url stringlengths 55 59 | text stringlengths 0 1.43M | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8312875/ | REBECCA R. PALLMEYER, United States District Judge
Plaintiff Robert Wilson, a cardiologist, has been embroiled in litigation ever since his medical license was suspended in 1998. In 2014, he filed this lawsuit, following the Circuit Court of Cook County's fourth reversal of an Illinois agency decision upholding the suspension. This court dismissed the case on statute of limitations grounds, Wilson v. Ill. Dep't of Fin. and Prof'l Regulation , No. 14 CV 10521, 2016 WL 1073072 (N.D. Ill. Mar. 18, 2016), but the Seventh Circuit reversed and remanded, concluding that the suit was timely filed. Wilson v. Ill. Dep't of Fin. and Prof'l Regulation , 871 F.3d 509, 513 (7th Cir. 2017). Now, Defendants Illinois Department of Financial and Professional Regulation ("IDFPR"), Andrew Gorchynsky, Thomas Glasgow, Leonard Sherman, and Jay Stewart move to dismiss Plaintiff's Fourth Amended Complaint [90] for failure to state a claim, FED. R. CIV. P. 12(b)(6), and for lack of subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). For the reasons explained here, the motion is granted in part and denied in part without prejudice.
BACKGROUND
When reviewing a 12(b)(6) motion to dismiss, the court "must take the truth of the allegations in [the] complaint at face value." Simpson v. Brown Cty. , 860 F.3d 1001, 1009 (7th Cir. 2017). The underlying facts of this case have remained largely unchanged since the court issued its first opinion dismissing Dr. Wilson's Second Amended Complaint.1 Wilson , 2016 WL 1073072, vacated , Wilson , 871 F.3d 509.
In mid-September 1998, Henry Taylor was admitted to Olympia Fields Hospital at the age of 69. (Fourth Am. Compl. [90] ¶ 11.) Mr. Taylor suffered from superior vena cava ("SVC") syndrome and end-stage renal disease. His condition was deteriorating, *856and he signed two "do not resuscitate" orders while under the care of another doctor who is not party to this suit. At approximately 8:10 on the morning of September 30, Plaintiff Dr. Wilson was called to care for Mr. Taylor. As a complication of Mr. Taylor's SVC, his windpipe was collapsing, and he had refused a breathing tube. His death was imminent; he was struggling to breathe, gasping for air, and "flailing about" when Dr. Wilson arrived. (Id. at ¶¶ 15, 16.) At 8:16, Mr. Taylor's windpipe fully collapsed, "cutting off all oxygen." (Id. at ¶ 19.) He was, however, still fully conscious. With the do-not-resuscitate orders in place, Dr. Wilson "believed he was morally and professionally obligated ... to do everything within his power to relieve Taylor's conscious suffering as Taylor slowly went through the agonizing process of suffocating to death." (Id. at ¶ 21.) Dr. Wilson twice administered morphine. (Id. at ¶¶ 16, 20.) He then began to inject Mr. Taylor with 40 milliequivalents (m/eq) of potassium chloride, a drug that is lethal in a dose of 240 m/eq.2 (Id. at ¶ 28.) Dr. Wilson intended the selected dose to render Mr. Taylor "unconscious during the final stages of [his] process of death." (Id. ) "As Dr. Wilson began the injection, however, Taylor's heart stopped from lack of oxygen due to the natural progression of his underlying disease," and Taylor was pronounced dead at 8:25AM. (Id. at ¶ 29.) At least two other doctors were present at the time of Mr. Taylor's death. (Id. at ¶¶ 43, 45.3.)
Deputy Chief Medical Examiner Mitra Kalelkar at the Cook County Medical Examiner ("CCME") conducted an autopsy on October 1, 1998. (Id. at ¶ 38.) The autopsy was not conclusive, and Dr. Kalelkar "listed the cause of Taylor's death as uncertain 'pending' the return of the lab/toxicology results on Taylor's blood." (Id. ) Later that same day, before receiving the results, but after having a conversation with an unidentified person who told Dr. Kalelkar a "story" about Dr. Wilson using potassium chloride, Dr. Kalelkar determined that Taylor's death was a homicide from potassium chloride intoxication. (Id. at ¶¶ 39, 42.) The lab results that came back on October 2 were inconsistent with that determination; the report found "that Taylor had a normal potassium level at the time of his death, which meant that the potassium chloride injection had not reached [his] heart by the time of [his] death." (Id. at ¶ 39.) Dr. Kalelkar never reviewed those lab results, however, and did not change the homicide determination. (Id. )
Following the autopsy, Dr. Kalelkar notified the Olympia Fields Police Department that Mr. Taylor's death was a homicide, and CCME released Mr. Taylor's body for cremation on October 6, foreclosing the possibility of a second-opinion autopsy. (Id. at ¶ 41.) On October 7, Dr. Kalelkar and her boss met with Dr. Andrew Gorchynsky and Thomas Glasgow of the IDFPR Department of Professional Regulation ("DPR"). Dr. Gorchynsky was the Chief Medical Coordinator for the DPR, "responsible for reviewing complaints against Illinois doctors, and for making recommendations regarding the investigation and disposition of those complaints." (Id. at ¶ 42.) Glasgow was the Chief of Medical Prosecutions at DPR.3
*857(Id. at ¶ 9.3.) "At this meeting, Kalelkar informed Gorchynsky and Glasgow that her conclusion as to the cause of death (potassium chloride intoxication) and the manner of death (homicide) was not based on any scientific or medical testing on the body of Taylor, or the analysis of any lab results on Taylor's blood." (Id. at ¶ 42.) After a "cursory" review of some of Mr. Taylor's medical records, but without interviewing any witnesses, reviewing any "chart notes prepared by the other doctors who were present at the time of Taylor's death," or consulting any expert materials, Gorchynsky and Glasgow determined that they agreed with Dr. Kalelkar's homicide determination. (Id. at ¶ 43.) Dr. Wilson alleges that this is because "Gorchynsky, Glasgow, and Doe Defendants 1-5,4 were of the [incorrect] belief the potassium chloride, upon injection, would immediately cause Taylor's heart to stop." (Id. at ¶ 45.2.) Had they conducted an adequate investigation, Gorchynsky and Glasgow would have learned, among other things, that Mr. Taylor's heart stopped just "as the [potassium chloride injection] was being given" (id. at ¶ 45.3); that the 40 m/eq dose was non-fatal (id. at ¶ 45.1); and that Mr. Taylor's potassium level was normal at the time he died. (Id. at ¶ 45.5.)
Based on their conclusion that Dr. Wilson intended to kill Mr. Taylor, Gorchynsky, Glasgow, and Doe Defendants 1-5 "decided that the [DPR] should file a Complaint against Dr. Wilson seeking the revocation of [his] medical license" on October 9, 1998 "for his alleged intent to kill his patient." (Id. at ¶¶ 48, 49.) They also sought "an ex parte summary suspension of Dr. Wilson's medical license," filing a Petition for Temporary Suspension5 with the Director of the IDFPR, Nikki Zollar. (Id. at ¶¶ 49, 50.) Attached to the petition was an affidavit from Dr. Gorchynsky representing that he had "reviewed medical records and other documents" pertaining to Mr. Taylor's treatment, and that the "above records document" that Dr. Wilson "injected Henry Taylor with Potassium Chloride for the purpose of causing Henry Taylor's death." (Id. at ¶ 50 (quoting Ex. 21 to id. ).) The Director entered an order suspending Dr. Wilson's medical license on October 9, 1998. (Id. at ¶ 51.) Mr. Wilson *858never had an opportunity to be heard prior to the suspension. (Id. )
After the suspension, Plaintiff alleges, "certain members of the Department discovered that the Department's charges against Dr. Wilson were totally without merit." (Id. at ¶ 54.) "[T]he Department was specifically told by one of its prosecutors ... that it couldn't prove the charges against Dr. Wilson ... [and prosecutor William McLaughlin] (whose job it was to stay in contact with the Cook County State's Attorney's Office on its investigation of Taylor's death) [informed the Department] that Taylor didn't have a chance to live." (Id. at ¶ 55.) In November 1998, the Medical Disciplinary Board ("MDB") of the IDFPR did withdraw the charge that Dr. Wilson had injected Mr. Taylor "for the purpose of causing" his death from its complaint, but it continued with Dr. Wilson's prosecution, and it left the summary suspension order in place. (Id. at ¶ 56.)
In April 1999, Dr. Wilson and his attorneys met with Glasgow and an assistant prosecutor from the Department "to discuss the progress of the license revocation proceedings." (Id. at ¶ 58.) At that meeting, Glasgow allegedly "told Dr. Wilson that he did not care about Dr. Wilson's 5th Amendment rights [to due process], that [the Department] would revoke his license to practice medicine, and ... that if [Glasgow] were the prosecuting States [sic] Attorney[,] he would have Dr. Wilson locked up and tried for murder because Dr. Wilson murdered Mr. Taylor." (Id. (modifications in original) (quoting Attorney Edward Nielsen's Affidavit, Ex. 26 to id. ).) Glasgow also allegedly stated that "he would not consider lifting the suspension on Dr. Wilson's license because Dr. Wilson is a danger to society." (Fourth Am. Compl. [90] ¶ 58 (quoting Attorney Denise Nalley's Affidavit, Ex. 27 to id. ).) By the end of September 1999, the Cook County State's Attorney's Office had determined that it would not press charges against Dr. Wilson.6 (Fourth Am. Compl. [90] ¶ 59.) At that time, Dr. Wilson's medical license remained suspended under the summary suspension order, and he had not yet had a hearing with the IDFPR.
Around the same time, several other events occurred. Then-director of the DPR7 Leonard Sherman stated in a televised interview: "I think he [Dr. Wilson] is always within his rights to come in and say that the danger to the public no longer exists and make his argument." (Id. at ¶ 60.) Glasgow allegedly informed Dr. Wilson's attorney that "unless Dr. Wilson admitted his wrongdoing by use of potassium chloride, and further agreed to a sentence of discipline ..., the MDB 'w[ould] find against Dr. Wilson' at the [upcoming] formal hearing ...." (Id. at ¶ 63.) "Glasgow made it clear to Dr. Wilson's attorney ... that regardless as to what the facts or evidence at the upcoming hearing turned out to be, Dr. Wilson 'would lose before the [Disciplinary] Board.' " (Id. )
Mr. Wilson's IDFPR revocation hearing finally took place before a hearing officer in November 1999.8 (Memorandum Opinion *859and Order, Ex. 30 to Fourth. Am. Compl. [90-2], at 2.) Illinois law establishes the procedures for such hearings. The IDFPR Secretary (in this action, also referred to as the Director9 ) has "the authority to appoint an attorney duly licensed to practice law in the State of Illinois to serve as the hearing officer in any action to suspend, revoke ... or take any other disciplinary action with regard to a [medical] license." 225 ILL. COMP. STAT. 60/35. After conducting a hearing, during which "the accused person shall be accorded ample opportunity to present in person, or by counsel, such statements, testimony, evidence and argument as may be pertinent," that hearing officer "shall report his findings and recommendations to the ... [MDB] within 30 days of the receipt of the record." Id. at 60/35, 60/37(a). The MDB then has "60 days from the receipt of the [hearing officer's] report to review the report ... and present their findings of fact, conclusions of law and recommendations to the [IDFPR] Secretary." Id. at 60/35. Once the MDB has made its recommendation, the Secretary "may take the action recommended by the [MDB]," id. at 60/40(b), or the Secretary may "disagree[ ] with or take[ ] action contrary of the recommendation, ... fil[ing] with the [MDB] his or her specific written reasons of disagreement." Id. at 60/44.10
Plaintiff alleges that his first hearing was a "sham." (Fourth Am. Compl. [90] ¶ 67.) The hearing officer ultimately "recommended that Dr. Wilson's medical license be suspended for a minimum of five years"; the MDB issued its findings to the IDFPR Director, and the Director adopted that recommendation, suspending Dr. Wilson's license through October 9, 2003.11 (Id. at ¶ 66.) Following the hearing, Prosecutor McLaughlin ran into Dr. Wilson in a restaurant. McLaughlin allegedly told Dr. Wilson, among other things, that the IDFPR "had 'blackballed' Dr. Wilson from the start," that "the [MDB] Board had it out for" him, that the hearing officer "had 'his strings ... pulled [from above],' " and that Glasgow "had it out for" Dr. Wilson. (Id. at ¶ 67.)
*860Dr. Wilson subsequently sought review of the administrative decision by the Circuit Court of Cook County. In April 2002, that court reversed the Department's decision on grounds discussed in this court's prior opinion. Wilson , 2016 WL 1073072, at *4 (detailing IDFPR's subsequent appeal). The case was eventually remanded to the IDFPR in October 2004. This next round of IDFPR proceedings was not an improvement over the first: Plaintiff alleges that the hearing officer "refused to allow Dr. Wilson to substitute his rebuttal expert witness." (Id. at ¶ 72.) "[I]t took over 10-1/2 months for [the hearing officer] to rule on Dr. Wilson's Motion for Substitution of Expert Witness." (Id. at ¶ 73.) Subsequently, the MDB issued further findings to the Director on November 1, 2006 without notice to Dr. Wilson,12 and the Director again affirmed Dr. Wilson's suspension. (Id. at ¶ 72.) "[I]t took an additional 8-1/2 months before the Director entered a final order." (Id. at ¶ 73.) Ultimately, it took the Department "just under 20 months to enter a final decision" on remand. (Id. ) Dr. Wilson again appealed to the Circuit Court in August 2007, and that court again reversed the hearing officer's determination, remanding to the agency on May 9, 2008. (Id. at ¶ 74.)
Dr. Wilson's re-hearing before a hearing officer took place on October 29, 2008. (Id. at 75.) The hearing officer issued his recommendation of a five-year suspension on March 11, 2009, and the recommendation was adopted by the Director13 on July 21, 2009. The Department's decision to suspend Dr. Wilson's medical license was again reversed and remanded by the Circuit Court of Cook County on July 25, 2011. (Id. at ¶ 77.)
It is unclear when the fourth and final round of agency proceedings occurred. The hearing officer issued his report and recommendation on April 15, 2012; that recommendation was ultimately accepted by the MDB on May 16 and adopted by Director Stewart,14 but Stewart apparently never entered the recommendation as a final order. (Id. at ¶ 78.) In March 2013, the MDB issued "new" findings, mirroring the May 16 findings from the prior year. (Id. ) Director Stewart then entered a final order on April 26, 2013. Dr. Wilson contends that "it was not proper for Stewart to support the Department's decision in its license revocation proceedings against Dr. Wilson by reference to [these] alleged 'facts' that were not introduced on the record during the course of a hearing, with no notice to Dr. Wilson and no opportunity for cross examination or to put on rebuttal evidence." (Fourth Am. Compl. [90] ¶ 80.) Dr. Wilson again appealed in the Circuit Court. On May 21, 2014, the Circuit Court of Cook County again reversed the Department's suspension of Dr. Wilson's license, *861this time on the merits. (Order, Ex. 2 to Third Am. Compl. [86-1].) Pursuant to that court's final judgment order, Dr. Wilson agreed to
hold his license to practice medicine in abeyance pending (a) completion of all reasonable, necessary, and appropriate continuing medical education courses as reasonably required by the [IDFPR] ... (b) successful completion of all reasonable, necessary and appropriate competency testing as reasonably required by the [IDFPR] for the practice of medicine in the State of Illinois; and (c) all other reasonable, necessary and appropriate requirements for the practice of medicine in the State of Illinois as the [IDFPR] may reasonably require, consistent with the Court's May, 21 2014 order.
(Id. ) The IDFPR did not appeal, and the Cook County Circuit Court's decision stands. (Fourth Am. Compl. [90] ¶ 81.) To the court's knowledge, Dr. Wilson has not completed the steps outlined in that final judgment and has not returned to medical practice.
Dr. Wilson filed this lawsuit on December 31, 2014. The court granted Defendants' motion to dismiss on statute of limitations grounds on March 18, 2016. Wilson , 2016 WL 1073072. The Seventh Circuit reversed and remanded that ruling, however, Wilson , 871 F.3d 509, and on remand Plaintiff filed his Third [36] and then Fourth Amended Complaints [90]. Count I of the Fourth Amended Complaint alleges that Defendants Gorchynsky, Glasgow, Doe Defendants 1-5, and Doe Defendants 21-30 violated Dr. Wilson's Fourth Amendment rights by unreasonably seizing his medical license. Count I also alleges that Defendants violated Plaintiff's Fourteenth Amendment due process rights by interfering with Dr. Wilson's property interest in his license and his liberty interest in continuing with his chosen profession. Count II alleges that Defendants Gorchynsky, Sherman, Stewart, Doe Defendants 6-10, and Doe Defendants 21-30 are liable for the violations of Dr. Wilson's Fourth Amendment and due process rights under a supervisory responsibility theory. Count III similarly alleges that Defendants Stewart, Doe Defendants 11-20, and Doe Defendants 21-30 "failed to act in reckless disregard of Dr. Wilson's constitutional rights." Count IV levies a "stigma-plus" due process claim against Defendant Sherman for statements Sherman made in a televised interview. Count V alleges that all Defendants conspired to violate Dr. Wilson's constitutional rights. Count VI charges Gorchynsky, Glasgow, Sherman, Stewart, Doe Defendants 1-5, Doe Defendants 6-10, and Doe Defendants 21-30 with malicious prosecution under Illinois law. Count VII claims that the IDFPR and the State of Illinois are liable to Dr. Wilson for the ex parte summary suspension of his medical license pursuant to 225 ILL. COMP. STAT. 60/46. Finally, Count VIII requests that the court enter a declaratory judgment that all individual defendants are indemnified by the State of Illinois. Defendants now move, together, to dismiss the Fourth Amended Complaint.
DISCUSSION
I. Legal Standard
A motion to dismiss under Rule 12(b)(6)"tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). See also FED. R. CIV. P. 8(a)(2) (requiring a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief"). To survive a 12(b)(6) motion to dismiss, a complaint must "contain sufficient *862factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Still, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. 1937.
II. Section 1983 Claims
"To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States, and (2) the defendant acted under color of state law." Reed v. City of Chicago , 77 F.3d 1049, 1051 (7th Cir. 1996). Defendants here argue that Dr. Wilson has failed to sufficiently state a claim for any Constitutional violations. They also argue that all individual Defendants enjoy absolute immunity from any suit for damages under various doctrines. The court addresses the immunities first.
A. Prosecutorial Immunity
Defendants Glasgow and Gorchynsky claim that they are absolutely immune from any damages suit because they were acting as prosecutors in Dr. Wilson's license revocation proceedings. "Prosecutors are absolutely immune from suits for monetary damages under § 1983 for conduct that is 'intimately associated with the judicial phase of the criminal process.' " Smith v. Power , 346 F.3d 740, 742 (7th Cir. 2003) (quoting Imbler v. Pachtman , 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) ). "[A]gency officials performing certain functions analogous to those of a prosecutor" are also protected by prosecutorial immunity. Butz v. Economou , 438 U.S. 478, 515, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).
Courts take a functional approach when analyzing the availability of prosecutorial immunity; whether an official is immune depends on "the nature of the function performed." Kalina v. Fletcher , 522 U.S. 118, 127, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (quoting Forrester v. White , 484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) ). Protected conduct includes, but is not limited to, a prosecutor's acting as "an advocate for the State," Smith , 346 F.3d at 742 ; "prepar[ing] to initiate a judicial proceeding," Van de Kamp v. Goldstein , 555 U.S. 335, 343, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009) (citations omitted); "appear[ing] in court to present evidence," id. ; and "determin[ing] that [ ] evidence [is] sufficiently strong to justify a probable-cause finding." Kalina , 522 U.S. at 130, 118 S.Ct. 502. Not every step taken by a prosecutor is shielded from challenge, however; activity carried out in an investigative role and conduct "unrelated to the preparation and initiation of judicial proceedings" are not protected. Smith , 346 F.3d at 742. For example, prosecutors do not enjoy absolute immunity when they make statements to the press or when they "act[ ] as a complaining witness in support of a warrant application." Van de Kamp , 555 U.S. at 343, 129 S.Ct. 855 (citations omitted). See Buckley v. Fitzsimmons , 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) ("There is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend *863that a suspect be arrested, on the other hand.").
Glasgow, a prosecutor by title, is protected by prosecutorial immunity for his evaluation of the evidence against Dr. Wilson and for presenting the IDFPR's case in front of the hearing officer. See Davis v. Zirkelbach , 149 F.3d 614, 617 (7th Cir. 1998) (affirming the district court's finding that two prosecutors were absolutely immune from claims arising "from their decisions to commence and continue prosecuting" plaintiff). Similarly, Glasgow's decision to seek an ex parte summary suspension of Dr. Wilson's medical license was part of Glasgow's advocacy on behalf of the State; there is no allegation that Glasgow had actual knowledge of the exculpatory lab results at the time he helped petition for the ex parte summary suspension charge against Dr. Wilson.15 This renders Glasgow immune from Count I of the Fourth Amended Complaint, which deals only with the issuance of the summary suspension; he is not named in Counts II through IV. Glasgow is also immune from the § 1983 conspiracy allegations in Count V. Section 1983 requires "an actual denial of a civil right is necessary before a cause of action arises." Goldschmidt v. Patchett , 686 F.2d 582, 585 (7th Cir. 1982). See also House v. Belford , 956 F.2d 711, 720 (7th Cir. 1992) ("A person may not be prosecuted for conspiring to commit an act that he may perform with impunity. Thus, we fail to understand how a witness can be held liable under § 1983 for conspiring to commit an act for which he is protected from § 1983 liability by absolute immunity.") Because Glasgow is immune from the only Constitutional allegation against him, he is dismissed from the § 1983 conspiracy claim as well.16
Gorchynsky, as the Chief Medical Coordinator of the DPR, is partially cloaked with prosecutorial immunity. (Fourth Am. Compl. [90] ¶ 9.2.) See 225 ILL. COMP. STAT. 60/7 (providing that the "Chief Medical Coordinator shall be the chief enforcement officer" of the Medical Practice Act of 1987, 225 ILL. COMP. STAT. 60/1 et seq. ). Gorchynsky's initial evaluation of the evidence against Dr. Wilson, his decision to request an ex parte summary suspension, and his decision to recommend that the IDFPR file a Complaint against Dr. Wilson are, like Glasgow's activities, all protected prosecutorial conduct. Later, however, after meeting with Kalelkar and Donoghue, Gorchynsky submitted an affidavit *864in support of the summary suspension of Dr. Wilson's medical license to the Director of the IDFPR. That affidavit represented that Gorchynsky had "reviewed medical records and other documents regarding the treatment of [ ] Henry Taylor," and that the records "document[ed] that ... Dr. Robert Wilson ... injected Henry Taylor with Potassium Chloride for the purpose of causing Henry Taylor's death." (Fourth Am. Compl. [90] ¶ 50 (citing Ex. 21 to id. ).) Wilson contends that the medical records documented quite the opposite, and that Gorchynsky's "lack of an adequate investigation" resulted in his affidavit containing a false representation. (Id. ) The submission of an affidavit is not protected by prosecutorial immunity: "when prosecutors are engaged in the sensitive tasks of ... swearing out an information to support a prosecution, the Court has held that they are entitled only to qualified immunity from suit." Davis v. Zirkelbach , 149 F.3d 614, 617 (7th Cir. 1998) (citing Kalina , 522 U.S. at 130-32, 118 S.Ct. 502 ). Kalina involved an affidavit submitted by a prosecutor in support of "an application for an arrest warrant." Kalina , 522 U.S. at 120, 118 S.Ct. 502. The affidavit came as part of a "certification for determination of probable cause," in which the prosecutor "personally attest[ed] to the truth of the averments in the certification. Id. at 509. The Supreme Court found that the submission of that affidavit was not protected by prosecutorial immunity because "[t]estifying about facts is the function of the witness, not of the lawyer." Id. at 510. Similarly, Gorchynsky's affidavit here was not the work of an advocate, but the work of a witness stating facts in support of the State's case. Thus, Gorchynsky is immune from suit for his evaluation of evidence and decision to seek a suspension of Dr. Wilson's license, but not for the filing of an affidavit in support of ex parte summary suspension.
B. Quasi-judicial Immunity
Defendants Sherman and Stewart claim quasi-judicial immunity. Quasi-judicial immunity is a type of "[a]bsolute immunity [that] protects members of quasi-judicial adjudicatory bodies when their duties are functionally equivalent to those of a judge or prosecutor." Heyde v. Pittenger , 633 F.3d 512, 517 (7th Cir. 2011) (citing Butz , 438 U.S. at 512-13, 98 S.Ct. 2894 ). The Seventh Circuit has interpreted the Supreme Court's decision in Butz as identifying "several characteristics of quasi-judicial functions that courts should consider when determining whether a public official is entitled to absolute immunity":
(1) the need to assure that the individual can perform his functions without harassment or intimidation; (2) the presence of safeguards that reduce the need for damages actions as a means for controlling unconstitutional conduct; (3) the insulation from political influence; (4) the importance of precedent; (5) the adversarial nature of the process; and (6) the correctability of error on appeal.
Heyde , 633 F.3d at 517 (citing Butz , 438 U.S. at 512, 98 S.Ct. 2894 ). The Seventh Circuit has broadly considered these factors, without treating them as a test. See Heyde , 633 F.3d at 517-19 (affirming the district court's holding that the members of a county's tax assessment Board of Review were protected by quasi-judicial immunity, when the Board was empowered by Illinois law to act as "the fact-finder and decision-maker for disputed property assessments," and could only increase assessments "if it provide[d] notice and a hearing" to the taxpayer); Tobin for Governor v. Illinois State Bd. of Elections , 268 F.3d 517, 522 (7th Cir. 2001) (describing the statutory scheme authorizing the Illinois State Board of Elections ("ISBE") to "hear and pass upon objections to the *865nominations of candidates for State offices" and granting it the power to examine witnesses and issue subpoenas, in a case affirming the district court's finding that members of the ISBE are entitled to absolute immunity) (citations omitted). Heyde clarified that "absolute immunity [ ] applies only to judicial acts and does not protect the official from acts that are ministerial or administrative in nature." Heyde , 633 F.3d at 517.
No alleged facts connect Sherman to any judicial or prosecutorial functions; the primary mentions of Sherman in the Fourth Amended Complaint deal with a television interview he gave in 1999 to a local news station, and with his supervisory role at the DPR, neither of which shroud him in quasi-judicial immunity. (Fourth Am. Compl. [90] ¶¶ 60, 92.) During the television interview, Defendant Sherman stated, "I think he [Dr. Wilson] is always within his rights to come in and say that the danger to the public no longer exists and make his argument." None of the six factors laid out in Heyde suggest that Sherman's interview was quasi-judicial in nature. (Id. at ¶ 60 (modification in original).) Further, in Buckley v. Fitzsimmons , 509 U.S. 259, 278, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), the Supreme Court denied the Du Page County State's Attorney Fitzsimmons absolute immunity for making allegedly false statements about evidence during the public announcement of the indictment of his political rival, Buckley. The Court determined that Fitzsimmons received only qualified immunity for his press statement, explaining that "[c]omments to the media have no functional tie to the judicial process just because they are made by a prosecutor." Id. at 277, 113 S.Ct. 2606. Similarly, Sherman's statement to the news press has no functional tie to IDFPR's adjudication of Dr. Wilson.
Nor does Sherman's supervisory role support a quasi-judicial immunity defense. As Director, Plaintiff alleges that Sherman was "in charge of setting policy and overseeing the overall conduct of the employees of the [DPR]," and was tasked with "ensuring that a doctor who was charged with disciplinary action ... is accorded all requisite due process rights, including the fair and timely prosecution of claims asserted against that doctor." (Fourth Am. Compl. [90] ¶ 92.) Plaintiff makes the same allegations with respect to Stewart. These are administrative functions, not judicial functions. Thus, neither Sherman nor Stewart is protected by quasi-judicial immunity for their administrative roles. The viability of any claims against them are discussed later in this opinion.
Finally, Dr. Wilson alleges that Stewart violated his Constitutional rights when he signed the delayed fourth IDFPR order suspending Dr. Wilson's medical license. (Id. at ¶ 78.) Issuing orders is fundamentally judicial in nature, and Dr. Wilson does not contend that Stewart was acting outside of the scope of his authority by exercising his discretion in signing the order. See 225 ILL. COMP. STAT. 60/40(b), 60/44 (granting the Secretary of the IDFPR discretion to agree or disagree with the MDB's recommendations). Cf. Lowe v. Letsinger , 772 F.2d 308, 313 (7th Cir. 1985) (explaining that a clerk of court's "duty to type and send notice after entry of judgment is a non-discretionary, ministerial task" that does not receive absolute immunity).
Dr. Wilson's argument, however, is more nuanced: he argues that Stewart "failed to issue, 'without appreciable delay' a Final Order on the MDB's May 16, 2012 Findings (Fourth Am. Compl. [90] ¶ 78); that Stewart improperly issued his April 2013 final order based on an MDB report *866that contained " 'facts' that were not introduced on the record during the course of a hearing, with no notice to Dr. Wilson and no opportunity for cross examination or to put on rebuttal evidence" (id. at ¶ 80); and that Stewart's order explained the reasons for the delayed order without "attach[ing] any documents to support his purported excuses." (Id. ) The Supreme Court has recognized that "[a] judge is absolutely immune from liability for his judicial acts[,] even if his exercise of authority is flawed by the commission of grave procedural errors." Stump v. Sparkman , 435 U.S. 349, 359, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). In Stump , an Indiana judge sitting in a court of general jurisdiction granted a mother's petition to have her daughter sterilized without the daughter's knowledge. The Seventh Circuit found Judge Stump liable for damages to the daughter, but the Supreme Court reversed on grounds of judicial immunity. The Supreme Court explained that the "erroneous manner in which [the court's] jurisdiction was exercised ... may have affected the validity of [the court's] act, [but it] did not make the act any less a judicial act." Id. (quoting Bradley v. Fisher , 80 U.S. 335, 357, 13 Wall. 335, 20 L.Ed. 646 (1871) ). In this case, Dr. Wilson has made a colorable argument that Stewart made serious procedural errors in issuing his April 2013 suspension order. That is not enough, however, to defeat Stewart's claim of quasi-judicial immunity for his signing of the April 2013 suspension order.
C. Fourth Amendment Claims
Count I alleges that Defendants Gorchynsky, Glasgow, Does 1-5, and Does 21-30 violated Wilson's Fourth Amendment rights when they participated in the unreasonable ex parte summary suspension of his medical license. As explained above, Gorchynsky and Glasgow are both absolutely immune from any damages claims brought as a result of their evaluation of the evidence against Dr. Wilson and their decision to seek the ex parte suspension of his medical license. Thus, the Fourth Amendment claim set forth in Count I is dismissed.
Counts II through V also reference the Fourth Amendment, albeit in a cursory and repetitive manner. To the extent that those counts may be construed as asserting Fourth Amendment claims, it is unclear whether such claims fit these facts at all. The Fourth Amendment grants people the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Neither Plaintiff nor Defendants have established whether Dr. Wilson's medical license is a "paper" or "effect" subject to seizure within the meaning of the Fourth Amendment. Dr. Wilson's attempt to establish that the medical license does fall within the Amendment's protections is not convincing. He argues in his brief that he has a "constitutionally protected property interest in his license"-but a protected property interest is a requirement for a due process claim, not a Fourth Amendment claim.17 His citation *867to Oliver v. United States , 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (establishing that "open fields are not 'effects' within the meaning of the Fourth Amendment) is too broad to be helpful. Id. at 176, 104 S.Ct. 1735. See id. at 177 n.7, 104 S.Ct. 1735 ("The Framers would have understood the term 'effects' to be limited to personal, rather than real, property."). Finally, Dr. Wilson tries to argue that his "liberty interest in continuing with the practice of medicine" falls within the Fourth Amendment. (Pl.'s Resp. to Dfs.' Motion to Dismiss [98], at 4.) But that, too, is a due process argument. Defendants, for their part, only make the blanket statement that "a professional license [is not a] tangible 'effect' " under the Fourth Amendment, and they cite only unpublished district court opinions from other districts in support of that statement. (Dfs.' Memo. in Support of Motion to Dismiss [95], at 3.) The court is unwilling to hold forth on this issue without additional guidance and therefore directs the parties to submit further briefing on whether Dr. Wilson's medical license constitutes a paper or effect within the meaning of the Fourth Amendment.
D. Procedural Due Process
Counts I through IV of the Complaint allege that varying combinations of Defendants violated Dr. Wilson's right to procedural due process. "Procedural due process in constitutional law generally involves a familiar line of inquiry: (1) is there a property or liberty interest protected by due process; and (2) if so, what process is due, and when must that process be made available?" Simpson v. Brown County , 860 F.3d 1001, 1006 (7th Cir. 2017). Defendants assert that Dr. Wilson has failed to state a claim upon which relief can be granted, and they argue that the Defendants' immunities warrant dismissal of Plaintiff's due process claims.
1. Ex Parte Summary Suspension
Count I alleges that Gorchynsky and Glasgow initiated a summary suspension without an "adequate investigation," without notice, and without a hearing, violating Wilson's Due Process rights. (Fourth Am. Compl. [90] ¶¶ 86, 87.) As explained above, Glasgow and Dr. Gorchynsky are absolutely immune from § 1983 claims for their evaluation of the evidence against Dr. Wilson and for their role in initiating the license revocation proceedings. Thus, Count I's due process claim is dismissed.
2. License Revocation Proceedings
Count II alleges that Gorchynsky, Sherman, and Stewart violated Dr. Wilson's procedural due process rights over the course of the license revocation hearings. "The Department" allegedly "blackballed" Wilson "from the start," (Fourth Am. Compl. [90] ¶ 91), and Wilson argues that Sherman and Stewart both "knew, must have known, or should have known" that his prosecution was in violation of his Fourth and Fourteenth Amendment rights. (Id. at ¶¶ 92, 93-95.) Count III similarly alleges that Stewart "failed to act[,] in reckless disregard of Dr. Wilson's constitutional rights," even though he "knew, must have known, or should have known, that the Department's prosecution of its claims ... was not proceeding in an expeditious manner." (Id. at ¶ 101.)
The court cannot determine that Gorchynsky is immune from liability for his continued role in Dr. Wilson's license revocation *868proceedings because the complaint lacks any detail about Gorchynsky's actions after the filing of the initial department complaint. Dr. Wilson's Fourth Amended Complaint contains only one allegation of any additional involvement in Dr. Wilson's prosecution on Gorchynsky's part, beyond the ex parte summary suspension stage: he alleges that Gorchynsky participated "individually, jointly, and in conspiracy [with Sherman, Stewart, Does 6-10, and Does 21-30] in the decision not to withdraw the summary suspension of Dr. Wilson's medical license and to continue the prosecution of [the IDFPR's] baseless claims." (Id. at ¶ 95.) The court is unable, from that allegation, to determine whether Gorchynsky's activity may have been prosecutorial in nature. More importantly, this allegation against Gorchynsky is not sufficient to state a claim; it does not give Gorchynsky "notice of ... the grounds upon which [this due process claim against him] rests," Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ).18 See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). No other factual matter suggests that Gorchynsky had any involvement in the hearing process, nor that he took any additional actions with respect to Dr. Wilson's case. Id. at 556, 127 S.Ct. 1955. To the extent that Dr. Wilson argues that discovery is necessary to learn more about Gorchynsky's involvement in the license suspension proceedings, the court notes that this is Plaintiff's Fourth Amended Complaint, that Defendants noted Plaintiff's failure to state a claim against Gorchynsky in a motion to dismiss filed three years ago (see Df. Gorchynsky's Motion to Dismiss Second Am. Compl. [22], at 6), and that Dr. Wilson has been engaged in a dispute with the IDFPR for twenty years, including four trips through the Illinois state courts and two federal lawsuits. The court is not inclined to await further investigation. Wilson's due process claim for the license revocation proceedings is dismissed as against Gorchynsky.
The allegations against Sherman and Stewart are more complex. Sherman and Stewart were both Directors of the DPR for unspecified periods of time. (Fourth Am. Compl. [90] ¶¶ 9.4-9.5.) In Count II, Plaintiff alleges that both Sherman and Stewart, as Directors of the DPR, "were in charge of setting policy and overseeing all conduct of the employees of the DPR, including investigators and prosecutors, and ensuring that a ... [charged doctor] is accorded all requisite due process rights." (Fourth Am. Compl. [90] ¶ 92.) Dr. Wilson alleges that both Directors "knew, must have known, or should have known, that the manner that the Department was prosecuting its claims against Dr. Wilson was part of the Department's vendetta against Dr. Wilson, and part of a cover-up because of the Department's initial failure to adequately investigate Dr. Wilson's conduct in connection with the death of Taylor." (Id. ) Dr. Wilson also alleges that Sherman and Stewart, too, "participated in the decision not to withdraw the summary suspension ... and to continue the prosecution of" Dr. Wilson. (Id. at ¶ 95.)
As Sherman and Stewart note, supervisory liability is unavailable under § 1983. Dr. Wilson "may not rely on the doctrine of respondeat superior to hold supervisory officials liable for the misconduct of their subordinates.... Rather, the *869supervisory officials also must have had some personal involvement in the constitutional deprivation, essentially directing or consenting to the challenged conduct." Doyle v. Camelot Care Centers, Inc. , 305 F.3d 603, 614-15 (7th Cir. 2002) (citation omitted). Direct personal involvement may not be required if a plaintiff claims that a supervisor failed to intervene in the deprivation of plaintiff's constitutional rights: "An official satisfies the personal responsibility requirement of section 1983 if she acts or fails to act with a deliberate or reckless disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge and consent." Smith v. Rowe , 761 F.2d 360, 369 (7th Cir. 1985).
Dr. Wilson has not alleged that Sherman ever "directed or consented" to Dr. Wilson's continued prosecution, id. , nor does he "contend that [Sherman] ever made or ratified [any] decision about" the proceedings. Vinning-El v. Evans , 657 F.3d 591, 592 (7th Cir. 2011). Wilson does allege that Sherman participated in a decision not to withdraw the proceedings against him; as described above, that statement is insufficient alone to state a claim. Further, the factual allegations in the complaint do not support a reasonable inference that Sherman failed to act with a deliberate or reckless disregard of Dr. Wilson's due process rights. The Complaint alleges that Sherman was in charge of the DPR at some point, and, as noted, alleges that he "knew, must have known, or should have known" about the "vendetta against Dr. Wilson," and that "the Department was specifically informed" that its "charges against Dr. Wilson were without merit." (Fourth Am. Compl. [90] ¶ 92.) Assuming these facts are true, they still require a chain of inferences that is too attenuated; they do not suggest that Sherman deliberately turned a blind eye to evidence he was aware of, nor that he acted with reckless disregard, nor that he himself was specifically informed of the merits of Wilson's case. Cf. Smith v. Rowe , 761 F.2d 360, 369 (7th Cir. 1985) (concluding that the Director of the Department of Corrections failed to intervene in the violation of a prisoner's constitutional rights, when multiple people had written letters to the Director about the prisoner's situation and the Director had responded to those letters). Defendants' motion to dismiss Count II is granted as to Defendant Sherman.
Wilson does assert that Stewart had some personal involvement in the prosecution. Stewart signed the April 2013 order suspending Dr. Wilson's medical license, but as described above, Stewart has quasi-judicial immunity for the issuing of the final order. Still, the April 2013 order came after months of inaction from the DPR and IDFPR-inaction of which Stewart was aware. Stewart acknowledged and justified the delays in his April Order by blaming them on "a number of uncontrollable issues, including the retirement of the lead prosecutor, shortages in staffing, and misplaced records." (Id. at 2.) This is a department in which he held a supervisory role. These facts are sufficient to provide an "affirmative link between the action complained about and the official sued." Gentry v. Duckworth , 65 F.3d 555, 561 (7th Cir. 1995) (citation omitted). As explained above, Stewart is not absolutely immune from suit for his role as an administrator. Defendants' motion to dismiss Counts II and III is denied as to Defendant Stewart.
3. "Stigma-Plus"
Dr. Wilson alleges a "stigma-plus" due process claim against Defendant Sherman for the television interview Sherman gave in October 1999. In that interview, Sherman allegedly stated: "I think he [Dr.
*870Wilson] is always within his rights to come in and say that the danger to the public no longer exists and make his argument." (Id. at ¶ 60 (modifications in original).) Sherman gave this interview before Dr. Wilson's first hearing. (Id. )
In this Circuit, "[a] plaintiff may prove a deprivation of a protected liberty interest by showing damage to his "good name, reputation, honor, or integrity.... This stigmatic harm, however, must take concrete forms and extend beyond mere reputational interests." Hannemann v. S. Door Cty. Sch. Dist. , 673 F.3d 746, 753 (7th Cir. 2012) (citing Wisconsin v. Constantineau , 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) ; Omosegbon v. Wells , 335 F.3d 668, 675 (7th Cir. 2003) (internal quotation marks omitted). "This two-pronged framework is known as the 'stigma plus' test." Hannemann , 673 F.3d at 753. See id. at 754 (explaining that there is a "stigma" prong to the test-requiring that the defendant make a defamatory statement-and a "plus" prong-requiring the plaintiff to "establish[ ] that any defamatory statements have caused an alteration in his legal status."). See also Mann v. Vogel , 707 F.3d 872, 878 (7th Cir. 2013) (laying out the two parts of the "stigma-plus" test). The "safeguards" of due process "come into play only when the 'alteration of legal status,' such as the governmental deprivation of a securely held right, is 'combined with the injury resulting from the defamation.' " Id. (citing Paul v. Davis , 424 U.S. 693, 708-09, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) ). Both Plaintiff and Defendant have offered an analysis of Plaintiff's "stigma-plus" due process claim; regrettably, the court concludes that neither side proceeds under the correct legal framework. Defendants refer to legal frameworks identified by the Second and Tenth Circuits (Dfs.' Memo. in Support of Motion to Dismiss [95], at 7-8 (citing DiBlasio v. Novello , 413 F. App'x 352, 356 (2d Cir. 2011) ; Kennedy v. Smith , 259 F. App'x 150, 155 (10th Cir. 2007) ), while Plaintiffs respond by also citing DiBlasio , and adding a reference to a 1952 Illinois Supreme Court case. (Pl.'s Resp. to Dfs.' Motion to Dismiss [98], at 8 (citing Smith v. Dep't of Registration & Ed. , 412 Ill. 332, 344, 106 N.E.2d 722, 728 (1952) ). Out-of-Circuit and state court precedent can, of course, be persuasive, when the law is unsettled. But this court does not need to be persuaded when the Seventh Circuit has already established a legal framework that the parties simply overlook.
Still, the court finds that Dr. Wilson's claim fails. Regardless of whether the alleged interview statement was defamatory, Dr. Wilson has not alleged facts that would establish that Sherman's statement altered his legal status. See Dupuy v. Samuels , 397 F.3d 493, 503 (7th Cir. 2005) ("[A]n individual has no cognizable liberty interest in his reputation.") (quoting Doyle v. Camelot Care Centers, Inc. , 305 F.3d 603, 617 (2002) ). Dr. Wilson's legal status was altered by IDFPR proceedings, which were already under way when Sherman spoke to the press. See Hinkle v. White , 793 F.3d 764, 768 (7th Cir. 2015). In Hinkle , Wayne County Sherriff Jimmy Hinkle was accused of sexually abusing his step-daughter. The step-daughter later admitted that she had falsified the accusations, but not until an Illinois State Police investigation was opened by investigator Rick White. During the course of the investigation, "the accusations [against Hinkle] became well-known in the community because White talked to a lot of people with whom he had no business sharing details of the investigation." Id. at 765. This included "word ... [being] leaked [by an associate of White's] to the local paper ... at White's instigation." Id. at 766. The prosecutor ultimately "declined to press charges," and Hinkle sued White and his *871supervisor, alleging that by spreading rumors about him, they deprived him of his liberty interest in his employment as law enforcement management. He did not directly challenge the investigation, itself, as violating his due process rights. The Seventh Circuit affirmed the lower court's grant of summary judgment for Defendants, finding under the stigma-plus test that "the defendants did nothing to alter Hinkle's legal status. Rather, reading the facts in the light most favorable to Hinkle, the defendants defamed him. Even if that defamation seriously impaired his future employment prospects, the state did not alter his legal status."19 Like Hinkle , Sherman's statement to the press here did not alter Dr. Wilson's legal status-the license revocation proceedings may have, but Wilson has challenged those proceedings under a stigma-plus theory. Defendants' motion to dismiss Count IV is granted.
E. Conspiracy Claim
Finally, in Count V, Dr. Wilson asserts that all Defendants participated in a conspiracy to violate his constitutional rights. The parties' briefing on the conspiracy claim is again lacking. As discussed above, Glasgow is immune from the only Constitutional claim levied against him. With respect to the other Defendants, none of whom have full immunity, Defendants assert that no claim for conspiracy can stand when there are no underlying constitutional violations. (Df. Gorchynsky's Motion to Dismiss Second Am. Compl. [22], at 7.) But Plaintiff's Fourth Amendment claims and a procedural due process claim against Stewart have survived this motion. Plaintiff, for his part, does not address the conspiracy claim at all in his response to Defendants' motion to dismiss. The court denies Defendants' motion on the conspiracy count without prejudice to reconsideration of this issue at a later stage should it be necessary.
III. State Law Claims
This court retains supplemental jurisdiction over Defendants' state law claims.
A. Malicious Prosecution
Dr. Wilson levies a state law malicious prosecution charge against all Defendants. In Illinois, "[t]he elements of a malicious-prosecution claim ... are well established": "(1) the commencement of judicial proceedings by the defendant, (2) a lack of probable cause for the proceedings, (3) malice in instituting the proceedings, (4) termination of the prosecution in the plaintiff's favor, and (5) damage or injury to the plaintiff." St. Paul Fire & Marine Ins. Co. v. City of Zion , 2014 IL App (2d) 131312, ¶ 15, 385 Ill.Dec. 193, 18 N.E.3d 193, 197. "The absence of any of these elements bars a plaintiff's malicious prosecution claim." Beaman v. Freesmeyer , 2019 IL 122654, ¶ 26, --- Ill.Dec. ----, --- N.E.3d ----. Defendants argue that prosecutorial and sovereign immunity defeat *872a malicious prosecution claim against Gorchynsky, Sherman, and Glasgow, and that Dr. Wilson fails to adequately allege the malice element of the malicious prosecution claim.
1. Prosecutorial Immunity
Illinois law tracks federal prosecutorial immunity law. Frank v. Garnati , 2013 IL App (5th) 120321, ¶¶ 16-17, 370 Ill.Dec. 931, 989 N.E.2d 319, 322. "Specifically, Illinois courts adopt and apply the United States Supreme Court's line of cases on prosecutorial immunity and its contours." Simpson v. Meijer, Inc. , No. 12 C 6217, 2013 WL 3834641, at *8 (N.D. Ill. July 24, 2013) (collecting cases). Thus, Glasgow and Gorchynsky enjoy the same prosecutorial immunity here as outlined above, but Sherman and Stewart do not share that immunity.
2. Sovereign Immunity
Defendants argue that Sovereign Immunity bars the state law malicious prosecution claim against all Defendants. The Illinois State Lawsuit Immunity Act, 745 ILL. COMP. STAT. 5/1 generally provides that "the State of Illinois shall not be made a defendant or party in any court." See 705 ILL. COMP. STAT. 505.8(d) (Court of Claims Act); Fritz v. Johnston , 209 Ill. 2d 302, 310, 282 Ill.Dec. 837, 807 N.E.2d 461, 466 (2004) (explaining that "all claims against the state for damages sounding in tort must be brought in the Court of Claims-no other tribunal, including our circuit courts, has jurisdiction of any such claim"). Although a lawsuit may be filed against individual state employees for actions carried out while acting within the scope of their duties, the claim may still be considered a suit against the State for purposes of sovereign immunity. "The determination of whether an action is in fact a suit against the State turns upon an analysis of the issues involved and the relief sought, rather than the formal designation of the parties." Id. at 310, 282 Ill.Dec. 837, 807 N.E.2d at 466 (quoting Currie v. Lao , 148 Ill. 2d 151, 158, 170 Ill.Dec. 297, 592 N.E.2d 977, 980 (1992) ).
The court must go beyond the simple inquiry of "whether the employee was acting within the scope of his employment when he committed the act in question," and instead look to "the source of the duty with the breach of which the employee is charged." Fritz , 209 Ill. 2d at 310, 282 Ill.Dec. 837, 807 N.E.2d at 466 (emphasis in original) (citing Currie , 148 Ill. 2d at 159, 170 Ill.Dec. 297, 592 N.E.2d at 980 ). "Where the duty is imposed solely by virtue of the individual's employment with the state, sovereign immunity attaches.... Otherwise-that is, if the duty exists independent of state employment-the individual is subject to suit in circuit court."20 Fritz , 209 Ill. 2d at 310-11, 282 Ill.Dec. 837, 807 N.E.2d at 466-67 (citing Currie , 148 Ill. 2d at 159, 170 Ill.Dec. 297, 592 N.E.2d at 980 ). See also Brooks v. Ross , 578 F.3d 574, 580 (7th Cir. 2009) ("An employee's conduct can be imputed to the State if 'it is alleged that the State's agent acted in violation of statutory or constitutional law or in excess of his authority.' ") (quoting Richman v. Sheahan , 270 F.3d 430, 441 (7th Cir. 2001) ).
Plaintiff here has not alleged hat Sherman and Stewart acted outside of the scope of their state employment. In fact, *873Dr. Wilson explicitly argues the opposite. (See Fourth Am. Compl. [90] ¶¶ 9.4, 9.5 (stating that Sherman and Stewart are "sued herein solely in [their] individual capacity for actions that [they] engaged in as a state actor within the course and scope of [their] employment with the Department.").) Nor does Plaintiff's Fourth Amended Complaint allege the breach of any "duty independent of state employment" that could render Sherman or Stewart liable for a state law malicious prosecution action. Thus, sovereign immunity applies here, and Count VI is dismissed in its entirety.
B. 225 Ill. Comp. Stat. 60/46
Count VII seeks money damages from the State for the suspension of Dr. Wilson's medical license, pursuant to 225 ILL. COMP. STAT. 60/46. That statute provides that "the State of Illinois shall be liable to [an] injured physician" if a DPR "order of revocation, suspension, placing the licensee on probationary status, or other order of formal disciplinary action is without any reasonable basis in fact of any kind." Id. Dr. Wilson maintains that the Department's suspension of his license lacked any reasonable basis in fact. The court must disagree. The court could locate only one case interpreting § 60/46. See Blumstein v. State , 47 Ill. Ct. Cl. 186 (1995). Blumstein interpreted § 60/46 narrowly, finding that the statute requires a court to look only to the IDFPR's "factual basis for its order at the time that it entered its order." Id. at 195. That case includes no facts about the incident that resulted in suspension of the plaintiff physician's license; it simply notes that the IDFPR suspended his medical license for 90 days. Without offering details, the Court of Claims found that the IDFPR had "ample" reasonable basis to suspend the license after it heard "the testimony of several of the [physician's] patients" and an expert. Id. at 195. Focusing on the information available to the IDFPR at the time it issued the suspension order, and finding that the available facts formed a "reasonable basis" for the order, the court entered judgment for the defendant State and against the plaintiff. Id. at 196. See id. at 194 (explaining that the issue under § 60/46 is "not whether the Department was right" nor whether there was a "factual basis that supported or failed to support the Department's initial charges," but rather whether there was a "factual basis for the Department's order").
In this case, the final opinion of the Circuit Court of Cook County held that certain findings of the hearing officer-such as the finding that Dr. Wilson caused Mr. Taylor's death-were "against the manifest weight of the evidence." (Order, Ex. 2 to Third Am. Compl. [86-1], at 8.) It also found that the DPR's "endless administrative proceedings" and "unconstitutional delays" process violated Dr. Wilson's rights to due process. (Id. at 9-14.) The court also, found, however, that there was "sufficient evidence in the record to support the administrative decision" that Dr. Wilson had breached the applicable standard of care for cardiologists. (Id. at 9.) Specifically, the court noted the hearing officer's finding that "administering undiluted potassium chloride was not an appropriate approach to palliative care." This finding indicates that the DPR was not "without any reasonable basis in fact of any kind" for suspending Dr. Wilson's medical license and requires the court to dismiss Count VII. 225 ILL. COMP. STAT. 60/46 (emphasis added).
C. Prayer for Declaratory Judgment of Indemnification
Finally, Defendants argue that Count VIII of Plaintiff's Fourth Amended Complaint should be dismissed pursuant to *874Eleventh Amendment sovereign immunity. The court will address indemnification if a judgment is issued in this case.
CONCLUSION
Dr. Wilson has not sought specific injunctive relief. Instead he seeks damages pursuant to § 1983 for Defendants' alleged constitutional violations. Defendants' motion to dismiss [94] is granted in part and denied in part. The court directs additional briefing on certain issues as identified above. Such additional briefs shall be filed on or before April 23, 2019, but only after the parties meet and engage in good-faith settlement negotiations. Status conference is set for Thursday, May 2, 2019. at 9:30 a.m. Finally: none of the 30 John Doe Defendants has been identified or served with process, and any effort to move forward against a John Doe at this point is untimely. John Does 1 through 30 are dismissed.
Mr. Wilson has settled, however, with the parties from Cook County (Dr. Mitra Kalelkar, Edmund Donoghue, and the Cook County Medical Examiner) and dropped them from his Fourth Amended Complaint. (Pl.'s Notice of Filing and Explanation of Changes to Third Am. Compl. [86-5] ¶ 3(a).)
A news article about the Taylor incident, quoted in Plaintiff's Fourth Amended Complaint, suggests that "Kidney disease patients are limited to a dose of 50 [m/eq] of potassium [chloride] a day." (Fourth Am. Compl. [90] ¶ 46 (quoting Ex. 7 to id. ).)
The allegations against Glasgow involve his actions in the initial summary suspension of Dr. Wilson's medical license, and Glasgow's interactions with Wilson, his counsel, and others leading up to the first hearing described below. He is not mentioned as having a continuing role in the proceedings against Dr. Wilson after that point.
Doe Defendants 1-5 are "the employees of the Department and/or members of the MDB [Medical Disciplinary Board] who participated in the decision to seek the summary suspension of Dr. Wilson's medical license without doing an adequate investigation." (Fourth Am. Compl. [90] ¶ 9.7.)
See 225 Ill. Comp. Stat. Ann. 60/37(d) ("The Secretary, after consultation with the Chief Medical Coordinator or Deputy Medical Coordinator, may temporarily suspend the license of a physician without a hearing, simultaneously with the institution of proceedings for a hearing provided under this Section if the Secretary finds that evidence in his or her possession indicates that a physician's continuation in practice would constitute an immediate danger to the public. In the event that the Secretary suspends, temporarily, the license of a physician without a hearing, a hearing by the Disciplinary Board shall be held within 15 days after such suspension has occurred and shall be concluded without appreciable delay."). See also id. at 60/25 ("The Secretary of the Department may, upon receipt of a written communication from the Secretary of Human Services, the Director of Healthcare and Family Services (formerly Director of Public Aid), or the Director of Public Health that continuation of practice of a person licensed under this Act constitutes an immediate danger to the public, and after consultation with the Chief Medical Coordinator or Deputy Medical Coordinator, immediately suspend the license of such person without a hearing."). This statutory language suggests an ex parte suspension will ordinarily last no more than 15 days before a Disciplinary Board hearing. In Dr. Wilson's case, as described in the text, the suspension lasted a good deal longer.
It appears that, at some point, the Taylor family had filed a wrongful death action against Dr. Wilson, as he alleges that the family dismissed that case in September 2002, without any payment from Dr. Wilson or his medical malpractice carrier. (Fourth Am. Compl. [90] ¶ 61.)
Defendants' Memorandum in Support of its Motion to Dismiss [95] refers to Sherman as a Director of the IDFPR, not the director of the DPR. (Dfs.' Memo. in Support of MTD [95], at 1.)
In October 1999, Dr. Wilson filed a § 1983 suit in federal court over the suspension of his license. He moved for a temporary restraining order to stay the IDFPR proceedings against him, but the court denied his motion on November 15, 1999. Wilson v. Kalelkar , No. 99 C 6590, Dkt. No. 13 (N.D. Ill. Nov. 15, 1999) (Castillo, J. (sitting as emergency judge) ). The court reasoned that monetary damages would be sufficient. (Fourth Am. Compl. [90] ¶ 64.) Wilson continued to seek a stay of the IDFPR proceedings and injunctive relief prohibiting his continued suspension. The court ultimately ruled that the Younger doctrine required the court to abstain, and it dismissed the case without prejudice. Wilson v. Kalelkar , No. 99 C 6590, 1999 WL 1101211, at *5 (N.D. Ill. Dec. 1, 1999) (Lindberg, J.).
See Regulation-Medical Practice Act-Sunset Extension, 2011 Ill. Legis. Serv. P.A. 97-622 (S.B. 664) (replacing "Director" with "Secretary" throughout the Medical Practice Act, 225 Ill. Comp. Stat. 60/1 et seq. ).
The Fourth Amended Complaint does not clearly describe this process for the court. In one location, Plaintiff explains that the "Department's Director adopted the MDB's findings." (Fourth Am. Compl. [90] ¶ 66). The Complaint defines the "Department" as the IDFPR, and 225 Ill. Comp. Stat. 60/44's statutory history notes that the term Director was replaced by the term Secretary. (Id. at ¶ 1.) See Regulation-Medical Practice Act-Sunset Extension, 2011 Ill. Legis. Serv. P.A. 97-622 (S.B. 664). Thus, this description by the Plaintiff conforms with the court's understanding of the medical disciplinary procedure. In another paragraph, however, the complaint notes that Director Stewart "signed the Department's Final Order for the five-year revocation of Dr. Wilson's medical license." (Id. at ¶ 70.) Stewart is described as the Director of the DPR, which the court understands to be a sub-group within the IDFPR. (Id. at ¶ 9.5.)
The department backdated Dr. Wilson's suspension to the October 9, 1998 temporary suspension.
It is unclear from the Fourth Amended Complaint if or when a re-hearing was held before these findings were issued.
Again, the Fourth Amended Complaint fails to specify to which Director it refers.
While Plaintiff calls Stewart the Director of the DPR, Defendants' Memorandum in Support of its Motion to Dismiss [95] refers to Stewart as the Director of the IDFPR. (Dfs.' Memo. in Support of MTD [95], at 1.) Defendants' statement is consistent with Plaintiff's assertion that Stewart entered a final order, as this is a power statutorily granted to the Director of the IDFPR. See 225 Ill. Comp. Stat. 60/40(b) (providing the Secretary with the authority to "take the action recommended by the [MDB]"); § 1:23 Rehearing and Final Order, 21 Ill. Prac. , The Law of Medical Practice in Illinois § 1:23 (3d ed.) ("[T]he Secretary may take the action recommended by the Board. As appropriate, the Secretary may issue an order of revocation, suspension, or other disciplinary action containing a brief, concise statement of the grounds upon which the Department's action is based and the specific terms and conditions for such action.").
Dr. Wilson challenges the claim of absolute immunity by claiming that Glasgow engaged in investigative activities, but his Complaint does allege that Glasgow actually engaged in any investigative activities. True, Glasgow spoke with Kalelkar and Donoghue of the CCME, but interviewing witnesses in preparation for trial and "evaluating evidence" are prosecutorial activities, not investigative activities. Kalina , 522 U.S. at 126, 118 S.Ct. 502. Cf. id. at 508 (citing, as an example of an investigative role, one where a prosecutor were to "plan[ ] and execute[ ] a raid on a suspected weapons cache").
The court notes, as well, that Dr. Wilson has not alleged facts suggesting an unlawful agreement between Glasgow and any other Defendants. Glasgow met with Gorchynsky and CCME officials before filing the IDFPR complaint against Dr. Wilson (Fourth. Am. Compl. [90] ¶ 45), but that activity is protected by prosecutorial immunity. Van de Kamp , 555 U.S. at 343, 129 S.Ct. 855 ("[W]e have held that absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding.") (citation omitted). Glasgow also conferred with Gorchynsky when the IDFPR was deciding whether to file for an ex parte summary suspension of Wilson's license. (Fourth. Am. Compl. [90] ¶ 50.) That, again, is activity for which Glasgow is absolutely immune. And Glasgow's warnings that Wilson "would lose before the Board" provide insufficient notice to any other Defendants about the grounds on which Wilson's conspiracy claim rests. Fed. R. Civ. P. 8.
To the extent that cases like Baca v. City of Albuquerque , No. CV 11-0122 KBM/ACT, 2011 WL 13285716, at *4 (D.N.M. May 10, 2011) frame a Fourth Amendment claim in terms of a "property interest," the court does not find such district court precedent persuasive. Plaintiff also cites Soldal v. Cook County , 506 U.S. 56, 61, 113 S.Ct. 538, 543, 121 L.Ed.2d 450 (1992), but that case is unhelpful to his position here. There, the Supreme Court found that the plaintiffs had suffered a Fourth Amendment seizure when their mobile home was hauled away from a mobile home park by two park employees accompanied by a Sheriff Deputy. The court explained that "our cases unmistakably hold that the Amendment protects property as well as privacy," id. at 62, 113 S.Ct. 538, but clarified in a footnote: "In holding that the Fourth Amendment's reach extends to property as such, we are mindful that the Amendment does not protect possessory interests in all kinds of property.... This case, however, concerns a house, which the Amendment's language explicitly includes, as it does a person's effects." Id. at 62 n.7, 113 S.Ct. 538.
Just as this blanket allegation against Gorchynsky is insufficient to state a claim for relief, it similarly fails against Sherman and Stewart.
See also Paul v. Davis , 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). In Paul , local police chiefs distributed a flier announcing "Active Shoplifters" to a group of Kentucky merchants. That flier contained Plaintiff Davis' picture and name; though Davis had been charged with shoplifting, his case had never been resolved. Id. at 696, 96 S.Ct. 1155. Davis' supervisor at work leaned of the flier, and though Davis was not fired, his supervisor told him "he had best not find himself in a similar situation in the future." Id. (internal quotation marks omitted). The Court found that the defendants had not deprived Davis of "any right vouchsafed to him by the State and thereby protected under the Fourteenth Amendment. That being the case, petitioners' defamatory publications, however seriously they may have harmed respondent's situation, did not deprive him of any 'liberty' or 'property' interests protected by the Due Process Clause." Id. at 712, 96 S.Ct. 1155.
Defendants cite a three-step test for sovereign immunity taken from Richman v. Sheahan , 270 F.3d 430 (7th Cir. 2001). However, the Supreme Court of Illinois has since formulated its statement of the sovereign immunity doctrine, see Fritz , 209 Ill. 2d at 310-11, 282 Ill.Dec. 837, 807 N.E.2d at 466-67, and declined to articulate the doctrine in those three clear steps. Therefore, the court here relies on Fritz . | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1743227/ | 289 Wis. 2d 551 (2006)
710 N.W.2d 725
2006 WI App 31
CITY OF OSHKOSH v. DAGGETT.[]
No. 2005AP001664.
Court of Appeals of Wisconsin.
January 11, 2006.
Unpublished opinion. Affirmed.
NOTES
[] Petition to review filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321753/ | 493 U.S. 40 (1989)
CHESAPEAKE & OHIO RAILWAY CO.
v.
SCHWALB ET AL.
No. 87-1979.
Supreme Court of United States.
Argued October 3, 1989
Decided November 28, 1989[*]
CERTIORARI TO THE SUPREME COURT OF VIRGINIA
*41 William T. Prince argued the cause for petitioners in both cases. With him on the briefs were Edward L. Oast, Jr., John Y. Richardson, Jr., and Joan F. Martin.
Christine Desan Husson argued the cause pro hac vice for the United States as amicus curiae urging reversal. With her on the brief were Acting Solicitor General Bryson, *42 Deputy Solicitor General Shapiro, Allen H. Feldman, and Charles I. Hadden.
Bruce A. Wilcox argued the cause for respondents in both cases and filed a brief for respondent in No. 88-127. With him on the brief were Richard J. Tavss and Ray W. King. C. Gerald Thompson filed a brief for respondents in No. 87-1979.[]
JUSTICE WHITE delivered the opinion of the Court.
Nancy J. Schwalb and William McGlone, respondents in No. 87-1979, were employees of petitioner Chesapeake and Ohio Railway Company (C & O), and were injured while working at petitioner's terminal in Newport News, Virginia, where coal was being loaded from railway cars to a ship on navigable waters. Robert T. Goode, respondent in No. 88-127, was injured while working for petitioner Norfolk and Western Railway Company (N & W) at its coal loading terminal in Norfolk, Virginia. If respondents' injuries are covered by the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), 44 Stat. 1424, as amended, 33 U. S. C. §§ 901-950 (1982 ed. and Supp. V), the remedy provided by that Act is exclusive and resort may not be had to the Federal Employers' Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. §§ 51-60 (1982 ed. and Supp. V), which provides a negligence cause of action for railroad employees. The Supreme Court of Virginia held in both cases that the LHWCA was not applicable and that respondents could proceed to trial under the FELA. We reverse.
I
At the C & O facility, a mechanical conveyor-belt system transports coal from railroad hopper cars to colliers berthed at the piers. The loading process begins when a hopper car *43 is rolled down an incline to a mechanical dumper which is activated by trunnion rollers and which dumps the coal through a hopper onto conveyor belts. The belts carry the coal to a loading tower from which it is poured into the hold of a ship. The trunnion rollers are located at each end of the dumper. Typically, some coal spills out onto the rollers and falls below the conveyor belts during the loading process. This spilled coal must be removed frequently to prevent fouling of the loading equipment. Respondents Nancy Schwalb and William McGlone both worked at C & O's terminal as laborers doing housekeeping and janitorial services. One of their duties was to clean spilled coal from the trunnion rollers and from underneath the conveyor belts. Both also performed ordinary janitorial services at the loading site. McGlone's right arm was severely injured while he was clearing away coal beneath a conveyor belt. Schwalb suffered a serious head injury when she fell while walking along a catwalk in the dumper area. At the time, she was on her way to clean the trunnion rollers.
At N & W's terminal, a loaded coal car is moved to the dumper where it is locked into place by a mechanical device called a "retarder." The dumper turns the car upside down. The coal falls onto conveyor belts and is delivered to the ship via a loader. Respondent Robert Goode was a pier machinist at N & W's terminal. His primary job was to maintain and repair loading equipment, including the dumpers and conveyor belts. Goode injured his hand while repairing a retarder on one of N & W's dumpers. Loading at that dumper was stopped for several hours while Goode made the repairs.
The three respondents commenced separate actions in Virginia trial courts under the FELA. Petitioners responded in each case by challenging jurisdiction on the ground that the LHWCA provided respondents' sole and exclusive remedy. See 33 U. S. C. § 905(a) (1982 ed., Supp. V). All three trial courts held evidentiary hearings and concluded that respondents were employees covered by the LHWCA. The suits *44 were dismissed and respondents appealed. The Supreme Court of Virginia consolidated the appeals of Schwalb and McGlone and reversed the dismissals. 235 Va. 27, 365 S. E. 2d 742 (1988).
Relying on one of its earlier decisions, White v. Norfolk & Western R. Co., 217 Va. 823, 232 S. E. 2d 807 (1977), the court stated that the key question was whether an employee's activities had a realistically significant relationship to the loading of cargo on ships. 235 Va., at 31, 365 S. E. 2d, at 744. Pointing to expressions in our opinion in Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (1977), that landward coverage of the LHWCA was limited to the " `essential elements' " of loading and unloading, the court concluded that "the `essential elements' standard is more nearly akin to the `significant relationship' standard we adopted in White" than the broader construction argued by C & O. 235 Va., at 33, 365 S. E. 2d, at 745. Applying the White standard, the court ruled that employees performing purely maintenance tasks should be treated no differently under the Act than those performing purely clerical tasks and held that Schwalb and McGlone were not covered. The court later dealt with the Goode case in an unpublished order, relying on its decision in Schwalb and reversing the trial court's judgment that an employee who repairs loading equipment is covered by the LHWCA. No. 870252 (Apr. 22, 1988), App. to Pet. for Cert. in No. 88-127, p. 17A.
Because the Supreme Court of Virginia's holding in these cases was contrary to the position adopted by Federal Courts of Appeals, see, e. g., Harmon v. Baltimore & Ohio R. Co., 239 U. S. App. D. C. 239, 244-245, 741 F. 2d 1398, 1403-1404 (1984); Sea-Land Services, Inc. v. Director, Office of Workers' Compensation Programs, 685 F. 2d 1121, 1123 (CA9 1982) (per curiam); Hullinghorst Industries, Inc. v. Carroll, 650 F. 2d 750, 755-756 (CA5 1981); Garvey Grain Co. v. Director, Office of Workers' Compensation Programs, 639 F. 2d 366, 370 (CA7 1981) (per curiam); Prolerized New England *45 Co. v. Benefits Review Board, 637 F. 2d 30, 37 (CA1 1980), we granted certiorari to resolve the conflict. 489 U. S. 1009-1010 (1989).
II
For the LHWCA to apply, the injured person must be injured in the course of his employment, 33 U. S. C. § 902(2) (1982 ed.); his employer must have employees who are employed in maritime employment, § 902(4); the injury must occur "upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel)," 33 U. S. C. § 903(a) (1982 ed., Supp. V); and the employee who is injured within that area must be a "person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include " certain enumerated categories of employees, § 902(3). It is undisputed that the first three of these requirements are satisfied in these cases. The issue is whether the employees were engaged in maritime employment within the meaning of § 902(3).
The employment that is maritime within the meaning of § 902(3) expressly includes the specified occupations but obviously is not limited to those callings. Herb's Welding, Inc. v. Gray, 470 U. S. 414, 423, n. 9 (1985); P. C. Pfeiffer Co. v. Ford, 444 U. S. 69, 77-78, n. 7 (1979). The additional reach of the section has been left to the courts sitting in review of decisions made in the Department of Labor, which is charged with administering the Act. In the course of considerable litigation, including several cases in this Court, it has been clearly decided that, aside from the specified occupations, cland-based activity occurring within the § 903 situs will be deemed maritime only if it is an integral or essential part of loading or unloading a vessel. This is a sensible construction *46 of § 902(3) when read together with § 903(a), particularly in light of the purpose of the 1972 amendments to the LHWCA which produced those sections.
Prior to 1972, the Act applied only to injuries occurring on navigable waters. Longshoremen loading or unloading a ship were covered on the ship and the gangplank but not shoreward, even though they were performing the same functions whether on or off the ship. Congress acted to obviate this anomaly: § 903(a) extended coverage to the area adjacent to the ship that is normally used for loading and unloading, but restricted the covered activity within that area to maritime employment. Pub. L. 92-576, 86 Stat. 1251. There were also specific exclusions in both § 902(3) and § 903; those exclusions were expanded in 1984. See Pub. L. 98-426, § 2(a), 98 Stat. 1639.
In Northeast Marine Terminal Co. v. Caputo, supra, we held that the 1972 amendments were to be liberally construed and that the LHWCA, as amended, covered all those on the situs involved in the essential or integral elements of the loading or unloading process. Id., at 267, 268, 271. But those on the situs not performing such tasks are not covered. Id., at 267. This has been our consistent view. P. C. Pfeiffer Co. v. Ford, supra, held that workers performing no more than one integral part of the loading or unloading process were entitled to compensation under the Act. Id., at 82. We also reiterated in Herb's Welding, Inc. v. Gray, supra, that the maritime employment requirement as applied to land-based work other than longshoring and the other occupations named in § 902(3) is an occupational test focusing on loading and unloading. Those not involved in those functions do not have the benefit of the Act. Id., at 424.
In the cases before us, respondents were connected with the loading process only by way of the repair and maintenance services that they were performing when they were injured. There is no claim that if those services are not *47 maritime employment, respondents are nevertheless covered by the LHWCA. See Northeast Marine Terminal Co. v. Caputo, 432 U. S., at 272-274. Only if the tasks they were performing are maritime employment, are respondents in these cases covered by the Act.
Although we have not previously so held, we are quite sure that employees who are injured while maintaining or repairing equipment essential to the loading or unloading process are covered by the Act. Such employees are engaged in activity that is an integral part of and essential to those overall processes. That is all that § 902(3) requires. Coverage is not limited to employees who are denominated "longshoremen" or who physically handle the cargo. Nor are maintenance employees removed from coverage if they also have duties not integrally connected with the loading or unloading functions. Someone who repairs or maintains a piece of loading equipment is just as vital to and an integral part of the loading process as the operator of the equipment. When machinery breaks down or becomes clogged or fouled because of the lack of cleaning, the loading process stops until the difficulty is cured. It is irrelevant that an employee's contribution to the loading process is not continuous or that repair or maintenance is not always needed. Employees are surely covered when they are injured while performing a task integral to loading a ship.
Our conclusion that repair and maintenance to essential equipment are reached by the Act is buttressed by the fact that every Court of Appeals to have addressed the issue has arrived at the same result. See the cases cited supra, at 44-45. As evidenced by the amicus brief of the United States filed in these cases, the Secretary of Labor also agrees that such repair and maintenance employees are engaged in maritime employment within the meaning of § 902(3), and the Benefits Review Board also has consistently taken this view, see, e. g., Wuellet v. Scappoose Sand & Gravel Co., 18 BRBS 108, 110-111 (1986); De Robertis v. Oceanic Container Service, *48 Inc., 14 BRBS 284, 286-287 (1981); Cabezas v. Oceanic Container Service, Inc., 11 BRBS 279, 283-288 (1979), and cases cited therein.
III
Applying the standard expressed in our cases, we conclude that each of the respondents is covered by the LHWCA. The Supreme Court of Virginia held that Goode was not covered because in its view repair of equipment essential to the loading process was not maritime employment. This was error. It makes no difference that the particular kind of repair Goode was doing might be considered traditional railroad work or might be done by railroad employees wherever railroad cars are unloaded. The determinative consideration is that the ship loading process could not continue unless the retarder that Goode worked on was operating properly. It is notable that the loading actually was stopped while Goode made the repairs and that one of his supervisors apparently expressed the desire that Goode hurry up so that the loading could continue.
Respondents Schwalb and McGlone also were performing duties essential to the overall loading process. There is testimony in the record that if the coal which spills onto the rollers is not periodically removed, the rollers may become clogged and the dumper will become inoperable. App. 57, 92. The same is true of the coal that falls beneath the conveyor belts. Ibid. Testimony indicated that a buildup of such coal could eventually foul the conveyors and cause them to be shut down. Equipment cleaning that is necessary to keep machines operative is a form of maintenance and is only different in degree from repair work. Employees who are injured on the situs while performing these essential functions are covered by the LHWCA.
IV
For the reasons given above, the judgments of the Supreme Court of Virginia are reversed.
It is so ordered.
*49 JUSTICE BLACKMUN, with whom JUSTICE MARSHALL and JUSTICE O'CONNOR join, concurring.
Although I join the opinion of the Court, I write separately to emphasize that I do not understand our decision as in any way repudiating the "amphibious workers" doctrine this Court articulated in Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 272-274 (1977). We hold today that respondents Schwalb, McGlone, and Goode are covered by the LHWCA since they were injured while performing tasks essential to the process of loading ships. In light of Northeast Marine Terminal Co., however, it is not essential to our holding that the employees were injured while actually engaged in these tasks. They are covered by the LHWCA even if, at the moment of injury, they had been performing other work that was not essential to the loading process.
As the Court explained in Northeast Marine Terminal Co., Congress, in amending the LHWCA in 1972, intended to solve the problem that under the pre-1972 Act employees would walk in and out of LHWCA coverage during their workday, if they performed some tasks over water and other tasks ashore. Congress wanted
"to provide continuous coverage throughout their employment to these amphibious workers who, without the 1972 Amendments, would be covered only for part of their activity. It seems clear, therefore, that when Congress said it wanted to cover `longshoremen,' it had in mind persons whose employment is such that they spend at least some of their time in indisputably longshoring operations and who, without the 1972 Amendments, would be covered for only part of their activity." Id., at 273.
Later, in P. C. Pfeiffer Co. v. Ford, 444 U. S. 69 (1979), we said that the "crucial factor" in determining LHWCA coverage "is the nature of the activity to which a worker may be assigned." Id., at 82 (emphasis added). Although the employees in Pfeiffer were actually engaged in longshoring work *50 at the time of their injuries, we noted: "Our observation that Ford and Bryant were engaged in maritime employment at the time of their injuries does not undermine the holding of Northeast Marine Terminal Co. . . . that a worker is covered if he spends some of his time in indisputably longshoring operations. . . ." Id., at 83, n. 18.
To suggest that a worker like Schwalb, McGlone, or Goode, who spends part of his time maintaining or repairing loading equipment, and part of his time on other tasks (even general cleanup, or repair of equipment not used for loading), is covered only if he is injured while engaged in the former kind of work, would bring the "walking in and out of coverage" problem back with a vengeance. We said in Northeast Marine Terminal Co. that "to exclude [a worker] from the Act's coverage in the morning but include him in the afternoon would be to revitalize the shifting and fortuitous coverage that Congress intended to eliminate." 432 U. S., at 274.
I join the Court's opinion on the specific understanding that it casts no shadow on the continuing validity of Northeast Marine Terminal Co.
JUSTICE STEVENS, concurring in the judgment.
Had this case arisen in 1977, I would have subscribed to the interpretation of the Longshore and Harbor Workers' Compensation Act that the Supreme Court of Virginia adopted in White v. Norfolk & Western R. Co., 217 Va. 823, 232 S. E. 2d 807, cert. denied, 434 U. S. 860 (1977). I continue to believe that the text of the Act "merely provides coverage for people who do the work of longshoremen and harbor workers amphibious persons who are directly involved in moving freight onto and off ships, or in building, repairing, or destroying ships," and that the Act's history in no way clouds the text's plain import. See Director, OWCP v. Perini North River Associates, 459 U. S. 297, 328, 342 (1983) (STEVENS, J., dissenting). The White opinion reaches a similar conclusion. See White, 217 Va., at 833, 232 S. E. 2d, at 813 (employing a "direct involvement" test).
*51 Yet, as the majority correctly observes, ante, at 44-45, the Federal Courts of Appeals have consistently interpreted the Act's status requirement to encompass repair and maintenance workers. That uniform and consistent course of decision has established a reasonably clear rule of law that I feel bound to respect. Cf. Commissioner v. Fink, 483 U. S. 89, 102-103 (1987) (STEVENS, J., dissenting). I therefore concur in the Court's judgment.
NOTES
[*] Together with No. 88-127, Norfolk & Western Railway Co. v. Goode, also on certiorari to the same court.
[] Stephen A. Trimble, John M. Clifford, and John J. Delaney filed a brief for the Association of American Railroads et al. as amici curiae urging reversal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724199/ | 602 So.2d 1213 (1992)
Jerome Peter KUK
v.
STATE of Alabama.
CR 91-170.
Court of Criminal Appeals of Alabama.
July 24, 1992.
*1214 David S. Luker and Tamera K. Erskine, Birmingham, for appellant.
James H. Evans, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.
BOWEN, Judge.
This is an appeal from the denial of a motion for post-conviction relief that was filed pursuant to Rule 20, A.R.Crim. P.Temp. (now Rule 32, A.R.Crim.P.).
In April 1988, Jerome Peter Kuk, the appellant, was convicted for the murder of William Dillow. He was sentenced to 99 years' imprisonment, was fined $20,000, and was ordered to pay $4,000 in restitution. No direct appeal was taken from that conviction and sentence. The record currently before this Court does not contain the history of the appellant's post-conviction proceedings. However, in an earlier appeal involving the same petition now under consideration, we noted:
"The appellant states that on June 15, 1988, he filed a petition for writ of habeas corpus in the Montgomery Circuit Court and that his petition subsequently was transferred to the Barbour Circuit Court. The appellant says that on January 27, 1989, he filed a petition under Rule 20 in the Barbour Circuit [C]ourt, that notice of appearance by counsel was filed on March 9, 1989, and that the petition was set for hearing on September 22, 1989. The appellant further says that on August 25, 1989, his counsel amended the petition and that, on or about the same date, he filed a pro se motion to dismiss the petition. The record indicates that on October 30, 1989, the appellant's motion to dismiss was granted and that on October 31, 1989, a motion by his counsel to withdraw also was granted. On April 4, 1990, the appellant filed the present petition, which was summarily dismissed on April 6, 1990, `due to a previous Rule 20 [petition] having been filed.'"
Kuk v. State, 580 So.2d 750, 751 (Ala.Cr. App.1991). Because there was nothing in the record to indicate either that the appellant's prior Rule 20 petition had been adjudicated on the merits or that the State had met its burden of pleading that fact as a ground of preclusion, this Court remanded the cause for further proceedings. Kuk, 580 So.2d at 751-52. On remand, the trial court conducted an evidentiary hearing on the merits of the petition, permitted the parties to brief several points, and allowed the parties to offer written closing arguments. The trial court subsequently entered a written order denying the petition. R. 79C-93C.
I.
The appellant was represented at trial by two retained attorneys.[1] As one of the grounds of his Rule 20 petition, the appellant asserted that the performance of these attorneys before and during his trial amounted to the ineffective assistance of counsel. A large part of the evidentiary hearing was devoted to this allegation, with both of the appellant's trial attorneys, the appellant, and an attorney called by the appellant as an expert witness testifying on the matter.
A convicted defendant who claims that his attorney was ineffective must meet the two-prong test set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984):
"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made *1215 errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
In order to meet the first prong of the Strickland test, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 688, 104 S.Ct. at 2064. He must also "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." 466 U.S. at 690, 104 S.Ct. at 2066.
In assessing whether a defendant has established the first prong of the Strickland test, a reviewing court
"must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.... The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id.
To support his claim that his trial attorneys were ineffective, the appellant has identified eleven specific omissions that he alleges fell below the Strickland "objective standard of reasonableness." One of these omissions is the attorneys' failure to object to the trial court's instructing the jury on reckless murder.
"Under Alabama law, there are three forms of murder: `intentional murder,' defined in [Ala.Code 1975,] § 13A-6-2(a)(1); `reckless [or universal malice] murder,' defined in § 13A-6-2(a)(2); and `felony murder,' defined in § 13A-6-2(a)(3)." Starks v. State, 594 So.2d 187, 193 (Ala.Cr.App. 1991). The appellant was charged in a one-count indictment with intentional murder only. See Supp.R. 28, 240-41. However, the trial court instructed the jury on both intentional murder and reckless murder. Supp.R. 245-48. The case of Marsh v. State, 418 So.2d 191 (Ala.Cr.App.1982) (hereinafter "Marsh I"), involved this same situation. Marsh objected to the reckless murder instruction at trial and, on appeal, argued that that instruction constituted a fatal variance from the indictment, which charged him with only intentional murder. Marsh I, 418 So.2d at 192. With a minimum of discussion, this Court held that the jury charge on both intentional murder and reckless murder was proper. Marsh I, 418 So.2d at 192-93.
Marsh I was decided May 18, 1982, and the Alabama Supreme Court denied certiorari review on August 27, 1982. Less than two years later, however, our Supreme Court overruled Marsh I and held that it is reversible error for a trial judge to instruct the jury on reckless murder where the indictment charges the defendant with only intentional murder. Ex parte Washington, 448 So.2d 404 (Ala.1984) (decided March 9, 1984). The Court began its discussion by recognizing that
"[a] defendant is constitutionally entitled to be informed of the nature and the cause of the accusation against him. The function of the indictment is to inform the accused of the crime with which he is charged, so that he may prepare a defense if one is available. The person accused of a crime is required at trial to answer only the specific charge contained in the indictment."
Ex parte Washington, 448 So.2d at 407 (citations omitted) (emphasis added). After determining that intentional murder and reckless murder are, in fact, different offenses, the Court "conclude[d] that the trial court erred in giving an instruction on [`reckless' or] `universal malice' murder. Defendant has a constitutional right to be *1216 informed of the charges against him." Ex parte Washington, 448 So.2d at 408.
Within ten months after the release of the Alabama Supreme Court's opinion in Ex parte Washington, this Court had summarily reversed five murder convictions on the authority of that opinion. Dawson v. State, 449 So.2d 800 (Ala.Cr.App.1984) (decided April 10, 1984); Hughley v. State, 451 So.2d 439 (Ala.Cr.App.1984) (decided May 22, 1984); Ponder v. State, 451 So.2d 1382 (Ala.Cr.App.1984) (decided June 12, 1984); Bell v. State, 455 So.2d 1022 (Ala. Cr.App.1984) (decided August 28, 1984); Marsh v. State, 461 So.2d 51 (Ala.Cr.App. 1984) (decided December 11, 1984) (hereinafter "Marsh II"). The last of these five cases, Marsh II, involved the same defendant whose conviction we had affirmed in Marsh I. In Marsh II, we determined that the holding of Ex parte Washington was to be applied retroactively, and we reversed Marsh's conviction based on the improper jury instruction on reckless murder. Marsh II, 461 So.2d at 53.
In Mathews v. State, 491 So.2d 1087 (Ala. Cr.App.1986) (decided May 27, 1986), we again reversed a murder conviction where the indictment had charged only intentional murder and the trial court had instructed the jury on reckless murder. Eighteen months later, we held that an instruction on reckless murder where the defendant was charged with only intentional murder was not harmless error under Rule 45, A.R.App.P. Hall v. State, 520 So.2d 218 (Ala.Cr.App.1987) (decided October 27, 1987). In each of the cases cited above, defense counsel objected to the reckless murder charge at trial.
