non contractual opportunity to buy or sell, is more likely to be seeking a *735 largely conjectural and speculative recovery in which the number of shares involved will depend on the plaintiff's subjective hypothesis. Cf. Estate Counselling Service, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 303 F.2d 527, 533 (CA10 1962); Levine v. Seilon, Inc., 439 F.2d 328, 335 (CA2 1971); Wolf v. Frank, 477 F.2d 467, 478 (CA5 1973).
One of the justifications advanced for implication of a cause of action under § 10 (b) lies in § 29 (b) of the 1934 Act, 15 U.S. C. § 78cc (b), providing that a contract made in violation of any provision of the 1934 Act is voidable at the option of the deceived party.[7] See, e. g., Kardon v. National Gypsum Co., 69 F. Supp., at 514; Slavin v. Germantown Fire Insurance Co., 174 F.2d 799, 815 (CA3 1949); Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 n. 4 (CA2 1951); Bromberg § 2.4 (1) (b). But that justification is absent when there is no actual purchase or sale of securities, or a contract to purchase or sell, affected or tainted by a violation of § 10 (b). Cf. Mount Clemens Industries, Inc. v. Bell, supra.
The principal express nonderivative private civil remedies, *736 created by Congress contemporaneously with the passage of § 10 (b), for violations of various provisions of the 1933 and 1934 Acts are by their terms expressly limited to purchasers or sellers of securities. Thus § 11 (a) of the 1933 Act confines the cause of action it grants to "any person acquiring such security" while the remedy granted by § 12 of that Act is limited to the "person purchasing such security." Section 9 of the 1934 Act, prohibiting a variety of fraudulent and manipulative devices, limits the express civil remedy provided for its violation to "any person who shall purchase or sell any security" in a transaction affected by a violation of the provision. Section 18 of the 1934 Act, prohibiting false or misleading statements in reports or other documents required to be filed by the 1934 Act, limits the express remedy provided for its violation to "any person . . . who . . . shall have purchased or sold a security at a price which was affected by such statement . . . ." It would indeed be anomalous to impute to Congress an intention to expand the plaintiff class for a judicially implied cause of action beyond the bounds it delineated for comparable express causes of action.[8]
*737 Having said all this, we would by no means be understood as suggesting that we are able to divine from the language of § 10 (b) the express "intent of Congress" as to the contours of a private cause of action under Rule 10b-5. When we deal with private actions under Rule 10b-5, we deal with a judicial oak which has grown from little more than a legislative acorn. Such growth may be quite consistent with the congressional enactment and with the role of the federal judiciary in interpreting it, see J. I. Case Co. v. Borak, supra, but it would be disingenuous to suggest that either Congress in 1934 or the Securities and Exchange Commission in 1942 foreordained the present state of the law with respect to Rule 10b-5. It is therefore proper that we consider, in addition to the factors already discussed, what may be described as policy considerations when we come to flesh out the portions of the law with respect to which neither the congressional enactment nor the administrative regulations offer conclusive guidance.
Three principal classes of potential plaintiffs are presently barred by the Birnbaum rule. First are potential purchasers of shares, either in a new offering or on the Nation's post-distribution trading markets, who allege that they decided not to purchase because of an unduly gloomy representation or the omission of favorable material which made the issuer appear to be a less favorable investment vehicle than it actually was. Second are actual shareholders in the issuer who allege that they decided not to sell their shares because of an *738 unduly rosy representation or a failure to disclose unfavorable material. Third are shareholders, creditors, and perhaps others related to an issuer who suffered loss in the value of their investment due to corporate or insider activities in connection with the purchase or sale of securities which violate Rule 10b-5. It has been held that shareholder members of the second and third of these classes may frequently be able to circumvent the Birnbaum limitation through bringing a derivative action on behalf of the corporate issuer if the latter is itself a purchaser or seller of securities. See, e. g., Schoenbaum v. Firstbrook, 405 F.2d 215, 219 (CA2 1968), cert. denied sub nom. Manley v. Schoenbaum, 395 U.S. 906 (1969). But the first of these classes, of which respondent is a member, cannot claim the benefit of such a rule.
A great majority of the many commentators on the issue before us have taken the view that the Birnbaum limitation on the plaintiff class in a Rule 10b-5 action for damages is an arbitrary restriction which unreasonably prevents some deserving plaintiffs from recovering damages which have in fact been caused by violations of Rule 10b-5. See, e. g., Lowenfels, The Demise of the Birnbaum Doctrine: A New Era for Rule 10b-5, 54 Va. L. Rev. 268 (1968). The Securities and Exchange Commission has filed an amicus brief in this case espousing that same view. We have no doubt that this is indeed a disadvantage of the Birnbaum rule,[9] and if it *739 had no countervailing advantages it would be undesirable as a matter of policy, however much it might be supported by precedent and legislative history. But we are of the opinion that there are countervailing advantages to the Birnbaum rule, purely as a matter of policy, although those advantages are more difficult to articulate than is the disadvantage.
There has been widespread recognition that litigation under Rule 10b-5 presents a danger of vexatiousness different in degree and in kind from that which accompanies litigation in general. This fact was recognized by Judge Browning in his opinion for the majority of the Court of Appeals in this case, 492 F.2d, at 141, and by Judge Hufstedler in her dissenting opinion when she said:
"The purchaser-seller rule has maintained the balances built into the congressional scheme by permitting damage actions to be brought only by those persons whose active participation in the marketing transaction promises enforcement of the statute without undue risk of abuse of the litigation process and without distorting the securities market." Id., at 147.
Judge Friendly in commenting on another aspect of Rule 10b-5 litigation has referred to the possibility that unduly expansive imposition of civil liability "will lead to large judgments, payable in the last analysis by innocent investors, for the benefit of speculators and their lawyers . . . ." SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 867 (CA2 1968) (concurring opinion). See also *740 Boone & McGowan, Standing to Sue under SEC Rule 10b-5, 49 Tex. L. Rev. 617, 648-649 (1971).
We believe that the concern expressed for the danger of vexatious litigation which could result from a widely expanded class of plaintiffs under Rule 10b-5 is founded in something more substantial than the common complaint of the many defendants who would prefer avoiding lawsuits entirely to either settling them or trying them. These concerns have two largely separate grounds.
The first of these concerns is that in the field of federal securities laws governing disclosure of information even a complaint which by objective standards may have very little chance of success at trial has a settlement value to the plaintiff out of any proportion to its prospect of success at trial so long as he may prevent the suit from being resolved against him by dismissal or summary judgment. The very pendency of the lawsuit may frustrate or delay normal business activity of the defendant which is totally unrelated to the lawsuit. See, e. g., Sargent, The SEC and the Individual Investor: Restoring His Confidence in the Market, 60 Va. L. Rev. 553, 562-572 (1974); Dooley, The Effects of Civil Liability on Investment Banking and the New Issues Market, 58 Va. L. Rev. 776, 822-843 (1972).
Congress itself recognized the potential for nuisance or "strike" suits in this type of litigation, and in Title II of the 1934 Act amended § 11 of the 1933 Act to provide that:
"In any suit under this or any other section of this title the court may, in its discretion, require an undertaking for the payment of the costs of such suit, including reasonable attorney's fees . . . ." § 206 (d), 48 Stat. 881, 908.
Senator Fletcher, Chairman of the Senate Banking and Finance Committee, in introducing Title II of the 1934 *741 Act on the floor of the Senate, stated in explaining the amendment to § 11 (e): "This amendment is the most important of all." 78 Cong. Rec. 8669. Among its purposes was to provide "a defense against blackmail suits." Ibid.
Where Congress in those sections of the 1933 Act which expressly conferred a private cause of action for damages, adopted a provision uniformly regarded as designed to deter "strike" or nuisance actions, Cohen v. Beneficial Loan Corp., 337 U.S. 541, 548-549 (1949), that fact alone justifies our consideration of such potential in determining the limits of the class of plaintiffs who may sue in an action wholly implied from the language of the 1934 Act.
The potential for possible abuse of the liberal discovery provisions of the Federal Rules of Civil Procedure may likewise exist in this type of case to a greater extent than they do in other litigation. The prospect of extensive deposition of the defendant's officers and associates and the concomitant opportunity for extensive discovery of business documents, is a common occurrence in this and similar types of litigation. To the extent that this process eventually produces relevant evidence which is useful in determining the merits of the claims asserted by the parties, it bears the imprimatur of those Rules and of the many cases liberally interpreting them. But to the extent that it permits a plaintiff with a largely groundless claim to simply take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value, rather than a reasonably founded hope that the process will reveal relevant evidence, it is a social cost rather than a benefit. Yet to broadly expand the class of plaintiffs who may sue under Rule 10b-5 would appear to encourage the least appealing aspect of the use of the discovery rules.
*742 Without the Birnbaum rule, an action under Rule 10b-5 will turn largely on which oral version of a series of occurrences the jury may decide to credit, and therefore no matter how improbable the allegations of the plaintiff, the case will be virtually impossible to dispose of prior to trial other than by settlement. In the words of Judge Hufstedler's dissenting opinion in the Court of Appeals:
"The great ease with which plaintiffs can allege the requirements for the majority's standing rule and the greater difficulty that plaintiffs are going to have proving the allegations suggests that the majority's rule will allow a relatively high proportion of `bad' cases into court. The risk of strike suits is particularly high in such cases; although they are difficult to prove at trial, they are even more difficult to dispose of before trial." 492 F.2d, at 147 n. 9.
The Birnbaum rule, on the other hand, permits exclusion prior to trial of those plaintiffs who were not themselves purchasers or sellers of the stock in question. The fact of purchase of stock and the fact of sale of stock are generally matters which are verifiable by documentation, and do not depend upon oral recollection, so that failure to qualify under the Birnbaum rule is a matter that can normally be established by the defendant either on a motion to dismiss or on a motion for summary judgment.
Obviously there is no general legal principle that courts in fashioning substantive law should do so in a manner which makes it easier, rather than more difficult, for a defendant to obtain a summary judgment. But in this type of litigation, where the mere existence of an unresolved lawsuit has settlement value to the plaintiff not only because of the possibility that he may prevail on the merits, an entirely legitimate component of settlement value, but because of the threat of extensive discovery *743 and disruption of normal business activities which may accompany a lawsuit which is groundless in any event, but cannot be proved so before trial, such a factor is not to be totally dismissed. The Birnbaum rule undoubtedly excludes plaintiffs who have in fact been damaged by violations of Rule 10b-5, and to that extent it is undesirable. But it also separates in a readily demonstrable manner the group of plaintiffs who actually purchased or actually sold, and whose version of the facts is therefore more likely to be believed by the trier of fact, from the vastly larger world of potential plaintiffs who might successfully allege a claim but could seldom succeed in proving it. And this fact is one of its advantages.
The second ground for fear of vexatious litigation is based on the concern that, given the generalized contours of liability, the abolition of the Birnbaum rule would throw open to the trier of fact many rather hazy issues of historical fact the proof of which depended almost entirely on oral testimony. We in no way disparage the worth and frequent high value of oral testimony when we say that dangers of its abuse appear to exist in this type of action to a peculiarly high degree. The Securities and Exchange Commission, while opposing the adoption of the Birnbaum rule by this Court, states that it agrees with petitioners "that the effect, if any, of a deceptive practice on someone who has neither purchased nor sold securities may be more difficult to demonstrate than is the effect on a purchaser or seller." Brief for the Securities and Exchange Commission as Amicus Curiae 24-25. The brief also points out that frivolous suits can be brought whatever the rules of standing, and reminds us of this Court's recognition "in a different context" that "the expense and annoyance of litigation is `part of the social burden of living under *744 government.' " Id., at 24 n. 30. See Petroleum Exploration, Inc. v. Public Service Comm'n, 304 U.S. 209, 222 (1938). The Commission suggests that in particular cases additional requirements of corroboration of testimony and more limited measure of damages would correct the dangers of an expanded class of plaintiffs.
But the very necessity, or at least the desirability, of fashioning unique rules of corroboration and damages as a correlative to the abolition of the Birnbaum rule suggests that the rule itself may have something to be said for it.
In considering the policy underlying the Birnbaum rule, it is not inappropriate to advert briefly to the tort of misrepresentation and deceit, to which a claim under Rule 10b-5 certainly has some relationship. Originally under the common law of England such an action was not available to one other than a party to a business transaction. That limitation was eliminated in Pasley v. Freeman, 3 T. R. 51, 100 Eng. Rep. 450 (1789). Under the earlier law the misrepresentation was generally required to be one of fact, rather than opinion, but that requirement, too, was gradually relaxed. Lord Bowen's famous comment in Edgington v. Fitzmaurice, [1882] L. R. 29 Ch. Div. 459, 483, that "the state of a man's mind is as much a fact as the state of his digestion," suggests that this distinction, too, may have been somewhat arbitrary. And it has long been established in the ordinary case of deceit that a misrepresentation which leads to a refusal to purchase or to sell is actionable in just the same way as a misrepresentation which leads to the consummation of a purchase or sale. Butler v. Watkins, 13 Wall. 456 (1872). These aspects of the evolution of the tort of deceit and misrepresentation suggest a direction away from rules such as Birnbaum.
But the typical fact situation in which the classic tort *745 of misrepresentation and deceit evolved was light years away from the world of commercial transactions to which Rule 10b-5 is applicable. The plaintiff in Butler, supra, for example, claimed that he had held off the market a patented machine for tying cotton bales which he had developed by reason of the fraudulent representations of the defendant. But the report of the case leaves no doubt that the plaintiff and defendant met with one another in New Orleans, that one presented a draft agreement to the other, and that letters were exchanged relating to that agreement. Although the claim to damages was based on an allegedly fraudulently induced decision not to put the machines on the market, the plaintiff and the defendant had concededly been engaged in the course of business dealings with one another, and would presumably have recognized one another on the street had they met.
In today's universe of transactions governed by the 1934 Act, privacy of dealing or even personal contact between potential defendant and potential plaintiff is the exception and not the rule. The stock of issuers is listed on financial exchanges utilized by tens of millions of investors, and corporate representations reach a potential audience, encompassing not only the diligent few who peruse filed corporate reports or the sizable number of subscribers to financial journals, but the readership of the Nation's daily newspapers. Obviously neither the fact that issuers or other potential defendants under Rule 10b-5 reach a large number of potential investors, or the fact that they are required by law to make their disclosures conform to certain standards, should in any way absolve them from liability for misconduct which is proscribed by Rule 10b-5.
But in the absence of the Birnbaum rule, it would be sufficient for a plaintiff to prove that he had failed to *746 purchase or sell stock by reason of a defendant's violation of Rule 10b-5. The manner in which the defendant's violation caused the plaintiff to fail to act could be as a result of the reading of a prospectus, as respondent claims here, but it could just as easily come as a result of a claimed reading of information contained in the financial pages of a local newspaper. Plaintiff's proof would not be that he purchased or sold stock, a fact which would be capable of documentary verification in most situations, but instead that he decided not to purchase or sell stock. Plaintiff's entire testimony could be dependent upon uncorroborated oral evidence of many of the crucial elements of his claim, and still be sufficient to go to the jury. The jury would not even have the benefit of weighing the plaintiff's version against the defendant's version, since the elements to which the plaintiff would testify would be in many cases totally unknown and unknowable to the defendant. The very real risk in permitting those in respondent's position to sue under Rule 10b-5 is that the door will be open to recovery of substantial damages on the part of one who offers only his own testimony to prove that he ever consulted a prospectus of the issuer, that he paid any attention to it, or that the representations contained in it damaged him.[10]*747 The virtue of the Birnbaum rule, simply stated, in this situation, is that it limits the class of plaintiffs to those who have at least dealt in the security to which the prospectus, representation, or omission relates. And their dealing in the security, whether by way of purchase or sale, will generally be an objectively demonstrable fact in an area of the law otherwise very much dependent upon oral testimony. In the absence of the Birnbaum doctrine, bystanders to the securities marketing process could await developments on the sidelines without risk, claiming that inaccuracies in disclosure caused nonselling in a falling market and that unduly pessimistic predictions by the issuer followed by a rising market caused them to allow retrospectively golden opportunities to pass.
While much of the development of the law of deceit has been the elimination of artificial barriers to recovery on just claims, we are not the first court to express concern that the inexorable broadening of the class of plaintiff *748 who may sue in this area of the law will ultimately result in more harm than good. In Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), Chief Judge Cardozo observed with respect to "a liability in an indeterminate amount for an indeterminate time to an indeterminate class":
"The hazards of a business conducted on these terms are so extreme as to enkindle doubt whether a flaw may not exist in the implication of a duty that exposes to these consequences." Id., at 179-180, 174 N.E., at 444.
In Herpich v. Wallace, 430 F.2d 792, 804-805 (CA5 1970), a case adopting the Birnbaum limitation on the class of plaintiffs who might bring an action for damages based on a violation of Rule 10b-5, Judge Ainsworth expressed concern similar to that expressed by Chief Judge Cardozo. Judge Stevens, writing in Eason v. General Motors Acceptance Corp., 490 F. 2d, at 660, stated that court's view that these concerns were unduly emphasized, and went on to say that "we may not for that reason reject what we believe to be a correct interpretation of the statute or the rule." He relied in part on the view that Rule 10b-5 should be interpreted, in keeping with this Court's repeated admonition, " `not technically and restrictively, but flexibly to effectuate its remedial purposes.' " Affiliated Ute Citizens v. United States, 406 U. S., at 151.
We quite agree that if Congress had legislated the elements of a private cause of action for damages, the duty of the Judicial Branch would be to administer the law which Congress enacted; the Judiciary may not circumscribe a right which Congress has conferred because of any disagreement it might have with Congress about the wisdom of creating so expansive a liability. But as we have pointed out, we are not dealing here with *749 any private right created by the express language of § 10 (b) or of Rule 10b-5. No language in either of those provisions speaks at all to the contours of a private cause of action for their violation. However flexibly we may construe the language of both provisions, nothing in such construction militates against the Birnbaum rule. We are dealing with a private cause of action which has been judicially found to exist, and which will have to be judicially delimited one way or another unless and until Congress addresses the question. Given the peculiar blend of legislative, administrative, and judicial history which now surrounds Rule 10b-5, we believe that practical factors to which we have adverted, and to which other courts have referred, are entitled to a good deal of weight.
Thus we conclude that what may be called considerations of policy, which we are free to weigh in deciding this case, are by no means entirely on one side of the scale. Taken together with the precedential support for the Birnbaum rule over a period of more than 20 years, and the consistency of that rule with what we can glean from the intent of Congress, they lead us to conclude that it is a sound rule and should be followed.
IV
The majority of the Court of Appeals in this case expressed no disagreement with the general proposition that one asserting a claim for damages based on the violation of Rule 10b-5 must be either a purchaser or seller of securities. However, it noted that prior cases have held that persons owning contractual rights to buy or sell securities are not excluded by the Birnbaum rule. Relying on these cases, it concluded that respondent's status as an offeree pursuant to the terms of the consent decree served the same function, for purposes *750 of delimiting the class of plaintiffs, as is normally performed by the requirement of a contractual relationship. 492 F.2d, at 142.
The Court of Appeals recognized, and respondent concedes here,[11] that a well-settled line of authority from this Court establishes that a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it. United States v. Armour & Co., 402 U.S. 673 (1971); Buckeye Co. v. Hocking Valley Co., 269 U.S. 42 (1925).[12]
A contract to purchase or sell securities is expressly defined by § 3 (a) of the 1934 Act, 15 U.S. C. § 78c (a),[13]*751 as a purchase or sale of securities for the purposes of that Act. Unlike respondent, which had no contractual right or duty to purchase Blue Chip's securities, the holders of puts, calls, options, and other contractual rights or duties to purchase or sell securities have been recognized as "purchasers" or "sellers" of securities for purposes of Rule 10b-5, not because of a judicial conclusion that they were similarly situated to "purchasers" or "sellers," but because the definitional provisions of the 1934 Act themselves grant them such a status.
Even if we were to accept the notion that the Birnbaum rule could be circumvented on a case-by-case basis through particularized judicial inquiry into the facts surrounding a complaint, this respondent and the members of its alleged class would be unlikely candidates for such a judicially created exception. While the Birnbaum rule has been flexibly interpreted by lower federal courts,[14] we have been unable to locate a single decided case from any court in the 20-odd years of litigation since the Birnbaum decision which would support the right of persons who were in the position of respondent here to bring a private suit under Rule 10b-5. Respondent was not only not a buyer or seller of any security *752 but it was not even a shareholder of the corporate petitioners.
As indicated, the 1934 Act, under which respondent seeks to assert a cause of action, is general in scope but chiefly concerned with the regulation of post-distribution trading on the Nation's stock exchanges and securities trading markets. The 1933 Act is a far narrower statute chiefly concerned with disclosure and fraud in connection with offerings of securitiesprimarily, as here, initial distributions of newly issued stock from corporate issuers. 1 L. Loss, Securities Regulation 130-131 (2d ed. 1961). Respondent, who derives no entitlement from the antitrust consent decree and does not otherwise possess any contractual rights relating to the offered stock, stands in the same position as any other disappointed offeree of a stock offering registered under the 1933 Act who claims that an overly pessimistic prospectus, prepared and distributed as required by §§ 5 and 10 of the 1933 Act, has caused it to allow its opportunity to purchase to pass.
There is strong evidence that application of the Birnbaum rule to preclude suit by the disappointed offeree of a registered 1933 Act offering under Rule 10b-5 furthers the intention of Congress as expressed in the 1933 Act.[15] Congress left little doubt that its purpose in imposing the prospectus and registration requirements of the 1933 Act was to prevent the "[h]igh pressure salesmanship rather than careful counsel," causing inflated *753 new issues, through direct limitation by the SEC of "the selling arguments hitherto employed." H. R. Rep. No. 85, 73d Cong., 1st Sess., 2, 8 (1933).
"Any objection that the compulsory incorporation in selling literature and sales argument of substantially all information concerning the issue, will frighten the buyer with the intricacy of the transaction, states one of the best arguments for the provision." Id., at 8.
The SEC, in accord with the congressional purposes, specifically requires prominent emphasis be given in filed registration statements and prospectuses to material adverse contingencies. See, e. g., SEC Securities Act Release No. 4936, Guides for the Preparation and Filing of Registration Statements 6, ¶ 6 (1968); In re Universal Camera Corp., 19 S.E. C. 648, 654-656 (1945); Wheat & Blackstone, Guideposts for a First Public Offering, 15 Bus. Law. 539, 560-562 (1960).
Sections 11 and 12 of the 1933 Act provide express civil remedies for misrepresentations and omissions in registration statements and prospectuses filed under the Act, as here charged, but restrict recovery to the offering price of shares actually purchased:
"To impose a greater responsibility, apart from constitutional doubts, would unnecessarily restrain the conscientious administration of honest business with no compensating advantage to the public." H. R. Rep. No. 85, supra, at 9.
And in Title II of the 1934 Act, 48 Stat. 905-908, the same Act adopting § 10 (b), Congress amended § 11 of the 1933 Act to limit still further the express civil remedy it conferred. See generally James, Amendments to the Securities Act of 1933, 32 Mich. L. Rev. 1130, 1134 (1934). The additional congressional restrictions, *754 contained in Title II of the 1934 Act, on the already limited express civil remedies provided by the 1933 Act for misrepresentations or omissions in a registration statement or prospectus reflected congressional concern over the impact of even these limited remedies on the new issues market. 78 Cong. Rec. 8668-8669 (1934). There is thus ample evidence that Congress did not intend to extend a private cause of action for money damages to the nonpurchasing offeree of a stock offering registered under the 1933 Act for loss of the opportunity to purchase due to an overly pessimistic prospectus.
Beyond the difficulties evident in an extension of standing to this respondent, we do not believe that the Birnbaum rule is merely a shorthand judgment on the nature of a particular plaintiff's proof. As a purely practical matter, it is doubtless true that respondent and the members of its class, as offerers and recipients of the prospectus of New Blue Chip, are a smaller class of potential plaintiffs than would be all those who might conceivably assert that they obtained information violative of Rule 10b-5 and attributable to the issuer in the financial pages of their local newspaper. And since respondent likewise had a prior connection with some of petitioners as a result of using the trading stamps marketed by Old Blue Chip, and was intended to benefit from the provisions of the consent decree, there is doubtless more likelihood that its managers read and were damaged by the allegedly misleading statements in the prospectus than there would be in a case filed by a complete stranger to the corporation.
But respondent and the members of its class are neither "purchasers" nor "sellers," as those terms are defined in the 1934 Act, and therefore to the extent that their claim of standing to sue were recognized, it would mean that the lesser practical difficulties of corroborating *755 at least some elements of their proof would be regarded as sufficient to avoid the Birnbaum rule. While we have noted that these practical difficulties, particularly in the case of a complete stranger to the corporation, support the retention of that rule, they are by no means the only factor which does so. The general adoption of the rule by other federal courts in the 25 years since it was announced, and the consistency of the rule with the statutes involved and their legislative history, are likewise bases for retaining the rule. Were we to agree with the Court of Appeals in this case, we would leave the Birnbaum rule open to endless case-by-case erosion depending on whether a particular group of plaintiffs was thought by the court in which the issue was being litigated to be sufficiently more discrete than the world of potential purchasers at large to justify an exception. We do not believe that such a shifting and highly fact-oriented disposition of the issue of who may bring a damages claim for violation of Rule 10b-5 is a satisfactory basis for a rule of liability imposed on the conduct of business transactions. Nor is it as consistent as a straightforward application of the Birnbaum rule with the other factors which support the retention of that rule. We therefore hold that respondent was not entitled to sue for violation of Rule 10b-5, and the judgment of the Court of Appeals is
Reversed.
MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, concurring.
Although I join the opinion of the Court, I write to emphasize the significance of the texts of the Acts of 1933 and 1934 and especially the language of § 10 (b) and Rule 10b-5.
*756 I
The starting point in every case involving construction of a statute is the language itself. The critical phrase in both the statute and the Rule is "in connection with the purchase or sale of any security." 15 U.S. C. § 78j (b); 17 CFR § 240.10b-5 (1975) (emphasis added). Section 3 (a) (14) of the 1934 Act, 15 U.S. C. § 78c (a) (14), provides that the term "sale" shall "include any contract to sell or otherwise dispose of" securities. There is no hint in any provision of the Act that the term "sale," as used in § 10 (b), was intendedin addition to its long-established legal meaningto include an "offer to sell." Respondent, nevertheless, would have us amend the controlling language in § 10 (b) to read:
"in connection with the purchase or sale of, or an offer to sell, any security."
Before a court properly could consider taking such liberty with statutory language there should be, at least, unmistakable support in the history and structure of the legislation. None exists in this case.
Nothing in the history of the 1933 and 1934 Acts supports any congressional intent to include mere offers in § 10 (b). Moreover, as the Court's opinion indicates, impressive evidence in the texts of the two Acts demonstrates clearly that Congress selectively and carefully distinguished between offers, purchases, and sales. For example, § 17 (a), the antifraud provision of the 1933 Act, 15 U.S. C. § 77q (a), expressly includes "offer[s]" of securities within its terms while § 10 (b) of the 1934 Act and Rule 10b-5 do not. The 1933 Act also defines "offer to sell" as something distinct from a sale. § 2 (3), 15 U.S. C. § 77b (3).
If further evidence of congressional intent were needed, it may be found in the subsequent history of these Acts. *757 As noted in the Court's opinion, the Securities and Exchange Commission unsuccessfully sought, in 1957 and again in 1959, to persuade Congress to broaden § 10 (b) by adding to the critical language: "or any attempt to purchase or sell" any security. See ante, at 732.
This case involves no "purchase or sale" of securities.[1] Respondent was a mere offeree, which instituted this suit some two years after the shares were issued and after the market price had soared. Having "missed the market" on a stock, it is hardly in a unique position. The capital that fuels our enterprise system comes from investors who have frequent opportunities to purchase, or not to purchase, securities being offered publicly. The market prices of new issues rarely remain static: almost invariably they go up or down, and they often fluctuate widely over a period far less than the two years during which respondent reflected on its lost opportunity. Most investors have unhappy memories of decisions not to buy stocks which later performed well.
The opinion of the Court, and the dissenting opinion of Judge Hufstedler in the Court of Appeals, correctly emphasize the subjective nature of the inevitable inquiry if the term "offer" were read into the Act and some arguable error could be found in an offering prospectus: "Would I have purchased this particular security at the time it was offered if I had known the correct facts?" Apart from the human temptation for the plaintiff to answer this question in a self-serving fashion, the offeror *758 of the securitiesdefendant in the suitis severely handicapped in challenging the predictable testimony.[2] The subjective issues would be even more speculative in the class actions that inevitably would follow if we held that offers to sell securities are covered by § 10 (b) and Rule 10b-5.
In this case respondent was clearly identifiable as an offeree, as here the shares were offered to designated persons.[3] In the more customary public sale of securities, identification of those who in fact were bona fide offerees would present severe problems of proof. The 1933 Act requires that offers to sell registered securities be made by means of an effective prospectus. § 5 (b), 15 U.S. C. § 77e (b). Issues are usually marketed through underwriters and dealers, often including scores of investment banking and brokerage firms across the country. Copies of the prospectus may be widely distributed through the dealer group, and then passed hand to hand among countless persons whose identities cannot be known. If § 10 (b) were extended to embrace offers to sell, the number of persons claiming to have been *759 offerees could be legion with respect to any security that subsequently proved to be a rewarding investment.
We are entitled to assume that the Congress, in enacting § 10 (b) and in subsequently declining to extend it, took into account these and similar considerations. The courts already have inferred a private cause of action that was not authorized by the legislation. In doing this, however, it was unnecessary to rewrite the precise language of § 10 (b) and Rule 10b-5. This is exactly what respondentjoined, surprisingly, by the SEC sought in this case.[4] If such a far-reaching change is to *760 be made, with unpredictable consequences for the process of raising capital so necessary to our economic wellbeing, it is a matter for the Congress, not the courts.