The appellant was tried on April 25, 1988, more than four years after Ex parte Washington was decided. We are of the opinion that any reasonably competent attorney would have been aware, at the time of the appellant's trial, of Washington and at least most of its progeny.[2] Consequently, we find that the performance of the appellant's retained trial attorneys in failing to object to a clearly erroneous jury instruction "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. It is simply impossible for this Court to conclude that, "under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. See Commonwealth v. Stago, 267 Pa.Super. 90, 406 A.2d 533, 536-38 (1979).
In its written order, the trial court recognized that the instruction on reckless murder constituted error at the appellant's trial, but found that the appellant was not prejudiced by the attorneys' failure to object to the instruction. The court set forth two reasons for its finding: First, the "`totality' of the evidence," including "eye witnesses who ... saw the murder," was heavily against the appellant and "[a]n objection to the jury instruction would have changed nothing about the [appellant's] guilt." R. 90C. The trial court's second reason appears to be that the appellant did not take a direct appeal from his conviction, and thus an objection, if made, would have been "lost." R. 89C. We cannot agree *1217 with the trial court's conclusion that the appellant was not prejudiced by his attorneys' failure to object to this erroneous instruction or with either of the reasons advanced by the trial court for its conclusion.
As we observed in Marsh II:
"The Alabama Supreme Court clearly stated in its opinion in Washington, supra, that the reason it reversed Washington's conviction was that a `defendant has a constitutional right to be informed of the charges against him.' Washington, supra at 408.
"If a defendant is only charged with `intentional murder' but the trial judge also charges the jury on `reckless murder' there is a distinct possibility that the jury could find the defendant guilty of `reckless murder' rather than `intentional murder.' There is a serious risk that a defendant, in this situation, could be convicted of an offense for which he was not charged and [from] which he had no opportunity to defend himself.
"It is clear to this court that the rule of law set out in Washington, supra, raises serious questions about the accuracy of guilty verdicts in past trials in which a `reckless murder' instruction has been given even though the defendant was only charged with `intentional murder.'"
Marsh II, 461 So.2d at 53 (emphasis added). Cf. Thomas v. State, 452 So.2d 899, 903 (Ala.Cr.App.1984) (decided May 22, 1984) (reaching the same conclusion where the trial court instructed the jury on intentional murder and felony murder when the defendant was charged only with intentional murder: "Thus, the jury may have convicted Thomas of murder without finding that he had the intent to kill [the victim]. Relying on the court's charge that they could find Thomas guilty of murder if they determined that he or another participant killed the victim in the course of robbing her, the jury would have been authorized to convict Thomas of a crime not charged in the indictment.").
While there were two witnesses who testified that they observed the events leading up to the shooting of the victim, neither of these witnesses testified that he or she actually saw the appellant shoot the victim. In fact, both of the witnesses testified that the shooting occurred in the yard of the appellant's residence, that they were inside the residence at the time of the shooting, and that they looked out the window only after hearing a gunshot. Furthermore, both of these witnesses testified that the appellant had consumed a substantial amount of alcohol on the day of and the day prior to the murder. At the appellant's request, the trial court charged the jury that voluntary intoxication, while not an excuse for a criminal act, could be so excessive as to "render the intoxicated person incapable of forming a specific intent." Supp.R. 253. The court also charged the jury on the lesser included offense of manslaughter. R. 248-49. Under the evidence adduced, the appellant was clearly entitled to these charges. See McConnico v. State, 551 So.2d 424, 426 (Ala.Cr.App.1988); Peterson v. State, 520 So.2d 238, 239-40 (Ala. Cr.App.1987); Anderson v. State, 507 So.2d 580, 584 (Ala.Cr.App.1987); Commentary to Ala.Code 1975, § 13A-3-2.
Thus, under the particular circumstances of this case, there was a substantial danger that the appellant was convicted of a crime for which he was not indicted. The trial court's instructions, taken as a whole, permitted the jury to convict the defendant of reckless murder (an uncharged offense), even if it found that the appellant's intoxication rendered him incapable of forming the specific intent necessary to convict him of intentional murder (the charged offense). The State's evidence did indicate that the appellant killed the victim; however, that same evidence also created a jury question as to the degree of the appellant's culpability. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. at 686, 104 S.Ct. at 2064. In this case, the attorneys' failure to object to the erroneous instruction on reckless murder left the jury *1218 free not only to convict the appellant of a crime not charged, but could have deprived the appellant of the benefit of the instruction on the lesser included offense of manslaughter. Clearly, the appellant's trial "cannot be relied on as having produced a just result."
As for the trial court's second reason for finding that the appellant suffered no prejudice, we observe that had the appellant taken a direct appeal from his conviction, the issue of the improper jury instruction on reckless murder would not have been reviewed by this Court because there was no objection to that charge at trial. Biddie v. State, 516 So.2d 847 (Ala.1987); Goins v. State, 521 So.2d 97 (Ala.Cr.App.1987); Geter v. State, 468 So.2d 197 (Ala.Cr.App. 1985). See Rule 14, A.R.Crim.P.Temp. (now Rule 21.2, A.R.Crim.P.). This only serves to strengthen our belief that the appellant was prejudiced by the failure of the attorneys' to object to this chargethe defendants in Ex parte Washington and its progeny all received new trials because their attorneys did object to the charge.
We conclude that the appellant has met the two-prong test of Strickland v. Washington and that his trial attorneys provided him with ineffective assistance. Thus, the trial court erred in denying the appellant's Rule 20 petition on this ground.
Having concluded that one of the eleven specific omissions of counsel cited by the appellant did, in fact, amount to ineffective assistance of counsel, we need not address the remaining ten. We do, however, observe that most of the remaining assertions focused on the attorneys' alleged failure to properly investigate possible defenses and their choice of and alleged failure to properly present a reasonable doubt defense. When questioned about these matters at the evidentiary hearing, both of the attorneys indicated that they had not reviewed their files regarding the appellant's case prior to the hearing. One of the attorneys even stated that she could not remember the specific defense utilized in the appellant's case and that she did not remember much of what she did to prepare for the appellant's trial. This Court recognizes that it is no pleasant matter for an attorney to be the subject of a claim of ineffective assistance of counsel. While the burden is on a defendant to show that his attorney was ineffective, where the facts are in conflict, testimony by the attorney clearly setting out what he or she did in preparation of the defendant's case is essential in order for any court to conclude that the attorney did act in a professionally reasonable manner.
II.
This Court rejects the appellant's contention that he was subjected to double jeopardy because "the jury was impaneled and sworn on one date, released for approximately one month, the[n] reconvened to hear the case." Appellant's brief at 20.
The record of the appellant's trial reveals that a jury was struck and sworn on Monday, March 28, 1988. Supp.R. 22. The trial transcript contains no other occurrences for that day.[3] Four weeks later, on April 25, 1988, the parties and jurors reconvened and the appellant's trial went forward. Supp.R. 22. At that time, there was no objection on any ground to continuing with the trial.
From the testimony given at the evidentiary hearing on the appellant's Rule 20 petition, it appears that the case was continued on March 28 because one of the appellant's attorneys was suffering from a skin rash. Both of the trial attorneys testified that the continuance was had with the appellant's agreement. R. 71-72, 127. The appellant, however, indicated that the continuance had not been discussed with him. He testified that when "the judge turned *1219 the jury loose and told them to go home until the 25th of April," he asked his attorneys about the effect of double jeopardy and was informed that jeopardy did not attach until the indictment was read. R. 171-72. Under questioning by the trial court, the appellant stated that he was given no opportunity to object to the continuance. R. 191. The trial court, however, stated that it had provided the appellant with such an opportunity. R. 191. As noted above, the record for March 28 reflects none of this.
At the outset, we observe that this issue is not properly presented in a Rule 20 petition. A claim of double jeopardy must be timely raised at trial or it is waived. See Ex parte Sales, 460 So.2d 1252 (Ala. 1984); Bolden v. State, 568 So.2d 841 (Ala. Cr.App.1989). Thus, this is an issue that could have been raised at trial, but was not, and the issue is therefore precluded from consideration under Rule 20.2(a)(3), A.R.Crim.P.Temp. (now Rule 32.2(a)(3), A.R.Crim.P.).[4]
Moreover, this is simply not the type of situation that the guarantee against double jeopardy was intended to cover.
"The general design of the Double Jeopardy Clause of the Fifth Amendment is that described in Green v. United States [, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957) ]:
"`The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'"
United States v. DiFrancesco, 449 U.S. 117, 127-28, 101 S.Ct. 426, 432, 66 L.Ed.2d 328 (1980). The concept of double jeopardy "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). "[T]he constitutional protection also embraces the defendant's `valued right to have his trial completed by a particular tribunal.'" Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949)). This last aspect of the double jeopardy protection prevents the prosecution from terminating a trial prior to verdict in the hope of gaining some tactical advantage upon retrial. See generally 3 W. LaFave & J. Israel, Criminal Procedure § 24.1 at 60-61 (1984).
Clearly, jeopardy attached in this case when the jury was initially sworn on March 28. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). However, just as clearly, the appellant was not subjected to double jeopardy. The appellant was not tried twice for the same crime and there is no indication that the prosecution gained any tactical advantage by the delay. In fact, the continuance was sought by the appellant's attorneys and was obtained before any testimony was taken. Most importantly, the appellant was tried by the "particular tribunal" that was originally empaneled. While we certainly do not condone the practice of striking and swearing a jury only to release that jury with instructions to report back approximately a month later, such an occurrence, in and of itself, simply does not subject a defendant to double jeopardy. See State v. Johnson, *1220 529 So.2d 466, 471-72 (La.App.1988), writ denied, 536 So.2d 1233 (La.1989) (defendant not subjected to double jeopardy where trial court granted fourteen-day continuance after swearing of jury to permit prosecutor to answer defense counsel's discovery motion (which had been misfiled by defense counsel under the wrong case number) because defendant "was eventually tried by the same jury that had been empaneled and sworn prior to the recess"). Cf. Drake v. State, 467 N.E.2d 686, 689-90 (Ind.1984) (defendant not subjected to double jeopardy where trial court granted two-week continuance for State to secure presence of absent witnesses because "[j]eopardy attached when the jury was sworn and it was that same jury which rendered the verdict"); United States v. Bringhurst, 468 F.2d 604, 605 (5th Cir.1972), cert. denied, 410 U.S. 938, 93 S.Ct. 1399, 35 L.Ed.2d 603 (1973) (defendant failed to show any prejudice to support his claim that he was subjected to double jeopardy where "trial court either `continued' or `recessed' the trial after the jury was sworn because of the non-appearance of the Government's prosecuting witness, and some of the members of the jury, during the two day recess, actually were sworn and served on one or two other juries in the same court before they were reassembled to proceed with the trial of [the defendant's] case").
As part of this argument, the appellant reiterates one of the allegations he made with regard to his ineffective assistance of counsel claimthat his attorneys were ineffective in failing to question, on April 25, when his trial reconvened, a juror who indicated that she had learned something about the case during the four-week continuance. During the trial court's opening remarks upon reconvening the appellant's trial, the following occurred:
"[THE COURT:] Now, since we have not been together for awhile I think it's my duty to ask you has anybody talked or attempted to talk about any of the facts of this case to you? (No response.) Have you found out anything about this case or about the facts of the case that you didn't know when we were here last time when you were selected as a jury to try this case?
"JUROR: (Raises hand.)
"THE COURT: All right, ma'am. Would anything that you found out make any difference as to how you would decide the case or could you listen to the evidence as you hear it today and put it out of your mind?
"JUROR: Yes, sir.
"THE COURT: All right. Would any of you attorneys like to ask this lady any questions?
"MR. LeMAISTRE [prosecutor]: (No response.)
"MR. MARTIN [defense counsel]: No, sir."
Supp.R. 25-26.
The requirements for prevailing on a claim of ineffective assistance of counsel were discussed at length in Part I above. Even if we assume, without deciding, that the appellant has met the first prong of the Strickland v. Washington test on this claim, he has failed to meet the second prong, i.e., he has failed to prove that he was prejudiced by the failure to question the juror. The juror was not called at the evidentiary hearing on the Rule 20 petition and the information she learned during the four-week continuance is not known. However, the trial court questioned her at trial regarding the effect of this information. As the appellant points out, the trial court's question was actually two alternative questions: 1) "Would anything that [she] found out make any difference as to how [she] would decide the case" or 2) "[C]ould [she] listen to the evidence as [she] hear[d] it ... and put it out of [her] mind." This Court, of course, has no way of knowing which of the questions the juror was answering.
However, we have recently held, in a situation involving a similar two-part question by defense counsel to a veniremember, that "the trial judge was in the best position to observe [the veniremember's] demeanor and tone when she answered defense counsel's questions and to determine what her responses meant." Morrison v. State, 601 So.2d 165, 170 (Ala.Cr.App.1992). We think the same holds true in this case. *1221 The trial court apparently determined that the juror was saying that she could listen to the evidence and put "out of [her] mind" whatever information she had learned during the continuance. The appellant has offered no evidence to disprove this determination. In fact, the appellant has failed to demonstrate that he was prejudiced in any way by the four-week continuance. We find no rational support for the appellant's claim that he was subjected to double jeopardy by that continuance.
For the reasons stated in Part I above, the judgment of the circuit court denying the appellant's Rule 20 petition is reversed and this cause is remanded for retrial.
REVERSED AND REMANDED.
PATTERSON, P.J., and TAYLOR and McMILLAN, JJ., concur.
MONTIEL, J., dissents without opinion.
NOTES
[1] One of these attorneys was a member of the Alabama bar practicing in Eufaula, Alabama. The other attorney was a member of the Georgia bar practicing in Barnesville, Georgia. The Alabama attorney associated the Georgia attorney on the appellant's case because she had never represented a defendant charged with murder. R. 16.
[2] Indeed, our research reveals that Mathews v. State, 491 So.2d 1087 (Ala.Cr.App.1986), appears in the annotation to § 13A-6-2 in the 1987 cumulative supplement to Volume 12 of the Alabama Code. The annotation reads:
"Instruction under subdivision (a)(2) is error where indictment charges under subdivision (a)(1).Because an accused has the right to be informed of the charges against him, it is error for the trial court to instruct the jury on `universal malice' murder under subdivision (a)(2) of this section where the indictment only specifically charges that defendant acted intentionally in causing the victim's death, under subdivision (a)(1) of this section." 1987 cumulative supplement at 67.
Also appearing in the annotation to § 13A-6-2 in the 1987 cumulative supplement is Thomas v. State, 452 So.2d 899 (Ala.Cr.App.1984). That annotation reads:
"In a trial on an indictment charging intentional murder, an instruction on universal malice murder constitutes error and a fatal variance." 1987 cumulative supplement at 68.
Although Thomas actually involved an instruction on felony murder where the defendant was charged with only intentional murder, the case did cite Ex parte Washington for the proposition appearing in the annotation.
[3] The transcript provides only the following information:
"* * * * * * *
"MORNING SESSIONMONDAY, MARCH 28, 1988 9:00 A.M.
"(Roll call of prospective jurors.)
(Prospective jurors were duly sworn.)
(Jury and alternate jurors were qualified, selected, and duly sworn.)
* * * * * *"
Supp.R. 22. The very next entry in the transcript is "MORNING SESSIONMONDAY, APRIL 25, 1988 8:59 A.M." Id.
[4] The appellant does not contend that his attorneys were ineffective in failing to assert a claim of double jeopardy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/753199/ | 141 F.3d 1170
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Jeffrey TAYLOR, Appellant/Cross-appellee,v.Pulaski Bank & Trust Company, Appellee/Cross-appellant.
Nos. 96-2834, 96-2841.
United States Court of Appeals, Eighth Circuit.
Submitted: April 14, 1997.Filed: April 17, 1998.
Before McMILLIAN, Circuit Judge, HENLEY,* Senior Circuit Judge, and BEAM, Circuit Judge.
PER CURIAM.
1
Jeffrey Taylor (Taylor) appeals from final orders entered in the District Court1 for the Eastern District of Arkansas, granting summary judgment in favor of Pulaski Bank & Trust Company (the Bank) in his diversity action for conversion and breach of fiduciary duty, Taylor v. Pulaski Bank & Trust Co., No. LR-C-94-850 (E.D. Ark. June 6, 1996) (memorandum and order), and denying his motion for attorneys' fees and costs. Id. (June 26, 1996).
2
The Bank cross-appeals from final orders denying its motion to disqualify Taylor's counsel, id. (Sept. 30, 1995), and denying its motion for attorneys' fees. Id. (June 26, 1996).
3
Taylor was the beneficiary of the Donald E. Taylor Life Insurance Trust (the Trust) of which the Bank served as sole trustee since 1981. In March 1995 Taylor filed a motion for partial summary judgment on the grounds that the Trust terms were clear and unambiguous and, as a matter of law, Taylor was entitled to the undistributed trust funds. Interpreting the Trust under Arkansas law, the district court found that the language of the Trust was clear and unambiguous and Taylor was the sole beneficiary. Id. at 6-8 (Sept. 30, 1995). In the same order, the district court denied the Bank's motion to disqualify Taylor's counsel for breach of Arkansas Rules of Professional Conduct 1.7(a) and 3.7, on the grounds that there was no matter pending before Taylor's counsel that was directly adverse to the Bank and substantial hardship would result to Taylor if his counsel were disqualified. Id. at 4-5.
4
Taylor later moved for attorneys' fees and costs incurred in connection with the enforcement of the Trust. The district court initially denied Taylor's motion as premature. Id. (Dec. 6, 1995). Later, after the district court granted summary judgment in favor of the Bank, the parties filed a joint request for extension of time to file motions for attorneys' fees and costs. Before the district court ruled on the joint request, the filing deadline passed without either party filing for attorneys' fees and costs. The district court then denied the parties' request and directed each party to bear his or its own fees and costs. Id. (June 26, 1996).
5
We have carefully reviewed the record and agree with the analyses of the district court as set forth in its well-reasoned memoranda and orders. With respect the issue of attorneys' fees and costs, we further note that district courts generally have broad discretion in deciding motions to extend time for filings. See, e.g., Metropolitan Fed. Bank of Iowa, F.S.B. v. W.R. Grace & Co., 999 F.2d 1257, 1259 (8th Cir.1993). Accordingly, we affirm the judgments of the district court. See 8th Cir. R. 47B.
*
The Honorable J. Smith Henley died on October 18, 1997. This opinion is consistent with his vote at the panel's conference following oral argument on April 14, 1997
1
The Honorable Stephen M. Reasoner, Chief Judge, United States District Court for the Eastern District of Arkansas | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2263724/ | 24 Cal.App.4th 12 (1994)
29 Cal. Rptr.2d 53
DON ARRASMITH, Plaintiff and Appellant,
v.
STATE FARM INSURANCE COMPANY, Defendant and Respondent.
Docket No. C015809.
Court of Appeals of California, Third District.
April 11, 1994.
*14 COUNSEL
Barr, Sinclair & Hill, Larry L. Hill and Lauren E. Leisz for Plaintiff and Appellant.
Moss & Enochian and Mark D. Norcross for Defendant and Respondent.
*15 OPINION
PUGLIA, P.J.
Plaintiff appeals from an order denying his petition to compel arbitration of an underinsured motorist insurance claim. The trial court concluded the claim is barred by the statute of limitations set forth in Insurance Code section 11580.2, subdivision (i). (Further statutory references to sections of an undesignated code are to the Insurance Code.) Plaintiff contends this limitation period is inapplicable to underinsured motorist claims and, at any rate, defendant is estopped to raise this defense. We shall affirm.
I
"Unless otherwise agreed in writing, `[e]very policy of auto insurance in this state must provide uninsured motorist coverage equal to or greater than that required by Insurance Code section 11580.2.' [Citation.] Section 11580.2, subdivision (b) defines `uninsured motor vehicle' to include one with respect to which there is no bodily injury liability insurance, and one which is `underinsured' as defined in subdivision (p) of that section. Section 11580.2, subdivision (p)(2) defines an `underinsured motor vehicle' as one `insured for an amount that is less than the uninsured motorist limits carried' by the injured person." (Holcomb v. Hartford Casualty Ins. Co. (1991) 230 Cal. App.3d 1000, 1003 [281 Cal. Rptr. 651].)
Section 11580.2, subdivision (f) requires that any dispute over whether an insured is entitled to uninsured motorist benefits or the amount thereof be submitted to arbitration. Section 11580.2, subdivision (i) establishes a one-year statute of imitations for certain prerequisites to accrual of an uninsured motorist claim. (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 484 [121 Cal. Rptr. 477, 535 P.2d 341]; Ramirez v. USAA Casualty Ins. Co. (1991) 234 Cal. App.3d 391, 398 [285 Cal. Rptr. 757].) It provides: "No cause of action shall accrue to the insured under any policy or endorsement provision issued pursuant to this section unless one of the following actions have [sic] been taken within one year from the date of the accident: [¶] (1) Suit for bodily injury has been filed against the uninsured motorist, in a court of competent jurisdiction. [¶] (2) Agreement as to the amount due under the policy has been concluded. [¶] (3) The insured has formally instituted arbitration proceedings."
(1) Section 11580.2 mandates minimum coverage and benefits for uninsured and underinsured motorist claims. (Lumberman's Mut. Cas. Co. v. Wyman (1976) 64 Cal. App.3d 252, 257 [134 Cal. Rptr. 318].) The insurer may by contract assume greater liability. (Ibid.; United States Automobile Assn. v. Kresch (1975) 48 Cal. App.3d 640, 647 [121 Cal. Rptr. 773].)
*16 II
On August 24, 1991, plaintiff was injured in an automobile collision with an underinsured motorist. At the time, plaintiff was covered by a "bodily injury liability insurance policy" issued by defendant, State Farm Mutual Automobile Insurance Company (State Farm), providing uninsured and underinsured motorist benefits. The policy contained a provision for arbitration of any coverage dispute "upon written request of the insured."[1]
By December 26, 1991, plaintiff had settled his claim with the underinsured motorist for the limit of the motorist's liability policy.[2] On September 4, 1991, State Farm notified plaintiff, "it appears that you will have an underinsured motorist claim." Thereafter, plaintiff and State Farm negotiated over settlement of this claim but were unable to reach an agreement. On April 24, 1992, State Farm informed plaintiff by letter that section 11580.2, subdivision (i) (set out verbatim in the letter) is applicable to his underinsured motorist claim. As explained, that provision contains a one-year statute of limitations applicable to uninsured motorist claims.
There was no further communication between plaintiff and State Farm, until August 18, 1992, when plaintiff's attorney sent State Farm a letter indicating: "This will confirm that this office will be representing the Plaintiff[s], Don and Charlaine Arrasmith, herein."
The policy at issue provided for initiation of arbitration by written notice. On November 2, 1992, plaintiff made a written demand for arbitration of the underinsured motorist claim. State Farm refused to arbitrate. Plaintiff's petition to compel arbitration was denied by the superior court, giving rise to this appeal.
III
(2a) Other than the demand for arbitration, plaintiff did not avail himself of any of the means specified in section 11580.2, subdivision (i) to perfect an uninsured motorist claim. Thus, plaintiff neither filed suit against the underinsured motorist (§ 11580, subd. (i)(1)) nor entered into an agreement with State Farm over the amount due under the policy (§ 11580.2, subd. (i)(2)). It is undisputed plaintiff's written demand to arbitrate was not made within one year of the accident. Thus, the sole issue on appeal is whether *17 plaintiff's failure to request arbitration within the statutory period is fatal to his claim.
(3) Plaintiff contends section 11580.2, subdivision (i) (and perforce the policy language derived from it) is inapplicable to underinsured motorist claims as it conflicts with section 11580.2, subdivision (p). By its express terms, subdivision (p) applies exclusively to underinsured motorist claims and its provisions prevail in the event of a conflict with subdivisions (a) through (o) of section 11580.2.[3] Subdivision (p)(3) reads: "This coverage does not apply to any bodily injury until the limits of bodily injury liability policies applicable to all insured motor vehicles causing the injury have been exhausted by payment of judgments or settlements, and proof of the payment is submitted to the insurer providing the underinsured motorist coverage." Plaintiff contends application of a one-year statute of limitations conflicts with subdivision (p)(3)'s requirement that all other insurance coverage be exhausted, which may not occur within a year.
Plaintiff relies primarily on Hartford Fire Ins. Co. v. Macri (1992) 4 Cal.4th 318 [14 Cal. Rptr.2d 813, 842 P.2d 112], in which the Supreme Court held section 11580.2, subdivision (c)(3) conflicts with section 11580.2, subdivision (p). Under subdivision (c)(3), an insured who, without the consent of the insurer, settles with or prosecutes to judgment an action against an uninsured motorist or another who may be liable forfeits the right to seek uninsured motorist benefits. As the court explained, one purpose of subdivision (c)(3) is to protect the insurer's right of subrogation against the tortfeasor. Any judgment against or settlement with the tortfeasor necessarily extinguishes the insurer's subrogation rights. Therefore the insurer must be permitted to control such activities. This right of subrogation does not exist in the underinsured motorist context, the court explained, because the insurer is entitled instead to a credit or reimbursement for all amounts received from other sources. (4 Cal.4th at pp. 324-325.)
The court further reasoned application of section 11580.2, subdivision (c)(3) in the underinsured motorist context would allow the insurer to control whether an underinsured motorist claim ever accrued. The court explained: "The effect of section 11580.2(p)(3) is to require (and therefore by implication to authorize) the insured to prosecute actions against the underinsured, to obtain a settlement and/or judgment and to submit proof of payment to the insurer. If the insured fails to follow the mandate of section 11580.2 (p)(3), *18 there is no underinsured motorist coverage available. Thus, if the consent requirement is deemed to apply to underinsured coverage, the insurer is given complete control over a prerequisite to that coverage the prosecution and settlement of the action against the underinsured motorist. Allowing the insurer a power to thwart coverage at a threshold level by preventing fulfillment of a policy requirement would defeat the manifest intent of the statute to provide mandatory coverage where an insured suffers bodily injuries from an underinsured motorist." (4 Cal.4th at p. 327.)
Unlike Hartford Fire Ins. Co. v. Macri, the instant matter does not present a direct conflict between subdivision (p) and the other provisions of section 11580.2. Although subdivision (p)(3) bars underinsured motorist coverage until settlement or judgment and payment from all other insurance policies, it does not preclude perfection of an underinsured motorist claim. Personal injury actions in this state must be filed within one year of injury. (Code Civ. Proc., § 340, subd. (3).) Consequently, within one year of an accident the insured must either settle any claims against the tortfeasor and his insurers or file suit against them, the latter being sufficient in itself to protect the insured's right to underinsured benefits. (§ 11580.2, subd. (i)(1).)
The insured is also not prohibited from requesting arbitration or entering into settlement negotiations with the insurer before resolution of claims against others. Any settlement or arbitration recovery against the insurer necessarily would be subject to the insurer's right of reimbursement or credit for amounts received from the tortfeasor or other insurers. (§ 11580.2, subd. (p)(5).)
We are aware of no decision in this state directly addressing the issue presented here. However, Firemen's Ins. Co. v. Diskin (1967) 255 Cal. App.2d 502 [63 Cal. Rptr. 177] is instructive. There the insured, covered by an uninsured motorist provision, was injured in another state with a four-year statute of limitations for personal injury actions. More than a year after the accident the tortfeasor's insurer became insolvent, thereby rendering the tortfeasor an uninsured motorist. The insured instituted arbitration proceedings and the insurer brought a declaratory relief action. The trial court granted an injunction against the arbitration and the court of appeal affirmed.
Applying a strict interpretation of section 11580.2, subdivision (i) (then subdivision (h)), the court reasoned: "Clearly, the statute is an adjunct to the right to recover damages for personal injuries, actions which must normally be filed in California within one year of the date of the accident. (Code Civ. Proc., § 340.) Were we to extend beyond one year the financial responsibility of a person who may be derivatively liable for a fault of another *19 we would create a supplemental liability of greater duration than the original liability, thereby holding the person secondarily responsible to a longer period of accountability than the person primarily responsible." (255 Cal. App.2d at p. 509.)
Rejecting the insured's argument he could not have initiated arbitration proceedings until the tortfeasor's insurer became insolvent, the court indicated: "In the case at bench the opportunity to satisfy the requirement of the statute was open to appellants. While the [insureds] could not have instituted arbitration proceedings against their own insurer before the insolvency of [the tortfeasor's insurer], they could have fully protected their contingency claim against their own insurer by filing suit against the motorist at fault any time up to [one year after the accident]. Since they failed to do so, their rights under the statute against their own insurer expired. Subsequent events ... could not operate retroactively to bring to life a claim which they had never taken steps to protect." (255 Cal. App.2d at p. 510.)
Although applying different statutory and policy language, a number of decisions from other jurisdictions are also instructive. In McGlinchey v. Aetna Cas. and Sur. Co. (1992) 224 Conn. 133 [617 A.2d 445] the Connecticut Supreme Court upheld application in an underinsured motorist context of a policy provision requiring a demand for arbitration within two years of the accident. Even though claims against the tortfeasor had not been resolved within the statutory period, the court indicated the two-year limit did not present an "insuperable burden" because the insured was free to demand arbitration while pursuing his claim against the tortfeasor. (617 A.2d at p. 449, fn. 7.)
In Shelton v. Country Mutual Ins. Co. (1987) 161 Ill. App.3d 652 [113 Ill.Dec. 426, 515 N.E.2d 235] the insured was injured by an underinsured motorist and resolved all other claims eight and one-half months before expiration of the limitations period. The insurer received notice of representation by counsel but nothing further. In addition to requiring suit for underinsured motorist benefits within two years of the accident, the policy contained a provision that the insurer "will pay only after all liability bonds or policies have been exhausted by judgments or payments." (515 N.E.2d at pp. 236-237.) The court upheld the two-year limitation because the exhaustion provision did not preclude filing suit within the statutory period, only payment by the insurer. (Cf. Butler v. Economy Fire and Casualty Co. (1990) 199 Ill. App.3d 1015 [146 Ill.Dec. 94, 557 N.E.2d 1281] [statutory period for filing underinsured motorist action tolled during period insured pursued other claims because policy required action to be brought within two years of occurrence of the loss, which the court construed to mean when the insured discovers other coverage will be insufficient].)
*20 Although the Ohio Supreme Court has consistently permitted a contractual reduction in the statute of limitations for bringing uninsured motorist claims (see Colvin v. Globe American Cas. Co. (1982) 69 Ohio St.2d 293 [23 Ohio Op.3d 281, 432 N.E.2d 167, 170]; Duriak v. Globe American Cas. Co. (1986) 28 Ohio St.3d 70 [502 N.E.2d 620, 622]), the Ohio Court of Appeals has recently held otherwise in the context of an underinsured motorist claim. (See, e.g., Lapata v. Progressive Cas. Ins. Co. (1992) 79 Ohio App.3d 65 [606 N.E.2d 1015]; Worley v. Ohio Mut. Ins. Assoc. (1991) 76 Ohio App.3d 531 [602 N.E.2d 416].)
In each of these cases, the contract in question required a claim to be filed within one year, whereas the statutory period for bringing a personal injury action in Ohio is two years. (Ohio Rev. Code Ann. § 2305.10.) In finding the one-year limitation unreasonable in the context of an underinsured motorist claim, the Court of Appeals in Lapata v. Progressive Cas. Ins. Co., explained: "`The purpose of uninsured motorists coverage and of [the Ohio uninsured motorist statute] is to put the insured in the same position he would have had if the tortfeasor carried liability insurance.' [¶] Diminishing the time an insured has under the law places an insured in a substantially different position than he would have been had the tortfeasor carried the required insurance coverage." (606 N.E.2d at p. 1019 (conc. opn. of Resnick, J.).)
Unlike Ohio, California provides a one-year limitation period for bringing an action for personal injury. It is therefore not unreasonable to require an insured to perfect his underinsured claim within one year. Thus, neither conceptually nor under the facts of this case is there a conflict between section 11580.2, subdivision (i) and section 11580.2, subdivision (p). (2b) By December 1991, within four months of the accident, plaintiff had reached a settlement with the underinsured motorist, received payment and notified State Farm. Negotiations with State Farm over underinsured motorist benefits occurred during December and January but were unsuccessful. Plaintiff had seven months thereafter, and four months after receipt of State Farm's letter advising him of the applicability of section 11580.2, subdivision (i), to demand arbitration. The only further communication from plaintiff was counsel's notice of representation. A demand for arbitration did not come until November 1992, too late to protect plaintiff's interests.
IV
(4) Plaintiff contends State Farm is estopped to raise section 11580.2, subdivision (i) as a bar to his claim because State Farm failed to notify plaintiff his prior conduct and communications were insufficient to protect *21 his rights. He argues: "Based on the insurance policy language, on STATE FARM'S acknowledgment of his underinsured motorist claim, and on the letter from ARRASMITH'S attorney advising STATE FARM of his representation with regard to that claim, Mr. ARRASMITH and his counsel had every reason to believe that they had complied with all requirements under the policy prior to the one year anniversary of the underlying accident. STATE FARM never indicated to the contrary, and thereby waived its right to do so." This argument is utterly without merit.
The policy language provided for arbitration "upon written request of the insured." Because this provision contains no time limitation, plaintiff argues the one-year limitation of section 11580.2, subdivision (i) is inapplicable. We disagree. It is precisely because the policy contains no overriding time provision that section 11580.2, subdivision (i) is controlling. Had the parties intended to provide plaintiff greater time they could have so provided.
Although neither section 11580.2 nor the policy specifies what type of notice is required, at the very least the insured must make a written demand to arbitrate. (See Mayflower Ins. Co. v. Pellegrino (1989) 212 Cal. App.3d 1326, 1337 [261 Cal. Rptr. 224].) Plaintiff made no such demand until more than a year after the accident.
State Farm was under no obligation to inform plaintiff whether his conduct or correspondence was sufficient to trigger his right to arbitrate. The only notification required by section 11580.2 is that of alerting an unrepresented insured of the statute of limitations applicable to his claim. Such notice must be given at least 30 days before expiration of the statutory period. (§ 11580.2, subd. (k).) State Farm gave the required notice and, hence, we assume plaintiff was aware of the need to act.
(2c) Having failed to demand arbitration or otherwise comply with section 11580.2, subdivision (i) within the statutory one-year period, plaintiff's underinsured motorist claim is barred. Accordingly, plaintiff's petition to compel arbitration was properly denied.
The judgment (order) is affirmed.
Sparks, J., and Sims, J., concurred.
A petition for a rehearing was denied May 4, 1994, and appellant's petition for review by the Supreme Court was denied June 30, 1994. Mosk, J., was of the opinion that the petition should be granted.
NOTES
[1] The policy itself is not included in the record. The provision regarding arbitration is taken from the memorandum of State Farm in opposition to plaintiff's petition to compel arbitration below. The parties do not dispute this language is applicable to this controversy.
[2] It is undisputed this limit, $25,000, was less than the uninsured motorist limits carried by plaintiff, thereby making the tortfeasor an underinsured motorist.
[3] Subdivision (p) begins: "This subdivision applies only when bodily injury, as defined in subdivision (b), is caused by an underinsured motor vehicle. If the provisions of this subdivision conflict with subdivisions (a) through (o), the provisions of this subdivision shall prevail." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261509/ | 861 F.Supp. 1121 (1994)
RESOLUTION TRUST CORPORATION, Plaintiff,
v.
Ellen P. CAMHI, Anthony W. Caporizzo, William F. Malloy, Jr., Michael G. Morgan, Michael Nadel, William J. Selsberg, and Chester P. Soling, Defendants.
Civ. No. 3:93CV01257 (TFGD).
United States District Court, D. Connecticut.
August 26, 1994.
*1122 *1123 *1124 Benjamin A. Solnit, David W. Schneider, Patricia E. Reilly, Tyler, Cooper & Alcorn, New Haven, CT, for plaintiff.
J. Daniel Sagarin, Margaret E. Haering, David A. Slossberg, Hurwitz & Sagarin, Milford, CT, for deft. Camhi.
Donna M. Lattarulo, Bruce L. Lev, Lev, Spalter & Berlin, Norwalk, CT, for deft. Caporizzo.
Philip D. Russell, Roy S. Ward, Russell & Ward, Greenwich, CT, for deft. Malloy.
John L. Altieri, Jr., Mudge, Rose, Guthrie, Alexander & Ferdon, New York City, for deft. Morgan.
Elliot R. Warren, Westport, CT, for deft. Nadel.
Garie J. Mulcahey, Bai, Pollock & Dunnigan, Bridgeport, CT, for deft. Selsberg.
Carl M. Porto, Louis M. Federici, Jr., James J. Givlietti, Parrett, Porto, Parese, Colwell & Givlietti P.C., New Haven, CT, for deft. Soling.
RULING ON OBJECTIONS TO RECOMMENDED RULING
DALY, District Judge.
Following the failure of Charter Federal Savings and Loan Association ("Charter Federal"), the Resolution Trust Corporation ("RTC") brought this action against its seven former directors.[1] The defendants moved to dismiss Counts One and Three of the complaint on the ground that the claims they assert are preempted by section 212(k) of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA"), 12 U.S.C. § 1821(k). Upon referral Magistrate Judge F. Owen Eagan recommended that the motions be denied, and the defendants filed timely objections. After de novo review, and for the reasons stated below, the defendants' objections are sustained and the motions to dismiss are granted.
BACKGROUND
True to its name, Charter Federal was a federally chartered savings and loan association which was established on April 19, 1984 and which began operations in Stamford, Connecticut on May 11, 1984. Charter Federal was regulated by the Federal Home Loan Bank Board ("FHLBB"), which required the defendants, as the bank's directors,[2] to sign a supervisory agreement with the FHLBB on behalf of the institution effective February 16, 1988. The RTC alleges that, despite the FHLBB's warnings and instructions, the defendants authorized unsafe and illegal loans that ultimately led to Charter Federal's collapse on June 30, 1990 with losses of over $5.7 million. The RTC then filed the instant action as receiver of the bank on June 25, 1993, alleging that the defendants' conduct constituted negligence (Count One), gross negligence (Count Two), and a breach of fiduciary duty (Count Three). The defendants have each moved to dismiss Counts One and Three, and Magistrate Judge F. Owen Eagan has recommended that the motions be denied. See Resolution Trust Corp. v. Camhi, 1994 U.S. Dist. LEXIS 8679 (D.Conn. April 6, 1994). Upon the defendants' objections, and pursuant to Federal Rule of Civil Procedure 72, the Court reviews the defendants' motions de novo.
DISCUSSION
Section 212(k) of FIRREA, codified at 12 U.S.C. § 1821(k), provides:
A director or officer of an insured depository institution may be held personally liable for monetary damages in any civil *1125 action by, on behalf of, or at the request or direction of the Corporation
(1) acting as conservator or receiver of such institution,
....
for gross negligence, including any similar conduct or conduct that demonstrates a greater disregard of a duty of care (than gross negligence) including intentional tortious conduct, as such terms are defined and determined under applicable State law. Nothing in this paragraph shall impair or affect any right of the [RTC] under other applicable law.
12 U.S.C. § 1821(k) (emphasis added).
The defendants argue that Counts One and Three of the complaint should be dismissed because section 1821(k) establishes gross negligence as the exclusive standard of director liability, preempting causes of action predicated on a lesser degree of fault. The defendants further assert that federal law provides the exclusive remedy in an action against former directors of a federally chartered financial institution. The RTC argues in response that both state and federal law apply, and it urges the Court to interpret section 1821(k) to preempt only those state laws that set the standard for director liability at a level higher than gross negligence.
While the interpretation of section 1821(k) is a matter of first impression in this Circuit, various federal courts have found that section 1821(k) preempts state law,[3] preempts federal common law,[4] or preempts neither.[5] Further, several courts have held that, regardless of the preemptive force of section 1821(k), state law claims cannot be brought against federally chartered financial institutions.[6] Magistrate Judge Eagan resolved these issues in favor of the RTC, holding that both state and federal law should apply in this action and interpreting section 1821(k) to permit the RTC to bring claims that require less than gross negligence where applicable state law would permit such claims. See Resolution Trust Corp. v. Camhi, 1994 U.S. Dist. LEXIS 8679, *11-13. After careful review of the statute and its legislative history, and in light of several persuasive decisions that were unavailable to the Magistrate Judge, the Court overrules both these findings.
I. Applicability of State Law
Counts One and Three of the complaint can be construed to allege claims under either state or federal common law, requiring the Court to determine which law to apply. The defendants argue that, as Charter Federal was a creature of federal law, only federal law should apply, and they further argue that section 1821(k) establishes the sole standard of director liability under federal law. See, e.g., Deft. Camhi's Mem. at 1, 16. The RTC suggests that the Court may apply Connecticut law to this action. See RTC's Mem. at 6-8, 28. The Court finds the defendants' argument persuasive, particularly in light of the Seventh Circuit's recent decision in Resolution Trust Corp. v. Chapman, 29 F.3d 1120 (7th Cir.1994).
*1126 The RTC invokes federal jurisdiction in this action pursuant to 12 U.S.C. § 1441a(l)(1), which states that suits to which the RTC is a party "shall be deemed to arise under the laws of the United States." The Court therefore applies federal choice-of-law principles. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 726, 99 S.Ct. 1448, 1457, 59 L.Ed.2d 711 (1979). In Chapman the Seventh Circuit addressed the question of which law to apply in a suit pursuant to section 1821(k). See Chapman, 29 F.3d at 1124. On directly analogous facts the Chapman Court applied the "internal affairs" doctrine to hold that federal courts should apply federal law to suits by the RTC against former directors of federally-chartered financial institutions. Id. at 1124.
The internal affairs doctrine developed on the principle that, in order to prevent corporations from being faced with conflicting demands, the authority to regulate a corporation's internal affairs should not rest with several jurisdictions. See Edgar v. Mite Corp., 457 U.S. 624, 645, 102 S.Ct. 2629, 2642, 73 L.Ed.2d 269 (1982). Rather, the law of the state of incorporation determines issues relating to a corporation's internal affairs, providing certainty and predictability while generally protecting the justified expectations of parties with interests in the corporation. See CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 89-93, 107 S.Ct. 1637, 1649-1652, 95 L.Ed.2d 67 (1987); First Nat. City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 621-22, 103 S.Ct. 2591, 2597-98, 77 L.Ed.2d 46 (1983). The doctrine does not apply where the rights of third parties external to the corporation are at issue, but instead applies to the relationships among or between the corporation and its directors, officers and shareholders. See Banco Para El Comercio, 462 U.S. at 622, 103 S.Ct. at 2597; Rogers v. Guaranty Trust Co., 288 U.S. 123, 130-31, 53 S.Ct. 295, 297-98, 77 L.Ed. 652 (1933); Sadler v. NCR Corp., 928 F.2d 48, 54-55 (2d Cir.1991); CRTF Corp. v. Federated Dept. Stores, Inc., 683 F.Supp. 422, 427 (S.D.N.Y.1988).
The internal affairs doctrine determines the law to apply to this action. Charter Federal was chartered, organized, regulated and insured under federal law, and subsequently also was placed into receivership pursuant to federal law. In essence, Charter Federal "was a creature of federal law `from its cradle to its corporate grave.'" Resolution Trust Corp. v. Gallagher, 800 F.Supp. 595, 603 (N.D.Ill.1992) (quoting Rettig v. Arlington Heights Federal Savings & Loan Assoc., 405 F.Supp. 819, 823 (N.D.Ill. 1975)), aff'd, 10 F.3d 416 (7th Cir.1993). As the receiver for Charter Federal, RTC inherits the corporation's claims, acquiring no more rights against its directors than were possessed by the bank itself. Coit Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561, 585, 109 S.Ct. 1361, 1374, 103 L.Ed.2d 602 (1989).[7] Federal courts do not apply federal law in order to maximize the federal return following bank failures, however, see O'Melveny & Myers v. Federal Deposit Ins. Corp., ___ U.S. ___, ___, 114 S.Ct. 2048, 2055, 129 L.Ed.2d 67 (June 13, 1994), and courts must "consider the extent to which application of a federal rule would disrupt commercial relationships predicated on state law." Kimbell Foods, 440 U.S. at 729, 99 S.Ct. at 1459 (footnote omitted). The RTC's claims derive solely from the rights of Charter Federal against its former directors, and no rights of third parties are alleged to be at issue. The internal *1127 affairs doctrine therefore governs this action and directs the application of federal and not state law. See Banco Para El Comercio, 462 U.S. at 622, 103 S.Ct. at 2597; Sadler, 928 F.2d at 54-55; see also Chapman, 29 F.3d at 1124.[8]
II. Preemption of Federal Common Law
The defendants next argue that, as the plain language of section 1821(k) does not provide for lesser degrees of fault such as simple negligence or breach of fiduciary duty, the section preempts any federal common law claims based on these standards. See Deft. Camhi's Mem. at 6. The RTC contends that section 1821(k) imposes a liability threshold of gross negligence, thereby preempting only those causes of action that require a greater degree of fault but permitting reliance upon lesser standards of liability.
In determining the effect of section 1821(k) upon previously existing federal common law, the analysis begins "with the assumption that it is for Congress, not federal courts, to articulate the appropriate standards to be applied as a matter of federal law." City of Milwaukee v. Illinois, 451 U.S. 304, 317, 101 S.Ct. 1784, 1792, 68 L.Ed.2d 114 (1981). Federal common law develops when the absence of an applicable act of Congress, and a conflict between national policy and state law, necessitate courts creating a federal rule. See id. at 313, 101 S.Ct. at 1790. Federal common law therefore can at times be necessary, but "when Congress addresses a question previously governed by a decision rested on federal common law, the need for such an unusual exercise of lawmaking by federal courts disappears." Id. at 314, 101 S.Ct. at 1791 (citations omitted); see also United States v. Texas, ___ U.S. ___, ___, 113 S.Ct. 1631, 1634, 123 L.Ed.2d 245 (1993).
The Court thus must determine whether Congress, in enacting section 1821(k), specifically intended to address completely the issue of director liability. The starting point for this question of interpretation is the language of the statute itself, and "`[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.'" Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835, 110 S.Ct. 1570, 1575, 108 L.Ed.2d 842 (1990) (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). Section 1821(k) provides that "[a] director or officer ... may be held personally liable for monetary damages in any civil action ... for gross negligence." 12 U.S.C. § 1821(k). As the Fifth Circuit recently noted, "[i]t is difficult to conceive how Congress could more clearly `speak directly' to the issue of the standard of care for personal liability of directors and officers of federally-insured depository institutions." Resolution Trust Corp. v. Miramon, 22 F.3d 1357, 1361 (5th Cir.1994); see also Gallagher, 10 F.3d at 420 ("The plain language of § 1821(k) `speaks directly' to the issue presented in this case and establishes a gross negligence standard of liability...."). As Congress has spoken to the issue the need to resort to federal common law no longer exists, and thus section 1821(k) preempts federal common law. See City of Milwaukee, 451 U.S. at 314, 101 S.Ct. at 1791; Miramon, 22 F.3d at 1361.[9]
The RTC argues, however, that the term "may" in the first sentence and the "savings clause" set forth in the final sentence *1128 should be read to permit claims based on a standard of care lower than gross negligence. See RTC's Mem. at 20. Specifically, the RTC asserts that the term "may" prevents section 1821(k) from being interpreted to create an exclusive remedy limiting the RTC to claims alleging gross negligence or greater culpability. Read in the context of the entire provision, however, the term "may" simply refers to the RTC's general right to bring an action under the section. As the Seventh Circuit noted in Gallagher, "`[m]ay' cannot reasonably be read to qualify the gross negligence standard and is therefore irrelevant to the substance of the provision.'" 10 F.3d at 419 (quoting Canfield, 967 F.2d at 450 n. 4 (Brorby, J., dissenting)).
The RTC also argues that the savings clause preserves federal common law on the ground that, absent a clear congressional statement to the contrary, preexisting statutory or common law rights are not displaced by federal enactment. See RTC's Mem. at 26 (citing County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 236-37, 105 S.Ct. 1245, 1252-53, 84 L.Ed.2d 169 (1985)); see also Norfolk Redev. & Hous. Auth. v. Chesapeake & Potomac Tel. Co., 464 U.S. 30, 35, 104 S.Ct. 304, 307, 78 L.Ed.2d 29 (1983). By enacting section 1821(k), however, Congress expressly defined the magnitude of negligence which would give rise to a federal cause of action against directors of a federally insured financial institution, thereby removing the need for courts to construct law regarding a federal standard of liability in this area. See City of Milwaukee, 451 U.S. at 316, 101 S.Ct. at 1792. Further, if the savings clause were construed to preserve federal common law the main body of the provision would have no effect, as the RTC could bypass the gross negligence standard by alleging a federal common law claim of simple negligence through the savings clause. As the Seventh Circuit noted in Gallagher, "[i]t is illogical that Congress intended in one sentence to establish a gross negligence standard of liability and in the next sentence to eviscerate that standard by allowing actions under [federal] common law for simple negligence." Gallagher, 10 F.3d at 420; see also Miramon, 22 F.3d at 1362 ("[I]t simply makes no sense that Congress would establish a cause of action in one sentence and then render it a nullity in the next."); O'Melveny & Myers, ___ U.S. at ___-___, 114 S.Ct. at 2053-54. In short, because a statute "should be interpreted so as not to render one part inoperative," the RTC's argument fails. Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 2594, 86 L.Ed.2d 168 (1985) (quotation omitted).
Section 1821(k) establishes gross negligence as the standard for civil damages actions brought by the FDIC or the RTC, and the savings clause should be interpreted simply to preserve these agencies' other regulatory powers. For example, the savings clause preserves the agencies' power to remove directors for simple negligence, or their power to issue "cease and desist" orders in cases of simple negligence. See 12 U.S.C. §§ 1818(e)-(g) (authorizing removal of directors); id. §§ 1818(b)-(d) (authorizing "cease and desist" orders).[10] Without the savings clause, FIRREA could have been interpreted to withdraw from these agencies the other regulatory powers that they previously possessed. Section 1821(k) "was targeted exclusively at establishing a new uniform threshold in civil suits when the regulators seek monetary damages for depository institution mismanagement. Therefore, the savings clause was drafted to preserve those other regulatory powers whose exercise is mandated even in cases of simple negligence." Gallagher, 10 F.3d at 421 (quotation omitted).
As section 1821(k) "speaks directly" to the issue of the standard of liability for directors and officers of federally-insured financial institutions, federal common law in this area is preempted. Accordingly, as only federal law applies to this action, and as section 1821(k) establishes gross negligence as the standard for director liability under federal law, Counts One and Three of the *1129 complaint must be dismissed for failure to state claims upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6).
III. Preemption of State Law
The plain meaning of section 1821(k) also suggests that Congress intended to preempt state law, and thus even if the Court were to conclude that state law applied to this action, Counts One and Three would fail.[11] Federal preemption of state law either can be expressly stated in the language of a statute, or can be implied when Congress has elected to "superintend the field" and state law threatens that superintendence. City of Milwaukee, 451 U.S. at 316, 101 S.Ct. at 1792. The defendants argue that section 1821(k) expressly preempts state law, and further argue that the comprehensiveness of the legislative scheme set forth in FIRREA demonstrates Congress' intent to superintend the field of bank regulation. See Deft. Camhi's Mem. at 26.
In general, the analysis of whether a federal statute preempts state law is somewhat different from that employed to determine whether a statute preempts federal common law. See City of Milwaukee, 451 U.S. at 316, 101 S.Ct. at 1792. In considering the preemption of state law, the Court must "start with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Id. (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)) (additional citations omitted). This analysis must include "due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power." Id. (quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 243, 79 S.Ct. 773, 778, 3 L.Ed.2d 775 (1959). As the plain language of a statute is the strongest evidence of congressional intent to preempt state law, however, see Bonjorno, 494 U.S. at 835, 110 S.Ct. at 1575, the fact that the preemption of state rather than federal claims is at issue presents no reason to deviate from the previous interpretation of the plain meaning of section 1821(k). See Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978) (holding federal courts should not hesitate to find either implied or explicit preemption of state law when Congress has so indicated).
By its terms section 1821(k) explicitly preempts all state law that sets the standard for the liability of directors or officers at a level higher than gross negligence. Thus the issue is not whether Congress intended section 1821(k) to preempt state law, but the degree to which such preemption was intended. Several elements of the section's language demonstrate that Congress intended to preempt all state law claims.
First, because the savings clause states that section 1821(k) does not "impair or affect" the RTC's rights under "other applicable law," the remainder of the section must be read to limit the RTC's rights under some law. If Congress intended section 1821(k) simply to strengthen the RTC's power to recover damages from directors of failed financial institutions, it would have drafted the savings clause to state that the section does not "impair or affect any right of the Corporation under any applicable law." The more convincing, and perhaps the more rational, reading is to interpret the savings clause to state that nothing shall impair the *1130 RTC's rights under applicable law other than state law, as the provision itself impairs the RTC's rights under state law. See Federal Deposit Ins. Corp. v. Swager, 773 F.Supp. 1244, 1248 (D.Minn.1991).
Second, section 1821(k) speaks of "gross negligence" and other terms as they "are defined and determined under applicable State law," while the savings clause simply refers to "other applicable law." 12 U.S.C. § 1821(k). Logically, had Congress intended the savings clause to preserve the RTC's rights under "applicable State law" it would have used those precise words, as it did at the close of the immediately preceding sentence and elsewhere throughout the section. See, e.g., 12 U.S.C. §§ 1821(c)(1), -(c)(4), -(e)(8)(A), -(g)(1), -(g)(4), -(i).
Third, to interpret the savings clause to preserve state law claims based on lesser degrees of fault, such as simple negligence or breach of a fiduciary duty, would "eviscerate" the gross negligence standard set forth in the body of 1821(k) to the same degree as would occur if such claims were preserved under federal common law. See Resolution Trust Corp. v. O'Bear, Overholser, Smith & Huffer, 840 F.Supp. 1270, 1277 (N.D.Ind. 1993) (quoting Gallagher, 10 F.3d at 423). Reading the savings clause to preserve state law claims would render the substantive portion of the section surplusage, violating the rule that a statute "should be interpreted so as not to render one part of it inoperative." Pueblo of Santa Ana, 472 U.S. at 249, 105 S.Ct. at 2594 (quotation omitted). Rather, as discussed above, the savings clause is best interpreted to preserve the RTC's ability to take other regulatory actions based on simple negligence. See supra pp. 1128-1129.
Thus while the language of section 1821(k) may appear to resist a "plain meaning" interpretation, when read in context the provision leaves no room for claims based upon state law. The statutory language therefore provides the best evidence of congressional intent to preempt state law. See Bonjorno, 494 U.S. at 835, 110 S.Ct. at 1575. Section 1821(k) also contains an implied preemption of state law, however, as the overall legislative scheme set forth in FIRREA demonstrates a congressional intent to "superintend the field" by nationalizing the law covering the regulation of financial institutions. See Kimbell Foods, 440 U.S. at 728-29, 99 S.Ct. at 1458-59; Gaff, 919 F.2d at 391 (stating that "[t]he legislative history of [12 U.S.C. section 1821(k)] explicitly states an intent to nationalize the law of directors' and officers' liability when banks are taken over by the FDIC"). The legal relationship between the RTC and federally-insured financial institutions requires national uniformity, and to allow the RTC to bring claims against directors based on state law would frustrate this objective. See Kimbell Foods, 440 U.S. at 728-29, 99 S.Ct. at 1458-59; see also Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982); Rath Packing, 430 U.S. at 525, 97 S.Ct. at 1309.
Finally, the legislative history of section 1821(k) supports a finding that the provision preempts state law. Congress enacted FIRREA to bring order to a chaotic regulatory system, but it did not intend to diminish the ability of financial institutions to recruit competent officers and directors. See generally David B. Fischer, Comment, Bank Director Liability Under FIRREA: A New Defense for Directors and Officers of Insolvent Depository Institutions Or a Tighter Noose?, 39 UCLA Law Rev. 1703, 1740-45 (1992) (detailing concerns motivating passage of FIRREA). Congress established gross negligence rather than simple negligence as the standard for director liability to meet this latter objective. The RTC's claims of simple negligence and breach of fiduciary duty under state law therefore are preempted because they "stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." de la Cuesta, 458 U.S. at 153, 102 S.Ct. at 3022 (quotation omitted) (emphasis added).
This concern arose explicitly during the debates preceding FIRREA's enactment. The original version of FIRREA, Senate Bill No. 744, would have held directors liable for "any cause of action available at common law, including, but not limited to, negligence, gross negligence, willful misconduct, [and] breach of fiduciary duty...." S. 774, § 214(n), 101st Cong., 1st Sess. (Calendar *1131 No. 45, April 13, 1989) (emphasis added). Several senators advanced an amendment to change this provision, however, on the ground that the inclusion of lesser standards of liability would curtail drastically the ability of banks and thrifts to attract qualified persons as directors and officers.[12] The Senate passed the amendment containing the following language, which remained in the final bill passed by the Senate:
(n) Liability A director or officer of an insured financial institution may be held personally liable ... for gross negligence or intentional tortious conduct, as those terms are defined and determined under applicable State law. Nothing in this paragraph shall impair or affect any right, if any, of the Corporation that may have existed immediately prior to the enactment of the FIRRE Act.
135 Cong.Rec. S4451-52 (daily ed. April 19, 1989).
The House of Representatives took up the bill two months later on June 15, 1989. Significantly, the House altered the savings clause in the Senate's version of section 1821(k) to its present wording, but preserved the Senate's removal from the original bill of any references to "simple negligence." See H.R. 1278, 101st Cong., 1st Sess., 135 Cong. Rec. H2602 (daily ed. June 15, 1989). After conference with the Senate, the House version of the bill was passed on August 4, 1989.
The RTC relies heavily on the portion of the Senate Report on FIRREA that discussed section 1821(k) in arguing that Congress did not intend to preempt state law. The Report stated:
[Section 1821(k) ] enables the FDIC to pursue claims against directors or officers of insured financial institutions for gross negligence (or negligent conduct that demonstrates a greater disregard of a duty of care than gross negligence) or for intentional tortious conduct. This right supersedes State law limitations that, if applicable, would bar or impede such claims. This subsection [ ] does not prevent the FDIC from proving claims under State law or under other applicable Federal law, if such law permits the officers or directors ... to be sued (1) for violating a lower standard of care, such as simple negligence, or (2) on an alternative theory such as breach of contract [or] breach of fiduciary duty....
S.Rep. No. 19, 101st Cong., 1st Sess., 135 Cong.Rec. S6907, 6912 (daily ed. June 19, 1989). The Senate Report was issued on June 19, 1989, however, and it thus had no impact upon the Senate's vote on the bill two months earlier. Further, the Report was issued six weeks before the joint committee passed on the House version, and that committee (which approved the bill eventually passed) issued a markedly different report. The House Conference Report stated:
[Section 1821(k)] preempts State law with respect to claims brought by the FDIC in any capacity [sic] against officers or directors of an insured depository institution. The preemption allows the FDIC to pursue claims for gross negligence or any conduct that demonstrates a greater disregard of a duty of care including intentional tortious conduct.
H.R.Conf.Rep. No. 222, 101st Cong., 1st Sess. 393 (1989), reprinted in 1989 U.S.Code *1132 Cong. & Admin.News 86, 432, 437. The interpretation of section 1821(k) contained in the House Conference Report is persuasive because its timing reflected the desires of Congress when enacting FIRREA, and because it reflected the interpretation of the joint conference responsible for reconciling the two versions of the bill. See Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 483, 83 L.Ed.2d 472 (1984) (holding that conference report constitutes the most authoritative source for discerning legislature's intent); Demby v. Schweiker, 671 F.2d 507, 510 (D.C.Cir.1981) ("Because the conference report represents the final statement of terms agreed to by both houses, next to the statute itself it is the most persuasive evidence of congressional intent."). Indeed, the Senate Report must be discounted as a declaration of congressional intent because it was issued well after the Senate voted on its initial version of the bill. See Miramon, 22 F.3d at 1362; see also Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 407, 107 S.Ct. 750, 761, 93 L.Ed.2d 757 (1987) (disregarding word inserted into record after passage of the McFadden Act, even though the comments were inserted by Representative McFadden); de la Cuesta, 458 U.S. at 167 & n. 19, 102 S.Ct. at 3029 & n. 19 (noting that post-enactment statements do not carry the same weight as do those of the contemporaneous legislative history).
The RTC's argument at best demonstrates that the legislative history to section 1821(k) sends conflicting signals. This history simply does not demonstrate, however, the kind of "clearly expressed legislative intention" needed to overcome the plain meaning of the statute. See Bonjorno, 494 U.S. at 833-34, 110 S.Ct. at 1574-75. Rather, section 1821(k) should be read to preempt both federal common law and state law as this is the "interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested." Commissioner v. Engle, 464 U.S. 206, 217, 104 S.Ct. 597, 604, 78 L.Ed.2d 420 (1984) (quotation omitted); Norfolk Redev. & Hous. Auth. v. Chesapeake & Potomac Tel. Co., 464 U.S. 30, 104 S.Ct. 304, 78 L.Ed.2d 29 (1983); see also Canfield, 967 F.2d at 451-52 (Brorby, J., dissenting).
CONCLUSION
For the reasons stated above, the defendants' objections to Magistrate Judge Eagan's Recommended Ruling are sustained and the defendants' motions to dismiss [## 75, 78, 85, 90, 96, 100, 101, 102] are each hereby GRANTED such that Counts One and Three of the RTC's complaint are ORDERED dismissed. The RTC shall file an amended complaint in accordance with this Ruling by September 6, 1994.
SO ORDERED.
NOTES
[1] In light of defendant William J. Selsberg's Notice of Bankruptcy, the action as to him was ordered stayed on January 20, 1994.
[2] Defendant William F. Malloy also was an officer of Charter Federal.
[3] See, e.g., Gaff v. Federal Deposit Ins. Corp., 919 F.2d 384, 391 (6th Cir.1990) (dicta), modified on other grounds, 933 F.2d 400 (6th Cir.1991); Resolution Trust Corp. v. O'Bear, Overholser, Smith & Huffer, 840 F.Supp. 1270 (N.D.Ind.1993); Federal Deposit Ins. Corp. v. Swager, 773 F.Supp. 1244 (D.Minn.1991).
[4] See, e.g., Resolution Trust Corp. v. Miramon, 22 F.3d 1357 (5th Cir.1994); Resolution Trust Corp. v. Gallagher, 10 F.3d 416 (7th Cir.1993); Federal Deposit Ins. Corp. v. Harrington, 844 F.Supp. 300 (N.D.Tex.1994); Federal Deposit Ins. Corp. v. Bates, 838 F.Supp. 1216 (N.D.Ohio 1993); Federal Deposit Ins. Corp. v. Mintz, 816 F.Supp. 1541 (S.D.Fla.1993); Federal Deposit Ins. Corp. v. Miller, 781 F.Supp. 1271 (N.D.Ill.1991); Federal Deposit Ins. Corp. v. Isham, 777 F.Supp. 828 (D.Colo.1991).
[5] See, e.g., Federal Deposit Ins. Corp. v. McSweeney, 976 F.2d 532 (9th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2440, 124 L.Ed.2d 658 (1993); Federal Deposit Ins. Corp. v. Canfield, 967 F.2d 443 (10th Cir.1992) (en banc), cert. dismissed, ___ U.S. ___, 113 S.Ct. 516, 121 L.Ed.2d 527 (1992); Resolution Trust Corp. v. Gibson, 829 F.Supp. 1103 (W.D.Mo.1993); Resolution Trust Corp. v. Hess, 820 F.Supp. 1359 (D.Utah 1993); Federal Deposit Ins. Corp. v. Black, 777 F.Supp. 919 (W.D.Okla.1991).
[6] Resolution Trust Corp. v. Chapman, 29 F.3d 1120 (7th Cir.1994); Resolution Trust Corp. v. Farmer, 823 F.Supp. 302 (E.D.Pa.1993); Resolution Trust Corp. v. Hess, 820 F.Supp. 1359 (D.Utah 1993).
[7] To the extent the RTC also can be said to be acting on behalf of the federal government, its claims likewise arise under federal law. See Kimbell Foods, 440 U.S. at 718, 99 S.Ct. at 1453. ("This Court has consistently held that federal law governs questions invoking the rights of the United States arising under nationwide federal programs."); Clearfield Trust Co. v. United States, 318 U.S. 363, 366, 63 S.Ct. 573, 574, 87 L.Ed. 838 (1943) ("When the United States dispenses its funds or pays its debts, it is exercising a constitutional function or power.... The authority [to do so] had its origin in the Constitution and the statutes of the United States and was in no way dependent on the laws [of any State].") (citation omitted); Westnau Land Corp. v. United States Small Bus. Admin., 1 F.3d 112, 117 (2d Cir.1993). Congress intended FIRREA to establish a national statutory program governing the savings and loan industry, and the receivership powers of the RTC are an integral part of this scheme. See Gaff, 919 F.2d at 391 (stating that the legislative history of FIRREA "explicitly states an intent to nationalize the law of directors' and officers' liability when banks are taken over by the FDIC.").
[8] The result would be the same if the Court applied the choice of law principles of Connecticut as the forum state. See Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Norlin Corp. v. Rooney, Pace Inc., 744 F.2d 255 (2d Cir.1984). Connecticut courts also apply the internal affairs doctrine to disputes among or between a corporation and its directors or officers, when the claims concern liability of directors or officers for injuries arising out of their stewardship. See Ellis v. Emhart Mfg. Co., 150 Conn. 501, 508, 191 A.2d 546 (1963); White v. Greene, 96 Conn. 265, 272, 114 A. 112 (1921); Lowe v. R.P.K. Pressed Metal Co., 91 Conn. 91, 95, 99 A. 1 (1916); see generally Conn.Gen.Stat. § 33-401.
[9] This conclusion does not conflict with the decisions of the Ninth Circuit in McSweeney, 976 F.2d at 538, and the Tenth Circuit in Canfield, 967 F.2d at 445, as neither court addressed the question of whether section 1821(k) preempts federal common law.
[10] Indeed, section 1821(k) should be interpreted in the context of the panoply of civil and criminal sanctions available to the federal government against the officers and directors of federally-insured financial institutions.
[11] It is noteworthy that the two Circuit Courts to have held that section 1821(k) does not preempt state law considered actions involving banks chartered under state law, see McSweeney, 976 F.2d at 533 (9th Circuit); Canfield, 967 F.2d at 444 (10th Circuit), while two of the Circuit Courts to determine that section 1821(k) preempted federal common law considered actions involving federally chartered banks. See Gallagher, 10 F.3d at 418 (7th Circuit); Gaff, 919 F.2d at 391; cf. Miramon, 22 F.3d at 1358 (5th Circuit) (holding that section 1821(k) preempted federal common law in action involving federally-insured, state-chartered bank). In Chapman the Seventh Circuit concluded that the internal affairs doctrine required the application of federal law to an action involving a federally-chartered bank, and it sought to avoid creating a conflict among the circuits by not reaching the question whether section 1821(k) preempts state law. See Chapman, 29 F.3d at 1122. As the logic of the section 1821(k)'s preemption of federal common law applies with equal force to the preemption of state law, the Court addresses the issue below.
[12] For example, Senator Terry Sanford of North Carolina explained that changes in the provision
are essential if we are to attract qualified officers and directors to serve in our financial institutions. The bill as [first] drafted would have preempted numerous State laws which provide limited indemnification for directors and officers. These State laws were enacted largely in response to problems faced by corporations in attracting good officers and directors. Problems also occurred in obtaining directors and officers insurance due to potential law suits against these directors and officers personally based on even simple negligence claims.
....
The amendment which the managers have accepted modifies the bill to preempt State law only in a very limited capacity. The amendment would permit the FDIC to bring an action ... if the director or officer acted with gross negligence or committed an intentional tort.
135 Cong.Rec. S4276-77 (daily ed. April 19, 1989); see generally Bank Director Liability Under FIRREA, 39 UCLA Law Rev. at 1749-50 (discussing quoted text). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261510/ | 109 Cal.Rptr.2d 728 (2002)
91 Cal.App.4th 14
The PEOPLE, Plaintiff and Respondent,
v.
Lawrence Adam REEVES, Defendant and Appellant.
No. A078462.
Court of Appeal, First District, Division Three.
July 30, 2001.
As Modified on Denial of Rehearing August 28, 2001.
Review Denied November 14, 2001.
*730 William M. Robinson, under appointment by the Court of Appeal, San Francisco, for Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General; Ronald A. Bass, Senior Assistant Attorney General; Stan M. Helfman, Supervising Deputy Attorney General; Enid A. Camps and Sharon G. Birenba, Deputy Attorneys General, for Respondent. *729
*731 PARRILLI, J.
This appeal raises three challenges to the admissibility of statistical calculations based on DNA evidence. We conclude none of them has merit and that the procedures at issue have gained general acceptance in the scientific community.
A jury convicted appellant of several burglaries and sexual offenses committed against multiple victims during a nine-month period, and he was sentenced to 77 years in prison. With respect to two of the sex crimes charged, the jury heard forensic DNA evidence identifying appellant as the perpetrator. He challenges the admission of this evidence on appeal, claiming it should have been excluded pursuant to People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (Kelly ). Specifically, appellant argues: (1) the formula used by the California Department of Justice (DOJ) to calculate the statistical significance of DNA matches is not generally accepted in the scientific community because it fails to consider laboratory error rates; (2) the DOJ's formula for calculating statistical significance of DNA matches determined by polymerase chain reaction (PCR) analysis is not generally accepted in the scientific community; and (3) the DOJ's "fixed-bin" technique for determining the statistical probability of a DNA match violates correct scientific procedures because the bins are too small.[1] Appellant claims the erroneous admission of DNA evidence deprived him of a fair trial and requires reversal.
Appellant also raises several "non-DNA" claims. He contends the evidence was insufficient to prove sexual battery in one charge and attempted robbery in another. He also claims the trial court erred in failing to instruct the jury sua sponte on lesser included offenses, with respect to the robbery convictions, and in calculating his sentence.
We conclude the trial court properly admitted the DNA evidence. However, the judgment must be modified to remedy minor instructional and sentencing errors.
BACKGROUND
I. The Crimes
A. Sexual Assaults
1. Linda H.
One night in November 1993, 47-yearold Linda H. was home alone. She was not feeling well and went to bed in her clothes. She awoke around 5:30 a.m. to find an intruder leaning over her in the dark. He was holding a crowbar in one hand and pulling her bedside phone off the hook. He said, "Don't make a sound, don't look at my face, I don't want to have to hurt you, ma'am." He told Linda to roll over and then pulled her arm up behind her back so she could not move. He asked where Linda kept her jewelry, and she told him it was in the bathroom.
The intruder did not get up but began touching Linda's buttocks and thighs over her clothes. When Linda repeated that her jewelry was in the bathroom, the man said, "come here" and pulled her face toward his unzipped crotch. "This is what I want," he said, and pushed Linda's head onto his erect penis. Linda said "oh no," *732 but the man shook the crowbar in a threatening way. He thrust his penis in and out of her mouth, still flexing and shaking the weapon. At one point, the man reached under Linda's clothes and touched her breast. When she pushed his hand away, the intruder turned her over, pulled down her pants and underwear. He touched his penis to her genitals and attempted to enter her. To prevent this, Linda grabbed the man's penis and masturbated him until he ejaculated into her hand.
Still holding the crowbar, the intruder forced Linda into the shower. He apologized, stating that God would punish him. He told Linda to wash her genital area thoroughly, with a lot of soap, and then told her to "stay there" while he walked toward the bedroom. After about 15 minutes, Linda ventured out of the shower and learned the intruder was gone. She later discovered her purse was missing from the house.
Linda described her attacker as Caucasian, between five feet seven and five feet nine inches tall, with a narrow waist and hips, strong hands and stubby fingers. Linda viewed two police lineups, in March 1994 and April 1996. At the first, held before appellant was a suspect, Linda felt "75 percent sure" one of the men was her attacker. At the second lineup, which included appellant, Linda noted that appellant and another suspect bore a strong physical resemblance to her attacker, but she could not positively identify either.
Police officers removed the stained bottom sheet from Linda's bed. Forensic investigators determined the stain was seminal fluid, and, upon microscopic examination, they found sperm. The semen came from a donor with Type 0 blood who was a secretor; the semen had a PGM (phosphoglucomutase) enzyme of type 1 plus, 1 minus. Appellant matched all these characteristics. Police also recovered two pubic hairs from the sheet. One appeared to be the victim's, and the other resembled appellant's pubic hair.
2. Carol B.
Carol B., a 45-year-old woman who lived alone, went to sleep at 11:00 p.m. on December 7, 1993. She woke to find an intruder standing by her bed. When she screamed, the intruder immediately covered her mouth and told her, "Don't look at me, don't scream. I won't hurt you if you don't scream." Carol saw the man was holding a knife. She looked away and noticed her clock said it was 5:32 a.m. The intruder began fumbling with Carol's miniblinds, eventually opening them and the bedroom window. He asked how old Carol was. She told him and then lied that she was very sick from cervical cancer, hoping that would scare him away. He replied, "Do you think you're the only person in this room who's sick?" Carol then heard clothes rustling, and when she turned she saw that the man's pants were unzipped and his penis exposed. He told her to put her hand on it and "move it up and down," which Carol reluctantly did. The intruder made Carol take off her shirt and forced her to orally copulate him. He ordered her not to spit anything out, and said "if you spit it out, it's going to be all over for you." When the man eventually ejaculated, Carol surreptitiously spit as much as she could into her hand and then wiped it onto her pillowcase. The man quickly dressed, closed the window and blinds, and ordered Carol into the shower. He told her to stay there while he looked around. When Carol emerged from the shower, she found the kitchen phone unplugged but was able to call police from a bedroom phone. She suffered a sore, bruised mouth from the attack, and she later discovered her purse had been taken.
*733 Carol only saw her attacker briefly. She described him as Caucasian, in his late twenties, around five feet eight or nine inches tall, weighing 140 to 150 pounds. He was physically fit but not large, and he had rough hands with stubby fingers. Carol attended both the 1994 and 1996 police lineups. She put question marks next to three of the suspects in the first lineup and one in the second lineup, but she could not positively identify anyone as her assailant.
The police discovered three latent fingerprints from Carol's china cabinet. One of these, a partial print, matched appellant's left index finger. Police investigators also examined Carol's stained pillowcase. Because they could not readily determine whether the stains contained sperm, investigators sent the pillowcase to the DOJ's DNA laboratory in Berkeley, California. This laboratory has the technical capacity to separate sperm cells from saliva and other cellular debris.
3. Janice B.
One night in February 1994, 56-yearold Janice B. went to sleep alone and was awakened by a man who was holding her shoulder and telling her to stay quiet. The man had a flashlight, and he spent some time searching the room for a gun or security alarm. When the intruder came back to Janice and unzipped his pants, Janice said "Oh dear God, please be with me now." The man immediately zipped up his pants and asked Janice if she believed in God. She said she did and asked if he did too. When the man said "yes," Janice asked him what he was doing there. He told her he had a lot of problems. Janice tried to talk with the man about his problems while they each smoked a cigarette. Janice told the man he seemed too smart to be ruining his life, and the man said she seemed "like a neat person." But after they smoked, the intruder's attitude changed. He began barking instructions and said he would hurt Janice if she did not do what he said. He told her to bring him her best pair of silky underwear. When she did so, the man unzipped his pants and masturbated himself with the panties. He told Janice to pull up her nightgown so he could look at her, and after a while he handed Janice the panties and said, "[y]ou know what to do." She then masturbated him with the underwear. After he ejaculated, the intruder pulled down the bedding and scrubbed Janice's bed with the panties. He then ordered Janice into the shower and told her to stay there while he looked through the house. At one point, he came back into the bathroom, reminded her that he knew who she was and where she lived, and threatened to come back if she told anyone about the incident. When she heard the intruder leave, Janice ran to the manager's apartment and called the police. Along with the underwear her attacker had used, Janice noticed that some of her jewelry was missing, as was a decorative turquoise knife her son had made for her. Eighty dollars had been taken from her purse.
Janice described her attacker as Caucasian, well-spoken, around 25 years old, and about five feet eight or nine inches. She also viewed both the 1994 and 1996 police lineups, but could make no identification at either.
The police obtained one fingerprint lift from Janice's apartment, but they could not make an identification based upon it. When investigators analyzed Janice's sheet, they found some pubic hairs, which they determined were consistent with appellant's. They recovered no semen from the sheet.
4. Debra E.
In June 1994, Debra E. lived with her roommate in a two-bedroom apartment. *734 She was jerked awake one night by a man who was lying on top of her back and grabbing her hair and shoulder. The man said "Don't scream and I won't hurt you," but Debra screamed as loud as she could. The intruder said, "Shut up or I'll shoot you" and put something to her neck, but Debra discovered it was just the man's finger. They struggled, and the man began to choke Debra. After she promised to be quiet and do what he wanted, the man slammed her face into the carpet and tied her wrists together with rope. Debra asked if he wanted to have sex with her, hoping he would do this instead of killing her, but the intruder said no, that was not what he wanted. He pushed her face into the carpet. When Debra struggled to get free, the intruder slammed his knee into her ribcage and struck her hard on the side of the head. Debra began screaming again, despite the intruder's threat to use a knife on her and the extremely hard blows he dealt to both sides of her face and head. The assault was finally interrupted by police sirens. (Debra's roommate, awakened by the screams, had called police from a pay phone outside, after discovering the phone in their apartment was dead.) The intruder ran out a sliding glass door. He was chased by police but evaded capture. Debra suffered multiple injuries from the assault, including trauma to her head, face, back and neck. Some things had been moved around in the apartment, and Debra's roommate later discovered that her great grandmother's engagement ring was missing from her jewelry box and a gold necklace she had left on the floor was gone.
Debra believed her attacker was Caucasian, about five feet seven to nine inches tall, and very strong. He had neck-length brown hair and rough hands that smelled like cigarettes. At the April 1996 lineup, Debra picked out appellant; however, she admitted she chose him based on having seen his photograph in the newspaper and had no independent recollection of his face.
The police recovered nylon cable, a plastic flex tie and a flashlight from Debra's bedroom. A latent fingerprint lifted from one of the flashlight's batteries matched appellant's right index finger. Officers on the scene also found an abandoned bicycle, a discarded maroon sweatshirt, apparently worn by the intruder, and a screwdriver that had been used to pry open the sliding glass door of the apartment. Etched onto the screwdriver was the name "Harro Clifton."
B. Burglaries
Ed Willis returned home from an overnight trip in October 1993 to find his home had been burglarized. Someone had pried open a sliding glass door and stolen, among other things, his collections of coins, knives and firearms.
On December 7, 1993, someone broke into Paul Clark's apartment and stole a guitar and various pieces of jewelry.
In January 1994, Nigel Rees found his townhouse had been burglarized when he was away overnight. The intruder pried open a sliding door and stole cameras, clothing and some jewelry.
On May 12, 1994, the owner of Handlogger's lumber business, Tim Mahoney, discovered his office had been broken into. The burglar took a rifle and a custom-built bicycle. Mahoney later identified the bicycle seized outside Debra E.'s apartment as his stolen property.
Kristine Bedford returned home from work one evening in June 1994 and found her house had been broken into through a sliding glass door. Missing were some jewelry, camera equipment, a case of silverware and a leather jacket.
*735 Dorothy Castle's townhouse was burglarized on June 25, 1994, while she was asleep. The burglar stole cash from her purse, a box of silverware, jewelry and some bonds and stock certificates.
Following up on the "Harro Clifton" screwdriver found at the Debra E. crime scene, police officers began investigating this individual. They learned Clifton owned a warehouse in connection with his work as an electrical contractor. He moved much of his personal property into this warehouse in 1993, when he separated from his wife. Clifton shared the warehouse space with three other men, who also ran businesses out of the warehouse. These men and their partners had keys to the building, as did Clifton's brother, sister and receptionist. Many people, including appellant, had access to the building.
Clifton had known appellant since they were children. In the fall of 1993, appellant asked Clifton if he could store some things in the warehouse. Appellant also slept at the warehouse sometimes, though Clifton discouraged it. Generally, appellant slept in an outdoor area, but he kept his things at the warehouse. In January 1994, Clifton moved to San Francisco and gave appellant a key to the warehouse.
When police first visited Clifton's warehouse, which was about a quarter mile from Debra E.'s apartment, they noticed several flex ties like the one found at the Debra E. crime scene. In a search of the warehouse, police discovered: a semiautomatic pistol; a manual for an Intertec 9 semiautomatic weapon, which was identified by Ed Willis; a chess set with velvet interior and magnetic pieces, later identified by Linda H. and her two daughters; jewelry and a decorated turquoise knife, identified by Janice H.; a silverware set, identified by Dorothy Castle; a watch and pin, identified by Nigel Rees; a Taylor guitar, identified by Paul Clark; inside the guitar case, three items of jewelry, identified by Kristine Bedford; and additional jewelry and camera equipment taken from Bedford's home.
II. The DNA Evidence
The DOJ laboratory tested semen recovered from the Linda H. and Carol B. crime scenes using the two basic methods of DNA analysis: restriction fragment length polymorphism (RFLP) and polymerase chain reaction (PCR). Appellant's DNA profile (determined from a blood sample) matched the DNA from semen at both crime scenes at every site tested.
In the Linda H. case, PCR testing of the types "DQ-alpha" and "DS180" showed a match for appellant, and caused the DOJ to exclude another man who was first considered a suspect. The DOJ also found a match between appellant's DNA and semen from the bed sheet at 10 different sites, or "loci," using RFLP analysis. Criminalist Gary Sims compared the results at six of the well known loci to DNA population databases and, using a statistical formula called the product rule, found that the probability such a match could occur at random was very small.[2] He determined the DNA profile would occur in only 1 in 54 billion Caucasians, 1 in 170 billion African-Americans, and 1 in 180 billion Hispanics. Since there are only six *736 billion people on earth, this six-loci profile is extremely rare.
Semen extracted from Carol B.'s pillowcase was also examined. A criminalist working under Sims's supervision found a four-loci match between appellant's DNA and DNA from the evidence sample using RFLP analysis. The probability of this result occurring at random was 1 in 7.7 million for Caucasians, 1 in 26 million for African-Americans, and 1 in 17 million for Hispanics. PCR testing of the DQ-alpha and polymarker types also showed a match between the DNA in appellant's blood and in semen from the crime scene. The probability of this result, calculated by the product rule, was 1 in 500,000 Caucasians, 1 in 11 million African-Americans, and 1 in 260,000 Hispanics.
Appellant made a pretrial motion to exclude all DNA evidence on the ground that it did not satisfy the criteria for admissibility under People v. Kelly, supra, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240.
A. Overview Of DNA Analysis
Previous opinions of this court (People v. Barney (1992) 8 Cal.App.4th 798, 10 Cal. Rptr.2d 731 (Barney)) and the Supreme Court (People v. Venegas (1998) 18 Cal.4th 47, 74 Cal.Rptr.2d 262, 954 P.2d 525 (Venegas) have discussed in some detail the science of forensic DNA analysis. We summarize the important principles again here, because the bulk of appellant's claims concern the scientific validity of the DNA evidence linking him with the Linda H. and Carol B. sexual assaults.
DNA is the genetic material found in the nucleus of virtually all human cells except red blood cells. It is organized into 23 pairs of chromosomes, One chromosome in each pair being inherited from the mother and one from the father. (Nat. Research Council, The Evaluation of Forensic DNA Evidence (1996) pp. 60-61 (hereafter 1996 NRC Rep.).) "A chromosome is a long DNA molecule in the shape of a spiral staircase. [Citation.] `It consists of two parallel spiral sides (i.e., a double helix) composed of repeated sequences of phosphate and sugar. The two sides are connected by a series of rungs, which constitute the steps in the staircase. Each rung consists of a pair of chemical components called bases. There are four types of basesadenine (A), cytosine (C), guanine (G), and thymine (T). A will pair only with T, and C will pair only with G.' [Citation.] There are over 3 billion base pairs in the 46 chromosomes of a single human cell." (Venegas, supra, 18 Cal.4th at pp. 58-59, 74 Cal.Rptr.2d 262, 954 P.2d 525.)
"In most portions of DNA, the sequence of base pairs is the same for everyone. Those portions are responsible for shared traits such as arms and legs. In certain regions, however, the sequence of base pairs varies from person to person, resulting in individual traits. A regionor locusthat is variable is said to be polymorphic. In some polymorphic loci, at fragments called alleles, short sequences of base pairs repeat for varying numbers of times. These are called variable number of tandem repeat (VNTR) sequences." (Barney, supra, 8 Cal.App.4th at p. 806, 10 Cal.Rptr.2d 731.) Forensic scientists have developed two procedures to identify individuals through variations in the base-pair sequences at polymorphic DNA loci: RFLP and PCR. (Venegas, supra, 18 Cal.4th at p. 58, fn. 6, 74 Cal.Rptr.2d 262, 954 P.2d 525.)
1. RFLP Processing And Matching Procedures
RFLP analysis focuses on the highly variable VNTR loci. The variability of these regions "is what makes DNA analysis possible. In effect, the lengths of sets of multiple (usually eight) polymorphic *737 fragments (or VNTR alleles) obtained from a suspect's DNA and from crime scene samples are compared to see if any sets match, and a match is accorded statistical significance." (Barney, supra, 8 Cal. App.4th at p. 806, 10 Cal.Rptr.2d 731.)