II
MR. JUSTICE BLACKMUN's dissent charges the Court with "a preternatural solicitousness for corporate wellbeing and a seeming callousness toward the investing public." Our task in this case is to construe a statute. In my view, the answer is plainly compelled by the language as well as the legislative history of the 1933 and 1934 Acts. But even if the language is not "plain" to all, I would have thought none could doubt that the statute can be read fairly to support the result the Court reaches. Indeed, if one takes a different viewand imputes callousness to all who disagreehe must attribute a lack of legal and social perception to the scores of federal judges who have followed Birnbaum for two decades.
The dissenting opinion also charges the Court with paying "no heed to the unremedied wrong" arising from the type of "fraud" that may result from reaffirmance of the Birnbaum rule. If an issue of statutory construction is to be decided on the basis of assuring a federal remedyin addition to state remediesfor every perceived fraud, at least we should strike a balance between the opportunities for fraud presented by the contending views. It may well be conceded that Birnbaum does allow some fraud to go unremedied under the federal securities Acts. But the construction advocated by the dissent could result in wider opportunities for fraud. As the Court's opinion makes plain, abandoning the Birnbaum construction in favor of the rule urged by the dissent would invite any person who failed to purchase a *761 newly offered security that subsequently enjoyed substantial market appreciation to file a claim alleging that the offering prospectus understated the company's potential. The number of possible plaintiffs with respect to a public offering would be virtually unlimited. As noted above (at 758 n. 2), an honest offeror could be confronted with subjective claims by plaintiffs who had neither purchased its securities nor seriously considered the investment. It frequently would be impossible to refute a plaintiff's assertion that he relied on the prospectus, or even that he made a decision not to buy the offered securities. A rule allowing this type of open-ended litigation would itself be an invitation to fraud.[5]
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.
Today the Court graves into stone Birnbaum's[1] arbitrary principle of standing. For this task the Court, unfortunately, chooses to utilize three blunt chisels: (1) reliance on the legislative history of the 1933 and *762 1934 Securities Acts, conceded as inconclusive in this particular context; (2) acceptance as precedent of two decades of lower court decisions following a doctrine, never before examined here, that was pronounced by a justifiably esteemed panel of that Court of Appeals regarded as the "Mother Court" in this area of the law,[2] but under entirely different circumstances; and (3) resort to utter pragmaticality and a conjectural assertion of "policy considerations" deemed to arise in distinguishing the meritorious Rule 10b-5 suit from the meretricious one. In so doing, the Court exhibits a preternatural solicitousness for corporate well-being and a seeming callousness toward the investing public quite out of keeping, it seems to me, with our own traditions and the intent of the securities laws. See Affiliated Ute Citizens v. United States, 406 U.S. 128, 151 (1972); Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 12 (1971); SEC v. National Securities, Inc., 393 U.S. 453, 463 (1969); Tcherepnin v. Knight, 389 U.S. 332, 336 (1967); SEC v. Capital Gains Bureau, 375 U.S. 180, 195 (1963).
The plaintiff's complaintand that is all that is before us nowraises disturbing claims of fraud. It alleges that the directors of "New Blue Chip" and the majority shareholders of "Old Blue Chip" engaged in a deceptive and manipulative scheme designed to subvert the intent of the 1967 antitrust consent decree and to enhance the value of their own shares in a subsequent offering. Although the complaint is too long to reproduce here, see App. 4-22, the plaintiff, in short, contends that the much-negotiated plan of reorganization of Old Blue *763 Chip, pursuant to the decree and approved by the District Court, was intended to compensate former retailer-users of Blue Chip stamps for damages suffered as a result of the antitrust violations. Accordingly, the majority shareholders were to be divested of 55% of their interest; Old Blue Chip was to be merged into a new company; and 55% of the common shares of the new company were to be offered to the former users on a pro rata basis, determined by the quantity of stamps issued to each of these nonshareholding users during a designated period. Some 621,000 shares were thus to be offered in units, each consisting of three shares of common and a $100 debenture, in return for $101 cash.
It is the plaintiff's pleaded position that this offer to the former users was intended by the antitrust court and the Government to be a "bargain," since the then reasonable market value of each unit was actually $315. The plaintiff alleged, however, that the offering shareholders had no intention of complying in good faith with the terms of the consent decree and of permitting the former users of Blue Chip stamps to obtain the bargain offering. Rather, they conspired to dissuade the offerees from purchasing the units by including substantially misleading and negative information in the prospectus under the heading "Items of Special Interest." The prospectus contained the following statements, allegedly false and allegedly made to deter the plaintiff and its class from purchasing the units: (1) that "[n]et income for the current fiscal year will be adversely affected by payments aggregating $8,486,000 made since March 2, 1968 in settlement of claims" against New Blue Chip; (2) that net income "would be adversely affected by a substantial decrease in the use of the Company's trading stamp service"; (3) that net income "would be adversely affected by a sale of one-third of the Company's trading stamp *764 business in California"; (4) that "Claims or Causes of Action (as defined) against the Company, including prayers for treble damages, now aggregate approximately $29,000,000"; and (5) that, based upon "statistical evaluations," "the Company presently estimates that 97.5% of all stamps issued will ultimately be redeemed." App. 56, 66.
Plaintiff alleged that these negative statements were known, or should have been known, by the defendants to be false since, for example, the $29,000,000 in purported legal claims were settled for less than $1,000,000 only three months later, and, as a historical fact, less than 90% of all trading stamps are redeemed. Importantly, when the defendants offered their own shares for sale to the public a year later, the prospectus issued at that time made no reference to these factors even though, to the extent that they were relevant on the date of the first prospectus, one year earlier, they would have been equally relevant on the date of the second. As a result of the defendants' negative statements, plaintiff claims that it and its class were dissuaded from exercising their option to purchase Blue Chip shares and that they were damaged accordingly.
From a reading of the complaint in relation to the language of § 10 (b) of the 1934 Act and of Rule 10b-5, it is manifest that plaintiff has alleged the use of a deceptive scheme "in connection with the purchase or sale of any security." To my mind, the word "sale" ordinarily and naturally may be understood to mean, not only a single, individualized act transferring property from one party to another, but also the generalized event of public disposal of property through advertisement, auction, or some other market mechanism. Here, there is an obvious, indeed a court-ordered, "sale" of securities in the special offering of New Blue Chip shares and debentures to former users. Yet the Court denies this *765 plaintiff the right to maintain a suit under Rule 10b-5 because it does not fit into the mechanistic categories of either "purchaser" or "seller." This, surely, is an anomaly, for the very purpose of the alleged scheme was to inhibit this plaintiff from ever acquiring the status of "purchaser." Faced with this abnormal divergence from the usual pattern of securities frauds, the Court pays no heed to the unremedied wrong or to the portmanteau nature of § 10 (b).
The broad purpose and scope of the Securities Exchange Act of 1934 are manifest. Senator Fletcher, Chairman of the Senate Committee on Banking and Currency, in introducing S. 2693, the bill that became the 1934 Act, reviewed the general purposes of the legislation:
"Manipulators who have in the past had a comparatively free hand to befuddle and fool the public and to extract from the public millions of dollars through stock-exchange operations are to be curbed and deprived of the opportunity to grow fat on the savings of the average man and woman of America. Under this bill the securities exchanges will not only have the appearance of an open market place for investors but will be truly open to them, free from the hectic operations and dangerous practices which in the past have enabled a handful of men to operate with stacked cards against the general body of the outside investors. For example, besides forbidding fraudulent practices and unwholesome manipulations by professional market operators, the bill seeks to deprive corporate directors, corporate officers, and other corporate insiders of the opportunity to play the stocks of their companies against the interests of the stockholders of their companies." 78 Cong. Rec. 2271 (1934).
*766 The Senator went on to describe the function of each of the many provisions of the bill, including § 9 (c) which, without significant alteration, became § 10 (b) of the Act. He said, as to this section, in terms that surely are broad:
"The Commission is also given power to forbid any other devices in connection with security transactions which it finds detrimental to the public interest or to the proper protection of investors." Ibid.
Similarly, the broad scope of the identical provision in the House version of the bill was emphasized by one of the principal draftsmen, in testimony before the House Committee on Interstate and Foreign Commerce. Summing up § 9 (c), he stated:
"Subsection (c) says, `Thou shalt not devise any other cunning devices.'
.....
". . . Of course subsection (c) is a catch-all clause to prevent manipulative devices[.] I do not think there is any objection to that kind of a clause. The Commission should have the authority to deal with new manipulative devices." Testimony of Thomas G. Corcoran, Hearing on H. R. 7852 and H. R. 8720 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 115 (1934).
In adopting Rule 10b-5 in 1942, the Securities and Exchange Commission issued a press release stating: "The new rule closes a loophole in the protections against fraud administered by the Commission by prohibiting individuals or companies from buying securities if they engage in fraud in their purchase." SEC Release No. 3230 (May 21, 1942). To say specifically that certain types of fraud are within Rule 10b-5, of course, is not to say that others are necessarily excluded. That this *767 is so is confirmed by the apparently casual origins of the Rule, as recalled by a former SEC staff attorney in remarks made at a conference on federal securities laws several years ago:
"It was one day in the year 1943, I believe. I was sitting in my office in the S. E. C. building in Philadelphia and I received a call from Jim Treanor who was then the Director of the Trading and Exchange Division. He said, `I have just been on the telephone with Paul Rowen,' who was then the S. E. C. Regional Administrator in Boston, `and he has told me about the president of some company in Boston who is going around buying up the stock of his company from his own shareholders at $4.00 a share, and he has been telling them that the company is doing very badly, whereas, in fact, the earnings are going to be quadrupled and will be $2.00 a share for this coming year. Is there anything we can do about it?' So he came upstairs and I called in my secretary and I looked at Section 10 (b) and I looked at Section 17, and I put them together, and the only discussion we had there was where `in connection with the purchase or sale' should be, and we decided it should be at the end.
"We called the Commission and we got on the calendar, and I don't remember whether we got there that morning or after lunch. We passed a piece of paper around to all the commissioners. All the commissioners read the rule and they tossed it on the table, indicating approval. Nobody said anything except Summer Pike who said, `Well,' he said, `we are against fraud, aren't we?' That is how it happened." Remarks of Milton Freeman, Conference on Codification of the Federal Securities Laws, 22 Bus. Law. 793, 922 (1967).
*768 The question under both Rule 10b-5 and its parent statute, § 10 (b), is whether fraud was employedand the language is criticalby "any person . . . in connection with the purchase or sale of any security." On the allegations here, the nexus between the asserted fraud and the conducting of a "sale" is obvious and inescapable, and no more should be required to sustain the plaintiff's complaint against a motion to dismiss.
The fact situation in Birnbaum itself, of course, is far removed from that now before the Court, for there the fundament of the complaint was that the controlling shareholder had misrepresented the circumstances of an attractive merger offer and then, after rejecting the merger, had sold his controlling shares at a price double their then market value to a corporation formed by 10 manufacturers who wished control of a captive source's supply when there was a market shortage. The Second Circuit turned aside an effort by small shareholders to bring this claim of breach of fiduciary duty under Rule 10b-5 by concluding that the Rule and § 10 (b) protected only those who had bought or had sold securities.
Many cases applying the Birnbaum doctrine and continuing critical comments from the academic world[3] followed *769 in its wake, but until today the Court remained serenely above the fray.
To support its decision to adopt the Birnbaum doctrine, the Court points to the "longstanding acceptance by the courts" and to "Congress' failure to reject Birnbaum's reasonable interpretation of the wording of § 10 (b)." Ante, at 733. In addition, the Court purports to find support in "evidence from the texts of the 1933 and 1934 Acts," although it concedes this to be "not conclusive." Ibid. But the greater portion of the Court's opinion is devoted to its discussion of the "danger of vexatiousness," ante, at 739, that accompanies litigation under Rule 10b-5 and that is said to be "different in degree and in kind from that which accompanies litigation in general." Ibid. It speaks of harm from the "very pendency of the lawsuit," ante, at 740, something like the recognized dilemma of the physician sued for malpractice; of the "disruption of normal business activities which may accompany a lawsuit." ante, at 743; and of "proof . . . which depend[s] almost entirely on oral testimony," ibid., as if all these were unknown to lawsuits taking place in America's courthouses every day. In turning to, and being influenced by, these "policy considerations," ante, at 737, or these "considerations of policy," ante, at 749, the Court, in my view, unfortunately mires itself in speculation and conjecture *770 not usually seen in its opinions. In order to support an interpretation that obviously narrows a provision of the securities laws designed to be a "catch-all," the Court takes alarm at the "practical difficulties," ante, at 754, 755, that would follow the removal of Birnbaum's barrier.
Certainly, this Court must be aware of the realities of life, but it is unwarranted for the Court to take a form of attenuated judicial notice of the motivations that defense counsel may have in setting a case, or of the difficulties that a plaintiff may have in proving his claim.
Perhaps it is true that more cases that come within the Birnbaum doctrine can be properly proved than those that fall outside it. But this is no reason for denying standing to sue to plaintiffs, such as the one in this case, who allegedly are injured by novel forms of manipulation. We should be wary about heeding the seductive call of expediency and about substituting convenience and ease of processing for the more difficult task of separating the genuine claim from the unfounded one.
Instead of the artificiality of Birnbaum, the essential test of a valid Rule 10b-5 claim, it seems to me, must be the showing of a logical nexus between the alleged fraud and the sale or purchase of a security. It is inconceivable that Congress could have intended a broad-ranging antifraud provision, such as § 10 (b), and, at the same time, have intended to impose, or be deemed to welcome, a mechanical overtone and requirement such as the Birnbaum doctrine. The facts of this case, if proved and accepted by the factfinder, surely are within the conduct that Congress intended to ban. Whether this particular plaintiff, or any plaintiff, will be able eventually to carry the burdens of proving fraud and of proving reliance and damagethat is, causality and injuryis a matter that should not be left to speculations *771 of "policy" of the kind now advanced in this forum so far removed from witnesses and evidence.
Finally, I am uneasy about the type of precedent the present decision establishes. Policy considerations can be applied and utilized in like fashion in other situations. The acceptance of this decisional route in this case may well come back to haunt us elsewhere before long. I would decide the case to fulfill the broad purpose that the language of the statutes and the legislative history dictate, and I would avoid the Court's pragmatic solution resting upon a 20-odd-year-old, severely criticized doctrine enunciated for a factually distinct situation.
In short, I would abandon the Birnbaum doctrine as a rule of decision in favor of a more general test of nexus, just as the Seventh Circuit did in Eason v. General Motors Acceptance Corp., 490 F.2d 654, 661 (1973), cert. denied, 416 U.S. 960 (1974). I would not worry about any imagined inability of our federal trial and appellate courts to control the flowering of the types of cases that the Court fears might result. Nor would I yet be disturbed about dire consequences that a basically pessimistic attitude foresees if the Birnbaum doctrine were allowed quietly to expire. Sensible standards of proof and of demonstrable damages would evolve and serve to protect the worthy and shut out the frivolous.
NOTES
[1] Neither respondent nor any of the members of its alleged class were parties to the antitrust action. The antitrust decree itself provided no plan for the reorganization of Old Blue Chip but instead merely directed the parties to the consent decree to present to the court such a plan. App. 27, 31.
[2] The District Court opinion is reported at 339 F. Supp. 35 (1971).
[3] The Court of Appeals opinion is reported at 492 F.2d 136 (1973).
[4] See, e. g., §§ 11, 12, 15 of the 1933 Act, 15 U.S. C. §§ 77k, 77l, 77o; §§ 9, 16, 18, 20 of the 1934 Act, 15 U.S. C. §§ 78i, 78p, 78r, 78t.
[5] MR. JUSTICE BLACKMUN, dissenting, post, at 764-765, finds support in the literal language of § 10 (b) since he concludes that in his view "the word `sale' ordinarily and naturally may be understood to mean, not only a single, individualized act transferring property from one party to another, but also the generalized event of public disposal of property through advertisement, auction, or some other market mechanism." But this ignores the fact that this carefully drawn statute itself defines the term "sale" for purposes of the Act, and, as we have noted, infra, at 751 n. 13, Congress expressly deleted from the Act's definition events such as offers and advertisements which may ultimately lead to a completed sale. Moreover, the extension of the word "sale" to include offers is quite incompatible with Congress' separate definition and use of these terms in the 1933 and 1934 Acts. Cf. § 2 (3) of the 1933 Act, 15 U.S. C. § 77b (3). Beyond this, the wording of § 10 (b), making fraud in connection with the purchase or sale of a security a violation of the Act, is surely badly strained when construed to provide a cause of action, not to purchasers and sellers of securities, but to the world at large.
[6] Section 17 (a) of the 1933 Act provides in wording virtually identical to that of Rule 10b-5 with the exception of the italicized portion that:
"It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly
"(1) to employ any device, scheme, or artifice to defraud, or
"(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
"(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser." (Emphasis added.)
We express, of course, no opinion on whether § 17 (a) in light of the express civil remedies of the 1933 Act gives rise to an implied cause of action. Compare Greater Iowa Corp. v. McLendon, 378 F.2d 783, 788-791 (CA8 1967), with Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 (CA2 1951). See, e. g., SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 867 (CA2 1968) (Friendly, J., concurring), cert. denied sub nom. Coates v. SEC, 394 U.S. 976 (1969); 3 L. Loss, Securities Regulation 1785 (2d ed. 1961).
[7] Section 29 (b) of the 1934 Act provides in part:
"Every contract made in violation of any provision of this chapter or of any rule or regulation thereunder, and every contract (including any contract for listing a security on an exchange) heretofore or hereafter made, the performance of which involves the violation of, or the continuance of any relationship or practice in violation of, any provision of this chapter or any rule or regulation thereunder, shall be void (1) as regards the rights of any person who, in violation of any such provision, rule, or regulation, shall have made or engaged in the performance of any such contract, and (2) as regards the rights of any person who, not being a party to such contract, shall have acquired any right thereunder with actual knowledge of the facts by reason of which the making or performance of such contract was in violation of any such provision, rule, or regulation . . . ."
Cf. Deckert v. Independence Shares Corp., 311 U.S. 282 (1940).
[8] MR. JUSTICE BLACKMUN, dissenting, post, at 762, finds the Birnbaum rule incompatible with the purpose and history of § 10 (b) and Rule 10b-5. But it is worthy of more than passing note that the history of Rule 10b-5 itself, recounted at some length in the dissent, post, at 766-767, strongly supports the purchaser-seller limitation. As the dissent notes, Rule 10b-5 was adopted in order to close "a loophole in the protections against fraud . . . by prohibiting individuals or companies from buying securities if they engage in fraud in their purchase." See SEC Release No. 3230 (May 21, 1942); remarks of Milton Freeman, Conference on Codification of the Federal Securities Laws, 22 Bus. Law. 793, 922 (1967). The modest aims and origins of the Rule as recounted by the dissent stand in stark contrast with its far-ranging conclusion that a remedy exists under Rule 10b-5 whenever there is "a logical nexus between the alleged fraud and the sale or purchase of a security." Post, at 770. On these facts, as we have indicated, infra, at 752-754, extension of a Rule 10b-5 cause of action, far from closing an unforeseen loophole, would extend a private right of action for misrepresentations in a 1933 Act prospectus to those whom Congress excluded from the express civil remedies provided in the 1933 Act to cover such a violation.
[9] Obviously this disadvantage is attenuated to the extent that remedies are available to nonpurchasers and nonsellers under state law. Cf. § 28 of the 1934 Act, 15 U.S. C. § 78bb. See Iroquois Industries, Inc. v. Syracuse China Corp., 417 F.2d 963, 969 (CA2 1969), cert. denied, 399 U.S. 909 (1970). Thus, for example, in Birnbaum itself, while the plaintiffs found themselves without federal remedies, the conduct alleged as the gravamen of the federal complaint later provided the basis for recovery in a cause of action based on state law. See 3 L. Loss, Securities Regulation 1469 (2d ed. 1961). And in the immediate case, respondent has filed a state-court class action held in abeyance pending the outcome of this suit. Manor Drug Stores v. Blue Chip Stamps, No. C-5652 (Superior Court, County of Los Angeles, Cal.)
[10] The SEC, recognizing the necessity for limitations on nonpurchaser, nonseller plaintiffs in the absence of the Birnbaum rule, suggests two such limitations to mitigate the practical adverse effects flowing from abolition of the rule. First, it suggests requiring some corroborative evidence in addition to oral testimony tending to show that the investment decision of a plaintiff was affected by an omission or misrepresentation. Brief for the Securities and Exchange Commission as Amicus Curiae 25-26. Apparently ownership of stock or receipt of a prospectus or press release would be sufficient corroborative evidence in the view of the SEC to reach the jury. We do not believe that such a requirement would adequately respond to the concerns in part underlying the Birnbaum rule. Ownership of stock or receipt of a prospectus says little about whether a plaintiff's investment decision was affected by a violation of Rule 10b-5 or whether a decision was even made. Second, the SEC would limit the vicarious liability of corporate issuers to nonpurchasers and nonsellers to situations where the corporate issuer has been unjustly enriched by a violation. We have no occasion to pass upon the compatibility of this limitation with § 20 (a) of the 1934 Act, 15 U.S. C. § 78t (a). We do not believe that this proposed limitation is relevant to the concerns underlying in part the Birnbaum rule as we have expressed them. We are not alone in feeling that the limitations proposed by the SEC are not adequate to deal with the adverse effects which would flow from abolition of the Birnbaum rule. See, e. g., Vine v. Beneficial Finance Co., 374 F.2d 627, 636 (CA2), cert. denied, 389 U.S. 970 (1967); Iroquois Industries, Inc. v. Syracuse China Corp., 417 F. 2d, at 967; Rekant v. Desser, 425 F.2d 872, 879 (CA5 1970); GAF Corp. v. Milstein, 453 F.2d 709, 721 (CA2 1971), cert. denied, 406 U.S. 910 (1972); Drachman v. Harvey, 453 F.2d 722, 736, 738 (CA2 1972) (en bane); Mount Clemens Industries. Inc. v. Bell, 464 F.2d 339, 341 (CA9 1972).
[11] See Brief for Respondent 60.
[12] See n. 1, supra; 492 F. 2d, at 144 n. 3 (Hufstedler, J., dissenting).
[13] Section 3 (a) (13) of the 1934 Act, 15 U.S. C. § 78c (a) (13), provides:
"The terms `buy' and `purchase' each include any contract to buy, purchase, or otherwise acquire."
Section 3 (a) (14) of the 1934 Act, 15 U.S. C. § 78c (a) (14), provides:
"The terms `sale' and `sell' each include any contract to sell or otherwise dispose of."
These provisions as enacted starkly contrast with the wording of the bill which became the 1934 Act when it emerged from committee and was presented on the Senate floor by Senator Fletcher, the chairman of the Senate Committee on Banking and Finance. See S. 2693, 73d Cong., 2d Sess. (1934). Section 3 (11) of the bill as presented to the Senate provided:
"The terms `buy' and `purchase' each include any contract to buy, purchase, or otherwise acquire, contract of purchase, attempt or offer to acquire or solicitation of an offer to sell a security or any interest in a security." (Emphasis added.)
And § 3 (12) of the bill provided:
"The terms `sale' and `sell' each include any contract of sale or disposition of, contract to sell or dispose of, attempt or offer to dispose of, or solicitation of an offer to buy a security or any interest therein." (Emphasis added.)
During consideration of the bill on the Senate floor, the ambit of these provisions was narrowed through amendment into the present wording of §§ 3 (a) (13) and (14). 48 Stat. 884. In arguing that it, as an offeree of stock, ought to be treated as a purchaser or seller for purposes of the Act, respondent is in effect seeking a judicial reinsertion of language into the Act that Congress had before it but deleted prior to passage.
[14] Our decision in SEC v. National Securities, Inc., 393 U.S. 453 (1969), established that the purchaser-seller rule imposes no limitation on the standing of the SEC to bring actions for injunctive relief under § 10 (b) and Rule 10b-5.
[15] Blue Chip did not here present the question of whether an implied action under § 10 (b) of the 1934 Act and Rule 10b-5 will lie for actions made a violation of the 1933 Act and the subject of express civil remedies under the 1933 Act. We therefore have no occasion to pass on this issue. Compare Rosenberg v. Globe Aircraft Corp., 80 F. Supp. 123 (ED Pa. 1948), with Thiele v. Shields, 131 F. Supp. 416 (SDNY 1955). Cf. 3 L. Loss, Securities Regulation 1787-1791 (2d ed. 1961); 6 L. Loss, Securities Regulation 3915-3917 (1969); Bromberg § 2.4 (2).
[1] It is argued that the language "in connection with" justifies extending § 10 (b) to include offers which necessarily precede a purchase or sale. The short answer is that the statute requires a purchase or a sale of a security, and no offer was made to respondent in connection with either. Its complaint rests upon the absence of a sale to or purchase by it.
[2] Proving, after the fact, what "one would have done" encompasses a number of conjectural as well as subjective issues: would the offeree have bought at all; how many shares would he have bought; how long would he have held the shares; were there other "buys" on the market at the time that may have been more attractive even had the offeree known the facts; did he in fact use his available funds (if any) more advantageously by purchasing something else?
[3] It is argued that the special facts of this case justify extending the benefit of § 10 (b) to this respondent, even if the statute ordinarily requires a purchase or a sale. But this resolution also would require judicial extension of the terms of the statute. The mere fact that securities are offered to a limited class of offerees may eliminate some of the problems of proof but it does not avoid the fatal objection that no offer of securities, absent a purchase or sale, is covered by the statute.
[4] It is more than curious that the SEC should seek this change in the 1934 Act by judicial action. The stated purpose of the 1933 Act was "[t]o provide full and fair disclosure of the character of securities sold in interstate and foreign commerce . . . ." See preamble to Act, 48 Stat. 74. The evil addressed was the tendency of the seller to exaggerate, to "puff," and sometimes fraudulently to overstate the prospects and earning capabilities of the issuing corporation. The decade of the 1920's was marked by financing in which the buying public was oversold, and often misled, by the buoyant optimism of issuers and underwriters. The 1933 Act was intended to compel moderation and caution in prospectuses, and this is precisely the way that Act has been administered by the SEC for more than 40 years. Precise factual accuracy with respect to a corporate enterprise is frequently impossible, except with respect to hard facts. The outcome of pending litigation, the effect of relatively new legislation, the possible enactment of adverse legislation, the cost of projected construction or of entering new markets, the expenditures needed to meet changing environmental regulations, the likelihood and effect of new competition or of new technology, and many similar matters of potential relevancy must be addressed in registration statements and prospectuses. In administering the 1933 Act, the SEC traditionally and consistently has encouraged and often required offerors to take conservative postures in prospectuses, especially with respect to judgmental and possibly unfavorable matters. If a different philosophy now were to be read into the 1934 Act, inviting litigation for arguably misleading understatement as well as for overstatement of the issuer's prospects, the hazard of "going to market"already not inconsequentialwould be immeasurably increased.
[5] The dissent also charges that we are callous toward the "investing public"a term it does not define. It would have been more accurate, perhaps, to have spoken of the noninvesting public, because the Court's decision does not abandon the investing public. The great majority of registered issues of securities are offered by established corporations that have shares outstanding and held by members of the investing public. The types of suits that the dissent would encourage could result in large damage claims, costly litigation, generous settlements to avoid such cost, and oftenwhere the litigation runs its coursein large verdicts. The shareholders of the defendant corporationsthe "investing public"would ultimately bear the burden of this litigation, including the fraudulent suits that would not be screened out by the dissent's bare requirement of a "logical nexus between the alleged fraud and the sale or purchase of a security."
[1] Birnbaum v. Newport Steel Corp., 193 F.2d 461 (CA2), cert. denied, 343 U.S. 956 (1952).
[2] Just this Term, however, we did not view with such tender regard another decision by the very same panel. See United States v. Feola, 420 U.S. 671 (1975), and its treatment of an analogy advanced in United States v. Crimmins, 123 F.2d 271 (CA2 1941).
[3] See, e. g., Lowenfels, The Demise of the Birnbaum Doctrine: A New Era for Rule 10b-5, 54 Va. L. Rev. 268 (1968); Boone & McGowan, Standing to Sue Under SEC Rule 10b-5, 49 Tex. L. Rev. 617 (1971); Whitaker, The Birnbaum Doctrine: An Assessment, 23 Ala. L. Rev. 543 (1971); Ruder, Current Developments in the Federal Law of Corporate Fiduciary RelationsStanding to Sue Under Rule 10b-5, 26 Bus. Law. 1289 (1971); Fuller, Another Demise of the Birnbaum Doctrine: "Tolls the Knell of Parting Day?", 25 Miami L. Rev. 131 (1970); Comment, Dumping Birnbaum to Force Analysis of the Standing Requirement under Rule 10b-5, 6 Loyola L. J. 230 (1975); Note, Standing to Sue in 10b-5 Actions, 49 Notre Dame Law, 1131 (1974); Comment, 10b-5 Standing Under Birnbaum: The Case of the Missing Remedy, 24 Hastings L. J. 1007 (1973); Comment, The Purchaser-Seller Requirement of Rule 10b-5 Reevaluated, 44 U. Colo. L. Rev. 151 (1972); Comment, Inroads on the Necessity for a Consummated Purchase or Sale Under Rule 10b-5, 1969 Duke L. J. 349; Comment, The Decline of the Purchaser-Seller Requirement of Rule 10b-5, 14 Villanova L. Rev. 499 (1969); Comment, The Purchaser-Seller Limitation to SEC Rule 10b-5, 53 Cornell L. Rev. 684 (1968). Comment, The Purchaser-Seller Rule: An Archaic Tool for Determining Standing Under Rule 10b-5, 56 Geo. L. J. 1177 (1968). See Note, Limiting the Plaintiff Class: Rule 10b-5 and the Federal Securities Code, 72 Mich. L. Rev. 1398, 1412 (1974). | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4523605/ | IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 46426
STATE OF IDAHO, )
) Opinion Filed: April 8, 2020
Plaintiff-Respondent, )
) Karel A. Lehrman, Clerk
v. )
)
DAVID ROY BAKKE, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. Benjamin J. Cluff, District Judge.