DNA from a sample and from a suspect must be processed to allow comparison. First, DNA is extracted from bodily material. (Barney, supra, 8 Cal.App.4th at p. 806, 10 Cal.Rptr.2d 731.) Second, the "extracted DNA is `cut' into thousands of fragments at specific points by application of restriction enzymes. The restriction enzymes act as `chemical scissors' in that they sever the DNA at targeted base-pair sites." (Ibid.) Third, in a process called electrophoresis, the DNA fragments are separated according to their base-pair size. "The various sample fragments being tested are placed in separate lanes on one end of a gel slab and an electrical current is applied, causing the fragments to move across the gel. Shorter fragments move farther than longer fragments. Thus, at the completion of electrophoresis, the sample fragments are arrayed across the gel according to size. [¶] In addition to the sample fragments, other fragments called size markers, which have known base-pair lengths, are placed in separate lanes on the gel in order to facilitate measurement of the sample fragments." (Id at pp. 806-807, 10 Cal.Rptr.2d 731.) Fourth, through a process called "Southern transfer," the DNA fragments are denatured and wicked from the gel onto a nylon membrane. (Id at p. 807, 10 Cal.Rptr.2d 731.) The fifth and sixth steps allow the DNA fragments to be visualized on X-ray film. Through hybridization, radioactive single-strand DNA probes are applied to the nylon membrane, where they seek out and bind themselves to denatured DNA fragments that have complementary base sequences.[3] (Venegas, supra, 18 Cal.4th at p. 61, 74 Cal.Rptr.2d 262, 954 P.2d 525.) Then, when the membrane is washed and exposed to X-ray film, a pattern of bands appears depicting DNA fragments at each locus probed. (Id at pp. 61-62, 74 Cal. Rptr.2d 262, 954 P.2d 525.) "The location of a band on the X-ray film indicates the distance a fragment traveled as a result of electrophoresis, and hence the length of the fragment. The size-marker fragments also appear on the films, enabling measurement of the base-pair lengths of the sample fragments. [¶] The end result of the processing substeps is a picture of a person's DNA pattern (which may be produced by overlaying the four X-ray films)." (Barney, at p. 808, 10 Cal.Rptr.2d 731.) The X-ray film is called an autoradiograph, or autorad. (Id at p. 807, 10 Cal.Rptr.2d 731.)
Next, scientists compare the autorads to see if the suspect's DNA pattern matches that produced by DNA from the evidence sample. "First, the patterns are visually evaluated (i.e., `eyeballed') to determine whether there is a likely match. Most exclusions will be obvious, since the patterns will be noticeably different. If there is not an obvious exclusion, the bands in the patterns are subjected to computerassisted analysis to determine the length of the represented DNA fragments as measured in base-pair units. The measurements are taken by comparing the bands for the sample fragments with the bands for the size-marker fragments of known base-pair lengths." (Barney, supra, *738 8 Cal.App.4th at p. 808, 10 Cal. Rptr.2d 731.)
"Because of inherent limitations in the DNA processing system, it is not possible to obtain exact base-pair measurements of the sample DNA fragments. For that reason, forensic laboratories have developed DNA match criteria based on the variations they have experienced in repeated measurements of DNA from the same source. Those criteria determine the `match window'or range of sizesconstructed around each band for purposes of declaring a `match.' For example, under the FBI's match criterion of plus or minus 2.5 percent, the window around a band that measures 1,000 base pairs is from 975 to 1,025 base pairs. If the window of either band, or a single band, on one sample fails to overlap the window of the corresponding band on another sample, there is an exclusion of any match between the samples. If the windows of both bands, or of the single bands, of each sample overlap, there is a match at the locus disclosed by that probe." (Venegas, supra, 18 Cal.4th at pp. 62-63, 74 Cal. Rptr.2d 262, 954 P.2d 525.) The window surrounding each individual band is called an "uncertainty window," and the window that results from the combination of two bands that overlap is called a "match window." (1996 NRC Rep., supra, at pp. 19-20.) Although some conditions adverse to reliability may make match results inconclusive at a given locus, such a determination "does not invalidate matches at the other loci." (Venegas, at pp. 62-63, 74 Cal.Rptr.2d 262, 954 P.2d 525.)[4]
If the bands at any locus do not match, the suspect is excluded as a possible donor of the sample DNA. However, "if all of the suspect's fragment lengths are the same as the crime scene fragment lengths within the margin of errori.e., if the band patterns produced by the processing step are identicala match is declared." (Barney, supra, 8 Cal.App.4th at p. 809, 10 Cal. Rptr.2d 731.)
2. PCR Processing And Matching Procedures
PCR is a molecular biology technique that copies or amplifies small pieces of DNA by a process similar to DNA's own self-replicating properties. (People v. Morganti (1996) 43 Cal.App.4th 643, 662, 50 Cal.Rptr.2d 837 (Morganti); 1996 NRC Rep., supra, at p. 69.) It has been likened to a "genetic photocopy machine" (U.S. v. Lowe (1996) 954 F.Supp. 401, 409), and is often employed when the DNA sample available is too small or degraded to produce good results using RFLP. (Morganti, at p. 662, 50 Cal.Rptr.2d 837.)
PCR forensic analysis involves three steps. First, DNA is extracted from cells in the sample. Second, select regions of the DNA are amplified. Scientists have identified these regions, also referred to as genes or genetic markers, as areas that exhibit great genetic variation among the population. One widely used marker is the DQ-alpha gene. (1996 NRC Rep., supra, at p. 23.) On average, only about 7 percent of the population shares the same DQ-alpha type. (Ibid.) Like DQ-alpha, the D1S80 locus is used in PCR testing because it contains several alleles and exhibits great variation.[5] (Id. at p. 72.) Poly-marker *739 analysis, which amplifies several loci simultaneously, has also been validated for use in PCR testing. (Ibid.) After amplification, in the third and final step of PCR analysis the amplified gene is "typed," through the use of DNA probes, to identify the specific alleles it contains. (Morganti supra, 43 Cal.App.4th at p. 662, 50 Cal.Rptr.2d 837.) If the DNA profile thus constructed differs in any way between the suspect and the sample, the suspect is excluded. But if the profiles match, the analyst must next determine how common the profile is in the population.
3. Determining Statistical Significance Of A Match
Procedures for determining the statistical significance of a match vary depending on whether the match derives from RFLP or PCR testing. Most PCR-based procedures allow alleles to be identified, and compared, as discrete entities; therefore, PCR usually does not entail the same measurement uncertainties as are encountered in RFLP analysis of VNTR fragments. (1996 NRC Rep., supra, at p. 70.) Essentially, this means that an additional step, called "binning," is required in an RFLP statistical analysis.
a. RFLP Binning Procedures
Once a match of a given base-pair size has been found at a certain locus, the next question is how frequently that size occurs at that locus in the general population. In other words, how commonly are DNA bands of a certain size found in this region? "This is accomplished by assigning each band to a category comprising a definite range of base-pair lengthscalled a binand then determining how often bands within that bin appear in a data base composed of persons of a given race."
(Barney, supra, 8 Cal.App.4th at p. 809, 10 Cal.Rptr.2d 731.)
There are two types of bins: floating and fixed. "A floating bin, constructed for each forensic comparison, is a range of sizes at least as large as the match window, centered on the measured size of the evidentiary band in question. The evidentiary band's frequency, i.e., the probability of its appearing in the DNA profile of a randomly selected member of the population underlying the database, is calculated from the ratio of the number of bands in the bin to the total number of bands in the database for that locus." (Venegas, supra, 18 Cal.4th at pp. 64-65, 74 Cal.Rptr.2d 262, 954 P.2d 525.)
"Fixed bins, on the other hand, compartmentalize the entire spectrum of VNTR base-pair sizes likely to appear as bands on an autorad. The spacing of the fixedbin boundaries is somewhat uneven because, like the bands in the autorad's sizing-ladder lanes, they are derived from viral DNA that has been exactly measured. A separate fixed-bin table is compiled for each locus in each database. Each database band is entered within the bin that encompasses its base-pair size. To protect a suspect against unduly small frequencies, any bin with four or fewer bands is combined with its neighbor until each bin contains a minimum of five bands. The fixedbin table shows not only each bin's range of sizes and number of bands, but also each bin's frequency, which is calculated from the ratio of the number of bands in the bin to the total number of bands in the table. (See 1996 NRC Rep., supra, [at] pp. 97, 143; Budowle et al., Fixed-Bin Analysis for Statistical Evaluation of Continuous Distributions of Allelic Data from VNTR Loci far Use in Forensic Comparisons (1991) 48 Am. J. Hum. Genetics *740 841, 846 [citing an example in which a table of 31 bins, ranging from 0 to over 12,000 base pairs, was collapsed into a table of 23 bins].) [¶] In fixed-bin analysis, the frequency of an evidentiary band is determined by assigning it the frequency of the fixed bin into which its base-pair size falls." (Venegas, supra, 18 Cal.4th at p. 65, 74 Cal.Rptr.2d 262, 954 P.2d 525.)
In view of the measurement uncertainties of RFLP, analysts include an uncertainty window around DNA bands produced by the evidence sample and the suspect's sample. Whereas the FBI uses an uncertainty window of 2.5 percent around each band (1996 NRC Rep., supra, at p. 19), the DOJ uses a window of plus or minus 1.8 percent. As discussed, a "match" is declared when the uncertainty windows of the evidence and suspect bands overlap. The "match window" that is then compared to population frequency tables may be defined in different ways. Based on the FBI's uncertainty window of 2.5 percent, the NRC defines the match window as the evidence band's measurement with 5 percent of its value added and subtractedfor a total match window of 10 percent around the evidence band. (Id. at p. 20.) By contrast, the FBI defines the match window to be the window formed by the union of the 5 percent-wide evidence window and the 5 percent-wide suspect window. (Id. at p. 144; see also Venegas, supra, 18 Cal.4th at p. 64, fn. 16, 74 Cal. Rptr.2d 262, 954 P.2d 525.) Thus, the FBI's match windowi.e., the range of values it compares to a population frequency databaseis no larger than 10 percent wide and may be smaller.[6]
Where the match window overlaps multiple fixed bins, the DOJ, like the FBI, assigns the match to the fixed bin with the highest probability. The 1996 NRC Report recommends this procedure, although a 1992 report (NRC, DNA Technology in Forensic Science (1992) (hereafter 1992 NRC Rep.)) recommended that the frequencies of all overlapped bins be added together. (1996 NRC Rep., supra, at p. 144; Venegas, supra, 18 Cal.4th at p. 65, fn. 18, 74 Cal.Rptr.2d 262, 954 P.2d 525.)
b. Mathematical Calculations: The Product Rule
The final step in both RFLP and PCR analysis requires the analyst to calculate the statistical probability that the DNA profile of a person, selected at random from the relevant population, would contain the same pattern of alleles represented in the evidence sample. (Venegas, supra, 18 Cal.4th at p. 65, 74 Cal.Rptr.2d 262, 954 P.2d 525.) In RFLP, bands at each locus have been assigned to fixed bins, each of which is known to contain alleles that occur at certain frequencies in population databases specific to Caucasians, African-Americans and Hispanics. Databases have also been developed to determine population frequencies of the various alleles that may be detected using PCR. (1996 NCR Rep., supra, at pp. 117-119.)
Once population frequencies have been determined for each locus, the analyst must calculate the probability that a person at random would have the same combination of matches at all loci. "The most straightforward means of making this calculation is through application of the `product rule.'" (Venegas, supra, 18 Cal.4th at p. 65, 74 Cal.Rptr.2d 262, 954 P.2d 525.) "The essence of the product rule is the *741 multiplication of individual band probabilities to arrive at an overall probability statistic expressed as a simple fraction, such as 1 in 100,000." (Id. at p. 66, 74 Cal. Rptr.2d 262, 954 P.2d 525.) Thus, the product rule is simply the multiplication of the frequencies found at each locus studied. The result is a probability statistic that reflects the overall frequency of the complete DNA profile. It is often quite small. (Ibid.)
B. The Kelly Hearing
The trial court in this case held a five-day evidentiary hearing pursuant to Evidence Code section 402 and People v. Kelly, supra, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240, to determine the admissibility of DNA evidence against appellant. As a preliminary matter, the court found that the first stages of DNA analysis, i.e, "the science of typing and matching genetic factors," had gained general acceptance in the scientific community and were admissible under Kelly. The court therefore confined the issues at the hearing to: (1) the general acceptance of statistical analyses used to determine the significance of matching DNA profiles; and (2) the propriety of testing methods employed in this case.
1. Prosecution Expert Testimony
a. Julian Adams
Dr. Julian Adams, a population geneticist at the University of Michigan, addressed the DOJ's RFLP statistical calculations and the RFLP measuring and matching process in general. Adams testified that the NRC includes some of the most respected scientists in the country and, along with the National Academy of Sciences, is responsible for advising the government on scientific issues. He was familiar with the NRC's 1992 and 1996 Reports on DNA evidence, and he opined that the procedures outlined in the 1996 NRC Report for the statistical evaluation of RFLP matches are generally accepted within the scientific community.
In Adams' opinion, it is scientifically appropriate to use the product rule to determine the statistical significance of an RFLP match, even though the rule was criticized in the past for failing to account adequately for the possibility of substructuring within populations.[7] Some scientists have argued the FBI's three population databases are too homogenous and can produce misleading frequency data for such subgroups. (See 1996 NCR Rep., supra, at pp. 28, 99-104.) To address this concern, authors of the 1992 NRC Report developed mathematical modifications of the product rule called the "ceiling principle" and "interim ceiling principle," which essentially placed lower limits on the frequency values that could be reported. (Id. at p. 35.) However, in 1996 the NRC concluded that sufficient data had accumulated to show that neither ceiling principle is necessary, and the 1996 NCR Report therefore endorsed use of the unmodified product rule. (Id at pp. 35, 38; see also Soto, supra, 21 Cal.4th 512, 540, 88 Cal. Rptr.2d 34, 981 P.2d 958.)
Adams was "very impressed" with the DOJ laboratory's procedures and attention to detail, and he thought there was not a better DNA testing lab in the country. In *742 this case, the DOJ used scientific procedures that were correct and even more conservative than those recommended by the NRC. The defense attempted to crossexamine Adams about the rate of "falsepositive" errors in DNA laboratories across the country; however, the trial court sustained relevance objections to most of this questioning. Adams agreed with the 1996 NRC Report's conclusion that it is not appropriate to factor an "average error rate" into DNA profile frequency calculations, because accurate lab error rates are too difficult to determine and laboratories may vary widely in their proficiencies. Moreover, all laboratories now undergo extensive proficiency testing, and procedures to protect against error have greatly improved over past years. The proper way to address any continuing concern over laboratory errors, Adams opined, is to split samples and allow testing by different laboratories.
On cross-examination, the defense questioned whether the DOJ's fixed-binning procedures could lead to statistical errors, because some of the fixed bins were smaller than the potential match windows. The defense argued the use of such undersized bins would lead to improperly low estimates of population frequencies. Adams was not familiar with the article that formed the basis of this argument (Fung, 10% or 5% Match Window in DNA Profiling (1996) 78 Forensic Science Internat. Ill (hereafter Fung)), but he thought any problem with small bins would be resolved by the FBI (and DOJ) procedure of combining fixed bins that have very rare frequencies.
b. Charlotte Word
Dr. Charlotte Word, a molecular biologist at the private laboratory Cellmark Diagnostics in Maryland, testified about her review of the DOJ laboratory's testing procedures, primarily in regard to PCR. Word discussed how PCR testing is done in general and the particular results of PCR analysis in the Carol B. case, which found matching alleles at seven separate loci. She explained that the DOJ calculated the significance of this match by looking up the population frequencies of each of the seven alleles and then multiplying them together pursuant to the product rule.[8]
Word confirmed that the product rule is generally used throughout the forensic community to assess the statistical significance of PCR-based tests, and she cited the NRC's conclusion that the statistical preconditions for use of the product rule, which have been proven for RFLP, are also true for PCR. (1996 NRC Rep., supra, at pp. 35, 119.) These preconditions are "Hardy-Weinberg equilibrium" and "linkage equilibrium." Hardy-Weinberg equilibrium means that, at a particular genetic locus, alleles are inherited independently of each other, such that the presence of one allele is not correlated with any other allele at that locus. (Venegas, supra, 18 Cal.4th at pp. 66-67;, 74 Cal.Rptr.2d 262, 954 P.2d 525 1996 NRC Rep., supra, at pp. 90-92.) Linkage equilibrium means that alleles at different genetic loci are independent, such that an allele at one locus is not correlated with the presence of a certain allele at another locus. (Venegas, at p. 67, 74 Cal.Rptr.2d 262, 954 P.2d 525; 1996 NRC Rep., supra, at p. 106.) According to Word, studies have shown that the regions examined in the DOJ's PCR testing satisfy Hardy-Weinberg and linkage equilibrium. She knew of no published article *743 disagreeing with application of the product rule to these PCR loci, nor of any controversy in the scientific community about use of the product rule in PCR analysis in general.
Word reviewed the RFLP and PCR testing done in this case and confirmed that the DOJ performed both in accordance with generally accepted and reliable scientific protocols. The trial court sustained relevance objections when the defense attempted to cross-examine Word about the history of laboratory errors at her facility, Cellmark. Word was not aware of any laboratory errors ever occurring in forensic DNA analysis at the DOJ lab. She observed that the laboratory is accredited by the American Society of Crime Laboratories Directors and therefore has submitted its procedures to intense scrutiny through, for example, proficiency testing and on-site inspections.
c. Gary Sims
Gary Sims, a supervising criminalist at the DOJ laboratory, testified in general about the lab's accreditation and quality assurance protocols and also addressed the specific testing done in the Linda H. and Carol B. cases. Sims explained that most of the DOJ's testing protocols are based on procedures developed by the FBI. In RFLP analysis, the DOJ will declare a match only when the evidence and suspect bands fall within "a plus or minus 1.8 percent match window." The lab then uses the FBI's fixed bin methodology to determine population frequencies and applies the unmodified product rule to complete the statistical analysis. Sims testified that, no matter which formula was applied to determine statistical significance, an RFLP match seen across multiple loci is exceedingly rare. The DOJ also uses the unmodified product rule in PCR analysis. Sims knew of no published article criticizing the use of the product rule to calculate PCR-based statistics.
Sims stated that DNA analysts at the DOJ laboratory undergo proficiency testing twice a year. He also confirmed that evidence samples from each of the cases had been split, so that they could be retested by the defense. Once again, the trial court sustained relevance objections to defense questions concerning previous laboratory errors committed at the DOJ laboratory or by Sims or other analysts who worked with him. The court reasoned that the only relevant errors were errors committed in this case.
2. Defense Expert Testimony
The defense presented only one witness at the Kelly hearing: Dr. Laurence Mueller, a professor of ecology and evolutionary biology at the University of California, Irvine. Mueller testified to his opinion that a controversy exists in the scientific community concerning the propriety of using the unmodified product rule in RFLP analysis. Our Supreme Court has since disagreed in Soto, supra, 21 Cal.4th 512, 88 Cal.Rptr.2d 34, 981 P.2d 958,[9] and appellant has withdrawn this claim on appeal. However, we summarize Mueller's attack on the product rule insofar as it remains relevant to a PCR analysis.
First, Mueller argued that the product rule is statistically invalid due to the existence of population subgroups. Although a 1992 analysis of the FBI's DNA database concluded that the database satisfied Hardy-Weinberg and linkage equilibrium principles (Weir, Independence of VNTR Alleles Defined as Fixed Bins (1992) 130 *744 Genetics 873; Weir, Independence of VNTR Alleles Defined as Floating Bins (1992) 51 Am. J. Human Genetics 992), Mueller asserted that a reanalysis of the data from Weir's study found compelling evidence of two-locus associations. (Slimowitz & Cohen, Violations of the Ceiling Principle: Exact Conditions and Statistical Evidence (1993) 53 Am. J. Human Genetics 314.) Such a finding indicates a departure from linkage equilibrium. According to Mueller, another study of the FBI's database found numerous departures from Hardy-Weinberg equilibrium at certain regions of RFLP analysis. (Geisser & Johnson, Testing Independence of Fragment Lengths within VNTR Loci (1993) 53 Am. J. Human Genetics 1103.) Finally, Mueller cited a letter to the journal Nature that he coauthored in response to a 1994 article that proclaimed the controversy over DNA evidence to be over. (Lander & Budowle, DNA Fingerprinting Dispute Laid to Rest (Oct. 27, 1994) 371 Nature 735 (hereafter Lander & Budowle).) The letter, which was signed by 27 university scientists (including Mueller), asserted that the effect of population subgroups on frequency calculations remained a continuing cause for concern. However, this letter was never published,[10] and Mueller could only confirm that two of the signers still held the same views.
With regard to use of the product rule in PCR analysis, Mueller claimed some published results were "beginning to be seen, at least in [his] mind" that contradicted the assumptions of allele independence. The two articles Mueller relied on for this opinion reached a contrary conclusion, however, finding that all of the PCR loci used in the present case satisfied Hardy-Weinberg and linkage equilibrium expectations. (Budowle, et al, Validation and Population Studies of the Loci LDLR, GYPA, HBGG, D7S8 and Gc (PM Loci), and HLA-DQ Using a Multiplex Amplification and Typing Procedure (1995) 40 J. Forensic Sciences 45 (hereafter Budowle, Lindsey); Hochmeister, et al., Swiss Population Data on the Loci HLA-DQ, LDLR, GYPA, HBGG, D7S8, Gc and D1S80 (1994) 67 Forensic Science Internat. 175.) Nevertheless, Mueller claimed he found departures from independence at two loci when he examined the data underlying these studies. Mueller also criticized the PCR databases as being too small to permit testing of the Hardy-Weinberg and linkage equilibrium assumptions with sufficient statistical power. He named Donald Barry, a statistician at Duke University, as someone who agreed with this criticism, yet the defense offered no further evidence about Barry or any published scientific work supporting his point of view.
In short, Mueller disagreed with the 1996 NRC Report concerning use of the unmodified product rule. Instead, he advocated either the ceiling principle (as proposed in the 1992 NRC Report) or a formula called the counting method.[11] Mueller also contended that any statistical calculation should be modified by the testing laboratory's rate of errors or "false positives." Thus, if testing showed a DNA profile match with an expected frequency of 1 in millions, but the lab had a *745 false positive "error rate" of 1 in 1,000, Mueller would report only the larger, laboratory error statistic. Again, Mueller acknowledged that the 1996 NRC committee rejected this idea. He was not aware of any errors committed by the DOJ in connection with the DNA testing in this case.
Relying on the 1994 Fung article concerning the size of the FBI's fixed bins, Mueller observed the DOJ's fixed bins may also be too small to accommodate a match window that can be up to 7.2 percent wide (i.e., the size of the evidence band, plus or minus 3.6 percent). He contended the only solution to this sizing problem was to add the frequencies of all bins overlapped by a match windowa procedure the 1992 NRC report suggested but the 1996 report abandoned. (1996 NRC Rep., supra, at p. 20.) Mueller acknowledged that the DOJ had followed all statistical computation procedures outlined in the 1996 NRC Report.
On March 3, 1998, the trial court denied appellant's motion to exclude DNA evidence. Relying largely on the 1996 NRC Report, the court found the unmodified product rule had gained general acceptance in the scientific community, both for RFLP and PCR analysis. The court rejected the defense contention that the probability calculations must be modified by a laboratory error rate, reasoning "that issue is really not an issue related to the science but related to the scientist. It seems that if a lab error should occur, then none of the probabilities have any scientific basis...." The court further observed that it found Dr. Mueller's analysis to be biased and not entirely credible. Finally, noting the defense had raised issues about the DOJ's laboratory procedures, the court stated: "no evidence was produced to show that there was any departure from the generally accepted procedures in the scientific community...."
DISCUSSION
I. Admissibility Of The DNA Evidence
In Kelly, supra, 17 Cal.3d 24, 130 Cal. Rptr. 144, 549 P.2d 1240, the Supreme Court established a three-part test for the admissibility of evidence derived from a new scientific technique, such as DNA profiling.[12] First, "the reliability of the method must be established, usually by expert testimony." (Id. at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240, italics omitted.) "Reliability" means the technique is "`sufficiently established to have gained general acceptance in the particular field in which it belongs.'" (Ibid., italics omitted, quoting Frye v. United States (D.C.Cir.1923) 293 F. 1013, 1014.) Second, "the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject." (Kelly, at p. 30, 130 Cal. Rptr. 144, 549 P.2d 1240, italics omitted.) And, third, "the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case." (Ibid.; see also Venegas, supra, 18 Cal.4th at p. 78, 74 Cal.Rptr.2d 262, 954 P.2d 525.)
A. General Acceptance Of Unmodified Product Rule
Appellant raises two arguments on appeal that he characterizes as "prong-one" Kelly challenges. He contends the unmodified product rule lacks general acceptance in the scientific community for PCR analysis due to problems caused by population subgroups and the relatively small size of PCR databases. He also argues that the product rule, as applied to both RFLP and PCR testing, has not gained *746 general acceptance because a controversy remains as to whether the rule should be modified to account for laboratory error rates.
"`General acceptance' under Kelly means a consensus drawn from a typical cross-section of the relevant, qualified scientific community." (People v. Leahy (1994) 8 Cal.4th 587, 612, 34 Cal.Rptr.2d 663, 882 P.2d 321 (Leahy).) "The Kelly test does not demand `absolute unanimity of views in the scientific community.... Rather, the test is met if use of the technique is supported by a clear majority of the members of the community.'" (Venegas, supra, 18 Cal.4th at p. 85, 74 Cal.Rptr.2d 262, 954 P.2d 525, quoting People v. Guerra (1984) 37 Cal.3d 385, 418, 208 Cal.Rptr. 162, 690 P.2d 635.) It is settled that the product rule, as a relatively new statistical methodology, is subject to "Kelly screening" to assure both its general acceptance and its correct application. (Venegas, at p. 84, 74 Cal.Rptr.2d 262, 954 P.2d 525; Soto, supra, 21 Cal.4th at pp. 518-519, 88 Cal.Rptr.2d 34, 981 P.2d 958.)
On appeal, "`general acceptance'" is considered "a mixed question of law and fact subject to limited de novo review." (People v. Reilly (1987) 196 Cal.App.3d 1127, 1134, 242 Cal.Rptr. 496.) Thus, "we review the trial court's determination with deference to any and all supportable findings of `historical' fact or credibility, and then decide as a matter of law, based on those assumptions, whether there has been general acceptance." (Id. at p. 1135, 242 Cal.Rptr. 496.) Ordinarily, an appellate court will confine its review under Kelly to evidence contained in the trial record, but the court may also consult decisions from other jurisdictions on the issue of whether a technique has met with consensus among scientists. (Id. at pp. 1134-1135, 242 Cal. Rptr. 496; People v. Brown (1985) 40 Cal.3d 512, 533-535, 230 Cal.Rptr. 834, 726 P.2d 516, reversed on another ground in California v. Brown (1987) 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934.)
1. Use Of Product Rule In PCR Analysis
In Soto, supra, 21 Cal.4th 512, 88 Cal. Rptr.2d 34, 981 P.2d 958, the Supreme Court soundly rejected one of appellant's original claims on appeal, i.e., that use of the unmodified product rule was not validated by general consensus within the scientific community. After a detailed summary of expert testimony presented at two Kelly hearings and at trial, Soto discussed the decision in People v. Axell (1991) 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411, which confirmed general scientific acceptance of the product rule, and this court's 1992 decision in Barney, supra, 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731, which concluded subsequent publications had undermined the rule's acceptance. (Soto, at pp. 526-537, 88 Cal.Rptr.2d 34, 981 P.2d 958.) The court then reviewed significant developments after Barney, including: (1) a 1993 FBI publication of a worldwide study of VNTR frequency data, which concluded the unmodified product rule was reliable and free from error due to population substructuring (IA FBI, VNTR Population Data: A Worldwide Study (1993)); (2) a 1994 article in which Dr. Eric Lander, formerly a leading opponent of the product rule, concluded the rule offered "a reasonable best estimate" of random match probabilities (Lander & Budowle, supra, at pp. 737-738); (3) publication of the 1996 NRC Report, which reexamined the statistical issues and explicitly approved use of the product rule (1996 NRC Rep., supra, at pp. 2-4, 122); and (4) a collection of articles, authored largely by defense expert witnesses, which criticized the 1996 NRC Report but expressed no disagreement *747 with the product rule (e.g., Lempert, After the DNA Wars: Skirmishing with NRC II (Summer 1997) 37 Jurimetrics J. 439). (Soto, at pp. 537-539, 88 Cal.Rptr.2d 34, 981 P.2d 958.)
The Supreme Court then observed that a majority of other states "have concluded that the controversy over population substructuring and use of the unmodified product rule has been sufficiently resolved," and "extensive literature" had developed in peer-reviewed scientific journals to show that population substructuring does not significantly impact frequency estimates using the product rule. (Soto, supra, 21 Cal.4th at pp. 540-541, 88 Cal. Rptr.2d 34, 981 P.2d 958.) The court therefore concluded: "It is clear from the evidence in the record, the clear weight of judicial authority, and the published scientific commentary, that the unmodified product rule, as used in the DNA forensic analysis in this case, has gained general acceptance in the relevant scientific community and therefore meets the Kelly standard for admissibility." (Id. at p. 541, 88 Cal.Rptr.2d 34, 981 P.2d 958.)
Respondent reads this decision broadly as an endorsement of all applications of the product rule; however, appellant correctly points out that Soto concerned only RFLP analysis, not PCR. No challenge was ever raised or considered in Soto to use of the product rule with PCR databases. Moreover, the court discussed scientific articles that analyzed the independence of VNTR alleles, and it cited no scientific conclusions specific to PCR markers. (See Soto, supra, 21 Cal.4th at pp. 538-539, 88 Cal.Rptr.2d 34, 981 P.2d 958.) Thus, while Soto's discussion of the population substructure issue is informative, it does not settle the question with respect to PCR analysis. (See San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 943, 55 Cal.Rptr.2d 724, 920 P.2d 669 ["Cases are not authority ... for issues not raised and resolved."].)
Nor do we consider the appellate court decisions in Morganti, supra, 43 Cal. App.4th 643, 50 Cal.Rptr.2d 837, and People v. Wright (1998) 62 Cal.App.4th 31, 72 Cal.Rptr.2d 246, to be controlling because neither case involved a Kelly challenge to the product rule. The defendant in Morganti challenged PCR typing and matching methodology as well as PCR-based "statistical evidence" (Morganti, at p. 669, 50 Cal.Rptr.2d 837), but the court had no occasion to consider the product rule because the PCR testing was done for only one gene, DQ-alpha. (Id at p. 662, 50 Cal.Rptr.2d 837.) Thus, the frequency of the defendant's DQ-alpha genotype (one in twenty-two Caucasians) was not multiplied by anything. (See id. at p. 669, 50 Cal. Rptr.2d 837.) In Wright, the defendant apparently did not raise a challenge under Kelly to use of the product rule in calculating the frequency of his PCR profile. Instead, he complained this statistical analysis violated his right to due processan argument the court rejected. (People v. Wright, supra, at pp. 43-4, 72 Cal.Rptr.2d 246.) The Wright court did not address the question of the product rule's general acceptance under Kelly. (See id. at pp. 37-44, 72 Cal.Rptr.2d 246.)
The 1996 NRC Report examined in detail the reliability of the product rule in PCR analysis. (1996 NRC Rep., supra, at pp. 116-120.) Although PCR alleles have not been researched as extensively as VNTRs, and though PCR population databases are smaller, the NRC found that studies have shown PCR systems exhibit just as much independence as seen in VNTRs. (Id at pp. 35, 117.) The report cited two studies by Dr. Bruce Budowle, which found compliance with Hardy-Weinberg and linkage equilibrium principles at multiple PGR loci. (Id. at p. 117, citing *748 Budowle, Lindsey, supra, 40 J. Forensic Sciences 45; Budowle, et al., D1S80 Population Data in African-Americans, Caucasians, Southeastern Hispanics, Southwestern Hispanics, and Orientals (1995) 40 J. Forensic Sciences 38 (hereafter Budowle, Baechtel).) Moreover, newer data showed that any impact of population substructure on PCR frequencies was very small. (1996 NRC Rep., supra, at pp. 35, 119.) Thus, the NRC concluded that PCR-based systems "are ready to be used along with VNTRs" (id. at p. 119) and recommended that probability calculations be made using the product rule. (Id. at pp. 38, 122.) The NRC also suggested the use of a slightly higher correction factor in PCR product rule calculations, to account for the fact that PCR population data have been less extensively studied than for VNTRs. (Id. at p. 122.)
At the Kelly hearing, prosecution expert Charlotte Word testified she is familiar with various studies that have confirmed the independence of the PCR loci at issue in this case: DQ-alpha, polymarker and D1S80. Word knew of no published article disagreeing with the use of the product rule to calculate PCR profile frequencies, and she attested that this rule is commonly used throughout the forensic community in connection with PCR. DOJ criminalist Gary Sims gave similar testimony.
To demonstrate that a controversy exists on this issue, appellant points only to the testimony of his expert, Laurence Mueller, and an essay Mueller later published. (Mueller, The DNA Typing Controversy and NRC II in Statistics in Genetics (Halloran & Geisser edits., 1999) pp. 1-23.) Mueller acknowledges that all published studies have confirmed the independence of PCR markers; however, he claims he found "significant departures" from Hardy-Weinberg equilibrium when he pooled and reanalyzed the data from these studies. (Id. at p. 6.) However, appellant cites no peer-reviewed scientific study that supports this conclusion, and it is far from clear that Mueller's own work was subjected to rigorous peer review.[13] Mueller's criticisms of the product rule contradict the great weight of published scientific opinion, and they were implicitly rejected by the 1996 NRC Report.
Dr. Mueller's lone dissent is not sufficient to generate a controversy where the remainder of the scientific community has reached consensus on use of the product rule in PCR analysis. The Kelly test "does not demand `absolute unanimity of views in the scientific community.... Rather, the test is met if use of the technique is supported by a clear majority of the members of that community.'" (Leahy, supra, 8 Cal.4th at p. 612, 34 Cal. Rptr.2d 663, 882 P.2d 321, quoting People v. Guerra, supra, 37 Cal.3d at p. 418, 208 Cal.Rptr. 162, 690 P.2d 635, italics added by Leahy; see also People v. Axell, supra, 235 Cal.App.3d at p. 860, 1 Cal.Rptr.2d 411["[T]he defense witnesses' testimony on the issue of general acceptance did not undermine the validity of the trial court's determination that forensic use of RFLP *749 analysis is generally accepted in the relevant scientific community."].)[14]
Appellant complains the trial court could not have found that use of the product rule in PCR is generally accepted because the prosecution did not present expert testimony on this subject from a population geneticist. Dr. Charlotte Word, a molecular biologist, testified about application of the product rule in PCR analysis. Over defense objections as to her qualifications, the court allowed Word to testify about how the product rule works. She also testifiedwithout objectionthat the product rule is generally used throughout the forensic community in PCR testing and is not controversial in the scientific community. While a trial court's ruling on expert qualifications is entitled to substantial deference on appeal (Kelly, supra, 17 Cal.3d at p. 39, 130 Cal.Rptr. 144, 549 P.2d 1240), the court here did not expressly find Word qualified to give an opinion as to the product rule's reliability in PCR analysis, nor do we think such a ruling can be implied from the overruling of certain defense objections.
However, the court had ample evidence in addition to Word's testimony demonstrating the general scientific acceptance of the product rule as applied to PCR. The 1996 NRC Report, which was the subject of much testimony by all experts in this case, unequivocally endorses the product rule for PCR statistical calculations. (1996 NRC Rep., supra, at pp. 116-122.) As the Supreme Court observed, regarding the NRC's 1992 recommendation of the modified ceiling principle in RFLP analysis, "`courts have recognized that "the [NRC] is a distinguished cross section of the scientific community.... Thus, that committee's conclusion regarding the reliability of forensic DNA typing ... and the proffer of a conservative method for calculating probability estimates can easily be equated with general acceptance of those methodologies in the relevant scientific community." [Citation.]' [Citation.]" (Venegas, supra, 18 Cal.4th at p. 89, 74 Cal.Rptr.2d 262, 954 P.2d 525.) Though the NRC's recommendation has changed (from use of a ceiling principle to the unmodified product rule), the respect courts afford conclusions of this esteemed scientific body has not. (See, e.g., Soto, supra, 21 Cal.4th at pp. 539-541, 88 Cal. Rptr.2d 34, 981 P.2d 958.) In addition, the trial court considered peer-reviewed published studies that validated use of the product rule in PCR analysis. (Budowle, Lindsey, supra, at pp. 48-53; Budowle, Baechtel, supra, at pp. 42-43.) "`[Considerations of judicial economy' ... permit a court to scrutinize `published writings in scholarly treatises and journals' in lieu of live testimony." (Leahy, supra, 8 Cal.4th at p. 611, 34 Cal.Rptr.2d 663, 882 P.2d 321, quoting People v. Shirley (1982) 31 Cal.3d 18, 55-56, 181 Cal.Rptr. 243, 723 P.2d 1354.)
Finally, as our Supreme Court observed with respect to RFLP (Soto, supra, 21 Cal.4th at p. 540, 88 Cal.Rptr.2d 34, 981 P.2d 958), we note that several other jurisdictions have approved the admissibility of statistical calculations applying the unmodified product rule to PCR-based evidence. (See, e.g., State v. Gore (2001) 143 Wash.2d 288 [21 P.3d 262] [Washington; rejecting Mueller's criticisms and approving product rule in PCR under Washington's Frye test]; Smith v. State (Ind.1998) 702 N.E.2d 668 [Indiana]; State v. Jackson *750 (1998) 255 Neb. 68, 582 N.W.2d 317 [Nebraska]; People v. Pope (1996) 284 Ill. App.3d 695, 220 Ill.Dec. 309, 672 N.E.2d 1321 [Illinois]; Com. v. Rosier (1997) 425 Mass. 807, 685 N.E.2d 739; State v. Dishon (1997) 297 N.J.Super. 254, 687 A.2d 1074 [New Jersey]; State v. Hoff (Mo. 1995) 904 S.W.2d 56 [Missouri]; see also U.S. v. Gaines (S.D.Fla.1997) 979 F.Supp. 1429; U.S. v. Shea (D.N.H.1997) 957 F.Supp. 331; U.S. v. Lowe, supra, 954 F.Supp. 401.)
2. Modification To Account For Laboratory Error Rates
Appellant also claims the DNA evidence should have been excluded because the statistical probability calculations were not modified to take account of laboratory error rates. A laboratory may commit some mistake in sampling or testing that results in an erroneous identification of the suspecti.e., a false positive. According to defense expert Mueller, the chances of a laboratory making such a mistake range from "1 in hundreds to 1 in thousands," yet that laboratory may declare, based on product rule calculations, that the chances of a random multiple-loci match between the suspect's DNA and that of a sample are 1 in millions or billions. Because the probability of an erroneous identification of the suspect due to laboratory error is much greater than the probability of an erroneous identification due to the commonness of a certain profile, Mueller contends laboratory error rates should be "the dominant statistic for evaluating the weight of a match." [15] Mueller acknowledged that laboratories typically do not publish their "error rates," although they sometimes disclose their proficiency testing results in court cases.
In contrast, prosecution expert Charlotte Word disagreed with the notion that error rates should be considered, in part because the concept of a "rate" implies that errors are recurring at some definite interval. In her analysis, the past experience of a laboratory in other cases is irrelevant to the question of whether it reached a correct result in the current case. Dr. Adams also testified that past errors, or errors from other laboratories, are not relevant considerations. The trial court, essentially agreeing with these witnesses, sustained many objections from the prosecution to defense questions concerning error rates from other laboratories and past errors in DNA testing at the DOJ laboratory.
We first address the threshold issue of whether appellant's "laboratory error" argument raises a foundational issue under Kelly. Relying on language excerpted from People v. Cooper (1991) 53 Cal.3d 771, 281 Cal.Rptr. 90, 809 P.2d 865, respondent asserts that the possibility of error should affect the weight of the DNA evidence, not its admissibility. In Cooper, the defendant challenged the admissibility of bloodstain analysis under all three prongs of Kelly. After addressing the testing method and qualifications of the examiner (Gregonis), the Cooper court stated: "In a related vein, defendant also criticizes the precise manner in which Gregonis performed the tests. These arguments misperceive the nature of the Kelly/Frye rule. `[T]he Kelly/Frye rule tests the fundamental validity of a new scientific methodology, not the degree of professionalism with which it is applied. [Citation.] Careless testing affects the weight of the evidence and not its admissibility, and *751 must be attacked on cross-examination or by other expert testimony.' [Citation]." (Id. at p. 814, 281 Cal.Rptr. 90, 809 P.2d 865.) Similarly, in People v. Wright, the defendant's challenge to PCR testing on the ground that "samples may have been contaminated or confused, and ... laboratory procedures should have been more rigorous or controlled" did not raise a true Kelly issue, but simply affected the weight of the evidence. (People v. Wright, supra, 62 Cal.App.4th at p. 41, 72 Cal.Rptr.2d 246.)
Once again, however, our state's precedents have not squarely addressed appellant's argument. Both Wright and Cooper concerned claims that testing errors occurred in a particular defendant's case. Here, appellant's only expert offered no opinions about the actual testing performed in this case and conceded he was not qualified to assess the quality of the forensic work. Rather than focusing on possible errors the DOJ may have committed in his case, appellant raises a more general issue: whether calculations of the statistical significance of a DNA match should factor in or otherwise consider laboratory error rates. This argument, like that against the product rule, essentially challenges the scientific validity of the DOJ's statistical methodology. Hence, we conclude it is properly considered as an issue of admissibility under Kelly.
The next question is whether it is a generally accepted practice in the scientific community to calculate random match probabilities, in RFLP or PCR analysis, without factoring in a laboratory error rate.[16] The record before us suggests that it is.
In a section titled Should an Error Rate Be Included in Calculations? (1996 NRC Rep., supra, at pp. 85-87), the 1996 NRC Report listed four reasons why laboratory error should not be combined with random match probability calculations. First, the relevant statistic is not a general error rate for the testing laboratory, or laboratories in general, but whether the laboratory has committed an error in this particular case. But the risk of error in a particular case depends on many variables, and no simple equation exists to translate them into a probability statistic. (Id. at pp. 85-86.) Second, a testing laboratory would have to undergo an unrealistically large number of proficiency tests to allow the estimation of a statistically valid probability of error. (Id. at p. 86.) Third, although it might be possible to generate a probability statistic by pooling data from the proficiency tests of several laboratories, producing an "`industry-wide'" error rate, this statistic would unfairly penalize better laboratories. (Ibid.) Fourth, an error rate estimated by a laboratory's historical performance on proficiency tests will almost certainly be too high, since errors will be investigated and corrected after they are discovered, and thus errors committed in the past are not likely to recur. (Ibid.) The committee concluded: "[W]e believe that a calculation that combines error rates with match probabilities is inappropriate. The risk of error is properly considered case by case, taking into account the record of the laboratory performing the tests, the extent of redundancy, and the overall quality of the results." (Id. at p. 87.) Moreover, a suspect's "best insurance" against the possibility of a false match due to laboratory error is the opportunity *752 to have testing repeated at another facility. The committee therefore advised investigative agencies to retain samples for retesting whenever feasible. (Ibid.)
The first NRC report reached a similar conclusion. "While the Committee ... noted that early in the application of DNA typing, nonblind proficiency studies suggested a high rate of false positives, the Committee said that `[coincidental identity and laboratory error are different phenomena, so the two cannot and should not be combined in a single estimate.' [1992 Rep., supra, at p. 88.] The Committee suggested, though, that error rates should be told to the jury. [Id. at p. 89.]" (State v. Copeland (1996) 130 Wash.2d 244, 270-271 [922 P.2d 1304, 1320], fn. omitted.)
Relying heavily on opinions of Jonathon Koehler and a "troika" of articles in the summer 1997 issue of the journal Jurimetrics, appellant claims these recommendations remain controversial. But these authors do not appear to represent the views of the relevant, qualified scientific community. (See Leahy, supra, 8 Cal.4th at p. 612, 34 Cal.Rptr.2d 663, 882 P.2d 321.) Koehler is an associate professor of behavioral decision making at the Graduate School of Business and Law School at the University of Texas at Austin (Koehler, Why DNA Likelihood Ratios Should Account for Error (Even When A National Research Council Report Says They Should Not) (Summer 1997) 37 Jurimetrics J. 425, fn. *) William Thompson and Richard Lempert, two additional authors on whom appellant relies, are also not biological scientists, or statisticians.[17] The opinions of legal scholars and social scientists simply do not carry as much weight as the considered conclusions reached by the NRC, a body composed of "`"a distinguished cross section of the scientific community."'" (Venegas, supra, 18 Cal.4th at p. 89, 74 Cal.Rptr.2d 262, 954 P.2d 525; see People v. Shirley, supra, 31 Cal.3d at p. 56, fn. 34, 181 Cal.Rptr. 243, 723 P.2d 1354 [according little weight to law review articles in general acceptance analysis].)[18] In assessing the opinion of the scientific community on a topic, "a court is bound to let scientists speak for themselves.'" (Shirley at p. 56, fn. 34, 181 Cal.Rptr. 243, 723 P.2d 1354, quoting Kelly, supra, 17 Cal.3d at pp. 39-40, 549 P.2d 1240.)
As evidence of a controversy, appellant also cites the unpublished letter that Dr. Mueller and 26 other signatories submitted to the scientific journal Nature in response to a 1994 article by Drs. Lander and Budowle. The letter asserted that blind proficiency testing should be conducted to produce accurate estimates of laboratory error rates, and it advocated the consideration of error rates in connection with random match calculations. However, this unpublished letter predated the 1996 NRC Report, and appellant produced no evidence to show that any scientists other than his expert Mueller, and possibly two other signers, continued to hold the same views.
*753 Appellant offers several detailed arguments criticizing the DOJ's calculation of match probabilities without consideration of a laboratory error rate. However, "our duty is not to decide whether [a methodology] is reliable as a matter of `scientific fact,' but simply whether it is generally accepted as reliable by the relevant scientific community." (People v. Shirley, supra, 31 Cal.3d at p. 55, 181 Cal.Rptr. 243, 723 P.2d 1354.) Because appellant has not presented persuasive evidence of an ongoing controversy in the scientific community, we conclude that the NRC's recommendation is generally accepted, and DNA probability calculations need not be modified to account for a laboratory error rate. Our holding is in accord with the few published decisions that have addressed the issue. (See State v. Copeland, supra, 922 P.2d at pp. 1319-1320 [relying on 1992 NRC Report to conclude "laboratory error rate is not appropriately a part of the probability calculations"]; cf. U.S. v. Shea, supra, 957 F.Supp. at pp. 344-345 [finding evidence of random match probability was not unfairly prejudicial even though it was not modified by an estimated laboratory error rate].)
Our decision addresses only the necessity of reporting a "summary statistic," i.e., a probability statistic derived when a "laboratory error rate" is combined with a DNA profile's random match probability. We have concluded such a combination is not sanctioned by the weight of scientific opinion. However, we express no opinion on whether a jury can or should receive evidence concerning rates of laboratory error separate and apart from the random match probability statistic. Moreover, it should be clear that our decision does not preclude cross-examination on the subject of laboratory error, or the possibility that such errors were committed in a particular case. In general, criticisms about the quality of DNA testing go to the weight of the evidence (People v. Wright, supra, 62 Cal.App.4th at p. 41, 72 Cal.Rptr.2d 246) and hence are appropriate topics for crossexamination.[19]
B. Use Of Correct Scientific Procedures With Fixed Bins
Appellant also contends the DOJ's use of undersized fixed bins fails to comport with correct scientific procedures. "Unlike the independent appellate review of a determination of general scientific acceptance under Kelly's first prong, review of a third-prong determination on the use of correct scientific procedures in a particular case requires deference to the determinations of the trial court." (Venegas, supra, 18 Cal.4th at p. 91, 74 Cal.Rptr.2d 262, 954 P.2d 525.) Therefore, we review trial court findings on the use of correct scientific procedures for abuse of discretion only. (Id. at pp. 91, 93, 74 Cal.Rptr.2d 262, 954 P.2d 525; People v. Ashmus (1991) 54 Cal.3d 932, 971, 2 Cal.Rptr.2d 112, 820 P.2d 214.) Although the trial court here made no express ruling on the fixed bin issue, a finding in the prosecution's favor is fairly implied from the court's determination that "no evidence was produced to show that there was any departure from the generally accepted procedures in the scientific community...."
Raising a similar argument to the one he presented against floating bins in People v. Venegas, supra, 18 Cal.4th at pages 90-91, 74 Cal.Rptr.2d 262, 954 P.2d 525, defense *754 expert Mueller testified that the DOJ uses improperly sized fixed bins in determining the probability of a random match in RFLP analysis.[20] The DOJ creates an uncertainty interval of plus or minus 1.8 percent around both the evidence band and the suspect band on an autorad. If the windows surrounding these two bands overlap, even slightly, the DOJ will declare a match. Thus, Mueller concludes, the match criteria may be as wide as plus or minus 3.6 percent, or a total of 7.2 percent. When the DOJ then consults the FBI's fixed bin system to determine the population frequency of the match, Mueller contends the fixed bin must be at least as wide as the match criteria, i.e., at least 7.2 percent wide, or else the population frequency figure yielded by the database will be too small. (Logically, because a larger bin encompasses a greater range of basepair sizes, it is likely to incorporate more bands and thus have a higher population frequency value.) Therefore, Mueller concludes, the DOJ underestimates the probability of a random match every time a match falls within a fixed bin smaller than 7.2 percent.
Notably, Mueller's testimony on this point at the Kelly hearing was purely theoretical. Mueller did not determine whether any such bin-sizing errors actually occurred in the DOJ's RFLP analyses in this case. Quite possibly, they did not. Mueller testified that the DOJ uses the fixed bin system developed by the FBI, but only four of the FBI's 31 fixed bins are smaller than 7.2 percent. (See Fung, supra, at p. 114 [FBI fixed bin table].)
Nevertheless, appellant argues that reversal is necessary because Mueller's uncontradicted testimony shows the DOJ's fixed bin method is procedurally unsound, just as the FBI's floating bin protocol was found to be defective in People v. Venegas. We disagree.
In Venegas, supra, 18 Cal.4th 47, 74 Cal.Rptr.2d 262, 954 P.2d 525, the Supreme Court addressed the narrow question of whether the FBI's use of floating bins comported with generally accepted scientific procedures. Whereas a fixed bin describes the population frequency for a preexisting range of VNTR band sizes, a floating bin is constructed anew around every match. (Id. at pp. 64-65, 74 Cal. Rptr.2d 262, 954 P.2d 525.) A floating bin is defined as the range of base-pair sizes around the evidence band equal to the match window. (1996 NRC Rep., supra, at p. 143["[T]he floating bin is always the same [size] as the match window."].) Given the FBI's uncertainty window of plus or minus 2.5 percent, the NRC defines the "match window," for purposes of binning, as "the evidence measurement with 5% of its value added and subtracted." (Id at p. 20.) This means that, under the floating bin method, population frequency is determined for each allele by querying a database for frequency data on all bands covering a 10 percent range in size around the evidence band. Despite these NRC guidelines, in Venegas the FBI constructed floating bins of only plus or minus 2.5 percent. (Venegas, supra, at pp. 72, 90, 74 Cal.Rptr.2d 262, 954 P.2d 525.) Thus, the FBI's floating bins were only 5 percent wide instead of the recommended 10 percent. Because uncontradicted testimony established that the FBI failed to follow accepted scientific procedures when it constructed floating bins of half the recommended size, the Supreme Court concluded the DNA evidence should have been *755 excluded. (Id. at p. 92-93, 74 Cal.Rptr.2d 262, 954 P.2d 525.)
The fixed bin method employed in this case differs in significant respects from the procedure at issue in Venegas. "Fixed bins ... compartmentalize the entire spectrum of VNTR base-pair sizes likely to appear as bands on an autorad.... A separate fixed-bin table is compiled for each locus in each database." (Venegas, supra, 18 Cal.4th at p. 65, 74 Cal.Rptr.2d 262, 954 P.2d 525.) Using fixed bins, an analyst determines the population frequency of a match at a certain locus by comparing the match window with the fixed bin table. Again, the NRC defines the match window, based on FBI criteria, as the range of sizes 5 percent above and 5 percent below the evidence band. (1996 NRC Rep., supra, at p. 20.) If this range of values happens to lie within a single fixed bin, the frequency of that bin is used to calculate the probability of a random match. However, if the match window overlaps two (or more) fixed bins, the NRC advises that the bin with the highest frequency should be used in the calculations. (Ibid.) The 1992 NRC Report recommended using the sum of all overlapped bins, but the 1996 Committee abandoned this approach because empirical studies showed it was too conservative. (Id. at pp. 20,143-144.)
No evidence produced at the Kelly hearing, or at trial, suggests the DOJ failed to follow these procedures. Gary Sims testified the DOJ performed its statistical calculations according to the method currently recommended by the NRC. Moreover, defense expert Mueller's criticism of fixed bins was entirely generic. He faulted the DOJ only for using the FBI's fixed bins and, in the event of overlap, not following the 1992 NRC procedure of summing the bin frequencies. Mueller agreed, though, that the DOJ followed the NRC's 1996 procedures in performing the product rule calculations in this case.
Appellant's true complaint, it would seem, is with the validity of the fixed bin calculations recommended in the 1996 NRC Reporti.e., when a match window overlaps two bins, the bin with the highest frequency (and not the sum of both bins' frequencies) should be used to calculate random match probability. (1996 NRC Rep., supra, at pp. 20, 143-144.) But appellant did not challenge the general acceptance of this fixed bin procedure below, and the record is not sufficiently developed to permit us to address it.
Moreover, in his zeal to liken the procedures in this case to the error in Venegas, appellant ignores key differences between fixed and floating bins. Appellant argues that fixed bins must be at least as large, percentage-wise, as the match window, or else they will underestimate population frequency. However, as Dr. Adams observed when presented with this theory on cross-examination, comparing the percentage size of a match window with the percentage size of a fixed bin is like comparing "chalk and cheese." The relevant question is not the percentage size of fixed bins, but what to do in the event a match window overlaps multiple bins.[21] The *756 NRC has resolved this problem by recommending that calculations be made using the bin with the highest population frequency, and there is no indication the DOJ departed from this recommended procedure.
In short, the trial court did not abuse its discretion in finding the DOJ used correct scientific procedures in calculating random match frequencies using fixed bins.
II. Sufficiency Of Evidence Of Sexual Battery
Appellant next contends insufficient evidence supports his conviction of sexual battery in connection with the Linda H. case because he did not "cause" the victim to masturbate him. After appellant forced Linda to perform oral copulation, he turned her onto her stomach, pulled down her pants and underwear and attempted to penetrate her with his penis. In order to avoid being raped, Linda reached down and manually masturbated appellant until he ejaculated. Appellant now claims this act of masturbation did not constitute a sexual battery because it was "entirely [the victim's] idea." This argument merits little discussion.
A sexual battery occurs when "[a]ny person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person's will while that person is unlawfully restrained ... to masturbate or touch an intimate part" of the accused or some other person. (Pen.Code, § 243.4, subd. (c).)[22] In interpreting this statute, we give the words their ordinary, commonsense meanings. (People v. Prevost (1998) 60 Cal.App.4th 1382, 1391-1392, 71 Cal. Rptr.2d 487.)
The parties disagree over the meaning of "cause," used as a verb. Appellant asserts the word "cause" must be limited to mean, for purposes of section 243.4, the effecting or bringing about of an action "by command, authority, or force." (Webster's Collegiate Diet. (2001) [as of July 26, 2001] [second definition].) But appellant's definition is narrower than the ordinary meaning of the word. The verb "cause" means, more broadly, "[t]o be the cause of; to effect, bring about, produce, induce, [or] make." (Oxford English Diet. (2d ed. CD-ROM 1994); see also Webster's Collegiate Diet., supra, [first definition: "to serve as a cause or occasion of'].) Appellant was molesting Linda by force, and she masturbated him only as way to avoid an imminent rape. Clearly, appellant's demand for sexual gratification "induced" or "brought about" or "occasioned" the masturbation. Moreover, even if we were to read into section 243.4 an additional requirement of "command, authority, or force," we would find such a requirement easily satisfied under the facts of this case. Appellant had physically restrained Linda and was attempting to rape her. She obviously did not consent to the encounter, and her touching of appellant was motivated solely by the desire to avoid suffering a more egregious violation. The evidence *757 was sufficient to support the charge of sexual battery.
III. Absence Of Instruction On Lesser Included Crimes
Appellant was charged with robbery of Linda H., Carol B. and Janice B. and with attempted robbery of Debra E. Appellant did not request a jury instruction as to the elements of theft, which is a lesser included offense of the crime robbery. (People v. Turner (1990) 50 Cal.3d 668, 690, 268 Cal.Rptr. 706, 789 P.2d 887.) He now argues the trial court should have instructed the jury sua sponte on the lesser included offenses of theft and attempted theft, and its failure to do so requires reversal.
"California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 77 Cal. Rptr.2d 870, 960 P.2d 1094 (Breverman).) The trial court has no obligation to instruct on theories not supported, or only weakly supported by the evidence; however, "instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration' by the jury. [Citations.] `Substantial evidence' in this context is `"evidence from which a jury composed of reasonable [persons] could ... conclude[]"' that the lesser offense, but not the greater, was committed. [Citations.]" (Id. at p. 162, 77 Cal.Rptr.2d 870, 960 P.2d 1094.)
Robbery is defined as the taking of personal property from another's person, or in his immediate presence, against his will, and accomplished by force or fear. (§ 211.) Theft is a lesser included offense of robbery that does not include the additional element of force or fear. (People v. Turner, supra, 50 Cal.3d at p. 690, 268 Cal.Rptr. 706, 789 P.2d 887.)
Appellant asserts that in each of the sexual assault cases, the jury heard sufficient evidence from which it could have concluded appellant was not guilty of robbery or attempted robbery, but only of the lesser crimes of theft or attempted theft. Respondent, on the other hand, contends there was no evidence that any of the offenses were less than robbery or attempted robbery, and thus the court had no sua sponte obligation to instruct on lesser crimes. (See People v. Wickersham (1982) 32 Cal.3d 307, 323-324, 185 Cal. Rptr. 436, 650 P.2d 311, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 200-201, 47 Cal.Rptr.2d 569, 906 P.2d 531.) We agree with respondent as to the three robbery charges, but we determine that substantial evidence was presented in the Debra E. case to support a conviction for the lesser included offense of attempted theft, and the trial court should have given this instruction.
The pertinent facts are very similar in the Linda H., Carol B. and Janice B. cases. Appellant entered these victims' bedrooms in the early morning, woke them, sexually assaulted them, then ushered them into the shower and told them to stay there while he searched the house. The women cooperated, and they later discovered some of their property had been taken. According to appellant, these facts do not support robbery because no property was taken from the victims' persons or in their actual presence. "If there is substantial evidence that an element of an offense is missing, the court must instruct sua sponte on the lesser included offense. [Citations.]" (People v. Holt (1997) 15 Cal.4th 619, 675, 63 Cal.Rptr.2d 782, 937 P.2d 213.) However, the crime of robbery requires only the taking of an object from the "immediate presence" of the victim, *758 which has been defined as the zone "`"within which the victim could reasonably be expected to exercise some physical control over his property."'" (Ibid., quoting People v. Webster (1991) 54 Cal.3d 411, 440, 285 Cal.Rptr. 31, 814 P.2d 1273.) Areas of the victims' apartments outside the bathroom were areas over which they had control before appellant coerced them into the shower. (See People v. Holt, at p. 675, 63 Cal.Rptr.2d 782, 937 P.2d 213 [property taken from kitchen, while victim lay in the living room, satisfied "immediate presence" requirement].)
Appellant also argues the evidence could have supported a finding that negated the "force or fear" element of robbery in these three incidents. In all three cases, the victims first learned of appellant's presence when they woke to find him in the bedroom. Appellant claims he could have searched through the women's apartments, choosing the items he intended to steal before he ever awakened the occupants. But, even assuming such facts point to theft and not robbery, the jury heard no evidence to suggest that this hypothetical series of events actually occurred. Rather, the evidence clearly showed that appellant looked through the victims' homes for valuable property while he kept them in the shower with threats of physical injury. (See People v. Brown (1989) 212 Cal. App.3d 1409, 1418, 261 Cal.Rptr. 262 ["The threat to inflict injury is, alone, sufficient to satisfy the statutory requirement [of force or fear] ...."], disapproved on another ground in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10, 276 Cal.Rptr. 874, 802 P.2d 376.) The mere possibility that a jury could have speculated about possible movement of property before the assaults was not supported by any evidence, and thus the trial court did not err in failing to sua sponte instruct on the lesser included offense of theft.
The Debra E. case poses a more difficult question, however. Debra also woke to find appellant in her bedroom, but unlike the other victims she refused to stay quiet. She struggled and, in the process, suffered a brutal physical assault. Appellant fled the apartment in a rush at the sound of police sirens. Although nothing of Debra's was stolen, a jewelry box had been moved from the bathroom to the living room, and a ring and gold necklace belonging to Debra's roommate were later discovered to be missing. These missing items were never recovered.
Due to appellant's immediate flight, it is clear he moved the jewelry found in Debra's living room before the assault. This is not a case of a perpetrator who, having peacefully acquired property, uses force to retain or escape with it. (See People v. Winkler (1986) 178 Cal.App.3d 750, 756, 224 Cal.Rptr. 28.) Rather, the evidence suggests appellant had the opportunity to leave peacefully with the property he gathered from Debra's apartment, but instead he chose to wake Debra and assault her. Respondent offers no indication that the assault on Debra was in any way motivated by an intent to steal her property. To support a charge of robbery, "[t]he wrongful intent and the act of force or fear `must concur in the sense that the act must be motivated by the intent.' [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 34, 61 Cal.Rptr.2d 84, 931 P.2d 262.) There is no evidence of such a concurrence of act and intent in the Debra E. incident. (See People v. Kelley (1990) 220 Cal.App.3d 1358, 1368-1369, 269 Cal.Rptr. 900 [the taking of property from a sleeping or unconscious victim is theft, not robbery, due to absence of force or fear].)
In an attempt to tie the assault to the movement of property, respondent focuses on the fact that appellant did not take any property away from the residence before *759 he assaulted Debra. If there were evidence of such a taking, the facts would have demonstrated a completed theft, and required such an instruction. However, the evidence actually presented was consistent with an attempted theft, since it was undisputed the perpetrator moved property with the intent of stealing it. Likewise, we reject respondent's invitation to speculate that, had she not resisted, the Debra E. encounter would have ended with the same victim-in-shower robbery as occurred in the other sexual assault cases. This "bootstrapping" argument is clearly insufficient to support respondent's assertion that the evidence only supported a charge of attempted robbery.
Based on the evidence in the Debra E. reasonable jury could conclude appellant committed the lesser offense of attempted theft but not the greater offense of attempted robbery. The trial court therefore had a duty to instruct the jury, sua sponte, on the lesser included crime, and its failure to do so was error. (Breverman, supra, 19 Cal.4th at p. 162, 77 Cal.Rptr.2d 870, 960 P.2d 1094.)
To determine whether this error was prejudicial, we must consider whether, "`after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears `reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred ([People v.] Watson [(1956)] 46 Cal.2d 818, 836, 299 P.2d 243)." (Breverman, supra, 19 Cal.4th at p. 178, 77 Cal. Rptr.2d 870, 960 P.2d 1094.) The question is not what a jury could have done, but what a jury would likely have done if properly instructed. (Id at p. 177, 77 Cal.Rptr.2d 870, 960 P.2d 1094.)
Based on the undisputed evidence in the Debra E. case, it is reasonably probable a jury instructed on attempted theft would have convicted appellant of this lesser crime, and not the greater offense of attempted robbery. The assailant never said anything to Debra about taking her property; indeed, she believed he intended to rape or kill her. During the course of their struggle, Debra did not notice that the attacker held anything in his hands. About a week after the incident, Debra and her roommate found a jewelry box, which they had believed stolen, hidden behind their couch. The evidence indicates that, at most, appellant moved the jewelry box and may have taken a ring and necklace from the apartment (although police did not recover these items in their search of the Clifton warehouse). But, since Debra testified that her attacker immediately ran away when he heard police sirens, he could only have disturbed this property before he woke Debra and brutally assaulted her.
Because the prosecution did not demonstrate a nexus between the movement of property and the subsequent assault, the evidence in support of attempted robbery was weak, whereas the circumstantial evidence of attempted theft was comparatively strong. (See Breverman, supra, 19 Cal.4th at p. 177, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) Under these facts, we conclude there is a reasonable probability that an instruction on the lesser included offense of theft would have resulted in a more favorable outcome for appellant. This error does not require total reversal of appellant's conviction on the attempted robbery charge, however. The appropriate remedy is a modification of the judgment that reduces appellant's conviction, and the appropriate sentence, from attempted robbery to attempted theft. (People v. Kelley, supra, 220 Cal.App.3d at p. 1370, 269 Cal.Rptr. 900; People v. Alexander (1983) 140 Cal.App.3d 647, 666, 189 Cal.Rptr. 906 ["An appellate court is not restricted to the remedies of affirming or *760 reversing a judgment. Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified...."].)[23]
IV. Sentencing Error
Appellant claims the trial court erred in calculating his sentence with respect to the Debra E. incident.
The jury convicted appellant of five charges in the Debra E. case: burglary, attempted robbery, assault with great bodily injury force, battery with serious bodily injury, and false imprisonment by violence.[24] Because the burglary and attempted robbery charges addressed the same course of conduct, the court stayed the imposition of sentence for attempted robbery. For the same reason, the court stayed sentence on the battery count in favor of imposing sentence on the charge of assault with great bodily injury force. The court also stayed any sentence on the false imprisonment charge, because this offense was simply the means by which appellant committed the other offenses. The court sentenced appellant to serve an aggravated term of six years for the burglary charge and one year for the assault.[25] Based on the jury's finding that appellant inflicted great bodily injury in connection with these crimes, the court added three years to the burglary sentence and one year to the assault sentenceboth as enhancements for great bodily injury (§ 12022.7). Appellant complains the imposition of these two great bodily injury enhancements for a single course of conduct was error.
Section 654 provides, in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Appellate courts have disagreed about whether section 654 applies to sentence enhancements. Some courts have considered enhancements exempt from section 654 because they do not define a crime or offense but relate only to the penalty to be imposed (e.g., People v. Boerner (1981) 120 Cal. App.3d 506, 511, 174 Cal.Rptr. 629), whereas other courts reason that section 654 applies to enhancements, just like offenses, because the statute proscribes all attempts to impose multiple punishment for the same act (e.g., People v. Moringlane (1982) 127 Cal.App.3d 811, 817, 179 Cal.Rptr. 726). (See People v. Arndt (1999) 76 Cal. App.4th 387, 394-395, 90 Cal.Rptr.2d 415 [collecting cases].) While recognizing this disagreement, the Supreme Court has not yet resolved it. (Ibid.)
Respondent urges us to follow the People v. Boerner line of cases and hold that section 654 does not apply to sentence enhancements. We decline to do so. Recent appellate decisions from other districts have applied section 654 to enhancements. (See, e.g., People v. Arndt, supra, 76 Cal.App.4th at pp. 394-396, 90 Cal. Rptr.2d 415; People v. Price (1992) 4 Cal. App.4th 1272, 1277, 6 Cal.Rptr.2d 263.) Indeed, the same court that originally decided *761 Boerner later observed, "`it is now well accepted that section 654 applies to enhancements(People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 9, 33 Cal.Rptr.2d 894, quoting People v. Dobson (1988) 205 Cal.App.3d 496, 501, 252 Cal. Rptr. 423.)
Moreover, though it did not directly address the question, the Supreme Court's decision in People v. Coronado (1995) 12 Cal.4th 145, 157, 48 Cal.Rptr.2d 77, 906 P.2d 1232 suggests section 654 does apply to some types of enhancements. Coronado held that section 654 does not prohibit the use of a prior felony conviction both to elevate the current felony conviction and to enhance the sentence under section 667.5. In reaching this conclusion, the court distinguished between "two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense [Citation.]" (Coronado, at p. 156, 48 Cal. Rptr.2d 77, 906 P.2d 1232.) Whereas enhancements such as section 667.5 "are attributable to the defendant's status as a repeat offender[] [citations]" (id. at pp. 156-157, 48 Cal.Rptr.2d 77, 906 P.2d 1232), the court observed that "the second category of enhancements, which are exemplified by those authorized under sections 12022.5 [use of firearm] and 12022.7 [great bodily injury], arise from the circumstances of the crime and typically focus on what the defendant did when the current offense was committed. [Citation.]" (Id. at p. 157, 48 Cal.Rptr.2d 77, 906 P.2d 1232, fn. omitted.) Although Coronado does not reach the question of whether section 654 applies to this second category of enhancements (see id. at p. 157, 48 Cal.Rptr.2d 77, 906 P.2d 1232), the distinction it draws between types of enhancements is significant. Multiple enhancements for the same criminal conduct run directly counter to section 654's rule against multiple punishment in a way offender-status-based enhancements do not. (See People v. Arndt, supra, 76 Cal.App.4th at pp. 395-396, 90 Cal.Rptr.2d 415 [concluding from Coronado analysis that section 654 applies to bodily injury enhancements].)
Applying section 654 to this case, we conclude the imposition of two great bodily injury enhancements in connection with the Debra E. assault was error. "The `cases which do apply ... section 654 to enhancements have limited the number of enhancements applied to a single conviction, when there was a single act committed against a single victim.' [Citations.]" (People v. Arndt, supra, 76 Cal.App.4th at p. 396, 90 Cal.Rptr.2d 415; see also People v. Akins (1997) 56 Cal.App.4th 331, 338, 65 Cal.Rptr.2d 338["[N]early all of the cases that have applied section 654 to limit enhancements have done so in the context of a single act committed against a single victim."].)
Appellant was convicted of both burglary and assault in the Debra E. case, and he does not challenge his separate punishments for these convictions under section 654. Respondent argues the record supports two bodily injury enhancements, just as it supports the two sentences for burglary and assault, because appellant harbored multiple criminal objectives that can be punished independently. (See People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal. Rptr. 40, 591 P.2d 63; People v. Akins, supra, 56 Cal.App.4th at p. 339, 65 Cal. Rptr.2d 338.) However respondent directs us to no precedent approving of multiple sentence enhancements for a single assault against a single victim, even though the defendant committed additional crimes against that victim. On the contrary, the court in People v. Moringlane, supra, expressly held that "section 654 ... prohibits the imposition of multiple enhancements *762 for the single act of inflicting great bodily injury upon one person." (127 Cal.App.3d at p. 817, 179 Cal.Rptr. 726; see also People v. Alvarez (1992) 9 Cal.App.4th 121, 127, 11 Cal. Rptr.2d 463["[G]enerally only one enhancement for great bodily injury may be imposed where multiple offenses are committed against a single victim on a single occasion"]; People v. Culton (1979) 92 Cal. App.3d 113, 117, 154 Cal.Rptr. 672 ["The Attorney General has properly conceded that only one enhancement for great bodily injury is possible"].)
In the absence of any evidence making the assault of Debra E. divisible (see, e.g., People v. Dominick (1986) 182 Cal.App.3d 1174, 1210, 227 Cal.Rptr. 849 [permitting two enhancements where defendant committed two separate assaults on a single victim]), the trial court should not have imposed two great bodily injury enhancements under section 12022.7.
DISPOSITION
The judgment is modified to reduce appellant's conviction from attempted robbery to attempted theft and to stay the one-year sentence enhancement for great bodily injury applied to the assault conviction in the Debra E. case (count 25). In all other respects, the judgment is affirmed.
CORRIGAN, Acting P.J., and HORNER, J.,[*] concur.
NOTES
[1] In his opening brief, appellant also challenged the DNA evidence on the ground that the DOJ's formula for determining the significance of a DNA match ascertained by restriction fragment length polymorphism (RFLP) analysis is not generally accepted because it does not account for statistical difficulties created by population subgroups. However, while this appeal was pending, the California Supreme Court expressly rejected the same argument in People v. Soto (1999) 21 Cal.4th 512, 88 Cal.Rptr.2d 34, 981 P.2d 958 (Soto). Accordingly, appellant has abandoned this claim, and we do not address it.
[2] The DNA matched at 10 loci, but the DOJ included only six in its statistical analysis because these six sites had been extensively studied and found to be appropriately independent of each other, and researchers had compiled large population frequency databases for them. Sims testified that more recent population studies have confirmed the independence of some of the loci DOJ did not consider in its statistical calculations. Under the product rule, consideration of matches at these additional loci would make the probability of a random match astronomically small.
[3] The denaturing process in step four leaves only single-stranded DNA on the membrane. Thus, "a probe with the sequence AGCT would bind with all fragments containing the sequence TCGA." (Venegas, supra, 18 Cal.4th at p. 61, fn. 14, 74 Cal.Rptr.2d 262, 954 P.2d 525.)
[4] Here, as in Venegas, the DOJ reported inconclusive results at one of the five loci probed in the Carol B. case. (See Venegas, supra, 18 Cal.4th at p. 63, fn. 15, 74 Cal. Rptr.2d 262, 954 P.2d 525.) Accordingly, the DOJ declared a match and calculated its statistical significance based only on the four determinative loci.
[5] The word "allele" generally refers to alternative forms of a gene. (Venegas, supra, 18 Cal.4th at p. 59, fn. 10;, 74 Cal.Rptr.2d 262, 954 P.2d 525 1996 NRC Rep., supra, at pp. 14, 214.)
[6] The match window will be smaller than the sum of the 5 percent uncertainty windows if the windows surrounding the evidence band and the suspect band overlap to a significant degree. (See 1996 NRC Rep., supra, at p. 144.)
[7] "Substructuring" refers to the problem that can theoretically arise from the presence of subgroups within a population who share some similar genetic traits. For example, within the Caucasian database, people of Swiss ancestry may tend to mate with others of Swiss ancestry. This endogamous (as contrasted with random) mating can result in the creation of an ethnic subgroup that, over time, develops substantially different genetic frequencies than are found when the population is considered as a whole. (See Barney, 8 Cal.App.4th at pp. 814-815, 10 Cal.Rptr.2d 731.)
[8] The defense objected that Word, a molecular biologist, was not qualified to give expert opinions about statistical calculations, but the court allowed her to testify about how the product rule worked. She was not to express an opinion, however, as to its "reliability."
[9] Mueller also testified for the defense in Soto, presenting the same arguments against the product rule as he did in this case. (Soto, supra, 21 Cal.4th at pp. 529-530, 88 Cal. Rptr.2d 34, 981 P.2d 958.)
[10] According to Mueller, the journal had a policy against publishing letters with multiple authors.
[11] Mueller also proposed this counting rule in People v. Soto. The Supreme Court described it as a "`1/database method.'" (Soto, supra, 21 Cal.4th at p. 530, 88 Cal.Rptr.2d 34, 981 P.2d 958.) Essentially, "Mueller would simply count how many people in the database matched the [DNA profile]. Assuming no match in the database, the probability would be reported as a fraction equalling [sic] 1/the number of samples in the database (modified by a confidence interval.)" (Ibid.)
[12] The scientific technique involved in Kelly was voiceprint analysis. (Kelly, supra, 17 Cal.3d at p. 29, 130 Cal.Rptr. 144, 549 P.2d 1240.)
[13] Though appellant claims Mueller's article appears in a "peer reviewed professional journal," the preface of the book states that it "contains refereed papers from participants of the first week of a six-week workshop on Statistics in the Health Sciences." (Statistics in Genetics (Halloran & Geisser edits, 1999) at p. vii.) Nothing appellant has submitted to the court in his Further Request for Taking Judicial Notice suggests that this publication is an ongoing, professional journal.
[14] Mueller was one of the defense witnesses whose testimony on general acceptance was rejected in Axell. (People v. Axell, supra, 235 Cal.App.3d at pp. 851-853, 1 Cal.Rptr.2d 411.)
[15] Mueller supported this opinion with an example of a hypothetical missile that, when fired, has only a 1 in 1 billion chance of missing its target. However, in 1 out of 5 tries the missile does not fire at all. The probability that the missile will not function correctly is therefore 1 in 5, or 20 percent.
[16] Appellant does not specify whether an error rate specific to the testing laboratory should be used, or whether probability calculations should consider an "`industry-wide'" error rate. Because we conclude no mathematical modification for error rate is required under prevailing scientific opinion, we do not consider the different consequences such error rates might entail.
[17] Thompson is a professor of criminology, law and society, and Lempert is a professor of law and sociology. (Thompson, Accepting Lower Standards: The National Research Council's Second Report on Forensic DNA Evidence (Summer 1997) 37 Jurimetrics J. 405, fn. *; Lempert, After the DNA Wars: Skirmishing with NRC II (Summer 1997) 37 Jurimetrics J. 439, fn. *.)
[18] The Supreme Court recently observed that contributors to the issue of Judicature upon which appellant relies are "`prolific commentators on DNA evidence' [citation], most of whom `have served as expert witnesses for defendants' [citation]. Moreover, the articles were selected by a process that tended to give preference to criticism, rather than approval, of the 1996 NRC Report." (Soto, supra, 21 Cal.4th at p. 539, 88 Cal.Rptr.2d 34, 981 P.2d 958.)
[19] In fact, that is exactly what happened in this case. Appellant cross-examined criminalist Sims about possible contamination of DNA samples, a mistake in one test, and a possible sizing error on bands at one VNTR locus. In addition, defense expert Mueller estimated that DNA laboratories have error rates ranging from 1 in 700 to 1 in 7000, and he offered the jury recalculated probability figures using various lab error estimates.
[20] Because PCR analysis isolates and identifies the alleles themselves, it does not involve the matching and binning procedures required in RFLP testing. (1996 NRC Rep., supra, at p. 70.)
[21] A simple example demonstrates this point. Gary Sims testified that DOJ uses a match window of plus or minus 1.8 percent. Assume the DOJ declares a match at the VNTR locus D2S44, and the evidence band measures 1500 bp. A match window of plus or minus 1.8 percent runs from 1473 bp to 1527 bp (since 1.8 percent of 1500 is 27). This range happens to overlap bins 8 and 9 in the FBI's fixed bin system. Bin 8 encompasses bands sized 1,353-1,507 bp, and bin 9 includes bands sized 1,508-1,637 bp. (1996 NRC Rep., supra, at p. 20 [bin tables for United States Caucasians]; Fung, supra, at p. 114 [bin table for Hong Kong Chinese].) According to the only scientific article appellant cites on this issue, FBI's fixed bins 8 and 9 are both larger than 7.2 percent (the minimum size Mueller claims is necessary). (Fung, supra, at p. 114 [bin 8 is 10.8 percent; bin 9 is 8.2 percent].) Even though both fixed bins are theoretically large enough under appellant's view, the match window still overlaps multiple bins because the evidence band happens to fall very close to the boundary between the two fixed bins. Thus, even if all fixed bins were made substantially wider than an agency's match window, the problem of overlapping would still arise at the boundaries between fixed bins. This aspect of fixed bins marks a fundamental difference from the floating bins discussed in Venegas.
[22] All statutory references are to the Penal Code unless otherwise specified.
[23] In light of our reversal on this ground, we do not address appellant's challenge to the sufficiency of evidence supporting the attempted robbery conviction.
[24] The jury acquitted on a charge of assault with intent to rape.
[25] The court imposed a term of four years on the assault charge but stayed three years of this sentence pursuant to section 1170.1.
[*] Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261515/ | 861 F.Supp. 1516 (1994)
Jennie SANCHEZ, Adeline Sanchez, and Debra Casanova, Plaintiffs,
v.
The STATE OF COLORADO and Natalie Meyer, in her official capacity as Secretary of State for the State of Colorado, Defendants.
Civ. A. No. 93-S-0963.
United States District Court, D. Colorado.
August 31, 1994.
*1517 *1518 *1519 Gale T. Miller, Richard A. Westfall, Anthony F. Medeiros, Davis, Graham & Stubbs, Pamela J. Fair, Shelley Wittevrongel, Law Offices of John McKendree, Denver, CO, for plaintiffs.
Maurice G. Knaizer, Deputy Atty. Gen., Alesia M. McCloud-Chan, Asst. Atty. Gen., General Legal Services Section, Denver, CO, for defendants.
MEMORANDUM OPINION AND ORDER
SPARR, District Judge.
THIS MATTER came before the court for trial on March 21, 1994 through March 25, 1994. The court heard final argument on June 8, 1994. Having reviewed all of the evidence, the arguments, and the applicable law, and being fully advised in the premises, the court finds and concludes as follows.
The Plaintiffs bring a single claim for relief for violation of § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973. Plaintiffs allege that District 60 of the Colorado House of Representatives (H.D. 60), as it is currently configured, violates § 2 by unlawfully diluting the voting strength of Hispanic citizens in South Central Colorado. Plaintiffs ask the court to: (1) declare that H.D. 60 violates § 2; (2) grant a permanent injunction preventing any further elections for representative to the Colorado General Assembly from H.D. 60 as it is presently configured; (3) order the adoption of a redistricted H.D. 60 that contains a majority Hispanic voting age population; and (4) award Plaintiffs their fees and costs.
A. Background
In 1992, pursuant to Colorado's reapportionment process set forth in Article V, § 48 of the Colorado Constitution, the Colorado Reapportionment Commission devised H.D. 60 as presently drawn. H.D. 60 is comprised of Alamosa, Conejos, Costilla, Huerfano, Mineral, Rio Grande, and Saguache counties, plus the portion of Las Animas that is west of Trinidad. All of these counties, except Huerfano and Las Animas, are considered to be in the San Luis Valley (the Valley). Hispanics are estimated to comprise 45.31% of the total population and 42.38% of the voting age population of H.D. 60. The 1992 redistricting increased the total Hispanic voting age population in H.D. 60 by approximately five percent (5%).
In 1991 and 1992, Colorado's Reapportionment Commission conducted meetings and hearings, heard extensive presentations, and compiled substantial reports regarding the redistricting of South Central Colorado and H.D. 60. (Plaintiffs' Exhibits 9-20, 30, 33, 34, 47, 72, 83, 86, 87, 92, 93; Defendants' Exhibits F1, F2, F3, G, H, I, J, K, L, L1-L6). The testimony at the hearings favored preserving the Valley intact and disapproved splitting the Valley in order to increase the percentage of Hispanic voters. (See Plaintiffs' Exhibits 14, 15, 16 and Defendants' Exhibits H, I, J, L4). Testimony at the hearings revealed that Hispanics in the Valley have different political interests than Hispanic voters outside the Valley. There was no suggestion to the Commission that an Hispanic community of interest existed between the Valley, Pueblo, and Trinidad. After extensive consideration, the Commission identified certain specific goals for redistricting the southern central part of the State, among others: (1) preserving the Valley in a single house district; (2) separating the Valley from western slope districts; (3) preserving Pueblo West in a single house district; and (4) preserving Huerfano and Las Animas counties in a house district extending east, not west. (See Plaintiffs' Exhibit 17, p. 1.). The plan ultimately adopted by the Reapportionment Commission was upheld by the Colorado Supreme Court, over a challenge to H.D. 60 by two of these same Plaintiffs. In re Colorado General Assembly, 828 P.2d 185, 193 (Colo.1992). Plaintiffs now allege that the drawing of the present H.D. 60 violates § 2 of the Voting Rights Act by diluting Hispanic votes in South Central Colorado.
B. Legal Framework
Because it is the domain of the States, and not the federal courts, to conduct apportionment in the first place, federal courts are barred from intervening in state apportionment in the absence of a violation of federal law. Voinovich v. Quilter, ___ U.S. ___, *1520 ___-___, 113 S.Ct. 1149, 1156-57, 122 L.Ed.2d 500 (1993). "[R]eapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court." Growe v. Emison, 507 U.S. ___, ___, 113 S.Ct. 1075, 1081, 122 L.Ed.2d 388 (1993), citing Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 766, 42 L.Ed.2d 766 (1975). Because the States do not derive their reapportionment authority from the Voting Rights Act, but rather from independent provisions of state and federal law, the federal courts are bound to respect the States' apportionment choices unless those choices contravene federal requirements. Voinovich, ___ U.S. at ___, 113 S.Ct. at 1157 (citations omitted).
In 1982, § 2 was amended to eliminate the need to prove discriminatory intent in order to prove a violation of § 2. Thornburg v. Gingles, 478 U.S. 30, 43-44, 106 S.Ct. 2752, 2762-2763, 92 L.Ed.2d 25 (1986). Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, provides:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2) [42 USCS § 1973(f)(2)], as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
Hispanics are members of a class of citizens protected by § 1973(a). 42 U.S.C. § 1973f(2).
Section 2 claims are analyzed under a two-part framework. Magnolia Bar Ass'n., Inc. v. Lee, 994 F.2d 1143, 1146 (5th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 555, 126 L.Ed.2d 456 (1993). To prevail on a § 2 claim, the Plaintiffs must first satisfy certain threshold requirements set forth by the Supreme Court in Gingles, 478 U.S. at 30, 106 S.Ct. at 2752. Lee, 994 F.2d at 1146. Minority voters must then offer evidence of the totality of circumstances to demonstrate whether the challenged election practice "has resulted in the denial or abridgment of the right to vote based on color or race." Lee, 994 F.2d at 1146, citing Chisom v. Roemer, 501 U.S. 380, 393, 111 S.Ct. 2354, 2363, 115 L.Ed.2d 348 (1991).
A claim of vote dilution in a single member district requires proof meeting the same three threshold conditions for a dilution challenge to a multimember district. Johnson v. DeGrandy, ___ U.S. ___, ___-___, 114 S.Ct. 2647, 2654-55, 129 L.Ed.2d 775 (1994), citing Growe, ___ U.S. at ___, 113 S.Ct. at 1084; Lee, 994 F.2d at 1146. To satisfy the Gingles threshold inquiry, the minority group must prove by a preponderance of the evidence that: (1) it is sufficiently large and geographically compact to constitute a majority in a single member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it, in the absence of special circumstances, usually to defeat the minority group's preferred candidate. DeGrandy, ___ U.S. at ___-___, 114 S.Ct. at 2654-55 (citations omitted); Lee, 994 F.2d at 1146, citing Gingles, 478 U.S. at 48-51, 106 S.Ct. at 2765-2767. The three threshold factors are "necessary preconditions" for establishing vote dilution. DeGrandy, ___ U.S. at ___, 114 S.Ct. at 2657, quoting Gingles, 478 U.S. at 50, 106 S.Ct. at 2766. If these Gingles threshold factors are not present, then the challenged electoral practice cannot be considered as the cause of the minority's inability to elect its preferred candidate. Sanchez v. Bond, 875 *1521 F.2d 1488, 1492 (10th Cir.1989), cert. denied, 498 U.S. 937, 111 S.Ct. 340, 112 L.Ed.2d 305 (1990), citing Gingles, 478 U.S. at 50, 106 S.Ct. at 2766. Failure to establish any one of the Gingles factors precludes a § 2 violation. Growe, ___ U.S. at ___, 113 S.Ct. at 1084; Lee, 994 F.2d at 1146, citing Gingles, 478 U.S. at 50, 106 S.Ct. at 2766.
Because Congress intended the ultimate conclusions about equality or inequality of political opportunity to rest on "comprehensive, not limited, canvassing of relevant facts," the three Gingles preconditions may not be isolated as sufficient, standing alone, to prove vote dilution. DeGrandy, ___ U.S. at ___, 114 S.Ct. at 2657. Once the minority group satisfies the Gingles threshold inquiry, it must then offer evidence of the totality of circumstances demonstrating that the minority group has "less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice." Lee, 994 F.2d at 1146, citing 42 U.S.C. § 1973(b).
The Senate Report accompanying the 1982 amendments to § 2 listed several factors that may be relevant to the totality of circumstances inquiry in a § 2 claim:
1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority have been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public office in the jurisdiction;
Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are:
Whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.
Whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
Sanchez, 875 F.2d at 1491-92, citing S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07. In applying these factors, the court should keep certain additional considerations in mind: (1) that the list is exemplary, not exclusive the court may consider any relevant factors in reaching its conclusion; (2) that there is no requirement that any particular number of factors be proved or that a majority of them point one way or the other; and (3) that whether the political processes are equally open depends upon a searching practical evaluation of the past and present reality and upon a functional view of the political process. Sanchez, 875 F.2d at 1492, citing Gingles, 478 U.S. at 46, 106 S.Ct. at 2764. Loss of political power through vote dilution is distinct from the mere ability to win a particular election. Whitcomb v. Chavis, 403 U.S. 124, 153, 91 S.Ct. 1858, 1873, 29 L.Ed.2d 363 (1971). Ultimately, a district court can find a § 2 violation only if, "in the particular situation, the [challenged] practice operate[s] to deny the minority plaintiff[s] an equal opportunity to participate [in the political process] and to elect candidates of their choice." Lee, 994 F.2d at 1147, citing S.Rep. No. 417, 97th Cong., 2d Sess. at 30; 1982 U.S.C.C.A.N. at 207.
*1522 The court must be careful not to overemphasize the relative importance of the three Gingles factors and of historical discrimination, when measured against evidence tending to show that in spite of these facts, minority voters have an equal measure of political and electoral opportunity. DeGrandy, ___ U.S. at ___, 114 S.Ct. at 2658. A conclusion of lack of equal electoral opportunity "must still be addressed explicitly, without isolating any other arguably relevant facts from the act of judgment." DeGrandy, ___ U.S. at ___, 114 S.Ct. at 2657. The probative significance of the Gingles factors must be critically assessed after considering further circumstances with arguable bearing on the issue of equal political opportunity. DeGrandy, ___ U.S. at ___, 114 S.Ct. at 2658. Proof of the three Gingles factors is not enough "if other considerations show that the minority has an undiminished right to participate in the political process." DeGrandy, ___ U.S. at ___ n. 10, 114 S.Ct. at 2657 n. 10, quoting Baird v. Consolidated City of Indianapolis, 976 F.2d 357, 359 (7th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2334, 124 L.Ed.2d 246 (1993) ("other considerations" included the fact that while the four at-large City-County Council seats tended to go to Republicans, one of the Republicans elected was black). "As facts beyond the ambit of the three Gingles factors loom correspondingly larger, factfinders cannot rest uncritically on assumptions about the force of the Gingles factors in pointing to dilution." DeGrandy, ___ U.S. at ___, 114 S.Ct. at 2658.
C. Analysis
1. The First Gingles Factor: Geographical Compactness of Minority Group
First, the burden of proving the Gingles preconditions rests "squarely on the plaintiff's shoulders." Marylanders for Fair Representation, Inc. v. Schaefer, 849 F.Supp. 1022, 1045 (D.Md.1994), quoting Voinovich, ___ U.S. at ___, 113 S.Ct. at 1156. Second, the compactness requirement is not a trivial concept. Where a minority group is not large enough, geographically concentrated enough, or politically cohesive enough to constitute a voting majority in a single member district, a claim for vote dilution fails. Gingles, 478 U.S. at 90, 106 S.Ct. at 2787 (O'Connor, J., concurring). A showing of geographical compactness is a threshold matter because, unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by the structure or practice. Garza v. County of Los Angeles, 756 F.Supp. 1298, 1344 (C.D.Cal.1990), citing Gingles, 478 U.S. at 50 n. 17, 106 S.Ct. at 2766 n. 17 (emphasis in original).
The Plaintiffs say they have shown that "it is possible to draw a majority-Hispanic House district which unites significant Hispanic population concentrations in the San Luis Valley and Pueblo and Las Animas counties." (Plaintiffs' Post-Trial Memorandum p. 51). Plaintiffs' statistical expert, Dr. Bardwell, developed three alternative State House districts with Hispanic voting age populations of 50.03%, 51.6%, and 54.8%. The Plaintiffs concentrated on the proposed 50.03% alternative H.D. 60. The first Gingles precondition requires the court to determine whether the Hispanic population within the Plaintiffs' proposed alternative H.D. 60 is sufficiently large and geographically compact to constitute a majority in that district.
While the Plaintiffs are not required to provide a final redistricting plan for remedial purposes, the burden is on the Plaintiffs to prove that Hispanics are sufficiently numerous and geographically compact to constitute a majority in an alternative district. It is appropriate to consider the size and geographic compactness of the minority group within a reasonable alternative district as a benchmark against which to measure the existing district that is being challenged as dilutive. See Holder v. Hall, ___ U.S. ___, ___ - ___, 114 S.Ct. 2581, 2585-86, 129 L.Ed.2d 687 (1994).
Several principles guide the court in its comparison of the proposed alternative H.D. 60 and the challenged present H.D. 60. First, courts should be reluctant to order the creation of districts of "bizarre" or "dramatically irregular" shape. Marylanders, 849 F.Supp. at 1053, quoting Shaw v. Reno, ___ *1523 U.S. ___, ___, ___, ___, 113 S.Ct. 2816, 2820, 2825, 2831, 125 L.Ed.2d 511 (1993). Courts should pay attention to both geometric and substantive criteria when testing for compactness under Gingles. Marylanders, 849 F.Supp. at 1053. The Plaintiffs need not establish that the minority population is compact in an absolute or aesthetic sense; they need only establish that it is "sufficiently ... compact" to show that a majority Hispanic district is feasible. Gingles, 478 U.S. at 50, 106 S.Ct. at 2766.
Second, although a state can, and at times must, place great weight on race when redistricting, it may not do so to the exclusion of all traditional, nonracial districting principles, leaving a district that rationally can be understood only as "an effort to classify and separate voters by race." Marylanders, 849 F.Supp. at 1053, quoting Shaw, ___ U.S. at ___, 113 S.Ct. at 2828. Although no Fourteenth or Fifteenth Amendment claims are now before the court, it is necessary to bear in mind that redistricting must comply with the overriding demands of the Equal Protection Clause. DeGrandy, ___ U.S. at ___-___, 114 S.Ct. at 2666-67 (Kennedy, J., concurring). "`[A] reapportionment scheme so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race' must be subject to strict scrutiny under the Equal Protection Clause." Id. ___ U.S. at ___, 114 S.Ct. at 2667, quoting Shaw, ___ U.S. at ___, 113 S.Ct. at 2832. "Racial classifications `are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,' and are presumed invalid." Id. ___ U.S. at ___, 114 S.Ct. at 2666, quoting Shaw, ___ U.S. at ___, ___, 113 S.Ct. at 2816, 2818. "This is true regardless of `the race of those burdened or benefited by a particular classification.'" Id., ___ U.S. at ___, 114 S.Ct. at 2666, quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 494, 109 S.Ct. 706, 722, 102 L.Ed.2d 854 (1989). "Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire." Id. ___ U.S. at ___, 114 S.Ct. at 2666, quoting Shaw, ___ U.S. at ___, 113 S.Ct. at 2832. "A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid." Shaw v. Reno, ___ U.S. ___, ___, 113 S.Ct. 2816, 2827, 125 L.Ed.2d 511 (1993).
The court is also guided by the Supremacy Clause, U.S. Const. art. VI, cl. 2, and the Colorado Constitution, art. V, §§ 46-47. Colorado's 1992 reapportionment plan (including H.D. 60) was required to be consistent with six parameters in order of importance: (1) the Fourteenth Amendment Equal Protection Clause and the Fifteenth Amendment; (2) § 2 of the Voting Rights Act; (3) the Colo. Const. art. V, § 46, requiring equality of population in each house district; (4) the Colo. Const. art. V, § 47(2), requiring that districts not cross county lines except to meet § 46 requirements and requiring that the number of cities and towns contained in more than one district be minimized; (5) the Colo. Const. art. V, § 47(1), requiring each district to be as compact as possible and to consist of contiguous whole general election precincts; and (6) the Colo. Const. art. V, § 47(3), requiring preservation of communities of interest within a district.[1]In re Colorado General Assembly, 828 P.2d at 190.
*1524 a. Is the Hispanic population sufficiently large and geographically compact to constitute a majority in the Plaintiffs' proposed H.D. 60?
The Valley is geographically unique. It is surrounded by the Sangre de Cristo mountains to the east, the La Garita mountains and Cochetopa Hills to the north, and the San Juan mountains to the west. Access to the Valley is primarily by way of La Veta Pass on U.S. Highway 160 to the east, Wolf Creek Pass on U.S. Highway 160 to the west, Poncha Pass on U.S. Highway 285 to the north, and San Antonio Mountain on U.S. Highway 285 to the south. At 8,194 square miles, the Valley is the largest intermountain valley in the world. Alamosa is the largest city with a 1992 population of 7,892 and Monta Vista the second largest with 4,621. Alamosa is the recognized growth center and has the most retail trade and services activity, while Monte Vista is the agribusiness center. Alamosa is the banking, education, and health care hub of the Valley. (Testimony of Juan Gomez, Defendants' Exhibits V, W, Y, and 2K).
Approximately 58% of the Valley's floor is used as rangeland, 25% as cropland, and 11% as pastureland. Approximately 57.4% of the Valley is managed by the federal government, 3.9% is State land, and 38.5% is privately owned. Federal presence is greatest in Mineral and Saguache counties and private ownership is greatest in Costilla and Alamosa counties. The Valley's agricultural economy is dependent upon irrigation, leaving the Valley with unique water needs. Surface water supply comes from snowmelt into the Rio Grande and Conejos Rivers. Another major source of water is the extensive underground aquifer system underlying the Valley floor. (Defendants' Exhibits 2I and 2K).
Agriculture and agribusiness are the Valley's major export industries and comprise approximately 27.3% of the Valley's economy. The Valley is the nation's fifth largest potato growing region. In 1991, Valley potato production represented 92.1% of Colorado's potato crop. Most labor in the Valley is used for agricultural production and packing operations. (Defendants' Exhibit 2K).
The Valley was settled on Mexican land grants by Hispanos, Spanish-speaking people from New Mexico who considered themselves to be of Spanish, not Mexican, descent. Pueblo was not part of the "Hispano Homeland" and was settled after the Valley. (Plaintiffs' Exhibits 64, 103). Hispanics in the Valley share a common Spanish colonial cultural and religious heritage which continues to value the extended family. While the majority of Hispanics in the Valley are Catholic, many Hispanics are affiliated with various protestant churches. Catholic parishes and parishioners maintain their independence from the Pueblo Diocese of which they are members. (Defendants' Exhibit V).
Pueblo is located on I-25, approximately 120 miles from Alamosa. Most of the communities in the Valley do not receive radio and television communications from Pueblo. Pueblo is a long distance telephone call from the Valley. Pueblo and the Valley each have their own colleges. In 1990, Pueblo was the fifth largest city in Colorado, with a population of 98,640. The age composition of Pueblo has undergone significant change, resulting in an increased proportion of the elderly population. Approximately 40% of Pueblo's population is Hispanic, but the distribution is not uniform or homogeneous. Pueblo has experienced an increasing crime rate and Pueblo constituents are concerned with issues of crime and gangs. (Defendants' Exhibits V and 2M).
*1525 Hispanos who later settled in Pueblo moved from a rural, agricultural lifestyle to an urban, wage and labor lifestyle. The Valley remains a primarily agriculturally-based economy, while Pueblo retains an industrially-based economy. In 1990, approximately 70% of the Valley's population was classified as rural. Only about 1.1% of Pueblo's economy is based on agriculture. As reflected by the 1990 Census, the socioeconomic status of Hispanics in the Valley is generally lower than that of Hispanics living in Pueblo and Trinidad. Pueblo has endured significant erosion of its industrial base, but has become successful in attracting new, cleaner, light industry and creating new economic development. (Testimony of Representative Romero; Defendants' Exhibits V, W, and Y).
Judged by the principles of contiguity, preservation of communities of interest, and minimizing the splitting of counties and municipalities, the proposed alternative H.D. 60 is not compact. First, the Plaintiffs' proposed alternative H.D. 60 does not score well on mathematical tests for compactness. (See Defendants' Exhibits 2C, 2E pp. 6-7 for explanation of mathematical test methods). H.D. 60 has the largest total perimeter of any current Colorado House district. It scores the lowest on the Schwartzburg test of any district in Colorado, with a score of 3.3736, significantly below the next lowest score in the State. It scores fourth lowest in the State on the Reock test, with a score of 25.47. Judged by mathematical tests for compactness, the proposed alternative H.D. 60 is not compact. (See Defendants' Exhibits 2E pp. 6-7, 2F, 2G).
Second, the current H.D. 60 splits only one county and no municipalities. The Plaintiffs' alternative H.D. 60 splits all seven counties in its proposed district (Saguache, Alamosa, Conejos, Costilla, Rio Grande, Las Animas, and Pueblo), three cities (Alamosa, Trinidad, and Pueblo), and some Pueblo precincts. (Defendants' Exhibits 2R, 2U, 2Y, and 2Z). Plaintiff's proposed alternative H.D. 60 cuts across county lines, municipal boundaries, precinct boundaries, political boundaries, and communities.
Third, "communities of interest" represent distinctive units that share common concerns with respect to one or more identifiable features such as geography, demography, ethnicity, culture, socioeconomic status, or trade. Carstens v. Lamn, 543 F.Supp. 68, 91 (D.Colo.1982). The Valley is home to the San Luis Valley County Commissioners Association, Peace Officers' Association, and Bar Association. The Valley comprises a single judicial district, has a centralized law enforcement system, and Valley residents almost unanimously opposed the AWDI water development project. The Plaintiffs' proposed H.D. 60 splits the Valley, an identifiable community of interest.
Fourth, the Plaintiffs' proposed H.D. 60 is not contiguous. A district qualifies as contiguous if every part of the district is reachable from every other part without crossing the district boundary, i.e., the district is not divided into two or more discrete pieces. Grofman, Bernard, Criteria for Districting, 33 UCLA L.Rev. 77, 84 (1985). A resident of the proposed H.D. 60 would be required to travel outside the district to get from the Valley to Pueblo.
Fifth, the proposed H.D. 60 would erode the number of political offices held by Hispanics in the Valley and in the adjacent districts. The districts of Representatives Salaz and Romero would necessarily contain fewer Hispanic voters. Representatives Salaz and Romero presently receive substantial political support from Hispanics. Sheriff Medina would be precluded from running for reelection for his current office as Sheriff of Rio Grande County because his residence is not in the proposed alternative H.D. 60.
Sixth, the Plaintiffs' proposed H.D. 60 would impede effective political representation. (Testimony of Representative Romero, Representative Salaz, Representative Entz, Sheriff Medina, and Selso Lopez). House Representatives Romero, Salaz, and Entz expressed concern about: (1) the difficulty of meeting with constituents in such a large, geographically dispersed district, (2) the possibility that the Valley could be represented by someone not from the Valley and Pueblo could be represented by someone not from Pueblo, and (3) the risk that Hispanic representation *1526 could be significantly reduced in the adjacent House districts (H.D. 47 has had a Hispanic representative for more than ten years; Representative Romero has represented H.D. 46 for 5 terms (see Plaintiffs' Exhibit 8)). The current Representatives expressed concern that Pueblo's more urbanized interests could actually be at odds with the Valley's more agricultural interests.
Based on all of the above considerations, the court concludes that the Plaintiffs cannot meet their burden of proving the first Gingles precondition to a § 2 challenge: that the minority group is sufficiently large and compact such that a majority Hispanic district is feasible. The Plaintiffs' proposed H.D. 60 would split the Valley, diluting the political power of the Valley as a whole and Hispanics' political power within the Valley. The Plaintiffs' proposed H.D. 60 would pit the political interests of Pueblo residents against the political interests of Valley residents. Hispanics in the Plaintiffs' proposed alternative H.D. 60 do not all have the same economic, political, and social interests. The proposed alternative H.D. 60 would impede effective representation for all Hispanics in South Central Colorado.
Because the Plaintiffs have not established the first of the three "necessary preconditions" from Gingles, the court need go no further in its analysis. See DeGrandy, ___ U.S. at ___, 114 S.Ct. at 2657, quoting Gingles, 478 U.S. at 50, 106 S.Ct. at 2766; Sanchez, 875 F.2d at 1492, citing Gingles, 478 U.S. at 50, 106 S.Ct. at 2766. In the absence of a showing that the minority group is sufficiently large and geographically compact to constitute a majority in a single member district, the minority voters' inability to elect their preferred candidate cannot constitute a violation of § 2. DeGrandy, ___ U.S. at ___, 114 S.Ct. at 2657; Growe, 507 U.S. at ___, 113 S.Ct. at 1084; Lee, 994 F.2d at 1146, citing Gingles, 478 U.S. at 50, 106 S.Ct. at 2766. However, in the interests of judicial economy, the court will address the second and third Gingles preconditions and the totality of the circumstances inquiry.
2. The Second and Third Gingles Factors: Political Cohesiveness of Minority Group and Racial Bloc Voting
The purpose of inquiring into the existence of racially polarized voting is twofold: (1) to ascertain whether minority group members constitute a politically cohesive unit, and (2) to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidates. Gingles, 478 U.S. at 56, 106 S.Ct. at 2769 (citation omitted). Thus, the question whether a given district experiences legally significant racially polarized voting requires discrete inquiries into minority and white voting practices. Gingles, 478 U.S. at 56, 106 S.Ct. at 2769. The Supreme Court has unanimously reaffirmed that minority-group political cohesion and racial bloc voting never can be assumed, but specifically must be proved in each case in order to establish that a redistricting plan dilutes minority voting strength in violation of § 2. Shaw, ___ U.S. at ___, 113 S.Ct. at 2830, citing Growe, 507 U.S. ___, ___, 113 S.Ct. 1075, 1076, 122 L.Ed.2d 388 (1993); Sanchez, 875 F.2d at 1492, citing Gingles, 478 U.S. at 45-46, 106 S.Ct. at 2763-2764.
Racially polarized voting exists when there is a consistent relationship between the race of the voter and the way in which the voter votes or, in other words, where minority voters and white voters vote differently. Sanchez, 875 F.2d at 1493, citing Gingles, 478 U.S. at 53 n. 21, 62-63, 106 S.Ct. at 2768 n. 21, 2772-2773. The race of the candidate per se is irrelevant to a racial bloc voting analysis. Under § 2, it is the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate, that is important. Gingles, 478 U.S. at 67-68, 106 S.Ct. at 2774-2775 (emphasis in original). Nothing in § 2 indicates that the chosen representative of a minority group must be a minority. Sanchez, 875 F.2d at 1495. The Plaintiffs must prove on an election-by-election basis, by a preponderance of the evidence, which candidates are minority-preferred. Jenkins v. Red Clay Consolidated School District Board of Education, 4 F.3d 1103, 1126 (3d Cir.1993), cert. denied, ___ U.S. ___, 114 *1527 S.Ct. 2779, 129 L.Ed.2d 891 (1994) (citation omitted).
Legally significant white bloc voting occurs where, in the absence of special circumstances, the white bloc vote normally will defeat the combined strength of minority votes plus white "crossover" votes. Gingles, 478 U.S. at 51, 106 S.Ct. at 2766; Sanchez, 875 F.2d at 1492, citing Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766-2767. The degree of racial bloc voting that is cognizable as an element of a § 2 vote dilution claim will vary according to a variety of factual circumstances, so there is no simple doctrinal test for the existence of legally significant racial bloc voting. The amount of white bloc voting that can generally "minimize or cancel" minority voters' ability to elect representatives of their choice will vary from district to district according to a number of factors, including: (1) the nature of the allegedly dilutive electoral mechanism; (2) the presence or absence of other potentially dilutive electoral devices, such as majority vote requirements, designated posts, and prohibitions against bullet voting; (3) the percentage of registered voters in the district who are members of the minority group; and (4) the size of the district. Gingles, 478 U.S. at 56, 106 S.Ct. at 2769.
The Plaintiffs argue that, in determining whether in fact the minority group votes cohesively, court may not consider the reasons why minority voters may vote alike, citing Sanchez, 875 F.2d at 1493. The Plaintiffs asserted repeatedly at trial that the court may not consider any factors other than the race of the voter and the selection of certain candidates in determining whether racially polarized voting exists. However, the court believes it is permitted to undertake the additional inquiry into the reasons for, or causes of, voting behavior. See DeGrandy, ___ U.S. at ___, 114 S.Ct. at 2657; League of Latin American Citizens v. Clements (LULAC), 999 F.2d 831, 853-54 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 878, 127 L.Ed.2d 74 (1994). The Court in DeGrandy directs that lack of equal electoral opportunity under § 2 must "be addressed explicitly, without isolating any other arguably relevant facts from the act of judgment." ___ U.S. at ___, 114 S.Ct. at 2657. "The ultimate conclusions about equality or inequality of opportunity were intended by Congress to be judgments resting on comprehensive, not limited, canvassing of relevant facts." DeGrandy, ___ U.S. at ___, 114 S.Ct. at 2657. DeGrandy requires consideration of "comprehensive, not limited facts" that are "arguably relevant." ___ U.S. at ___, 114 S.Ct. at 2657. Under the reasoning of DeGrandy, this court believes it is permitted to examine any "arguably relevant" reasons for voting behavior. ___ U.S. at ___, 114 S.Ct. at 2657. Accordingly, without "explaining away" racial bloc voting with any one reason for voting behavior, see Sanchez, 875 F.2d at 1493, the court will not restrict its examination to Dr. Bardwell's bivariate analysis, but will also consider Dr. Zax's multivariate analysis. See (LULAC), 999 F.2d at 853-54.
Both the statistical evidence (Defendants' Exhibits S, T, and 2Q) and the lay witness testimony established that many factors influence voting behavior and electoral success in H.D. 60. Although the Plaintiffs assert that their only real candidate of choice must be a Hispanic Democrat, witnesses for both the Plaintiffs and the Defendants acknowledged that many different considerations influence their votes. There is substantial evidence that the following factors have influenced voting patterns in H.D. 60: (1) party affiliation of the candidate; (2) incumbency of the candidate; (3) the candidate's track record, if any, in political office; (4) the candidate's platform; (5) the candidate's name recognition in the Valley; (6) campaign strategy; (7) campaign finances; (8) effort put into campaigning and time spent campaigning door-to-door; (9) personal characteristics of the candidate, including qualifications, reputation, speaking ability, residence, family ties, gender, personal popularity, ethnicity, and visibility in the community; (10) identification of the candidate with past political scandals; and (11) the voter's ethnicity.
The evidence demonstrated that while Hispanics in H.D. 60 vote cohesively on some issues of particular universal interest, Hispanics vote differently on other issues and candidates. Approximately 20% of Hispanics *1528 in H.D. 60 are registered as Republicans and 80% as Democrats. Approximately 56% of Anglos in H.D. 60 are registered as Republicans and 44% are registered as Democrats. Approximately 16% of the voters in H.D. 60 are registered Independent. Numerous Hispanic Valley residents and voters testified that their political interests are not the same as the political interests of the Plaintiffs. Hispanics in the Valley cannot be classified as one distinct political group with the same political interests.
The Colorado Reapportionment Commission relied on data that approximately 20% of Anglo voters in the Valley "cross over" to vote for the Hispanic candidate-of-choice. Dr. Bardwell estimated a white crossover vote of 13%-17%. Based on the Anglo crossover vote and all the evidence, statistical and anecdotal, the court concludes that the Plaintiffs have not proven that a legally significant white bloc vote normally defeats the combined strength of minority votes plus white "crossover" votes.
The court found other significant problems, flaws, and deficiencies in the Plaintiffs' statistical conclusions regarding Hispanic political cohesiveness and white bloc voting. But, the court need not explore those concerns in depth at this time. Under DeGrandy, even if the court assumes that the Plaintiffs have proved each and every one of the three Gingles preconditions, the court must go on to make a "totality of circumstances" determination. ___ U.S. at ___ - ___, 114 S.Ct. at 2656-58.
3. The Totality of Circumstances Inquiry
Throughout the trial, the Plaintiffs argued that it is almost impossible to lose a § 2 challenge on the totality of circumstances inquiry when the three Gingles preconditions have been met. The Supreme Court has stated otherwise in DeGrandy, ___ U.S. at ___ - ___, 114 S.Ct. at 2656-58. Gingles "clearly declined" to hold the three preconditions sufficient in combination to prove a § 2 claim, "either in the sense that a court's examination of relevant circumstances was complete once the three factors were found to exist, or in the sense that the three in combination necessarily and in all circumstances demonstrated dilution." DeGrandy, ___ U.S. at ___, 114 S.Ct. at 2657. Accordingly, the court must proceed to the "totality of circumstances" inquiry.
Again, the Senate Report list of nine factors to consider is not exclusive the court may consider any relevant factors in reaching its conclusion and no particular number of factors need be proved. Sanchez, 875 F.2d at 1492, citing Gingles, 478 U.S. at 46, 106 S.Ct. at 2764. Whether the political processes are equally open depends upon a searching practical evaluation of the past and present reality and upon a functional view of the political process. Sanchez, 875 F.2d at 1492, citing Gingles, 478 U.S. at 46, 106 S.Ct. at 2764. A § 2 violation may be found only if the challenged practice operates to deny the minority plaintiffs an equal opportunity to participate in the political process and to elect candidates of their choice. Lee, 994 F.2d at 1147 (citation omitted).
a. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, vote, or otherwise to participate in the democratic process;
The evidence revealed that Hispanics in South Central Colorado, like many other ethnic groups in the United States, have experienced certain social, economic, and political effects of discrimination. The only evidence of "official" discrimination, however, involved activity by the Clerk and Recorder of Saguache County approximately eighteen years ago. The State properly pursued an investigation into his alleged activities and the situation was ultimately corrected. While the Plaintiffs perceived the English Only Amendment in 1988 to be based on discriminatory motives, the Amendment was soundly defeated by a solid coalition of Hispanic and Anglo voters. The only recent allegation of "official" discrimination involved the loss of some Hispanic voter registrations in approximately 1986. (Testimony of Jennie Sanchez).
b. the extent to which voting in the elections of the state or political subdivision is racially polarized;
When the Plaintiffs' allegations of racially polarized voting are evaluated by the multivariate *1529 analysis, the evidence reveals that, while ethnicity plays a role in voting behavior, it is only one of many other factors that contribute to voting behavior. Taking into account the problems with Dr. Bardwell's bivariate analysis (overly restrictive bivariate analysis, statistical bias, use of 1990 census data, type of races analyzed too narrowly defined, use of absentee ballots, underestimated impact of white crossover votes, failure to consider impact on adjacent districts, and the occurrence of impossible estimates, among others), the court is not convinced that the evidence specifically proves legally significant racially polarized voting in H.D. 60. (See part C. 2. of this Memorandum Opinion and Order).
c. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
The parties did not introduce any evidence as to this factor.
d. if there is a candidate slating process, whether the members of the minority have been denied access to that process;
The parties did not introduce any evidence as to this factor.
e. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment, and health, which hinder their ability to participate effectively in the political process;
According to the 1990 Census data, Anglos in the Valley have higher education and income levels than Hispanics, as well as lower unemployment and poverty rates than Hispanics. In the ten years between the 1980 Census and the 1990 Census, unemployment and poverty rates for Hispanics have remained stable, while unemployment and poverty rates for Anglos have increased. According to estimates, Hispanics in H.D. 60 turn out to vote at rates only slightly less (1%) than non-Hispanics. (Testimony of Dr. Bardwell). Hispanic voter registration is virtually equal to Anglo voter registration. Hispanic voter turnout in H.D. 60 is substantial; equivalent to Anglo voter turnout rates statewide and twice as high as Hispanic voter turnout rates statewide.
Many Hispanic long-time residents of the Valley testified at the trial that H.D. 60 does not dilute Hispanic voting power. They testified that, while racial discrimination was more prevalent in the Valley in the past, today Hispanics have equal access to education, jobs, and loans. Hispanics are teachers, business owners, elected officials, and party officials. The Plaintiffs themselves have been successful in establishing convenient voter registration hours and in substantially increasing Hispanic voter registration and turnout. Even assuming that Hispanics in the Valley have borne the effects of past socioeconomic disparities, the evidence demonstrates that any past discrimination does not significantly impede Hispanics' ability today to participate effectively in the political process in H.D. 60.
f. whether political campaigns have been characterized by overt or subtle racial appeals;
Plaintiffs rely on evidence of a few comments made in the past by private individuals. Some of these allegedly discriminatory comments were hearsay, some were made anonymously, and some were so remote in time as to carry little weight. The Plaintiffs also rely on the publication of a list of absentee voters by a local newspaper as the most recent overt racial appeal against Hispanic voters. As the identity of absentee voters is a matter of public record, this incident carries little weight.
g. the extent to which members of the minority group have been elected to public office in the jurisdiction;
The evidence indicated that Hispanics experience no serious impediments to participating in the political process today. Hispanics in H.D. 60 actively participate in the Democratic and Republican parties. Hispanics control the Democratic party in the Valley. Hispanics have run for and been elected to numerous political offices in the Valley. Hispanics are elected and appointed to local, county, and state-level boards, commissions, *1530 and offices. The evidence shows that Hispanics have served and continue to serve on local school boards, in local mayoral offices, on rural electric boards, on boards of county commissioners, in sheriff's offices, and in other county offices.
Hispanics in H.D. 60 are active participants in both the Republican and Democratic parties. Hispanics have been delegates to Republican and Democratic state and national conventions. One of the Plaintiffs has held political office in the Valley and two of the Plaintiffs have held office in the Democratic party. The Plaintiffs have conducted successful campaigns to improve Hispanic voter registration, Hispanic voter turnout, and Hispanic absentee voting. While the Plaintiffs' Hispanic Democratic candidates of choice have not yet won the H.D. 60 representative seat, the Plaintiffs' Hispanic Democratic candidates of choice have consistently been nominated by the Democratic party and won the Democratic primaries. (Testimony of Jennie Sanchez).
h. Whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group;
While the Plaintiffs point to evidence that several local public officials in H.D. 60 have been non-responsive to particularized Hispanic needs, the court believes that evidence of the responsiveness of H.D. 60's state legislator is the most probative. The Plaintiffs' primary criticisms of Representative Entz are that he did not speak out strongly enough against the English Only Amendment, he did not speak out strongly enough in favor of bilingual education for non-English speaking children, and he does not attempt to meet and talk with Democrats in Center. (Testimony of Jennie Sanchez). The evidence indicates, however, that Representative Entz has been responsive to the needs of all his constituents, including Hispanics. Representative Entz has worked on education issues, housing issues, and economic development issues. He worked against the English Only Amendment, has worked to obtain funding through grants for local governments within H.D. 60 (Defendants' Exhibit B), has worked on a 1994 school financing act to obtain equality in school financing, and has helped constituents obtain jobs. Representative Entz has supported Hispanic candidates for office, has worked on a Scenic Byway designation, has supported the Cumbres & Toltec Railroad enterprise, and has worked in cooperation with the Hispanic representatives in the Legislature. Entz sees the most important issues for H.D. 60 as economic development, education, and water. He has worked continuously to attract agriculturally based entities to H.D. 60.
i. Whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous;
There is no evidence that the State's asserted reasons for drawing and defending H.D. 60 are maintained on a tenuous basis as a pretext for discrimination. The evidence shows that the Colorado Reapportionment Commission followed the dictates of § 2 in drawing H.D. 60 from the beginning to the end of the reapportionment process. H.D. 60 as currently drawn actually increased the Hispanic voting age population by more than 5% over the previous district. After numerous meetings and public hearings, where sentiment was overwhelming to keep the Valley politically whole and intact, the Commission adopted H.D. 60 as currently drawn and the Colorado Supreme Court approved it over objections similar to those brought by the Plaintiffs here. Reapportionment is certainly always a delicate balancing act between the Voting Rights Act and many other considerations. It cannot properly be said that the State's reasons for drawing H.D. 60 were tenuous.
D. Conclusion
Under the Plaintiffs' theory of this case, "votes that do not control a representative are essentially wasted; those who cast them go unrepresented and are just as surely disenfranchised as if they had been barred from registering.... Such conclusions, of course, depend upon a certain theory of the `effective' vote, a theory that is not inherent in the concept of representative democracy itself." Holder, ___ U.S. at ___, 114 S.Ct. at 2595 *1531 (Thomas, J., concurring in the judgment). The Plaintiffs' position gives "credence to the view that race defines political interest." Id. ___ U.S. at ___, 114 S.Ct. at 2597. The Plaintiffs position leads us "towards a system that is indistinguishable in principle from a scheme under which members of different racial groups are divided into separate electoral registers and allocated a proportion of political power on the basis of race." Id. ___ U.S. at ___, 114 S.Ct. at 2598. The Plaintiffs would have the court assume "that members of the racial group must think alike and that their interests are so distinct that the group must be provided a separate body of representatives in the legislature to voice its unique point of view. Such a `system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant.'" Id. ___ U.S. at ___, 114 S.Ct. at 2599, citing Wright v. Rockefeller, 376 U.S. 52, 67, 84 S.Ct. 603, 611, 11 L.Ed.2d 512 (1964). Such a system generates "antagonisms that relate to race or religion rather than to political issues ...; communities seek not the best representative, but the racial or religious partisan." Id. ___ U.S. at ___, 114 S.Ct. at 2599, citing Wright, 376 U.S. at 67, 84 S.Ct. at 611. As a practical political matter, the Plaintiffs' urging "to segregate political districts by race can only serve to deepen racial divisions by destroying any need for voters or candidates to build bridges between racial groups or to form voting coalitions." Id. ___ U.S. at ___, 114 S.Ct. at 2599. The Plaintiffs' theory of the case reflects, as Justice Thomas more ably describes:
"only one possible understanding of effective exercise of the franchise, an understanding based on the view that voters are `represented' only when they choose a delegate who will mirror their views in the legislative halls.... But it is certainly possible to construct a theory of effective political participation that would accord greater importance to voters' ability to influence, rather than control, elections. And especially in a two-party system such as ours, the influence of a potential `swing' group of voters composing 10%-20% of the electorate in a given district can be considerable.... Some conceptions of representative government may primarily emphasize the formal value of the vote as a mechanism for participation in the electoral process, whether it results in control of a seat or not.... Under such a theory, minorities unable to control elected posts would not be considered essentially without a vote; rather, a vote duly cast and counted would be deemed just as `effective' as any other. If a minority group is unable to control seats, that result may plausibly be attributed to the inescapable fact that, in a majoritarian system, numerical minorities lose elections."
Id. ___ U.S. at ___ - ___, 114 S.Ct. at 2595-96.
Treating equal political opportunity as the focus of the inquiry and examining the three Gingles preconditions and the totality of the circumstances, the court concludes that H.D. 60 as presently drawn does not deny Hispanic voters equal political opportunity under the meaning of § 2 of the Voting Rights Act.
Accordingly,
IT IS ORDERED that judgment is entered in favor of the Defendants and against the Plaintiffs on the complaint alleging violation of § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973.
NOTES
[1] Colo. Const. art. V, § 46 provides:
Senatorial and representative districts. The state shall be divided into as many senatorial and representative districts as there are members of the senate and house of representatives respectively, each district in each house having a population as nearly equal as may be, as required by the constitution of the United States, but in no event shall there be more than five percent deviation between the most populous and the least populous district in each house.
Colo. Const. art. V, § 47 provides:
(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap.
(2) Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Within counties whose territory is contained in more than one district of the same house, the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible. When county, city, or town boundaries are changed, adjustments, if any, in legislative districts shall be as prescribed by law.
(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261524/ | 286 Pa. Superior Ct. 232 (1981)
428 A.2d 657
COMMONWEALTH of Pennsylvania,
v.
Alan N. FELS, Appellant.
Superior Court of Pennsylvania.
Argued March 10, 1980.
Filed April 20, 1981.
*233 Donald M. Moser, Philadelphia, for appellant.
Joseph Frontino, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
Before SPAETH, BROSKY and VAN der VOORT, JJ.
VAN der VOORT, Judge:
Appellant was charged in Bucks County with possession of cocaine with intent to deliver. He was also indicted in the Federal Court for the Eastern District of Pennsylvania with conspiring to distribute cocaine. All charges emanate from the same criminal episode which occurred on January 7, 1979.
On April 10, 1979, following dismissal of a pretrial motion to suppress, the Federal Court accepted appellant's plea of guilty, conditioned, however, upon a reservation of appellant's right, after sentencing, to appeal the denial of his pretrial motion to suppress.[1]
On April 18, 1979, appellant filed a motion to dismiss the prosecution in Bucks County on the grounds of double jeopardy.[2] The Bucks County Court dismissed the motion to dismiss and appellant has appealed the order to this Court. *234 The federal conviction has since been affirmed. United States v. Fels, 620 F.2d 290 (3rd Cir. 1980); cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980).
The lower court in its opinion recognized that the Pennsylvania law holds that one is placed in double jeopardy if he has "received an acquittal or its equivalent or a sentence which is no longer subject to attack." The court cited Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964); Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962); Commonwealth ex rel. Farrow v. Martin, 387 Pa. 449, 127 A.2d 660 (1956); Commonwealth ex rel. Walker v. Banmiller, 186 Pa.Super. 338, 142 A.2d 758 (1958); and others. The court however, concluded that in the present case the plea in the Federal Court was a "conditional plea of guilty", and that the plea of double jeopardy in the Bucks County proceedings was therefore premature.
Appellant contends that the plea in the Federal Court proceedings and sentencing amounts to a final adjudication of guilt, subject only to an appellate review of the legal question involved in appellant's pretrial motion to suppress. Appellant argues that his legal posture in the Federal Court is the same following the entry of the conditional plea as if he had been found guilty by a jury with the legal question involved in the pretrial motion still preserved for appellate review. There appears to be merit to this argument.
We note, further, that the procedure of entering conditional pleas of this general type has been approved by the Third Circuit Court of Appeals in United States v. Moskow, 588 F.2d 882, 887 (1978); and United States v. Zudick, 523 F.2d 848, 851 (1975).
The trial judge pointed out in his opinion that "is now abundantly clear that the double jeopardy provisions of the Fifth Amendment of the United States Constitution are enforceable in State prosecutions by virtue of the Fourteenth Amendment . . ." (lower court's opinion, pp. 2-3) [citations deleted], protecting the accused "against a second prosecution for the same offense after acquittal, . . . after conviction and against multiple punishments for the same *235 offense." Commonwealth v. Henderson, 482 Pa. 359, 393 A.2d 1146 (1978).
The lower court also noted that this principle has been incorporated in the Pennsylvania Crimes Code by enactment of 18 Pa.C.S. § 111 which reads in pertinent part as follows:
When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:
(1) The first prosecution resulted in an acquittal or in a conviction as defined in Section 109[[3]] of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is based on the same conduct unless:
(i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
* * * * * *
*236 (2) The prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant . . . .
The issue of joint jurisdiction has been before Pennsylvania courts on a number of occasions. See Commonwealth v. Mascaro, 260 Pa.Super. 420, 394 A.2d 998 (1978); Commonwealth v. Grazier, 481 Pa. 622, 393 A.2d 335 (1978); and Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971).
The facts in this present case establish that the appellant's conduct on January 7, 1979 exposed him to the concurrent jurisdiction of the Pennsylvania and of the United States. He was first called to trial and thus put in jeopardy, by the United States. Appellant was convicted and sentenced pursuant to a plea of guilty, subject only to a reservation of a legal question for resolution by the Federal Appellate Court. At this point in time that legal question having been resolved, the federal procedure has resulted in a "conviction", as that word is used in our 18 Pa.C.S. § 111(1) as quoted above. The federal conviction has not been "reversed or vacated." Accordingly, the prosecution in the Pennsylvania court is barred by 18 Pa.C.S. § 111, supra.
Order vacated and case remanded with instructions to grant the Motion to Dismiss.
SPAETH, J., files a concurring opinion.
SPAETH, Judge, concurring:
I agree with the majority that after his conditional plea of guilty had been accepted by the federal court, appellant was in the same position as if he had been convicted by a jury and had properly preserved issues for appellate review. I also agree with the result in this case because appellant's federal conviction is now final. United States v. Fels, 620 F.2d 290 (3d Cir.) (lower court affirmed without opinion), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). However, when appellant made his motion in the lower court, and also when he took his appeal to this court, his federal conviction was not yet final. I write separately *237 to explain what I think a Pennsylvania court should do when faced with that situation. I believe we should follow what might be described as a "wait and see" approach.
Section 111(1) provides that a subsequent prosecution in this Commonwealth is barred by a prior prosecution in another jurisdiction if the prior prosecution "resulted in an acquittal or a conviction as defined in section 109 of this title. . . ." Typically, when an appellate court finds that a lower court erred in not granting the defendant's pre-trial motion to suppress evidence, the appellate court vacates the judgment of sentence and grants the defendant a new trial. This, however, is not an "acquittal," for section 109(1) defines an "acquittal" as a "prosecution [which] resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction." Neither is it a "conviction," for section 109(3) defines a "conviction" as a "prosecution [which] resulted in a judgment of conviction which has not been reversed or vacated."
Thus, it is inaccurate to say that an appeal of a conviction must result in either an "acquittal" or a "conviction." Instead, the result cannot be known in advance. Accordingly, when an appeal is taken from a conviction, the prosecutor must wait and see what the appellate court does before he can know whether he may proceed with a subsequent prosecution. So long as the appeal is pending, and the conviction therefore remains undisturbed, the subsequent prosecution is barred. If the appellate court affirms the conviction, or if it determines that there was insufficient evidence to warrant the conviction, the subsequent prosecution will be forever barred. If, however, the appellate court reverses or vacates the conviction and remands for new trial, the subsequent prosecution may proceed.
Although it is, of course, our statutory provision, 18 Pa.C. S.A. § 111, that controls this case, I am confirmed in my belief that a "wait and see" approach is proper by an *238 examination of the law in other states. To hold that a subsequent prosecution is forever barred by a prior conviction still on direct appeal would be to take a decidedly minority view. The editors of American Law Reports summarize an Annotation devoted to this point by saying:
The authorities are divided as to whether a plea of former conviction is available while an appeal from the judgment of conviction is pending. However, this conflict is more apparent than real. Even in jurisdictions in which the plea is not available while an appeal is pending from the judgment of conviction, the defendant is not without remedy, because in these jurisdictions he may move for a continuance of the second trial to await the disposition of the appeal from the judgment of conviction. On the other hand, in some jurisdictions in which the plea of former conviction is available notwithstanding the pendency of an appeal from the judgment of conviction, it seems that the plea results only in a stay of the proceeding in which the plea was made.
Annot: Conviction From Which Appeal is Pending as Bar to Another Prosecution for Same Offense, 61 A.L.R.2d 1224, 1224 (1958) (footnotes omitted).
Finally, I believe that a "wait and see" approach represents an appropriate balance between the defendant's interest in not being tried twice for the same crime and the Commonwealth's interest that a prosecution by some sovereign, be it the Commonwealth, the United States, or a sister state, should proceed to a point of decision that has withstood appellate scrutiny. Because appellant's federal conviction has now withstood the scrutiny of the United States Court of Appeals for the Third Circuit and the United States Supreme Court has declined further review, the Commonwealth's interest in this case has been vindicated.[1]
NOTES
[1] The Federal Court sentenced appellant to a 3 year term on June 1, 1979, and appellant has filed an appeal to the Third Circuit. The appeal had not yet been decided as of the time appellant filed his brief in our Court.
[2] At the argument on this Motion to Dismiss, the Commonwealth contended that there may have been two separate offenses, only one of which was disposed of in the Federal Court. The Commonwealth did not pursue this contention below and has not filed a brief at the appellate level, and we assume that this contention has been abandoned.
[3] 109. When prosecution barred by former prosecution for the same offense
When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.
* * * * * *
(3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two cases failure to enter judgment must be for a reason other than a motion of the defendant.
* * * * * *
[1] A careful reading of appellant's brief shows that appellant himself does not claim that the Commonwealth should be barred from trying him if his federal conviction were set aside. See Brief for Appellant at 6, 13, 15. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261559/ | 240 P.3d 514 (2010)
The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Ellery EMERT, Defendant-Appellee.
No. 09CA0991.
Colorado Court of Appeals, Div. II.
June 10, 2010.
*516 Pete Hautzinger, District Attorney, Christopher Nerbonne, Deputy District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant.
Michael J. Heaphy, P.C., Michael J. Heaphy, Vail, Colorado, for Defendant-Appellee.
Opinion by Judge CASEBOLT.
In this criminal proceeding, the People appeal the trial court's order granting defendant, Ellery Emert, a new trial on his conviction for possession of a weapon by a previous offender (POWPO), as well as the court's ruling that, because of an incorrect advisement under People v. Curtis, 681 P.2d 504 (Colo.1984), defendant's testimony was involuntary and therefore is inadmissible in the retrial of the POWPO charge. We remand for further proceedings.
I. Facts
The prosecution charged defendant with (1) possession of more than one gram of a schedule II controlled substance under section 18-18-405(1) & (2)(a)(I)(A), C.R.S.2009; (2) special offender-deadly weapon under section 18-18-407(1)(f), C.R.S.2009; (3) menacing with a deadly weapon under section 18-3-206(1)(a) & (b), C.R.S.2009; (4) second degree aggravated motor vehicle theft under section 18-4-409(4)(b), C.R.S.2009; (5) POWPO under section 18-12-108(1), C.R.S.2009; (6) violation of bail bond conditions under section 18-8-212(1), C.R.S.2009; and (7) five counts of being a habitual criminal under section 18-1.3-801, C.R.S.2009. The trial court dismissed count four at a preliminary hearing and also granted defendant's motion to sever counts five and six, ordering separate trials for each of them.
During the trial on counts one through three, the court gave defendant a standard Curtis advisement. As pertinent here, the court told defendant that if he chose to testify, the prosecution would be allowed to cross-examine him and to ask him about any prior felony convictions, and that, if a felony conviction were disclosed to the jury, then the jury could be instructed to consider the felony only as it bore upon his credibility. Defendant initially decided not to testify.
During presentation of defendant's case-in-chief, his wife testified. The next day, the prosecution sought to introduce rebuttal evidence that defendant had communicated with his wife from the jail by telephone during the trial, and that they had discussed the trial and her expected testimony, contrary to the court's sequestration order. When it became clear that the trial court would allow the evidence, defendant changed his mind and decided to testify. The court repeated the Curtis advisement previously given. During his testimony, defendant admitted that he was the owner of the vehicle in which the weapon was found, and that he had been convicted of the felony named in the POWPO charge.
The jury found defendant not guilty of menacing with a deadly weapon, but was unable to reach a verdict on counts one and two. The court declared a mistrial on counts one and two and scheduled a retrial.
Several weeks later, trial began on the severed POWPO charge. Over defendant's objection, the prosecution presented his testimony from the first trial in which he had admitted ownership of the vehicle where a deadly weapon had been found and acknowledged that he had been convicted of a previous felony. Defendant chose not to testify. The jury returned a guilty verdict on the POWPO charge.
Defendant moved for a new trial on the POWPO charge, asserting that he had received an improper Curtis advisement in the first trial. In addition, he contended that, should a new trial occur, his previous testimony should be excluded. The trial court found that the Curtis advisement was defective and that, because of the advisement, defendant's previous testimony was involuntary. It also determined that defendant's previous testimony was inadmissible in future proceedings. This prosecutorial appeal ensued.
II. Standard of Review
Ordinarily, we review the trial court's determination to grant a new trial for an abuse of discretion. People v. Whitman, 205 P.3d 371, 386 (Colo.App.2007). However, *517 when that determination involves a question of law, we review the court's conclusion of law de novo. People v. Wadle, 77 P.3d 764, 767 (Colo.App.2003), aff'd, 97 P.3d 932 (Colo. 2004).
Here, because the trial court's decision is based upon its legal determination that a new trial is required under Curtis, 681 P.2d at 511, and People v. Chavez, 621 P.2d 1362, 1365 (Colo.1981), we will review de novo the trial court's decision.
III. Applicable Law
An accused has the right, under the Fourteenth Amendment and Colo. Const. art. II, § 25, to testify in his own defense. Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Curtis, 681 P.2d at 511; Chavez, 621 P.2d at 1365. In Colorado, the right to testify has been found to be so inherently personal and basic that the fundamental fairness of a criminal trial is called into question if this right is surrendered by anyone other than the accused, or if the accused relinquishes this right in any manner other than by a voluntary, knowing, and intentional waiver. See Curtis, 681 P.2d at 511. Accordingly, a defendant must be advised of the right to testify by the trial court, and before accepting the waiver of that right, the court must ensure that the defendant's waiver is intelligently and competently made. Roelker v. People, 804 P.2d 1336, 1338 (Colo.1991).
A standard Curtis advisement requires the trial court to advise a criminal defendant, outside the presence of the jury, that
he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him, that if he has been convicted of a felony the prosecutor will be entitled to ask him about it and thereby disclose it to the jury, and that if the felony conviction is disclosed to the jury then the jury can be instructed to consider it only as it bears upon his credibility.
Curtis, 681 P.2d at 514. An advisement that incorrectly informs a defendant about the consequences of testifying is defective and may justify a new trial. See People v. Harding, 104 P.3d 881, 888-89 (Colo.2005); People v. Chavez, 853 P.2d 1149, 1152 (Colo.1993) (Chavez II).
However, the prescribed advisement is not meant for the "narrow class of cases where a prior felony conviction is an element of the crime charged." Curtis, 681 P.2d at 514 n. 12. Thus, in People v. Rivera, 964 P.2d 561, 564 (Colo.App.1998), a case involving a POWPO charge, a division of this court held that, because a prior conviction was an element of the crime, the trial court had not erred when it failed to advise the defendant that, should he elect to testify and should the prosecutor bring out his prior convictions, the jury would be instructed to consider those convictions only as they bore on his credibility. The division noted that, if the defendant had chosen to testify, his admission of prior felonies would have been used not just to challenge his credibility, but as corroborative evidence that he had committed a prior felony, an essential component of the POWPO crime. See People v. Ziglar, 45 P.3d 1266, 1271 (Colo.2002) (approving of Rivera and holding that a defendant's statements made during a habitual criminal sentencing phase concerning his prior convictions are admissible as substantive evidence in that phase of the proceeding).
IV. Application
The People contend that defendant was properly advised of his right to testify at the first trial. They further assert that there is no requirement for a trial court to advise a defendant about all collateral consequences of a decision to testify, including those that may arise in subsequent trials on severed counts. The People also argue that a defendant who testifies, knowing there is a severed count for which a prior felony conviction is an element, should be expected to understand that his testimony could be used against him without a separate advisement from the court. They also assert that the trial court incorrectly determined that the procedure mandated for habitual criminal proceedings should apply in cases in which *518 the fact of a prior felony conviction is an element of the offense.
We agree with the People that the trial court's "prior felony" advisement was correct and not misleading as it applied to the three charges being tried in the first trial. However, where, as here, a severed POWPO charge is pending and untried, a trial court's advisement that a prior felony can only be used for impeachment is misleading because a prior felony is a vital component of the prosecution's POWPO case, see Rivera, 964 P.2d at 564, and because such an advisement is not meant for the "narrow class of cases where a prior felony conviction is an element of the crime charged." Curtis, 681 P.2d at 514 n. 12.
This conclusion is not affected by the severance of the POWPO charge from the trial of counts one through three. While it is true that the severed POWPO charge had yet to be tried when the trial court gave defendant the Curtis advisement, defendant's testimony in the first trial became admissible in the subsequent trial as an admission by a party opponent under the provisions of CRE 801(d)(2)(A), and did not violate his Fifth Amendment privilege against self-incrimination. See People v. Carlson, 677 P.2d 390, 392 (Colo.App.1983), aff'd, 712 P.2d 1018 (Colo.1986). Accordingly, although a different jury would and did hear the POWPO case, the court's Curtis advisement was nevertheless still misleading because defendant was specifically told that his prior conviction would be used only for credibility purposes, a statement that proved untrue when the court admitted his prior testimony in the trial of the POWPO charge.
Given our conclusion, we decline to further address the People's contention that there is no requirement for a trial court to advise a defendant about the collateral consequences of a decision to testify. We are not holding that a trial court must advise a defendant facing a POWPO charge of multiple potential consequences if he or she decides to testify. We hold only that, when a severed POWPO charge is pending, a trial court misleads a defendant when it gives that part of the Curtis advisement dealing with a testifying defendant's prior felony convictions, unless it also provides a further explanation about the use of the felony in the pending POWPO trial.
Contrary to the People's contention, in its order granting defendant a new trial on the POWPO charge, the trial court did not hold that the procedures applicable to habitual criminal proceedings should apply in these circumstances. Instead, the trial court simply noted that the prosecution must prove beyond a reasonable doubt defendant's prior conviction by evidence independent of defendant's testimony in the first trial, essentially because defendant was not advised before testifying at the trial on counts one through three that the People might be allowed to use his testimony in the later POWPO trial.
We also are not persuaded by the People's theoretical argument that at the moment defendant took the stand in the first trial, the legal rationale for the severance of the POWPO count disappeared, and therefore there was no logical reason to exclude that testimony from the POWPO trial. Here, the trial court gave a misleading advisement to defendant about the use of his prior conviction before he chose to testify. Had he been properly advised, as the trial court noted,
his decision to testify at the trial on counts one through three might have been different. That is, [defendant] may have made the decision not to testify if he knew his testimony might be used against him in the trial of [the POWPO charge]. While the court advised the defendant that the jury on counts one through three could only consider a felony conviction as it bore upon his credibility, it did not advise him that his prior felony conviction could be used and considered by another jury to establish an element of a substantive offense.
Moreover, the People did not argue to the trial court that counts five and six, previously severed, should be consolidated into the trial on counts one through three.
However, the trial court's conclusion that defendant might have made a different decision had he been properly advised is insufficient, on this record, to require a new trial. We conclude that defendant must *519 demonstrate that he detrimentally relied upon the trial court's misleading advisement concerning use of his prior conviction. Thus, we remand so that the trial court may determine this issue.
When a defendant is misinformed by the trial court about the consequences of a decision he or she must make, or the government has made a promise to or agreement with a defendant concerning certain consequences, the defendant is entitled to relief if he or she can demonstrate detrimental reliance. See People v. Fisher, 657 P.2d 922, 928-29 (Colo.1983) (it is the intentional relinquishment or waiver of a constitutional right that gives rise to an accused's due process claim for enforcement of the governmental promise); People v. Weare, 155 P.3d 527, 531 (Colo.App.2006) (due process requires enforcement of a governmental promise if an accused has reasonably and detrimentally relied on the promise); People v. Nguyen, 80 P.3d 903 (Colo.App.2003) (if a trial court misinforms a defendant concerning collateral consequences of a plea agreement, and the defendant relies upon such statements to his detriment, the plea may be invalid); cf. People v. Wilbur, 890 P.2d 113, 118-19 (Colo. 1995) (trial court's interpretation of possible release date from prison when defendant pleaded guilty did not create an enforceable promise; accordingly, court did not need to determine whether there was reasonable and detrimental reliance).
To establish detrimental reliance, the accused must show that he or she performed some tangible act, or relinquished some significant right, in reliance upon the promise, and that the act or relinquishment so induced was detrimental to the accused's right to fair treatment and due process. Lucero v. Goldberger, 804 P.2d 206, 210 (Colo.App.1990); see People v. Harris, 914 P.2d 425, 433 (Colo.App.1995) (that an on-the-record advisement may be defective does not necessarily require reversal when a defendant chooses to testify, citing People v. Mozee, 723 P.2d 117, 125 (Colo.1986) (absence of advisement of the right not to testify did not automatically render defendant's waiver of privilege against self-incrimination invalid or require, in and of itself, that a new trial be granted)).
Here, defendant has not yet demonstrated that he reasonably and detrimentally relied upon the trial court's misleading advisement. He should be permitted to do so in a manner similar to the procedure outlined in People v. Blehm, 983 P.2d 779 (Colo.1999).
In Blehm, the court stated that the proper response to an allegation concerning an ineffective waiver of the right to testify is a postconviction hearing in which the trial court can determine, as a matter of fact, whether the defendant had fully understood the consequences of testifying and had made a valid waiver of the right to testify. Id. at 791-92. Such a hearing allows the introduction of facts outside the record on direct appeal that may bear upon the effectiveness of a waiver. Id. This process also allows an opportunity for the prosecution to establish that, although an advisement was defective, the defendant nevertheless fully understood his right to testify and the consequences that might flow from a decision to testify. Id.
Although the Blehm hearing procedure is applicable when a defendant raises a claim of invalid waiver of his right to testify, we nevertheless conclude that the same process should apply when a defendant asserts that his decision to exercise his right to testify was not knowing, voluntary, and intelligent. See Harding, 104 P.3d at 888 (in context of an incorrect Curtis advisement concerning the consequences of testifying, court reviewed the postconviction hearing to determine whether waiver was voluntary, knowing, and intelligent irrespective of the defective advisement).
Accordingly, a remand is required for the trial court to hold a hearing to determine whether defendant actually would have made a different decision had the misleading portion of the advisement not been given. In doing so, the court may consider all the surrounding circumstances, including defendant's acquittal on the menacing charge. If the court concludes that he would have, then the court's order granting a new trial on the POWPO charge stands affirmed. If the court concludes defendant would not have made a different decision, the court should *520 vacate its new trial order and defendant's POWPO conviction shall be reinstated.
V. Use of Defendant's Testimony on Retrial
We further conclude the trial court must reconsider whether defendant's testimony during the first trial is admissible when and if further trials are held.
If the court determines defendant would have testified anyway, then he will not receive a new trial on the POWPO charge, and his testimony concerning the prior conviction is admissible for substantive purposes if relevant to any of the remaining charges, (but not in the habitual criminal proceedings, see § 18-1.3-803(5), C.R.S.2009; Chavez, 621 P.2d at 1367), and for impeachment in all subsequent trials if he testifies. His testimony concerning ownership of the vehicle in which the weapon was found is likewise admissible, if it is relevant to any of the remaining charges. See Ziglar, 45 P.3d at 1271.
If defendant would not have testified and thus he is entitled to a new trial on the POWPO charge, his acknowledgment of a prior felony conviction should not be admitted for substantive purposes in that retrial, but only for impeachment if he chooses to testify in the POWPO retrial. See People v. Wyngaard, 462 Mich. 659, 674, 614 N.W.2d 143, 150 (2000) (in prison disciplinary case where defendant was promised his statements would not be used against him in a subsequent criminal trial except for purposes of impeachment or rebuttal, defendant entitled to reversal when statements were admitted as substantive evidence; on retrial, statements could not be introduced as substantive evidence); see also People v. Manning, 672 P.2d 499, 512 (Colo.1983) (when there is reasonable and detrimental reliance upon a governmental promise, the question of remedy turns ultimately on what type of relief will accord the defendant substantial justice).
Concerning defendant's admission that he owned the vehicle in which the weapon was found, we reach a different conclusion. First, the court's misleading advisement concerning the use of defendant's prior felony could not have induced any detrimental reliance concerning this admission. The court said nothing whatsoever concerning limitations on the scope of cross-examination or what information could be elicited by the prosecution. Indeed, the court specifically told defendant that if he testified, the prosecution could cross-examine him, which is a correct advisement. See Curtis, 681 P.2d at 514.
Second, defendant has already obtained a substantial benefit from his decision to testify in the first trial, inasmuch as he was acquitted of menacing. It would be unfair to the prosecution to allow defendant's testimony to reap this benefit for him without some corresponding burden. After all, any remedy should simply seek to level the playing field, not tilt it to defendant's advantage. See Manning, 672 P.2d at 512 (court should fashion relief that will secure substantial justice to defendant and at the same time accommodate the legitimate interests of the government). Precluding use of defendant's admission would create a broader remedy than that to which he is entitled.
Third, any remedy should attempt to grant defendant specific performance of what he was promised and place him in the position in which he would have been; that is, that the prosecution could use the prior conviction only for impeachment. This gives effect to both parties' legitimate expectations. See Wyngaard, 462 Mich. at 674, 614 N.W.2d at 150 (where defendant was incorrectly advised that his testimony would be used only for impeachment, on remand, the remedy was to have the statements used only in that way). Limiting the use of defendant's testimony concerning his prior conviction consistently with his understanding is a sufficient remedy for any reliance on the trial court's misleading advisement.
We recognize the superficial appeal of simply excluding all of defendant's testimony from the first trial, if the trial court on remand finds that he would not have testified. After all, if defendant would not have testified, he would not have made this admission. But such a remedy would provide a windfall to defendant because his testimony arguably produced an acquittal on the menacing charge.
*521 For these reasons, we conclude that defendant's admission of ownership of the vehicle is substantively admissible in any POWPO retrial, whether defendant would have testified had he been correctly advised or not.
The case is remanded for further proceedings consistent with the views expressed in this opinion.
Judge GABRIEL and Judge BOORAS concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261565/ | 238 P.3d 134 (2010)
The STATE of Arizona, Appellee,
v.
Danny Alan MASON, Appellant.
No. 2 CA-CR 2009-0341.
Court of Appeals of Arizona, Division 2, Department B.
August 30, 2010.
*136 Terry Goddard, Arizona Attorney General By Kent E. Cattani and Jonathan Bass, Tucson, Attorneys for Appellee.
John William Lovell, Tucson, Attorney for Appellant.
OPINION
VÁSQUEZ, Presiding Judge.
¶ 1 After a jury trial, appellant Danny Mason was convicted of kidnapping, aggravated assault causing a fracture, theft of a means of transportation, armed robbery, aggravated robbery, and two counts of aggravated assault with a deadly weapon or dangerous instrument. On appeal, Mason argues the latter two convictions for aggravated assault violated double jeopardy because they arose from the same offense. He also contends the trial court improperly enhanced his sentences for those convictions and violated A.R.S. § 13-116 by ordering them to be served consecutively to his sentence for armed robbery. For the reasons stated below, we affirm Mason's convictions and sentences except for one of the two convictions for aggravated assault with a deadly weapon or dangerous instrument.
Factual and Procedural Background[1]
¶ 2 On the evening of February 28, 2008, Mason telephoned Louis V. and asked him to come to Mason's house "because [Mason] thought someone was going to rip him off." When Louis arrived, Mason took him to the backyard. They had been talking for a few minutes when two men wearing ski masks appeared, one armed with a police baton and the other with a baseball bat. Both began beating Louis and forced him to the ground, at which point Mason put his foot *137 on Louis's neck and ordered the men to handcuff him.
¶ 3 One of the men and Mason then had a conversation about an earlier incident during which Louis had gone to the house of one of the man's relatives, confronted her about having called him a "snitch," and left after she had given him $3,000. They asked Louis if he wanted to apologize to the woman. When he agreed, they called her on a cellular telephone, and Louis "told her that [he] was sorry." A few minutes later, Mason told Louis to get up. He took the keys to Louis's car, and the men put Louis in the trunk. Louis kept his knees up to prevent the trunk from being closed and managed to roll himself out of the car as they drove off. Some neighbors came to his aid and called 9-1-1.
¶ 4 Following trial, the court imposed enhanced, concurrent sentences on the kidnapping and aggravated assault counts, the longest of which was twenty-eight years. It ordered these sentences to be served consecutively to the enhanced, concurrent sentences it imposed for theft of a means of transportation, armed robbery, and aggravated robbery, the longest of which was also twenty-eight years.[2] This appeal followed.
Discussion
Double Jeopardy
¶ 5 Mason first argues that one of his two convictions for aggravated assault with a deadly weapon or dangerous instrument violated double jeopardy. The indictment charged him in separate counts with having assaulted Louis with a police baton and with a baseball bat, in violation of A.R.S. § 13-1204(A)(2), (B). He contends the "two convictions comprise one violation of a single statutorily proscribed offense ... [and he] was, therefore, convicted and punished twice for the same offense." Without citing the record or otherwise supporting its position, the state counters that, "[a]t indictment and in the trial, [it] alleged that each count involved a separate and independent act."
¶ 6 "The Double Jeopardy Clauses of the United States and Arizona Constitutions protect criminal defendants from multiple convictions and punishments for the same offense." State v. Ortega, 220 Ariz. 320, ¶ 9, 206 P.3d 769, 772 (App.2008). A charging document is multiplicitous when it charges a single offense in multiple counts. State v. Powers, 200 Ariz. 123, ¶ 5, 23 P.3d 668, 670 (App.), aff'd, 200 Ariz. 363, 26 P.3d 1134 (2001). Although "[m]ultiplicitous charges alone do not violate double jeopardy[,] ... resulting multiple convictions ... are prohibited." Ortega, 220 Ariz. 320, ¶ 9, 206 P.3d at 772. Because Mason failed to raise this issue below, we review only for fundamental, prejudicial error.[3]See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). However, "[a] double jeopardy violation constitutes fundamental, prejudicial error." Ortega, 220 Ariz. 320, ¶ 7, 206 P.3d at 772.
¶ 7 At trial, the state produced no evidence that Mason had struck Louis with either the police baton or the baseball bat. His two convictions for aggravated assault were based on accomplice liability, with one principal having wielded a police baton and the other a baseball bat during the combined attack on Louis. Pursuant to A.R.S. § 13-301, a person is criminally accountable as an accomplice if "with the intent to promote or facilitate the commission of an offense ... [he s]olicits ... another person to commit the offense ... [a]ids ... another person in... committing an offense ... [or p]rovides means or opportunity to another person to commit the offense." Thus, "[t]he state may *138 base a defendant's criminal liability for a substantive criminal offense on an accomplice theory if the state is able to show the defendant aided or facilitated the commission of that offense by a principal." State v. Korovkin, 202 Ariz. 493, ¶ 12, 47 P.3d 1131, 1135 (App.2002), citing A.R.S. §§ 13-301, 13-303.
¶ 8 Although the assault had been carried out by two principals with two different weapons, it was nonetheless a single attack. We are aware of no authority holding that under such circumstances the commission of a single offense can support multiple convictions without violating a defendant's protection against double jeopardy. In his supplemental brief on this issue, Mason asserts that the accomplice statutes are ambiguous and there is no apparent legislative intent "to hold an accomplice liable for two separate aggravated assault charges ... arising from a single, combined attack committed by two assailants." He maintains "the principle of [l]enity would apply to [his] situation and double jeopardy would be a bar to two convictions." The rule of lenity "dictates that any doubt about statutory construction be resolved in favor of a defendant," State v. Fell, 203 Ariz. 186, ¶ 10, 52 P.3d 218, 221 (App.2002), and thus "`against turning a single transaction into multiple offenses,'" State v. Manzanedo, 210 Ariz. 292,-110 P.3d 1026, 1029 (App.2005), quoting State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328, 1334 (1976); see also State v. Brown, 217 Ariz. 617, ¶ 11, 177 P.3d 878, 882 (App. 2008). The state agrees Arizona law provides little assistance in interpreting § 13-301 under the circumstances of this case, but at oral argument it suggested that, in order not to reward defendants who use multiple accomplices, we should interpret § 13-301 to permit a separate accomplice-liability conviction for each crime committed by a principal.[4] The state essentially posits a statutory scheme whereby each participant to a crime can be convicted of as many counts of that crime as there are participants.[5]
¶ 9 But "being an accomplice is not a separately chargeable offense; it is merely a theory that the state may utilize to establish the commission of a substantive criminal offense." State v. Woods, 168 Ariz. 543, 544, 815 P.2d 912, 913 (App.1991); see also State v. Garcia, 176 Ariz. 231, 234, 860 P.2d 498, 501 (App.1993). A defendant's liability under an accomplice theory is based on the underlying offense and not on the number of participants involved in its commission. Cf. People v. Dryden, 363 Ill.App.3d 447, 300 Ill.Dec. 458, 844 N.E.2d 456, 461-62 (2006) (where defendant entered home shortly before accomplices "all of the entries were part of a single course of conduct designed to rob the victim; in other words, there was one crime" of home invasion). We therefore conclude that the involvement of multiple accomplices cannot by itself transform the commission of a single statutory offense into multiple crimes.[6] And, because Mason's "`second conviction, even if it results in no greater sentence, is an impermissible punishment,'" it must be vacated. See Brown, 217 Ariz. 617, ¶ 13, 177 P.3d at 882, quoting Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985).
Consecutive Sentences
¶ 10 Mason argues the imposition of consecutive sentences for his armed robbery and aggravated assault convictions violated § 13-116. And he contends the trial court erred in enhancing his sentences for *139 aggravated assault. Again, because he did not raise these issues below, we review only for fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607-08. However, the "[i]mposition of an illegal sentence constitutes fundamental error." State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369 (App.2002).
¶ 11 Section 13-116 provides, in pertinent part, "An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent." We review de novo whether the trial court's decision to impose consecutive sentences is permissible under § 13-116. See State v. Urquidez, 213 Ariz. 50, ¶ 6, 138 P.3d 1177, 1179 (App.2006). To determine whether the defendant has committed a single act requiring concurrent sentences, we apply the following test set forth in State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989):[7]
[W]e ... judge a defendant's eligibility for consecutive sentences by considering the facts of each crime separately, subtracting from the factual transaction the evidence necessary to convict on the ultimate charge.... If the remaining evidence satisfies the elements of the other crime, then consecutive sentences may be permissible.... In applying this analytical framework, however, we will then consider whether, given the entire "transaction," it was factually impossible to commit the ultimate crime without also committing the secondary crime. If so, then the likelihood will increase that the defendant committed a single act .... We will then consider whether the defendant's conduct in committing the lesser crime caused the victim to suffer an additional risk of harm beyond that inherent in the ultimate crime. If so, then ordinarily the court should find that the defendant committed multiple acts....
We therefore "focus[ ] on the `facts of the transaction' to determine if the defendant committed a single act." State v. Siddle, 202 Ariz. 512, ¶ 17, 47 P.3d 1150, 1155 (App.2002), quoting Gordon, 161 Ariz. at 313 n. 5, 778 P.2d at 1209 n. 5.
¶ 12 Mason notes that "the assault was aggravated by the use of a baton and a bat[,] and the robbery became armed robbery because of the use of a baton and a bat." He thus argues that "[s]ubtracting ... use of the bat and baton, the remaining facts are not sufficient to convict on Armed Robbery." However, the victim's testimony arguably was sufficient for the jury to infer that Mason's accomplices both used the weapons in the assault and possessed them while committing the robbery.[8]See Urquidez, 213 Ariz. 50, ¶ 8, 138 P.3d at 1179 (fact defendant fired gun at victim's vehicle remained after his pointing gun at victim subtracted); but see State v. Price, 218 Ariz. 311, ¶ 16, 183 P.3d 1279, 1283-84 (App.2008) (after subtracting fact defendant armed with gun for purposes of armed robbery, record lacked evidence of deadly weapon necessary for aggravated assault). Moreover, "[e]ach of these crimes was established by different acts," the assault by the beating, and the robbery by the taking of the vehicle, which Mason concedes took place at least "a few minutes later." See State v. Roberts, 131 Ariz. 519, 522, 642 P.2d 864, 867 (App.1981) (upholding consecutive sentences for kidnapping and extortion both involving use of gun), vacated in part on other grounds, 131 Ariz. 513, 642 P.2d 858 (1982).
¶ 13 In any event, as Mason concedes, he could have committed the aggravated assaults without committing the armed robbery. *140 And, notwithstanding Mason's unsupported assertion to the contrary, the risk of harm to the victim was increased by the accomplices. possession of dangerous weapons during the robbery. See Siddle, 202 Ariz. 512, ¶ 18, 47 P.3d at 1156. Because "[t]hese two factors strongly suggest that [Mason] committed multiple acts in the perpetration of the offenses[,] ... consecutive sentences were permissible under § 13-116." See Siddle, 202 Ariz. 512, ¶ 18, 47 P.3d at 1156.
¶ 14 Mason also argues, based on a discrepancy between the sentencing minute entry and the transcript of his sentencing hearing, that the trial court illegally enhanced his sentences on the aggravated assault convictions, both class three felonies. "Upon finding a discrepancy between the oral pronouncement of sentence and a minute entry, a reviewing court must try to ascertain the trial court's intent by reference to the record." State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App.1992). In doing so, "the oral pronouncement of sentence controls" over the written judgment. State v. Hanson, 138 Ariz. 296, 304-05, 674 P.2d 850, 858-59 (App.1983). And we presume the court knows and correctly applies the law. State v. Williams, 220 Ariz. 331, ¶ 9, 206 P.3d 780, 783 (App.2008).
¶ 15 Here, the trial court's minute entry states Mason received enhanced, presumptive, twenty-year sentences on the aggravated assault convictions. However, the court apparently failed to state in its oral pronouncement of sentence whether these sentences were presumptive or aggravated. From this discrepancy, Mason constructs a theory that the court sentenced him pursuant to former A.R.S. § 13-604(K), see 2007 Ariz. Sess. Laws, ch. 248, § 1, which provides for a presumptive sentence of twenty years for a class three felony committed with two or more historical prior convictions for dangerous-nature felonies.[9] Because there is "nothing [i]n the record ... to indicate that the Trial Court found one or more of ... Mason's prior felony convictions to be of a dangerous nature," he therefore contends his sentences on these counts were illegally enhanced.
¶ 16 But Mason's theory is pure speculation. It is also refuted by the sentencing transcript, which shows the trial court plainly stated it was "proceeding under [§ ] 13-604(C) and ... (D)" for class two and class three felonies respectively and found the offenses to be "repetitive." Consequently, the court correctly enhanced Mason's sentences with two nondangerous historical prior felony convictions. Presuming that the court knew and correctly applied the law, see Williams, 220 Ariz. 331, ¶ 9, 206 P.3d at 783, we infer that it intended to impose aggravated sentences pursuant to former § 13-604(D), see 2007 Ariz. Sess. Laws, ch. 248, § 1, which provided for an aggravated sentence of twenty years for a class three felony with two or more historical prior felony convictions. We conclude the minute entry erroneously describes those sentences as presumptive.[10]See Hanson, 138 Ariz. at 304-05, 674 P.2d at 858-59.
Disposition
¶ 17 For the reasons stated above, with the exception of one of his two convictions for aggravated assault with a deadly weapon or dangerous instrument, we affirm Mason's convictions and sentences and remand with instructions for the trial court to decide in the exercise of its discretion which of the two convictions to vacate.
CONCURRING: PETER J. ECKERSTROM, Judge, and VIRGINIA C. KELLY, Judge.
NOTES
[1] We view the evidence presented in the light most favorable to sustaining the convictions. State v. Cropper, 205 Ariz. 181, ¶ 2, 68 P.3d 407, 408 (2003).
[2] The trial court also ordered these sentences to be served consecutively to those imposed in another cause number.
[3] Relying on State v. Anderson, 210 Ariz. 327, ¶ 17, 111 P.3d 369, 378 (2005), the state argues Mason has forfeited any appellate review of this issue because he failed to object below that the charges were multiplicitous. However, in Anderson the indictment was duplicitous, and our supreme court was concerned with the prospect of a defendant "hav[ing] his cake and eat[ing] it too: ... avoid[ing] the potential of multiple punishments by depriving the State of the opportunity to amend, and then attempt[ing] to avoid any punishment at all." Id. Such reasoning does not extend to multiplicitous charges; Mason has gained nothing by failing to object and having a multiplicitous conviction vacated on appeal rather than objecting and having one of the charges dismissed below.
[4] We do not find this argument persuasive. The "presence of an accomplice" is an aggravating factor for sentencing purposes pursuant to A.R.S. § 13-701(D)(4). Therefore, a defendant is not "rewarded" for committing a crime with multiple accomplices.
[5] Under this interpretation, for example, if five persons assaulted an individual who died as a result of his injuries, each participant could be convicted of five counts of murder. It is inconceivable the legislature intended such an illogical result.
[6] By contrast, the involvement of multiple victims indisputably creates separate crimes. See State v. Burdick, 211 Ariz. 583, ¶ 6, 125 P.3d 1039, 1041 (App.2005), ("`Where crimes against persons are involved ... a separate interest of society has been invaded with each victim[,] and... therefore, where two persons are assaulted, there are two separate offenses.'"), quoting State v. Gunter, 132 Ariz. 64, 70, 643 P.2d 1034, 1040 (App. 1982). Nor is there a violation of double jeopardy where a defendant is convicted of committing the same crime multiple times against the same victim. State v. Jones, 185 Ariz. 403, 405, 916 P.2d 1119, 1121 (App.1995).
[7] At oral argument, defense counsel asserted that, before we could consider the factors enunciated in Gordon, we must first determine whether the test stated in State v. Tinghitella, 108 Ariz. 1, 491 P.2d 834 (1971), had been satisfied. However, although the court in Gordon stated it would continue to apply the Tinghitella test, it incorporated that test into the three-factor test it adopted. Gordon, 161 Ariz. at 315, 778 P.2d at 1211. It therefore does not constitute a separate, threshold inquiry, and we need not consider it independently.
[8] Notably, Mason has not argued there was insufficient evidence to support the armed robbery conviction. See Ariz. R.Crim. P. 20. And, in any event, in light of our conclusion that one of Mason's aggravated assault convictions must be vacated, the weapon that supported the vacated charge would then unquestionably be available to satisfy both the elements and the factual basis of the armed robbery charge, notwithstanding the use of the other weapon in the aggravated assault, further supporting the imposition of consecutive sentences.
[9] Significant portions of Arizona's criminal sentencing code have been renumbered, see 2008 Ariz. Sess. Laws, ch. 301, §§ 1-120, effective "from and after December 31, 2008." Id. § 120. In this decision, however, we refer to the statutes as they were numbered when Mason committed these offenses in March 2008.
[10] Mason does not argue that the aggravated sentences the trial court imposed for these convictions were unwarranted. Nor does he challenge the court's imposition of aggravated sentences on all of his other convictions, based on the aggravating factors of a prior federal felony conviction and the presence of accomplices. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323811/ | 554 S.E.2d 856 (2001)
Camilia Michelle HAMILTON, Timothy Wayne Hayes, Claude Richard Huggins, and others similarly situated, Plaintiffs,
v.
Franklin FREEMAN, and Hazel Keith, Defendants.
No. COA00-1470.
Court of Appeals of North Carolina.
November 20, 2001.
*857 North Carolina Prisoner Legal Services, Inc., by Winifred H. Dillon, Raleigh, for plaintiff, intervenor, and proposed intervenor appellants-appellees.
Attorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons, for defendant appellants-appellees.
TIMMONS-GOODSON, Judge.
On 14 June 1996, Camilia Michelle Hamilton, Timothy Wayne Hayes, and Claude Richard Huggins (collectively "plaintiffs") filed a class action complaint in Wake County Superior Court seeking declaratory and injunctive relief from certain acts committed by officials at the North Carolina Department of Correction ("DOC"). At the time the complaint was filed, plaintiffs were inmates incarcerated at various facilities administered by DOC. The complaint named as *858 defendants in their official capacities Franklin Freeman, the North Carolina Secretary of the DOC, and Hazel Keith, DOC's Manager of Combined Records ("defendants").
The pertinent factual and procedural events of this appeal are as follows: On 4 May 1993, Camilia Hamilton ("Hamilton") entered into a plea bargain with the State, in which she agreed to plead guilty to armed robbery in exchange for the State's recommendation that she receive a fourteen-year sentence as a Committed Youthful Offender ("CYO"). At the time, CYOs were eligible for parole consideration immediately upon entering DOC's custody. See N.C. Gen.Stat. § 148-49.15(a) (1983). The trial court approved the plea bargain and sentenced Hamilton accordingly. When Hamilton entered DOC's custody, however, DOC determined that Hamilton did not qualify for CYO status under North Carolina General Statutes and refused to consider her for immediate parole.
DOC also allegedly modified the sentences of Timothy Hayes ("Hayes") and Claude Huggins ("Huggins"). Both Hayes and Huggins entered into plea agreements with the State, whereby the trial court sentenced Hayes and Huggins to concurrent terms of imprisonment. Hayes and Huggins were statutorily ineligible for concurrent sentences, however, and upon entering DOC's custody, DOC informed them that their sentences would run consecutively rather than concurrently.
Plaintiffs filed suit against DOC, requesting class action status for their claims in order to include all North Carolina inmates whose sentences had been modified by DOC. In their complaint, plaintiffs alleged defendants violated plaintiffs' constitutional rights by denying inmates the benefit of their plea agreements as reflected in the sentencing courts' judgments. Specifically, plaintiffs objected to DOC's policy of unilaterally modifying judgments in order to reflect compliance with statutory law, a practice resulting in lengthier sentences for plaintiffs. Plaintiffs argued DOC's actions in failing to accurately honor and record the sentences issued by the trial courts amounted to impermissible re-sentencing of plaintiffs in violation of due process rights and separation of powers.
Several years passed as plaintiffs and defendants attempted to resolve their dispute through mediation. In the meanwhile, DOC issued a directive on 12 April 2000 to its Information Resources, Management Information, and Combined Records sections, instructing them to identify and provide notice to those inmates sentenced to concurrent terms for offenses which by statute require consecutive terms. The resulting notice to the affected inmates stated in part that, "DOC records have been made to show that [the inmate's] sentence is to be served consecutive to (at the end of) any other existing sentence(s) even though the plea agreement or the judgment and commitment may show that the sentence is to run concurrent." The notice further advised inmates that they were potentially "entitled to go back into court and receive some relief" and urged inmates to seek counsel for appropriate action.
On 5 May 2000, the trial court denied plaintiffs' motions to intervene, to amend the complaint, and for class certification. Plaintiffs thereafter filed a motion for summary judgment, and defendants filed a motion to dismiss. Jerry Lee Ward ("Ward"), another inmate in the custody of DOC, also filed a motion to intervene as a party plaintiff. Like Hayes and Huggins, the trial court had sentenced Ward to concurrent terms of imprisonment, a judgment subsequently altered by DOC to reflect consecutive sentences. Accordingly, Ward sought permissive intervention in the action, as well as intervention as of right.
The three motions were heard 11 July 2000 by the trial court, which denied defendants' motion to dismiss and granted Ward's motion to intervene. The trial court also denied plaintiffs' claims for relief, except the request for a declaration regarding the propriety of DOC's practices, which the trial court granted. Accordingly, the court declared "that the Department of Correction has no authority to record a defendant-inmate's clearly erroneous sentence in a manner which makes the sentence conform to state statute." The trial court therefore ordered that the
Department of Correction, when it receives a judgment and commitment form from a *859 superior court which specifically orders a concurrent sentence for a criminal offense for which state law requires a consecutive sentence, will record the sentence in its official agency records as the sentence appears on the face of judgment. Thereafter, in a reasonable time the Department of Correction will notify in writing the sentencing judge, the district attorney, the inmate on whom the sentence was imposed, and the inmate's trial counsel, if any, that because the sentence and judgment do not accord with state law, the judgment must be vacated. The notice provided by the Department of Correction will be specific to the judgment in question and must inform those notified that, pursuant to State v. Wall, 348 N.C. 671, 502 S.E.2d 585 (1998), the sentence violates state law and the affected inmate is entitled to return to court for purposes of withdrawing the plea entered and either standing trial on the charge(s) or trying to negotiate a new plea which does not violate state law.
Defendants now appeal from the 11 July 2000 order, and plaintiffs, intervenor, and proposed intervenors appeal from both the 11 July 2000 order and the 5 May 2000 order.
Defendants present the following issues for review: whether the trial court erred in (1) granting Ward's motion to intervene; (2) asserting jurisdiction; (3) denying defendants' motion to dismiss; (4) granting declaratory relief to plaintiffs; and (5) ordering defendants to give plaintiffs specific performance of plea bargains. Plaintiffs, intervenor, and proposed intervenors argue the trial court erred in (1) denying plaintiffs' motion for class certification; (2) denying the proposed intervenors' motion to intervene; (3) failing to find due process violations; and (4) failing to grant appropriate relief. We address the above-stated issues in turn.