Order of restitution and order denying Idaho Criminal Rule 35 motion for
reduction of sentence, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jeff D. Nye, Deputy Attorney
General, Boise, for respondent.
________________________________________________
HUSKEY, Chief Judge
David Roy Bakke was convicted of grand theft and ordered to pay $2,549.83 in
restitution. On appeal, Bakke argues the district court abused its discretion because its restitution
order was not supported by substantial evidence. Additionally, Bakke contends the district court
abused its discretion in denying his Idaho Criminal Rule 35 motion for reduction in sentence
because it did not consider his evidence of good conduct while incarcerated. Because the district
court’s restitution order is supported by substantial evidence and the court adequately considered
Bakke’s good conduct while incarcerated when it denied his Rule 35 motion, we affirm.
1
I.
FACTUAL AND PROCEDURAL BACKGROUND
Bakke rented a vehicle from Avis1 and signed a rental agreement that included its hourly,
daily, and weekly rental rate. Although it was due to be returned to Avis the following day,
Bakke did not return the vehicle. After several failed attempts to contact Bakke about returning
the vehicle, Avis was eventually able to communicate with Bakke through text messaging to
Bakke’s cell phone. Avis repeatedly stated through these text messages that Bakke needed to
return the vehicle. Bakke replied that he needed the vehicle for medical reasons and that Avis
was evil, malicious, and harassing him about returning the vehicle.
About three weeks after the vehicle was due to be returned, Bakke texted Avis and stated
he had called to extend the rental for a few weeks. Avis had no record of the call. Avis
responded to the text message, indicating that extending the rental was not an option and Bakke
needed to return the vehicle. Avis told Bakke that if he did not return the vehicle, it would be
reported as stolen. Bakke stated that if he was arrested, Avis would not get any of the money
owed. Bakke would not tell Avis when he planned to return the vehicle. Ultimately, Avis
reported the vehicle as stolen.
Seventeen weeks and one day after Bakke rented the vehicle, a police officer in Nevada
saw the vehicle, ran its license plates through the law enforcement system, and was alerted that
the vehicle had been reported as stolen. The officer pulled the vehicle over and arrested Bakke,
who was driving. After Bakke returned to Idaho, the State charged him with felony grand theft.
At trial, both the State and Bakke submitted a copy of the rental agreement as evidence,
which was signed and initialed by Bakke. The rental agreement stated the rental term was for
one day and, similarly, the estimated time and mileage charges reflected one day of rental.
However, in addition, the agreement included the hourly, daily, and weekly charges for the
vehicle. The specified weekly rental rate of the vehicle was $149.99, plus applicable taxes and
fees. The State presented testimony that Bakke kept the vehicle for seventeen weeks and one
1
The record is inconsistent in its reference to the name of the rental company; it includes
references to Avis Car Rental and Budget Car Rental, members of the same parent company.
This Court has chosen to refer to the company as Avis to reflect continuity with the district
court’s order of restitution.
2
day before the vehicle was returned to Avis following Bakke’s arrest. Avis was only able to
collect payment from Bakke’s credit card for the first day Bakke possessed the vehicle.
At trial, the State also presented evidence indicating that Bakke knew Avis required and
was actively seeking the immediate return of the vehicle. However, Bakke testified that he
believed he was validly renting the vehicle for the weekly rate specified in the rental agreement
for the entirety of the time he had the vehicle. Specifically, Bakke testified that he believed he
could keep the vehicle for as long as he wanted at the weekly rate, which he wished to do
because he had no other form of reliable transportation. Bakke testified Avis “gave me the best
weekly rate that I had there ever” and Avis was “offering an excellent weekly rate, so I thought
I’d indulge and try and get that weekly rate.” Additionally, Bakke testified that he believed Avis
was “authorized to take what they needed off my credit card to pay whatever weekly rate that I
had been situated with,” and he was willing to pay Avis what it was owed “in full.”
The jury found Bakke guilty of grand theft, Idaho Code § 18-2403(1), and the district
court sentenced Bakke to a unified sentence of three years, with one year determinate. At the
sentencing hearing, the State sought $3,205.20 in restitution as compensation for Avis’s
economic loss as a result of Bakke’s conduct. Because Bakke’s counsel requested additional
time to review the calculations underlying the State’s figure, the district court reserved the issue
and scheduled a restitution hearing. The day after the district court entered the judgment of
conviction, Bakke filed an Idaho Criminal Rule 35 motion for reconsideration of sentence.
At the restitution hearing, Bakke’s counsel advised the district court that he was no
longer able to represent Bakke in the proceedings because Bakke filed a bar complaint against
him. The court ordered Bakke be assigned conflict counsel and continued the hearing.
Subsequently, Bakke filed a pro se Rule 35 motion for reduction of sentence. Bakke
raised several claims, including that he exhibited good conduct while incarcerated, completed
programming, remained discipline free, and had various support systems to aid him upon release.
The district court held a hearing to address Bakke’s outstanding Rule 35 motion and the issue of
restitution.
At the hearing, the district court acknowledged Bakke’s pro se Rule 35 motion. Although
the motion was untimely, the court stated it would consider the filings as supplemental
documents in support of Bakke’s timely, yet unresolved, previously filed Rule 35 motion. Bakke
and his conflict counsel presented argument in support of the motion.
3
During the court’s consideration of the issue of restitution at the hearing, the State
amended its previous restitution request to $2,549.83, to represent the signed contractual rate of
$149.99 per week for the seventeen weeks Bakke possessed the vehicle without rendering
payment to Avis. The State did not introduce any new testimony or evidence at the hearing,
instead relying only upon the signed rental agreement. Bakke objected to the figure as excessive.
He argued it did not accurately reflect Avis’s economic loss because the State had not provided
evidence that Avis would have been able to rent the vehicle for every day of the seventeen-week
period.
Subsequently, the district court issued an order denying Bakke’s Rule 35 motion for
reduction in sentence. The court listed the supporting documents that Bakke filed and stated,
after consideration of the entirety of the record and arguments presented by both parties, the
underlying facts of the case demonstrated the original sentence was appropriate.
Additionally, the district court entered an order of restitution, finding:
Economic loss, as defined in the statute, includes, but is not limited to, tangible
losses such as the value of property taken [or take[n]], lost wages, and direct out-
of-pocket losses or expenses. Defendant wrongfully retained the victim’s vehicle
for a full 17 weeks without paying for the use of the vehicle, depriving the victim
of the economic benefits of the vehicle. The Court finds that the weekly charge
for the vehicle, that Defendant has admitted that he agreed to pay, multiplied [by]
the amount of time that Defendant wrongfully possessed the vehicle, is an entirely
accurate reflection of the economic loss to the victim.
Accordingly, the court entered a restitution order for $2,549.83. Bakke timely appeals.
II.
ANALYSIS
On appeal, Bakke alleges the district court abused its discretion when it entered a
criminal restitution order for $2,549.83 because the amount was not supported by substantial
evidence. Specifically, Bakke argues the State did not establish that Avis would have been able
to rent the vehicle for every day of the seventeen-week period that it was in Bakke’s possession.
Additionally, Bakke asserts the court abused its discretion when it denied his Rule 35 motion
because it did not consider the new information he provided regarding his good conduct while
incarcerated.
A. The District Court Did Not Abuse Its Discretion in Its Order of Restitution
Bakke argues when a defendant keeps rental property past its return date, the restitution
order must reflect what the victim could have earned from having the property in its possession
4
to rent to others, not what was owed under the contract. Therefore, Bakke contends the State did
not establish that Avis suffered an actual economic loss of $2,549.83 as a result of Bakke’s
conduct because it did not provide evidence that Avis would have been able to rent the vehicle to
others for every day within the seventeen-week period. In response, the State contends the
market value of a stolen item is an appropriate basis for calculating economic loss under the
restitution statute, and the State presented sufficient evidence that $2,549.83 represented the
market value for renting the vehicle for the seventeen-week period, which Bakke had previously
agreed to pay.
Idaho Code Section 19-5304(2) authorizes a sentencing court to order a defendant to pay
restitution for economic loss to the victim of a crime. The decision of whether to order
restitution, and in what amount, is within the discretion of a trial court, guided by consideration
of the factors set forth in I.C. § 19-5304(7) and by the policy favoring full compensation to crime
victims who suffer economic loss. State v. Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct.
App. 2002); State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804, 806 (Ct. App. 1989). Thus, we
will not overturn an order of restitution unless an abuse of discretion is shown. Richmond, 137
Idaho at 37, 43 P.3d at 796. When a trial court’s discretionary decision is reviewed on appeal,
the appellate court conducts a multi-tiered inquiry to determine whether the lower court:
(1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such
discretion; (3) acted consistently with any legal standards applicable to the specific choices
before it; and (4) reached its decision by an exercise of reason. State v. Herrera, 164 Idaho 261,
270, 429 P.3d 149, 158 (2018).
The policy behind Idaho’s restitution statute favors full compensation to crime victims
who suffer economic loss as a result of a defendant’s criminal conduct. See Bybee, 115 Idaho at
543, 768 P.2d at 806. The legislature established that economic losses are to be determined by a
civil preponderance of the evidence standard so that criminal trial courts are able to resolve
issues of restitution, “thus freeing the crime victim of the burden of instituting a civil action
based on the same conduct, and our court system from unnecessary, repetitive trials.” Richmond,
137 Idaho at 38-39, 43 P.3d at 797-98. In this way, restitution clearly benefits the crime victims
by obviating the need to incur the cost and inconvenience of a separate civil action; however
“[r]estitution orders also operate for the benefit of the state, in part because they promote the
5
rehabilitative and deterrent purposes of the criminal law.” State v. Card, 146 Idaho 111, 114,
190 P.3d 930, 933 (Ct. App. 2008).
When a trial court is faced with an issue of restitution, it may order restitution for any
economic loss the crime victim actually suffered. I.C. § 19-5304(2). The statute gives a broad
definition of economic loss, State v. Olpin, 140 Idaho 377, 379, 93 P.3d 708, 710 (Ct. App.
2004), providing:
“Economic loss” includes, but is not limited to, the value of property
taken, destroyed, broken, or otherwise harmed, lost wages, and direct out-of-
pocket losses or expenses, such as medical expenses resulting from the criminal
conduct, but does not include less tangible damage such as pain and suffering,
wrongful death or emotional distress.
I.C. § 19-5304(1)(a). Accordingly, courts have recognized the wide scope of the definition of
economic loss. Its protection covers economic losses that are both the actual and the proximate
cause of the defendant’s actions, State v. Reale, 158 Idaho 20, 25, 343 P.3d 49, 54 (Ct. App.
2014), and includes losses where the actual amount may be difficult to prove with absolute
certainty, see State v. Lombard, 149 Idaho 819, 823, 242 P.3d 189, 193 (Ct. App. 2010).
Bakke relies on People v. Thygesen, 81 Cal. Rptr. 2d 886 (1999) to support his contention
that to accurately reflect a victim’s economic loss, a restitution order must account for how often
the rental item was historically rented and the annual income it produced. In Thygensen, the
defendant rented a cement mixer from a small equipment rental company and failed to return it
on time. Id. at 887. When contacted by the rental company, the defendant claimed the mixer
had been stolen. Id. The company never replaced the mixer and, eventually, the defendant pled
guilty to its theft. Id. at 888. The district court gave the company the choice between a
restitution order that reflected the replacement cost of the mixer or its loss of use, based upon the
mixer’s monthly rental rate, multiplied by the number of months between when the defendant
rented it and the restitution hearing. Id. The rental company chose the latter which reflected the
larger amount. Id.
On appeal, the court referenced the statutory parameters and purpose of California’s
restitution statute, and held that when an item is stolen from a business, the restitution order may
reflect: (1) the replacement of like property; and (2) a reasonable amount to sufficiently
compensate for the loss of use. Id. at 890. When determining a reasonable amount for loss of
6
use, the court noted there should be evidence of how often the item was rented and the income
the item historically produced. Id.
The court held the restitution order was not supported by sufficient evidence, in part,
because there was no evidence to support the district court’s calculation of the loss of use. Id.
The only information before the district court was the monthly rental rate of the mixer; there was
no testimony or documentary evidence about how often the mixer was rented or the income the
mixer historically generated. Id. Instead, the record affirmatively indicated the loss of use to the
company from the mixer’s absence was far less than its monthly rental rate because the company
never replaced the mixer, despite its relatively low replacement cost--“had the mixer been that
valuable, [the company] would have replaced it in a heartbeat. The fact that [the company] did
not do so leads to the suspicion that the mixer was not all that profitable or essential to the
business.” Id.
The facts in this case differentiate it from Thygensen. The court in Thygensen was
confronted with a situation in which a renter informs the rental company that property cannot be
returned (because it had been stolen), and ultimately the company never saw the property
returned. Therefore, a court must determine the replacement cost of the property and speculate
as to the company’s reasonable economic loss resulting from its loss of use. However, here, no
such speculative determination, which would naturally involve consultation of historical rental
data, is required because Avis’s economic loss was not speculative. Avis lost the agreed-upon
weekly rental rate for seventeen weeks. Therefore, the inquiry is simply a determination of the
proper measure for economic loss when an individual rents an item at an agreed upon rate and
fails to compensate the rental company accordingly once the item is returned. Although this
Court has not faced the issue of determining restitution in this scenario, we have previously
emphasized when determining restitution liability, “it would be an anomaly for [a defendant] to
profit by his own wrongdoing.” State v. Hill, 154 Idaho 206, 213, 296 P.3d 412, 419 (Ct. App.
2012).
When faced with a defendant convicted of illegally possessing and then returning a
vehicle, other courts have held the rental rate of the vehicle is an appropriate measure for
calculating the victim’s economic loss. See Wittl v. State, 876 N.E.2d 1136, 1138 (Ind. Ct. App.
2007) (holding that where converted property is returned, damages for deprivation of use of
property may be measured by fair rental value for period of conversion).
7
The undisputed facts demonstrate that Bakke agreed to a specific hourly, daily, and
weekly rate. He testified he thought the weekly rate was more than reasonable and he intended
to take advantage of it. Bakke signed and initialed the agreement and provided his credit card to
Avis for payment collection. Bakke testified he believed he had validly rented the vehicle for the
weekly rate, he legally possessed the vehicle for the seventeen-week period, and Avis was
authorized to collect the weekly rate from his credit card. By testifying that he agreed and Avis
was authorized to collect the weekly rental rate through his credit card, we find Bakke’s
argument unpersuasive that he is not obligated to pay Avis the amount of the weekly rental of the
vehicle.
In assessing the relevant economic loss, the district court determined what Avis could
have rented the vehicle for based upon what it actually rented the vehicle for. Therefore, the
district court determined that Avis could have rented and actually did rent the vehicle for
$149.99 a week, based on the terms of the rental agreement between Bakke and Avis. As such,
Avis’s economic loss is not speculative, and the district court’s determination that the weekly
rate Bakke agreed to pay, multiplied by the seventeen weeks Bakke unlawfully retained the
vehicle, was an accurate measure of the economic loss to the victim. Therefore, Avis incurred an
economic loss of $2,549.83. As the restitution order accurately reflected this amount, the district
court did not abuse its discretion.