I. Defendants' Appeal
Defendants argue the trial court erred in granting Ward's motion to intervene. Defendants contend that Ward's motion was untimely, and that he lacked sufficient interest in the case for intervention as a matter of right, as well as sufficient commonality with the other plaintiffs for permissive intervention. We disagree.
North Carolina General Statutes section 1A-1, Rule 24, governs intervention by parties in an action. It states, in pertinent part, as follows:
(a) Intervention of right.Upon timely application anyone shall be permitted to intervene in an action:
(1) When a statute confers an unconditional right to intervene; or
(2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
(b) Permissive intervention.Upon timely application anyone may be permitted to intervene in an action.
(1) When a statute confers a conditional right to intervene; or
(2) When an applicant's claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
N.C. Gen.Stat. § 1A-1, Rule 24(a)-(b) (1999). In considering whether a motion to intervene is timely, the trial court considers "(1) the status of the case, (2) the possibility of unfairness or prejudice to the existing parties, (3) the reason for the delay in moving for intervention, (4) the resulting prejudice to the applicant if the motion is denied, and (5) any unusual circumstances." Procter v. City of Raleigh Bd. of Adjust., 133 N.C.App. 181, 183, 514 S.E.2d 745, 746 (1999). Whether a motion to intervene is timely is a matter within the sound discretion of the trial court and will be overturned only upon a showing of abuse of discretion. See State Employees' Credit Union, Inc. v. Gentry, 75 N.C.App. 260, 264, 330 S.E.2d 645, 648 (1985). A motion to intervene is rarely denied as untimely prior to the entry of judgment, and *860 may be considered timely even after judgment is rendered if "extraordinary and unusual circumstances" exist. Id.; see also Procter, 133 N.C.App. at 184, 514 S.E.2d at 747 (concluding that proposed intervenors' motion was timely after entry of judgment).
In the instant case, the trial court did not abuse its discretion in determining that Ward's motion to intervene was timely. Ward made his motion prior to any hearing on the merits of this action, and prior to the entry of final judgment. Defendants have not shown any unfairness or prejudice resulting from the trial court's order granting Ward's motion. Like the other plaintiffs, Ward is an inmate in the custody of DOC whose sentence, as entered by the trial court, was subsequently modified by DOC Moreover, Ward filed his motion to intervene on 22 June 2000, less than two months after the trial court denied plaintiffs' motion for class certification. Had the trial court granted plaintiffs' motion for class certification, Ward need not have intervened in the action to protect his interests. Thus, the reason for delay in the motion to intervene was reasonable and legitimate, evidencing no neglect on Ward's part.
We also conclude the trial court properly allowed Ward to intervene in the action. Although it is unclear whether the trial court granted Ward's motion to intervene as a matter of right or by permission, we note that the trial court's discretion in regard to permissive intervention is not reviewable by this Court absent a showing of abuse. See N.C. Gen.Stat. § 1A-1, Rule 24(b)(2); Ellis v. Ellis, 38 N.C.App. 81, 84, 247 S.E.2d 274, 277 (1978). As an inmate whose sentence was unilaterally modified by DOC, Ward's claim against DOC contained sufficient legal commonality with the claims presented by plaintiffs to permit his intervention. Thus, the trial court did not abuse its discretion in granting Ward's motion to intervene, and we therefore overrule defendants' first assignment of error.
In their second assignment of error, defendants argue the trial court lacked jurisdiction over the instant case. Defendants claim that plaintiffs did not possess proper standing to pursue their claims, and further, that plaintiffs presented no active claim and controversy to the court. We cannot agree.
When standing is challenged, the trial court must determine whether an actual controversy existed at the time the pleading requesting declaratory relief was filed. See Simeon v. Hardin, 339 N.C. 358, 369, 451 S.E.2d 858, 866 (1994); Sharpe v. Park Newspapers of Lumberton, 317 N.C. 579, 584, 347 S.E.2d 25, 29 (1986). Once jurisdiction attaches, it is generally "not ... ousted by subsequent events." In re Peoples, 296 N.C. 109, 146, 250 S.E.2d 890, 911 (1978) (holding that judge's retirement neither divested the Judicial Standards Commission of jurisdiction nor rendered the question of his removal moot), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297 (1979).
At the time plaintiffs filed their complaint in this case, they were in DOC custody serving sentences never ordered by any trial court. In their complaint, plaintiffs alleged they had suffered and continued to suffer harm of a constitutional dimension due to DOC's practices. Accordingly, plaintiffs alleged injuries suffered as a result of DOC's policy of unilaterally modifying the sentences of the trial courts and, therefore, an actual controversy existed between plaintiffs and defendants at the time they filed their complaint. Consequently, because plaintiffs possessed standing when the complaint was filed, and because their standing was unaffected by subsequent events, the trial court correctly concluded that plaintiffs had standing to pursue their claims. See Simeon, 339 N.C. at 369, 451 S.E.2d at 866 (concluding that plaintiffs had standing to challenge district attorney's calendaring authority, even though their criminal cases were no longer pending at the time their claims were heard).
Defendants also contend that, because the original three plaintiffs, Hamilton, Hayes and Huggins, had been granted some form of relief at the time the trial court entered judgment, their claims against DOC were moot, effectively nullifying the action. Defendants also argue that the mootness doctrine precludes this Court's review of the merits of plaintiffs' case.
*861 As stated herein, the trial court properly granted Ward's motion to intervene. Thus, Ward was a legitimate party to the action presenting an active claim and controversy to the court. Furthermore, we disagree with defendants' assertion and plaintiffs' concession that, because Hamilton, Hayes, and Huggins were granted certain relief prior to the trial court's review of the instant case, their claims against DOC were moot. Plaintiffs' complaint alleged that defendants' practice of unilaterally modifying judgments violated plaintiffs' due process rights. Plaintiffs therefore demanded that they receive the benefit of their original plea bargains with the State. Although Hamilton, Hayes and Huggins received some relief after instituting the present action, they did not receive specific performance of their original plea agreements, which was the relief sought in their complaint. Thus, Hamilton, Hayes and Huggins presented an active claim and controversy to the trial court; namely, whether they, along with the other plaintiffs, were entitled to specific performance of their original plea bargains. The trial court's conclusion, which we now review, that plaintiffs were not entitled to specific performance of their original plea bargains, does not render the former proceedings moot. We therefore overrule defendants' second assignment of error.
By their third assignment of error, defendants contend the trial court erred in denying defendants' motion to dismiss. Defendants argue that, because plaintiffs' claims were moot and Ward's motion to intervene was untimely, defendants were entitled to dismissal of plaintiffs' case. Given our resolution of the foregoing issues, we overrule defendants' third assignment of error.
Defendants next argue the trial court erred in ordering DOC to give legal effect to judgments by the trial courts that contravene statutory law. Defendants contend that such orders are illegal, and that DOC is therefore not obligated to honor them. We disagree.
"The superior court has exclusive, original jurisdiction over all criminal actions not assigned to the district court division...." N.C. Gen.Stat. § 7A-271(a) (1999). It is well established that a judgment of a Superior Court must be honored unless the judgment is void. See Worthington v. Wooten, 242 N.C. 88, 92, 86 S.E.2d 767, 770 (1955). Where a court has authority to hear and determine the questions in dispute and has control over the parties to the controversy, a judgment issued by the court is not void, even if contrary to law. See Allred v. Tucci, 85 N.C.App. 138, 142, 354 S.E.2d 291, 294, disc. review denied, 320 N.C. 166, 358 S.E.2d 47 (1987). Such a judgment is voidable, but not void ab initio, and is binding until vacated or corrected. See id. Defendants do not argue that the trial courts that originally sentenced plaintiffs lacked jurisdiction. Because the sentencing courts had authority over the disputes and control over the parties, the resulting judgments were not void and must be honored as received by DOC.
Furthermore, we note that "[t]he legislative, executive, and supreme judicial powers of the State government [are] ... separate and distinct from each other." N.C. Const. art. I, § 6. The Department of Correction is a part of the executive branch of North Carolina. See N.C. Gen.Stat. § 143B-260 (1999). By independently amending judgments to reflect compliance with DOC's interpretation of statutory authority, DOC has usurped the power of the judiciary, thereby violating separation of powers. See Thomas v. N.C. Dept. of Human Resources, 124 N.C.App. 698, 706-10, 478 S.E.2d 816, 821-23 (1996) (holding that the North Carolina Department of Human Resources violated separation of powers by engaging in statutory interpretation and ignoring appellate court judgments), affirmed per curiam, 346 N.C. 268, 485 S.E.2d 295 (1997).
Finally, we disagree with defendants' contention that the trial court's order directly contradicts our Supreme Court's decision in State v. Wall, 348 N.C. 671, 502 S.E.2d 585 (1998). While we agree that Wall is instructive, it is not dispositive of the issues raised in the present case.
In Wall, the defendant entered into a plea bargain with the State, whereby the State agreed to consolidate the defendant's two cases and recommend a twenty-five-year sentence. The trial court approved the defendant's plea agreement and sentenced the *862 defendant accordingly. Although the defendant, defense counsel, and the assistant district attorney agreed that the defendant's sentence would be served concurrently, the plea agreement did not specify concurrent or consecutive terms, nor did the resulting judgment provide for a concurrent or consecutive sentence. DOC thereafter recorded the defendant's sentence as providing consecutive terms of imprisonment. Upon inquiry by the defendant, DOC informed him that, under North Carolina General Statutes, he was obligated to serve consecutive terms. The defendant filed a motion for appropriate relief with the trial court, which found that, based on his plea bargain with the State, the defendant was entitled to serve concurrent rather than consecutive sentences. Our Supreme Court subsequently granted DOC's petition for writ of certiorari in order to review the trial court's action.
Upon reviewing the relevant criminal statutes governing the defendant's case, the Court concluded that the defendant was statutorily obligated to serve consecutive sentences, and that the trial court did not have authority to order otherwise. The Court therefore vacated the trial court's order. The Court continued, however:
In the instant case, defendant's plea of guilty was consideration given for the prosecutor's promise. He was entitled to receive the benefit of his bargain. However, defendant is not entitled to specific performance in this case because such action would violate the laws of this state. Nevertheless, defendant may avail himself of other remedies. He may withdraw his guilty plea and proceed to trial on the criminal charges. He may also withdraw his plea and attempt to negotiate another plea agreement that does not violate [the relevant statute].
Wall, 348 N.C. at 676, 502 S.E.2d at 588.
In the instant case, defendants argue the trial court's order impermissibly provides for specific performance of illegal plea bargains in contravention of Wall. We disagree with defendants' application of Wall to the issues raised in the present appeal. The facts of Wall differ from the facts presented by the instant case in several key respects. In contrast to the instant case, neither the plea agreement nor the judgment in Wall specified that the defendant's sentence should run concurrently. Thus, in Wall, it appears that DOC did not intentionally disregard any plea agreements, but rather, in the face of a silent judgment, entered the defendant's sentence according to statutory dictates. The Wall Court did not have to decide, nor did it address, the central question posed to the trial court in the instant appeal, namely, whether DOC may deliberately modify judgments that appear to violate North Carolina General Statutes.
We further disagree with defendants' interpretation of the term "specific performance." The Wall Court concluded that the defendant was not entitled to specific performance of his original plea bargain because the agreement violated North Carolina statutes. In other words, the defendant was not entitled to serve concurrent terms as envisioned by the plea bargain, but was allowed to return to court in order to obtain appropriate relief. Defendants now argue the trial court's order directing DOC to accurately record sentences as they appear on the face of the judgments amounts to an order directing DOC to grant specific performance to inmates' plea bargains. We disagree with defendants' interpretation of the trial court's order. The order merely requires DOC to "record the sentence in its official agency records as the sentence appears on the face of the judgment," a judgment which the sentencing court "must [thereafter] vacate [ ]" (emphasis added). The order never grants specific performance to illegal plea bargains; indeed, it specifically states that judgments giving effect to such must be vacated. We conclude the trial court's order complies with the dictates of Wall. Accordingly, we hold the trial court did not err in ordering DOC to record sentences as they appear on the face of the judgments, and we therefore overrule defendants' remaining assignments of error.
II. Plaintiffs' Appeal
Plaintiffs argue the trial court erred in concluding that defendants' policy of unilaterally modifying judgments did not violate plaintiffs' due process rights. Defendants contend that plaintiffs cannot maintain *863 a protected liberty interest in a judicial mistake. On this point, we agree with defendants. Although it is true that a state's unilateral breach of a plea agreement may constitute a violation of due process rights, see, e.g., Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 498-99, 30 L. Ed. 2d 427, 433 (1971), the plea agreements and judgments enforcing such agreements at issue in the instant case violate North Carolina statutes and must be vacated. See Wall, 348 N.C. at 676, 502 S.E.2d at 588. The State did not have the authority to offer benefits to plaintiffs in violation of state law, and plaintiffs were never entitled to such benefits. Plaintiffs are entitled to return to court, in order to regain the position they held before the sentencing courts' errors. See id. Plaintiffs may not, however, seek to enforce a plea bargain that violates North Carolina General Statutes, nor do they have a protected liberty interest in such an agreement. The trial court did not err, therefore, in failing to find that defendants' actions violated plaintiffs' due process rights.
Plaintiffs further argue the trial court erred in providing prospective rather than retrospective relief to plaintiffs. Plaintiffs contend that, because several of the verbs utilized in the decretal portion of the order take the simple form of the future tense, such language directs only future compliance by DOC and does not encompass present plaintiffs. We disagree with plaintiffs' interpretation of the order.
The trial court's order declares that "the Department of Correction has no authority to record a defendant-inmate's clearly erroneous sentence in a manner which makes the sentence conform to state statute" and that "[a] defendant-inmate's sentence must be recorded in his combined record as specifically stated in the judgment and commitment." Although the trial court's order states that the DOC "will record" sentences and "will notify" affected inmates, we hold that the order, when read in conjunction with the above-stated declarations, directs DOC to provide appropriate relief to all affected inmates, present and future.
Based on our resolution of the foregoing issues, we need not determine whether the trial court erred in denying plaintiffs' motion for class action certification and proposed intervenors' motion for intervention. We therefore affirm the 11 July 2000 order of the trial court.
Affirmed.
Chief Judge EAGLES and Judge THOMAS concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261414/ | 861 F. Supp. 367 (1994)
Beth E. WARD, et al.
v.
The JOHNS HOPKINS UNIVERSITY.
Civ. A. No. WN-92-3617.
United States District Court, D. Maryland.
April 22, 1994.
*368 *369 Janet A. Vecchia and Judith A. Wolfer, Takoma Park, MD, for plaintiffs.
Estelle A. Fishbein, Frederick G. Savage and Eileen S. Goldgeier, of the Johns Hopkins University, Baltimore, MD, for defendant.
MEMORANDUM
NICKERSON, District Judge.
Currently pending before the Court are Defendant's Motions for Summary Judgment as to Plaintiffs Cusimano and Ward (Papers Nos. 65 and 66) and Defendant's Motion for Severance (Paper No. 54). Plaintiffs have opposed the motions and Defendant has replied. Upon a review of the motions and the applicable case law, the Court determines that no hearing is necessary (Local Rule 105.6), that Defendant's motions for summary judgment will be granted in part and denied in part, and Defendant's motion for severance will be denied.
I. BACKGROUND
Plaintiffs in this case, Theresa Cusimano ("Cusimano") and Beth Ward ("Ward") are two former employees of Defendant, The Johns Hopkins University ("the University"). Both Plaintiffs claim that the same individual sexually harassed them while they were employed at the Center for Social Organization of Schools ("CSOS"), a division of the University. They bring their claims under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 ("Title IX"). Ward also alleges sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"). Both Plaintiffs demand compensatory and punitive damages as well as equitable relief. The University moves for summary judgment against both Plaintiffs on all claims. The *370 University previously moved for severance of Plaintiffs' cases. The facts of this case, presented in the light most favorable to Plaintiffs, are as follows.
Cusimano, a college graduate, was employed at CSOS from October 1990 until June 1991. Cusimano was originally hired at CSOS through a temporary employment agency. In April 1991, she became a permanent employee at CSOS. CSOS occupies a three-story townhouse where Cusimano worked in the front office on the first floor. Cusimano's duties included answering the telephone, typing, filing, copying, distributing messages and packages and other clerical duties. Cusimano's supervisors were Bridgette Hinte ("Hinte") and Barbara Colton ("Colton").
Cusimano claims that Mark Christian ("Christian"), also an employee at CSOS, sexually harassed her. Christian, who is married and has three children, worked in the basement as a dissemination coordinator in the publications section of CSOS.[1] Cusimano encountered Christian on a daily basis. He frequently asked her to go on dates or for a ride in his sports car. Cusimano consistently declined these invitations. Cusimano alleges that every time she encountered him, Christian touched her in some way. This physical contact included touching her lower back while she was at her desk, whispering in her ear and brushing up against her in the hall. While she was at the photocopying machine, Christian unnecessarily positioned himself in such a way that Cusimano could not get by without brushing up against him. Cusimano noticeably flinched when Christian touched her and often told him that she did not like to be touched. In addition to the physical contact, Christian often complimented Cusimano's physical appearance and referred to her and her co-workers as "the pretty girls in the front office."
One evening in February 1991, Christian telephoned Cusimano and asked if he could come over to her apartment. Cusimano tried in a polite manner to discourage him from visiting and told him that she goes to bed at 10:00 p.m. Christian knocked on her door at 11:00 p.m., and Cusimano opened it slightly. Christian entered with a four-pack of wine coolers and revealed to Cusimano that he had a gun under his shirt. He playacted with the gun, rolling on the floor and pretending to shoot someone. The visit lasted ten or fifteen minutes. When he telephoned Cusimano a few days later, she told him to stay away from her and never to talk to her again. After that telephone call, Christian's alleged harassment ceased.
In her affidavit, Cusimano states that she told Colton two or three times that she felt uncomfortable around Christian because she did not like him staring at her and "hitting on her." Cusimano Affidavit at ¶ 3. Cusimano also states that once a week she told Hinte that Christian frequently stared at her, asked her on dates, and was "too friendly." Id. Hinte and Colton responded by stating that Christian was just a "friendly guy." Id.[2] Several weeks after the February incident in her apartment, Cusimano told Hinte and another co-worker, Barbara Boward, about it in detail. According to Cusimano, because she feared retaliation by Christian and believed any adverse action on her part might preclude favorable recommendations from her supervisors at CSOS for future jobs, Cusimano asked Hinte and Boward to keep the information confidential. Despite that request, Hinte told Colton about the incident and that Cusimano asked that it remain confidential. Colton never discussed Christian's visit to Cusimano's apartment with Cusimano.
Cusimano did not report Christian's harassment to any supervisor other than Hinte. She testified that she did not feel comfortable discussing her harassment with either Colton or the Co-Director of CSOS, *371 Jim McPartland. She explained in her deposition:
Those aren't two people who would act on anything of this nature. Here is Jim who comes in and burps and farts in the front office. Is that a person who you're going to share with about abusive behavior? I would think not.
Cusimano Deposition at 165-66. She added: "Barbara Colton was an incompetent manager ... that was very clear...." Id.
Ward, a college student who worked at CSOS as a temporary summer employee from June 1 to August 15, 1992, claims that Christian sexually harassed her during the first three weeks of her employment. She was stationed in the basement and her duties included filing, typing, packing orders, handling telephone calls, mailing invoices and other clerical work. Her direct supervisors were Christian and Diane Diggs. Ward's mother, Barbara McHugh, worked on the second floor CSOS.
Ward alleges that Christian's sexual harassment began on her second day of work when she first met him. She describes Christian as "leering" at her when they were introduced, looking her up and down and telling her the other male students "really like[d]" her. Ward Deposition at 74. Later that day, Christian asked Ward to go to lunch with him. She assumed they would walk to a nearby sandwich shop, but Christian took her to his car. She rode with him "because he was my boss, and I didn't know what to do." Id. at 77. She testified that he took her for a fifteen minute ride on the expressway and frightened her by driving about eighty-five miles an hour and running a red light. Christian "leaned into" her during the ride.
For the following three weeks, Christian repeatedly asked Ward to go on dates. According to her, he asked every time they were alone and only when they were alone. Id. at 83. Ward consistently refused. Although Ward had her own desk, Christian would have her perform work at his desk when Ward's other supervisor, Diane Diggs, was out of the room. Ward testified that Christian kissed her on two occasions. The first time, he kissed the top of her head. With respect to the second kiss, Ward testified that Christian attempted to kiss her on the lips, yet because she lowered her head, the kiss landed on her forehead.
Ward told her mother, Barbara McHugh, on a daily basis about Christian's conduct and that it made her feel uncomfortable. After McHugh learned of the second kiss, she spoke with John Hollifield, the Associate Director of CSOS. Hollifield was receptive to her concerns and stated that even a hint of sexual harassment would not be tolerated. Hollifield then spoke with Christian, who denied the alleged conduct. Although Hollifield had not revealed the identity of the complainant, Christian inquired whether Ward or McHugh had made the complaint. Hollifield Deposition at 30-31. Hollifield also spoke with Diggs about McHugh's concerns and ultimately concluded that no harassment had occurred. Hollifield then told McHugh that her daughter had misinterpreted Christian's conduct as sexual harassment. Although Hollifield had instructed Christian not to discuss the matter with McHugh, Christian subsequently confronted McHugh and threatened to file a defamation suit against her. Hollifield Deposition at 43. Ward claims that Christian retaliated against her by assigning her the more mundane duties in the less attractive portion of the basement.[3]
Hollifield and McPartland later suggested to McHugh that Ward move to a different section of CSOS in a separate building for the rest of the summer. McHugh passed this suggestion on to her daughter. Ward declined to move because she liked the others in the basement at CSOS and because "I didn't feel that I should have to move because [Christian] did something wrong. I didn't do anything." Ward Deposition at 104. Christian continued to work in the basement at CSOS. During the week that *372 Diane Diggs, Ward's other supervisor, was on vacation, Ward worked on the second floor with her mother.
The University has a policy prohibiting the sexual harassment of its employees which is published in its "Staff Handbook." Cusimano alleges that she did not have knowledge of this policy nor of any mechanism within the University for reporting sexual harassment. Although she requested a copy of the Staff Handbook from the human resources department of the University, she never received one. Like Cusimano, Ward never received a copy of the University's policy on sexual harassment and was not aware of the procedures for reporting sexual harassment. The University does not have a policy of distributing Staff Handbooks to summer student employees. Neither McPartland nor Hollifield ever received training on sexual harassment. See McPartland Deposition at 143; Hollifield Deposition at 30.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if the evidence before the Court, consisting of the pleadings, depositions, answers to interrogatories, and admissions of record, establishes that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Rule 56 mandates the entry of summary judgment against a party who, after reasonable time for discovery and upon motion, "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S. Ct. at 2552. "[A] complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial [and] [t]he moving party is `entitled to judgment as a matter of law.'" Id. at 323, 106 S. Ct. at 2553. (citations omitted).
If the evidence favoring the non-moving party is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986) (citations omitted). Unsupported speculation is insufficient to defeat a motion for summary judgment. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (citing Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir. 1986)). Moreover, the mere existence of some factual dispute is insufficient to defeat a motion for summary judgment; there must be a genuine issue of material fact. Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2509-10. Thus, only disputes over those facts that might affect the outcome of the case under the governing law are considered to be "material." Id. Finally, in assessing such a motion, the Court must view the evidence and all justifiable inferences in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 993, 8 L. Ed. 2d 176 (1962) (per curiam).
With these principles in mind, the Court will address the arguments presented by the parties.
III. THE UNIVERSITY'S MOTIONS FOR SUMMARY JUDGMENT
This case presents two unique preliminary issues: first, whether the Fourth Circuit's application of Title VII standards in cases of hostile environment sexual harassment is consistent with the recent Supreme Court decision in Harris v. Forklift Sys., ___ U.S. ___, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993); and second, whether the standards applicable to a Title VII claim of hostile environment sexual harassment are to be applied to a similar claim brought under Title IX.
A. Sexual Harassment Under Title VII.
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has recognized that the sexual harassment of an employee may give rise to a claim of sex discrimination under Title VII. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64, 106 *373 S.Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986) ("The phrase `terms, conditions, or privileges or employment' evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment....") (internal quotations and citations omitted). The Court established that when "discriminatory intimidation, ridicule, and insult," id. at 65, 106 S. Ct. at 2405, in the workplace is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," Title VII is violated. Id. at 67, 106 S. Ct. at 2405 (internal quotations and citations omitted).
There are two theories under which sexual harassment is actionable. One is known as "quid pro quo," in which sexual favors are directly linked to some monetary or employment benefit. Meritor, 477 U.S. at 65, 106 S. Ct. at 2404. The other is the hostile environment theory, in which the harasser's conduct "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." 29 C.F.R. § 1604.11(a)(3); Meritor, 477 U.S. at 65, 106 S. Ct. at 2404-05. In this case, Plaintiffs bring their claim under the hostile environment theory.
The Supreme Court recently reaffirmed Meritor in Harris, ___ U.S. at ___, 114 S.Ct. at 370, and clarified the standard of proof to be applied in a sexual harassment claim. The Harris Court characterized the standard as a "middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause tangible psychological injury." Id. at ___, 114 S.Ct. at 370. The Court further elaborated on this middle path:
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment an environment that a reasonable person would find hostile or abusive is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment and there is no Title VII violation.
But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their ... gender ... offends Title VII's broad rule of "workplace equality."
Id. at ___, 114 S.Ct. at 370-71.
Harris resolved "a conflict among the Circuits on whether conduct, to be actionable as `abusive work environment' harassment ... must seriously affect an employee's psychological well-being or lead the plaintiff to suffer injury." Id. at ___, 114 S.Ct. at 370 (internal quotations and brackets omitted). Harris answered this question by finding that "concrete psychological harm [is] an element Title VII does not require." Id. at ___, 114 S.Ct. at 371. The Court explained further: "Certainly Title VII bars conduct that would seriously affect a reasonable person's psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive ... there is no need for it also to be psychologically injurious." Id. (internal citations omitted).
The Fourth Circuit's and this Court's prior decisions are consistent with Harris. See, e.g., Paroline v. Unisys Corp., 879 F.2d 100, 104-05 (4th Cir.1989) (requiring that the alleged harassment interfered with the plaintiff's ability to perform her work or significantly affected her psychological well-being) (emphasis added), vacated in part on other grounds, 900 F.2d 27 (4th Cir.1990); Boarman v. Sullivan, 769 F. Supp. 904, 909 (D.Md.1991) (Nickerson, J.) (applying the standards set forth in Paroline); Raley v. Board of St. Mary's County Com'rs, 752 F. Supp. 1272, 1280 (D.Md.1990) (Nickerson, *374 J.) (same). Thus, this Court continues to be guided by Paroline.
B. Hostile Environment Sexual Harassment Under Title IX.
Before the Court turns to the application of the standards of Paroline, it must address a second preliminary question: whether Title VII standards apply in a case brought under Title IX. Title IX of the Education Amendments of 1972 provides: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance...." 20 U.S.C. § 1681.[4] Few courts have addressed the appropriate standard of proof to be applied in a case where the plaintiff alleges hostile environment sexual harassment under Title IX. Although neither the Supreme Court[5] nor the Fourth Circuit have directly addressed this issue, decisions in other circuits and districts provide guidance.
Defendant contends that the appropriate standard for establishing a prima facie case of sexual harassment under Title IX is enumerated in Bougher v. University of Pittsburgh, 713 F. Supp. 139 (W.D.Pa.), aff'd on other grounds, 882 F.2d 74 (3d Cir.1989). In Bougher, the district court flatly concluded that "Title IX simply does not permit a `hostile environment' [sex discrimination] claim." Id. at 145. The Bougher court applied a standard of proof derived directly from the language of Title IX: "To prove a prima facie case, plaintiff must show 1) that she was excluded from participation in or denied the benefits of or subjected to discrimination in an educational program; 2) that the program receives federal assistance; and 3) that the exclusion was on the basis of sex." Id. at 143-44. Defendant's reliance on this case and its stringent standard is misplaced. The facts of Bougher are distinct from those presented here. Unlike Cusimano and Ward, who bring their case as employees, the plaintiff in Bougher was a student who alleged discrimination based on sex by the university's teachers. Moreover, in affirming the district court's opinion in Bougher, the court of appeals based its decision on the issue of the statute of limitations. The court "decline[d] to adopt [the district court's] reasoning in toto and [found] it unnecessary to reach the question, important though it may be, whether evidence of a hostile environment is sufficient to sustain a claim of sexual discrimination in education in violation of Title IX." Bougher v. University of Pittsburgh, 882 F.2d 74, 77 (3d Cir.1989). See Patricia H. v. Berkely Unified School District, 830 F. Supp. 1288, 1291 (N.D.Cal.1993) (finding similar reliance on Bougher to be "misplaced").
Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.1988), is more closely on point with the present case. In Lipsett, the plaintiff, both a student and an employee of the university, alleged that her supervisor had sexually harassed her in her capacity as an employee. With respect to the plaintiff's Title IX claim, the First Circuit applied the Meritor analysis of hostile environment claims to decide the liability of an education institution under Title IX. Id. at 899-901; see id., at 899 ("Although the plaintiff in Meritor sued under Title VII, we apply the same analysis to sexual harassment claims under Title IX.").
Similarly, in Mabry v. State Bd. of Community Colleges and Occupational Educ., 813 F.2d 311 (10th Cir.), cert. denied, 484 U.S. 849, 108 S. Ct. 148, 98 L. Ed. 2d 104 *375 (1987), the Tenth Circuit noted that Title VII standards should be applied to a case of gender discrimination brought under Title IX. The plaintiff in Mabry alleged that her employment from an educational institution was terminated because of her gender and her marital/parental status. The court "f[ou]nd no persuasive reason not to apply Title VII's substantive standards regarding sex discrimination to Title IX suits." Id. at 316. The court elaborated in a footnote: "Because Title VII prohibits the identical conduct prohibited by Title IX, i.e. sex discrimination, we regard it as the most appropriate analogue when defining Title IX's substantive standards...." Id. at n. 6. See also, Serda v. Joseph Hancock, 842 F. Supp. 1315 (D.Kan.1993) ("conclud[ing] that the substantive law of Title VII should be used to determine whether the [defendants (owners of a vocational school) ] may be liable for the alleged acts of harassment by its director against [the plaintiff, a vocational student]."); Patricia H., 830 F.Supp. at 1293 (finding that "the law permits plaintiffs to state a claim for hostile environment sexual harassment under Title IX") (involving claims by a student that a teacher employed by the defendant had sexually harassed her in violation of Title IX).
In addition, the Court notes that the legislative history of Title IX indicates that Title VII standards were contemplated by Congress:
One of the most important pieces of legislation which prompted the cause of equal employment opportunity is Title VII of the Civil Rights Act of 1964 which ... prohibits any practice by employers which would tend to discriminate against an employee ... on the basis of ... race, religion, sex or national origin. Title VII, however, specifically excludes educational institutions from its terms. [Title IX] would remove that exemption and bring those in education under the equal employment provisions.
H.R.Rep. No. 554, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News 2462, 2512.
In light of the cases discussed, the legislative history and the Supreme Court's directive to give Title IX "a sweep as broad as its language," North Haven Bd. of Education v. Bell, 456 U.S. 512, 521, 102 S. Ct. 1912, 1918, 72 L. Ed. 2d 299 (1982), the Court determines that Plaintiffs' Title IX claims are appropriately analyzed under the standards applicable to cases brought under Title VII.
C. The Prima Facie Elements of a Sexual Harassment Claim.
To prove a hostile work environment claim under Title VII, Plaintiffs must show "(1) that the conduct in question was unwelcome, (2) that the harassment was based on sex, (3) that the harassment was sufficiently pervasive or severe to create an abusive working environment, and (4) that some basis exists for imputing liability to the employer." Paroline, 879 F.2d at 104-05. The University does not dispute that there is a genuine dispute of fact as to whether Christian's conduct was unwelcome by Plaintiffs.
1. The Sexual Nature of the Alleged Conduct. With respect to the second element, the University argues that Christian's conduct toward Cusimano was not "based on sex" because it did not carry sexual overtones.[6] Cusimano has presented sufficient evidence, however, upon which a jury could reasonably conclude that Christian's conduct towards her was sexual. Conduct need not be accompanied by explicit sexual comments in order for a finder of fact to determine that it is sexual in nature. Whether Christian's brushing up against Cusimano, whispering in her ear, and touching her lower back was conduct "based on sex" is a question to be determined by the jury.
2. Pervasiveness and Severity of the Conduct. Whether the alleged harassment was sufficiently severe or pervasive is "quintessentially a question of fact." Paroline, 879 F.2d at 105. Summary judgment is only appropriate if, accepting all Plaintiffs' evidence as true and drawing all inferences in their favor, a jury could not reasonably conclude that Christian's conduct was so severe or pervasive as to create an abusive or *376 hostile working environment. Id. To determine whether the conduct meets this standard, the evidence must be examined from both the subjective and objective perspectives. Plaintiffs "must first demonstrate that the harassment interfered with her ability to perform her work or significantly affected her psychological well-being." Id. The next question is "whether the harassment would interfere with the work performance or significantly affect the psychological well-being of a reasonable person in the plaintiff's position." Id.
In Harris, the Court noted that there is no "mathematically precise test" for determining whether a work environment is hostile or abusive. ___ U.S. at ___, 114 S.Ct. at 371. The Court listed several factors to consider, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. Harris cautions that "no single factor is required." Id. With these considerations in mind, the Court determines that Plaintiffs have presented sufficient evidence to defeat the motions for summary judgment.
With respect to Cusimano's claims, there is evidence that the conduct in question was frequent: Cusimano testified that "Every time [Christian] was in the office or in the copy room, he would touch me in some way. He could not speak to me without touching me or without being six inches from my face." Cusimano Deposition at 119. Cusimano states that she constantly had to maneuver her workload to avoid Christian as much as possible.[7] She felt physically threatened by the incident in her apartment with the gun. Cusimano states that she suffers from migraine headaches, has trouble sleeping because of Christian's conduct and has become less trusting of men. Id. at 9. She submits the report of a psychiatrist to corroborate evidence of her injury. With respect to Ward's claims, she states that she was physically affected in that she "was exhausted the end of the day after trying to figure out where [Christian] was at all times as a way of protecting myself from him." Ward Affidavit at ¶ 22. The alleged harassment was frequent it occurred every time she and Christian were alone. She testified that Christian's conduct has caused her to suffer headaches and nightmares and submits the report of a psychiatrist to support this evidence. A jury could reasonably conclude from this evidence that Christian's conduct interfered with Cusimano's and Ward's ability to work or affected their psychological well-being and that a reasonable person would have been so affected.[8]
3. Imputing Liability to the University. With respect to imputing liability to the employer, "an employer is liable for one employee's sexual harassment of another worker if the employer had actual or constructive knowledge of the existence of a sexually hostile working environment and took no prompt and adequate remedial action." Paroline, 879 F.2d at 106 (internal quotations and citations omitted). Plaintiffs can demonstrate the University's knowledge by showing that it knew or should have known of the harassment. Lipsett, 864 F.2d at 898-901 ("[I]in a Title IX case, an educational institution is liable ... if an official representing that institution knew, or ... should have known, of the harassment's occurrence, unless that official can show that *377 he or she took appropriate steps to halt it."); Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983) (holding employer liable for hostile environment sexual harassment under Title VII if the "employer knew or should have known of the harassment, and took no effectual action to correct the situation").
Whether the University had actual or constructive notice of harassment of either Plaintiff is a genuinely disputed fact in this case. Cusimano alleges that she told both Colton and Hinte that she felt Christian's behavior was inappropriate. Ward alleges that the University was on constructive notice of Christian's harassment because it knew or should have known that several other women, including Cusimano, had been harassed by him. See Plaintiffs' Opposition, Exhibits 7-9 (Affidavits of other female employees at CSOS who claim that Christian sexually harassed them and that they informed their supervisors of his conduct). While the University disputes this evidence, it represents genuine questions of fact to be answered by the jury. Whether the University took "prompt and remedial action" upon this notice is likewise a question of fact to be determined by the jury. See Paroline 879 F.2d at 106 ("The adequacy of [Defendant's] remedy is a question of fact which a court may not dispose of at the summary judgment stage if reasonable minds could differ as to whether the remedial action was `reasonably calculated to end the harassment.'") (citation omitted).[9]
D. Ward's Retaliation Claim.
The prima facie elements of a discriminatory retaliation case brought under Title VII, 42 U.S.C. § 2000e-3[10] are: "(1) the employee engaged in protected activity, (2) the employer took adverse employment action against the employee, and (3) a causal connection existed between the protected activity and the adverse action." Raley v. Bd. of St. Mary's County Com'rs, 752 F.Supp. at 1281; see Ross v. Communications Satellite Corp., 759 F.2d 355 (4th Cir.1985). The University argues that because Ward has not presented evidence of "adverse employment action," she has not satisfied the second element.
This Court has previously applied the disparate treatment standards for employment discrimination as outlined by Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied, 454 U.S. 892, 102 S. Ct. 388, 70 L. Ed. 2d 206 (1981), in the context of a Title VII sexual harassment case. See Raley, 752 F.Supp. at 1281 ("It is the view of this Court ... that the guidelines of [Page] ... must be applied in retaliation contexts...."). In Raley, this Court defined "adverse employment action" to be "ultimate employment decisions," id. (quoting Page, 645 F.2d at 233), which Page defined as including "hiring, granting leave, discharging, promoting, and compensating." Page, 645 F.2d at 233. Under the Page standard, Ward's retaliation claim fails.
Ward alleges that Christian's retaliation consisted of not speaking to her and giving her less favorable assignments in the "dirtier" part of the basement. This action, while it may have been in retaliation for McHugh reporting Christian's conduct to Hollifield, does not amount to adverse employment action as a matter of law. In addition, Ward's claim that Hollifield's suggestion that she move to another division of CSOS was an act of retaliation is not supported by the record. If that suggestion indicates anything, it indicates an attempt, whether or not sufficient, to remedy the alleged harassment. Thus, to the extent that Ward's Third Amended Complaint states a claim of discriminatory retaliation,[11] that claim is dismissed.
*378 E. Injunctive Relief.
Plaintiffs request that the Court order the University (1) to reinstate Cusimano to her position at CSOS or a comparable position at the University and (2) to "create and implement a comprehensive policy and procedures [for] addressing sexual harassment." Third Amended Complaint, ¶¶ VI.D and E. The University argues that Plaintiffs' request for injunctive relief should be dismissed because they are no longer employed by the University and can only speculate that they will re-apply for future employment. The Court agrees. Neither Plaintiff has standing to request injunctive relief. Although they may intend to re-apply to the University, they have not done so. Because Cusimano does not claim constructive discharge, she cannot be reinstated to her job at CSOS. See Davis v. Marsh, 876 F.2d 1446, 1450-51 (9th Cir.1989) (plaintiff who has been discharged lacks standing for injunctive relief as "she has virtually no chance of suffering future sexual harassment...."). Plaintiffs' requests for injunctive relief will therefore be dismissed.
F. Punitive Damages.
The University argues that Plaintiffs' request for punitive damages should also be dismissed. Section 102(b)(1) of the Civil Rights Act of 1991 provides for punitive damages in cases of "malice or ... reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). Plaintiffs have presented several pieces of evidence relevant to this issue, including evidence that the University has been aware since 1989 that its policy and procedures pertaining to sexual harassment were inadequate, see Plaintiffs' Opposition, Exhibit 30 (Provost Reports on the Status of Women 1989-1991), and despite this awareness, did not update its policies or procedures and did not train the supervisors at CSOS on sexual harassment issues. In addition, there is evidence that the University may have known of Christian's inappropriate conduct before Plaintiffs worked at CSOS but did not act to prevent it. Without concluding that the evidence now before the Court will mandate ultimate submission of the punitive damage claim to a jury, it is sufficient to defeat the motion for summary judgment at this juncture in the proceedings.
IV. THE UNIVERSITY'S MOTION FOR SEVERANCE
On April 30, 1993, the Court granted Ward's motion to Amend the Complaint, noting that under Rule 20(b) of the Fed.R.Civ. P., it may later order separate trials to prevent prejudice. Now that discovery is complete, the University requests severance under Rules 20(b) and 42(b). The University argues that Cusimano's and Ward's claims involve separate and distinct sets of facts and joinder of them will result in prejudice to the University.
In support of its motion, the University cites Weir v. Litton Bionetics, 41 Fair Emp. Prac.Cas. 1150, 1986 WL 11608 (D.Md.1986) (Harvey, J.), in which the court granted the defendant's motion for severance. Weir is distinct from this case, however. While the two plaintiffs in Weir raised common questions of law in that they both alleged age discrimination by their employer, their cases involved entirely different sets of facts. They were employed in different divisions of the defendant company that "were operated independently ... with virtually no interchange of personnel." Id. at 1155, 1986 WL 11608, *6. By contrast, the present case involves common questions of law and fact and arises out of the same series of occurrences. Although Cusimano and Ward were not employed at CSOS at the same time, they allege harassment by the same individual. Each Plaintiff's case depends on allegations that the Co-Director (Jim McPartland), the Assistant Director (John Hollifield), and a supervisor (Barbara Colton) had notice of harassment by Christian, yet continuously failed to remedy it.
In King v. Ralston Purina Co., the court allowed joinder of three plaintiffs who worked in different divisions of the defendant company because "each alleges that he was discriminated against as part of a pattern and practice of unlawful age discrimination conducted by defendant...." 97 F.R.D. 477, 480 (W.D.N.C.1983). Similarly, in this case, Cusimano and Ward allege a pattern of sexual *379 harassment that the supervisors at CSOS continuously tolerated. See Duke v. Uniroyal Inc., 928 F.2d 1413, 1421 (4th Cir.) (affirming the lower court's denial of the defendant's motion for severance where the two plaintiffs, who alleged age discrimination and were both discharged as a result of the same reduction in force policy, raised common questions of law and fact), cert. denied, ___ U.S. ___, 112 S. Ct. 429, 116 L. Ed. 2d 449 (1991); Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1422 (S.D.N.Y.1989) (allowing joinder of plaintiffs where "all of the plaintiffs allege that they had been injured by the same general policy of permitting discrimination against women"). Because Cusimano's and Ward's claims arise out of the same series of occurrences and raise common questions of law and fact, their cases are properly joined under Fed.R.Civ.P. 20(a).
The Court notes that any undue prejudice to the University can be eliminated at trial by giving the jury a limiting instruction. See Duke, 928 F.2d at 1421 (noting that the district court prevented prejudice by giving the jury a limiting instruction); Hanley v. First Investors Corp., 151 F.R.D. 76, 80 (E.D.Tex.1993) (denying motion for severance and noting that jury prejudice and confusion can be prevented by limiting instructions). In Hanley, the court explained:
[I]t seems well within the jury's abilities to distinguish between the idiosyncracies of each case. They will be instructed to keep each plaintiff's claim separate, and to force each plaintiff to prove his or her claim and damages separately. In addition, they will be instructed that the mere presence of several plaintiffs does not permit an inference of liability.
Id. This Court has equal faith in the abilities of the jury to follow similar instructions. The Court will therefore deny the University's motion for severance.
V. CONCLUSION
For the reasons stated above, the Court will grant the University's motions for summary judgment with respect to Ward's claim of retaliation and both Plaintiffs' prayer for injunctive relief; deny the University's motions for summary judgment on all other issues; deny the University's motion for severance; and deny Plaintiffs' and Defendant's motions to strike. A separate Order will issue.
ORDER
In accordance with the foregoing Memorandum and for the reasons stated therein, IT IS this 22nd day of April, 1994, by the United States District Court for the District of Maryland, ORDERED:
1. That Defendant's Motion for Severance (Paper No. 54) is hereby DENIED;
2. That Defendant's Motions for Summary Judgment as to Beth E. Ward (Paper No. 65) and as to Theresa Cusimano (Paper No. 66) are hereby GRANTED IN PART AND DENIED IN PART as follows:
a. Plaintiff Beth Ward's claim of retaliation is hereby DISMISSED;
b. Plaintiffs' prayer for injunctive relief, Paragraphs VI.D and VI.E of the Third Amended Complaint, are hereby DISMISSED;
c. Defendant's Motions for Summary Judgment are, in all respects not otherwise indicated herein, DENIED;
3. That Defendant's Motion to Strike Affidavits and Photographs (Paper No. 76) is hereby DENIED;
4. That Plaintiffs' Motion to Strike Exhibits 25 and 27 (Paper No. 79) is hereby DENIED.
NOTES
[1] For reasons not given by the parties, Christian is no longer employed at CSOS.
[2] Cusimano did not elaborate on these conversations with Colton and Hinte in her deposition, but only stated that she "alluded to this behavior on numerous occasions to Bridgette Hinte." Cusimano Deposition at 121. Defendant argues that her affidavit is fabricated in response to its motion for summary judgment and moves to strike it. Because the testimony in the deposition and the affidavit do not directly conflict, the Court will deny Defendant's motion.
[3] In support of this allegation, Ward has submitted several photographs of the basement area. Defendant moves to strike these photographs on the grounds that they have not been authenticated. Plaintiffs have subsequently provided authentication. The Court therefore denies this motion.
[4] Defendant does not deny it receives Federal financial assistance.
[5] See Franklin v. Gwinnett County Pub. Sch., ___ U.S. ___, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992). The issue in Franklin was whether monetary damages are an available remedy in a case of sexual harassment brought under Title IX. The petitioner/plaintiff was a student who alleged that a teacher employed by the defendant had sexually harassed her. The Court determined that it "need not address" the Eleventh Circuit's rejection of petitioner's argument that the remedies under Titles VII and IX are identical. Id. at ___, n. 4, 112 S. Ct. at 1032, n. 4. In addition, because the petitioner in Franklin alleged intentional discrimination, the Court did not address the issue of whether the "knew or should have known" standard of Title VII or the higher intentional standard of Title VI of the Civil Rights Amendments should apply. Id. at ___, 112 S.Ct. at 1037.
[6] The University does not dispute that Christian's alleged conduct toward Ward was sexual.
[7] Evidence of Cusimano's avoidance of Christian is corroborated by Judith Paver, a CSOS employee who was trained by Cusimano. See Opposition, Exhibit 7, Paver's Affidavit, ¶ 3.
[8] The Court's decision to permit these issues to go before the jury is consistent with Shope v. Bd. of Supervisors of Loudoun County, 1993 WL 525598, 1993 LEXIS 33058, 63 Empl.Prac.Dec. (CCH) p. 42,755 (4th Cir. Dec. 20, 1993). In Shope, the Fourth Circuit applied the Harris standard to a case in which the plaintiff alleged a hostile work environment based on gender discrimination under 42 U.S.C. § 1983. The plaintiff in Shope presented evidence at trial that her supervisor's constant verbal disparagements of her focused on her gender and on occasion were coupled with conduct that threatened physical abuse, such as pounding on the desk and shouting in the plaintiff's face. Affirming the jury verdict in the plaintiff's favor, the court stated, "This evidence is the sort the Supreme Court recently indicated would suffice to make out a hostile working environment claim based on sex discrimination." Id. at *2, 1993 LEXIS 33058, at *4.
[9] The University submits copies of its policy against sexual harassment in support of its case. However, "to avoid liability under Title VII, an employer on notice of sexual harassment must do more than indicate the existence of an official policy against such harassment." Katz, 709 F.2d at 256.
[10] Section 2000e-3 provides: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by [Title VII]...."
[11] The Third Amended Complaint contains no separate count for retaliation. In her opposition to the motion for summary judgment, Ward uses the term "retaliatory harassment," Ward Opposition at 45, indicating that the allegations of Christian's retaliation against her are part of her Title VII claim rather than a separate claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261418/ | 861 F. Supp. 182 (1994)
UNITED STATES of America, Plaintiff,
v.
Joseph A. MACCHIA, etc., et al., Defendants.
No. CR 92-1147(S-1).
United States District Court, E.D. New York.
August 24, 1994.
*183 *184 Stephen Huggard, U.S. Dept. of Justice, Northern Criminal Enforcement Section, Washington, DC, for plaintiff.
Howard D. Stave, Forest Hills, NY, for defendant Joseph A. Macchia.
Ephraim Savitt, New York City, for defendant Balagula.
Lefcourt & Dratel, P.C. by Gerald B. Lefcourt, New York City, for defendant Lawrence Macchia.
Newman & Schwartz by Robert Hill Schwartz, New York City, for defendant George Macchia.
Paul B. Bergman, New York City, for defendant Varzar.
Dilworth, Paxson, Kalish & Kaufman by J. Shane Creamer, Philadelphia, PA, for defendant Barberio.
Deinst, Serrins, Newman, O'Malley & Epstein by Kenneth I. Wirfel, New York City, for defendant Joseph L. Macchia, Jr.
WEXLER, District Judge.
In the above-captioned criminal action, by superseding indictment filed June 30, 1993 (the "Superseding Indictment"), the government charges defendants Joseph A. Macchia, his three sons Lawrence Macchia, George Macchia and Joseph L. Macchia, Marat Balagula, John Barberio, Viktor Batuner and Michael Varzar with conspiracy to evade the federal gasoline excise tax in violation of 18 U.S.C. §§ 371 and 3623. In addition, the Superseding Indictment charges various of the defendants with attempted excise tax evasion in violation of 26 U.S.C. § 7201 and 18 U.S.C. §§ 2 and 3623. Presently before the Court is defendant Lawrence Macchia's ("Macchia") motion to dismiss the Superseding Indictment on the basis of a written immunity agreement between himself and the government or, in the alternative, to conduct a pretrial hearing pursuant to Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).
I. BACKGROUND
Count One of the Superseding Indictment charges defendants with participating in a conspiracy to evade over $85 million in federal gasoline excise taxes, on nearly one billion gallons of gasoline, stemming from a "daisy chain" scheme occurring "from about the end of 1982 or beginning of 1983 ... and continuing thereafter up through and including the middle of 1988." Superseding Indictment ¶ 2. In a "daisy chain" scheme, gasoline taxes are evaded by the creation of a "burn company," generally owned under an alias, which issues invoices reflecting that the applicable excise tax had been paid. By the time the government discovers the nonpayment of tax, the "burn company" will have been dissolved and unavailable to pay the tax.
In short, the Superseding Indictment alleges that a company called New York Fuel Terminal Corporation ("NYFT"), controlled by Joseph A. Macchia and his three sons, sold large quantities of gasoline to unlicensed companies without paying to the United States the federal excise tax due and owing on those sales. NYFT allegedly sold the gasoline to the unlicensed companies in a variety of ways, and created a variety of falsified documents and records to cause the Internal Revenue Service to believe that "burn companies," and not NYFT, owed the *185 excise taxes on the gasoline sold by NYFT to the unlicensed companies.
The Superseding Indictment also charges various of the defendants in six counts with attempted excise tax evasion in violation of 26 U.S.C. § 7201 and 18 U.S.C. §§ 2 and 3623. Macchia is charged in four of these counts Counts Four through Seven. Each of these counts alleges that Macchia and certain other defendants attempted to evade federal excise taxes due and owing from NYFT to the United States by preparing and filing (or causing to be prepared and filed) false quarterly excise tax returns, and by, among other things, making or causing to be made false books and records, false invoices and documents, false statements to IRS employees, and by concealing assets and covering up sources of income. Count Four concerns the period May 1, 1986 to October 31, 1986, and the tax quarter ending September 30, 1986. Count Five concerns the period October 1, 1986 to January 31, 1987, and the tax quarter ending December 31, 1986. Count Six concerns the period July 1, 1987 to October 31, 1987, and the tax quarter ending September 30, 1987. Count Seven concerns the period October 1, 1987 to January 31, 1988, and the tax quarter ending December 31, 1987.
Prior to April 1986, the United States Department of Justice ("DOJ") had been investigating alleged tax evasion in the gasoline industry. Part of this investigation included an investigation of NYFT, which was represented by the law firm of Herzfeld & Rubin, P.C. ("H & R") in connection with the investigation. One of the H & R attorneys on the matter was Terry Myers, Esq. ("Myers"). In connection with the investigation, NYFT produced a large volume of documents subpoenaed by the government. Up to that point in time, according to Myers, the government, by Special Assistant United States Attorney Ronald W. Hayward ("SAUSA Hayward"), had informed Myers that NYFT was considered at least a witness in the government's investigation. Affidavit of Terry Myers, dated November 3, 1993 ("Myers Aff."), ¶ 3.
In April 1986, before Macchia or NYFT became targets, the government requested that Macchia submit to an interview. Through Myers, Macchia agreed to be interviewed, but "not without an appropriate immunity agreement." Myers Aff. ¶ 3.
Prior to the first interview session, which was held on April 18, 1986, an informal immunity agreement, in a letter dated April 16, 1986, was prepared by DOJ and signed by Special Assistant United States Attorney Christopher Ulrich, and presented to Myers. The April 16 letter, at that point, provided:
This letter will serve to confirm our understanding of the proposed interview of your client, Lawrence Macchia, by attorneys of the U.S. Department of Justice, and Internal Revenue Service, and Special Agents of the Federal Bureau of Investigation and Internal Revenue Service to be held on April 18, 1986. The following understanding exists between you, on behalf of Lawrence Macchia, and the Office of the U.S. Department of Justice, Organized Crime Strike Force for the Eastern District of New York:
1. This Office, in conjunction with a Special Grand Jury sitting in this District, is conducting investigations concerning possible violations of federal criminal laws, including the crime of racketeering (18 U.S.C. § 1961) and various tax laws (Title 26 U.S.C.) in connection with the gasoline industry;
2. In connection with the above investigation, Lawrence Macchia has agreed to be interviewed on April 18, 1986, by government attorneys and agents and to provide complete and truthful responses to all questions asked of him regarding his knowledge of, and participation in, any criminal activity under investigation by this Office;
3. Any truthful statements made by Lawrence Macchia in response to questions asked of him by government attorneys and agents during this interview will not be used against Lawrence Macchia in any criminal prosecution by the United States government, or by the State of New York, or its political subdivisions;
4. The foregoing constitutes the entire understanding reached by the parties regarding the interview of Lawrence Macchia *186 on April 18, 1986. No additional understandings, promises, agreements or conditions have been entered into other than those set forth in this letter, and none will be entered into unless in writing and signed by all parties.
....
At some point prior to commencing the first interview, the government and Macchia's counsel agreed to certain handwritten additions to paragraph three of the April 16 letter. Specifically, the following was added after the word "interview": "or any information arising from or relating thereto." In the margin adjacent to paragraph three appears the notation "R. Hayward Special Assistant United States Attorney." At a hearing on this motion, Myers testified that the interlineation was made by an H & R partner, Herbert Rubin ("Rubin"), and the margin notation was made by SAUSA Hayward. Tr. 39. Neither party, however, submitted testimony of either Rubin or SAUSA Hayward regarding the Immunity Agreement or this interlineation. The letter immunity agreement, dated April 16, 1986, in its final form was then executed by Myers on behalf of H & R and by Macchia (the "Immunity Agreement"). Macchia then participated in the April 18 interview and three additional interview sessions, the last of which concluded on July 24, 1986. Each of the interview sessions was subject to the terms of the Immunity Agreement.
By this motion, Macchia seeks dismissal of the Superseding Indictment contending that the Immunity Agreement granted him both "transactional immunity" and "use immunity." On this basis, he argues that the transactional immunity granted to him precludes his prosecution for the offenses alleged in the Superseding Indictment. Macchia argues that, in any event, the use immunity granted to him requires dismissal of the Superseding Indictment because the government used his immunized statements against him in violation of the Immunity Agreement, or, in the alternative, a hearing, commonly known as a Kastigar hearing, to determine whether the government employed independent sources for the information and documents it used in the investigation and used or plans to use in his prosecution. As for any Kastigar hearing, Macchia requests that it be held before trial. In the alternative, Macchia requests a severance from the other defendants.
In opposition to the motion, the government contends that the Immunity Agreement conferred direct use immunity and derivative use immunity (together referred to simply as "derivative use immunity"), not transactional immunity, but that, in any event, Macchia breached the Immunity Agreement by providing untruthful answers at the interview sessions. As a result of Macchia's alleged breach, the government argues that the Immunity Agreement is void and unenforceable, thereby permitting the government to use Macchia's interview statements and information derived therefrom to prosecute him on the charges in the Superseding Indictment. In addition, the government argues that if a Kastigar hearing is required it should be held, if necessary, after trial.
After an initial oral argument on this motion on January 18, 1994, Macchia offered to establish for the Court that his statements were so inextricably intertwined with the subject matter of the Superseding Indictment that a hearing would be necessary to determine whether the government had independent sources for the information and documents it used in the investigation and used or plans to use in the prosecution. On March 11 and 18, 1994, this Court held a hearing at which Myers testified concerning the details of Macchia's interviews with the government. According to Myers, the interviews involved discussions of a variety of subjects regarding Macchia's role and participation in the business affairs of NYFT and affiliated companies, as well as his knowledge of and contact with persons and entities in the gasoline industry. Myers testified that during these interviews Macchia reviewed certain documents and discussed specific transactions engaged in by NYFT. Myers' testimony, his contemporaneous notes from the interviews, and documents introduced with his testimony made apparent that the subject matter of the interviews was sufficiently connected with the subject matter of the Superseding Indictment. Thereupon, the *187 Court ended the hearing and directed further submissions of authority on the issues raised.
The issues posed to the Court, as framed by Macchia in his submission to the Court, dated April 8, 1994, are as follows:
(1) whether the April 16, 1986, letter agreement between the government and Mr. Macchia conferred upon him transactional immunity [and use immunity], or, as the government claims, [only] derivative use immunity;
(2) whether, if the letter immunity agreement confers only derivative use immunity, the hearing mandated under Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653 [32 L. Ed. 2d 212] (1972), should be held prior to trial, or, as the government claims, following trial; and
(3) whether, under the terms of the letter immunity agreement, in the absence of any such language, any untruthful statement by Mr. Macchia during the four interview sessions void the letter immunity agreement and, if so, how, and by what standard, must the government prove that Mr. Macchia's statements were untruthful.
Letter from Defendant's Counsel to the Court, dated April 8, 1994, at p. 3 (emphasis omitted).
II. DISCUSSION
A. Type of Immunity Granted
As posed by Macchia, the first issue this Court must decide is whether the Immunity Agreement conferred upon Macchia use and transactional immunity or only derivative use immunity. In short, transactional immunity is "immunity from prosecution on any charges related to the witness's testimony." Kastigar v. United States, 406 U.S. 441, 444, 92 S. Ct. 1653, 1656, 32 L. Ed. 2d 212 (1972); United States v. Nemes, 555 F.2d 51, 55 (2d Cir.1977). By contrast, derivative use immunity is "[i]mmunity from use of compelled testimony, as well as evidence derived directly and indirectly therefrom." Kastigar, 406 U.S. at 444, 92 S. Ct. at 1656; United States v. Pelletier, 898 F.2d 297, 302 (2d Cir.1990); see also United States v. Plummer, 941 F.2d 799, 803 (9th Cir.1991) (distinguishing direct use immunity from derivative use immunity in an informal immunity agreement).
Under established principles, the Immunity Agreement must be interpreted according to principles of contract law. See United States v. Liranzo, 944 F.2d 73, 77 (2d Cir.1991). Under general principles of contract law, "where the language of a contract is unambiguous, the parties' intent is discerned from the four corners of the contract." See id.; see also Metropolitan Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir.1990). Moreover, "[l]anguage whose meaning is otherwise plain is not ambiguous merely because the parties urge different interpretations in the litigation." Metropolitan Life, 906 F.2d at 889. Indeed, the "court should not find the language ambiguous on the basis of the interpretation urged by one party, where that interpretation would `strain[] the contract language beyond its reasonable and ordinary meaning.'" Id. (quoting Bethlehem Steel Co. v. Turner Construction Co., 2 N.Y.2d 456, 161 N.Y.S.2d 90, 93, 141 N.E.2d 590, 593 (1957)). Where the contract language is unambiguous, the parties' rights "should be fathomed from the terms expressed in the instrument itself rather than from extrinsic evidence as to terms that were not expressed or judicial views as to what terms might be preferable." Id.
Macchia contends that although the Immunity Agreement initially conferred "use" immunity, "by the process of negotiation, it was transformed into an agreement that also grants Mr. Macchia transactional immunity." Affidavit of Gerald B. Lefcourt, dated November 8, 1993 ("Lefcourt Aff."), ¶ 16. Macchia claims that this "transformation" to transactional immunity is evidenced by the handwritten interlineation in paragraph three "or any information arising from or relating thereto." Macchia claims that this wording created immunity for "all offenses related to statements he made in [the] four interviews." Memorandum of Law in Support of Defendant Lawrence Macchia's Pre-Trial Motions ("Def.Mem."), at 6-7. He claims this intent is evident in that the interlineation is "separated from the `use' portion of the grant of immunity by an `or.'" Reply *188 Memorandum of Law in Support of Defendant Lawrence Macchia's Pre-Trial Motions ("Reply Mem."), at 7. As Macchia reasons, "since the government cannot use any information relating to the substance of Mr. Macchia's statements, he cannot be prosecuted for any offenses relating to the subject matter of those statements." Def.Mem. at 10 (emphasis in original). Based on this interpretation of the Immunity Agreement, Macchia concludes that the Immunity Agreement precludes his prosecution here "since the offenses charged in the [Superseding] Indictment are directly related to the subject matter of [his interview] statements." Id. at 7.
In opposition, the government denies that it intended to grant transactional immunity by reason of the addition to paragraph three. That language, the government argues, reflected a change from use immunity to a grant of derivative use immunity only.
This Court finds that the language of the Immunity Agreement is unambiguous on its face, notwithstanding the different interpretations now urged by the parties. See Metropolitan Life, 906 F.2d at 889. Consequently, its proper construction is a matter of law for the Court. That being the case, this Court finds that the Immunity Agreement conferred upon Macchia derivative use immunity only. Contrary to Macchia's imaginative interpretation, the Immunity Agreement does not grant him immunity for "offenses related to" his interview statements. Rather, the interlineation in paragraph three extends the grant of immunity for Macchia's "truthful statements" to include immunity for information arising from or relating to those statements, an indication of derivative use immunity, not transactional immunity. The prohibition is on "use" in any prosecution of statements and information derived therefrom, and not, as Macchia suggests, on prosecution for offenses relating to the subject matter of those statements. Macchia's interpretation must be rejected as it strains the contract language beyond its reasonable and ordinary meaning. See id. No where does the Immunity Agreement express an intent to prohibit prosecution of offenses relating to the subject matter of Macchia's interview statements. Indeed, the interlineation comes before the language prohibiting use (i.e., "will not be used against Lawrence Macchia in any criminal prosecution"), indicating that it merely broadens the prohibition on "use." Rationally interpreted, the agreement provided for "use immunity" before the interlineation in paragraph three, and "derivative use immunity" after the interlineation. Notably, Macchia was represented by experienced counsel at the time he negotiated and executed the Immunity Agreement. Had the parties intended to prohibit prosecution, rather than only derivative use of statements and information derived therefrom, they surely could have chosen words to effectuate this intent.
In opposition to the motion, the government asserts that, in any event, the Immunity Agreement does not apply to crimes committed after Macchia's interviews concluded on July 24, 1986, that is, to future criminal conduct. In reply, Macchia argues that the Immunity Agreement conferred immunity to all offenses charged in the Superseding Indictment, including offenses allegedly committed after the interviews. Regardless of Macchia's argument as to the applicability of the Immunity Agreement to future conduct, because this Court holds that the Immunity Agreement grants derivative use immunity only, not transactional immunity, none of the counts must be dismissed. Nevertheless, the derivative use immunity granted does extent to subsequent offenses committed as part of a course of continuing criminal activity, but it does not extend to criminal activity which occurred wholly in the future or wholly unrelated to the immunity. See United States v. Gallo, 859 F.2d 1078, 1081-82 (2d Cir.1988), cert. denied, 490 U.S. 1089, 109 S. Ct. 2428, 104 L. Ed. 2d 986 (1989); United States v. Quartermain, 613 F.2d 38, 42 (3d Cir.), cert. denied, 446 U.S. 954, 100 S. Ct. 2923, 64 L. Ed. 2d 812 (1980); United States v. Brown, 763 F. Supp. 1518, 1531-32 (D.Ariz.1991), aff'd, 979 F.2d 1380 (9th Cir. 1992). Thus, the Immunity Agreement extends to the conspiracy alleged in Count One, which the Superseding Indictment alleges Macchia participated in from "about the end of 1982 or beginning of 1983 ... and continuing *189 thereafter up through and including the middle of 1988," Superseding Indictment ¶ 2, and Count Four which occurred, for the most part, contemporaneously with the interviews. From the allegations of the Superseding Indictment, this Court can not say that the offenses alleged in Counts Five through Seven occurred wholly in the future or wholly unrelated to the ongoing criminal activity alleged in Count One, the conspiracy to evade gasoline excise taxes, which allegedly was ongoing at the time of the interviews and continued to 1988. Accordingly, based on the record thus far, the Immunity Agreement applies to these offenses as well.
B. Timing of Kastigar Hearing
Based on this Court's determination that the Immunity Agreement conferred derivative use immunity only, and not transactional immunity, the second issue to be decided is whether the hearing pursuant to Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), should be held prior to trial or, if necessary, after trial. While under normal circumstance a Kastigar hearing should be conducted before trial, the circumstances here suggest that the better course would be to defer such a hearing, if necessary, until after trial. First, the government claims that Macchia breached the Immunity Agreement, thereby rendering it void and unenforceable. Whether Macchia breached the Immunity Agreement can better be determined upon a fully developed trial record. Statements made, and information provided, by Macchia to the government can better be assessed in light of a fully developed trial record. Second, after a trial, this Court will be in a better position to determine whether the government has independent sources for the information and documents it used in the investigation and at trial. Third, the government has expressed legitimate security concerns for the safety of witnesses who may be required to testify at a pretrial hearing, based largely on the presence in this action of co-defendant Marat Balagula ("Balagula"). Balagula was previously convicted in this Court for similar crimes, in an action involving some of the same defendants and witnesses (as made clear from prior motions by certain other defendants in this action), and security concerns were great in that action as well. See, e.g., United States v. Gregory, 611 F. Supp. 1033, 1042 (S.D.N.Y.1985).[1]
Accordingly, in this Court's discretion, a Kastigar hearing (if it becomes necessary) will be delayed until after trial so that a determination of this motion can be made, informed by a fully developed trial record. See United States v. Rivieccio, 723 F. Supp. 867, 868 (E.D.N.Y.1989), aff'd, 919 F.2d 812 (2d Cir.1990), cert. denied, 501 U.S. 1230, 111 S. Ct. 2852, 115 L. Ed. 2d 1020 (1991); United States v. Corrao, 1993 WL 63018, slip op. at 2 (E.D.N.Y. March 1, 1993).[2]
Because there is no basis for a severance, Macchia's alternative request for a severance is denied.
C. Determination of, and Remedies for, Breach
The government claims that Macchia breached the Immunity Agreement by failing to provide complete and truthful answers to the questions asked of him. The government *190 argues that Macchia's breach voided the Immunity Agreement, thereby abrogating his immunity protection and permitting the government to use his interview statements and information derived therefrom for all of the charges in the Superseding Indictment. Macchia, on the other hand, argues that the government's sole remedy for untruthful statements by him during the four interview sessions, if proved, is to charge him with perjury or giving a false statement.[3] Thus, the third issue before the Court is whether alleged untruthful statements by Macchia, if proved, render the Immunity Agreement void, and, if so, what is the standard for proving breach.
As the Second Circuit has recognized, because a "cooperation/immunity agreement is in the nature of a contract, its effect is strongly influenced by contract law principles." United States v. Pelletier, 898 F.2d 297, 301 (2d Cir.1990). "The remedies available in event of breach, as well as the conditions constituting breach, are government by the agreement." Id. at 301-02 (citations omitted); see United States v. Castelbuono, 643 F. Supp. 965, 968-69 (E.D.N.Y. 1986). In other words, "the scope and consequences of the immunity conferred are governed by the terms of the agreements." Pelletier, 898 F.2d at 302. "Unlike the normal commercial contract, however, due process requires that the government adhere to the terms of any ... immunity agreement it makes." Id.
Under the terms of the Immunity Agreement, Macchia's principal obligation was to provide "complete and truthful answers to all questions asked of him regarding his knowledge of, and participation in, any criminal activity under investigation." Immunity Agreement ¶ 2. While the Immunity Agreement does not provide a yardstick for determining breach by "untruthful statements," not every untruthful statement would constitute a breach. Rather, to establish breach, the government must prove material untruthful statements amounting to a "material and substantial breach." See Castelbuono, 643 F.2d at 971; see also United States v. Fitch, 964 F.2d 571, 574-75 (6th Cir.1992). Moreover, material omissions may also constitute a material and substantial breach, as the Immunity Agreement expressly requires "complete" answers to questions.[4]
As for whether a breach has occurred, the government may not make this determination unilaterally. See United States v. Tarrant, 730 F. Supp. 30, 32 (N.D.Tex.1990). Instead, the government has the burden to prove Macchia's breach, and must meet this burden by a preponderance of the evidence. See Fitch, 964 F.2d at 574-75; Tarrant, 730 F.Supp. at 32.
As for the effect of a breach, Macchia argues that the government is limited to a prosecution for perjury or giving a false statement. Macchia relies on Pelletier and *191 Fitch, supra. Both of those cases are distinguishable from the present one, because the informal immunity agreement in those cases expressly provided that the government's only remedy for breach was a prosecution for perjury. See Pelletier, 898 F.2d at 302; Fitch, 964 F.2d at 575. Thus, the Pelletier court held that because the government had granted use immunity and limited its remedy for false testimony to a prosecution for perjury, it was "not free to use that testimony either to indict or to obtain convictions on nonperjury charges." Pelletier, 898 F.2d at 302. Similarly, the Fitch court stated that the "immunity agreement did not provide that it would be `null and void' in the event Fitch lied, nor was it silent as to the consequences to Fitch of telling a lie. Instead, the agreement provided that Fitch could only be prosecuted for perjury, and we believe that the government should not be permitted to argue that it is not now bound by that provision." Fitch, 964 F.2d at 575. Because of the explicit limitation on the government's remedy, Pelletier and Fitch are not applicable here.
Macchia also relies on United States v. Kurzer, 534 F.2d 511 (2d Cir.1976). In Kurzer, defendant Kurzer agreed to be interviewed by government agents concerning a target named Steinman. In exchange, he was promised that if the government investigators were satisfied that he was truthful and cooperative, he would receive statutory immunity under 18 U.S.C. § 6003, and would testify before the grand jury; if the investigators were not satisfied with his cooperation he would not receive formal immunity or testify before the grand jury. "In any event, Kurzer was promised that what he told investigators would not be used against him." Id. at 513. Kurzer met government investigators and testified before a grand jury under a formal grant of immunity under 18 U.S.C. § 6003. Steinman was subsequently indicted. Thereafter, Steinman cooperated with the government and gave information which led to Kurzer's indictment. Kurzer moved to dismiss the indictment, claiming the information used to indict him (i.e., Steinman's cooperation information) was derived from the immunized testimony or information that he had given and that led to Steinman's indictment. The district court granted the motion after a hearing. On appeal, one of the government's arguments was that Kurzer "forfeited his immunity by lying to the Government while immunized." Id. at 518. The Second Circuit rejected this argument, stating that the "ordinary remedy for the Government when an immunized witness lies or fails to cooperate fully is a prosecution for perjury or for contempt, rather than abrogation of the immunity agreement and use of the information truthfully given by the immunized witness to prosecute him for other offenses." Id. The immunity statute explicitly prohibits the use of immunized testimony "except in a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." 18 U.S.C. § 6002.[5] Thus, Kurzer is inapplicable as it involved a grant of statutory immunity. In addition, as the court stated, the government had promised Kurzer that what he told investigators would not be used against him, and the government "concede[d] that this informal grant of immunity prevents use of the information received from Kurzer to the same extent as a formal grant of immunity." Kurzer, 534 F.2d at 513 n. 3.[6]
*192 Unlike the informal immunity agreements in Pelletier and Fitch, the Immunity Agreement here is silent as to the effect of a breach by Macchia for untruthful statements and there is no indication that the government intended to limit its remedy in the event of such breach to a prosecution for perjury or giving a false statement. Under these circumstances, this Court holds that a material and substantial breach by Macchia for untruthful statements is grounds for abrogating the immunity, i.e., voiding the Immunity Agreement, and permitting the government to use his statements and information derived therefrom to indict and prosecute him on nonperjury charges. If Macchia failed to live up to the terms of the bargain he voluntarily struck with the government, he loses the benefit bargained for, i.e., immunity.
While an informal immunity agreement may specify that in the event of breach the government may use the information to indict or prosecute the immunized witness on nonperjury charges, see, e.g., Tarrant, 730 F.Supp. at 32, the absence of such a provision does not preclude this remedy. For example, in Castelbuono, supra, the immunity agreement provided that if defendant Castelbuono made any false material statements he would forfeit whatever immunity he had and the government could use his statements or any evidence derived therefrom. Castelbuono, 643 F.2d at 969. However, the government also argued that Castelbuono breached the immunity agreement by "his overall lack of good faith in fulfilling his obligations under it." Id. Although the agreement did not specify a remedy for bad faith on the part of Castelbuono in fulfilling his end of the bargain, the court held that "there is no indication of an intention to limit the Government's remedy in case of breach to a prosecution for perjury or false statement." Id.
Macchia also argues that paragraph 4 of the Immunity Agreement, a so-called "merger clause," precludes the government from seeking this remedy. Contrary to Macchia's argument, the government is not attempting to enforce an oral modification to the Immunity Agreement. Moreover, the "merger clause" does not preclude imposition of this remedy.
CONCLUSION
In sum, the Court concludes that (1) the Immunity Agreement grants derivative use immunity only, not transactional immunity and use immunity; (2) a Kastigar hearing should be held, if necessary, after trial of the Superseding Indictment; and (3) if the government proves, by a preponderance of the evidence, material and substantial breach of the Immunity Agreement by Macchia, it may properly use his interview statements and information derived therefrom to indict and prosecute him on the charges in the Superseding Indictment.
For the reasons above, defendant Lawrence Macchia's motion to dismiss the Superseding Indictment is denied; the alternative request to conduct a Kastigar hearing is denied without prejudice to its renewal, if necessary, after trial of the Superseding Indictment; and the request for a severance is denied.
SO ORDERED.
NOTES
[1] For example, in determining to conduct a Kastigar hearing after trial, the court in Gregory stated:
To conduct the hearing in advance of trial would require disclosure of the Government's proof, apart from that already made available to the defendants, which in the light of demonstrated experience in the first trial may impede the Government's prosecution. The risk of disappearance of witnesses in this case is not hypothetical. Upon the first trial two witnesses were unavailable because they fled the jurisdiction under the influence of one of the trial defendants. While no charge is made against Vinieris in this respect, the fact is that those witnesses were unavailable. The Government is entitled to protection against a repetition of the offense. Accordingly, Vinieris may renew his motion for a "taint" hearing after the trial, if necessary.
Gregory, 611 F.Supp. at 1042.
[2] Macchia's current attorney, Gerald Lefcourt, states that in April 1993 the prosecutor, Special Assistant United States Attorney Stephen G. Huggard, admitted that he was unaware of the Immunity Agreement and requested a copy from Lefcourt. Lefcourt Aff. ¶ 16. Based on the Court's determination to defer any Kastigar hearing until after trial, the Court need not address, at this time, the effect, if any, of this allegation.
[3] In addition, Macchia maintains that until this motion was filed, some seven years after the Immunity Agreement was executed, the government never sought to rescind the Immunity Agreement for non-compliance by Macchia and never informed Macchia that they considered any of his answers untruthful. Macchia argues that this "abject failure to disavow the [Immunity Agreement] during the intervening seven years estops the government from claiming at this late date that it is relieved from its obligations under the agreement due to any alleged non-compliance by Mr. Macchia." Reply Mem. at 9. This passage of time alone, which appears to be the sole basis urged for an estoppel, however, is not sufficient to give rise to an estoppel, the essence of which is detrimental reliance. See Palermo v. Warden, Green Haven State Prison, 545 F.2d 286, 295 n. 12 (2d Cir.1976), cert. dismissed, 431 U.S. 911, 97 S. Ct. 2166, 53 L. Ed. 2d 221 (1977). Absent detrimental reliance on the government's failure to claim breach earlier or other conduct of the government, Macchia's estoppel argument must be rejected.
[4] In Castelbuono, the court held that "a bad faith, intentional, substantial omission" can constitute a "materially false statement":
Although an inadvertent omission or oversight would not rise to the level of a materially false statement so as to constitute a breach of the agreement, a bad faith, intentional, substantial omission ... does constitute a materially false statement and thereby a breach of the agreement.
643 F.Supp. at 971; but cf. United States v. Packwood, 848 F.2d 1009, 1012 (9th Cir.1988) (information that was merely incomplete and not actually false held not a breach of a plea agreement which literally provided that false information constitutes breach).
[5] Nevertheless, the Second Circuit remanded the case, directing the district court to hear testimony as to whether Steinman's agreement to cooperate was based on the indictment to which Kurzer's immunized testimony contributed. Kurzer, 534 F.2d at 517. The district court had excluded testimony offered by the government that Steinman would have testified against Kurzer based on the case the government developed against Steinman independent of Kurzer's immunized information. Id.
[6] Macchia's reliance on United States v. Williams, 809 F.2d 1072 (5th Cir.), cert. denied, 484 U.S. 896, 108 S. Ct. 228, 98 L. Ed. 2d 187 (1987), is similarly misplaced. Macchia cites Williams as applying "the Kurzer standard in the absence of any formal immunity agreement." Letter from Defendant's Counsel to the Court, dated April 8, 1994, at p. 10. However, the Williams court concluded that the record belies the government's argument on appeal that Grossman was protected by an agreement only contractual in nature.... The only statutory requirement lacking in this instance was a court order.... [W]e hold that the informal use immunity bestowed upon Grossman shields him to the same extent as would a court order had it issued. 809 F.2d at 1081-82. Thus, the court viewed the immunity granted as equivalent to a grant of statutory immunity under 18 U.S.C. § 6002. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261434/ | 861 F. Supp. 1203 (1994)
CLEAN OCEAN ACTION, a New Jersey non-profit corporation; the American Littoral Society, a New Jersey non-profit corporation, Fisherman's Dock Cooperative, Inc., a New Jersey corporation, and United Fisherman's Association, a New York non-profit corporation, the Confederation of the Association of Atlantic Charter-Boats and Captains, Inc., a New York corporation, Plaintiffs
v.
Colonel Thomas A. YORK, in his capacity as District Engineer of the United States Army Corps of Engineers; General Stanley T. Genega, in his capacity as Director of Civil Works of Army Corps of Engineers, Army Corps of Engineers, an agency of the United States; Carol M. Browner, in her capacity as Administrator of the United States Environmental Protection Agency; William J. Muszynski, in his capacity as Acting Regional *1204 Administrator of the United States Environmental Protection Agency; Environmental Protection Agency, an agency of the United States; the Port Authority of New York and New Jersey, a bi-state governmental agency, Defendants.
Civ. A. No. 93-2402.
United States District Court, D. New Jersey.
June 24, 1994.
*1205 Gordon N. Litwin, Ansell Zaro Bennett & Grimm, P.C., Newark, NJ, for plaintiffs.
Faith S. Hochberg, U.S. Atty. by Susan Handler-Menahem, Asst. U.S. Atty., Newark, NJ, Charles E. Hoffmann, U.S. E.P.A.; Region II, James G. Palmer, Asst. Dist. Counsel, U.S. Army Corps of Engineers, New York Dist., Office of Counsel, New York City, and Hugh H. Welsh, Deputy Gen. Counsel, the Port Authority of New York and New Jersey, Newark, NJ, for defendants.
OPINION
DEBEVOISE, District Judge.
A. Procedural Background
Plaintiffs in this action are several environmental organizations and organizations representing fishing and boating interests. Defendants are the Army Corps of Engineers (the "Corps") and two of its officers, the United States Environmental Protection Agency ("EPA") and two of its officers, and the Port Authority of New York and New Jersey (the "Port Authority"). Plaintiffs challenge decisions of the Corps dated January 6, 1993 and May 26, 1993, issuing a permit to the Port Authority. The permit *1206 authorized the Port Authority to perform maintenance dredging of up to 500,000 cubic yards of sediment material from the Port Authority's Port Elizabeth and Port Newark facility in Newark Bay, and to deposit the material in the Atlantic Ocean in an area known as the Mud Dump.
Although dredge materials had been deposited at the Mud Dump since 1914, dioxin has been discovered in the sediment and this created substantial environmental problems. The permit contained 25 special conditions designed to mitigate the adverse effects of the dioxin. Nevertheless, plaintiffs alleged that the permit was impermissibly granted and sought its revocation.
On June 1, 1993, by order to show cause, plaintiffs sought a temporary restraining order and a preliminary injunction barring the maintenance, dredging and disposal of the dredged material. On June 7, 1993, after a second hearing, I denied the motion for a preliminary injunction. I directed the Port Authority (i) to establish that the permit was lawfully issued under the regulations adopted pursuant to the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. § 1413 ("MPRSA") either because the dioxin present in the sediment was only in trace amounts or because the granting of the permit was within an exception to 40 C.F.R. § 227.6(a) or (ii) failing to establish such lawful issuance of the permit, to pursue a waiver pursuant to § 225.4 of the regulations.
On June 22, 1993, the Port Authority submitted a memorandum purporting to establish that the dioxin was either in trace amounts or was within a regulatory exception to the ban on its dumping. At the same time, the Port Authority commenced dredging and disposing sediments from Port Newark, completing the first 30-day phase of the project on July 7, 1993. As required by the permit, the Port Authority began on July 12, 1993, to apply a sand cap over the sediments disposed of at the Mud Dump Site to mitigate the potential for spreading of the dredged material. The capping continued on into the Fall. Approximately 2.1 million cubic yards of sand was deposited to cap 450,000 cubic yards of dredged material.
I reviewed the brief which the Port Authority submitted on June 22 and found it to be inadequate to enable me to determine the validity of the issuance of the permit. On July 6, I issued a letter opinion in which I set forth a number of preliminary conclusions and gave defendants an opportunity to conduct additional tests and to provide comprehensive memoranda directed to the question whether the regulations had been complied with.
My preliminary conclusions included the following:
(i) The exception to the ban on dumping dioxin contained in 40 C.F.R. § 227.6(f)(1) is probably not applicable in the circumstances of this case.
(ii) Defendants appear to have performed the mortality tests required by § 227.6, but they have not met the other requirements necessary to qualify the dioxin as a trace contaminant, i.e., they have performed bioaccumulation tests on only one of the three benthic (bottom) species required under § 227.6(c)(3), and they have performed no bioaccumulation tests on pelagic organisms (organisms living near the surface of the water) as required by § 227.6(c)(2).
(iii) It appears likely that if the required tests were performed, the dioxin could be classified as a trace element and thus not subject to the dumping ban.
(iv) Since the sediments will be capped when they are dumped, § 227.6(c) appears to allow consideration of the efficacy of the cap in assuring whether dioxin is a trace contaminant.
(v) Release of 2.5% of the dumped material during the dumping and settling process is not a per se violation of MPRSA.
In the July 6, 1993 letter opinion, I gave defendants until September 1 to perform such additional tests as would be required to demonstrate full compliance with the regulations and to submit detailed memoranda. I specified a date for plaintiffs to reply.
The various parties requested and received extensions of time. The federal defendants and the Port Authority submitted their material on November 1, 1993. Plaintiffs responded *1207 on April 8, 1994. The federal defendants and the Port Authority replied on May 4 and 9, respectively, and plaintiffs sought and were granted leave to file an additional response. Each party takes strong issue with certain of the preliminary conclusions set forth in my July 6, 1993 letter opinion. Each agreed with certain conclusions. This opinion sets forth, among other things, my final conclusions, and to the extent that they differ from my earlier conclusions they supersede those earlier conclusions.
B. The Facts
On April 9, 1990, the Port Authority submitted an application to the Corps for a permit under § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, § 404 of the Clean Water Act, 33 U.S.C. § 1344, and § 103 of MPRSA, for the dredging of the sediment from Port Elizabeth and Port Newark facilities in Newark Bay and subsequent disposal of the material at the Mud Dump. On or about November 25, 1991, a Public Notice describing the project was issued and provided for a thirty-day public comment period. Copies of the Public Notice were mailed to the adjacent property owners, interested members of the public, and federal, state, and local officials and agencies. A second public notice was issued on January 24, 1992, which announced that the Corps would conduct a public hearing on February 24, 1992. This public notice also provided opportunity for the submission of written comments. Other public notices were issued providing the opportunity for further public comment on certain aspects of the overall project.
Numerous comments were received in response to the Public Notice from elected officials, organizations, agencies, and other interested parties.
Three federal resource agencies National Marine Fisheries Service ("NMFS"), U.S. Fish and Wildlife Service ("USFWS"), and the U.S. Environmental Protection Agency ("USEPA") submitted initial comments in response to the public notice.
Following receipt of initial agency responses to the Public Notice, the Corps met with the federal agencies, USEPA, USFWS, NMFS, and the Port Authority to discuss how the Port Authority would address the agencies' concerns and recommendations.
The permitting process took more than three years. During that time, the Port Authority made numerous submissions to the Corps in order to address the concerns raised by the public and by the federal agencies. The Port Authority conducted extensive testing required by the government to comply with the requirements of the relevant regulations. The testing which was conducted is described in the affidavits of Mario P. Del Vicario ("Del Vicario") and Thomas D. Wright ("Wright").
An extensive exchange of information took place in response to the environmental concerns raised by the federal agencies. Certain special conditions were recommended by the agencies. In response to these recommendations, the Corps prepared a series of special conditions for the overall project. These were coordinated with the agencies.
The federal agencies exchanged considerable correspondence voicing their continued concerns and recommendations and refining the draft permit conditions.
The Corps completed its NEPA documents (Statement of Findings, Environmental Assessment and Finding of No Substantial Impact) on January 6, 1993. In addition to the federal agencies' environmental concerns mentioned above, the Environmental Assessment discussed public interest review factors, as required by 33 C.F.R. § 320.4(a)(1). In that section of the Environmental Assessment, the Corps specifically addressed impacts of the project on: threatened and endangered species, economics, aesthetics, general environmental concerns, water quality, air quality, wetlands, cultural resources historic properties, fish and wildlife values, flood hazards and floodplain values, land use, navigation, shoreline erosion and accretion, recreation, energy needs, safety, food production, and noise. The document also addressed, as required by 33 C.F.R. § 320.4(a)(2), the private and public need for the project, appropriate alternatives, and the extent and permanence of the beneficial and/or detrimental effects which the project might have on the private and public uses to which *1208 the area is suited. Numerous special conditions were required to minimize impacts upon environmental and navigational interests.
After evaluating all the evidence of record, including the information and findings in the prior Environmental Impact Statements, specifically the Environmental Impact Statement prepared in 1983, regarding the Mud Dump, and the Supplemental Environmental Impact Statement prepared in 1991 relating to disposal alternatives, and in view of the twenty-five special conditions to be made part of the permit, the Corps concluded that the project would not have a significant adverse effect on the quality of the human environment. Thus, it was not required that another Environmental Impact Statement be prepared.
Shortly after issuance of the permit on January 6, 1993, a further concern was presented to the Corps by EPA. EPA noted that due to the time which had elapsed in the permitting process, more sediment would have to be removed than originally contemplated. EPA requested further consideration of what effect, if any, this increased volume of dredge materials would have on environmental concerns. The permit was suspended, and further review undertaken by the Corps. After further review, the permit was reissued on May 26, 1993. It is apparent that the Port Authority's application received a comprehensive, detailed and thoughtful review by each federal agency having an interest in the subject matter. It is apparent that the Corps responded to the many concerns of these agencies and of the general public and shaped the conditions of the permit accordingly. The painstaking nature of Corps' work is evidenced by the eighteen-volume administrative record.
Upon the issuance of the permit, plaintiffs commenced this lawsuit, which proceeded in the manner described above. While the lawsuit progressed, the Port Authority completed the dredging and dumping of the sediment in accordance with the permit.
The last load of dredged material was dumped on July 7, 1993. Between that date and July 20, bathymetric surveys were undertaken to establish the height of the mound prior to capping. Between July and September 13, 1993, approximately 994,000 cubic meters of capping material had been placed on the site, resulting in a cap with an average thickness of .77 meters. Additional capping material was dumped, and by October 23, the cap's average thickness was one meter. Since there were some areas where the cap was not one meter thick, capping continued and was completed by December 20, 1993 when the average thickness of the cap was 1.08 meters.
While the dredging and capping was proceeding in the summer of 1993, the Port Authority proceeded with additional testing. Because the first phase of dredging and disposal had been completed by July 7, prior to the issuance of the July 6 Order, the additional testing was performed upon sediment samples retrieved from the Mud Dump Site. The samples were retrieved from the locations designated by the Corps by boring through the sand cap to the sediment deposit below.
All procedures followed by the Port Authority with respect to the additional testing were jointly approved by the Corps and EPA See 40 C.F.R. § 227.6(c). The procedures approved by the Corps, in consultation with EPA, addressed: (1) the taking of sediment samples; (2) the physical and chemical testing of the sediment; and (3) the selection of appropriate species for bioaccumulation studies.
The testing was conducted on behalf of the Port Authority by three Corps-approved laboratories: (1) Aqua Survey, Inc., the lead laboratory and author of the Lab Report; (2) NYTEST, which conducted the physical and chemical analysis of the sediment; and (3) Triangle Laboratories, which conducted the tissue analysis on the organisms.
1. Sediment Sampling Requirements
The Green Books and the Regional Guidance describe the types of sediment samples that must be used for testing. Suspended particulate phase testing must be performed with a dilution water control and field samples from the dredging area. Solid phase testing must be performed on control and *1209 referenced sediments as well as on field samples.
The manuals also specify the origins of the sediments. Control sediment must be supplied by the laboratory conducting the testing. Reference sediment must be taken from a specified location at the Mud Dump Site. Locations for field sampling were to be provided to the applicant by the New York District of the Corps.
Pursuant to these requirements, Aqua Survey supplied control sediment for use in the solid phase bioaccumulation study. Aqua Survey also coordinated the retrieval of reference sediment, which was taken from the Mud Dump Site at the Loran coordinates specified in the Regional Guidance.
Because the material to be tested had been completely removed from Reaches B, C, and D of Port Newark to the Mud Dump Site by the time the July 6 Order was issued, the Corps instructed the Port Authority to take nine core samples and a tenth composite sample of dredged sediments from the Mud Dump Site. The New York District Office of the Corps specified the precise locations at which the test samples would be retrieved. Those locations were specified on a map provided to the Port Authority by the Water Quality Compliance Branch of the Corps.
To confirm the locations set forth on the map, on July 23, 1993, the Port Authority submitted the Loran coordinates of the sampling locations to the Corps. In its letter of July 23, the Port Authority also identified the three laboratories that would conduct the physical, chemical and biological testing of the sediments. The Work/Quality Assurance plans of the laboratories were submitted to the Corps for approval pursuant to Section 3.0 of the Regional Guidance.
On July 29, the Port Authority submitted to the Corps a Sampling Plan, which described the method for retrieving field samples at the Mud Dump Site.
Following the sampling, the Port Authority provided the Corps with reports identifying the locations and depth of sediment samples taken from the Mud Dump Site. According to the boring reports, the dredged material was located 74-81 feet below the surface of the ocean.
By letter of August 5, 1993, John Hartmann of the Corps returned comments on the Sampling Plan and Work/Quality Assurance Plan of Aqua Survey. The letter stated: "We conditionally approve that initiation with your acknowledgement that the attached comments will be incorporated into testing procedures." The attached comments appeared to suggest that separate core liners should have been used to retrieve each sample. The Port Authority indicated its willingness to resample the test sediments. Having determined that cross-contamination was not a concern in this case, Mr. Hartmann of the Corps assured the Port Authority that the "single deviation from preferred procedures" did not warrant resampling.
2. Physical and Chemical Analysis of Sediments
The 1991 Green Book and the Regional Guidance require physical and chemical analysis of sediment samples, including tests for (1) grain size, (2) percent moisture, (3) total organic carbon, and (4) the target analyte in this case, dioxin (2, 3, 7, 8-TCDD). In its July 21 letter, the Corps specifically asked the Port Authority to test for these characteristics. This testing was conducted and is described in Section One of the Lab Report, entitled "Bulk Sediment Report."
3. Selection of Species for Sediment Testing
On their face the MPRSA regulations appear to require that different species be used as test organisms both for the suspended particulate phase and for the solid phase of the sediment. See 40 C.F.R. § 227.6(c)(2), (3).
a. Testing of the Suspended Particulate Phase
Testing of the suspended particulate phase of dredged sediment attempts to simulate conditions in the water column during the course of disposal of the material. The tests are, therefore, performed in a mixture of one part sediment to four parts water, using "appropriate sensitive marine organisms as defined *1210 in § 227.27(c)...." 40 C.F.R. § 227.6(c)(2). According to Section 227.27(c).
Appropriate sensitive marine organisms means at least one species each representative of phytoplankton or zooplankton, crustacean or mollusk, and fish species chosen from among the most sensitive species documented in the scientific literature or accepted by EPA as being reliable test organisms to determine the anticipated impact of the wastes on the ecosystem at the disposal site.
These are marine, or pelagic, organisms that can be found in the water column and are, therefore, exposed to sediments as they are dumped.
The 1977 Green Book provides technical guidance for conducting bioaccumulation tests on appropriate marine organisms found in the water column based on a 4-day (96 hours) exposure to the dredged material.
In conformance with the 1977 Green Book, the Corps selected marine organisms for 4-day suspended particulate testing. By letter of July 21, the Corps instructed the Port Authority that the organisms selected were inland silverside menidia and hard clam mercenaria for 4-day bioaccumulation testing. The menidia appears in the fish column in Table D1 of the 1977 Green Book. The mercenaria appears in the crustacean column. By letter of July 23, the Port Authority requested that, in conformance with 40 C.F.R. § 227.27(c), a zooplankton also be selected. After consultation with Aqua Survey, the Corps determined that the Artemia salina was an appropriate zooplankton for testing.
Testing in the suspended particulate phase requires comparison of the effects, if any, upon test animals in a control sediment to test animals in the dredged sediment. As set forth in the 1977 Green Book, the three selected organisms were acclimated to dilution water and test temperature at the laboratory. As required by the 1977 Green Book, dilution water was obtained from Manasquan Inlet, New Jersey. The testing was conducted using nine replicates of a dilution water control, and three replicates each of 10%, 50% and 100% suspended phase material. Suspended particulate phase samples were prepared by mixing test sediment and dilution water in a 1:4 ratio for thirty minutes using a high-speed mixer. The resulting slurry was allowed to settle for one hour; decanted and labelled 100% suspended phase. Dilutions of this elutriate were made by volumetric mixing with dilution water to generate 10% and 50% elutriate.
b. Testing of the Solid Phase
Testing of the solid phase of sediments attempts to simulate conditions at the bottom of the ocean, after the sediment has settled. Accordingly, the tests are performed on "appropriate sensitive benthic marine organisms," 40 C.F.R. § 227.6(c)(3), which are reliable test organisms that live on the ocean floor. "[A]t least one species each representing filter-feeding, deposit feeding, and burrowing species chosen from among the most sensitive species accepted by EPA," are the benthic organisms to be used for testing. 40 C.F.R. § 227.27(d).
The 1991 Green Book and Regional Guidance provide further information with respect to the categories of test species identified in § 227.27(d). The 1991 Green Book recognizes that the "categories of species are broad and overlapping" and recommends testing of a burrowing polychasete and a deposit-feeding bivalve mollusc. 1991 Green Book § 12.1.1 (Species Selection and Apparatus). The Regional Guidance notes that the New York District of the Corps "may approve of substitute organisms and/or require that additional organisms be tested, depending on circumstances." Regional Guidance, Table 4-5, at 4-15.
The defendants had previously tested one benthic organism the Nereis virens, a burrowing species for bioaccumulation. In accordance with the 1991 Green Book and Regional Guidance, to comply with the Court's order, the Corps instructed the Port Authority to test two additional benthic organisms in the solid phase: (1) Palaemonetes pugio (grass shrimp), a deposit-feeding species; and (2) Macoma nasuta (clam), a filter-feeding and deposit feeding bivalver mollusks.
As required by the Regional Guidance, animals used in this test were field collected *1211 adults and appeared to be in good condition. Testing was conducted using three replicates each of a control sediment and five replicates each of a reference sediment and undiluted test sediment. Palaemonetes pugio has been known to become cannibalistic under test conditions. Thus, in order to ensure that adequate tissue would be available, the entire Palaemonetes pugio exposure was run in duplicate. The data from the bulk sediment analysis, based on the nine core samples and a tenth composite, indicate a mean level of 23.5 pptr dioxin on a wet weight basis. This compares to a mean level of 35.2 pptr in Reaches B, C and D found in the sediments in March 1993.
The average bioaccumulation of dioxin in the additional test species is set forth in the table below:
Species Concentration (pptr)
Menidia 1.2
Mercenaria 0.2
Artemia salina 2.8
Palaemonetes pugio 3.8
Macoma nasuta 2.1
These levels of dioxin are lower than the levels found in the Nereis virens, which I previously determined to be "at or below the threshold of significant sublethal effects." July 6 Order at 14. The average bioaccumulation for the Nereis virens was approximately 8.4 pptr across the three reaches. The concentrations found in the tissue of the five additional organisms are significantly less than the interim guideline of 10 pptr set by the Interagency Dioxin Committee.
C. The Statutory and Regulatory Scheme
By statute, the Secretary of the Army is authorized to issue permits for ocean dumping of dredged materials:
Subject to the provisions of subsections (b), (c), and (d) of this section, the Secretary may issue permits, after notice and opportunity for public hearings, for the transportation of dredged material for the purpose of dumping it into ocean waters, where the Secretary determines that the dumping will not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities.
33 U.S.C. § 1413(a).
Part 227 of 40 C.F.R. Ch. 1 (Environmental Protection Agency) governs the process of applying for and reviewing applications for permits. The regulations most pertinent to this case will be discussed below.
Section 227.6(a)(5) prohibits ocean dumping on a non-emergency basis of known or suspected carcinogens. Dioxin is a known carcinogen. By its terms § 227.6(a) does not bar ocean dumping of trace contaminants and it contains certain exclusions from its prohibitions. The exception upon which defendants rely in this case is contained in § 227.6(f).
Section 227.6(b) sets forth the criteria for classification as a trace contaminant:
(b) These constituents will be considered to be present as trace contaminants only when they are present in materials otherwise acceptable for ocean dumping in such forms and amounts in liquid, suspended particulate, and solid phases that the dumping of the materials will not cause significant undesirable effects, including the possibility of danger associated with their bioaccumulation in marine organisms.
It is to be noted that the ultimate test under § 227.6(b) is that the dumping of the contaminant "will not cause significant undesirable effects."
Section 227.6(c) specifies that the potential for significant undesirable effects due to the presence of the contaminants shall be determined by application of results of bioassays on liquids, suspended particulate and solid phases of water. Section 227.6(c)(1), (2) and (3) govern tests on the three phases of the waste.
Section 227.6(c)(2), focuses on the suspended particulate phase. An applicant must demonstrate that:
[b]ioassay results as the suspended particulate phase of the waste do not indicate occurrence of significant mortality or significant adverse sublethal effects including bioaccumulation due to the dumping of wastes containing [dioxins].... These bioassays shall be conducted with appropriate *1212 sensitive marine organisms as defined in § 227.27(c) using procedures ... approved by EPA, or, for dredged material, approved by EPA and the Corps of Engineers.... Procedures approved for bioassays ... will ... provide reasonable assurance, based on consideration of the statistical significance of effects at the 95 percent confidence level, that, when the materials are dumped, no significant undesirable effects will occur due either to chronic toxicity or to bioaccumulation of the [dioxins].
40 C.F.R. § 227.6(c)(2). The "appropriate sensitive marine organism" are pelagic organisms, including "at least one species each representative of phytoplankton or zooplankton, crustacean or mollusk, and fish species chosen from among the most sensitive species...." 40 C.F.R. § 227.27(c). The EPA has provided an approved list of these organisms in its 1977 and 1991 "Green Books," the technical manuals for analyzing dredged material. Environmental Protection Agency & Army Corps of Engineers, Technical Committee on Criteria for Dredged and Fill Material D3 (1977) ("1977 Green Book").
It will be recalled that in my July 6, 1993 opinion, I preliminarily concluded that defendants had not fully complied with § 227.6(c)(2) because they did not conduct bioaccumulation tests on pelagic organisms.
Section 227.6(c)(3) parallels § 227.6(c)(2) but focuses on the solid phase. An applicant must demonstrate that:
[b]ioassay results on the solid phase of the wastes do not indicate occurrence of significant mortality or significant adverse sublethal effects due to dumping wastes containing [dioxin].... These bioassays shall be conducted with appropriate sensitive benthic marine organisms using benthic bioassay procedures approved by EPA, or, for dredged material, approved by EPA and the Corps of Engineers. Procedures approved for bioassays under this section will require exposure of organisms for a sufficient period of time to provide reasonable assurance, based on considerations of statistical significance of effects at the 95 percent confidence level, that, when the [dioxin is] dumped, no significant undesirable effects will occur due either to chronic toxicity or to bioaccumulation of the [dioxin].
It will be recalled that in my July 6, 1993 opinion, I preliminarily concluded that defendants appeared not to have fully complied with § 227.6(c)(3) because they performed bioaccumulation tests on only one of the three benthic species listed in § 227.27(d).
Section 227.27, to which cross-reference is made explicitly in § 227.6(c)(2) and by implication in § 227.6(c)(3) governs the limited permissible concentration of a material. Section 227.27(c) defines "appropriate sensitive marine organisms" as "at least one species each representative of phytoplankton or zooplankton, crustacean or mollusk, and fish species...." Section 227.27(d) defines "appropriate sensitive benthic marine organism" as "at least one species each representing filter-feeding, deposit feeding, and burrowing species...."
There is one other regulation which is at issue in this case the exclusion from the § 227.6(a) dumping prohibitions set forth in § 227.6(f)(1).
(f) The prohibitions and limitations of this section do not apply to the constituents identified in paragraph (a) of this section when the applicant can demonstrate that such constituents are (1) present in the material only as chemical compounds or forms (e.g., inert insoluble solid materials) non-toxic to marine life and non-bioaccumulative in the marine environment upon disposal and thereafter.
It will be recalled that in my July 6, 1993 opinion, I preliminarily concluded that this exception is not applicable in this case.
D. Discussion
The parties have raised a number of significant issues, each of which will be addressed below. The most critical, I believe, is the government defendants' contention that I was mistaken when I concluded that they could not find that the dioxin was present in only trace quantities without conducting all the § 227.6(c)(2) and § 227.6(c)(3) bioassays on all of the pelagic and benthic marine organisms referred to in § 227.27(c) and (d).
*1213 1. Agency Discretion As To Tests
The government defendants interpret the regulations as giving them discretion to develop appropriate testing procedures to evaluate whether dumping the dioxin contaminated material would cause significant undesirable effects, including the possibility of danger associated with their bioaccumulation in marine organisms. The government defendants urge that they exercised discretion appropriately in designating the bioassay tests to be conducted in this case and that their conclusion that the dioxin contained in the sludge is only in trace amounts is fully supported by the record.[1]
I have parsed the regulations once again; I have reviewed in greater depth the record of the tests and studies which were conducted in this case; I have given appropriate deference to the agency's interpretation of its own regulations. This has led me to change my earlier view and to conclude that the bioassays which defendants conducted met the regulatory requirements and support the conclusion that the sludge dioxin is a trace contaminant falling outside the dumping prohibition of § 227.6(a).
Plaintiffs are correct that once an agency adopts a regulation, it is bound by it; it cannot exercise discretion not to comply with its own regulations. United States of America, ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681 (1954). Plaintiffs can point to certain mandatory language in § 227.6(c)(2) and (3) which supports their position that all the organisms referred to in § 227.27(c) and § 227.27(d) must be tested:
"These bioassays shall be conducted with appropriate sensitive marine organisms as defined in § 227.27(c)"
§ 227.6(c)(2)
"These bioassays shall be conducted with appropriate sensitive benthic marine organisms using benthic bioassay procedures approved by EPA...."
§ 227.27(c)(3)
Section 227.27(c) defines "appropriate sensitive marine organisms" as "at least one species each representative of phytoplankton or zooplankton, crustacean or mollusk, and fish species...." Section 227.27(d) defines "appropriate sensitive benthic marine organisms" as "at least one species each representing filter-feeding, deposit feeding and burrowing species...."
Reading the regulations in their entirety, however, it is apparent that the government agencies reserved wide discretion in themselves to determine which tests should be conducted and the manner of conducting those tests. In view of the complexity of the subject matter of the regulations and the infinite number of circumstances in which the regulations would have to be applied, administration of the statute and regulations would be almost impossible without such flexibility. Further, I cannot overlook the fact that the government agencies have interpreted and applied the regulations in this manner for approximately sixteen years without challenge.
Thus, the potential for significant undesirable effects "shall be determined by application of results of bioassays on liquid, suspended particulate and solid phases of wastes according to procedures acceptable to EPA, and for dredged material, acceptable to EPA and the Corps of Engineers." § 227.6(c). Both § 227.6(c)(2) and § 227.6(c)(3) relating to bioassays refer to "procedures approved by EPA, or, for dredged material, approved by EPA and the Corps of Engineers."
This is consistent with the statute under which the EPA is given discretion to establish and revise the criteria to be used in determining whether to grant a permit for ocean dumping, 33 U.S.C. § 1413(b), and either EPA or the Corps is given discretion to require information which the agency "consider[s] necessary to review and evaluate [an] application." 33 U.S.C. § 1414(e).
The government defendants' interpretation of the regulations is not an unreasonable one, and it is entitled to great deference:
*1214 A reviewing court may set aside an agency action that is arbitrary, capricious, or an abuse of discretion. 5 U.S.C. § 706(2)(A) (1976). When making this determination, the court ordinarily must give agency interpretations of its regulations upon which the action is based the degree of deference described in Udall v. Tallman, 380 U.S. 1, 85 S. Ct. 792, 13 L. Ed. 2d 616 (1965):
When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.... When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order.
Id. at 16, 85 S. Ct. at 801 (emphasis added).
Montana Power Co. v. Environmental Protection Agency, 608 F.2d 334, 344 (9th Cir. 1979).
The practices which EPA and the Corps have developed nationwide for the evaluation of ocean dumping of dredged materials and the circumstances of the present permit application demonstrate the appropriateness of the government defendants' interpretation of the regulations.
The government defendants interpreted their regulations as not requiring bioaccumulation tests in the suspended particulate state. The reason given for not requiring these tests is that they would not give reliable information concerning bioaccumulation of dioxin at the test site, and reliance on solid phase tests results would establish an absence of bioaccumulation where, as here, such test yields more sensitive results than suspended particulate testing. The facts which follow, which detail the reasons for the government defendants' testing procedures, are established by the Del Vicario, Greges and Wright affidavits and by the exhibits to which they refer.
Nationwide, the Corps and the EPA evaluate the proposed discharge of dredged materials in ocean waters following directions set forth in a manual jointly drafted at agency headquarters and known within the agencies as the "Green Book" (1977 version having been superseded by the 1991 version). This publication, adopted subject to public notice, is locally supplemented. It implements regulations at District and Region levels, recommending testing protocols to meet the regulatory requirements. EPA Region II and the Corps' New York District followed those protocols in this case.
Acute toxicity tests were conducted in the suspended particulate phase on three different organisms, the zooplankton Acartia tonsa, the crustacean Mysidopsis bahia, and the silverside fish Menidia beryllina. The Government did not require bioaccumulation tests for dioxin in the suspended particulate phase (SPP), as mentioned in 40 C.F.R. § 227.6(c)(2) on pelagic organisms because no such tests are currently approved, recommended or required in the Green Book which currently implements the regulations. Such tests are not run in any ocean disposal program nationwide, as bioaccumulation testing (including but not limited to testing for dioxin) of suspended particulates for regulatory purposes is not a standard practice.
The 1977 Green Book at page G6 states "[a]nimals from solid or suspended particulate phase bioassays may be used, but it is considered unlikely that important bioaccumulation would occur at the disposal site from the (suspended particulate) phase, since animals would be exposed to it for such short periods due to dilution." The 1977 Green Book also concluded that "(b)ioaccumulation from the suspended phase is considered to be of secondary concern (compared to the solid phase) except in special cases, due to the short exposure time resulting from rapid dispersion of the suspended particulates by mixing." This view remains essentially unchanged in the 1991 Green Book. "Because concern about bioaccumulation focuses on the possibility of impact associated with gradual uptake over long exposure times, primary attention is given to dredged material deposited on the bottom. Bioaccumulation from the material remaining in the water column is generally of minor concern owing to the short exposure time and low exposure concentrations resulting from rapid dispersion and dilution." (Id. at pg. 2-6). With dredged material, the greatest potential for environmental impact lies in the solid phase. *1215 A suspended particulate bioaccumulation test is not specified in the 1991 Green Book. Contaminants (particularly hydrophobic contaminants like dioxin) are primarily bound to suspended particulates, rather than being dissolved in the water. Like other strongly hydrophobic compounds, dioxins have a strong affinity for particulate material that typically is associated with bottom sediments. The contaminated sediment is available to organisms during the suspended particulate phase only during the time required for sediment to sink to the ocean bottom, which was considered to be not enough time for appreciable bioaccumulation to occur.
The potential for any appreciable bioaccumulation by marine organisms through the suspended phase is considered to be very low because of the transient nature of both the suspended material and the marine species that could be affected by it. According to the government defendants, research has established that the greatest potential for environmental impact from dredged materials occurs not in the suspended phase but in the environment of the sea bottom. Given the physical characteristics of suspended material plumes and the life history characteristics of the marine species potentially affected by them, the expected resulting exposure durations are of such short term (hours), that appreciable bioaccumulation is not likely. This is based on scientific studies which have been performed on this issue.
It is generally understood that for appreciable bioaccumulation to occur, organisms require a relatively long time period of exposure, through whatever route that exposure occurs (food ingestion, gill absorption from water, or a combination of these and others). A bioassay that sustains the necessary conditions for a long enough period where appreciable accumulation might occur, would not necessarily be representative of the actual conditions at the site where the dumping occurs. Since the representativeness of disposal site conditions is an important determinant for development of a bioassay, and no test methods currently exist in the Green Book for such a test, a suspended particulate bioaccumulation test was not performed prior to the issuance of the permit.
Moreover, a suspended particulate test replicating conditions at sea resulting from a dump would of necessity last no more than several hours, and could not be expected to produce any measurable bioaccumulation. The occurrence of bioaccumulation is highly unlikely, since organisms in the water column would travel in and out of the affected area.
This project was tested with the suspended particulate phase acute toxicity bioassays deemed reliable and appropriate and the results were found to comply with the limiting permissible concentrations ("LPC") for the suspended particulate phase. Bioaccumulation tests in the suspended particulate phase require the use of accepted species and procedures approved by EPA and the Corps to provide reliable information concerning the potential for bioaccumulation at the dump site of the dredged material, § 227.6(c)(2), and no such approved tests exist. It was thus not arbitrary or capricious for the agencies to have interpreted their own regulations such that they did not require bioaccumulation tests in the suspended particulate stage for dioxin.
In my July 6, 1993 opinion, I found that bioaccumulation tests for dioxin in the solid phase were only performed on one benthic species when it appears that § 227.6(c)(3) requires that the test be performed on three such species. The government defendants argue persuasively that it reasonably interpreted § 227.6(c)(3) as requiring a total of three bioassays, but not necessarily as requiring three bioassays to determine mortality and an additional three bioassays to determine sublethal effects. Additionally, the government defendants argue that they properly interpreted the regulations to require the test that would provide the worst possible result as intended by the statute and regulations. I conclude that it was neither arbitrary nor capricious for the government not to have required tests for dioxin on three organisms in the solid phase nor was it an improper interpretation of the regulation.
Section 227.6(c)(3) states that solid phase bioassay tests are to be performed on appropriate sensitive benthic marine organisms using procedures "approved by EPA and the Corps" with the goal of providing "reasonable *1216 assurance" that when the materials are dumped they will create "no significant undesirable effects." Section 227.27(d) states that the test should be done on the "most sensitive species accepted by EPA as being reliable" with the goal being "to determine the anticipated impact on the site." That section allows great latitude to the agency in that until sufficient species are adequately tested and documented, interim guidance on appropriate organisms is left to the District Engineer of the Corps.
Since the government here required the most conservative test procedure on an organism that would produce results of the worst case scenario, it was neither arbitrary nor capricious not to test two other organisms for dioxin. The results provided by the test which was performed, established that the proposed dumping would create no significant undesirable effects.
In the case of all other contaminants of concern bioaccumulation tests were conducted on three species and found acceptable for bioaccumulation. EPA and the Corps also required an appropriate bioaccumulation test for dioxin. The dioxin bioaccumulation test was conducted according to revised bioassay conditions in the draft of the new Green Book for the longer period of 28 days. This was based on research showing that the longer time period would better represent the potential uptake of slowly accumulative contaminants like dioxin.
The bioassay organism used was the sand worm Nereis virens, which was recommended by the EPA research laboratory as the standard and necessary test organisms to be used for dioxin bioaccumulation tests. The sand worm lives in and ingests sediment, readily accumulating organics, thereby providing a "worst case" test scenario for dioxin uptake. The sand worm is also hardy enough to survive the stress over the duration of a long exposure period in laboratory conditions. It also has a fairly high lipid or fat content (7%-8% lipid). Animals with higher lipid content will more effectively bioaccumulate dioxin-like compounds because of the physical and chemical characteristics of the compounds; they tend to strongly adhere to sediment organic carbon portion of the sediment (they are hydrophobic, i.e., do not tend to dissolve in water) and to the fatty (lipids) tissues in organism (they are lipophilic to fatty tissue). In the EPA tests, the sand worm accumulated the highest residue levels over the entire study time period, and therefore would provide the "worst case scenario" organism for testing.
In the present case, the Port Authority conducted three bioassays for acute toxicity using Green Book procedures, and the material permitted to be dumped passed the acute toxicity bioassay tests with dioxin present. The Port Authority conducted three ten-day bioassay tests to measure bioaccumulation of various listed substances, although not of dioxin. Additionally, it later conducted a fourth bioassay test, this time a 28-day bioaccumulation bioassay on worms to measure uptake of dioxin.
The material from the Port Authority passed the bioassay and bioaccumulation tests required for this permit application prior to the application being granted. The material passed toxicity bioassays for three species tested with the solid phase. Additionally, the Port Authority material was shown not to bioaccumulate above acceptable levels in worms when tested over a period of 28 days.
Thus, the testing complied with the requirements of § 227.6(c)(3) in that bioassay results on three benthic organisms did not indicate significant mortality or significant adverse sublethal effects due to the dumping of the dredge material.
For the reasons set forth above, I now conclude that the government's interpretation of the regulations is a reasonable one, and that there has been compliance with the regulations to establish that the dioxin in the Port Authority's dredged material was a trace contaminant and thus not within the prohibition of § 227.6(a).
2. The § 227.6(f)(1) Exemption
In my July 6, 1993 opinion, I preliminarily concluded that the § 227.6(f)(1) exemption is inapplicable because the dioxin is not present in the material only as a chemical compound or form non-toxic to marine life *1217 and non-bioaccumulative in the marine environment upon disposal and thereafter. The government urges that since I considered the cap when making a § 227.6(c) analysis, I should do likewise when determining whether the dioxin is entitled to a § 227.6(f)(1) exemption. I think the considerations are totally different when applying the two sections, and for the reasons set forth in my July 6, 1993 opinion, I conclude that the § 227.6(f)(1) exemption is not applicable.
3. Additional Testing
In response to my July 6, 1994 opinion, the Port Authority devised and carried out additional testing designed to fill what I then considered to be gaps in meeting the § 227.6(c)(2) and (3) criteria for trace contaminants. The nature and results of these tests are described above.
If my present conclusions set forth in Part D.1. above are correct, these tests were unnecessary to establish compliance with the regulations, although they support the conclusions which were drawn from the tests that were performed prior to the issuance of the permit.
Plaintiffs contend that the post-July 6, 1994 tests cannot serve to show compliance with the regulatory requirements. First, the Port Authority had already dredged and dumped all of the sediment in question before it collected the samples on which to run the tests, thus making it impossible to conduct the tests required by the regulations. Second, the post-dump sediment was not the same sediment that was in the dredged areas prior to dredging and, therefore, could not provide scientifically valid information regarding classification of the sediment as a trace contaminant before dredging occurred.
If I had concluded that the defendants' interpretation of the regulation was erroneous, then plaintiffs would be correct that the post-dumping tests could not serve to validate an invalidly-issued permit. In that event, since a preliminary injunction had not been entered and the dumping had occurred, the post-dumping tests would be useful only in determining what relief might be appropriate to provide a remedy for illegal dumping.
However, since I have concluded that all required tests had been performed prior to the issuance of the permit, there is no need to make detailed findings about the extent to which the post-dumping tests are indicative of pre-dredging conditions.
4. Plaintiffs Per Se Arguments
Plaintiffs have advanced two per se arguments to invalidate the issuance of the permit. They urge that the fact that the EPA and the Corps required that the sediment be capped establishes that the dioxin is present in more than trace levels. They urge further that the 2% to 5% loss of contaminated sediment that occurs during disposal as a per se violation of MPRSA.
The criteria set forth in the EPA/Corps Management and Monitoring Plan for the Disposal of Dioxin Contaminated Sediments of May 1993 established that if sediment proposed for disposal causes dioxin accumulation at any detectable level, i.e., 1 ppt, the sediment must be capped. For sediment which has caused the test organism tissue to bioaccumulate dioxin from 1 ppt to 10 ppt, cap material placements must be initiated within 10 days.
Plaintiff concludes that the agency determination that sediment causing dioxin bioaccumulation at any detectable level, or 1 ppt, must be capped demonstrates the agency's conclusion "that dioxin in sediment causing bioaccumulation at any detectable level is sediment containing dioxin as more than a trace contaminant." (Plaintiffs' Reply Brief at 21).
As noted previously, § 227.6(b) defines a trace contaminant as a substance present "in such forms and amounts ... that the dumping of the material will not cause significant undesirable effects, including the possibility of danger associated with their bioaccumulation in marine organisms." The defendants have established through appropriate tests prescribed by the regulations that the dredged sediment in the present case will not cause significant undesirable effects and thus contains dioxin in only trace amounts.
Capping is an entirely different subject. A Caps Research Technical Note states that:
*1218 "Capping involves open-water placement of material which has been tested and determined unacceptable for uncontrolled open-water placement because of potentially unacceptable levels of toxicity or bioaccumulation of contaminants in benthic organisms." Exhibit 7, p. 12.
The plaintiffs argue that because in the present case the Corps imposed a capping requirement it follows that the dredged sediment must have "potentially unacceptable levels of toxicity or bioaccumulation of contaminants in benthic organisms" and, therefore, is more than a trace contaminant.
This is a non sequitur. Theoretically, the Port Authority might question the necessity for placing a cap over the material. Plaintiffs, however, have no reason to complain that through an abundance of caution the Corps has required capping of the sediment. Impositions of the requirement does not convert what has been determined to be a trace contaminant into a prohibited contaminant.
Equally unpersuasive is plaintiffs' argument that the escape of 2% to 5% of the sediment as it descends to the ocean floor is a per se violation of MPRSA. It is based upon the premise that the sediment cannot be dumped unless it is capped and that since the escaping material will never be capped it is unlawful to dump it.
Carried to its logical conclusion, this argument would effectively preclude all ocean dumping in situations where the Corps requires that the material be capped, since it would be impossible to prevent escape of a small portion of the dumped material during its descent through the water. The government agencies have considered this phenomenon in evaluating whether a substance will cause significant undesirable effects. Neither the statute nor the regulations require the illogical result for which the plaintiffs contend.
5. Plaintiffs' Adequacy of the Record Arguments
In the face of an eighteen-volume administrative record, in the face of years of hearings, studies and reviews, and in the face of EPA and Corps expertise developed during decades of experience, plaintiffs contend that certain findings of the government defendants find no support in the record.
For example, "plaintiffs assert that establishing a 10 ppt bioaccumulation standard has no support in the record, claiming that [w]ithout the basic facts necessary to support the Federal defendants' use of the 10 ppt standard, there is no evidence whatsoever to conclude that the significant Nereis bioaccumulation is safe." (Plaintiffs' Reply Brief at 15).
The regulatory criterion, of course, is not whether a contaminant is "safe" or presents "no danger" or its effect is "statistically significant" (other criteria advanced by plaintiffs in their Reply Brief). Nor is the criterion negligible or significant bioaccumulation, although the agencies must consider the extent of bioaccumulation. The § 227.6(c) criterion is whether the dumping of the material will cause significant undesirable effects in the circumstances of the particular project. There is nothing arbitrary or capricious about the determination of the government agencies that in this case 10 ppt has no significant undesirable effects. It is based on years of study, a review of other scientific studies and consultation with other agencies.
Plaintiffs also assert that the record fails to support a conclusion that capping is efficacious in containing contaminants such as dioxin. In the first place, the record probably would have supported the issuance of a permit without the capping requirement since there was a valid finding that the dioxin was a trace contaminant. Thus, even if the cap were found to be ineffective, the dumping would be permissible. The capping requirement is simply an additional precaution required by the government agencies.
Plaintiffs are mistaken, however, when they state that the record does not support the effectiveness of capping. There is material from which they can argue that capping has limited effectiveness when substances such as PCBs and dioxin (as distinguished from metals) are involved. However, there are also studies on the basis of which the government defendants can support their conclusion that capping would provide further *1219 assurance that the dredged material will not cause significant undesirable effects.
6. Standard of Review
This case concerns extraordinarily important public interests the environmental health of our bays, oceans and shores, the safety of food we eat, and the continued economic viability of the Port of New York and of the industries and workers who depend upon it.
The scientific data upon which judgments must be made are extraordinarily complex and are constantly changing. Responsible persons can draw different conclusions from this data. Many judgment calls must be made; the competing interests of many groups must be balanced.
The agencies which have ultimate responsibility for analyzing the data, weighing the competing interests and making the judgment calls are the EPA and the Corps.
The Court's review in this case is governed by the standard set forth in the Administrative Procedure Act ("APA"), under which the government's action is to be upheld unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This is a very narrow and highly deferential standard under which the agencies' action is presumed valid. Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 415, 91 S. Ct. 814, 823, 28 L. Ed. 2d 136 (1971). An agency's interpretation of a statute that it administers is entitled to great deference, and is to be upheld as long as it is a permissible one. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S. Ct. 2778, 2781-83, 81 L. Ed. 2d 694 (1984). Moreover, an agency's interpretation of its own regulation is entitled to "great deference." Criger v. Becton, 902 F.2d 1348, 1351 (8th Cir.1990). Deference is even more in order when the agency is construing an administrative regulation than when it is construing a statute. Udall v. Tallman, 380 U.S. 1, 16, 85 S. Ct. 792, 801, 13 L. Ed. 2d 616 (1965).
In the present case, plaintiffs have presented well argued positions that the agencies should have reached different conclusions from the data on which they relied. Plaintiffs ask that risks be evaluated differently from the way in which the agencies evaluated the risks. After studying plaintiffs' multitude of arguments, one can only conclude that it is their position that there can never be ocean dumping of any dredge material which contains a measurable amount of dioxin.
However, Congress has delegated to the EPA and the Corps the ultimate responsibility for deciding if dredge material containing dioxin can be dumped in the ocean and, if so, under what circumstances. Plaintiffs and other interest groups have had ample opportunity to present their data and positions to the EPA and the Corps. Neither the plaintiffs nor the Court, however, can make the final decision nor challenge the agencies' decision if, as in the present case, it is within the statute and regulations and is supported by an adequate record.
Agency decisions involving complex and highly technical issues are entitled to heightened deference. Such issues "are by their very nature difficult to resolve by traditional principles of judicial decision making." Reynolds Metals Co. v. EPA, 760 F.2d 549, 558-59 (4th Cir.1985); see also Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1024-28 (D.C.Cir.1978) (citing the "obvious limitations" upon the capacity of courts to deal meaningfully with arcane areas of knowledge of the kind involved in a case such as this one). As a result, an agency's choice of scientific data and statistical methodology is entitled to respect. Kennecott v. United States, 780 F.2d 445, 449 (4th Cir.1985) (citation omitted), cert. denied, 479 U.S. 814, 107 S. Ct. 67, 93 L. Ed. 2d 25 (1986). See also United States Steel Corp. v. Train, 556 F.2d 822, 842 (7th Cir.1977) (EPA is "entitled to use its expertise in pollution-control technology in judging the reliability or representative quality of particular data"); American Petroleum Inst. v. EPA, 787 F.2d 965, 983 (5th Cir.1986) (the "presumption of regularity" afforded EPA's selection of analytical methodology places a "considerable burden" on the challenger to overcome that selection). The Court "must look at the [agency's] decision *1220 not as the chemist, biologist or statistician that [it is] qualified neither by training nor experience to be, but as a reviewing court exercising ... certain minimal standards of rationality." American Paper Inst. v. EPA, 660 F.2d 954, 963 (4th Cir.1981).
Applying these standards I arrived at the findings and conclusions set forth above and reach the ultimate conclusion that plaintiffs have not sustained the burden of establishing that the issuance of the dredging permit was an arbitrary or capricious act.
E. Conclusion
On June 7, 1993, I ruled upon plaintiffs' application for a preliminary injunction. My opinion is contained in the transcript of the proceedings of that date.
I stated that plaintiffs were unlikely to succeed on the merits of any of their claims except one. As to that one claim, I stated that "defendants have not yet referred me to anything in the record that would support the Corps of Engineers' finding that the disposal of the Newark Bay sediment at the Mud Dump Site is within the § 227.6(f)(1) exception to the § 227.6 ban upon ocean dumping of dioxin-containing material." (June 7, 1993 Tr. at 14). I also stated that "[t]he record before me contains insufficient evidence that defendants have complied with the detailed procedures necessary to demonstrate that dioxin is a `trace contaminant' without `significant undesirable effects.'" (June 7, 1993 Tr. at 24).
Thus, I found that on the basis of the partial record then before the court that the plaintiffs were likely to prevail on the merits on their contention that issuance of the permit did not meet the requirements of § 227.6. Nevertheless, I denied preliminary injunctive relief because I thought it likely that when a full record was assembled the defendants could establish that the dioxin was a trace contaminant or that the Port Authority was entitled to a § 225.4 waiver.
The order implementing the opinion (i) required the Port Authority either to establish that the permit was lawfully issued under the regulations either because the dioxin present in the sediment was only in trace amounts, or because the granting of the permit was within an exception to § 227.6(a), or failing to establish such lawful issuance of the permit to pursue a waiver pursuant to § 225.4 and (ii) restrained the Corps from issuing further permits for dumping sediment at the Mud Dump Site unless compliance with § 227.6(a) had been established or a waiver granted.
On June 22, the Port Authority purported to comply with the order by submitting a memorandum and supporting exhibits. I found the material to be inadequate to establish either that the dioxin contained in the dredged sediment was only a trace contaminant or that the project was within the exception set forth in § 227.6(f)(1). I gave defendants further time to take additional tests and to "file an adequate memorandum setting forth with precision the manner in which the regulatory requirements have been met." This they have now done and, as recited above, on the basis of a further review of the record and consideration of the arguments contained in the supplemental briefing of all the parties, I conclude that plaintiffs are unlikely to prevail on the merits of any of their claims.
I shall file an order which will vacate the order of June 7, 1993 and deny plaintiffs' application for a preliminary injunction on the ground that plaintiffs are unlikely to prevail on the merits.
NOTES
[1] On May 13, the EPA issued an interim final rule interpreting and clarifying the ocean dumping regulations. This rule is designed to "make clear" that for the suspended particulate phase of the dumped material, it is unnecessary to perform bioaccumulation testing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4516158/ | 03/12/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 19-0581
No. DA 19-0581
STATE OF MONTANA,
Plaintiff and Appellee,
v.
SCOTT W. ELLISON,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including April 20, 2020, within which to prepare, file,
and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
March 12 2020 | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2261442/ | 110 Cal. Rptr. 2d 571 (2001)
91 Cal. App. 4th 212
The PEOPLE, Plaintiff and Respondent,
v.
Michael Lenvell THOMAS, Defendant and Appellant.
No. B144240.
Court of Appeal, Second District, Division Five.
August 1, 2001.
As Modified August 8, 2001.
Review Denied October 31, 2001.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
*572 Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and Michelle M. Paffile, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
TURNER, P.J.
Defendant, Michael Lenvell Thomas, appeals from his conviction for evading an officer with willful disregard for the safety of persons or property. (Veh.Code, § 2800.2, subd. (a).) Defendant was also found to have served two prior prison terms. (Pen.Code,[1] § 667.5, subd. (b).) Defense counsel waived defendant's right to a jury trial on the prior prison term allegations. Defendant was not asked to nor did he waive his right to a jury trial on prior prison term allegations. After the court trial on the prior prison term allegations, the United States Supreme Court issued its opinion in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435, which held that, other than the fact of prior conviction, sentencing enhancements must be determined by a jury. In the published portion of this opinion, we discuss whether the Fourteenth Amendment Due Process Clause guarantees an accused the right to a jury trial on section 667.5 prior prison term allegations.
II. FACTUAL BACKGROUND[**]
III. DISCUSSION
A.-C.[**]
D. Jury Trial Regarding Prior Prison Terms
Defendant argues that he was denied a right to a jury trial regarding the two prior prison term allegations. He reaches this conclusion because the trial court failed to obtain his express personal waiver of his jury trial right. Through defense counsel, defendant agreed to bifurcate the trial on his prior convictions. Prior to the commencement of trial, the following occurred: "The Court: We also have the priors that are alleged, and it's my understanding that it's the defendant's desire to bifurcate the priors; is that correct? [¶] [Defense Counsel]: Can I have one moment, Your Honor. [¶] The Court: Yes [¶] (Sotto voce conference between [defense counsel] and the defendant.) [¶] [Defense Counsel]: Yes, Your Honor. That is his wish." (Italics added.) The jury was excused after it rendered its guilty verdict on the evading an officer charge. Thereafter, the trial court noted, "With reference to the proof of the priors, I believe in chambers we had indicated that there was going to be a jury waiver as far as their proof was concerned." Defense counsel answered, "Yes."
Defendant argues that he has been denied his right to a jury trial because he never personally agreed to allow the trial judge to decide the issue of validity of the two prior prison term allegations. The first question is whether there has been a state constitutional violation. That issue is controlled by the decision of the California Supreme Court in People v. Vera (1997) 15 Cal. 4th 269, 277, 62 Cal. Rptr. 2d 754, 934 P.2d 1279. In Vera the Supreme Court held: "When the defendant seeks to bifurcate the determination of the truth of the prior conviction allegation from determination of the defendant's guilt of the charged crimes, however, only the statutory right to jury trial is implicated in the trial of the sentencing allegations. Since there is no *573 constitutional right to have the jury determine the truth of a prior conviction allegation [citation], it follows that the failure to obtain an express, personal waiver of the right to jury trial of prior conviction allegations does not constitute a violation of the state constitutional mandate." (Ibid.) In People v. Epps (2001) 25 Cal. 4th 19, 23, 104 Cal. Rptr. 2d 572, 18 P.3d 2, the California Supreme Court held: "The right, if any, to a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from the state or federal Constitution. (Apprendi v. New Jersey [supra,] 530 U.S. [at p.] 490 [120 S. Ct. 2348, 147 L. Ed. 2d 435]; [People v.] Wiley [(1995)] 9 Cal.4th [580,] 585 [38 Cal. Rptr. 2d 347, 889 P.2d 541].)" No state constitutional violation has occurred because defendant failed to personally waive his statutory jury trial right on the prior prison term allegations.
The second question is whether the failure to secure a personal agreement on defendant's part to have the trial judge determine the truth of the two prior prison term allegations was violative of the Sixth and Fourteenth Amendments jury trial right. Defendant's argument that the failure to have secured a personal waiver of his jury trial right was federal constitutional error is premised upon language in Apprendi v. New Jersey, supra, 530 U.S. at page 490, 120 S. Ct. 2348. Defendant relies upon the following language in Apprendi: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Ibid., italics added.) A year prior to Apprendi, the Supreme Court held that as to "any fact (other than prior conviction)" that increased the maximum penalty for the crime charged, the Fifth Amendment Due Process Clause required a jury trial and proof beyond a reasonable doubt. (Jones v. United States (1999) 526 U.S. 227, 243, fn. 6, 119 S. Ct. 1215, 143 L. Ed. 2d 311.) Defendant accepts that if the two section 667.5 enhancements involved merely "prior convictions," there would be no federal jury trial right and no corresponding duty to secure a personal waiver of that privilege. Recognizing the controlling nature of Apprendi, defendant reasons that a prior prison term allegation involves more elements than the mere "fact of a prior conviction." Defendant correctly notes that a section 667.5 enhancement requires more than a mere conviction. The accused must have served a prison term as defined in the statute. (People v. Lopez (1985) 163 Cal. App. 3d 946, 951, 210 Cal. Rptr. 56; 3 Witkin and Epstein, Cal.Criminal Law (3d ed. 2000) Punishment, § 335, p. 432.) Therefore, defendant contends that all of the other elements of a prior prison term enhancement beyond the mere fact of the conviction are subject to a jury trial right under the Due Process Clause of the Fourteenth Amendment. As a corollary of that argument, defendant argues that since he never personally waived his jury trial right, he is entitled to a new trial on the two prior prison term enhancement allegations. For the following reasons, we respectfully disagree.
Defendant's narrow reading of the words "fact of a prior conviction" in Apprendi is without merit because his analysis takes that language out of its context. In Almendarez-Torres v. United States (1998) 523 U.S. 224, 226, 228, 118 S. Ct. 1219, 140 L. Ed. 2d 350, a decision which preceded Apprendi the United States Supreme Court examined the due process ramifications of a sentence enhanced in part by reason of a prior conviction. In Almendarez-Torres, the accused was alleged to be an alien who had illegally returned to the United States after having previously been deported following *574 conviction of an "aggravated felony." Accordingly, the accused was subject to an enhanced sentence of up to 20 years in federal prison pursuant to title 8 Unit ed States Code section 1326(b)(2)[2]. *575 Speaking for the majority, Associate Justice Stephen Breyer framed the question to be decided in Almendarez-Torres as follows: "The question before us is whether this latter provision defines a separate crime or simply authorizes an enhanced penalty. If the former, i.e., if it constitutes a separate crime, then the Government must write an indictment that mentions the additional element, namely, a prior aggravated felony conviction. If the latter, i.e., if the provision simply authorizes an enhanced sentence when an offender also has an earlier conviction, then the indictment need not mention that fact, for the fact of an earlier conviction is not an element of the present crime. We conclude that the subsection is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. Consequently, neither the statute nor the Constitution requires the Government to charge the factor that it mentions, an earlier conviction, in the indictment." (Id. at pp. 226-227, 118 S. Ct. 1219.)
In Almendarez-Torres, the Supreme Court rejected the defendant's argument that the prior conviction constituted an element of the crime which the Fifth Amendment Due Process Clause required to be alleged in the indictment. Justice Breyer stated: "[T]he sentencing factor at issue hererecidivismis a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence. See, e.g., Parke v. Raley, 506 U.S. 20, 26 [113 S. Ct. 517, 121 L. Ed. 2d 391] (1992) (Recidivism laws `have a long tradition in this country that dates back to colonial times' and currently are in effect in all 50 States); U.S. Dept. of Justice, Office of Justice Programs, Statutes Requiring the Use of Criminal History Record Information 17-11 (June 1991) (50 state survey); USSG §§ 4A1.1, 4A1.2 (Nov. 1997) (requiring sentencing court to consider defendant's prior record in every case). Consistent with this tradition, the Court said long ago that a State need not allege a defendant's prior conviction in the indictment or information that alleges the elements of an underlying crime, even *576 though the conviction was `necessary to bring the case within the statute.' Graham v. West Virginia, 224 U.S. 616, 624 [32 S. Ct. 583, 56 L. Ed. 917] (1912). That conclusion followed, the Court said, from `the distinct nature of the issue,' and the fact that recidivism `does not relate to the commission of the offense, but goes to the punishment only, and therefore . . . may be subsequently decided.' Id., at 629, 32 S. Ct., at 588 (emphasis added). The Court has not deviated from this view. See Oyler v. Boles, 368 U.S. 448, 452 [82 S. Ct. 501, 7 L. Ed. 2d 446] (1962) (due process does not require advance notice that trial for substantive offense will be followed by accusation that the defendant is a habitual offender); Parke, supra, at 27, 113 S. Ct. at 522 (`[A] charge under a recidivism statute does not state a separate offense, but goes to punishment only'). And, as we said before, [ ], Congress, reflecting this tradition, has never, to our knowledge, made a defendant's recidivism an element of an offense where the conduct proscribed is otherwise unlawful. See United States v. Jackson, 824 F.2d 21, 25, and n. 6 (C.A.D.C.1987) (opinion of R. Ginsburg, J.) (referring to fact that few, if any, federal statutes make `prior criminal convictions . . . elements of another criminal offense to be proved before the jury'). Although these precedents do not foreclose petitioner's claim (because, for example, the state statute at issue in Graham and Oyler provided for a jury determination of disputed prior convictions), to hold that the Constitution requires that recidivism be deemed an `element' of petitioner's offense would mark an abrupt departure from a long-standing tradition of treating recidivism as `go[ing] to the punishment only.' Graham, supra, at 629, 32 S. Ct., at 587-588." (Almendarez-Torres v. United States, supra, 523 U.S. at pp. 243-244, 118 S. Ct. 1219.)
Almendarez-Torres preceded Apprendi. In Apprendi the court decided whether the Due Process Clause of the Fourteenth Amendment required that the factual determination as to whether the defendant's mens rea was to intimidate the victim based upon "`race, color, gender, handicapped, religion, sexual orientation or ethnicity'" be made utilizing the beyond a reasonable doubt standard by a jury. (Apprendi v. New Jersey, supra, 530 U.S. at p. 469, 120 S. Ct. 2348.) The Apprendi majority held the accused's mental state, which resulted in an enhanced sentence, in committing the charged crime was an element of the offense that required juror evaluation utilizing the beyond a reasonable doubt standard. (Id. at p. 490, 120 S. Ct. 2348.) The Apprendi majority distinguished Almendarez-Torres in part as follows: "[A]s Jones [v. United States, supra, 526 U.S. at pages 248-249, 119 S. Ct. 1215] made crystal clear, [ ], our conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was `the prior commission of a serious crime.' 523 U.S., at 230 [118 S. Ct. 1219] see also id., at 243 [118 S. Ct. 1219] (explaining that `recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence'); id., at 244 [118 S. Ct. 1219] (emphasizing `the fact that recidivism "does not relate to the commission of the offense . . ."'); Jones, 526 U.S., at 249-250, n. 10 [119 S. Ct. 1215] (`The majority and the dissenters in Almendarez-Torres disagreed over the legitimacy of the Court's decision to restrict its holding to recidivism, but both sides agreed that the Court had done just that'). Both the certainty that procedural safeguards attached to any `fact' of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that `fact' in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to *577 determine a `fact' increasing punishment beyond the maximum of the statutory range." (Apprendi v. New Jersey, supra, 530 U.S. at p. 488, 120 S. Ct. 2348, fn. omitted.)
The Apprendi majority recognized that its holding could be construed as being in conflict with Almendarez-Torres. Nonetheless, the majority emphasize that Almendarez-Torres remained the law of land when it noted: "Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision's validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence." (Apprendi v. New Jersey, supra, 530 U.S. at pp. 489-490, 120 S. Ct. 2348, fn. omitted.) It was in this context that the Apprendi majority then, in the very next paragraph, utilized the "[o]ther than the fact of a prior conviction" language which requires that a fact which increases the sentence beyond the statutory maximum for an offense be submitted to a jury for proof beyond a reasonable doubt findings. (Id. at p. 490, 120 S. Ct. 2348.)
Of further consequence is the manner in which United States Supreme Court has described its holding in Almendarez-Torres. In Jones v. United States, supra, 526 U.S. at page 249, 119 S. Ct. 1215, a case decided before Apprendi the United States Supreme Court emphasized that its prior decision in Almendarez-Torres was premised upon the distinctive issue of recidivism as distinguished from an element of an offense and other matters which are entitled to full due process treatment. In Jones, the Supreme Court described Almendarez-Torres as involving "the tradition of regarding recidivism as a sentencing factor, not as an element to be set out in indictment." (Jones v. United States, supra, 526 U.S. at p. 249, 119 S. Ct. 1215.) In Castillo v. United States (2000) 530 U.S. 120, 126, 120 S. Ct. 2090, 147 L. Ed. 2d 94, decided several weeks before Apprendi, the Supreme Court confronted the question of whether an enhanced sentence for machine gun use during a crime of violence created a separate offense or was merely a sentencing factor. In Castillo, Justice Breyer described the issue before the court like this: "In this case we once again decide whether words in a federal criminal statute create offense elements (determined by a jury) or sentencing factors (determined by a judge). See Jones v. United States, [supra,] 526 U.S. 227 [119 S. Ct. 1215, 143 L. Ed. 2d 311]; Almendarez-Torres v. United States, [supra,] 523 U.S. 224 [118 S. Ct. 1219, 140 L. Ed. 2d 350]." (Castillo v. United States, supra, 530 U.S. at p. 121, 120 S. Ct. 2090.) Further, in Castillo, Justice Breyer described the Almendarez-Torres opinion as one as involving issues of recidivism and noted, "[R]ecidivism `is as typical a sentencing factor as one might imagine.'" (Castillo v. United States, supra, 530 U.S. at p. 126, 120 S. Ct. 2090.)
Other courts in evaluating this question have reached several pertinent conclusions. Other courts have uniformly concluded that Apprendi did not overrule Almendarez-Torres. (United States v. Skidmore (7th Cir. 2001) 254 F.3d 635, 642; United States v. Moreno-Arredondo (5th Cir. 2001) 255 F.3d 198, 203; United States v. Arellano-Rivera (9th Cir.2001) 244 F.3d 1119, 1126; United States v. Brough (7th Cir.2001) 243 F.3d 1078, 1081; United States v. Chapa-Garza (5th Cir.2001) 243 F.3d 921, 928; United States v. Quintana-Torres (9th Cir.2000) *578 235 F.3d 1197, 1200; United States v. Fresnares-Torres (9th Cir.2000) 235 F.3d 481, 482; United States v. Gatewood (6th Cir.2000) 230 F.3d 186, 192; United States v. Salery (M.D.Ala.2000) 119 F. Supp. 2d 1268, 1273; United States v. Powell (E.D.Pa.2000) 109 F. Supp. 2d 381, 383-384; McGregor v. State (Fla. Dist. Ct.App. 2001, 789 So. 2d 976, 978; State v. Cullen (Mo.Ct. App.2001) 39 S.W.3d 899, 905; People v. Dillard (2001) 319 Ill.App.3d 102, 253 Ill. Dec. 411, 745 N.E.2d 185, 191; see United States v. Watts (7th Cir. 2001) 256 F.3d 630.) Further, other courts have construed Apprendi as requiring a jury trial except as to matters relating to "recidivism." Courts have not described Apprendi as requiring jury trials on matters other than the precise "fact" of a prior conviction. Rather, courts have held that no jury trial right exists on matters involving the more broadly framed issue of "recidivism." (United States v. Skidmore, supra, 254 F.3d at p. 642; United States v. Brough, supra, 243 F.3d at pp. 1079-1081; United States v. Rogers (11th Cir.2000) 228 F.3d 1318, 1324; People v. Childress (2001) 321 Ill.App.3d 13, 254 Ill. Dec. 26, 746 N.E.2d 783, 796; Wright v. State (Fla. Ct.App.2001) 780 So. 2d 216, 216-217; People v. Ramos (2000) 318 Ill.App.3d 181, 252 Ill. Dec. 225, 742 N.E.2d 763, 774; People v. Ware (2001) 323 Ill.App.3d 47, 256 Ill. Dec. 28, 751 N.E.2d 81, 90.) Appellate courts have held that Apprendi does not require full due process treatment to recidivism allegations which involved elements merely beyond the fact of conviction itself. (United States v. Palomino-Rivera (7th Cir. 2001) 258 F.3d 656, 661 [Apprendi does not apply to prior conviction allegation pursuant to 8 U.S.C. § 1326] (see fn. 2, ante); United States v. Johnstone (1st Cir.2001) 251 F.3d 281, 286, fn. 6 ["Moreover, by its express terms, Apprendi concerns only sentencing facts `[o]ther than the fact of a prior conviction . . .' 530 U.S. at 490 [120 S. Ct. 2348]. Here, Johnstone's maximum sentence for his offense increased to twenty years solely because of his deportation following his prior conviction in Colorado. Therefore, although we need not decide this issue today, we doubt that Apprendi applies to Johnstone's case for the additional reason that the increase in his maximum sentence was due to a prior conviction. See United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir. 2000)"]; Wright v. State, supra, 780 So.2d at p. 217 ["Nothing in Apprendi overrules the Florida Supreme Court's holding in Eutsey v. State, 383 So. 2d 219 (Fla.1980) that the determination that a defendant could be sentenced as an habitual felony offender was independent of the question of guilt in the underlying substantive offense and did not require the full panoply of rights afforded a defendant in the trial of the offense."]; Jones v. Maryland (2001) 138 Md.App. 12, 769 A.2d 1015,1023 ["Apprendi does not require a jury determination of prior convictions or incarceration resulting from those convictions."].) Further, under the New York habitual offender law a qualifying prior conviction must be one where the defendant served more than one year in prison. The Court of Appeals of New York has held that under Apprendi there is no jury trial right to determine whether that state's habitual offender law applies to the accused. (People v. Rosen (2001) 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, 846; People v. Conyers (2001) 285 A.D.2d 825, 727 N.Y.S.2d 545, 546.) Finally, the Florida Supreme Court has recently held that the question of whether a recidivist committed a new offense within three years of being released from a state correctional facility was not an element of a sentencing enhancement that had to be submitted to the jury under Apprendi. (McGregor v. State, supra, 789 So.2d at p. 977; Parker v. State *579 (Fla.2001) 790 So. 2d 1033, 1035; Robinson v. State (Fla.2001) 793 So. 2d 891, 892.)
With the foregoing legal analysis in mind, we reach the following conclusions. In terms of recidivism findings that enhance a sentence and are unrelated to the elements of a crime, Almendarez-Torres is the controlling due process authority. Almendarez-Torres does not require full due process treatment of an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. Apprendi did not overrule Almendarez-Torres. The language relied upon by defendant in Apprendi "[o]ther than the fact of a prior conviction," refers broadly to recidivism enhancements which include section 667.5 prior prison term allegations. Notably, the recidivism enhancement in Almendarez-Torres had elements apart from the mere fact of a prior conviction. As noted previously, the prior conviction had to involve an "aggravated felony" which occurred before the alien accused's removal from this country. (See fn. 2, ante.) As has been noted, the term "aggravated felony" in Almendarez-Torres involved the commission of specific enumerated felonies, not merely the "fact of a prior conviction" as that term was utilized in Apprendi. Also, the same reliability factors identified in Apprendi are applicable here. (Apprendi v. New Jersey, supra, 530 U.S. at p. 488, 120 S. Ct. 2348.) The evidence in the present case consisted of documents which, without dispute, demonstrated defendant had on two separate occasions been sentenced to and completed prison terms. The written evidence which included abstracts of judgment, fingerprint records, and Department of Corrections documents have the constitutional requisite level of reliability so as to meet any pertinent due process concerns. Therefore, Apprendi does not stand for the proposition that full due process treatment should have been accorded to the two prior prison term enhancement allegations. No federal constitutional violation occurred because defense counsel waived defendant's state statutory right to a jury trial.
The judgment is affirmed.
GRIGNON, J., and WILLHITE, J.[***], concur.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of all headings, part II, parts III.A.-C.
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[**] See footnote *, ante.
[2] Title 8 United States Code section 1326 states in relevant part: "(a) In general [¶] Subject to subsection (b) of this section, any alien who[¶] (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be fined under title 18, or imprisoned not more than 2 years, or both. [¶] (b) Criminal penalties for reentry of certain removed aliens [¶] Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection[¶] . . . [¶] (2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, imprisoned not more than 20 years, or both. . . ."
Title 8 United States Code section 1101(a)(43) defines the term "aggravated felony" as follows: "(43) The term `aggravated felony' means[¶] (A) murder, rape, or sexual abuse of a minor; [¶] (B) illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18); [¶] (C) illicit trafficking in firearms or destructive devices (as defined in section 921 of Title 18) or in explosive materials (as defined in section 841(c) of that title); [¶] (D) an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000; [¶] (E) an offense described in[¶] (i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses); [¶] (ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms offenses); or [¶] (iii) section 5861 of Title 26 (relating to firearms offenses); [¶] (F) a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at [ ] least one year; [ ] (G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at [ ] least one year; [¶] (H) an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom); [¶] (I) an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography); [¶] (J) an offense described in section 1962 of Title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed; [1] (K) an offense that[¶] (i) relates to the owning, controlling, managing, or supervising of a prostitution business; [¶] (ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or [¶] (iii) is described in section 1581, 1582, 1583, 1584, 1585, or 1588 of Title 18 (relating to peonage, slavery, and involuntary servitude); [¶] (L) an offense described in[¶] (i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18; [¶] (ii) section 421 of Title 50 (relating to protecting the identity of undercover intelligence agents); or [ ] (iii) section 421 of Title 50 (relating to protecting the identity of undercover agents); [¶] (M) an offense that[f] (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or [¶] (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000; [1] (N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter [¶] (O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph; [¶] (P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18, or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter; [¶] (Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more; [¶] (R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year; [¶] (S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year; [¶] (T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; and [¶] (U) an attempt or conspiracy to commit an offense described in this paragraph. [¶] The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996." (Fns. omitted.)
[***] Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261443/ | 861 F. Supp. 35 (1994)
Donald TODD
v.
Kathleen HAWK, et al.
Civ. No. 4:93-CV-662-Y.
United States District Court, N.D. Texas, Fort Worth Division.
August 19, 1994.
Donald Todd, pro se.
Randell P. Means, Fort Worth, TX, for defendants.
*36 ORDER DENYING MOTION TO ADD PARTIES
MEANS, District Judge.
Pending before the Court is the plaintiff's motion to add parties, filed December 29, 1993. After careful consideration of said motion, the Court finds that it should be DENIED.
The Court first acknowledges that leave of court to amend pleadings should be given freely. Fed.R.Civ.P. 15(a); see Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir.), cert. denied, 469 U.S. 871, 105 S. Ct. 221, 83 L. Ed. 2d 150 (1984). However, it is well established that courts should consider the futility of a proposed amendment when determining whether leave should be granted. See, e.g., Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962); Schlacter-Jones v. General Tel., 936 F.2d 435, 443 (9th Cir.1991); Cranberg v. Consumers Union of U.S., Inc., 756 F.2d 382, 392 (5th Cir.), cert. denied, 474 U.S. 850, 106 S. Ct. 148, 88 L. Ed. 2d 122 (1985). In the instant case, such a consideration weighs heavily against the granting of leave.
This Court's June 15, 1994 order granted the motion to dismiss filed by other federal defendants, similarly situated to those parties Plaintiff seeks to join, as to claims asserted under the Federal Tort Claims Act, the Civil Rights Act of 1964, and for injunctive relief. The June 15, 1994 ruling on those claims applies with equal force with respect to the proposed defendants.
Moreover, the Court finds that any equal protection claim Plaintiff brings pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), is also subject to dismissal, for he has failed to satisfy the heightened pleading standard that governs suits under 42 U.S.C. § 1983 in this circuit.[1] Claims against the federal government may be brought pursuant to Bivens for acts that would constitute a deprivation of a constitutional right under color of state law actionable under § 1983. See, e.g., Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1295 (5th Cir.1994), petition for cert. filed, 63 U.S.L.W. 3009 (U.S. June 13, 1994) (No. 93-2053); Rourke v. Thompson, 11 F.3d 47, 49-50 (5th Cir.1993).
The defendants' motion to dismiss pointed out the deficiencies of Plaintiff's amended complaint, the most important of which are as follows:
In Elliot v. Perez, 751 F.2d 1472, 1482 (5th Cir.1985), the Court held a plaintiff attempting to present a civil rights case against individual government officials must be able to present material facts on which he contends he can establish a right to recovery, and that such a plaintiff must be able to state those facts with some particularity, and finally, he must show why the official cannot show a good defense of immunity.
Further, discovery cannot proceed until the Court has determined that the defense of qualified immunity will not be granted. "Plaintiffs must demonstrate prior to discovery that their allegations are sufficiently fact-specific to remove the cloak of protection afforded by an immunity defense." "[C]omplaints combining conclusory facts, will not survive motions to dismiss," Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir.1988).
In the complaint, plaintiff has not made any factual allegations which would indicate a denial of any of his constitutional rights.
(Defs.' Mot. to Dismiss at 5-6.) This large portion of the defendants' brief is recounted to emphasize the extent to which Plaintiff was put on notice that his amended complaint did not allege facts with any specificity, despite the law of this circuit clearly requiring him to do so. His bare conclusory assertions are precisely what the heightened pleading requirement was designed to pierce.
The Court notes that the Supreme Court's rejection of this circuit's heightened *37 pleading standard pertained only in the context of claims against municipalities. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, ___ U.S. ___, ___, 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993). Like many other courts considering this issue, this Court concludes that the heightened pleading standard remains intact when applied to individuals asserting qualified immunity. See, e.g., Branch v. Tunnell, 14 F.3d 449, 457 (9th Cir.), cert. denied, ___ U.S. ___, 114 S. Ct. 2704, 129 L. Ed. 2d 832 (1994); Kimberlin v. Quinlan, 6 F.3d 789, 794 (D.C.Cir.1993), petition for cert. filed, 63 U.S.L.W. 3009 (U.S. June 22, 1994) (No. 2068); Idoux v. Lamar University System, 828 F. Supp. 1252, 1256-57 n. 2 (E.D.Tex. 1993); McDonald v. City of Freeport, Tex., 834 F. Supp. 921, 929 (S.D.Tex.1993).
However, the U.S. Court of Appeals for the Ninth Circuit applies a heightened pleading standard only where an element of the constitutional tort alleged involves a determination of the actor's subjective intent. See Mendocino Envtl. Ctr. v. Mendocino County, 14 F.3d 457, 461 (9th Cir.1994). The Seventh Circuit employs no heightened pleading standard whatsoever in civil rights cases. See Triad Ass'n, Inc. v. Robinson, 10 F.3d 492, 497 (7th Cir.1993). Notably, the law in this circuit has imposed a more stringent standard under which § 1983 and Bivens claims are examined.
The Fifth Circuit delivered its opinion in Colle v. Brazos County, Tex., 981 F.2d 237 (5th Cir.1993), at a time when the Supreme Court had granted certiorari in Leatherman but not yet rendered its opinion. In Colle, the court held that "the heightened pleading requirement governs all § 1983 complaints brought in this circuit." Colle, 981 F.2d at 243 n. 26. Leatherman obviously overrules the application of the heightened pleading standard with respect to claims against municipalities, but the High Court expressly declined to pass upon the application of the standard to individual government officials asserting qualified immunity. See Leatherman, ___ U.S. at ___, 113 S.Ct. at 1162. In accordance with the above-quoted language from Colle, this Court gives the heightened pleading standard its broadest application consistent with Leatherman. Cf. Schultea v. Wood, 27 F.3d 1112, 1119-20 n. 2 (5th Cir. 1994) (panel of circuit court may not overrule previous decisions imposing heightened pleading standard, absent en banc reconsideration or a superseding decision of the Supreme Court); Jordan v. Jackson, 15 F.3d 333, 339 n. 5 (4th Cir.1994) (dicta) (Leatherman Court expressed no view on question of whether its qualified immunity jurisprudence would require a heightened pleading standard in cases involving individual government officials, but seemed to suggest the question would be answered affirmatively) (internal quotation omitted).
Thus, this Court rejects the Ninth Circuit approach which does not apply a heightened pleading standard unless an element of the constitutional tort alleged involves a determination of subjective intent. See Mendocino, 14 F.3d at 461. While not expressly rejecting such an approach, the Fifth Circuit has, in fact, applied a heightened requirement where the elements of the violation alleged involved only an inquiry into objective reasonableness. See Streetman v. Jordan, 918 F.2d 555, 556-57 (5th Cir.1990) (applying heightened pleading standard in § 1983 claim for Fourth Amendment violations similar to those alleged in Mendocino); Fee v. Herndon, 900 F.2d 804, (5th Cir.) (specific facts required for due process claim), cert. denied, 498 U.S. 908, 111 S. Ct. 279, 112 L. Ed. 2d 233 (1990).
The heightened pleading standard must remain an integral tool for district courts to identify those claims against individuals capable of withstanding an immunity defense. See, e.g., Biase v. Kaplan, 852 F. Supp. 268, 286-87 (D.N.J.1994); McDonald v. City of Freeport, Tex., 834 F. Supp. 921, 929 (S.D.Tex.1993); Idoux, 828 F. Supp. 1252, 1256 (E.D.Tex.1993); Rallis v. Stone, 821 F. Supp. 466, 470 (E.D.Mich.1993); Awalt v. Whalen, 809 F. Supp. 414, 416 (E.D.Va.1992); Tachiquin v. Stowell, 789 F. Supp. 1512, 1516 (E.D.Cal.1992); Herbage v. Meese, 747 F. Supp. 60, 63-64 (D.D.C.1990); see also Siegert v. Gilley, 500 U.S. 226, 235, 111 S. Ct. 1789, 1795, 114 L. Ed. 2d 277 (1991) (Kennedy, J., concurring) ("The heightened pleading standard is a necessary and appropriate accommodation *38 between the state of mind component of malice and the objective test that prevails in qualified immunity analysis as a general matter."); cf. Barnett v. Moon, 846 F. Supp. 200, 202 (N.D.N.Y.1994) (purporting to reject heightened pleading standard in § 1983 cases in light of Leatherman, yet requiring claimant to plead specific facts); Behre v. Thomas, 665 F. Supp. 89, 94 (D.N.H. 1987) (civil rights conspiracy claimant must show some causal connection between act of official and alleged violation), aff'd, 843 F.2d 1385 (1st Cir.1988). This Court finds that to abolish, or even limit as the Ninth Circuit has, the heightened pleading requirement is to improperly remove much of the protection from suit qualified immunity is meant to provide.
For the foregoing reasons, the Court determines that an amendment to Plaintiff's complaint adding additional parties would be futile, and therefore ORDERS that his motion to add parties is DENIED.
SO ORDERED.
NOTES
[1] The June 15 order denied the motion to dismiss as to other defendants' Bivens claims. The Court now finds that the June 15 order was improvident in that regard. Because those defendants appealed the order, this Court is divested of jurisdiction over their case. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S. Ct. 400, 401-02, 74 L. Ed. 2d 225 (1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261446/ | 110 Cal. Rptr. 2d 691 (2001)
91 Cal. App. 4th 656
Pat LOMBARDO et al., Plaintiffs and Appellants,
v.
Kurt D. HUYSENTRUYT, Defendant and Respondent.
No. A092345.
Court of Appeal, First District, Division One.
August 14, 2001.
As Modified on Denial of Rehearing September 12, 2001.
*694 David W. Baer, Andrew G. Giacomini, S. Anne Johnson, Hanson, Bridgett, Marcus, Vlahos & Rudy, San Francisco, CA, for Appellants.
Jolm M. Drath, Ray Z. Bacerdo, Drath, Clifford, Murphy, Wennerholm & Hagen, Oakland, CA, for Respondent.
KLINE, P.J.
Attorney Kurt D. Huysentruyt represented Paul J. Winters when the latter attempted to amend a trust he had established to make appellants its beneficiaries. The amendment was ruled ineffective by the probate court. Subsequently, appellants sued Huysentruyt for malpractice. They now appeal the superior court's *695 grant of nonsuit to Huysentruyt, contending that the superior court erred in finding that the probate court's ruling superseded Huysentruyt's negligence in causing their damages. Appellants further request sanctions against respondent for failing to timely file his brief on appeal. We reverse.
STATEMENT OF THE CASE AND FACTS
In May 1995, Paul Winters established a trust, naming as co-trustees himself and Regina Fellman, whom he had recently married. Winters was nearly 90 years old and Fellman was 72. The trust provided that if Fellman predeceased Winters, upon Winters' death all the trust assets would be distributed to Fellman's adult daughter from a prior marriage, Diane Mirviss. Winters reserved the right to terminate or amend the trust.
In late May 1996, Winters was hospitalized and diagnosed with dehydration, renal failure and Alzheimer-type dementia. Soon thereafter, Fellman petitioned for a conservatorship of Winters' person and estate, requesting orders to have Mirviss replace Winters as co-trustee and to restrict Winters' power to revoke or amend the trust without prior court approval. The court granted these orders and subsequently replaced Fellman as conservator with professional conservator Barbara deVries. The court entered an order which provided: "During the pendency of these proceedings, the conservatee shall not have the power either to amend or to revoke The Paul J. Winters Trust, U/T/A dated June 23, 1995, without the prior approval of this Court."
On August 2, 1997, Fellman died of colon cancer. Accordingly, Mirviss became the sole trustee and beneficiary of the trust. Winters had been telling deVries that he wanted to change his trust and she sought a court-appointed lawyer for him. Respondent accepted the appointment.
Respondent met with Winters on September 9 and 10, 1997. Winters was "adamant" that he did not want Mirviss to act as successor and trustee of the trust or benefit from his estate and remained adamant on this point until his death. Winters was in a convalescent hospital; respondent was aware he had been released from the hospital two days before and had a heart condition that respondent understood to be life threatening. Respondent told Winters there was "some sense of urgency" about making decisions on his estate plan. Respondent was aware of the order restricting Winters's power to amend the trust from his review of the case file and had not previously seen an order like it. He understood from the order that the court would prefer application be made to the court for authority to amend before a trust amendment was executed, although he felt the order was ambiguous as to whether court approval would be required before an amendment was signed and he did not think the court would "refuse to inquire into the circumstances of his signing the trust amendment prior to obtaining court approval." Appellants' expert, John Hartog, had also never seen an order like this and characterized it as "unique" and "ambiguous." Respondent's expert, Barbara Jagiello, had not seen an order like it either and found it "confusing," but did not see anything in the order to indicate the court would not consider the validity of a testamentary trust after the trustor's death. Respondent's other expert, Bruce Friedman, found the order "astonishing."
Respondent met with Winters again on September 25 and then on October 21, 1997. During this time, Winters was uncertain how he wanted to dispose of his estate. On October 21, Winters asked respondent to ask his friends, John Hult and *696 Pat Lombardo, to call him about his estate plan. Respondent made these calls on November 12. Hult reported to respondent "almost immediately" that Winters wanted to leave his estate to appellants. When respondent next met with Winters on November 18, Winters showed him a piece of paper with five names, four matching the ones Hult had provided but the fifth being a Dr. Morabito and not Lombardo. Winters then indicated he wanted to give Lombardo $15,000 and have him be trustee, and was not sure he wanted to give anything to Morabito. Respondent suggested making deVries the trustee but Winters disagreed.
On November 20, respondent told the court investigator, John Cusher, and deVries that he thought Winters was coming to a decision on his estate plan. On November 24, deVries told respondent that Winters had had a heart incident and respondent felt it was more urgent to accomplish the trust amendment. On November 26, respondent prepared the trust amendment, providing for distribution of the trust assets in equal shares to John Hult, Pat Lombardo, Mary Dorcy, Albert (Butch) Winters and Maria Winters, and took it to Winters, but Winters was angry and refused to talk to him. Respondent returned to see Winters on December 5, on which date Winters signed the amendment and respondent notarized it. Respondent wanted to meet with Winters once more before seeking court approval of the amendment, both to be sure Winters remained consistent regarding his choice of beneficiaries and to resolve whom Winters wanted as trustee, and planned to meet with him in mid-December. Winters died on December 14,1997.
About a month after Winters' death, respondent filed a petition for approval of the trust amendment. Mirviss filed a petition to invalidate the amendment. By order of April 8, 1998, the probate court denied the petition for approval and granted Mirviss' petition, finding the amendment had been executed without the prior court approval required by prior court orders and was therefore invalid and void.
Appellants appealed the probate court's decision (In re Conservatorship of Winters, A082566), but while the appeal was pending settled with Mirviss for 55 percent of the trust assets. The appeal was dismissed on September 9, 1999. According to appellants, after deducting attorney fees, they received about $380,000 from Winters' $1,240,000 estate.
Meanwhile, on September 17, 1998, appellants Lombardo, Hult and Dorcy filed the present complaint for damages for professional negligence against respondent. Appellants claimed that respondent failed to take the steps necessary to cause the trust amendment to become effective upon Winters' death by failing to apply for court approval immediately upon receiving Winters' instructions, failing to immediately prepare the amendment, failing to immediately present the amendment to Winters for execution once it was prepared, failing to immediately apply for court approval after Winters executed the amendment and failing to apply for an order shortening time to have the court consider a petition for approval on an emergency basis. A first amended complaint filed on December 4, 1998, added appellants Albert Winters and Maria Winters as plaintiffs.
The matter came on for trial on February 10, 2000. A jury was empaneled on February 15. After considering the parties' motions in hmine, however, the court came to the conclusion on February 18 that the probate court had erred in ruling that the trust amendment was invalid because it was signed without prior court approval. According to the superior court, because a court "is required to interpret *697 an order to maintain its validity and constitutionality if it is possible," a reasonable court would have interpreted the order "in such a way that it did not limit the testamentary capacity of Mr. Winters" and would have held a hearing "to at least explore the circumstances surrounding the proposed amendment" either before or after Winters' death. Given this conclusion, the court questioned whether any negligence by respondent could be viewed as having resulted in any damages, suggesting that it would not have mattered if respondent had handled matters differently because the court should have held a hearing in any event. The court rejected as calling for speculation appellants' counsel's argument that actionable negligence could be proved because the probate court's erroneous ruling was foreseeable. Respondent's attorney responded with a motion for nonsuit, which the trial court granted. The court's order, filed on April 14, 2000, includes the following findings and determinations as a matter of law:
"To maintain the validity and constitutionality of the Order if possible, a reasonable court should have interpreted the Order as not restricting the conservatee's testamentary ability to amend his trust. . . .
"Had Defendant filed a petition for approval of the amendment after its execution but before Paul Winters' death (i.e., on Friday December 5, 1997, or between Monday, December 8, 1997, and Friday December 12, 1997), a reasonable court should not have held a hearing on the petition before the death because such a court should have required proper notice to the trustee, and there was insufficient time to do that. However, a reasonable court should have granted a hearing to be conducted after Paul Winters' death to explore the circumstances surrounding the proposed amendment, whether the petition for approval of the amendment was filed before or after Winters' death. . . .
"Although in the Conservatorship proceeding the court denied Defendant's petition for approval of the Amendment without considering the Amendment on its merits, a reasonable court should have granted a hearing to at least explore the circumstances surrounding the Amendment.
"Since a reasonable judge should have considered the circumstances surrounding the Amendment after Defendant petitioned for its approval, it is inconsequential that Paul Winters died before the Amendment was brought to the court's attention in the Conservatorship proceeding and there is no causal connection between the conduct of the Defendant and the Plaintiffs' alleged damages."
Judgment was entered on June 26, 2000, and notice of entry of judgment was served on June 26 and filed on June 29, 2000. Appellants filed a timely notice of appeal on August 9, 2000.
DISCUSSION
I.
"A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. (Campbell v. General Motors Corp. (1982) 32 Cal. 3d 112, 117-118 [184 Cal. Rptr. 891, 649 P.2d 224]) `In determining whether plaintiffs evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff[`s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn *698 from the evidence in plaintiff[`s] favor."' (Id. at p. 118 [184 Cal. Rptr. 891, 649 P.2d 224].) . . . [¶] In reviewing a grant of nonsuit, we are `guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.' (Carson v. Facilities Development Co. (1984) 36 Cal. 3d 830, 839 [206 Cal. Rptr. 136, 686 P.2d 656]) We will not sustain the judgment `"unless interpreting the evidence most favorably to plaintiffs case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law."' (Ibid., quoting Mason v. Peaslee (1959) 173 Cal. App. 2d 587, 588 [343 P.2d 805])" (Natty v. Grace Community Church (1988) 47 Cal. 3d 278, 291, 253 Cal. Rptr. 97, 763 P.2d 948.) Additionally, "we will not consider any ground for the nonsuit not advanced in the trial court, except one which identifies an incurable defect. (Lawless v. Calaway (1944) 24 Cal. 2d 81, 92-94 [147 P.2d 604])" (Loral Corp. v. Moyes (1985) 174 Cal. App. 3d 268, 273, 219 Cal. Rptr. 836.)
Where a nonsuit is granted after opening argument, the reviewing court accepts as true the facts asserted in the opening statement and indulges every legitimate inference those facts support. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal. 4th 925, 930, 80 Cal. Rptr. 2d 811, 968 P.2d 522.) Similarly, here, we accept as true the facts stated in appellants' trial court briefs and argument. (See Aspen Enterprises, Inc. v. Bodge (1995) 37 Cal. App. 4th 1811, 1817, 44 Cal. Rptr. 2d 763 [parties stipulated that plaintiffs oral argument and supplemental brief in opposition to the motion for nonsuit would serve as its opening statement].)
Appellants contend that the trial court erred in holding as a matter of law that the probate court's ruling superseded respondent's alleged negligence in causing appellants' damages. They maintain that the probate court ruling could constitute a superseding cause only if it was not reasonably foreseeable and that foreseeability was a question of fact for the jury. They additionally argue that the probate court ruling could not supersede respondent's alleged negligence in failing to deliver the trust amendment to the trustee during Winters' lifetime.
Respondent characterizes the case differently, viewing the critical issue not as foreseeability of the probate court's ruling but as whether causation depended on a legal ruling which presented a question of law for the court to decide. According to respondent, the threshold issue in the malpractice case was how a reasonable court should have ruled on the petition to amend the trust; the trial court correctly decided this issue as a question of law and concluded the probate court should have held a hearing on the validity of the amendment; and since a reasonable court should have considered the merits of the petition to amend the trust, no conduct of respondent's caused appellants' damages. Stated differently, in respondent's view, if the trust amendment was within the requirements of the conservatorship order (as properly interpreted), respondent's conduct could not be viewed as having caused appellants any damage; only if the amendment failed to comply with the order should the question of respondent's conduct have been submitted to the jury.