B. The District Court Did Not Abuse Its Discretion by Denying Bakke’s Rule 35
Motion
Bakke alleges the district court abused its discretion by denying his Rule 35 motion for
reduction of sentence. Bakke reasons his participation in rehabilitative and pre-release
programming and his good behavior during incarceration supported a reduction in his original
sentence and the district court erred by failing to consider this new information. In response, the
State argues the trial court is not required to consider post-sentencing good behavior as a
mitigating factor in an individual’s sentence when addressing a Rule 35 motion. Alternatively,
the State contends that even if a defendant’s good behavior should be considered, the district
court’s sentence was reasonable.
A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency,
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d
23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In
presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of
8
new or additional information subsequently provided to the district court in support of the
motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our
review of the grant or denial of a Rule motion, we consider the entire record and apply the same
criteria used for determining the reasonableness of the original sentence. State v. Forde, 113
Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987).
Although good conduct while incarcerated is worthy of a trial court’s consideration, it
may not necessarily result in a reduction of a prisoner’s sentence. State v. Gain, 140 Idaho 170,
176, 90 P.3d 920, 926 (Ct. App. 2004). The evidence must be viewed in light of the entire
record, with recognition that good conduct while incarcerated may not be an accurate indicator
of the individual’s future conduct in a noncustodial setting. Id.; see also State v. Gonzales, 122
Idaho 17, 20, 830 P.2d 528, 531 (Ct. App. 1992) (holding district court did not abuse its
discretion by denying defendant’s Rule 35 motion, even when defendant exercised good conduct
while incarcerated and had support system in place upon release).
Here, Bakke acknowledges the district court expressed it would consider Bakke’s
supplemental filings in support of his Rule 35 motion and listed the supplemental documents in
its order denying the motion. However, Bakke argues the district court did not properly consider
these documents because it expressed Bakke had offered “no new information” to support his
Rule 35 motion in its order denying a reduction in his sentence. The district court repeatedly
expressed, both at the hearing and in its order, that it would and did consider the entire record in
making its determination, including Bakke’s supplemental filings and oral argument at the
Rule 35 hearing. Additionally, the court listed the supplemental documents taken into account in
its order.
Even after consideration of this additional information, the court found the underlying
sentence was reasonable, given the underlying facts of Bakke’s criminal case. The district court
stated:
In deciding whether to grant a Rule 35 motion, this Court must determine
whether the sentence, as originally imposed is unreasonable, and whether the new
or additional information render that sentence unreasonable. Defendant has
offered no new information in his written letters to the court or in oral argument at
hearing on this matter.
Immediately after this statement, the court found that the underlying facts of Bakke’s case
demonstrated the sentence was not unreasonable. Therefore, in context, the district court did not
find that Bakke failed to present new information; it found, given the facts of the case, Bakke’s
9
documentation and argument did not provide new information that rendered the original sentence
unreasonable. Because the district court considered evidence of Bakke’s good conduct while
incarcerated, but reasonably found that a reduction in sentence was not appropriate, the court did
not abuse its discretion in denying Bakke’s Rule 35 motion.
III.
CONCLUSION
The district court’s restitution order was supported by substantial evidence and accurately
reflected Avis’s economic loss. Additionally, the court’s denial of Bakke’s Rule 35 motion did
not constitute an abuse of discretion. Accordingly, the district court’s order of restitution and
order denying Bakke’s Rule 35 motion are affirmed.
Judge GRATTON and Judge LORELLO CONCUR.
10 | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/108554/ | 406 U.S. 682 (1972)
KIRBY
v.
ILLINOIS.
No. 70-5061.
Supreme Court of United States.
Argued November 11, 1971.
Reargued March 20-21, 1972.
Decided June 7, 1972.
CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, FIRST DISTRICT.
*683 Jerold S. Solovy argued the cause for petitioner on the reargument and Michael P. Seng argued the cause on the original argument. Messrs. Solovy and Seng were on the briefs for petitioner.
James B. Zagel, Assistant Attorney General of Illinois, reargued the cause for respondent. With him on the brief were William J. Scott, Attorney General, Joel M. Flaum, First Assistant Attorney General, and E. James Gildea, Assistant Attorney General.
Ronald M. George, Deputy Attorney General, argued the cause on the reargument for the State of California as amicus curiae urging affirmance. With him on the brief were Evelle J. Younger, Attorney General, and William E. James, Assistant Attorney General.
MR. JUSTICE STEWART announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join.
In United States v. Wade, 388 U.S. 218, and Gilbert v. California, 388 U.S. 263, this Court held "that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth [and Fourteenth] Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup." Gilbert v. California, supra, at 272. Those cases further held that no "in-court identifications" are admissible in evidence if their "source" is a lineup conducted in violation of this constitutional standard. "Only a per se exclusionary rule as to such testimony can be an effective sanction," the Court said, "to assure that law *684 enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup." Id., at 273. In the present case we are asked to extend the Wade-Gilbert per se exclusionary rule to identification testimony based upon a police station showup that took place before the defendant had been indicted or otherwise formally charged with any criminal offense.
On February 21, 1968, a man named Willie Shard reported to the Chicago police that the previous day two men had robbed him on a Chicago street of a wallet containing, among other things, traveler's checks and a Social Security card. On February 22, two police officers stopped the petitioner and a companion, Ralph Bean, on West Madison Street in Chicago.[1] When asked for identification, the petitioner produced a wallet that contained three traveler's checks and a Social Security card, all bearing the name of Willie Shard. Papers with Shard's name on them were also found in Bean's possession. When asked to explain his possession of Shard's property, the petitioner first said that the traveler's checks were "play money," and then told the officers that he had won them in a crap game. The officers then arrested the petitioner and Bean and took them to a police station.
Only after arriving at the police station, and checking the records there, did the arresting officers learn of the Shard robbery. A police car was then dispatched to Shard's place of employment, where it picked up Shard and brought him to the police station. Immediately upon entering the room in the police station where the petitioner and Bean were seated at a table, Shard positively identified them as the men who had *685 robbed him two days earlier. No lawyer was present in the room, and neither the petitioner nor Bean had asked for legal assistance, or been advised of any right to the presence of counsel.
More than six weeks later, the petitioner and Bean were indicted for the robbery of Willie Shard. Upon arraignment, counsel was appointed to represent them, and they pleaded not guilty. A pretrial motion to suppress Shard's identification testimony was denied, and at the trial Shard testified as a witness for the prosecution. In his testimony he described his identification of the two men at the police station on February 22,[2] and identified them again in the courtroom as the men *686 who had robbed him on February 20.[3] He was cross-examined at length regarding the circumstances of his identification of the two defendants. Cf. Pointer v. Texas, 380 U.S. 400. The jury found both defendants guilty, and the petitioner's conviction was affirmed on appeal. People v. Kirby 121 Ill. App. 2d 323, 257 N.E.2d 589.[4] The Illinois appellate court held that the admission of Shard's testimony was not error, relying upon an earlier decision of the Illinois Supreme Court, People v. Palmer, 41 Ill. 2d 571, 244 N.E.2d 173, holding that the Wade-Gilbert per se exclusionary rule is not applicable to pre-indictment confrontations. *687 We granted certiorari, limited to this question. 402 U.S. 995.[5]
I
We note at the outset that the constitutional privilege against compulsory self-incrimination is in no way implicated here. The Court emphatically rejected the claimed applicability of that constitutional guarantee in Wade itself:
"Neither the lineup itself nor anything shown by this record that Wade was required to do in the lineup violated his privilege against self-incrimination. We have only recently reaffirmed that the privilege `protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature . . . .' Schmerber v. California, 384 U.S. 757, 761. . . ." 388 U.S., at 221.
.....
"We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused *688 to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. . . ." Id., at 222.
It follows that the doctrine of Miranda v. Arizona, 384 U.S. 436, has no applicability whatever to the issue before us; for the Miranda decision was based exclusively upon the Fifth and Fourteenth Amendment privilege against compulsory self-incrimination, upon the theory that custodial interrogation is inherently coercive.
The Wade-Gilbert exclusionary rule, by contrast, stems from a quite different constitutional guaranteethe guarantee of the right to counsel contained in the Sixth and Fourteenth Amendments. Unless all semblance of principled constitutional adjudication is to be abandoned, therefore, it is to the decisions construing that guarantee that we must look in determining the present controversy.
In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 U.S. 45, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458; Hamilton v. Alabama, 368 U.S. 52; Gideon v. Wainwright, 372 U.S. 335; White v. Maryland, 373 U.S. 59; Massiah v. United States, 377 U.S. 201; United States v. Wade, 388 U.S. 218; Gilbert v. California, 388 U.S. 263; Coleman v. Alabama, 399 U.S. 1.
This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the time of arraignment,[6] and the Court *689 has recently held that it exists also at the time of a preliminary hearing. Coleman v. Alabama, supra. But the point is that, while members of the Court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedingswhether by way of formal charge, preliminary hearing, indictment, information, or arraignment.
The only seeming deviation from this long line of constitutional decisions was Escobedo v. Illinois, 378 U.S. 478. But Escobedo is not apposite here for two distinct reasons. First, the Court in retrospect perceived that the "prime purpose" of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, "to guarantee full effectuation of the privilege against self-incrimination . . . ." Johnson v. New Jersey, 384 U.S. 719, 729. Secondly, and perhaps even more important for purely practical purposes, the Court has limited the holding of Escobedo to its own facts, Johnson v. New Jersey, supra, at 733-734, and those facts are not remotely akin to the facts of the case before us.
The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. *690 It is this point, therefore, that marks the commencement of the "criminal prosecutions" to which alone the explicit guarantees of the Sixth Amendment are applicable.[7] See Powell v. Alabama, 287 U. S., at 66-71; Massiah v. United States, 377 U.S. 201; Spano v. New York, 360 U.S. 315, 324 (DOUGLAS, J., concurring).
In this case we are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. We decline to do so. Less than a year after Wade and Gilbert were decided, the Court explained the rule of those decisions as follows: "The rationale of those cases was that an accused is entitled to counsel at any `critical stage of the prosecution,' and that a post-indictment lineup is such a `critical stage.' " (Emphasis supplied.) Simmons v. United States, 390 U.S. 377, 382-383. We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever.
II
What has been said is not to suggest that there may not be occasions during the course of a criminal investigation when the police do abuse identification procedures. Such abuses are not beyond the reach of the Constitution. As the Court pointed out in Wade itself, it is always necessary to "scrutinize any pretrial confrontation *691. . . ." 388 U.S., at 227. The Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293; Foster v. California, 394 U.S. 440.[8] When a person has not been formally charged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.
The judgment is affirmed.
MR. CHIEF JUSTICE BURGER, concurring.
I agree that the right to counsel attaches as soon as criminal charges are formally made against an accused and he becomes the subject of a "criminal prosecution." Therefore, I join in the plurality opinion and in the judgment. Cf. Coleman v. Alabama, 399 U.S. 1, 21 (dissenting opinion).
MR. JUSTICE POWELL, concurring in the result.
As I would not extend the Wade-Gilbert per se exclusionary rule, I concur in the result reached by the Court.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.
After petitioner and Ralph Bean were arrested, police officers brought Willie Shard, the robbery victim, to a room in a police station where petitioner and Bean were seated at a table with two other police officers. Shard testified at trial that the officers who brought him to the *692 room asked him if petitioner and Bean were the robbers and that he indicated they were. The prosecutor asked him, "And you positively identified them at the police station, is that correct?" Shard answered, "Yes." Consequently, the question in this case is whether, under Gilbert v. California, 388 U.S. 263 (1967), it was constitutional error to admit Shard's testimony that he identified petitioner at the pretrial station-house showup when that showup was conducted by the police without advising petitioner that he might have counsel present. Gilbert held, in the context of a post-indictment lineup, that "[o]nly a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup." Id., at 273. I would apply Gilbert and the principles of its companion case, United States v. Wade, 388 U.S. 218 (1967), and reverse.[1]
In Wade, after concluding that the lineup conducted in that case did not violate the accused's right against self-incrimination, id., at 221-223,[2] the Court addressed *693 the argument "that the assistance of counsel at the lineup was indispensable to protect Wade's most basic right as a criminal defendanthis right to a fair trial at which the witnesses against him might be meaningfully cross-examined," id., at 223-224. The Court began by emphasizing that the Sixth Amendment guarantee "encompasses counsel's assistance whenever necessary to assure a meaningful `defence.' " Id., at 225. After reviewing Powell v. Alabama, 287 U.S. 45 (1932); Hamilton v. Alabama, 368 U.S. 52 (1961); and Massiah v. United States, 377 U.S. 201 (1964), the Court, 388 U.S., at 225, focused upon two cases that involved the right against self-incrimination:
"In Escobedo v. Illinois, 378 U.S. 478, we drew upon the rationale of Hamilton and Massiah in holding that the right to counsel was guaranteed at the point where the accused, prior to arraignment, was subjected to secret interrogation despite repeated requests to see his lawyer. We again noted the necessity of counsel's presence if the accused was to have a fair opportunity to present a defense at the trial itself . . . ." United States v. Wade, 388 U. S., at 225-226.[3]
.....
*694 "[I]n Miranda v. Arizona, 384 U.S. 436, the rules established for custodial interrogation included the right to the presence of counsel. The result was rested on our finding that this and the other rules were necessary to safeguard the privilege against self-incrimination from being jeopardized by such interrogation." Id., at 226.
The Court then pointed out that "nothing decided or said in the opinions in [Escobedo and Miranda] links the right to counsel only to protection of Fifth Amendment rights." Ibid. To the contrary, the Court said, those decisions simply reflected the constitutional
"principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial. The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment. . . ." Id., at 226-227.
This analysis led to the Court's formulation of the controlling principle for pretrial confrontations:
"In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice." Id., at 227 (emphasis in original).
*695 It was that constitutional principle that the Court applied in Wade to pretrial confrontations for identification purposes. The Court first met the Government's contention that a confrontation for identification is "a mere preparatory step in the gathering of the prosecution's evidence," much like the scientific examination of fingerprints and blood samples. The Court responded that in the latter instances "the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts." The accused thus has no right to have counsel present at such examinations: "they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial." Id., at 227-228.
In contrast, the Court said, "the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial." Id., at 228. Most importantly, "the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification." Id., at 231-232. The Court's analysis of pretrial confrontations for identification purposes produced the following conclusion:
"Insofar as the accused's conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination *696 which is an essential safeguard to his right to confront the witnesses against him. Pointer v. Texas, 380 U.S. 400. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eye-witness identification at the lineup itself. The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness`that's the man.' " Id., at 235-236.
The Court then applied that conclusion to the specific facts of the case. "Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was `as much entitled to such aid [of counsel] . . . as at the trial itself.' " Id., at 236-237.