It should be stated at the outset that we do not find it necessary to determine whether the trial court was correct to find that the probate court's ruling on the trust amendment was erroneous, or whether appellants are presently in a position to maintain that the probate court's order *699 was actually correct.[1] As will be explained, whether the probate court was correct or incorrect, factual questions existed as to liability in the present case and nonsuit was improperly granted.
"The elements of a cause of action for legal malpractice are (1) the attorney-client relationship or other basis for duty; (2) a negligent act or omission; (3) causation; and (4) damages. (Nichols v. Keller (1993) 15 Cal. App. 4th 1672, 1682 [19 Cal. Rptr. 2d 601]; see Sukoff v. Lemkin (1988) 202 Cal. App. 3d 740, 744 [249 Cal. Rptr. 42])" (Kurinij v. Hanna & Morton (1997) 55 Cal. App. 4th 853, 863, 64 Cal. Rptr. 2d 324.) "`Proof of legal malpractice requires proof not only of negligence by the lawyer but also of causation, a trial within a trial to establish that, but for the lawyer's negligence, the client would have prevailed in the underlying action.' [Citations.]" (Id. at p. 864, 64 Cal. Rptr. 2d 324.)
One aspect of causation is cause in fact or actual cause: Was the defendant's conduct "a substantial factor in bringing about the injury." (Mitchell v. Gonzales (1991) 54 Cal. 3d 1041, 1049, 1 Cal. Rptr. 2d 913, 819 P.2d 872.) The other is legal or proximate cause.
"`"Legal cause" exists if the actor's conduct is a "substantial factor" in bringing about the harm and there is no rule of law relieving the actor from liability. [Citations.]'" (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal. App. 4th 1225, 1235, 32 Cal. Rptr. 2d 136, quoting Nola M. v. University of Southern California (1993) 16 Cal. App. 4th 421, 427, 20 Cal. Rptr. 2d 97.) `"The doctrine of proximate cause limits liability; i.e., in certain situations where the defendant's conduct is an actual cause of the harm, he will nevertheless be absolved because of the manner in which the injury occurred. Thus, where there is an independent intervening act which is not reasonably foreseeable, the defendant's conduct is not deemed the "legal" or proximate cause.'" (Hardison v. Bushnell (1993) 18 Cal. App. 4th 22, 26, 22 Cal. Rptr. 2d 106.) "In general, if the risk of injury is reasonably foreseeable, the defendant is liable. An independent intervening act is a superseding cause relieving the actor of liability for his negligence only if the intervening act is highly unusual or extraordinary and hence not reasonably foreseeable. (4 Witkin, Summary of Cal. Law (8th ed.) Torts, § 628; Rest.2d Torts, §§ 435, 447.) Reasonable foreseeability in this context is a question for the trier of fact." (Cline v. Watkins (1977) 66 Cal. App. 3d 174, 178, 135 Cal. Rptr. 838.)
Causation is generally a question of fact for the jury, unless reasonable minds could not dispute the absence of causation. (Constance B. v. State of California (1986) 178 Cal. App. 3d 200, 207, 223 Cal. Rptr. 645.) Here, the trial court concluded that respondent's conduct did not cause any injury to appellants because if the probate court had properly construed its conservatorship order, the petition for approval of the trust amendment would have been considered on its merits at the time it was presented by respondent. Appellants, however, offered evidencewhich must be accepted as true for purposes of reviewing the nonsuit (see Hoff v. Vacaville *700 Unified School Dist, supra, 19 Cal.4th at p. 930, 80 Cal. Rptr. 2d 811, 968 P.2d 522)that a reasonable attorney confronted with the conservatorship order involved here would have taken steps before execution of the trust amendment to avoid the result reached in the probate court. Specifically, appellants' expert testified in his deposition that respondent violated the standard of care by not filing a petition for instructions to determine the proper interpretation of the conservatorship order; not requesting the court to allow Winters to sign the trust amendment subject to court approval after execution; not seeking approval of the amendment more quickly after it was signed; and generally not acting with greater dispatch in handling the amendment. Appellants argue that the proper inquiry for the trial court was whether they would have prevailed in the probate court if respondent had taken any of these steps. For example, if respondent had requested clarification, would a reasonable court have construed the conservatorship order to permit the amendment Winters executed? If respondent had requested permission from the court for Winters to sign the amendment, subject to subsequent approval, would a reasonable court have granted the request? If a reasonable court would have responded to such requests by allowing the amendment, respondent's failure to take these steps would be a substantial factor in causing appellants' injury.
If the probate court erredif it should have entertained a hearing on the merits of the amendment despite respondent's failure to take earlier action to obtain court approvalthis fact would alter the analysis only if the probate court's action could be viewed as a superseding cause of the injury. In Skinner v. Stone, Raskin & Israel (2d Cir.1983) 724 F.2d 264, for example, the plaintiff sued attorneys who had represented him in a divorce action in which a default judgment was entered in favor of his former wife. The attorneys formally entered the case to move to vacate the default judgment on grounds that it was entered without proper notice; the trial court denied this motion but was reversed on appeal. In the malpractice action, the Second Circuit held that although the plaintiff, as a result of the appeal, was again in a position to contest the divorce case on the merits, he could recover expenses attributable to the defective default judgment (e.g., expenses in opposing enforcement of that judgment) if the default judgment resulted from the attorneys' negligence. The court pointed out that there was evidence from which a jury could conclude the attorneys could have taken steps to "head off the entry of the default, as they had been provided with a copy of the proposed judgment a month before it was entered. According to Skinner, the attorneys could be held liable if their conduct was a proximate contributing cause of the injury unless the trial court's mistake was a superseding cause. (Id. at p. 266.)
As appellants point out, even if the probate court's ruling was erroneous, it cannot be viewed as unforeseeable as a matter of law. As an abstract principle, it is always foreseeable that a trial court will err, as evidenced by the existence of appellate courts. In the case before us, there is clearly evidence that the probate court's ruling was foreseeable. The literal language of the conservatorship order required prior approval for a trust amendment. Respondent acknowledged in his deposition that he believed the conservatorship order indicated the probate court would prefer approval of a trust amendment before execution. The deposition testimony of the parties' expert witnesses demonstrates that they, too, viewed the conservatorship order as appearing to require prior approval of the trust amendment. Indeed, the experts both appellants' and respondent'sviewed the order as "unique," "ambiguous," "astonishing" and "confusing," because the order appeared to require prior approval *701 of the court for a testamentary disposition that normally would not be subjected to such a requirement. Even if the probate court was in fact wrong to insist on prior approval of the amendment, there was abundant evidence that respondent could have foreseen from the language of the conservatorship order that it might do so, and might have been able to protect against this result by seeking the prior approval the order appeared to require, or attempting to clarify the interpretation of the order. Faced with a highly unusual order that appeared to impose a requirement for the amendment of the trust of an elderly client, in rapidly failing health, who unequivocally wanted to change the beneficiary of the trust, respondent had an obligation to take all reasonable steps to avoid having the conservatorship order interfere with the effectuation of his client's wishes. Acting in violation of the apparent requirement of the ordereven if respondent believed that requirement to be impropersubjected appellants to unnecessary risk. "An attorney owes a duty to his client to employ that degree of knowledge, skill, and judgment ordinarily possessed by members of the legal profession in carrying out the services for his client. [Citation.] One of these obligations is anticipating reasonably foreseeable risks. [Citation.]" (Temple Hoyne Buell Foundation v. Holland & Hart (Colo.App.1992) 851 P.2d 192, 198 [attorney could be liable for negligence in drafting option contract that did not in fact violate Rule Against Perpetuities for failure to protect against likelihood of litigation concerning applicability of the rule], italics omitted.)
When an attorney is charged with negligence, the question is what result would have been reached by a reasonable court if the attorney had not engaged in the conduct alleged to be negligent. The standard is objective; it does not ask what the same court would have done under different circumstances but what the result should have been if the attorney had acted differently. "The trial-within-a-trial method does not `recreate what a particular judge or fact finder would have done. Rather, the jury's task is to determine what a reasonable judge or fact finder would have done. . . .' (Brust v. Newton (1993) 70 Wash.App. 286 [852 P.2d 1092]) Even though `should' and `would' are used interchangeably by the courts, the standard remains an objective one. The trier of facts determines what should have been, not what the result would have been, or could have been, or might have been, had the matter been before a particular judge or jury. (Phillips v. Clancy (1986) 152 Ariz. 415 [733 P.2d 300]; Harline v. Barker (Utah 1996) 912 P.2d 433, 441; Justice v. Carter (8th Cir.1992) 972 F.2d 951, 956-957; 4 Mallen & Smith, Legal Malpractice, supra, § 32.1, pp. 127-129.)" (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App. 4th 820, 840, 60 Cal. Rptr. 2d 780.)[2]
The trial court's analysis of this case did not consider what a reasonable court would have done if respondent had acted in the manner appellants' expert testified a competent attorney would have. Rather, the court asked what a reasonable court faced with respondent's actual conduct should have done and, because it believed the probate court did not so act, the court concluded that there was no causal link between respondent's conduct and appellants' injury. In effect, the court was passing judgment on the nature of respondent's conduct: By determining that a proper interpretation of the conservator *702 ship order would have allowed for a hearing on the merits of the trust amendment either before or after Winters' death, the trial court determined that respondent engaged in no erroneous conduct. Indeed, respondent so characterizes the matter on appeal, arguing that "[a]s there was no erroneous conduct on Huysentruyt's part, the trial court was correct to conclude that the element of causation could not be shown."
This reasoning confuses the issues of causation and breach of the standard of care: If respondent engaged in no erroneous conduct, appellants' case would be defeated because there was no negligent conduct, not because that conduct did not cause appellants' injury. This was not the basis of the nonsuit. The trial court granted nonsuit on grounds of absence of causation. Because appellants offered evidence that respondent's conduct breached the standard of care, the trial court should have considered what a reasonable court should would have done if respondent had acted in conformance with the standard of care. The trial court's view of the case serves to exonerate respondent because of what it considered to be the probate court's error when, according to the evidence offered by appellants, respondent could have headed off any such error by recognizing the ambiguity in the conservatorship order and acting to protect against the possibility that the probate court would enforce its harshestbut most literalinterpretation. Such exoneration would be appropriate only if the probate court's mistake could be viewed as a superseding cause. (Skinner v. Stone, Raskin & Israel, supra, 724 F.2d at p. 266.) Here, it could not, because there was evidence the probate court's order was foreseeable.
On the other hand, if the probate court's order was in fact correct, the existence of factual issues as to respondent's liability is even more apparent. If the conservatorship order, properly construed, required prior approval before the trust amendment was executed, respondent would be liable if his failure to obtain such prior approval constituted sustained conduct and was the proximate cause of appellant's injury. The evidence discussed above as creating factual issues regarding respondent's conduct in failing to seek clarification of the order or approval from the court for the amendment clearly demonstrates the existence of factual issues under this scenario as well.
Appellants additionally maintain that the nonsuit should not have been granted becauseindependent of any error by the probate courtrespondent was negligent in failing to deliver the trust amendment to the trustee during Winters' lifetime, an omission that would have been fatal to the amendment if the probate court had considered it on the merits. Appellants assert that Winters' trust set forth no method for modification and respondent does not dispute this point. When a revocable trust does not expressly provide an exclusive method for modification or amendment, it may be modified "by a writing (other than a will) signed by the settlor and delivered to the trustee during the lifetime of the settlor." (Prob.Code, § 15401, subd. (a)(2); see also Prob.Code, § 15042; Conservatorship of Irvine (1995) 40 Cal. App. 4th 1334, 1343, 47 Cal. Rptr. 2d 587.) "`If a settlor modifies the trust but fails to inform the trustee, the modification for amendment] will not be effective if the trust instrument requires delivery of the modification [or amendment] to the trustee or the trustee's consent, because the modification [or amendment] will not have been made according to the terms of the governing instrument.' (Cal. Trust Administration (Cont.Ed.Bar 1985) § 12.3, p. 458, italics added.)" (Conservatorship of Irvine, supra, 40 Cal. App. 4th 1334, *703 1343, 47 Cal. Rptr. 2d 587.) In Irvine, a trust amendment that was delivered to the wrong individuals was held ineffective. (Id. at p. 1346, 47 Cal. Rptr. 2d 587.)
Appellants contend that even if the probate court had considered the trust amendment on its merits, it would have had to invalidate the amendment because it was not delivered to the trustee during Winters' lifetime, and that respondent was negligent in not delivering the trust amendment to the trustee in the nine days between the time Winters signed it and the time he died. Respondent, however, maintains that the trust must be read in conjunction with the conservatorship order requiring prior court approval for amendments and that because there was no prior approval here, there was no effective modification to deliver to the trustee. Respondent notes the statement in Conservatorship of Irvine, supra, that "`[instruments may require . . . consent of a third party or a specific waiting period before the modification is effective." (40 Cal.App.4th at p. 1343, 47 Cal. Rptr. 2d 587, quoting Cal. Trust Administration, supra, § 12.3, p. 458.) As Irvine noted, "[provisions like these are designed to protect settlors from possible undue influence of people who would like to benefit from the trust assets." (Ibid.)
Respondent cannot have it both ways. In arguing on this appeal that the trial court properly found an absence of causation, respondent takes the position that, properly interpreted, the conservatorship order did not require prior court approval of the particular amendment at issue in this case. If that is so, respondent cannot rely on the requirement of prior approval to excuse a failure to deliver the amendment to the trustee.
The trial court made no findings concerning appellants' claim of malpractice based on respondent's failure to deliver the trust amendment to the trustee before Winters' death; its determination that appellants' damages were not caused by respondent's conduct but by the probate court's erroneous ruling ignores this separate claim. Nonsuit on this basis was therefore inappropriate. It bears noting, however, that in order to prevail on a claim of malpractice based on respondent's failure to deliver the trust amendment to the trustee, appellants will ultimately have to demonstrate both that respondent was negligent in not so delivering the amendment and that the amendment would have been effective if he had done so. This latter showing could be made only if appellants could also demonstrate that the amendment would have been found valid in the context of the prior court approval issue. If a reasonable court would not have approved the amendment if respondent had taken what appellants assert were the proper steps to comply with or obtain relief from the conservatorship order's requirement of prior approval, any negligence with respect to delivery of the amendment would be irrelevant.
II.
Appellants seek sanctions against respondent for his failure to timely file his brief on appeal. Appellant's opening brief was filed on November 28, 2000. On December 12 and 18, respectively, the parties signed a stipulation to extend the time for filing respondent's brief to January 26, 2001, provided that "[n]o Rule 17(b) notice shall be issued extending respondent's time to file his brief beyond January 26, 2001." Apparently, this stipulation was not received by this court. On December 29, this court notified respondent that the matter would be submitted for decision based on the record and appellants' opening brief if respondent's brief was not filed *704 within 15 days, unless respondent showed good cause for an extension of time. (Cal. Rules of Court, rule 17(b).) On January 11, 2001, the stipulation extending time to January 26 was filed.
On January 24, 2001, respondent filed an application for an extension of time to February 16. Respondent's attorney declared that he had determined he needed to file an application to augment the record with documents including the briefs in the appeal from the probate court's order and that he was preparing for an oral argument that had been rescheduled from January 24 to February 21 in an appeal of a $6 million verdict with a record of more than 10 volumes as well as briefing two additional appeals besides the present one. The extension of time was granted on January 25. Respondent's brief was not filed and, on February 21, this court notified respondent pursuant to rule 17(b) that the time for filing his brief had expired.
On March 7, 2001, respondent filed an application for permission to file his brief. According to respondent's counsel, after obtaining the extension to February 16, 2001, he planned to file the brief `within that time frame and, in any case, within the time frame of a proper Rule 17(b) Notice providing 15 days in which to file the brief, rather than seek another extension, as the brief was substantially completed." Respondent's counsel believed that the December 29, 2000, rule 17(b) notice was erroneous because of the parties' stipulation extending the time for filing the brief until January 26, 2001, and, therefore, that he would receive a rule 17(b) notice with respect to the February 16, 2001, deadline. Instead, respondent's counsel received the February 21 notice that time had expired.
On March 12, 2001, appellants' counsel filed a declaration in opposition to respondent's application, arguing that granting the application would prejudice appellants and that respondent's counsel had no basis to believe he could file his brief later than February 16, 2001. According to appellants' counsel, David Baer, when respondent initially asked for the stipulation to extend time in December 2000, Baer explained that a continuance was not in his clients' interests because prejudgment interest was accruing on their claims, which might exceed the policy limits on respondent's professional liability policy, but agreed to the extension "provided that [respondent's counsel] waived his right to a Rule 17(b) extension allowing him to file the respondent's brief after that date." Baer declared that he told Bacerdo to call him if he needed a further extension. On January 24, 2001, Baer received Bacerdo's application for an extension of time to February 16. On February 15, Baer learned that the associate who had prepared the opening brief in this case would be leaving the firm on March 1. She confirmed that she would be able to prepare the reply brief and contacted Bacerdo, who told her he would be filing respondent's brief "at `the last minute' and might wait for the Rule 17(b) notice." Baer believed the parties' December stipulation precluded any rule 17(b) extensions. Accordingly, he felt it was proper when he did not hear from Bacerdo after receiving the court's February 21 notice that time to file respondent's brief had expired or the court's March 5 notice that the case was fully briefed.
In response to the application to late file respondent's brief, Baer stated that the parties' December 2000 stipulation precluded any rule 17(b) extension: He agreed with Bacerdo that the court's December 29, 2000, rule 17(b) notice was sent in error but disagreed that this entitled respondent to a rule 17(b) notice after the February 16, 2001, deadline for filing. *705 Baer stated that it would be "extremely inefficient" to have any attorney other than himself prepare the appellants' reply brief as he was the only one at the firm familiar with the matter, and that he was preparing for a three-week trial in a will contest involving a $3 million estate scheduled for March 26, 2001. Baer stated it would prejudice his clients in the will contest to turn his attention to drafting the reply brief, while it would prejudice appellants to seek an extension because this would increase "the difference between the policy limits and their damage claim." Baer stated that appellants' claim, including prejudgment interest, exceeded the $1 million limit of respondent's insurance policy, which limit he believed had been reduced by the attorney fees paid by the insurer. Finally, Baer noted Bacerdo's statement in his declaration that respondent's brief was "substantially completed" on January 25, 2001, which Baer felt indicated the brief could have been filed by the February 16 deadline.
On March 21, we granted respondent's request to late file the brief and indicated we would treat appellants' opposition as a request for sanctions and allowed appellants 45 days to file their reply. As permitted by our order, respondent filed a letter brief taking issue with appellants' position. According to respondent, the parties stipulation included a waiver only of the rule 17(b) notice pertaining to the original extension of time to January 26, 2001, and the parties agreed that respondent would be able to seek a further extension to which a rule 17(b) notice would still apply. Bacerdo's letter asserts that when he informed Baer's associate that he would be relying upon a rule 17(b) notice rather than seeking another extension, neither she nor Baer informed him that they disputed his right to do this. With respect to appellants' claims of prejudice, respondent urges that associates leaving firms is a common practice which generally results in the remaining members of the firm carrying additional burdens, and that 45-day period given for filing the reply afforded appellants much more time that the usual 20 days for filing following the respondent's brief. Respondent views the claim of prejudice based on his insurance policy limits "speculative" and "presumptuous" because it assumes appellants will prevail on appeal and assumes the alleged damage claim is a sum certain, and because the delay in question was only two weeks. Appellants, for their part, assert that sanctions are appropriate because of both the lateness of respondent's brief and respondent's counsel's failure to contact appellants' counsel at any time after the December stipulation regarding the further extensions and failures to meet deadlines for filing the brief. According to appellants, prejudgment interest is accruing on their $860,000 claim[3] at a rate of $235.55 per day,[4] so that the 19-day delay in filing respondent's brief corresponds to $4,475.45 in interest. Appellants further assert that but for the delay by respondent, the associate who wrote appellants' opening brief would have been able to prepare the reply, which could have been filed by March 8, 2001; appellants *706 therefore attribute to respondent a 59-day delay in disposition of this case due to their reply brief being filed on May 7 rather than March 8, 2001, corresponding to $13,897.45 in prejudgment interest. Finally, appellants estimate that respondent's delay "cost" their counsel $4,000 to $5,000 due to the difference in billing rates for Baer, who actually prepared the reply brief, and the associate who would have prepared it if respondent had filed the brief on or before February 16.
Respondent's conduct in this matter was clearly less than exemplary. The language of the parties' stipulation, providing that "[n]o Rule 17(b) notice shall be issued extending respondent's time to file his brief beyond January 26, 2001[,]" is more susceptible of appellants' interpretation than respondent's. That is, the stipulation appears to contemplate no rule 17(b) extensions beyond January 26, 2001, not simply no such extension of that particular date, subject to future rule 17(b) extensions of any subsequent extensions that might be granted. Moreover, having obtained this stipulated extension, which was clearly limited, respondent made no further effort to communicate with appellants' counsel regarding his need for further extensions. Nor did respondent's counsel specifically alert this court, when he sought the extension to February 16, that appellants' counsel had previously expressed concern over further delays.
On the other hand, appellants' claims of prejudice are not very persuasive. With respect to the delay having the effect of requiring Baer to prepare the reply brief personally rather than having it prepared by the associate who prepared the opening brief, respondent is correct that it is a fact of life that associates sometimes leave firms. Appellants offer no evidence that respondent deliberately sought to take advantage of the timing of the associate's leaving; rather, this was an unfortunate coincidence. This court's allowance of 45 days for the filing of the reply brief after respondent's brief was accepted for filing compensated for this consequence of the delay.
Appellants' claim of prejudice based on the accrual of prejudgment interest on their claims is necessarily speculative. First, the claim will only have meaning if in fact appellants ultimately prevail in this malpractice litigation. Second, given the length of time it will take to determine this pointincluding the time elapsed during the pendency of this appeal, the time for any subsequent trial of the matter and, potentially, any further appealsthe 19day delay in filing respondent's brief is de minimis. The 59-day delay appellants' seek to attribute to respondent is not appropriately so attributed, both because it is speculative to assume Baer's associate would have filed a reply brief by March 8 and because appellants' counsel took advantage of the time allowed by this court in not filing the reply brief until May 7. Finally, appellants' claim of prejudice is ultimately based on the assumption respondent will not be able to satisfy a future judgment in appellants' favor if the accrual of prejudgment interest brings the total judgment amount above the limits of respondent's professional liability insurance policy. Appellants present no evidence this is in fact the case.
In sum, while respondent's conduct could have been better, it was not egregious. Appellants were accommodated by the delayed deadline for filing their brief. Sanctions are not warranted.
Disposition
The judgment is reversed and the matter remanded for proceedings consistent with the views expressed herein. Appellants' *707 request for sanctions is denied. Costs to appellants.
RUVOLO, J., concurs.
Concurring opinion of HAERLE, J.
I concur in everything that my colleagues say, but I would say more. And what I would say implicates a concept apparently overlooked by the court below: the concept of the finality of judgments.
A bit of the procedural history of this case needs to be revisited: in 1996, Judge Carol Yaggy, then a Probate Court Commissioner, entered an order in a conservatorship proceeding requested by the-then conservator, the conservatee's wife. It required, as the majority notes, that conservatee Winters (recently hospitalized and diagnosed with, among other things, Alzheimer-type dementia) would "not have the power either to amend or revoke [his trust] without the prior approval of this Court." This order was subsequently reapproved and reissued by Judge Yaggy when, upon the death of the wife, a professional conservator was appointed to succeed her as conservator.
As the majority opinion notes, a week or so before the conservatee died in December 1997, an amendment was prepared by respondent, signed by the conservatee and then notarized by respondent, but all without seeking court approval. About a month after Winters's death, in January 1998, respondent sought approval of this amendment from Judge Yaggy, only to be met with opposition from the conservatee's step-daughter, who would take everything under an unaltered trust.
No one, least of all respondent, should have been surprised when, on April 8, 1998, Judge Yaggy denied the petition, essentially saying that the orders she had entered twice before meant what they said, i.e., that an amendment to the subject trust had to be approved by the probate court before it could be effective.
Appellants, who stood to be the beneficiaries of the putative amendment, appealed this order to this District (Conservatorship of Winters, No. A082566), but later dismissed their appeal after effecting a settlement with the stepdaughter. Thereupon, of course, Judge Yaggy's order of April 8, 1998, became final.
Except, apparently, to respondent and the court below. Evidently encouraged by respondent's counsel via their motions in limine, the court below engaged in what may charitably be called substantial second-guessing of Judge Yaggy's order of April 8, 1998, as well asalbeit implicitlythe two orders underlying it. I regard this exercise and the unmistakable implication of the ruling under review that Judge Yaggy's order was "unreasonable," to be contrary to the spirit, if not the letter, of the concept of judicial finality.[1]
This concept has many subparts, e.g., res judicata, collateral estoppel, the rule prohibiting collateral attacks on judgments, etc. Underlying all of them is the basic principle that: "If a judgment, no matter how erroneous, is within the jurisdiction of the court, it can only be reviewed *708 and corrected by one of the established methods of direct attack." (8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 1, p. 507.) Our appellate courts have repeatedly quoted this basic rule. (See, e.g., Estate of Buck (1994) 29 Cal. App. 4th 1846, 1854, 35 Cal. Rptr. 2d 442; People v. $6,500 U.S. Currency (1989) 215 Cal. App. 3d 1542, 1548, 264 Cal. Rptr. 294.)
Now it is technically correct that neither respondent nor the court below specifically sought to "correct" Judge Yaggy's various orders. To that extent, I will concede that what transpired below may not have been, strictly speaking, a collateral attack on those orders. But "review" those orders it certainly did, with many, many explicit references effectively labeling them as "unreasonable." It seems to me that this is fundamentally contrary to both the respect due from one superior court department to another and, more importantly, to the overall concept of the finality of judgments.
And, finally, it was and is also contrary to the principle laid down by this court a decade ago that trial courts ought not to second-guess probate courts on matters within the latter's peculiar jurisdiction. Thus, in Estate of Gump (1991) 1 Cal. App. 4th 582, 607, 2 Cal. Rptr. 2d 269, we said (quoting from an earlier, but by then depublished, opinion in the same controversy): "The law disfavors the avoidance of probate proceedings and the litigation on the law side of the court of matters properly heard and resolved in probate." This controversy provides an appropriate "amen" to that statement.
NOTES
[1] Respondent suggests that appellants are precluded from arguing that the probate court correctly interpreted the conservatorship order because they argued the invalidity of that order in their appeal from the probate court's ruling, although he does not actually pursue an estoppel argument since he views appellants as having conceded the probate court order was erroneous. Appellants respond that the doctrine of judicial estoppel is inapplicable here because it requires that the first tribunal accept the litigant's position as true.
[2] We note that in the present case, if it should become necessary to determine whether the probate court's ruling was correct or incorrect, the responsibility to resolve this legal question would fall to the trial court and not to the jury. (See Martin v. Hall (1971) 20 Cal. App. 3d 414, 420, 97 Cal. Rptr. 730.
[3] Appellants' claim is the difference between the total value of Winters' estate and the amount they received in settlement of the appeal from the probate court's ruling. According to appellants' opening brief, the total value of the estate was $1,240,000 and their net recovery from the settlement (after attorney's fees) was about $380,000. According to appellants' counsel's declaration in opposition to respondent's application to late file the brief, the total value of the estate was about $1,260,000 and appellants' net recovery from the settlement was about $390,000.
[4] According to appellants' calculation: $860,000 divided by 365, times 10 percent.
[1] Nor, contrary to the contention of respondent's counsel at oral argument, is such an exercise mandated or permitted by the "trial within a trial" mechanism discussed in, e.g., Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App. 4th 820, 831-840, 60 Cal. Rptr. 2d 780. That process may well involve a determination of what, hypothetically, a "reasonable" judge or fact-finder would have done had the alleged malpractice not have precluded or prevented the necessary finding or determination. It most certainly does not permit, much less mandate, legal malpractice litigation being effectively determined on the premise that an existing final judgment is "unreasonable." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261448/ | 861 F. Supp. 263 (1994)
Herman WAGSCHAL and Marsha Wagschal, Plaintiffs,
v.
The SEA INSURANCE COMPANY, LIMITED, Defendant.
No. 92 Civ. 2579 (RWS).
United States District Court, S.D. New York.
August 25, 1994.
Matarazzo Blumberg & Associates, P.C., New York City, by Barbara A. Matarazzo, of counsel, for plaintiffs.
Tell, Cheser & Breitbart, New York City, by Franklin D. Tell, of counsel, for defendant.
OPINION
SWEET, District Judge.
Plaintiffs Herman and Masha Wagschal (the "Wagschals") have moved in limine for an order prohibiting Defendant The Sea Insurance Company, Limited ("Sea") from using certain evidence at trial in this matter. For the reasons set forth below, this motion is granted in part and denied in part.
Parties
The Wagschals are residents and domiciliaries of the State of New York. Sea is a foreign corporation authorized to engage in the business of insurance in the State of New York.
Facts
In 1986, the Wagschals purchased a residence in Monsey, New York (the "Residence"). The Residence suffered a fire on July 9, 1990, at which time the Plaintiffs had an insurance policy with Sea. A second fire on July 20, 1990 (together with the July 9 *264 fire, the "1990 Fires") completely destroyed the Residence.
On June 6, 1991, Sea declined the Plaintiffs' insurance claims on the grounds that the 1990 Fires were incendiary and caused by the insureds or at their behalf, that the insureds intentionally concealed and misrepresented material facts during the course of Sea's investigation regarding the circumstances surrounding the Fires, that the Wagschals fraudulently submitted sworn statements in proof of loss by grossly exaggerating the nature and extent of the damages, and that during the course of their examination under oath, the Wagschals concealed and misrepresented material facts regarding the circumstances of the Fires and their damages.
Sea has indicated that it intends to introduce evidence at trial relating to a prior claim submitted by the Kingdom Development Corporation ("Kingdom") to the New York Property Insurance Underwriting Association ("New York Property") as a result of a fire in July, 1986 (the "1986 Fire"). Mr. Wagschal and Moshe Malik[1] were principals of Kingdom, which owned a property known as the White House Estates in Spring Valley, New York. Shortly after Kingdom purchased White House Estates, a hotel on the property was substantially destroyed by fire. Litigation over insurance coverage of the Kingdom loss ensued, in which there was a claim for more than $700,000 in damages. This litigation was settled by the payment of $50,000 by New York Property, and Sea has indicated that it intends to introduce evidence of this settlement.
Sea has also indicated that it will attempt to introduce evidence relating to a fire occurring at Malik's residence in 1989 (the "1989 Fire"), a bank application and income verification form for a loan to Kingdom, applications for public assistance from 1984 to 1986 signed by the Wagschals, and certain bank statements of Mr. Wagschal.
Prior Proceedings
The complaint in this action was filed on April 10, 1992. This motion was argued on June 22, 1994, and was considered fully submitted as of that date.
Evidence Relating to the 1986 and 1989 Fires
The Wagschals seek to exclude all evidence or testimony making reference to the 1986 and 1989 Fires. Rule 404(b), Fed.R.Evid., provides that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....
The defendants seek to introduce evidence which, they claim, will show that the 1986 and 1989 Fires were incendiary and were started in a manner similar to the start of the 1990 Fires. Several courts have found that such evidence is admissible under Rule 404(b) to show motive and intent. See Glados, Inc. v. Reliance Ins. Co., 888 F.2d 1309, 1312 (11th Cir.1987) (evidence of prior fires admissible to show that third party had motive and plan to set fires), cert. denied, 497 U.S. 1025, 110 S. Ct. 3273, 111 L. Ed. 2d 783 (1990); Dial v. Travelers Indem. Co., 780 F.2d 520, 523 (5th Cir.1986) (evidence of subsequent fire relevant to issue of intent in case in which fire claim is met by defense of arson); Hammann v. Hartford Acc. & Indem. Co., 620 F.2d 588, 589 (6th Cir.1980) (evidence of prior fires properly admitted in insurance case on the issue of motive and intent); see also Terpstra v. Niagara Fire Ins. Co., 26 N.Y.2d 70, 308 N.Y.S.2d 378, 256 N.E.2d 536 (1970) (jury may consider prior fires as bearing upon motive that insured may have had to set fire at issue).
The cases cited by the Wagschals do not require that exclusion of evidence relating to the 1986 and 1989 Fires. In Warner v. Transamerica Ins. Co., 739 F.2d 1347 (8th *265 Cir.1984), the Eighth Circuit found that the district court had not abused its discretion when it excluded evidence of a prior fire when there was no evidence to suggest that the prior fire was of incendiary origin, or that the plaintiff had anything to do with the prior fire. In addition, since the plaintiff had not submitted a proof of loss claim for the first fire by the time the second fire occurred, proof of the first fire was not relevant to the issue of familiarity with insurance company procedure.
In Eng v. Scully, 146 F.R.D. 74 (S.D.N.Y. 1993), this Court excluded evidence of a prisoner's disciplinary records while incarcerated, his criminal record, and evidence of his prior litigations for reasons having no relevance to this motion. In Garcia v. Aetna Cas. & Sur. Co., 657 F.2d 652 (5th Cir.1981), the Fifth Circuit merely sent the matter back to the district court for retrial to determine as a predicate to admission of the evidence of prior fires that the evidence was relevant to an issue other than character.
In Smith v. State Farm Fire & Cas. Co., 633 F.2d 401 (5th Cir.1980), the district court did not admit evidence of prior fires because it did not find them sufficiently similar in their circumstances nor near enough in time to the fire under consideration, and the Fifth Circuit noted that it was not reaching the question of whether it would have been error to admit the evidence. Outley v. City of New York, 837 F.2d 587 (2d Cir.1988) concerned whether evidence of prior claims could be brought to show a plaintiff's litigiousness, and Hemphill v. Washington Metro Area Transit Auth., 982 F.2d 572 (D.C.Cir.1993) involved the permissibility of a "claims-minded plaintiff" charge.
Pursuant to Rule 403, Fed.R.Evid., otherwise admissible evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. As this Court has noted, "[i]t is difficult for the court to weigh the probative prejudicial balance before the commencement of a trial." East Coast Novelty Co. v. City of New York, 842 F. Supp. 117, 119 (S.D.N.Y.1994). This motion in limine is therefore denied at this time with respect to evidence relating to the 1986 and 1989 Fires, with leave to renew the motion at such time as the precise use of the evidence and any prejudice resulting therefrom is made clear.
Evidence Relating to Credibility
Sea also seeks to introduce into evidence a loan application for Kingdom; the Plaintiffs' bank statements for 1984 through 1986, and Plaintiffs' applications for public assistance dated July 1984 through January 1986. Sea claims that this evidence is relevant to the issue of the Wagschal's credibility, and to the issue of their financial wherewithal, and thus to their motive to commit arson and insurance fraud.
Rule 611(b), Fed.R.Evid., provides that cross examination can extend to "matters affecting the credibility of the witness." Rule 608(b), Fed.R.Evid., provides that:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness....
See also United States v. Sperling, 726 F.2d 69 (2d Cir.), cert. denied, 467 U.S. 1243, 104 S. Ct. 3516, 82 L. Ed. 2d 824 (1984) (proper under Rule 608(b) to cross-examine defendant regarding false credit card applications to show a general lack of credibility).
In Davidson Pipe Co. v. Laventhol & Horwath, 120 F.R.D. 455, 462 (S.D.N.Y.1988), this Court noted that:
Rule 608(b)'s bar on extrinsic evidence relating to credibility is not absolute: where the prior acts are not denied by the witness, evidence relating to them may be introduced. See United States v. Zandi, 769 F.2d 229, 236 (4th Cir.1985); Carter v. Hewitt, 617 F.2d 961, 970 (3d Cir.1980). Therefore, until it is known how the potential witnesses might testify regarding the prior acts, no determination can be made regarding admissibility of related extrinsic evidence.
*266 Additionally, this evidence may be relevant to the issue of the Wagschal's financial condition and thus their motive to cause the fires to be set in order to obtain insurance proceeds, and could be admissible on these grounds. See Elgi Holding, Inc. v. Insurance Co., 511 F.2d 957, 959 (2d Cir.1975) (evidence on insured's financial status admissible to show motive). The Plaintiffs' motion to exclude this evidence is therefore denied, with leave granted to renew the motion at a later time if appropriate.
Evidence Relating to the Kingdom Settlement
Sea seeks to offer into evidence that fact that Kingdom Development case against New York Property was settled for the sum of $50,000 against a claim for more than $700,000. Rule 408, Fed.R.Evid., states that:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise the claim which was disputed as to either validity or amount is not admissible to prove liability for invalidity of the claim or its amount.
The Advisory Committee notes to Rule 408 state that this rule applies to completed compromises when offered against a party thereto. The admission of evidence relating to the Kingdom Development case settlement would be contrary to Rule 408, and the Plaintiffs' motion in limine to exclude such evidence is granted. See Playboy Enterprises, Inc. v. Chuckleberry Pub., Inc., 687 F.2d 563, 569 (2d Cir.1982).
Conclusion
For the reasons stated above, the Wagschal's motion in limine is granted in part and denied in part.
It is so ordered.
NOTES
[1] The Plaintiffs' papers consistently refer to Moshe Malik, while the Defendant's papers refer to Moshe Malek. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261454/ | 861 F. Supp. 253 (1994)
SAZERAC COMPANY, INC., Plaintiff,
v.
Ferdie A. FALK, and Robert Baranaskas, Defendants.
No. 94 Civ. 2330 (RWS).
United States District Court, S.D. New York.
August 18, 1994.
*254 *255 Kirkland & Ellis, New York City (Terrence J. Galligan, of counsel), for plaintiff.
Baer Marks & Upham, New York City (Howard Graff, of counsel), for defendants.
OPINION
SWEET, District Judge.
Defendants Robert Baranaskas ("Baranaskas") and Ferdie Falk ("Falk") (collectively the "Defendants") move to dismiss the Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, in this diversity action brought by Plaintiff Sazerac Company, Inc. ("Sazerac") or, in the alternative, the Defendants seek to join Takara Shuzo Co., Ltd. ("Takara") as a necessary party, pursuant to Rule 19 of the Federal Rules of Civil Procedure.
For the reasons set forth below, the Defendants' motion to dismiss is granted.
The Parties
Sazerac is a corporation organized and existing under the laws of the State of Louisiana, with its primary place of business in New Orleans. Sazerac distributes alcohol beverage products throughout the United States.
Falk is a citizen of the State of Florida and Baranaskas is a citizen of the State of New York. The Defendants were the majority owners of Age International Inc. ("Age"), a Kentucky Corporation with offices in Roslyn, New York, which distributes alcohol beverage products throughout the United States, through AADC Holding Company, Inc. ("AADC"), a New York Corporation. Falk owned 35.1% and Baranaskas owned 33.9% of the stock of AADC.
Takara, a Japanese Corporation, is the exclusive distributor of Age products in Japan and was the minority shareholder in AADC at the time the alleged events occurred giving rise to this action. Takara owned approximately 22.5% of the stock of AADC and had a contractual right of first refusal to purchase the remaining 77.5%.
Prior Proceedings and Facts
On April 30, 1991, Takara purchased approximately 22.5% of the stock in AADC. Under the terms of that sale, Takara had a 30-day right of first refusal to purchase all other shares of AADC stock.
On July 10, 1992, Defendants Baranaskas and Falk entered into an agreement (the "Heublein Agreement") to sell their majority interest in AADC, the parent company of Age, with Heublein Inc. ("Heublein") for approximately $20,000,000. Heublein, a subsidiary of the multinational corporation Grand Metropolitan Incorporated, is in the business of importing and distributing alcoholic beverages such as Bailey's Irish Cream. On August 4, 1992, written notice of Heublein's offer, and AADC's intention to accept, was sent to Takara. On September 3, 1992, Takara gave notice to AADC that it intended to exercise its right of first refusal to purchase the stock. Apparently, Heublein informed Takara that it intended to proceed with the purchase which was due to close on September 4, 1992. In the absence of assurances to the contrary from AADC, Falk or Baranaskas, Takara then sought a temporary restraining order in the United States Court for the Southern District of New York.
On September 4, 1992, Takara, as the minority shareholder in AADC, filed suit in the Southern District seeking to enjoin Baranaskas and Falk from selling their shares of AADC to Heublein on the theory that it was guaranteed a right of first refusal in its shareholder's agreement with Baranaskas and Falk. On September 4, 1992 the Honorable John S. Martin granted a temporary *256 restraining order prohibiting the transfer of any shares of AADC to Heublein and a September 9 hearing date was set for a determination as to whether a preliminary injunction should issue. (Thomas Decl.; Defs.' Mot.Ex. C.)
On September 21, 1992, a stipulation and consent order (the "Consent Order") was "So Ordered" by the Honorable Kevin T. Duffy. The Consent Order stated: (1) that Takara had sent a letter on September 3, 1992 to AADC regarding Takara's right of first refusal of the sale of AADC stock; (2) that Takara tendered to AADC a proposed Share Purchase Agreement ("SPA") which provided a closing date of September 30, 1992; and (3) that the closing date could be extended until October 15, 1992, provided there were reasonable grounds for such notice; (4) that AADC, Baranaskas, Falk and Heublein all agreed to the provisions of the closing date in the SPA; and (5) that if Takara did not purchase the outstanding stock of AADC by September 30 or give notice extending the Closing Date, that Baranaskas and Falk would sell the stock to Heublein in accordance with the terms of the Heublein Agreement. (See Consent Order; Defs.' Mot. to Dismiss, Ex. B.)
On September 30, 1992, Takara exercised its right of first refusal and purchased the outstanding stock in AADC in accordance with the terms of the SPA allegedly the "mirror image" of the Heublein Agreement. Sazerac contends that at the same time the SPA was executed between the Defendants and Takara, a "concurrent" sale by Takara to the Sazerac of certain "Age Assets" of AADC and its subsidiaries was formalized in an Asset Purchase Agreement (the "APA") on September 3, 1992. The APA has not been attached to the Complaint and its terms and parties are unknown.
Prior to the closing, Age was the primary operating company owned by AADC. Sazerac alleges that the Defendants were aware that Takara intended to sell the Age Assets and certain AADC subsidiaries to Sazerac immediately upon the execution of the SPA by them and Takara. According to Sazerac, the Defendants thus knew of the representations made in connection with the sale of AADC stock were for the benefit of Takara as well as Sazerac.
Takara apparently did transfer the Age Assets to Sazerac, although Takara retained ownership of the corporate entity Age and the trademarks to certain of the Age Assets. In addition, Takara appears to have entered into a long term licensing agreements with Sazerac relating to the use of those trademarks. Sazerac, in turn, agreed to indemnify Age and Takara for certain assumed liabilities.
Sazerac now seeks to file suit against Defendants Falk and Baranaskas for violating warranties allegedly made to Takara under Section 6.8 of the SPA by failing to disclose certain pre-existing obligations concerning: (1) the Sterling Stone and W & W contracts' liquidated damages provisions which required Age to pay an amount equal to the sum of monthly commissions paid to those parties over a year; (2) the Missouri Conrad Liquor Co. distribution contract, an obligation allegedly not disclosed by the Defendants prior to the closing of the SPA; and (3) certain of the Age employee benefit plans later discovered to be out of compliance with the requirements of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., contrary to the Defendants' alleged representations otherwise and Section 6.11(b) of the SPA with Takara.
As a result, Sazerac alleges the following four legal counts in its Complaint: (1) that the Defendants intentionally misrepresented and failed to disclosure the obligations binding the Age Assets; (2) that the Defendants negligently misrepresented certain facts to Sazerac, under a theory that due to the "integrated" nature of the transactions between Sazerac and Takara and between Takara and the Defendants, there was a "functional equivalent of contractual privity" between the Defendants and Sazerac; and (3) that Sazerac is a third party beneficiary to the SPA between the Defendants and Takara and should accordingly be reimbursed for its losses due to the alleged misrepresentations and non-disclosures; and (4) a declaration should be issued by the Court that any liabilities incurred by Sazerac due to the Defendants' *257 failure to disclose certain facts should be honored by the Defendants themselves. Sazerac seeks $200,000 in damages.
The Defendants contend that the action should be dismissed as the Sazerac's claims hinge on the unsupported theory that there is a legal relationship between Sazerac and the Defendants. In the alternative, the Defendants move for joinder of Takara on the theory that it is a necessary party whose party is required for the prosecution of this action.
The motion was filed on May 5, 1994. Oral argument on the motion was heard on June 22, 1994, and it was considered fully submitted at that time.
Discussion
On a Rule 12(b)(6) motion to dismiss, the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in their favor and against the defendants. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir.1985). Accordingly, the factual allegations considered here are taken from the Plaintiffs' Amended Complaint and do not constitute findings of fact by the Court. They are presumed to be true only for the purpose of deciding the present motions.
Rule 12(b)(6) also imposes a substantial burden of proof upon the moving party. A court may not dismiss a complaint unless the movant demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957); accord Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984) (quoted in H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 250, 109 S. Ct. 2893, 2906, 106 L. Ed. 2d 195 (1989)).
In the event that a plaintiff alleges a claim based on a written instrument, as is the case here, the court may consider such an instrument in ruling on a Rule 12(b)(6) motion even if it was not attached to the complaint and made a part thereof under Rule 10(c), Fed.R.Civ.P. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991) ("Cortec") (considering publicly filed disclosure documents), cert. denied, ___ U.S. ___, 112 S. Ct. 1561, 118 L. Ed. 2d 208 (1992); I. Meyer Pincus & Assoc., P.C. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir.1991) ("I. Meyer Pincus") (considering a prospectus).
Additionally, if the allegations of a complaint are contradicted by documents made a part thereof, the document controls and the court need not accept as true the allegations of the complaint. See Feick v. Fleener, 653 F.2d 69, 75 & n. 4 (2d Cir.1981); United States ex rel. Sommer v. Dixon, 524 F. Supp. 83, 85 (N.D.N.Y.1981), aff'd per curiam, 709 F.2d 173 (2d Cir.), cert. denied, 464 U.S. 857, 104 S. Ct. 177, 78 L. Ed. 2d 158 (1983). Following the logic of Cortec and I. Meyer Pincus, this rule also applies to the instruments supplied by the Defendants in support of their Rule 12(b)(6) motion to dismiss.
I. Sazerac Is Not a Third-Party Beneficiary to the SPA
The Restatement (Second) of Contracts provides that a third party is an intended beneficiary to a contract if:
recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
Restatement (Second) of Contracts § 302 (1981). "New York law follows the Restatement (Second) of Contracts § 302 (1979) in allowing a third party to enforce a contract if that third party is an intended beneficiary of the contract."[1]Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 600 (2d Cir.1991) (citing Septembertide Publishing, B.V. v. *258 Stein & Day, Inc., 884 F.2d 675, 679 (2d Cir.1989); Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 44, 495 N.Y.S.2d 1, 485 N.E.2d 208 (1985)); see also Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 573 (2d Cir.1991) (same).
The courts may look at the surrounding circumstances as well as the agreement when determining whether a third-party beneficiary exists, Septembertide Publishing, B.V. v. Stein & Day, Inc., 884 F.2d 675, 679 (2d Cir.1989), as "it is well-settled that the obligation to perform to the third-party beneficiary need not be expressly stated in the contract." Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 573 (2d Cir.1991); see also Cauff, Lippman & Co. v. Apogee Fin. Group, Inc., 807 F. Supp. 1007, 1020 (S.D.N.Y.1992) (stating that "[a]lthough the parties' intention to benefit the third-party must be gleaned from the face of the contract, In re Gulf Oil/Cities Service Tender Offer Litigation, 725 F. Supp. 712, 733 (S.D.N.Y.1989), the defendant's obligation to the third-party beneficiary need not be explicitly stated in the contract itself. Vista Co. v. Columbia Pictures, Inc., 725 F. Supp. 1286, 1296 (S.D.N.Y.1989).").
The New York Court of Appeals has stated that a third-party beneficiary must establish that he or she has a "right to enforce the contract" or "the language of the contract otherwise clearly evidences an intent to permit enforcement by the third party." Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 45, 495 N.Y.S.2d 1, 485 N.E.2d 208 (1985). But see Strauss v. Belle Realty Co., 98 A.D.2d 424, 426-27, 469 N.Y.S.2d 948 (2d Dept.1983) (to enforce promise third party need not be identified in contract but need only show intent of contracting parties to benefit third party).
Moreover, it is not the intention of the promisor which governs whether an intended third-party beneficiary has enforceable rights under a contract. Rather, it is the expressed intent of the promisee which determines whether the beneficiary is entitled to the benefits of the agreement. Drake v. Drake, 89 A.D.2d 207, 209, 455 N.Y.S.2d 420, 422 (4th Dept.1982) (holding "the intention of the promisee is of primary importance, since the promisee procured the promise by furnishing the consideration therefor.") (citation omitted); Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 573 (2d Cir.1991) ("An intended third party beneficiary will be found when it is appropriate to recognize a right to performance in the third party and the circumstances indicate that the promisee intends to give the third party the benefit of the promised performance.") (citations omitted).
In this case, there is no indication that Sazerac was an intended, much less an express, beneficiary of the SPA. Cf. Barnum v. Millbrook Care Ltd. Partnership, 850 F. Supp. 1227, 1233-34 (S.D.N.Y.1994) (holding plaintiff was intended third party beneficiary). An express intent to benefit Sazerac cannot be construed from the terms of the SPA. Rather, the SPA explicitly describes itself as a non-assignable agreement:
SECTION 13.4. Assignment. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by any party to this Agreement without the prior written consent of the other parties.
* * * * * *
SECTION 13.6. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and permitted assigns.
Similar language has been held to bar third party beneficiary claims in similar circumstances. See, e.g., In re Gulf Oil/Cities Serv. Tender Offer Litig., 725 F. Supp. 712, 733 (S.D.N.Y.1989); Grondin v. Rossington, 690 F. Supp. 200, 207 (S.D.N.Y.1988); MacDraw, Inc. v. CIT Group Equipment Financing, Inc., 91 Civ. 5153, 1994 WL 17952 at *12, 1994 U.S. Dist. LEXIS 363 at **38-40 (S.D.N.Y. Jan. 17, 1994).
Even if the express anti-assignment provision of the SPA did not bar Sazerac's third party beneficiary claim, the circumstances surrounding the consummation of the SPA would. In the Complaint, Sazerac asserts *259 that the Defendants were aware that Takara intended to sell the Age Assets to Sazerac in a separate agreement and that this awareness conferred third party beneficiary status onto Sazerac, providing it with actionable rights under the SPA.
The circumstances surrounding the signing of the SPA, as described in the Consent Order, imply that it was originally drafted to forge an agreement between the Defendants and Heublein, and not Takara and, derivatively, Sazerac. It was only by virtue of the Consent Order that Takara was substituted for Heublein as the purchaser under the SPA, circumstances which diminish Sazerac's claim that it was a contemplated third party to the SPA.
Further, as a matter of law, even if the Defendants had intended to benefit Sazerac under the SPA, it is not their intent, as promisors, which matters. Rather, it is the intent of Takara, as the promisee which determines whether third party beneficiary status has been conferred. See Barnum v. Millbrook Care Ltd. Partnership, 850 F. Supp. 1227, 1234 (S.D.N.Y.1994) (citing cases). The pleadings, such that they are, do not support a determination that Takara intended Sazerac to be a third party beneficiary to the SPA.
Finally, Sazerac has also failed to allege any factual circumstances which would support its claim that it was an intended third party beneficiary. The Complaint fails to detail any meetings or cite any language from the SPA or the APA which would support its assertion of third party beneficiary status. Accordingly, in the absence of any facts supporting Sazerac's conclusory allegations, the terms of the SPA and the APA do not confirm an expressed or intended third party beneficiary status upon Sazerac, and this claim is hereby dismissed.
II. Sazerac Has Failed To State A Claim for Negligent Misrepresentation
Under New York law, to be held liable for information negligently furnished requires privity of contract or "a relationship closely approaching it," Williams & Sons Erectors v. South Carolina Steel, 983 F.2d 1176, 1181 (2d Cir.1993) (citing Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922) (Cardozo, J.)), in what is often described as a bond that is so close as to be the "functional equivalent of contractual privity." Id. at 1182 (citing New York cases). In addition, New York law affixes liability when: (1) there is an awareness that the [representations] were to be used for a particular purpose; (2) a known party relied on the representation in order to further that purpose; and (3) the defendants engaged in some conduct which indicates that they understood the party had relied on the representation. Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 551, 493 N.Y.S.2d 435, 483 N.E.2d 110 (1985) ("Credit Alliance"); Ossining Union Free Sch. Dist. v. Anderson LaRocca Anderson, 73 N.Y.2d 417, 425, 541 N.Y.S.2d 335, 539 N.E.2d 91 (1989).
Even when viewing the allegations in the Complaint in a light most favorable to the Plaintiffs that "the transactions between Sazerac and Takara and between Takara and the Defendants," were somehow "integrated" in "nature" cannot save Sazerac's claim of negligent misrepresentations. The Complaint does not provide any factual basis that the relationship, such that it was, between the Defendants and Sazerac constituted one of buyer and seller, much less the "functional equivalent of privity." From the Consent Order, it is clear that the Defendants entered into an arms length transaction with Heublein. The later substitution of Takara for Heublein, pursuant to the Consent Order cannot act to catapult Sazerac over Takara into a surrogate contractual relationship with the Defendants.
Allegations that the Defendants "knew or should have known" that they had negligently made misrepresentations to Takara cannot now be extended to Sazerac. Sazerac was not a "known party" within the meaning of Credit Alliance at the time the SPA was negotiated with Heublein. Cf. In re Time Warner Inc. Sec. Litig., 794 F. Supp. 1252, 1262 (S.D.N.Y.1992) (discussing Credit Alliance; stating non-privity cases may extended only where the "dealings [are] among a small number of parties known to the *260 defendants, and whose reliance on defendant's representations was immediate and obvious."), rev'd on other grounds, 9 F.3d 259 (2d Cir.1993) (upholding district court's dismissal of New York common law claims of negligent misrepresentation).
A claim of negligent misrepresentation against the Defendants cannot be simply transferred to Sazerac via Takara's procurement of the Consent Order substituting itself for Heublein under the terms of the SPA. Once again Sazerac fails to identify any meetings, conversations, or correspondence from the Defendants directly to Sazerac or, for that matter, Takara which would support its allegations of negligent misrepresentations. Further, the language of the SPA is devoid of any acknowledgement of the existence of Sazerac or the APA.
Accordingly, in the absence of any factual allegations in support of this Count, Sazerac's claim of negligent misrepresentation must be dismissed.
III. Sazerac Has Failed to State a Claim for Fraudulent Misrepresentation
There are five elements necessary to sustain a claim in fraud under New York law: (1) misrepresentation of a material fact; (2) the falsity of that misrepresentation; (3) scienter, or intent to defraud; (4) reasonable reliance on that representation; and (5) damage caused by such reliance. May Department Stores Co. v. International Leasing Corp., 1 F.3d 138, 141 (2d Cir.1993); Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970-71 (2d Cir.1987); Jo Ann Homes at Bellmore, Inc. v. Dworetz, 25 N.Y.2d 112, 119, 302 N.Y.S.2d 799, 250 N.E.2d 214 (1969).
A fraud claim based upon an alleged misrepresentation communicated to a third party can only withstand dismissal if the maker of the alleged misrepresentation intended or should have expected that the alleged fraudulent misrepresentation would be repeated. See Peerless Mills, Inc. v. American Tel. & Telegraph Co., 527 F.2d 445, 450-51 (2d Cir.1975) (affirming dismissal where plaintiff failed to show misrepresentation was intended to be conveyed to the plaintiff); Chase Manhattan Bank, N.A. v. Fidata Corp., 700 F. Supp. 1252, 1261 (S.D.N.Y.1988) (dismissing claim where no allegation was communicated to the plaintiff or that the defendant expected it to be).
Rule 9(b) of the Federal Rules of Civil Procedure provides that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b). "[A]llegations[] which fail to specify the time, place, speaker, and sometimes even the contents of the alleged misrepresentations," lack the "particulars" required by Rule 9(b). Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir. 1986). Here, Sazerac fails to proffer any factual basis for its allegations that the Defendants made a misrepresentation to Takara, much less that they either intended or should have expected the alleged misrepresentation would be repeated to Sazerac. Indeed, Sazerac merely makes conclusory allegations that the Defendants misrepresented certain contractual provisions in their negotiations with Takara.[2] However, the Complaint fails to articulate either when or to whom such representations were made, nor does it identify meetings or negotiations tying the Defendants to the alleged misrepresentations to Sazerac or Takara.
In this case, Sazerac has not alleged any factual basis in support of its allegations that it reasonably relied on the Defendants' alleged misrepresentations to Takara. In order to state a claim in fraud, Sazerac "must not only reasonably believe that the representation is true, but he must also be justified in taking action in reliance thereon." Lanzi v. Brooks, 54 A.D.2d 1057, 388 N.Y.S.2d 946, 948 (3d Dept.1976), aff'd, 43 N.Y.2d 778, 402 N.Y.S.2d 384, 373 N.E.2d 278 (1977). Sazerac has failed to proffer a credible explanation as to how it could have reasonably relied upon alleged representations that were theoretically made to Takara at an unidentified time, place and manner.
*261 As there is no reasonable basis for Sazerac's claim of fraudulent misrepresentation discernable from the face of its Complaint, it is hereby dismissed.
Conclusion
For the reasons set forth above, the Defendants' motion to dismiss this action is granted.
It is so ordered.
NOTES
[1] Section 13.8 of the SPA states that the SPA shall be "governed by and construed in accordance with the laws of the State of New York." (SPA § 13.8 at 43.)
[2] Since the Defendants appear only to have negotiated with Takara around the right of first refusal, the alleged intentional misrepresentations, if made, must have been to Heublein, who has an even more attenuated connection with the Plaintiff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261459/ | 428 A.2d 1182 (1981)
INTERNATIONAL PAPER COMPANY
v.
Raymond L. HALPERIN, State Tax Assessor.
Supreme Judicial Court of Maine.
Argued January 7, 1981.
Decided April 28, 1981.
Pierce, Atwood, Scribner, Allen, Smith & Lancaster, James G. Good (orally), Portland, for plaintiff.
Jerome S. Matus (orally), Asst. Atty. Gen., Augusta, for defendant.
Before WERNICK, GODFREY, NICHOLS, GLASSMAN, ROBERTS and CARTER, JJ.
GLASSMAN, Justice.
In 1975 and 1976, International Paper Company, the plaintiff, was engaged in a $150,000,000 expansion of its pulp and paper mill in Jay, Maine. In connection with this expansion, the company bought numerous new machines and pieces of equipment. Among its purchases were four steel emission stack and breeching systems designed and manufactured to operate in conjunction with a waste fuel boiler, two recovery boilers, two power boilers and a recovery boiler dissolving tank.
All of the boilers and the dissolving tank were exempt from sales and use tax under the so-called "new machinery and equipment exemption," 36 M.R.S.A. § 1760(31), which applies to
[s]ales of new machinery and equipment for use by the purchaser directly and primarily in the production of tangible personal property, which property is intended to be sold or leased ultimately for final use or consumption by manufacturing, processing, assembling, or fabricating. 36 M.R.S.A. § 1760(31) (Supp.1976-77)[1] (emphasis added).
Believing that the new machinery and equipment exemption was not limited merely to the boilers, International Paper did not pay or report a tax on the four emission stack and breeching systems.
By notice dated July 6, 1977, the State Tax Assessor and defendant herein, Raymond L. Halperin, imposed a deficiency assessment of $62,556 on the stack and breeching systems. International Paper timely petitioned for reconsideration. On *1183 the ground that the stacks and breeching were real property rather than tangible personal property and, therefore, not eligible for exemption, the Tax Assessor decided to affirm the deficiency assessment. International Paper thereupon appealed his decision to the Superior Court, Kennebec County. Subsequently, on August 25, 1980, International Paper's appeal was reported to this Court pursuant to M.R.Civ.P. 72(b).
As the parties have framed the issues, two questions must be answered in order to determine whether the stack and breeching systems at issue are entitled to a new machinery and equipment exemption under 36 M.R.S.A. § 1760(31): (1) Did these systems become real property upon assembly at the mill and, if so, are they thereby disqualified for a Section 1760(31) exemption? (2) Are the stacks and breeching used "directly and primarily" for the production of paper? We reverse the State Tax Assessor's decision.
I.
In his brief, the State Tax Assessors does not press the position that the emission stacks are real property. He has stipulated, in fact, that the stacks "are not incorporated in or part of any building." He has also stipulated that the stacks were specifically designed to meet the needs of the different boilers and were delivered in prefabricated, fully engineered sections for assembly; that the life expectancy of the stacks and breeching is comparable to that of the boilers, whereas the life expectancy of the buildings is substantially longer; that the stacks and breeching operate in conjunction with the boilers 100% of the time and this function is exclusive of any other use; that the stacks are freestanding and removable, each being bolted into concrete pads by several dozen anchor bolts; that comparable stacks have been moved by other paper companies and, if the boilers themselves were relocated, the stack and breeching systems probably would be relocated with them; and that disassembling and moving the stacks would not damage the buildings and would be far simpler than moving a paper machine, a lime kiln, a continuous digester or the boilers themselves, all of which qualify for exemption under Section 1760(31). In view of these stipulated facts, we conclude that the four stack and breeching systems did not become real property upon assembly at the mill but rather remained "tangible personal property" within the meaning of the new machinery and equipment exemption. 36 M.R.S.A. §§ 1760(31), 1811, 1861.[2]
II.
"Directly" is defined in 36 M.R.S.A. § 1752(2-A) as follows:
"Directly," when used in relation to production of tangible personal property, refers to those activities or operations which constitute an integral and essential part of production, as contrasted with and distinguished from those activities or operations which are simply incidental, convenient, or remote to production. Id. (as enacted by P.L.1977, ch. 477).[3]
Relying upon that definition, the State Tax Assessor argues in his brief that the stacks and breeching are merely "smokestacks," that they serve only to release gases after the manufacturing process has occurred and that on this basis they must be distinguished from the boilers and other tax-exempt equipment that contribute "directly" to the manufacturing process.
The Tax Assessor's argument is unconvincing. The conversion by chemicals and steam of wood to pulp and pulp to paper begins rather than ends with the activity of the boilers. The waste fuel and power boilers generate steam used to "cook" and bleach pulp, dry paper and run other machines. *1184 The recovery boilers perform the same function and, in addition, reclaim and process from a liquid wood residual fuel certain chemicals used in making pulp. Once "recovered," these chemicals are passed to dissolving tanks to be mixed with water. The fourth stack here at issue, that which is connected with a recovery boiler dissolving tank, removes vapors arising out of this chemical and water mix. The other three stacks, those connected with the boilers proper, not only remove harmful vapors and gases but also provide draft integral to maintenance of the temperature, pressure and output of the steam used in the manufacturing process.
After this action was initiated, the State Tax Assessor informed International Paper that the recovery boiler dissolving tank stack would, after all, qualify for a new machinery and equipment exemption. In effect, he thus concluded that the dissolving tank stack was used "directly" in the production of paper. 36 M.R.S.A. § 1760(31). The Tax Assessor's change of mind with respect to the fourth stack was warranted. See Niagara Mohawk Power Corp. v. Wanamaker, 286 A.D. 446, 144 N.Y.S.2d 458 (1955); Ohio Edison Co. v. Porterfield, 28 Ohio St. 2d 150, 277 N.E.2d 195 (1971); Commonwealth v. Yorktowne Paper Mills, Inc., 426 Pa. 18, 231 A.2d 287 (1967). We see no rational justification, however, for exempting the dissolving tank stack, which vents waste gases, and refusing to exempt the three boiler stacks, which in addition to removing waste gases also provide an indispensable prerequisite to adequate steam generationdraft.[4]
The parties have stipulated that the boiler stacks and breeching are as essential as the boilers themselves to the production of paper. On this record, we are fully satisfied that all four stack and breeching systems are entitled to tax exemption under 36 M.R.S.A. § 1760(31).
The entry is:
Remanded to the Superior Court with directions to enter judgment for plaintiff ordering the defendant to set aside the deficiency assessment against the plaintiff.
All concurring.
NOTES
[1] By P.L. 1977, ch. 477, sec. 11, the Legislature deleted the last six words of this provision. At the same time, it added a definition of "production." Id., sec. 8. These changes do not affect the issues presented.
[2] The Internal Revenue Service has reached a similar conclusion with respect to the duct work and stack of the gas-fume system in a 200- to 300-ton basic oxygen furnace, finding that these are tangible personal property rather than building components for purposes of the federal investment tax credit under I.R.C. § 38 (1954). See Rev.Rule 79-181, 1979-1 C.B. 41-2.
[3] Although subdivision 2-A was added subsequent to the purchases at issue, we deem it declaratory of existing law.
[4] We similarly do not understand why, at the time of exempting the dissolving tank stack, the Assessor also exempted only portions of the breeching located between the boilers and other equipment such as air heaters, fans and dust collectors. The Assessor has asserted in this appeal that it is the use to which a particular item is put that determines that item's tax status. Yet he has admitted that the portions of the breeching not located between the boilers and the other equipment, but instead between the other equipment and the stacks, are functionally as well as physically identical with the portions to which he grants an exemption. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261460/ | 110 Cal. Rptr. 2d 177 (2001)
91 Cal. App. 4th 201
Carmen MORENO, Plaintiff and Respondent,
v.
GREENWOOD AUTO CENTER, Defendant and Appellant.
No. B138608.
Court of Appeal, Second District, Division Five.
August 1, 2001.
*178 Manning, Leaver, Bruder & Berberich and Christian J. Scali, for Defendant and Appellant.
Law Office of Lynn E. Moyer, Lynn E. Moyer; Law Office of Kent M. Bridwell, and Kent M. Bridwell, Los Angeles, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
TURNER, P.J.
I. INTRODUCTION
Defendant, Greenwood Auto Center, appeals from portions of a judgment awarding damages and attorney fees to plaintiff, Carmen Moreno, in an action brought for fraud, conversion, and violation of the Vehicle Leasing Act (the act). (Civ.Code, § 2985.7 et seq.)[1] In the published portion of the opinion, we discuss whether prejudgment interest may be recovered in a conversion action where defendant was assessed damages for plaintiffs loss of use of her 1996 pickup truck and other financial losses. No damages were imposed for the value of the 1996 pickup truck at the time of the conversion. Given the express language in section 3287, subdivision (a), we conclude prejudgment interest can be recovered on the loss of use and other damages suffered by plaintiff.
II. BACKGROUND
The complaint was originally filed in former municipal court on June 5, 1997. Plaintiff filed an amended complaint on July 30, 1997. On April 28, 1999, on plaintiffs motion, the matter was transferred to the superior court for trial. In the first amended complaint, plaintiff sought: damages and attorney fees for alleged violation of the act (first cause of action); rescission of contract (second cause of action); and damages for fraud and deceit in connection with the conversion of her 1996 truck (third cause of action). The first amended complaint alleged that plaintiff spoke only Spanish and did not read, write, speak, or understand English. On April 4, 1997, plaintiff went to defendant's car dealership for the purpose of getting her 1996 truck serviced. While waiting in the service center, an "unknown agent" of defendant solicited plaintiff to trade in her 1996 *179 truck for a new 1997 truck. Defendant's "unknown agent" told her that she would have payments that were similar to what she was already paying for the 1996 truck. She was paying approximately $350 a month for her 1996 truck.
Plaintiff was then turned over to a Spanish-speaking "salesman" who showed her a 1997 truck. The salesman told her that the accessories she had on her 1996 truck, including a $1,500 camper shell and $2,500 custom wheels would be installed on the new 1997 truck. He also told her that with the new truck she would have similar payments and a great tax advantage by signing a "lease." The word "lease" was used in English. However, the Spanish translation of the word "lease," "arrendamiento," was not used. On April 4, 1997, plaintiff entered into a written lease agreement under which defendant leased to her a 1997 GMC 1500 pickup truck for a term of 60 months. Plaintiff, however, believed when the lease was presented to her that she was signing a sales contract. Plaintiff was not informed and did not understand that she would be paying for five years and then would have a residual payment of more than $12,000 due at the end of 60 months. Plaintiff also believed that the $12,000 figure was the amount that was being allowed as credit for the trade-in of her 1996 truck. It was alleged defendant also failed to disclose, among other things, the amount or method for determining her liability at the end of the lease term. It was further alleged that the truck was leased primarily for personal purposes, which made the transaction subject to the act. Defendant's actions violated the act which entitled plaintiff to statutory damages, rescission of contract, attorney fees, and costs.
In the second cause of action for rescission, restitution and attorney fees, plaintiff alleged that she had been damaged by transferring title and possession of the 1996 truck to defendant. The 1996 truck was valued at approximately $17,000 as a down payment on the lease agreement. The April 4, 1997, agreement was never "executed" due to defendant's inability to obtain financing for the lease. Defendant falsely represented that its inability to obtain the financing was due to plaintiffs misrepresentations regarding her employment. Plaintiff owned her own business. Defendant has refused numerous requests by plaintiff to return the trade-in 1996 truck to plaintiff or to make restitution of approximately $17,000 to plaintiff.
In the third cause of action, plaintiff alleged that defendant intentionally or negligently misrepresented that she "could trade in her 1996 truck on a 1997 truck" with no money down and with approximately the same size monthly payment for a new 60-month period. Defendant also represented that it would remove the custom features on the 1996 truck and put them on the 1997 GMC pick-up. Defendant's representations were false in that it induced plaintiff to sign a lease agreement with a residual buyout of $12,000, without revealing this fact to plaintiff. Defendant then attempted to induce plaintiff to sign a purchase agreement with higher payments. The custom accessories on plaintiffs 1996 truck were not returned to her. Further, plaintiffs 1996 truck was not returned to her. At the time that plaintiff left her 1996 truck for a trade-in, she only owed a total payoff of $12,000. The new lease agreement obligated her for 60 payments of $492.72 per month plus a $12,213 residual payment, for a total of approximately $42,000. The terms of the agreement were not explained to her in Spanish. Plaintiff further alleged that she had been damaged by defendant's false representations as follows: she had been deprived "of the use of any vehicle since April 4, 1997"; she had incurred a legal obligation of almost *180 $42,000; she was being billed by the California Department of Motor Vehicles for failure to "renew tags"; and she had incurred legal expenses. Among other things, plaintiff sought prejudgment interest.
Defendant filed a general denial and asserted as affirmative defenses plaintiffs breach of the contract and failure to state a cause of action. The matter proceeded to judicial arbitration which resulted in an award in favor of plaintiff. Defendant's de novo trial request was granted.
A jury trial began on September 7, 1999.[2] The trial was bifurcated on the issues of liability and punitive damages. Defendant stipulated that it violated the act by failing to give plaintiff a copy of the lease agreement in Spanish and to execute the contract. Defendant also stipulated that plaintiff was entitled to rescind the contract.
At the trial, plaintiff testified that she was born in Mexico and Spanish was her primary language. Although she lived in the United States for about 21 years, she has not learned to speak English with any fluency and knew only a few words. She owned a business that manufactured mattresses. On April 7, 1996, she purchased a 1996 pickup truck from defendant. The 1996 purchase was made pursuant to a contract that was negotiated in Spanish. Defendant also provided her with a copy of the sales contract, which was in Spanish. She put $15,000 down on the truck and her payments were $334.39 per month. By April 4, 1997, plaintiff had made 11 payments, all of which were timely. As of April 4, 1997, the truck had been driven 24,220 miles. Plaintiff accumulated much of the mileage by driving to work and on trips to Mexico and Texas. Plaintiff did not otherwise use the 1996 truck in her business affairs.
On April 4, 1997, plaintiff went to defendant's service area for an oil change on her 1996 truck. A salesperson, Gaspar Sanchez, who spoke Spanish, approached plaintiff and persuaded her to trade in her 1996 pickup for a new 1997 truck. The lease was negotiated by Al Zaragoza. According to Bruce Frederick, a vice-president of defendant, Mr. Zaragoza was employed as a Manager of Finance. Mr. Zaragoza spoke only in Spanish to plaintiff. Mr. Zaragoza gave plaintiff papers to sign which were in English. One of the documents was purportedly a lease. Plaintiff thought the effect of the document was to allow her to purchase the 1997 pickup. Mr. Zaragoza did not tell her she was signing a lease. He told her she was signing a personal contract and "buying a truck." He told her the payments for the 1997 truck would be about the same as they were for the 1996 pickup.
As part of the transaction, plaintiff traded in her 1996 pickup. In 1996, she had agreed to pay $1,200 for a service contract on the 1996 truck. The service contract was still in effect on April 4, 1997. She had purchased over $4,000 in accessories for the 1996 truck. She was assured that the service contract and accessories would be transferred and added to her new 1997 pickup. The accessories were to be available "in about two or three days. . . ." After signing what she believed was a purchase agreement, plaintiff drove away in the new 1997 truck. About three days later, she called Mr. Zaragoza a number of times about picking up the accessories. In one telephone call, Mr. Zaragoza asked her *181 to sign a "new contract." Umbaldo Polo, who was defendant's general manager, telephoned plaintiff and asked her to sign a new contract. Plaintiff refused to do so but made an appointment to see Mr. Zaragoza. Sometime around April 30, plaintiff met Mr. Zaragoza at defendant's dealership. During this meeting, Mr. Zaragoza told plaintiff that she had signed a lease for the 1997 truck. Mr. Zaragoza stated plaintiff would have to pay a residual of $12,213 at the end of the lease term. Plaintiff refused to sign the document proffered by Mr. Zaragoza and asked that her 1996 truck be returned. Mr. Zaragoza said, if plaintiff did not sign the new agreement, they would take both the 1996 and the 1997 trucks. Mr. Zaragoza stated, "`[I]f you don't sign a new contract, we are going to take both trucks away.'"
Someone telephoned plaintiffs place of business. Plaintiffs sister-in-law, Graciela Castone answered the telephone. The person did not identify himself but asked if plaintiff worked there. Ms. Castone stated that plaintiff did not work there. This was because plaintiff owned the business and did not merely "work" there.
Sometime after that, Mr. Polo telephoned plaintiff. Mr. Polo accused plaintiff of being a "liar." He apparently believed that Ms. Castone, who had initially answered the telephone, was plaintiff. Mr. Polo said: "I taped you. I just called and you were there." Plaintiff responded: "I was not here. I am here now, and I am answering you." Plaintiff told Mr. Polo that she owned the mattress factory and worked there also. She never told any employee of defendant's that she did not work at or own the mattress factory.
Plaintiff put the new truck in her garage so that it would not accumulate any more mileage. On or about May 2, 1997, although plaintiff had not failed to make any payments under the terms of the April 4, 1997, contract, defendant repossessed the 1997 truck. The truck was repossessed at 5 a.m. Plaintiff pulled the truck out of her garage and gave the keys to a man who told her that defendant would return her 1996 pickup. However, when plaintiff, accompanied by a daughter, went to defendant's dealership later that day, the 1996 truck was not returned. Mr. Zaragoza told plaintiff that he had orders from the owner not to return either pickup to her. At that time, plaintiff owed no money to defendant.
Bruce Frederick, defendant's vice-president and the chief financial officer, testified he gave the final ratification of the "lease" before it was sent to the finance institutions. A salesperson or finance officer did not need Mr. Frederick's approval to sign a lease binding defendant. A salesperson or finance officer had the authority to negotiate the terms of the lease with the customer. In April 1997, Mr. Zaragoza was a finance manager. Mr. Zaragoza dealt with Spanish-speaking customers. Mr. Frederick knew that the law required that contracts be provided in Spanish for such customers. Mr. Frederick also knew the definition of contract included a lease. The document signed by plaintiff on April 4, 1997, was a conditional sales purchase, not a lease. Defendant used the conditional sales purchase document to "lease" the 1997 truck.
Plaintiff hired an attorney who wrote a letter of rescission to defendant. The rescission letter stated that plaintiff had not negotiated a lease but the purchase of a 1997 truck. Mr. Frederick testified that he received the letter and gave it to Mr. Polo and defendant's attorney. Defendant did not return plaintiffs 1996 pickup or otherwise compensate her. Defendant never returned the accessories on the 1996 truck to her. Mr. Frederick admitted that at the time plaintiff demanded the return *182 of the 1996 pickup, defendant had the ability to do so. Defendant had paid off plaintiffs loan from Union Bank on the 1996 truck on May 19, 1997, which was two weeks after defendant received plaintiffs notice of rescission.
On June 15, 1997, defendant sold the 1996 pickup to a third party for $22,652.50. However, defendant subsequently received a notice from the DMV that registration fees were due. This was because plaintiff had, on Mr. Zaragoza's advice, stopped payment on a check to pay the registration on the 1996 pickup. Plaintiff had mailed the check prior to going to defendant's dealership to have her 1996 truck serviced on April 4, 1997. The registration fees were for April 30, 1997, through April 30, 1998. In October 1997, after the DMV notified defendant that the registration fees were due, Mr. Frederick authorized the filing of a small claims action against plaintiff to collect the past due fees and penalties. Plaintiff paid the judgment that was entered against her in the small claims action. In other words, plaintiff had to pay defendant the registration fee for a time period during which she never had possession of the 1996 truck.
By special verdict, the jury found that defendant was liable to plaintiff for $4,567.87 for conversion of accessories on the 1996 truck. The jury also found defendant liable to plaintiff for $18,854 for loss of use of the 1996 truck and accessories. The jury was also instructed that the value of the 1996 converted truck was $8,585.68. But as will be noted, the jury never assessed damages based on the value of the 1996 pickup at the time of the conversion. In the punitive damage portion of the trial, the jury found plaintiff was entitled to $62,143.70.
Plaintiff sought costs in the amount of $44,266.74, including $38,962 in attorney fees. Defendant filed a motion to tax costs in which it objected to $19,443.50 in attorney fees for the trial. Defendant claimed the fees were not recoverable for the claims pursued at trial because plaintiff elected to sue for and recover tort damages rather than proceeding under the act. The trial court denied the motion to tax costs regarding the attorney fees.
On December 7, 1999, defendant filed a new trial motion on various grounds including that the award for loss of use and related conversion damages was excessive. Plaintiff opposed the new trial motion. On December 22, 1999, the trial court granted the new trial motion solely on the issue of loss of use damages for conversion unless plaintiff accepted a remittitur in the amount of $12,600.
On January 13, 2000, the trial court entered judgment in favor of plaintiff. On January 18, 2000, defendant filed a notice of appeal. On January 26, 2000, defendant filed a motion to amend the judgment to reflect the trial court's rulings on the remittitur and prejudgment interest issues. On February 15, 2000, the trial court issued an amended judgment which reflected the remittitur for loss of use and other damages of $12,600 and that plaintiff had been awarded her attorney fees plus prejudgment interest.
III. DISCUSSION[**]
E. Prejudgment Interest
Defendant contends plaintiff may not receive prejudgment interest on her loss of use claim. Citing Lint v. Chisholm (1981) 121 Cal. App. 3d 615, 624-625, 177 Cal. Rptr. 314, defendant argues: "[I]t is clear from the jury verdict, awarding loss of use damages on plaintiffs conversion *183 claim, that plaintiff has already been compensated for prejudgment interest, and, and in accepting that award, has elected the tort remedy. `In the absence of special circumstances the appropriate measure of damages for conversion of personal property is the fair market value of that property plus interest from the date of conversion, the standard first listed in [section 3336]. However, where proof establishes an injury beyond that which would be adequately compensated by the value of the property and interest, the court may award such amounts as will indemnify for all proximate reasonable loss caused by the wrongful act. [Citation.] Where damages for loss of use exceed the legal rate of interest, it is appropriate to award the former, but not both.'"
Defendant's argument as applied to this case is without merit. The measure of damages for conversion is set forth in section 3336 which states in its entirety: "The detriment caused by the wrongful conversion of personal property is presumed to be: [¶] FirstThe value of the property at the time of the conversion, with the interest from that time, or, an amount sufficient to indemnify the party injured for the loss which is the natural, reasonable and proximate result of the wrongful act complained of and which a proper degree of prudence on his part would not have averted; and [¶] SecondA fair compensation for the time and money properly expended in pursuit of the property." The damage measures set forth in the first paragraph of section 3336 are in the alternative. The first alternative is to compensate for the value of the property at the time of conversion with interest from the time of the taking. The second alternative is compensation in a sum equal to the amount of loss legally caused by the conversion and which could have been avoided with a proper degree of prudence. (Krueger v. Bank of America (1983) 145 Cal. App. 3d 204, 215, 193 Cal. Rptr. 322; Myers v. Stephens (1965) 233 Cal. App. 2d 104, 116, 43 Cal. Rptr. 420.) Both of these alternatives are in addition to the damage element for the time spent pursuing the converted property set forth in the second paragraph of section 3336.
The jury was instructed on both alternative damage theories. The jury was instructed in the language of section 3336 as follows: "The detriment caused by the wrongful conversion of personal property is presumed to be: [¶] FirstThe value of the property at the time of the conversion, with the interest from that time, or, an amount sufficient to indemnify the party injured for loss which is the natural, reasonable and proximate result of the wrongful act complained of and which a proper degree of prudence on his part would not have averted; and [¶] Second A fair compensation for the time and money properly expended in pursuit of the property." Despite the fact that both alternatives were submitted to the jury, the only special verdict on the damage issue asked this question, "What amount of damages did plaintiff suffer, if any, for the loss of use of her 1996 [pickup] truck and accessories?" In other words, the sole issue presented to the jury related to the "loss of use" of the 1996 pickup truck. The jury was never asked to determine the value of the 1996 pickup at the time of the conversion. The jury awarded plaintiff $18,854 for loss of use of her pickup truck. As noted previously, in response to the new trial motion, the court reduced the amount of loss of use damages. The trial court stated: "A motion for new trial on loss of use only is granted unless the plaintiff accepts a remittitur of $12,600. That is loss of use plus the small claims judgment of $4,254 allowed by the court." The conversion damages were not for the value of the 1996 *184 pickup truck; the first alternative in section 3336. Rather, the damages were for loss of use and the $4,254 small claims judgment which falls under the second alternative in the first paragraph of section 3336.
The issue then is whether prejudgment interest may be recovered for loss of use and other damages in a conversion action. We conclude prejudgment interest may be recovered under these circumstances. The pertinent language is in section 3287, subdivision (a), which states, "Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him on a particular day, is entitled also to recover interest thereon from that day." Defendant raises no questions as to whether the damages were capable of being made certain by calculation and the right to recover vested on a particular day. Defendant does not dispute that these elements of section 3287, subdivision (a) were satisfied. Rather, defendant's sole contention is that conversion damages for loss of use and the small claims judgment under the second alternative in the first paragraph of section 3336 are never subject to prejudgment interest. In this case, where the only basis for the damage award was the second alternative in the first paragraph of section 3336, the express language of section 3287, subdivision (a) can allow for the awarding of prejudgment interest.
We recognize the decision relied upon by defendant, Lint v. Chisholm, supra, 121 Cal.App.3d at page 625, 177 Cal. Rptr. 314, holds: "Where damages for loss of use exceed the legal rate of interest, it is appropriate to award the former, but not both. [Citation.]" However, the express language of section 3287, subdivision (a) permits the recovery of prejudgment interest under specified circumstances. Defendant does not quarrel with the trial court's implied finding that those specified circumstances in section 3287, subdivision (a) are present in this case. There is no evidence of an inequitable double recovery in this case or other injustice. This is not a case where a plaintiff has received an award of interest under the initial alternative in the first paragraph of section 3336. Such a scenario could posit issues of an inappropriate double recovery. Rather, in this case, plaintiff was compensated for damages under the second alternative in the first paragraph of section 3336 which does not include an element of interest. Hence, given the express language of section 3287, subdivision (a), we respectfully disagree with Lint and affirm the award of prejudgment interest in this case.
IV. DISPOSITION
The judgment is affirmed. Plaintiff, Carmen Moreno, is entitled to costs on appeal including attorney fees from defendant, Greenwood Auto Center.
We concur: ARMSTRONG, J., WILLHITE, J.[***]
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, parts 1, II, the heading for part III, the indicated portions of part III(E), and IV are certified for publication.
[1] All further statutory references are to the Civil Code unless otherwise indicated.
[2] Prior to the trial, the court granted plaintiff leave to amend the complaint to add causes of action for negligent and intentional infliction of emotional distress. However, at the conclusion of the trial, the court granted a directed verdict on both the emotional distress claims.
[**] See footnote *, ante.
[***] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261472/ | 285 Pa. Super. 551 (1981)
428 A.2d 183
COMMONWEALTH of Pennsylvania, Appellant,
v.
Ronald SEIP.
COMMONWEALTH of Pennsylvania, Appellant,
v.
Joseph Alfred DENAULT.
Superior Court of Pennsylvania.
Argued December 2, 1980.
Filed April 3, 1981.
Petition for Allowance of Appeal Denied August 6, 1981.
*553 Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellant.
Edward Kane, Norristown, for appellees.
Before PRICE, WATKINS and MONTGOMERY, JJ.
WATKINS, Judge:
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Montgomery County which suppressed certain evidence seized by police from defendant Seip's truck. Without this evidence the Commonwealth is unable to proceed with its cases against the defendants.
*554 The defendants had been charged with Burglary, Theft, Criminal Conspiracy, and Receiving Stolen Property. These charges arose out of an incident occurring on June 16, 1979 at which time Patrolman Ritrovato stopped the defendant Seip's vehicle at the Valley Forge Turnpike exit in Upper Merion Township, Pennsylvania, and discovered therein red-colored machinery recently stolen from the Royal Contracting Company. The court below suppressed this evidence holding that the officer did not have probable cause to stop defendant Seip's vehicle.