While it should go without saying, it appears necessary, in view of the plurality opinion today, to re-emphasize that Wade did not require the presence of counsel at pretrial confrontations for identification purposes simply on the basis of an abstract consideration of the words "criminal prosecutions" in the Sixth Amendment. Counsel is required at those confrontations because "the *697 dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification," id., at 235,[4] mean that protection must be afforded to the "most basic right [of] a criminal defendant his right to a fair trial at which the witnesses against him might be meaningfully cross-examined," id., at 224. Indeed, the Court expressly stated that "[l]egislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as `critical.' " Id., at 239; see id., at 239 n. 30; Gilbert v. California, 388 U. S., at 273. Hence, "the initiation of adversary judicial criminal proceedings," ante, at 689, is completely irrelevant to whether counsel is necessary at a pretrial confrontation for identification in order to safeguard the accused's constitutional rights to confrontation and the effective assistance of counsel at his trial.
In view of Wade, it is plain, and the plurality today does not attempt to dispute it, that there inhere in a confrontation *698 for identification conducted after arrest[5] the identical hazards to a fair trial that inhere in such a confrontation conducted "after the onset of formal prosecutorial proceedings." Id., at 690. The plurality apparently considers an arrest, which for present purposes we must assume to be based upon probable cause, to be nothing more than part of "a routine police investigation," ibid., and thus not "the starting point of our whole system of adversary criminal justice," id., at 689.[6] An arrest, according to the plurality, does not face the accused "with the prosecutorial forces of organized society," nor immerse him "in the intricacies of substantive and procedural criminal law." Those consequences ensue, says the plurality, only with "[t]he initiation of judicial criminal proceedings," "[f]or it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified." Ibid.[7] If these propositions do not amount to *699 "mere formalism," ibid., it is difficult to know how to characterize them.[8] An arrest evidences the belief of the police that the perpetrator of a crime has been caught. A post-arrest confrontation for identification is not "a mere preparatory step in the gathering of the prosecution's evidence." Wade, supra, at 227. A primary, and frequently sole, purpose of the confrontation for identification at that stage is to accumulate proof to buttress the conclusion of the police that they have the offender in hand. The plurality offers no reason, and I can think of none, for concluding that a post-arrest confrontation for identification, unlike a post-charge confrontation, is not among those "critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality." Id., at 224.
The highly suggestive form of confrontation employed in this case underscores the point. This showup was particularly fraught with the peril of mistaken *700 identification. In the setting of a police station squad room where all present except petitioner and Bean were police officers, the danger was quite real that Shard's understandable resentment might lead him too readily to agree with the police that the pair under arrest, and the only persons exhibited to him, were indeed the robbers. "It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police." Id., at 234. The State had no case without Shard's identification testimony,[9] and safeguards against that consequence were therefore of critical importance. Shard's testimony itself demonstrates the necessity for such safeguards. On direct examination, Shard identified petitioner and Bean not as the alleged robbers on trial in the courtroom, but as the pair he saw at the police station. His testimony thus lends strong support to the observation, quoted by the Court in Wade, 388 U. S., at 229, that "[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial." Williams & Hammelmann, Identification Parades, Part I, [1963] Crim. L. Rev. 479, 482.
The plurality today "decline[s] to depart from [the] rationale" of Wade and Gilbert. Ante, at 690. The plurality discovers that "rationale" not by consulting those decisions themselves, which would seem to be the appropriate course, but by reading one sentence in Simmons v. United States, 390 U.S. 377, 382-383 (1968), where no right-to-counsel claim was either asserted or considered. The "rationale" the plurality discovers is, apparently, *701 that a post-indictment confrontation for identification is part of the prosecution. The plurality might have discovered a different "rationale" by reading one sentence in Foster v. California, 394 U.S. 440, 442 (1969), a case decided after Simmons, where the Court explained that in Wade and Gilbert "this Court held that because of the possibility of unfairness to the accused in the way a lineup is conducted, a lineup is a `critical stage' in the prosecution, at which the accused must be given the opportunity to be represented by counsel." In Foster, moreover, although the Court mentioned that the lineups took place after the accused's arrest, it did not say whether they were also after the information was filed against him.[10] Instead, the Court simply pointed out that under Stovall v. Denno, 388 U.S. 293 (1967), Wade and Gilbert were "applicable only to lineups conducted after those cases were decided." 394 U.S., at 442. Similarly, in Coleman v. Alabama, 399 U.S. 1 (1970), another case involving a pre-Wade lineup, no member of the Court saw any significance in whether the accused had been formally charged with a crime before the lineup was held.[11]
*702 The plurality might also have discovered a different "rationale" for Wade and Gilbert had it examined Stovall v. Denno, supra, decided the same day. In Stovall, the confrontation for identification took place one day after the accused's arrest. Although the accused was first brought to an arraignment, it "was postponed until [he] could retain counsel." 388 U.S., at 295. Hence, in the plurality's terms today, the confrontation was held "before the commencement of any prosecution." Ante, at 690.[12] Yet in that circumstance the Court in Stovall *703 stated that the accused raised "the same alleged constitutional errors in the admission of allegedly tainted identification evidence that were before us" in Wade and Gilbert. The Court therefore found that the case "provide[d] a vehicle for deciding the extent to which the rules announced in Wade and Gilbertrequiring the exclusion of identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of his counselare to be applied retroactively." 388 U.S., at 294. Indeed, the Court's explicit holding was "that Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date. The rulings of Wade and Gilbert are therefore inapplicable in the present case." Id., at 296. Hence, the accused in Stovall did not receive the benefit of the new exclusionary rules because they were not applied retroactively; he was not denied their benefit because his confrontation took place before he had "been formally charged with a criminal offense." Ante, at 691. Moreover, in the course of its retroactivity discussion, 388 U.S., at 296-301, the Court repeated the phrase "pretrial confrontations for identification" or its equivalent no less than 10 times. Not once did the Court so much as hint that Wade and Gilbert applied only to confrontations after the accused "had been indicted or otherwise formally charged with [a] criminal offense." Ante, at 684. In fact, at one point the Court summarized Wade as holding "that the confrontation [for identification] is a `critical stage,' and that counsel *704 is required at all confrontations." 388 U.S., at 298 (emphasis added).
Wade and Gilbert, of course, happened to involve post-indictment confrontations. Yet even a cursory perusal of the opinions in those cases reveals that nothing at all turned upon that particular circumstance.[13] In short, it is fair to conclude that rather than "declin[ing] to depart from [the] rationale" of Wade and Gilbert, ante, at 690, the plurality today, albeit purporting to be engaged in "principled constitutional adjudication," id., at 688, refuses even to recognize that "rationale." For my part, I do not agree that we "extend" Wade and Gilbert, id., at 684, by holding that the principles of those cases apply to confrontations for identification conducted after arrest.[14] Because Shard testified at trial *705 about his identification of petitioner at the police station showup, the exclusionary rule of Gilbert, 388 U. S., at 272-274, requires reversal.
MR. JUSTICE WHITE, dissenting.
United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), govern this case and compel reversal of the judgment below.
NOTES
[1] The officers stopped the petitioner and his companion because they thought the petitioner was a man named Hampton, who was "wanted" in connection with an unrelated criminal offense. The legitimacy of this stop and the subsequent arrest is not before us.
[2] "Q. All right. Now, Willie, calling your attention to February 22, 1968, did you receive a call from the police asking you to come down to the station?
"A. Yes, I did.
.....
"Q. When you went down there, what if anything, happened, Willie?
"A. Well, I seen the two men was down there who robbed me.
.....
"Q. Who took you to the police station?
"A. The policeman picked me up.
.....
"MR. POMARO: Q. When you went to the police station did you see the two defendants?
"A. Yes, I did.
"Q. Do you see them in Court today?
"A. Yes, sir.
"Q. Point them out, please?
"A. Yes, that one there and the other one. (Indicating.)
"MR. POMARO: Indicating for the record the defendants Bean and Kirby.
"Q. And you positively identified them at the police station, is that correct?
"A. Yes.
"Q. Did any police officer make any suggestion to you whatsoever?
.....
"THE WITNESS: No, they didn't."
[3] "Q. Willie, when you looked back, when you were walking down the street and first saw the defendants, when you looked back, did you see them then?
"A. Yes, I seen them.
"Q. Did you get a good look at them then?
"A. Yes, I did.
"Q. All right. Now, when they grabbed you and took your money, did you see them then?
"A. Yes, I did.
"Q. Did you get a good look at them then?
"A. Yes.
"Q. Both of them?
"A. Correct.
"Q. When they walked away did you see them then?
"A. Yes.
"Q. Did you look at them, Willie?
"A. Yes.
"Q. Did you get a good look at them?
"A. Yes.
"Q. Are those the same two fellows? Look at them, Willie.
"A. Correct.
"Q. Are those the same two that robbed you?
"A. Yes.
"Q. You are sure, Willie?
"A. Yes."
[4] Bean's conviction was reversed. People v. Bean, 121 Ill. App. 2d 332, 257 N.E.2d 562.
[5] The issue of the applicability of Wade and Gilbert to pre-indictment confrontation has severely divided the courts. Compare State v. Fields, 104 Ariz. 486, 455 P.2d 964; Perkins v. State, 228 So. 2d 382 (Fla.); Buchanan v. Commonwealth, 210 Va. 664, 173 S.E.2d 792; State v. Walters, 457 S.W.2d 817 (Mo.), with United States v. Greene, 139 U. S. App. D. C. 9, 429 F.2d 193; Rivers v. United States, 400 F.2d 935 (CA5); United States v. Phillips, 427 F.2d 1035 (CA9); Commonwealth v. Guillory, 356 Mass. 591, 254 N.E.2d 427; People v. Fowler, 1 Cal. 3d 335, 461 P.2d 643; Palmer v. State, 5 Md. App. 691, 249 A.2d 482; People v. Hutton, 21 Mich. App. 312, 175 N.W.2d 860; Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738; In re Holley, 107 Rawle I. 615, 268 A.2d 723; Hayes v. State, 46 Wis. 2d 93, 175 N.W.2d 625.
[6] "[D]uring perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself." Powell v. Alabama, 287 U.S. 45, 57.
[7] "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." U. S. Const., Amdt. VI.
[8] In view of our limited grant of certiorari, we do not consider whether there might have been a deprivation of due process in the particularized circumstances of this case. That question remains open for inquiry in a federal habeas corpus proceeding.
[1] There is no room here for the application of the harmless-error doctrine. Because the admission of Shard's testimony about his showup identification thus requires reversal, there is no need for me to consider whether a remand would otherwise be necessary to afford the State an opportunity to demonstrate that Shard's in-court identification of petitioner, if that is what it was, see ante, at 686 n. 3, had an independent source. See United States v. Wade, 388 U.S. 218, 239-242 (1967); Gilbert v. California, 388 U.S. 263, 272 (1967).
[2] The plurality asserts that in view of that holding in Wade, "the doctrine of Miranda v. Arizona, 384 U.S. 436, has no applicability whatever to the issue before us." Ante, at 688. That assertion is necessary for the plurality because Miranda requires the presence of counsel before "the time that adversary judicial proceedings have been initiated against" the accused. Ibid. The assertion is nonetheless erroneous, for Wade specifically relied upon Miranda in establishing the constitutional principle that controls the applicability of the Sixth Amendment guarantee of the right to counsel at pretrial confrontations. See 388 U.S., at 226-227.
[3] The plurality asserts that "Escobedo is not apposite here." Ante, at 689. It was, of course, "apposite" in Wade. Hence, to say that Johnson v. New Jersey, 384 U.S. 719, 733-734 (1966), a case decided before Wade, "limited the holding of Escobedo to its own facts," ante, at 689, even if true, is to say nothing at all that is relevant to the present case. The plurality also utilizes Johnson for the proposition "that the `prime purpose' of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, `to guarantee full effectuation of the privilege against self-incrimination. . . .' " Ibid. In view of Wade's specific reliance upon Escobedo and Miranda, that, obviously, is no distinction either. Moreover, it implies that the purpose of Wade was "to vindicate the constitutional right to counsel as such." That was not the purpose of Wade, as my extended summary of the opinion demonstrates.
[4] The plurality refers to "occasions during the course of a criminal investigation when the police do abuse identification procedures" and asserts that "[s]uch abuses are not beyond the reach of the Constitution." Ante, at 690. The constitutional principles established in Wade, however, are not addressed solely to police "abuses," as Wade explicitly pointed out:
"The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused and strongly suggest the plight of the more numerous defendants who are unable to ferret out suggestive influences in the secrecy of the confrontation. We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification." 388 U.S., at 234-235.
[5] This case does not require me to consider confrontations that take place before custody, see, e. g., Bratten v. Delaware, 307 F. Supp. 643 (Del. 1969); People v. Cesarz, 44 Ill. 2d 180, 255 N.E.2d 1 (1969); State v. Moore, 111 N. J. Super. 528, 269 A.2d 534 (1970), nor accidental confrontations not arranged by the police, see, e. g., United States v. Pollack, 427 F.2d 1168 (CA5 1970); State v. Bibbs, 461 S.W.2d 755 (Mo. 1970), nor on-the-scene encounters shortly after the crime, see, e. g., Russell v. United States, 133 U. S. App. D. C. 77, 408 F.2d 1280 (1969); United States v. Davis, 399 F.2d 948 (CA2 1968).
[6] Cf. Miranda v. Arizona, 384 U.S. 436, 477 (1966) (emphasis added):
"The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries."
[7] The plurality concludes that "[i]t is this point, therefore, that marks the commencement of the `criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable." Ante, at 690. This Court has taken the contrary position with respect to the speedy-trial guarantee of the Sixth Amendment: "Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest." "In the case before us, neither appellee was arrested, charged, or otherwise subjected to formal restraint prior to indictment. It was this event, therefore, which transformed the appellees into `accused' defendants who are subject to the speedy trial protections of the Sixth Amendment." United States v. Marion, 404 U.S. 307, 321, 325 (1971).
[8] As the California Supreme Court pointed out, with an eye toward the real world, "the establishment of the date of formal accusation as the time wherein the right to counsel at lineup attaches could only lead to a situation wherein substantially all lineups would be conducted prior to indictment or information." People v. Fowler, 1 Cal. 3d 335, 344, 461 P.2d 643, 650 (1969).
[9] Bean took the stand and testified that he and petitioner found Shard's traveler's checks and Social Security card two hours before their arrest strewn upon the ground in an alley.
[10] In fact, the lineups in Foster took place before the information was filed. The crime occurred on January 25, 1966. After the accused was arrested, he was exhibited to the witness in two lineups, both conducted within two weeks of January 25. The information was not filed until March 17. Foster v. California, No. 47, O. T. 1968, Brief for Respondent 3-8.
[11] In fact, the lineup in Coleman took place before the accused were formally charged. The crime occurred on July 24, 1966. The accused were arrested on September 29, and the lineup was held on October 1. The preliminary hearing was not until October 14, and the indictments were not returned until November 11. Coleman v. Alabama, No. 72, O. T. 1969, Brief for Petitioners 5-7; App. 84; see 399 U.S., at 26 (STEWART, J., joined by BURGER, C. J., dissenting).
On those facts, the plurality opinion adverted to the timing of the lineup only to the extent of pointing out that it was held "about two months after the assault and seven months before petitioners' trial." Id., at 3 (BRENNAN, J., joined by DOUGLAS, WHITE, and MARSHALL, JJ.). The plurality opinion then simply noted that "[p]etitioners concede that since the lineup occurred before [Wade and Gilbert] were decided . . . , they cannot invoke the holding of those cases requiring the exclusion of in-court identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of counsel." Id., at 3-4.
Mr. Justice Black in his concurring opinion took no notice at all of when the lineup was conducted. Instead, reiterating his view that Wade "should be held fully retroactive," he insisted "that petitioners in this pre-Wade case were entitled to court-appointed counsel at the time of the lineup in which they participated and that Alabama's failure to provide such counsel violated petitioners' rights under the Sixth and Fourteenth Amendments." Id., at 13. Nor did Mr. Justice Harlan refer to the timing of the lineup in expressing his "dissent from the refusal to accord petitioners the benefit of the Wade holding, neither petitioner having been afforded counsel at the police `lineup' identification." Mr. Justice Harlan's summary of Wade, like that of the prevailing opinion, did not limit its "rationale" to post-charge confrontations: "The Wade rule requires the exclusion of any in-court identification preceded by a pretrial lineup where the accused was not represented by counsel, unless the in-court identification is found to be derived from a source `independent' of the tainted pretrial viewing." Id., at 21.
[12] The chain of events in Stovall was as follows: The crime occurred on the night of August 23, 1961. The accused was arrested on the afternoon of August 24 and appeared for arraignment on the morning of August 25. The arraignment was postponed until August 31 so that he could retain counsel. The confrontation with the witness took place about noon on August 25. At the arraignment on August 31, the committing magistrate appointed counsel for the accused and set the felony examination for September 1. That examination was never held, for on August 31 the indictment was returned. Stovall v. Denno, No. 254, O. T. 1966, Brief for Respondent 34.
[13] The Wade dissenters found no such limitation: "The rule applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place, and whether before or after indictment or information." United States v. Wade, 388 U. S., at 251 (WHITE, J., joined by Harlan and STEWART, JJ., dissenting in part and concurring in part).
[14] The plurality rather surprisingly asserts that "[t]he issue of the applicability of Wade and Gilbert to pre-indictment confrontation has severely divided the courts." Ante, at 687 n. 5 (emphasis added). As the plurality's citations reveal, there are decisions from five States, including Illinois, that have refused to apply Wade and Gilbert to pre-indictment confrontations for identification. Ranged against those five, however, are decisions from at least 13 States. See People v. Fowler, 1 Cal. 3d 335, 461 P.2d 643 (1969); State v. Singleton, 253 La. 18, 215 So. 2d 838 (1968); Commonwealth v. Guillory, 356 Mass. 591, 254 N.E.2d 427 (1970); Palmer v. State, 5 Md. App. 691, 249 A.2d 482 (1969); People v. Hutton, 21 Mich. App. 312, 175 N.W.2d 860 (1970); Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969); State v. Wright, 274 N. C. 84, 161 S.E.2d 581 (1968); State v. Isaacs, 24 Ohio App. 2d 115, 265 N.E.2d 327 (1970); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970); In re Holley, 107 Rawle I. 615, 268 A.2d 723 (1970); Martinez v. State, 437 S.W.2d 842 (Tex. Ct. Crim. App. 1969); State v. Hicks, 76 Wash. 2d 80, 455 P.2d 943 (1969); Hayes v. State, 46 Wis. 2d 93, 175 N.W.2d 625 (1970).
In addition, every United States Court of Appeals that has confronted the question has applied Wade and Gilbert to pre-indictment confrontations. See United States v. Greene, 139 U. S. App. D. C. 9, 429 F.2d 193 (1970); Cooper v. Picard, 428 F.2d 1351 (CA1 1970); United States v. Ayers, 426 F.2d 524 (CA2 1970); Government of Virgin Islands v. Callwood, 440 F.2d 1206 (CA3 1971); Rivers v. United States, 400 F.2d 935 (CA5 1968); United States v. Broadhead, 413 F.2d 1351 (CA7 1969); United States v. Phillips, 427 F.2d 1035 (CA9 1970); Wilson v. Gaffney, 454 F.2d 142 (CA10 1972). As Chief Judge Lewis, speaking for the Court of Appeals for the Tenth Circuit, put it in the last-cited case:
"In both Wade and Gilbert the lineups were conducted after indictments had been returned; in the case at bar, the lineup occurred before petitioner had been formally charged. But surely the assistance of counsel, now established as an absolute post-indictment right does not arise or attach because of the return of an indictment. The confrontation of a lineup . . . cannot have a constitutional distinction based upon the lodging of a formal charge. Every reason set forth by the Supreme Court in Wade . . . for the assistance of counsel post-indictment has equal or more impact when projected against a pre-indictment atmosphere. We hold that petitioner had a right to counsel at the lineup here considered." Id., at 144. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4523611/ | J-S13027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.L.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
J.D.G. : No. 1835 MDA 2019
Appeal from the Order Entered October 9, 2019
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-15-05580
BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED APRIL 08, 2020
Appellant, T.L.G. (“Mother”), appeals from the October 9, 2019 Order
entered in the Lancaster County Court of Common Pleas that, inter alia,
awarded J.D.G. (“Father”) sole legal custody of R.G. (“Child”) with respect to
decisions regarding Child’s education and mental health. Upon careful review,
we conclude that Mother did not have sufficient notice that custody would be
at issue during the hearing on Mother’s Petition for Special Relief, and,
therefore, the trial court abused its discretion when it modified the existing
custody Order without a petition for modification of custody pending.
Accordingly, we vacate and remand.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S13027-20
A detailed recitation of the procedural and factual history is unnecessary
to our disposition. Briefly, Mother and Father are parents to 12-year-old Child
and her 10-year-old sibling, J.G. The parents have lived separately since 2015
and, pursuant to a July 2016 Custody Order, share legal and physical custody
of the children. In May 2017, the parties filed a joint Petition for Modification
to alter Child’s summer custody schedule and, in June 2017, the trial court
issued an Order incorporating the parties’ stipulation.
Child has a history of mental health issues, which began to escalate in
the beginning of 2019. From January 2019 to July 2019, to address her
mental health issues, Child was taken to the emergency room approximately
five times, required two inpatient hospitalizations, and participated in three
outpatient day programs. Mental health providers diagnosed Child with
generalized anxiety disorder, intermittent explosive disorder, and obsessive-
compulsive disorder. In May 2019, the parents and Child began family based
therapy; nevertheless, Child’s mental health issues continued to escalate. The
parents agreed to send Child to the Trails Carolina Residential Wilderness
Therapy Program (“the Trails Program”) in Asheville, North Carolina. Child
attended the Trails Program for approximately 90 days from June 2019 to
September 2019, when she was ready to graduate. The parents disagreed
upon where Child should attend school upon graduation from the Trails
Program. Mother wanted to follow the recommendation from the Trails
Program and send Child to a therapeutic boarding school in North Carolina,
-2-
J-S13027-20
while Father wanted Child to attend public school with in-school and out-of-
school therapeutic services.
On September 10, 2019, Mother filed Petition for Special Relief
requesting that the trial court enter an order “mandating the parties to follow
the recommendations of the medical professionals and to enroll [Child] in in
the Asheville Academy for Girls immediately.” Petition, 9/10/19, at 3
(unpaginated). In response, on September 19, 2019, the trial court issued an
Order that stated “in consideration of the within Petition, a hearing is
scheduled on the 7th of October, 2019[.]”1 Order, 9/17/19.
On October 7 and 8, 2019, the trial court held a hearing on Mother’s
Petition. At the beginning of the hearing, the trial court stated on the record:
So the Order I will likely issue coming out of this hearing would
award sole legal custody to one or the other of you to make that
decision and that my choice is based on my best assessment of
who has done the most to study the issues, present the
information and analyze the information, and whose decision is
most firmly grounded in what is in the best interest of [Child].
N.T. Hearing, 10/7/19, at 3-4. Mother and Father both testified and submitted
exhibits. At the end of the hearing, the trial court did not place a decision on
the record. Instead, the trial court informed the parties that it would issue a
decision by the end of the day.
On October 8, 2019, the trial court issued an Order that, inter alia,
granted Father sole legal custody of Child with respect to decisions regarding
____________________________________________
1The Order is dated September 11, 2019, but the trial court did not file the
Order until September 17, 2019.
-3-
J-S13027-20
Child’s education and mental health. The Order stated that parents should
continue to share legal custody with “respect to all other aspects of legal
custody pertaining to [Child].” Order, 10/8/19, at 1.
Mother timely appealed. Both Mother and the trial court complied with
Pa.R.A.P. 1925.
Mother raises the following issue for our review:
Did the court err when it granted sole legal custody to Father after
a hearing on Mother’s Petition for Special Relief when no
underlying Petition for Modification had been filed?
Mother’s Br. at 6 (some capitalization omitted).
“We review a trial court's determination in a custody case for an abuse
of discretion, and our scope of review is broad.” S.W.D. v. S.A.R., 96 A.3d
396, 400 (Pa. Super. 2014). This Court must accept the findings of the trial
court that the evidence supports, and defer to the trial judge regarding
credibility and weight of the evidence. Id. “We may reject the trial court's
conclusions only if they involve an error of law or are unreasonable in light of
its factual findings.” Id.
Finally, the primary concern in any custody case is the best interests of
the child. D.K.D. v. A.L.C., 141 A.3d 566, 572 (Pa. Super. 2016). “The best-
interests standard, decided on a case-by-case basis, considers all factors
which legitimately have an effect upon the child's physical, intellectual, moral,
and spiritual well-being. Id. (citations omitted).
-4-
J-S13027-20
Mother avers that the trial court abused its discretion and violated her
due process rights when it modified the prior custody Orders without a petition
for modification of custody pending before the trial court. Mother’s Br. at 23-
24. Mother argues that because she filed a Petition for Special Relief asking
the court to adjudicate a discrete schooling issue, rather than a petition to
modify custody, she did not receive proper and formal notice that custody was
at issue. Id. at 14. We agree.
“Formal notice and an opportunity to be heard are fundamental
components of due process when a legal proceeding may deprive a person of
a liberty interest,” including the custody of a child. Everett v. Parker, 889
A.2d 578, 580 (Pa. Super. 2005) (citation omitted). “Both notice and an
opportunity to be heard must be afforded at a meaningful time in a
meaningful manner.” Id. (citations and internal quotation marks omitted;
emphasis added).
“Notice, in our adversarial process, ensures that each party is provided
adequate opportunity to prepare and thereafter properly advocate its position,
ultimately exposing all relevant factors from which the finder of fact may make
an informed judgment.” Langendorfer v. Spearman, 797 A.2d 303, 309
(Pa. Super. 2002) (quoting Choplosky v. Choplosky, 584 A.2d 340, 342 (Pa.
Super. 1990)). If the parties do not receive proper notice that custody is at
issue, a trial court cannot “assume that the parties had either sufficiently
exposed the relevant facts or properly argued their significance.”
Langendorfer, 797 A.2d at 309 (citation omitted). Consequently, the trial
-5-
J-S13027-20
court cannot make an informed decision about what custody determination is
the best interests of the child. Id.
We acknowledge that, “generally, the appropriate manner in which to
request a modification of a custody order is to file a petition for modification
in compliance with Pa.R.C.P. 1915.15[.]” C.A.J. v. D.S.M., 136 A.3d 504,
507 (Pa. Super. 2016). However, “this does not prevent the trial court, under
appropriate circumstances to alter a custody/visitation Order when it is in the
best interest of the child to do so.” Id. (quoting Guadagnino v. Montie, 646
A.2d 1257, 1262 (Pa. Super. 1994)). This Court has held, “if notice of the
proceeding adequately advises a party that custody will be at issue, a court
may entertain the request to permanently modify a custody order after
hearing in that proceeding.” S.W.D., 96 A.3d at 405–06.
In Langendorfer, an analogous case, this Court determined that a
parent did not receive adequate notice that custody would be at issue during
a contempt proceeding where (1) the pending petition for contempt did not
request a modification in custody, and (2) the subsequent scheduling orders
did not reference custody. See Langendorfer, 797 A.2d at 308-09. Thus,
because the parent did not have proper notice that custody would be at issue,
this Court held that the trial court abused its discretion when it modified the
existing custody order without a pending petition to modify custody. Id.
Here, likewise, Mother did not have proper notice that custody would be
at issue during the hearing in question. Mother’s Petition for Special Relief
does not request any change in custody; rather, it asks the court to adjudicate
-6-
J-S13027-20
a discrete issue regarding Child’s schooling. Moreover, the trial court’s
scheduling order did not reference custody. Accordingly, Mother did not have
proper notice that custody would be at issue during the October 2019 hearings
and, thus, the trial court abused its discretion when it modified the prior
custody Orders without a petition for custody pending.
The trial court opines that it gave Mother and Father adequate notice of
its intent to grant sole legal custody to one parent at the beginning of the
hearing – once in chambers and once on the record. Trial Ct. Op., 12/10/19,
at 2-3. The trial court further concludes that because Mother did not object to
this last-minute notice, she has waived the issue. Id. at 17. We disagree.
The trial court did not provide notice that legal custody of Child was at
issue “at a meaningful time and in a meaningful manner” to ensure that
Mother had adequate opportunity to prepare and advocate for her rights.
Everett, 889 A.2d at 580; Langendorfer, 797 A.2d at 309. Instead, the trial
court informed parties at the beginning of the hearing that custody was “likely”
at issue, affording Mother no advance time to prepare or properly advocate.
Moreover, we reject the trial court’s suggestion that Mother had an obligation
to object to the trial court’s improper and indefinite notice that it might grant
sole legal custody to one parent. In fact, the trial court did not inform Mother
that it definitively decided to grant sole legal custody to Father until it issued
its Order after the hearing. Thus, we decline to find this issue waived.
In conclusion, the trial court violated Mother’s due process rights when
it awarded Father sole legal custody over Child’s education and mental health
-7-
J-S13027-20
decisions, and without giving Mother proper notice that custody was at issue
during the hearing on Mother’s Petition for Special Relief. Without proper
notice, the parties were unable to advocate properly and the trial court could
not make a fully informed decision as to whether it was in Child’s best interest
to grant Father sole legal custody over Child’s mental health and educational
decisions.2
For the foregoing reasons, we find that the trial court abused its
discretion when it modified the existing custody order without proper notice.
Accordingly, we vacate the October 9, 2019 Order and remand for a decision
on Mother’s Petition for Special Relief.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/08/2020
____________________________________________
2 We note that the trial court failed to engage in an analysis of the Section
5328 custody factors to determine whether granting sole legal custody to
Father was in Child’s best interest. See 23 Pa.C.S. § 5328. Even if we
concluded that the parties had proper notice, this Court would be compelled
to vacate and remand for this reason. See C.M. v. M.M., 215 A.3d 588, 594
(Pa. Super. 2019) (vacating the custody order and remanding the matter for
the trial court to review and consider the Section 5328 factors on the record
or in a written opinion when ordering a form of custody).
-8- | 01-03-2023 | 04-08-2020 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.