On June 16, 1979 at 6:47 P.M. the police dispatcher at the Upper Merion Township Police Department received a call from a Larry Perkins, proprietor of the Perkins Garage in the township. His call concerned the presence of a pick-up truck containing a white male and two children in the cab thereof on his property. The truck had been there for an hour. After receiving this information from the dispatcher Officer Ritrovato went to the scene. Upon arriving he observed the defendant Seip in the pick-up truck which had a glass and metal cabin over its loading bed. The cabin contained windows through which one could readily observe the contents thereof. The officer approached Seip who informed him that he was waiting for a Wilson Freight Company driver who was scheduled to show Seip an antique car and that he was accompanied only by the two children. No other person than Seip and the children were observed either in the cab or cabin of the vehicle. The officer also observed that the cabin of the vehicle was essentially empty. After checking Seip's vehicle registration and owner's cards (which were in order), the officer left the scene.
At 8:25 P.M. the dispatcher received a call from a John Schmitz, who keeps a dump truck parked across from Perkin's garage. Schmitz informed the dispatcher that he had seen the pick-up truck travelling down a driveway which leads from the Royal Contracting Company. Seip was driving but another white male inside the cabin was seen attempting to close the door to the cabin. He also saw red colored pieces of machinery inside the cabin of the truck. *555 This information was relayed to Patrolman Ritrovato who was familiar with the fact that Royal Contracting Company maintains various machinery.
At the turnpike booth Ritrovato, assisted by two other officers, observed the truck stopped at the tollgate. Seip was behind the wheel of the truck accompanied by two children who were in the cab of the truck. While walking around the vehicle, Ritrovato observed machinery in the cabin of the truck on the loading bed. The cabin of the truck was mostly glass and had a glass door on the back and the contents of the loading bed were plainly visible to him. He then raised the cabin window and saw that the machinery consisted of a paint sprayer, an electric welder, a winch, and a portable pump. He also saw a quilted blanket which was rising and falling as if someone were underneath the blanket breathing. The officer then ordered the person underneath the blanket to come out from under it whereupon the defendant DeNault exited the cabin of the truck and informed Ritrovato that he was a former employee of Royal Contracting Company and had permission to use the equipment which was in the truck. The defendants were then taken to the police station. The owner of Royal Contracting Company was contacted to check out DeNault's story after which both defendants were charged with the abovementioned offenses.
The sole issue is whether the officer had probable cause to make the investigating stop at the tollgate booth.
Because of its mobility an automobile may be searched without the aid of a search warrant, if there is probable cause to believe that the automobile contains articles subject to seizure. Commonwealth v. Ramsey, 259 Pa.Super. 240, 393 A.2d 806 (1978). In order to justify a warrantless search of a vehicle, the police officer must have independent probable cause to believe that a felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle or that there are *556 weapons which are accessible to the occupants. Commonwealth v. Lewis, 442 Pa. 98, 275 A.2d 51 (1971). However, where the police have a lawful right to be in the position they are when they made an observation, they can lawfully seize objects which are in plain view. Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978).
In the instant case the police officer had a right to be in the position that he was when he observed the machinery in Seip's vehicle. At that time he was standing on a public highway where Seip's truck had stopped. The testimony revealed that the cabin of Seip's vehicle was in large part composed of glass, through which passersby easily could peer. Thus, Ritrovato's observations of the machinery in the truck was the observation by an officer of an object in "plain view". The question is whether sufficient probable cause existed to permit him to open the door of the vehicle thereby revealing DeNault under the blanket.
Police may rely upon information which is broadcast over the police radio in order to justify an initial stop of an automobile suspected of having been involved in criminal activity. Commonwealth v. Benson, 239 Pa.Super. 100, 361 A.2d 695 (1976). The question, therefore, is whether all of the facts known to the officer at the time he talked to Seip at the tollgate entrance were sufficient to constitute probable cause to open the window of the cabin and detain the defendants for questioning. The court below ruled that they were not. In its opinion the court indicated that the officer acted upon "suspicion or `police instinct'" but had "no basis in fact to believe that any burglary or any crime had been committed." The court below held that this was so because the officer had not seen Seip or DeNault enter or leave Royal nor did he have any information to the effect that they had entered or left the victim's plant. What the officer did know was that Seip had been parked on a private lot with his truck near Royal Contracting. He knew that Seip was accompanied by two children and had been informed by Seip that no one else was with him. He also had observed that the glass-enclosed load bed of Seip's truck was *557 empty at 6:47 P.M. on June 16, 1979 and had been informed by Seip that he was at the location because he was waiting to be shown an antique car. The officer also knew that Royal Contracting Company maintained various types of machinery although he had never been inside the plant. Ritrovato was then informed at 8:25 that the same pick-up truck had just come down the roadway from Royal Contracting Company. On cross-examination the officer related that Royal Contracting Company was the only place from where the truck could be coming based upon the description of the location of the truck given him over the police radio. When he observed the truck a few minutes later at the tollgate booth he could see through the glass-enclosed load bed that the truck now contained machinery. He had also been informed by the dispatcher that at the time Seip was driving the vehicle away from Royal Contracting Company he was accompanied by another white male who was attempting to close the door of the truck cabin and that machinery was now present on the vehicle's load bed. We hold that the above-mentioned facts were sufficient to establish sufficient probable cause for the police to stop the vehicle at the tollgate to further question the driver of the vehicle. The most important facts of which the officer was aware were that he had personally observed the empty load bed of the truck less than two hours before he had been informed that the truck now contained machinery; that the truck's driver had informed the officer that his purpose in being parked on the private lot was to be shown an antique car which purpose was inconsistent with the presence of machinery in the truck less than two hours later; that he knew that the business of Royal Contracting was maintaining machinery; that the vehicle was observed driving down the roadway leading from Royal Contracting; and that another adult male was now in the truck whereas Seip had informed him that he was alone with the two children. We hold that these facts were sufficient to enable the officer to stop Seip's vehicle for further questioning of Seip relative to these circumstances and that the officer's further observations of the machinery in the truck, which was in "plain view", when *558 taken in conjunction with the above facts, provided the officer with sufficient cause to open the window of the truck's cabin thereby revealing DeNault hiding under the blanket. From these facts the officer could reasonably believe that Seip had lied to him previously about his purpose in being parked in the private lot and that Seip and/or DeNault had removed the machinery from Royal Contracting without the permission of the owner. While said facts may not have provided the officer with sufficient cause to arrest either defendant, they did provide him with sufficient facts to detain the defendants temporarily in order to check out DeNault's story about having been given permission to remove the machinery from Royal Contracting. The Fourth Amendment of the United States Constitution does not require a policeman who lacks the precise level of knowledge necessary for probable cause to make an arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. Commonwealth v. Galadyna, 248 Pa.Super. 226, 375 A.2d 69 (1977). In the instant case Officer Ritrovato's actions at each step of his investigation were consistent with the protection of defendants' Fourth Amendment rights, as well as with good police work. He did not suddenly stop Seip's vehicle and ransack it looking for evidence of a possible crime but carefully questioned Seip about his previous answers which were inconsistent with the officer's knowledge and observations. At each step of the investigation the officer obtained more personal knowledge of the situation which strengthened his probable cause to believe that a felony, (theft, burglary or conspiracy) had been committed by the defendants and that the pick-up truck had been employed in committing the offense (removing the machinery from its lawful owner). Thus, we hold that the evidence should not have been suppressed as the officer's investigatory stop of the vehicle was not based upon mere instinct or suspicion but was based upon definite articulated facts which gave him sufficient cause to do what he did. The evidence should not have been suppressed.
Order reversed and remanded to the court below for further proceeding in accordance with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261482/ | 861 F. Supp. 108 (1994)
KOYO SEIKO CO., LTD. and Koyo Corporation of U.S.A., Plaintiffs,
v.
The UNITED STATES and the United States Department of Commerce, Defendants,
and
The Timken Company, Defendant-Intervenor.
Court No. 92-03-00170. Slip Op. 94-127.
United States Court of International Trade.
August 11, 1994.
*109 Powell, Goldstein, Frazer & Murphy, Peter O. Suchman, Susan P. Strommer, Niall P. Meagher, T. George Davis and Elizabeth C. Hafner, Washington, DC, for plaintiffs, Koyo Seiko Co., Ltd. and Koyo Corp. of U.S.A.
Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, Velta A. Melnbrencis, Asst. Director, of counsel: Joan L. MacKenzie, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, for defendant.
Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., John M. Breen, Amy S. Dwyer and Margaret E.O. Edozien, Washington, DC, for defendant-intervenor, The Timken Co.
OPINION
TSOUCALAS, Judge:
Plaintiffs, Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. ("Koyo"), challenge certain aspects of the Department of Commerce, International Trade Administration's ("Commerce") final results of the administrative review of certain tapered roller bearings ("TRBs") from Japan. Tapered Roller Bearings, Four Inches or Less In Outside Diameter, and Components Thereof, From Japan; Final Results of Antidumping Duty Administrative Review ("Final Results"), 57 Fed. Reg. 4,975 (Feb. 11, 1992).
*110 Background
In 1987, Commerce published an antidumping duty order on TRBs from Japan. Antidumping Duty Order; Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, 52 Fed.Reg. 37,352 (Oct. 6, 1987). In 1991, Commerce published the preliminary results of the 1989-90 administrative review. Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Preliminary Results of Antidumping Duty Administrative Review, 56 Fed.Reg. 23,278 (May 21, 1991). On February 11, 1992, Commerce published its final results in this proceeding, covering the period August 1, 1989 through July 31, 1990. Final Results, 57 Fed.Reg. 4,975. In 1992, Commerce published an amendment to the final results for the 1989-90 administrative review. Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Amended Final Results of Antidumping Duty Administrative Review, 57 Fed.Reg. 9,105 (March 16, 1992).
Koyo moves pursuant to Rule 56.2 of the Rules of this Court for judgment on the agency record, alleging the following actions by Commerce were unsupported by substantial evidence on the agency record and not in accordance with law: (1) failure to use annualized weighted-average U.S. prices ("USPs") when it used annualized weighted-average foreign market values ("FMVs"); (2) treatment of U.S. discounts as direct selling expenses while treating home market post-sale price adjustments as indirect selling expenses; (3) treatment of home market warranty expenses as indirect selling expenses; (4) comparison of sales across different levels of trade; (5) deduction of home market packing expenses from gross home market prices for purposes of comparing gross home market prices to cost of production data which included home market packing expenses; and (6) treatment of tapered roller bearing sets with one Japan-made component as "further manufactured" merchandise and use of best information available ("BIA") in calculating dumping margins for those sets. Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Judgment on the Agency Record ("Koyo's Brief") at 11-41.
Discussion
The Court's jurisdiction over this matter is derived from 19 U.S.C. § 1516a(a)(2) (1988) and 28 U.S.C. § 1581(c) (1988).
A final determination by Commerce in an administrative proceeding will be sustained unless that determination is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F. Supp. 1252, 1255 (1988).
1. Averaged FMV
Koyo alleges Commerce inappropriately compared averages of FMV representing home market sales over a twelve-month period with actual U.S. prices, instead of with similarly averaged U.S. prices. Koyo's Brief at 11-21.
Koyo maintains such an inherently unfair comparison between individual prices and averaged prices distorts the dumping margins calculated and is contrary to the antidumping statute. Id. at 11-15. Citing the provision permitting Commerce to average U.S. prices and asserting that U.S. prices were as stable as FMVs, Koyo argues that Commerce abused its discretion by not averaging U.S. prices and thereby inflating Koyo's dumping margins in this comparison. Id. at 13-19.
Commerce maintains it acted within its discretion and in accordance with the statutory scheme, which does not require it to average USP whenever it decides to average FMV. Defendants' Memorandum in Opposition to Plaintiffs' Motion for Judgment Upon the Agency Record ("Defendants' Brief") at 7-18. Commerce asserts that to prevent the masking of dumping, it followed its long-standing practice of averaging USP only when perishable products are sold at distress prices as a result of necessity and *111 not of unfair competition. Id. at 9-11. Commerce argues its averaging was reasonable as the home market prices over the entire review period were stable. Id. at 15-18.
Defendant-intervenor, The Timken Company ("Timken"), echoes the arguments made by Commerce. Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Judgment on the Agency Record ("Timken's Brief") at 11-18.
The statute at issue here grants Commerce exclusive discretion to use averaging techniques as long as a significant volume of sales is involved and the averaging is representative:
[T]he administering authority may
(1) use averaging or generally recognized sampling techniques whenever a significant volume of sales is involved or a significant number of adjustment to prices is required, and
(2) decline to take into account adjustments which are insignificant in relation to the price or value of the merchandise.
(b) Selection of samples and averages
The authority to select appropriate samples and averages shall rest exclusively with the administering authority; but such samples and averages shall be representative of the transactions under investigation.
19 U.S.C. § 1677f-1 (1988). There is no provision that requires Commerce to average USP once it has averaged FMV.
In the case at hand, Commerce conducted two studies to ensure the averaging of FMV would be representative. Final Results, 57 Fed.Reg. at 4,977. That there was a significant volume of sales involved is not at issue. Thus, Commerce's decision to average foreign market value was in accordance with law.
Acting within its discretion, Commerce declined Koyo's invitation to average USP: "[Averaging USP] would allow a foreign producer to mask dumping margins by offsetting dumped prices with prices above FMV.... Except in instances where the Department has conducted reviews of seasonal merchandise which has very significant price fluctuations due to perishability ..., the idea of averaging U.S. prices has been rejected." Id.
This Court has already decided this issue and adheres to its decisions in Koyo Seiko Co. and Koyo Corp. of U.S.A. v. United States, 17 CIT ___, 834 F. Supp. 431 (1993) and Koyo Seiko Co. and Koyo Corp. of U.S.A. v. United States, 17 CIT ___, 840 F.Supp 136 (1993), aff'd, 20 F.3d 1156 (Fed. Cir.1994), wherein this Court held the averaging of FMVs without any averaging of USP not to be an abuse of discretion. Therefore, the determination of Commerce as to this issue is affirmed.
2. Home Market Post-Sale Price Adjustments and U.S. Discounts
In its brief, Koyo argues Commerce erred in treating Koyo's home market postsale price adjustments as indirect selling expenses. Koyo's Brief at 21-25. In its Reply of Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. to Oppositions to Plaintiffs' Motion for Judgment on the Agency Record ("Reply Brief"), Koyo withdraws its claim for treatment of home market post-sale price adjustments as direct selling expenses, as discussed with counsel for defendants and Timken. Reply Brief at 2. Accordingly, this Court will not further address this issue.
Koyo also argues that Commerce erred in treating U.S. discounts as direct selling expenses. Koyo's Brief at 21-25. Koyo maintains it was an abuse of discretion for Commerce to treat U.S. discounts differently from home market post-sale price adjustments since U.S. discounts were granted and reported on virtually the same basis as were home, market post-sale price adjustments. Id. Koyo asserts fairness requires that these costs be treated in the same manner in both markets. Id. at 23. According to Koyo, different treatment will result in a distorted comparison and the creation or widening of dumping margins on some sales. Id. at 24.
Defendants respond that Commerce properly made an adverse assumption and treated U.S. discounts as direct expenses, given that Koyo failed to provide sufficient information demonstrating that its adjustment was indirect and that it is to Koyo's advantage to have U.S. discounts treated as indirect expenses. *112 Defendants' Brief at 22-24. Timken adds that there is nothing inherently unfair in Commerce not treating U.S. discounts and home market post-sale price adjustments in the same manner. Timken's Brief at 22-24.
This Court finds that Koyo's arguments are without merit. It is established that U.S. selling expenses are presumed to be direct and the burden of proving otherwise is on the respondent. Timken Co. v. United States, 11 CIT 786, 804, 673 F. Supp. 495, 512-13 (1987); see also Torrington Co. v. United States, 17 CIT ___, ___, ___, 832 F. Supp. 365, 376, 378 (1993); see also Tapered Roller Bearings, Finished and Unfinished, and Parts Thereof, From Japan; Final Results of Antidumping Duty Administrative Review, 57 Fed.Reg. 4,951, 4,955 (Feb. 11, 1992); see also Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Certain Components Thereof, From Japan; Final Results of antidumping Duty Administrative Review, 56 Fed.Reg. 65,228, 65,229 (Dec. 16, 1991).
A contrary practice would destroy any incentive a respondent has to provide Commerce with actual U.S. selling expense information. Torrington Co., 17 CIT at ___, 832 F.Supp. at 376. An indirect U.S. selling expense can be "offset" by home market indirect selling expenses. 19 C.F.R. § 353.56(b)(2) (1992). Such an offset, which is not permitted with U.S. selling expenses classified as direct, increases allowable deductions from foreign market value and reduces dumping margins. It would therefore be to the respondent's advantage to fail to provide Commerce with information directly relating U.S. selling expenses to sales of covered merchandise. Timken Co., 11 CIT at 804, 673 F. Supp. at 513.
As Koyo has failed to overcome the presumption that the U.S. discounts and rebates are direct selling expenses, this issue is hereby affirmed.
3. Home Market Warranty Expenses
In its brief, Koyo argues Commerce erred in treating Koyo's home market warranty expenses as indirect selling expenses. Koyo's Brief at 25-27. In its Reply Brief, Koyo withdraws its claim for treatment of home market warranty expenses as direct selling expenses. Reply Brief at 2. Accordingly, this Court will not further address this issue.
4. Comparison of Sales Across Different Levels of Trade
Koyo alleges that in choosing such or similar sales for comparison, Commerce disregarded 19 C.F.R. § 353.58 (1992) by comparing sales across different levels of trade when sales at the same level of trade were available. Koyo's Brief at 27-35. Koyo states that it makes sales in the U.S. and Japan at two significantly different levels of trade to original equipment manufacturers and to the aftermarket for replacement parts. Id. at 28. Koyo asserts that Commerce improperly and unfairly considered sales of identical merchandise at different levels of trade before considering sales of the most similar merchandise at the same level of trade. Id. at 29-33. Koyo maintains that this methodology is contrary to the statute and regulation, which require Commerce to search for comparisons of sales at the same level of trade before crossing over to compare sales at a different level of trade. Id.
Defendants defend Commerce's methodology as consistent with law and with prior decisions of this Court which state level of trade is not a requirement for selecting such or similar merchandise. Defendants' Brief at 26-32. Commerce asserts that it first searched for identical merchandise at the same level of trade and then at different levels of trade, making adjustments for differences that affect price comparability across different levels of trade. Id. at 28-29. Timken agrees with defendants' arguments. Timken's Brief at 27-31.
19 C.F.R. § 353.58 states that Commerce "normally will calculate foreign market value and United States price based on sales at the same commercial level of trade." If such sales are insufficient for an adequate comparison, Commerce must calculate FMV "based on sales of such or similar merchandise at the most comparable commercial level of trade as sales of the merchandise and make *113 appropriate adjustments for differences affecting price comparability." Id.
Based upon data submitted by Koyo regarding the existence of two levels of trade, Commerce initially attempted to make its comparison of sales at the same level of trade and, when no identical home market sales were discovered, Commerce then searched the next level of trade for identical merchandise. Commerce then searched the same level of trade for most similar merchandise and, finally, the next level of trade for most similar merchandise. Defendants' Brief at 28-29. Therefore, Koyo's argument that Commerce failed to fulfill its obligation to search the same level of trade is erroneous.
This Court has on several occasions affirmed Commerce's selection of home market merchandise at levels of trade different from the U.S. merchandise to which it is compared. Koyo Seiko Co. v. United States, 16 CIT 539, 545, 796 F. Supp. 1526, 1532 (1992), vacated, remanded, 16 CIT 788, 806 F. Supp. 1008 (1992); NTN Bearing Corp. of America v. United States, 14 CIT 623, 634, 747 F. Supp. 726, 736 (1990); Timken Co., 11 CIT at 793, 673 F. Supp. at 504.
In addition, this Court has previously specifically rejected the argument put forth by Koyo: "there is no statutory mandate requiring Commerce to remain within the same level of trade while effecting its `such or similar merchandise' determination. [Citation omitted.] Plaintiffs, therefore, have no basis for requesting that the Court require Commerce to limit its comparisons by the level of trade in which the sales occur." NTN Bearing Corp., 14 CIT at 634, 747 F. Supp. at 736.
Therefore, Commerce's comparison of sales across different levels of trade was reasonable and in accordance with law.
Koyo also contends that Commerce's methodology is contrary to Article 2(6) of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade ("GATT") (1979). Koyo's Brief at 33-35.
Article 2(6) of the GATT, titled "Determination of Dumping," states that, in the context of price comparisons in antidumping proceedings, prices "shall be compared at the same level of trade" and "[d]ue allowance shall be made in each case, on its merits, for the differences in conditions and terms of sale, for the differences in taxation, and for the other differences affecting price comparability."
This Court has already addressed this very issue in Koyo Seiko Co. Ltd. and Koyo Corp. of U.S.A. v. United States, 17 CIT ___, ___-___, 810 F. Supp. 1287, 1290-91 (1993), wherein the Court held first, that compliance with this GATT provision does not require comparison of sales at the same level of trade since the provision itself clearly makes exception and allows for the adjustment of prices when sales are made under different terms and conditions and, second, that even if Commerce's methodology were contrary to this provision, domestic law, not the GATT, is controlling. The Court has been presented with no new argument and adheres to its previous decision regarding this issue.
Therefore, Commerce's comparison of merchandise across different levels of trade is affirmed.
5. Home Market Packing Expenses
Koyo asserts Commerce improperly compared cost of production, which included home market packing expenses, with gross home market prices, from which packing expenses had been deducted. Koyo's Brief at 35-37. Koyo states that it reported cost of production data to Commerce which excluded home market packing expenses and that Commerce then added packing expenses to that data while deducting packing expenses from gross home market price. Id. at 36. As a result, Koyo asserts, Commerce will disregard home market sales that it otherwise would not have disregarded. Id. Koyo urges this Court to remand this issue so that Commerce can either use Koyo's cost of production data as Koyo reported it, without adding packing expenses, or correct its computer program so that packing expenses are not deducted from gross home market prices. Id. at 37.
*114 Commerce requests this issue be remanded for reconsideration or explanation. Defendants' Brief at 32. Timken concurs that this issue should be remanded for reconsideration and agrees with Koyo's correction of the computer program. Timken's Brief at 31. As there is no explanation on the record regarding the treatment of packing expenses, this Court remands this issue for reconsideration by Commerce.
6. "Further Manufactured" Merchandise
Koyo argues Commerce improperly deemed certain TRB sets with one Japanmade component as "further manufactured" merchandise, consequently using best information available in calculating dumping margins for those sets. Koyo's Brief at 37-41. Koyo asserts that the adjustment Commerce is required to make for further manufacturing of merchandise after importation was inappropriate in this case because the Japanmade components were merely put in the same box as the other component in order to sell the components as a TRB set. Id. at 38. According to Koyo, the individual components can also be sold separately or can be imported separately to be sold as a set. Id. In short, Koyo argues that the process undergone by the merchandise, addition of a component to create a TRB set, simply does not amount to further manufacturing. Id. at 40-41.
Koyo contends that, because Commerce never requested the data, Commerce should not have applied BIA for increased value due to further manufacturing. Id. at 39. In any event, Koyo maintains there were no further manufacturing expenses because no materials were added to either component, no new or different product was created and the composition of the components is unchanged. Id.
Defendants respond that Commerce acted properly since the statute at issue, 19 U.S.C. § 1677a(e) (1988), does not define "process of manufacture or assembly" and Commerce is traditionally granted broad discretion where Congress is silent. Defendants' Brief at 32-35. Defendants argue that putting components in a box results in labor costs. Id. at 34-35. These costs and the fact that the product is sold as a TRB set, and not as a cup or cone, clearly indicate that the merchandise was further manufactured or assembled. Id. at 35. Defendants maintain Commerce was required to resort to BIA because Koyo had stated it was unable to produce complete information regarding the increased value of the merchandise. Id.
Timken agrees it is evident that the merchandise at issue has undergone further assembly after importation and is therefore subject to treatment as further manufactured merchandise. Timken's Brief at 32-36. Timken refutes Koyo's assertion that Commerce never requested further manufacturing data by citing Commerce's Section C questionnaire to Koyo wherein Commerce requested such information. Id. at 34. Since Koyo indicated it was unable to give the requested information, Timken argues BIA was properly applied. Id. at 36.
First, this Court must determine if further "manufacture or assembly" took place for the purposes of 19 U.S.C. § 1677a(e)(3).
Commerce must reduce exporter's sales price by:
any increased value, including additional material and labor, resulting from a process of manufacture or assembly performed on the imported merchandise after the importation of the merchandise and before its sale to a person who is not the exporter of the merchandise.
19 U.S.C. § 1677a(e)(3); see also 19 C.F.R. § 353.41(e)(3) (1992) (stating that Commerce generally will determine the increased value from "the cost of material, fabrication, and other expenses incurred" in production or assembly).
The statute requires Commerce to make an adjustment when there is "any" increased value resulting from manufacture or assembly. 19 U.S.C. § 1677a(e)(3). There is no requirement, as Koyo suggests, that materials be added to component parts, the components be turned into new products or the composition of the components be altered. The merchandise at issue was placed in a box with another component and sold as a set. This clearly qualifies as additional material *115 or labor and a "process of assembly." Therefore, Commerce was required to make an adjustment for further manufacturing of merchandise after importation pursuant to 19 U.S.C. § 1677a(e)(3).
Second, this Court must determine if Commerce appropriately applied BIA for the increased value due to further manufacturing. Commerce is required to use BIA whenever a party refuses or is unable to produce information requested. 19 U.S.C. § 1677e(c) (1988). In this case, Commerce requested extensive information regarding further processing and assembly of merchandise after importation to the United States. Public Document 20, frames 494-95. In response, Koyo stated it was unable to produce complete information regarding the increased value of the merchandise. Response to Antidumping Questionnaire Section C by Koyo Seiko Co., Ltd. and American Koyo Corporation, a Division of Koyo Corporation of U.S.A. for the Administrative Review Period August 1, 1988 through July 31, 1989 at 2, n. 1. Therefore, Commerce was required to apply BIA for the increased value due to further manufacturing.
For the reasons set out above, Commerce's treatment of TRB sets as further manufactured merchandise and use of BIA is hereby affirmed.
Conclusion
In accordance with the foregoing opinion, this case is remanded to Commerce for reconsideration of its deduction of home market packing expenses from gross home market prices. Commerce's determination is affirmed in all other respects. Remand results are due within ninety (90) days of the date this opinion is entered. Any comments or responses are due within thirty (30) days thereafter. Any rebuttal comments are due within fifteen (15) days of the date responses or comments are due. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261488/ | 861 F. Supp. 846 (1994)
BOATMEN'S FIRST NATIONAL BANK OF KANSAS CITY, Plaintiff,
v.
Willie J. McCOY and Ray Evelyn Tate, Defendants.
No. 94-0541-CV-W-BC.
United States District Court, W.D. Missouri, Western Division.
August 23, 1994.
*847 David Skeens, Morrison & Hecker, Overland Park, KS and Mark McGrory, Morrison & Hecker, Kansas City, MO, for plaintiff.
James W. Tippin, Tippin & Associates, Kansas City, MO, for defendant Willie McCoy.
No attorney for Ray Evelyn Tate has not appeared yet.
ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND
LARSEN, United States Magistrate Judge.
Before the court is plaintiff's motion to remand this action to the Circuit Court of Jackson County, Missouri, on the grounds that this court does not have subject matter jurisdiction over this interpleader action under either Federal Rule of Civil Procedure 22 or 28 U.S.C. § 1335. I find that defendant's § 1981 counterclaim cannot be a basis for federal jurisdiction since resolution of the state law claim of the validity of the Durable Power of Attorney against defendant Willie McCoy would obviate the need to determine the § 1981 claim; therefore, plaintiff's motion to remand is granted.
I. BACKGROUND
On May 13, 1994, plaintiff Boatmen's First National Bank of Kansas City filed a petition for interpleader in the Circuit Court of Jackson County, Missouri. Plaintiff's petition alleges that Washington and Piccola Brim had a checking account at Boatmen's Bank which listed Ray Evelyn Tate as the payee upon death. On January 27, 1993, Piccola Brim died. On March 17, 1994, defendant Willie McCoy presented himself to the Boatmen's Bank in Jackson County, Missouri, and requested that Boatmen's retitle the Brim account pursuant to a Durable Power of Attorney purportedly granted to McCoy by Washington Brim. Boatmen's was unable to verify the validity of the Durable Power of Attorney and therefore declined to retitled the Brim account. Two days later, Washington Brim died. At the time of Mr. Brim's death, his account contained $18,105.43. Subsequent to Mr. Brim's death, defendant Willie McCoy made demand on Boatmen's for the funds in the Brim account.
On the same day the petition for interpleader was filed, plaintiff sent a courtesy copy to Mr. James Tippin whom plaintiff knew to be defendant McCoy's attorney. Ten days later, on May 23, 1994, Mr. Tippin's law office sent a letter to plaintiff's counsel stating that "[t]his office has been instructed to have you serve Mr. Willie McCoy personally with reference to the Interpleader Action and Motion of your letter of May 13, 1994."
On June 8, 1994, defendant Willie McCoy filed a verified petition for removal. In his petition, defendant states that this court has jurisdiction pursuant to 28 U.S.C. § 1335 because the "amount in controversy exceeds $500.00 and the action is between citizens of different States" and because "Defendant Willie J. McCoy has potential claims against Plaintiff arising under the provisions of 42 U.S.C. § 1981." The following day, the first "Notice Upon Order for Service by Publication of Notice" was published in the Daily Record. On July 8, 1994, plaintiff filed the instant motion for remand, and on July 14, 1994, defendant Willie McCoy filed a counterclaim against Boatmen's alleging a violation of 42 U.S.C. § 1981.
II. MOTION FOR REMAND
In its motion for remand, plaintiff argues that this court does not have subject matter *848 jurisdiction under Rule 22 since the amount in controversy is less than $50,000, or under 28 U.S.C. § 1335 since that statute requires diversity of citizenship between two or more of the defendant/claimants and both defendants in this case are residents of Arkansas. Plaintiff further argues that defendant's potential counterclaim under § 1981 does not create federal jurisdiction.
Defendant McCoy, in his response, argues that removal is appropriate if the federal court would have had jurisdiction in a coercive action by the defendant, and that in this case, defendant's coercive action includes a § 1981 claim which is a federal question.
Plaintiff filed a reply on July 29, 1994, stating that in the cases cited by defendant, the coercive action is a claim to the interpleader funds, not, as in this case, a counterclaim which merely arises from events also related to the interpleader action.
III. REMOVAL OF INTERPLEADER ACTION
Defendant's verified petition for removal states that federal jurisdiction exists pursuant to 28 U.S.C. § 1335 (statutory interpleader) and 28 U.S.C. § 1331 (federal question jurisdiction).[1]
The Federal Interpleader Act, 28 U.S.C. § 1335, requires that two or more of the adverse claimants to the interpleaded funds be "of diverse citizenship as defined in section 1332 of this title." Absent diversity of citizenship between two or more adverse claimants, this court lacks jurisdiction under the interpleader statute. State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 530, 87 S. Ct. 1199, 1203, 18 L. Ed. 2d 270 (1967). Diversity cannot be established under the interpleader statute by the presence of the non-Arkansas plaintiff since it claims no interest in the disputed funds. Lummis v. White, 629 F.2d 397, 402-403 (5th Cir.1980), rev'd on other grounds sub nom. Cory v. White, 457 U.S. 85, 102 S. Ct. 2325, 72 L. Ed. 2d 694 (1982). In this case, both claimants to the fund, defendant Willie McCoy and defendant Ray Evelyn Tate, are residents of the State of Arkansas. Therefore, the diversity requirement of statutory interpleader has not been met in this case.
Rule 22 of the Federal Rules of Civil Procedure provides that persons having claims against the plaintiff may be joined as defendants and required to interplead their claims when their claims may subject the plaintiff to multiple liability. Unlike the interpleader statute which grants district courts original jurisdiction, the interpleader rule is merely a procedural device and does not grant this court subject matter jurisdiction. Commercial Union Insurance Company v. United States, 999 F.2d 581, 584 (D.C.Cir.1993); Morongo Band of Mission Indians v. California State Board of Equalization, 858 F.2d 1376, 1382 (9th Cir.1988), cert. denied, 488 U.S. 1006, 109 S. Ct. 787, 102 L. Ed. 2d 779 (1989); Bell & Beckwith v. United States, 766 F.2d 910, 914 (6th Cir.1985); see Fed.R.Civ.P. 82 (federal rules shall not be construed to extend or limit subject matter jurisdiction). Accordingly, an interpleader action under Rule 22 must fall within some statutory grant of jurisdiction. St. Louis Union Trust Co. v. Stone, 570 F.2d 833, 835 (8th Cir.1978).
Section 1332 requires an amount in controversy exceeding $50,000, along with complete diversity. Although the plaintiff and defendants are residents of different states, the amount in controversy here is $18,105.43 which is less than $50,000. Therefore, the jurisdictional amount has not been met and this court has no jurisdiction pursuant to 28 U.S.C. § 1332.
Section 1331 provides that "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." The Supreme Court has explained that an action arises under federal law if that law creates the cause of action or if a substantial question of federal law is a necessary element of the plaintiff's cause of action. Franchise Tax Board v. Construction Laborers Vacation *849 Trust, 463 U.S. 1, 9-10, 103 S. Ct. 2841, 2846, 77 L. Ed. 2d 420 (1983). In addition, it is well-settled that the federal-law element must appear on the face of the plaintiff's well-pleaded complaint and not on speculation as to a defense to the plaintiff's claim. Id.
As a result of the well-pleaded complaint rule, few interpleader complaints have been found to qualify for federal question jurisdiction. Interpleader is a procedural device available to a stakeholder to resolve a dispute that exists primarily between the defendant claimants. The stakeholder's claim is typically one seeking discharge and is difficult to characterize as asserting either federal or state rights. Morongo Band v. California State Board of Equalization, 858 F.2d at 1383.
Several circuits have recognized that interpleader actions should be treated in the same manner as declaratory judgment actions with regard to the well-pleaded complaint rule. See Commercial Union Insurance Company v. United States, 999 F.2d at 585; Morongo Band v. California State Board of Equalization, 858 F.2d at 1384; Bell & Beckwith v. United States, 766 F.2d at 912-913. Both interpleader and declaratory judgment actions "enable a defendant to precipitate a plaintiff's suit in order to avoid multiple liability or other inconvenience." Commercial Union v. United States, 999 F.2d at 585 (quoting Bell & Beckwith v. United States, 766 F.2d at 914). In those cases, although the plaintiff's claim does not raise a federal question, it may stake the federal court's jurisdiction on a defense to a claim that would raise a federal question and that the defendant could have asserted in a coercive action. Commercial Union v. United States, 999 F.2d at 585; Bell & Beckwith v. United States, 766 F.2d at 912. Therefore, where the complaint in an interpleader action seeks to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal question jurisdiction. Bell & Beckwith v. United States, 766 F.2d at 913. See also Public Service Com. v. Wycoff Co., 344 U.S. 237, 248, 73 S. Ct. 236, 242, 97 L. Ed. 291 (1952) (dictum).
Defendant Willie McCoy alleges in his counterclaim that plaintiff Boatmen's Bank refused to add his name to the account of Mr. Washington Brim pursuant to a Durable Power of Attorney authorizing defendant to "collect the proceeds and to withdraw funds from my [bank] account[s]" and directing all banks to "grant access and/or control to my attorney-in-fact with respect to [bank account funds]." Defendant further alleges that plaintiff's refusal to honor the Durable Power of Attorney was "unreasonable, arbitrary, and invidious discrimination based upon Defendant's status as a member of the African-American race" in violation of 42 U.S.C. § 1981. In his opposition to plaintiff's motion to remand, defendant Willie McCoy argues that "because federal question jurisdiction of Defendant McCoy's claim against Plaintiff would have existed without Plaintiff's filing the interpleader action, federal question jurisdiction sufficient for removal is present".
The Supreme Court in Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S. Ct. 2841, 2855-56, 77 L. Ed. 2d 420 (1983), held that jurisdiction is proper in "only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial federal question." Subsequently, many courts, noting the similar procedural posture maintained by both interpleader and declaratory judgment actions, have construed the principles of Franchise Tax Board to mean that federal courts may exercise jurisdiction over interpleader actions that do not state a federal question on the face of a wellpleaded complaint, provided that the stakeholder's right to relief necessarily depends on the resolution of a substantial question of federal law. Commercial Nat'l Bank v. Demos, 18 F.3d 485, 488 (7th Cir.1994). Therefore, in order to determine whether federal question jurisdiction exists, the court must determine whether the resolution of a substantial question of federal law will provide the plaintiff with the relief it seeks. Id.
*850 If resolution of a state law claim will negate the need for a resolution of any federal law claim, the interpleader action does not arise under federal law. Bell & Beckwith v. United States, 766 F.2d at 915. In Bell & Beckwith v. United States, Bell & Beckwith, a stock brokerage company, managed an account in the name of Donna Cannon. The Internal Revenue Service claimed that Ms. Cannon was merely acting as a nominee of Dr. Alan Zimmer who provided the funds and set up the account and who owed back taxes. The Internal Revenue Service levied a tax lien on the account, and Donna Cannon demanded full payment after claiming ownership of the account. Bell & Beckwith brought an interpleader action in federal court to resolve adverse claims to the account. The court dismissed the case for lack of subject matter jurisdiction holding that the real question was one of state law to whom the account belonged. Since resolution of that question in favor of Ms. Cannon would have obviated the need for determination of the Internal Revenue Service's right to the fund under 26 U.S.C. § 6331(a)[2], federal law did not create the cause of action and a substantial question of federal law was not a necessary element of the plaintiff's cause of action. It was possible to resolve the entire case without ever addressing the federal question.
In a similar case, Morongo Band of Mission Indians v. California State Board of Equalization, 858 F.2d 1376 (9th Cir.1988), the Morongo Band leased Indian trust land from Clive Miller. Later, the Board of Equalization levied on the funds held by the Morongo Band owed to Miller as rent. Miller claimed that the rent was exempt from the levy pursuant to 25 U.S.C. § 410 and counterclaimed that the Morongo Band violated the Indian Civil Rights Act, 25 U.S.C. § 1302. The court dismissed the case for lack of subject matter jurisdiction holding that the real question was one of state law. "Had the Band not instituted the present [interpleader] action, Miller would have sought recovery of the disputed rents by instituting an action against the Band for breach of lease." Morongo Band of Mission Indians v. California State Board of Equalization, 858 F.2d at 1385. In addition, the court held that "Miller's claim [of violation of the Indian Civil Rights Act] is not a claim to rent under the lease, hence it is not one of the coercive actions anticipated by the Bank's interpleader claim." Id. at 1386 n. 8.
In this case, I find that the real question at issue is the state law claim of whether the Durable Power of Attorney was valid. If that claim is resolved against defendant Willie McCoy, then the need to determine McCoy's § 1981 claim is obviated. Therefore, I find that there is no subject matter jurisdiction and this case should be remanded.
Plaintiff argued that defendant's § 1981 counterclaim was filed out of time and therefore could not be a basis for federal jurisdiction. Since this is a question of first impression in the Eighth Circuit and my decision on this issue would be dicta in light of the above findings, I decline to address the issue of when service was proper pursuant to Federal Rule of Civil Procedure 81(c).
IV. CONCLUSION
Because defendant's § 1981 counterclaim cannot be a basis for federal jurisdiction since resolution of the state law claim of the validity of the Durable Power of Attorney against defendant Willie McCoy would obviate the need to determine the § 1981 claim, it is
ORDERED that plaintiff's motion to remand is granted on the grounds that removal was without jurisdiction. It is further
ORDERED that the Clerk of Court for the Western District of Missouri return this action to the Circuit Court of Jackson County, Missouri.
The Court chooses not to award attorneys fees and costs.
NOTES
[1] Defendant's petition does not specifically cite § 1331. However, it states that jurisdiction arises under 42 U.S.C. § 1981 which is the "coercive action" creating federal question jurisdiction for Rule 22 interpleader.
[2] Providing that the Internal Revenue Service may levy upon all property and rights to property belonging to a person who refused to pay his taxes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261600/ | 428 A.2d 369 (1981)
DON'T TEAR IT DOWN, INC., et al., Petitioners,
v.
D. C. DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT, Respondent,
Potomac Electric Power Company, Intervenor.
No. 80-883.
District of Columbia Court of Appeals.
Argued January 29, 1981.
Decided March 6, 1981.
*370 S. Mark Tuller, Washington, D. C., for petitioners.
Richard B. Nettler, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington D. *371 C., were on the memorandum in lieu of a brief, for respondent. David P. Sutton, Asst. Corp. Counsel, Washington, D. C., also entered an appearance for respondent.
Whayne S. Quin, Washington, D. C., with whom Carolyn J. Hamm, Washington, D. C., was on the brief, for intervenor.
Before MACK, FERREN and PRYOR, Associate Judges.
PRYOR, Associate Judge:
Petitioners, Don't Tear It Down, Inc., and Georgetown Citizen's Association[1] seek review of an order of the Mayor's agent for the District of Columbia Historic Landmark and Historic District Protection Act of 1978, D.C. Code 1980 Supp., §§ 5-821-835, authorizing the issuance of a demolition permit sought by PEPCO ("the applicant") to demolish buildings located on PEPCO's Georgetown property.
Petitioners advance several arguments for reversal. Among them, petitioners challenge the sufficiency of the findings of fact and conclusions of law, as well as the agent's construction and application of the Historic Landmark and Historic District Protection Act of 1978, D.C. Code 1980 Supp., §§ 5-821-835.
Intervenor raises one jurisdictional challenge which it raised at hearing, namely, that the petition was not properly before the Joint Committee on Landmarks for review.
For the reasons stated below, we reverse and remand in part, and affirm in part.
FACTUAL BACKGROUND
This dispute concerns the proposed demolition of two nineteenth century buildings owned by PEPCOThe Conduit Shop, built in 1888, and the North building, built in 1899. Both buildings are a part of PEPCO's Georgetown Substation facility located at 33rd and K Streets, N.W., in the Georgetown Historic District. The North Building, designed for power production, is now used to house part of the substation facility. The Conduit Shop was originally used as an architectural iron works and later a repair shop, but has not been in use since 1979.
PEPCO desires to replace the present Georgetown Substation facility, which has reached the end of its useful service life, with a new more safe and efficient substation. To that end, PEPCO planned to demolish *372 the North Building and the Conduit Shop,[2] build a new substation on the southeast quadrant of the lot, on the site of the Conduit Shop, and a pedestrian path across the area where the North building is located.
PEPCO requested a permit to demolish the buildings. Because of its location in the Georgetown Historic District, PEPCO's application was governed by the requirements of the Historic Landmark and Historic District Protection Act of 1978, D.C. Code 1980 Supp., § 5-824, and the Old Georgetown Act, D.C. Code 1973, § 5-802, which respectively provide in pertinent part:
D.C. Code 1980 Supp., § 5-824. Demolitions.
(a) Before the Mayor may issue a permit to demolish an historic landmark or a building or structure in an historic district, the Mayor shall review the permit application in accordance with this section and place notice of the application in the District of Columbia Register.
(b) Prior to making the finding required by subsection (e) of this section, the Mayor may refer the application to the Historic Preservation Review Board for a recommendation, but shall so refer all applications that are not subject to review by the Commission of Fine Arts under the Old Georgetown Act (D.C. Code § 5-801 et seq.) The Mayor shall consider any recommendation by the Review Board or by the Commission of Fine Arts pursuant to such referral.
(c) Within one hundred and twenty (120) days after the Review Board receives the referral, the Mayor shall after a public hearing, make the finding required by subsection (e) of this section: Provided, that the Mayor may make such finding without a public hearing in the case of a building or structure in an historic district or on the site of an historic landmark if the Review Board has advised in its recommendation that the building or structure does not contribute to the historic district or the historic landmark.
(d) If the Review Board recommends against granting the permit, it shall promptly notify the applicant in writing of its recommendation and the reasons therefore.
(e) No permit shall be issued unless the Mayor finds that issuance of the permit is necessary in the public interest, or that failure to issue a permit will result in unreasonable economic hardship to the owner.
(f) The owner shall submit at the hearing such information as is relevant and necessary to support his application.
D.C. Code 1973, § 5-802. Restrictions imposed on alteration of buildings.
In order to promote the general welfare and to preserve and protect the places and areas of historic interest, exterior architectural features and examples of the type of architecture used in the National Capital in its initial years, the Commissioner of the District of Columbia, before issuing any permit for the construction, alteration, reconstruction, or razing of any building within said Georgetown district described in section 5-801 shall refer the plans to the National Commission of Fine Arts for a report as to the exterior architectural features, height, appearance, color and texture of the materials of exterior construction which is subject to public view from a public highway. The National Commission of Fine Arts shall report promptly to said Commissioner of the District of Columbia its recommendations, including such changes, if any, as in the judgment of the Commission are necessary and desirable to preserve the historic value of said Georgetown district. The said Commissioner shall take such actions as in his judgment are right and proper in the circumstances. Provided, That, if the said Commission of Fine Arts fails to submit a report on such plans within forty-five *373 days, its approval thereof shall be assumed and a permit may be issued.
Pursuant to the above Acts, PEPCO's application was referred to the Commission of Fine Arts (CFA) for review. By letter dated March 20, 1980, the CFA made the following recommendation:
Issue permit for demolition on site as proposed: note that south and east walls of existing conduit building at corner of 33rd and K Streets, N.W., will be stabilized, retained and restored as a part of the new construction on the site. Submit designs for new construction as ready with understanding that conceptual exterior design sketches have been viewed and considered out of character with historic district.
PEPCO's application was also submitted for review to the Joint Committee on Landmarks of the National Capital (JCL), which serves as the Historic Preservation Review Board. See D.C.Code 1980 Supp., § 5-823(a). On April 17, 1980, the JCL recommended that the demolition permit not be granted:
... because the building contributes to the character of the Georgetown Historic District and therefore its demolition would be inconsistent with the purposes of the Act as set forth in Section 2(b).
As a result of the JCL recommendation to deny the permit, PEPCO was subsequently granted a public hearing before the Mayor's agent, pursuant to the Act. The petitioners filed pleadings and appeared as Parties in Opposition.
THE ACT
The Historic Landmark and Historic District Protection Act of 1978, D.C.Code 1980 Supp., §§ 5-821-835 (hereinafter the Act), was enacted in an attempt to provide protection to the historic landmarks in the District of Columbia. See D.C.Code 1980 Supp., § 5-821. Generally, the Act prohibits the issuance of a demolition permit for buildings within a historic district. There are, however, three circumstances when a demolition permit for such buildings may be issued. A permit may issue where the Mayor's agent finds:
(i) a building located in a historic district does not contribute to the character of the district; or
(ii) demolition is necessary to allow the construction of a project of special merit, or
(iii) failure to issue the demolition permit will result in a taking of the owner's property without just compensation.
PEPCO proceeded on all three theories at the hearing, and evidence was introduced on each point. However, the Mayor's agent did not reach the issues of "contribution to the character of the historic district," or "unreasonable economic hardship" because she found that the project was "necessary" to allow the construction of a project of special merit. As the Mayor's agent limited her findings and conclusions to the issue of necessity, we limit our review of the evidence to the evidence of record on this point.
THE HEARING
A four day public hearing was conducted during the course of which seventeen witnesses testified in support of or against demolition, and fifty-four exhibits were admitted into evidence. All parties agreed that a replacement facility was needed and that the substation facility is a project of special merit.[3] The parties took strongly different positions to whether demolition was necessary to allow construction of the project of special merit.
APPLICANTS' EVIDENCE
On the issue of the necessity of demolishing the present structures, applicant's evidence established that before deciding to demolish the present structure and build a replacement facility, applicant conducted an *374 engineering study.[4] The following alternatives emerged as the result of the study:
(1) DO NOTHINGThis option was rejected as being inconsistent with PEPCO's obligation as a public utility to provide reliable electric service to all of its customers, and safe equipment for its operating personnel. Further, load commitments could not be met by letting the substation continue to age and deteriorate.
(2) TRANSFER LOAD TO ADJACENT SUBSTATIONSThis option was rejected for several reasons. First, it would entail a great deal of disruption in the Georgetown area for street openings, cable relocations, and moving lines. Secondly, moving the Georgetown load to another facility (19th and I Streets) would overduty the transfer facility and eventually PEPCO would have to again relocate the Georgetown load. Transferring the load would involve a substantial cost;
(3) REPLACE EQUIPMENT WITHIN EXISTING FACILITYPEPCO rejected this option for two primary reasons; (1) replacing equipment within the existing facility would entail an almost continuous building program at the Georgetown substation for ten years. Such a program would create an unwieldly risk to the reliability of service and a hazard to operating and construction personnel; (2) PEPCO could not completely turn off the existing substation when the transfer was taking place. It would have to shut down one-third of the substation at all times while the transfer was being made. This would further overduty the equipment which remained in use and tax it beyond its limit at peak load conditions, further jeopardizing service. The end result would be a substation which was still deficient according to modern standards;
(4) BUILD A NEW FACILITY IN THE GEORGETOWN AREA ON A NEW SITEThis option was attractive to *375 PEPCO. It would enable the existing substation to remain in service until the new substation was completed. At that time, the electric load could be transferred to the new substation. The existing substation would be phased out of service at that time. The site of the existing substation would be declared nonutility property and sold.
Despite the initial attractiveness of this alternative, it was ultimately rejected because no alternative sites were readily available in the Georgetown area nor were any such sites more suitable or centrally located for a substation than the existing site. Further, any new site would be more expensive than the existing facility, and relocating the feeders and cables cause disruption of traffic;
(5) A NEW FACILITY ON THE PRESENT SITEThis option is the one ultimately selected by PEPCO. It would entail constructing an entirely new facility on the site of the vacant Conduit Shop and yard. The new facility could be constructed without disrupting the operation of the existing substation, or disrupting traffic on the Georgetown streets. The new facility would be an enclosed building providing security for the public and decreasing noise. It would have new equipment expected to last until the turn of the century. When completed, the land outside of the facility would be declared nonutility and sold.
This option would provide the most reliable and safe electric service to PEPCO's customers at a reasonable cost. The reliability of the plant, plus the reasonableness of the cost lead PEPCO to select this option.
Applicant introduced evidence to show that adaptive reuse of the buildings is not feasible because of zoning, cost, and structural problems.
Thought was given to using the Conduit Shop as part of the substation, but that too was rejected because experts found the building to be inadequate to serve a first-class substation.
PEPCO ruled out housing parts of the substation in separate buildings or in separate areas of the site (and retaining the North Building and Conduit Shop) primarily because doing so is inconsistent with PEPCO substation designs. PEPCO consolidates its equipment within one structure to increase efficiency of the layout and cut down on the amount of circuiting and cable, therefore, reducing the possibility of failures and breakdowns.
Having explored the above options, PEPCO decided that demolition of the North Building and Conduit Shop is necessary in the public interest.
THE OFFICE OF PLANNING AND DEVELOPMENT
An electrical engineer testified on behalf of the Office of Planning and Development. He stated that he visited the Georgetown site and made a cursory inspection of the outdoor substation equipment. He concluded that the North Building and Conduit Shop were unfit for utility use, and that there was an acute need for replacement of the substation. He reviewed the PEPCO proposal and found it satisfactory; however, he proposed an alternative action which could salvage the historic buildings. The proposal would entail looping the cables beneath the Conduit Shop. New construction would be necessary, and additional rerouting costs would be incurred.
The proposal was not in final form and required more study and translation into design specifics. A feasibility study had not been done. PEPCO thus rejected this proposal because of the additional time necessary to complete it, and then determine its feasibility. It was also clear that the project would be more costly than the PEPCO plan, and PEPCO sought to provide the most efficient service at the lowest cost possible, consistent with its mandate as as public utility.
*376 PARTIES IN OPPOSITION
An expert in design of electrical substations testified on behalf of the petitioners, on the issue of "necessity." The expert studied PEPCO's preliminary plans, layout of the equipment; single-line drawings, and current architectural drawings, as well as the site itself, and concluded that a building, meeting all of the requirements of the PEPCO substation, could be built farther west of the existing site without demolishing the Conduit Shop. (This plan would necessitate demolishing a small house on the site of the Conduit Shop). The petitioners' expert prepared a concept drawing of the substation he proposed. It would be basically identical to the one proposed by PEPCO, but would be housed in a new building built on open space thereby preserving the historical buildings.
Though conceptualized, this alternative was not developed. The witness was not certain how long it would take to convert the concept into a final design, but proffered that he thought it could be accomplished in two or three months. The plan had not been presented to a structural engineer, or an architect, or PEPCO. Cost was not considered, nor was consideration given to whether this plan would comply with the District of Columbia Building Code. Physical arrangement was the sole consideration which lead to this alternative.
Because of the foregoing, and the fact that the witness testified that, at a minimum, the project would cost 10 to 15 percent more than the PEPCO plan, this plan was likewise rejected.
FINDINGS AND CONCLUSIONS
On the above evidence of "necessity in the public interest," the Mayor's agent found that
after detailed examination of possible alternatives over several years, beginning before passage of the Act, the applicant has demonstrated that in this particular case the PEPCO proposal is the only available alternative. PEPCO's analysis demonstrated that their proposal is more than a convenient, feasible or economically advantageous plan. Although alternative conceptual proposals were presented, it is unproven that the obstacles ... could be overcome and the alternative proposals seriously considered and executed.
The agent thus concluded:
... The demolition requested is necessary to construct a project of special merit. The applicant is a regulated public utility company established to provide adequate and reasonably safe electrical service to the District of Columbia and vicinity. As the record shows, it is agreed by all concerned parties that the project proposed is one of special merit: the ability to provide electrical service is a "high priority for community service."
The demolition requested is necessary in order to continue to provide safe, reliable, efficient electrical service in a timely manner and not to cause any disruption in service to the Georgetown community. The record shows that failure to go forward with the project as proposed will seriously jeopardize PEPCO's ability to provide such service.
CHALLENGES ON APPEAL
I
The first challenge on appeal is jurisdictional in nature. PEPCO asserts here as it did below that review of its application by the JCL was unlawful. PEPCO urges that the Act required referral only to the CFA in this instance and that since the CFA determined that the subject structures do not contribute to the historic district, the demolition permit should have been granted.
The legislative history of the Act reveals clearly that the jurisdictional question raised by the applicant was pondered and resolved by the legislators prior to passing the Act in its present form.
The CFA is a federal agency created by an Act of Congress, "The Old Georgetown Act", D.C. Code 1973, § 5-801 et seq. Under that Act, the CFA was vested with authority to review plans of anyone requesting, *377 inter alia, a demolition permit in the Georgetown Historic District, and to report to the Commissioner of the District, its recommendations. The Commissioner, once having reviewed the report, is to take whatever actions he or she deems proper under the circumstances.
The District of Columbia Historic Preservation Act gives the mayor discretion to refer the same applications to the Historic Preservation Review Board. Prior to approval of the Act, the CFA challenged this provision providing duplicative review. The Ad Hoc Committee for the Act,[5] fully investigated the question and received a legal opinion from the then Acting Corporation Counsel for the District of Columbia:
Although, as a general principle, an Act of Congress may preempt a state law, it is clear that states may enact legislation which does not conflict with Federal law. Kargman v. Sullivan, 552 F.2d 2 (1st Cir. 1977). Federal and local laws may coexist in the same area, and the local law may exact additional requirements which are not inconsistent with the Federal law. Maryland & District of Columbia Rifle and Pistol Association, Inc. v. Washington, 442 F.2d 123, at 130 (D.C. Cir. 1971).
Under the Old Georgetown Act, the Commission of Fine Arts reports to the Mayor of the District of Columbia on all permit applications with respect "to the exterior architectural features, height, appearance, color and texture of the materials of exterior construction which is subject to public view from a public highway." The Mayor is then required "to take such actions as in his judgment are right and proper under the circumstances." 64 Stat. § 2-903, D.C. Code § 5-802. Under Bill 2-367, the Mayor may also refer permit applications in Georgetown to the Historic Preservation and Review Board.
It is clear from the statutory language that the function of the Commission of Fine Arts pursuant to the Old Georgetown Act is solely advisory. Final authority for issuing permits rests with the Mayor. The Mayor is under no obligation to follow the Commission's recommendation, nor is he prevented from receiving additional advice. In addition, the purpose of the proposed local legislation is consistent with the Federal purposes, the preservation of the Georgetown Historic District. Therefore, the proposed legislation does not conflict with the statutory scheme of the Old Georgetown Act. [Letter from Louis P. Robbins, Acting Corporation Counsel, D. C., to Honorable Nadine P. Winter, D. C. City Council-woman, undatedincorporated into the Legislative History of the Act as Exhibit C].
On advice of counsel, and after full discussion, the Committee overwhelmingly voted to approve the Act with the review provision.
We are satisfied that the Act does provide for discretionary duplicative review and that so doing poses no constitutional problem. We find that the referral to the JCL in this instance was a proper action.
II
A second challenge pertains to the ruling of the agent regarding the North Building. Petitioners assert that even under PEPCO's substation plan, demolition of the North Building is not necessary because it is located on the northeast quadrant of the lot. The PEPCO plan contemplates construction of the new substation solely on the southeast quadrant, where the Conduit Shop is located. Thus, petitioners assert that it was error for the Mayor's agent to fail to distinguish between the two buildings, and that the agent's finding of "necessity" with regard to demolition of the North Building cannot stand.
Respondent agrees with petitioners that demolition of the North Building is not necessary for construction of the project of special merit, and that it was error for the Mayor's agent to so find. Respondent posits that the error was made because the *378 argument advanced at the hearing seemed to be with regard to both buildings, and that it was not until petitioners changed the focus of this argument in this court, to assert that demolition of the North Building was an issue separate from demolition of the Conduit Shop, that the Mayor's agent reviewed the record and discovered that petitioners also raised this issue.
The Mayor's agent submits that the grounds upon which she relied in granting the application for the demolition permit do not support demolition of the North Building. She urges us to remand on this point, so that further findings and conclusions can be made concerning whether a demolition permit for the North Building should be granted, either because it does not contribute to the historic district or because denial of the permit would result in unreasonable economic hardship to the applicant. Both of these issues were raised by PEPCO below, but no finding was made in this regard because the agent concluded that PEPCO was entitled to the permit in order to construct a project of special meritnamely, a substation which would provide "safe, reliable, efficient electrical service" in a timely manner.
We do not make a ruling on this issue, however, but rather remand on this point and urge the Mayor's agent to make a finding as to whether the question of the North Building was in fact before her; and if so, to make specific findings as to whether the demolition permit should be granted for the North Building because it does not contribute to the historic district or because denial of the permit will result in unreasonable economic hardship to the applicant.
III
Petitioners additionally challenge the sufficiency of the findings of the Mayor's agent on the basis that she merely selected portions of the testimony and restated the same, without explaining why some testimony is credited and relied upon, while conflicting and contradictory testimony is rejected. Implicit in this challenge is that the agent, in fact, had a legal duty to explain why certain testimony was credited. This is not so. This court has stated that an agent is not required to explain why it favored one witness' testimony over another, or one statistic over another. Citizens Association of Georgetown v. District of Columbia Zoning Commission, D.C.App., 402 A.2d 36, 47 (1979).[6] The agent may not, however, merely restate the testimony of the witnesses. Newsweek Magazine v. District of Columbia Commission on Human Rights, D.C.App., 376 A.2d 777, 784 (1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 729, 54 L.Ed.2d 758 (1978). The agent is required to make written findings of basic fact on each materially contested issue; these findings taken as a whole, must rationally lead to the conclusions reached by the agent; and each finding must be supported by evidence sufficient to convince reasonable minds of its adequacy. Citizens Association of Georgetown, supra 402 A.2d at 42; Newsweek, supra at 376 A.2d 784; Dietrich v. District of Columbia Board of Zoning Adjustment, D.C.App., 293 A.2d 470, 472-73 (1972).
We reviewed the findings of the Mayor's agent with the above precepts as our guide, and did not find, as petitioner asserts, that the findings are deficient. To the contrary, we perceive the findings to be in accord with statutory mandate and case precedent.
THE FINDINGS
Opponents agreed with PEPCO that the substation was a special merit project within the meaning of the Act.[7] One material contested issue remained to be resolved by the Mayor's agentwhether the issuance of *379 the permit was necessary in the public interestthat is, consistent with the purposes of the Act, or necessary to allow the construction of the project of special merit, or that the failure to issue the permit would result in unreasonable economic hardship to PEPCO. See D.C. Code 1980 Supp., § 5-824.
In Finding No. 37, the Mayor's agent made a specific finding on this issue:
The Mayor's agent finds that after detailed examination of possible alternatives over several years, beginning before the passage of the Act, the applicant has demonstrated that in this particular case the PEPCO proposal is the only available alternative. PEPCO's analysis demonstrated that their proposal is more than a convenient, feasible or economically advantageous plan.
Petitioners nonetheless challenge this finding on the basis that the hearing examiner has in no way "directly related" this assertion to the specific contested alternatives presented at the hearing.... In some thirty-six findings, the agent laid a foundation for and "directly related" this finding to the considered alternative plans. The agent painstakingly summarized the evidence adduced at the hearing and discussed in some detail the evidence upon which she based her ultimate finding on the material contested issue.
In contrast with the findings in the Newsweek case, supra, which petitioners attempt to equate to those before us, the instant findings include considerably more than necessary, much of which is indeed a reiteration of the evidence at the hearing. In Newsweek, however, we found that the findings were incomplete and did not resolve basic issues of fact raised by the evidence. Many of the findings in that case were also restatements of the evidence at the hearing, and we found such findings to be insufficient substitutes for specific findings on the material issues. In a case such as the one before us where we can sift the findings from the restatement of evidence and still have findings on the material contested issue(s), we will not set the findings aside.
IV
Petitioners additionally challenge the legal conclusions reached by the Mayor's agent on grounds that the agent erroneously imported delay into the "necessary" standard and also improperly infused other irrelevant considerations, such as cost, into the standard. Petitioners appear to be correct in their observation that the agent considered cost, delay, technical feasibility, and other factors in construing "necessary". However, we find that the agent did not err in so doing.
The applicant introduced substantial evidence at hearing, that it considered a number of reasonable alternatives to demolition prior to deciding to demolish the substation. The parties in opposition introduced evidence that an alternative to demolition existed. They did not assert that it was unreasonable for the applicant not to have considered the alternative which they deemed feasible, but rather, merely that an alternative to demolition did exist. As the petitioners did not challenge the reasonableness of the applicant's failure to have considered their proposed alternatives along with the others, additional cost, delay, and the technical feasibility of petitioners' proposed alternative, all became valid considerations in determining necessity. For the applicant is not charged with considering every option that any party in opposition might conceptualize to avoid demolition. Rather, all reasonable alternatives must be considered.
Without imposing a reasonableness limitation on alternatives which an applicant must consider prior to resorting to demolition, one can envision endless challengers submitting numerous proposed alternatives, without regard for time frames, cost, efficiency, or zoning, housing and related regulations, urging that their alternative be adopted at the ninety-ninth hour.
On the other hand, an applicant may not reject plans which it reasonably should have considered, neglect to bring such plans to readiness, and at hearing use the delay in *380 completing such plans as a basis for rejecting the same; nor can "necessary" be equated with "least expensive" and all viable alternatives which are more costly than the one proposed by the applicant, be summarily rejected.
Reasonableness must be imputed into the "necessary" standard, and at hearing on each "special merit" permit, factors including but not limited to cost, delay, and technical feasibility become proper considerations for determining "necessary." In this case, the public utility's charge: to provide adequate and reasonably safe service which is just, reasonable, and nondiscriminatory, D.C. Code 1973, § 43-301, also was a valid consideration. Each of these factors has bearing on whether there are viable alternatives to demolition available, and the answer to this question determines necessity.
Examining the order as a whole, we find that in some respects it is inartfully drafted, however, we find no defect warranting reversal in full.
Accordingly, we affirm respondent's order authorizing the issuance of a demolition permit for the Conduit Shop; we reverse the order as to the North Building and remand for further action.
Affirmed in part and reversed in part.
NOTES
[1] Advisory Neighborhood Commission 3A, and its chairman, Raymond Kukulski, also sought judicial review of the order. As a preliminary matter, this court must decide whether all of the parties seeking judicial review of the order have standing to do so. D.C. Code 1978 Supp., § 1-171i(g), as clarified by Kopff v. District of Columbia, Alcoholic Beverage Control Board, D.C.App., 381 A.2d 1372 (1978), makes clear that the ANC is precluded from seeking judicial review of an administrative proceeding. Petitioners conceded this point in their pre-review memoranda. However, petitioners made a motion to substitute Raymond J. Kukulski, chairman of ANC 3A, as a party in place of ANC 3A. By order of this court, October 17, 1980, this motion was deferred for decision by this panel. Having reviewed the controlling rule and pertinent case law, we are satisfied that the motion should be denied.
D.C.App.R. 43(b) read in conjunction with 43(a) indicates that substitution of one party for another will be allowed where someone with standing as a party in a legal action dies or becomes otherwise incompetent. The rule presupposes that substitution is for someone who was a party to a pending action. Substitution is allowed where "necessary" to preserve and protect the legal rights of the party who become incompetent. In the case sub judice, substitution is inappropriate for at least two reasons.
First, it is clear from Kopff, supra, and Wheeler v. District of Columbia Board of Zoning Adjustment, D.C.App., 395 A.2d 85, 87 n.1 (1978), that the Commissioner as an individual citizen had standing to initiate this action. He failed to do so. At this juncture of the proceeding, the Commissioner can only become a substitute party for the ANC if the ANC was, in fact, a party in this litigation. Since the ANC could not be a party in this judicial action, Kopff, supra, and Wheeler, supra, 395 A.2d at 87 n.1, substitution is improper.
Secondly, Rule 43(b) makes "necessary" the standard for allowing substitution. In this action since two of the original Parties in Opposition are petitioners on appeal and the Commissioner does not wish to file an additional brief and does not assert that the petitioners before this court cannot adequately represent the interests of the ANC, substitution is not necessary.
For the above reasons, petitioners' motion to substitute Commissioner Kukulski in his individual capacity as a party petitioner, is denied.
[2] The plan is to demolish the structures but preserve the two major facades of the Conduit Building at 33rd and K Streets, N.W.
[3] Section 3(k) of the Act provides the following definitions of "special merit":
(k) "special merit" means a plan or building having significant benefits to the District of Columbia or to the community by virtue of exemplary architecture, specific features of land planning or social or other benefits having a high priority for community services.
[4] Applicant studied eight plans before narrowing its options to five alternatives:
Alternative AExpand the 1950 building to accommodate new 13kV switchgear, and to provide for a future fourth 13kV transformer. Enclose all existing outdoor facilities with a new building. Subsequent removal of existing 13kV switchgear will provide sufficient area for future relocation of 4kV switchgear. Conduit facilities will be abandoned and that portion of the property sold.
Alternative BExpand the 1950 building to accommodate new 13kV and 4kV switchgear and provide for a future fourth 13kV transformer. Enclose all existing outdoor facilities with a new building. Replace 4kV transformers and remove regulators. Conduit facilities and the 1898 building will be abandoned and that portion of the property sold.
Alternative CPEPCO to finance and construct a new 13kV and 4kV substation on a portion of the present conduit yard site. Conduit facilities and the 1898 building will be abandoned and that portion of the property sold.
Alternative DSale/Leaseback. Sell the entire site and abandon conduit facilities. Continue to utilize this existing substation until the new 13kV and 4kV substation is constructed by a private developer on a portion of the present conduit yard site. The lease on the new facilities will commence upon completion of the electrical installation.
Alternative EWas not discussed at the proceeding because it was alleged to be a totally internal matter. It was, however, similar to alternatives C and D, with the exception of the financing.
Alternative F(Similar to Alternative B.) Expand the 1950 building to accommodate new 13kV switchgear and provide for a future fourth 13kV transformer. Convert all 4kV lines and cables in Georgetown to 13kV. Abandon conduit facilities and 1898 building and sell that portion of the property.
Alternative G(Similar to Alternative C.) Abandon the conduit facilities and build a new 13kV substation on a portion of the present conduit yard site. Retire all other existing facilities and sell the balance of the site. Convert all 4kV lines and cables in Georgetown to 13kV. Review the possibility of selling the air rights above the new 13kV substation.
Alternative H(Similar to Alternative D.) Sale/Leaseback. Sell entire site and abandon conduit facilities. Convert all 4kV lines and cables in Georgetown to 13kV. Continue to utilize existing substation until a new 13kV substation is constructed by a private developer on the conduit yard site and the 4kV to 13kV conversion is complete.
[5] The Secretary of CFA was a member of the Ad Hoc Committee.
[6] We there noted, id. at 402 A.2d 36, 47 n. 19, that in some cases where the evidence in support of a finding is so weak or scant in contrast with evidence to the contrary, to avoid remand, an agency "would have to give persuasive reasons for its reliance on particular testimony; otherwise the evidence could not be deemed `reliable, probative, and substantial.'" But that is not the case here, where the applicant and opponents presented abundant evidence on the material fact of whether demolition was "necessary in the public interest."
[7] See note 3, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261605/ | 428 A.2d 42 (1981)
UNITED STATES, Appellant,
v.
Vivian ALEXANDER, Appellee.
Nos. 79-1280, 80-116.
District of Columbia Court of Appeals.
Argued June 19, 1980.
Decided February 24, 1981.
*43 John R. Fisher, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and Charles L. Hall, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellant.
William J. Mertens, Public Defender Service, Washington, D. C., with whom Silas J. Wasserstrom, Washington, D. C., Public Defender Service, was on the brief, for appellee.
Before NEWMAN, Chief Judge, and MACK and FERREN, Associate Judges.
MACK, Associate Judge:
At the request of the government, we review in this criminal case two pretrial orders,[1] one suppressing appellee's statements and the other directing production of *44 a witness' grand jury testimony. Appellee is charged with murder in the second-degree while armed. At trial, she intends to show that she acted in self-defense. After a hearing and extensive briefs arguing alleged violations of appellee's Fourth and Fifth Amendment rights, the trial court concluded, under Miranda[2] and its progeny, that appellee's Fifth Amendment rights were not violated. However, the court suppressed the statements under the Fourth Amendment as the fruits of an unlawful arrest.[3] In a separate order, pursuant to Super.Ct.Cr.R. 6(e)(2)(C)(i), the court ordered the government to disclose, three days before trial, the grand jury testimony of appellee's young daughter to allow defense preparation. For the reasons set forth in this opinion, we uphold the suppression order, but on Fifth Amendment rather than Fourth Amendment grounds.[4] We reverse the discovery order because we find there is an insufficient showing of particularized need.
I.
The facts developed at the suppression hearing disclosed the following events. In the morning of April 13, 1979, the police responded to a call for a "woman down" at a given address. At approximately 10:00 a. m., an officer arrived to find an ambulance crew administering aid to a woman lying unconscious on the sidewalk. He learned from Ms. Alexander (appellee), standing nearby, that the victim lived with her and her children. Appellee, who appeared upset, said the victim had fallen down and cut herself. The officer did not realize the situation potentially involved a criminal act until the ambulance crew revealed the victim had been either stabbed or shot. At that point the officer alerted the Homicide Squad.
Homicide Detective Chaney arrived on the scene soon thereafter. He had first stopped at the hospital and learned that the victim had been stabbed and was in serious condition.[5] He briefly spoke with appellee's two children (ages nine and seventeen) whom he described as "nervous and upset and ... not being completely truthful." One said she knew nothing; the other refused to talk. He told them they would have to come to the station and make a statement about what they had seen happen inside their house. He did not tell them they were not required to go, or that a parent or adult could accompany them. He considered the only other adult living in the house, Ms. Alexander, a suspect and advised her orally of her Miranda rights.[6]
Detective Chaney directed that she be taken to the station for questioning, feeling that environment was more "conducive" to questioning. He did not advise Ms. Alexander that she was under arrest, nor did he consider her to be, although he did testify that he thought "she had no choice" in going to the station. Ms. Alexander was handcuffed and taken to police headquarters. The two daughters were taken to headquarters separately.
When Ms. Alexander arrived, she was taken by Homicide Detective Forbes to an interview room. Just as the interview was commencing, they were interrupted by another detective who had been questioning Ms. Alexander's daughters. Outside the interview room, Detective Forbes was told that one of the daughters had indicated *45 that Ms. Alexander was the person responsible for the stabbing.[7]
Forbes reentered the room and informed appellee she was under arrest for assault with intent to kill. He advised Ms. Alexander of her constitutional rights under Miranda by using a PD 47 form.[8] Forbes read appellee her rights and asked her if she understood them. She answered affirmatively. He then gave her the card to read, and instructed her to answer the questions, sign, and date it. She answered "yes" to the first three questions, but answered "no" to the last question "Are you willing to answer any questions without a lawyer present?" Ms. Alexander signed the card; Detective Forbes signed as a witness. The time noted on the card was 12:22 p. m.
Detective Forbes said no more to appellee regarding her rights or obtaining counsel. Within minutes after she had signed the card and returned it to him, he stated to her "we know what happened," or "we know you are responsible for the stabbing."[9] He then left the room and returned a few moments later with a PD 163 form, used to prosecute the arrestee. He began completing the form, asking Ms. Alexander how to spell her name. In response to her question, he said the form "was the necessary paperwork ... so he could send her over to jail," and that she was going to jail. A short time later she said "I got to talk to you about something. I want to tell you what happened." She began to relate the events of the morning. Detective Forbes asked her if she were willing to give a written statement. She agreed, and he retrieved the proper form. At this point fresh Miranda warnings were given. Appellee indicated she understood her rights and was willing to answer questions without an attorney present. No particular inquiry was made as to why she was willing to talk without an attorney present.[10] The written Defendant's Statement was taken beginning at 12:40 p. m.[11]
*46 Ms. Alexander testified on her own behalf at the suppression hearing.[12] Her version of the sequence of events was essentially similar to that of the government witnesses. She explained that the victim had been her lover, and that she was worried and upset about the latter's condition while she was questioned and detained by the police. She was also concerned about her children. She saw that her daughters were already present at the Homicide Squad office when she arrived, but she was not allowed to speak with them until she had finished giving her statement. She testified that Detective Chaney entered the interview room during the interview and told her that the victim was going to die.
In addition her recollection was that she did not see the rights card (PD 47) until after she had been questioned. Regarding her answer to question four, she said she thought Detective Forbes was going to get her a lawyer, and that she asked for one. She was unsure, however, whether the detective heard her request because he did not respond. She acknowledged that Detective Forbes did not hit or threaten her. Regarding her understanding of the Miranda rights when first given at the scene, she admitted she knew she had a right to be silent, and, in fact, had remained silent. However, she said she did not at that time understand what it meant to have a lawyer nor did she later when she was questioned at the station. She requested an attorney because she was confused, upset, and in need of help.
After receiving extensive memoranda on the suppression issues raised by these facts, including post-hearing briefs, the trial judge issued a comprehensive order directing suppression of the oral and written statements made at the Homicide Squad office. The court concluded that appellee's Fourth Amendment rights were violated when the police handcuffed her and took her to the Homicide Squad office without probable cause.
At the time defendant was taken into custody, police knew that potentially fatal knife wound injuries had been inflicted on the victim in or near defendant's residence, which defendant shared with the victim and several children, and they suspected that the defendant's on-the-scene explanation of how the victim had been injured was probably false. The police did not know at that time whether defendant, assuming her statements were false, was protecting herself, one of her daughters or some third person. The fact that the daughters, who were home at the time, were also vague and evasive about what happened is as consistent with their own guilt or the guilt of another friend or family member as it is with the guilt of defendant.
The court next considered whether the acquisition, at the station, of the additional information from the appellee's daughter was sufficient to dissipate the taint of the illegal arrest. After performing the analysis designated by the Supreme Court in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the judge concluded the statements should be suppressed.[13] Given the fast pace at which the events unfolded and the fact that the daughter's statement preceded Ms. Alexander's by merely a few minutes, the court concluded there was insufficient attenuation from the illegal arrest to fall outside the Fourth Amendment exclusionary rule.
The trial judge next turned to the Fifth Amendment issues. He deemed the issue presented as whether appellee's right to *47 remain silent was "scrupulously honored," citing Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). He found that the police stopped interrogation upon appellee's assertion of a desire not be be questioned without counsel. He rejected appellee's contention that Detective Forbes' statements to defendant that "We know what happened" were tantamount to interrogation, noting:
[T]he court cannot conclude, on this record, that anything done by the detective constituted interrogation within the meaning of Miranda and its progeny. On the contrary, the record reflects that defendant voluntarily gave her statement after realizing that she was going to jail, which she learned in direct response to her own question asked of the detective. She was not interrogated. She simply chose to speak.
... The court concludes, that, under the totality of circumstances, defendant voluntarily, knowingly and intelligently waived her Miranda rights. Although there is no express waiver preceding defendant's oral admission to Detective Forbes, the court can infer from the clear and unequivocal express waiver made prior to the written statement that the antecedent oral statement was also the product of the unfettered exercise of defendant's free will, with a full understanding of her rights. The court concludes that defendant's oral and written statements were both voluntary.
II.
The Supreme Court cases of Dunaway v. New York, supra, and Brown v. Illinois, supra,[14] instruct that when a criminal defendant challenges the admissibility of his or her statements made to law enforcement officials the Fifth Amendment issues are to be considered first. Only if the person's statements are deemed voluntary for Fifth Amendment purposes is a Fourth Amendment inquiry warranted.
Fundamental to the Fifth Amendment analysis of whether a defendant's statement was voluntarily made is an assurance that his or her will was not overbornethat the statements were not the product of coercion. Miranda v. Arizona, 384 U.S. 436, 445, 458, 86 S.Ct. 1602, 1612, 1619, 16 L.Ed.2d 694 (1966). There can be no doubt that a defendant in the custody of police has certain rights before and while being interrogated.
The familiar Miranda warnings are the prophylactic safeguard assuring at least notice of those rights. The vast majority of cases raising Miranda issues involve this first level of Miranda protectionassuring that the warnings were given before questioning commences, and that the rights thereunder were voluntarily waived.[15] However, a second part of the Miranda decision prescribed standards for situations where a suspect exercised, rather than waived, one of those rightsthe right to remain silent or to the presence of counsel.
At this point he has shown that he intends to exercise his Fifth Amendment privilege [to remain silent]; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. [Miranda, supra at 474, 86 S.Ct. at 1628].[[16]]
*48 What concerns us in this case is the so-called "second level" of Miranda rights.[17] Appellee here was clearly in police custodyin fact, in the very type of situation central to the Miranda court's concern: incommunicado, stationhouse custody. By refusing to waive the presence of counsel in any questioning, appellee invoked her Miranda right to counsel. The Miranda decision itself would seem to absolutely prohibit any further questioning without the presence of counsel.[18] However, the Supreme Court has yet to answer the precise question of under what conditions, if any, a defendant who has asserted a Miranda right to counsel may waive that right. Our court, in Jackson v. United States, supra, has rejected the per se prohibition of questioning such a defendant absent counsel. Accordingly, here, as there, we turn to Michigan v. Mosley, supra, for an analogous basis for analysis.
In Mosley the Supreme Court ruled that a defendant could, in some circumstances, waive a Miranda right to silence after it had been asserted. However, it carefully delineated the relevant facts controlling its decision that a voluntary waiver had been made. As a threshold matter it held that the basic objective was to assure that an in-custody defendant's assertion of a right to remain silent was scrupulously honored. "To permit the continuation of custodial interrogation after momentary cessation would clearly frustrate the purposes of Miranda." Mosley, supra, 423 U.S. at 102, 96 S.Ct. at 325-326. It identified the "critical safeguard" to counteract the coercive pressures of the custodial setting as a person's right to cut-off questioning. Id. at 103, 96 S.Ct. at 326.
The Mosley Court held that the defendant's rights had been scrupulously honored, therefore the confession was admissible.[19]*49 The court relied on the following factors: (1) before the first questioning of the defendant, he was carefully advised of his Miranda rights, which he orally acknowledged; (2) the police immediately ceased questioning defendant when he indicated he wished it to stop, and made no attempt to resume questioning or ask him to reconsider; (3) there was a two hour break between the first interrogation and the second, performed at a different location, by a different officer, about a different crime; (4) a full and complete set of Miranda warnings were given before the second questioning began, including a full and fair opportunity for the defendant to examine his options; (5) finally, the subsequent questioning did not undercut the defendant's previous decision to remain silent because it involved an unrelated offense. Id. at 104, 96 S.Ct. at 326-327.
Courts faced with a Miranda second-level right-to-counsel issue have turned to these Mosley factors in determining whether a defendant's rights were scrupulously honored. See, e. g., Peoples v. United States, D.C.App., 395 A.2d 41 (1978) (in applying the "scrupulously honored" standard where counsel was requested, the court looked to the circumstances summarized in Mosley: the confession was deemed voluntary where the defendant was re-questioned only after appearing before a judicial officer and being given fresh Miranda warnings, the defendant requested the second interview, and six hours had elapsed); In re T.T.T., D.C.App., 365 A.2d 366, 369 n.3 (1976) (agreed with trial court's conclusions that tape-recorded statement was not voluntary where re-questioning related to same offense and investigation); People v. Grant, 45 N.Y.2d 366, 408 N.Y.S.2d 429, 380 N.E.2d 257 (1978) (rights were not scrupulously honored where second interrogation began only ten minutes after defendant exercised right, defendant was not given opportunity to obtain counsel, and officer's statement in interim was calculated to persuade defendant to reconsider); United States v. Clayton, 407 F.Supp. 204 (E.D.Wis.1976) (rights not scrupulously honored where defendant was twice questioned within an hour by the same officer concerning the same crime, having asserted his right to silence during the first questioning); Commonwealth v. Watkins, 375 Mass. 472, 379 N.E.2d 1040 (1978) (applying "scrupulously honored" standard to request for counsel, confession was found admissible where questioning ceased, the defendant was given an opportunity to call counsel, and renewed questioning was initiated by defendant).
The proper analysis here must begin with an inquiry as to whether the defendant's right to cut-off questioning was scrupulously honored, guided by the Mosley decision. See Calaway v. United States, D.C.App., 408 A.2d 1220, 1225 (1979). Only if that determination is answered affirmatively can we consider the matter of whether the waiver was itself voluntary as defined by Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). See In re C.P., supra at 650 (dissenting opinion); State v. Nash, 407 A.2d 365, 367 (N.H.1979); People v. Grant, 45 N.Y.2d 366, 408 N.Y.S.2d 429, 380 N.E.2d 257 (1978).[20]
We are met at the outset by the trial court's conclusion that appellee voluntarily and spontaneously chose to speak. It *50 is true that in reviewing the court's findings in a motion to suppress, we must accept its resolution of conflicting testimony,[21] and will not disturb the factual findings so long as they are supported by substantial evidence.[22] On the facts of this case, we conclude as a matter of law that appellee's rights were not scrupulously honored. That being the case we do not reach the question of whether her subsequent waiver was voluntary. Because her rights were not scrupulously honored, Miranda and Mosley require the exclusion of the statement.
In the trial court's words, the police were dealing with "a criminally naive and unsophisticated defendant." She was taken in handcuffs to homicide headquarters, and placed in a room, incommunicado, for questioning. Her children were taken separately for questioning; she was not allowed to talk to them. She was visibly upset about the incident, and fearful for the condition of the victim. In this environment, she asserted her Miranda right not to be questioned without the presence of an attorney.[23] The detective stated that the police knew she had stabbed the victim. He did nothing to acknowledge her request for counsel other than to get a different form.
Q. My question is after she put "no" on this side of the card and signed it after she put "no" to question number four, did you tell her you'd have an attorney appointed for her if she couldn't afford one?
A. No.
Q. After she put "no" on it there, did you tell her you would call an attorney and have him come down right away?
A. No.
When she asked the purpose for the other form she was told she was going to jail. After a few more moments of reflection, appellee began to talk. The officer did not stop her and re-advise her under Miranda. When he did stop her and ask if she was willing to make a written statement, he made no special inquiry into why she was now willing to talk without a lawyer.
Q. Did you ever try to explain to hertry to ask her or explain to her why she was willing to change her mind when she had put "no" on the 47?
A. No.
Q. You never orally advised her you would get an attorney down to the office before she made any statement if she wanted one?
A. No, sir.[[24]]
After only eighteen minutes, appellee began dictating a statement to the detective.
*51 These facts compel a conclusion that appellee's rights were not scrupulously honored. Indeed, none of the Mosley factors were present here: interrogation did not cease; there was no significant break; no change of parties, place, or subject matter; and most significantly, there was no new complete set of Miranda warnings before the defendant was well into her oral statement.[25]
Our conclusion that appellee's rights were not scrupulously honored is reinforced by the recent Supreme Court decision of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In that case, the Supreme Court for the first time identified what police conduct constituted the functional equivalent of "interrogation" for purposes of Miranda. The court concluded that the Miranda safeguards apply to any words or actions by police made to the defendant that they should know are reasonably likely to elicit an incriminating response. Id., 100 S.Ct. at 1689. The court noted in a footnote "where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect." Id., 100 S.Ct. at 1690 n.7. The court went on to hold that a casual remark from one officer to another in the presence of the defendant did not amount to prohibited interrogation as thus defined.
We have a different situation here. After appellee asserted her Miranda right to counsel, Detective Forbes followed up with the statement "we know what happened" or "we know you are responsible for the stabbing." No one else was present. At the suppression hearing, the following inquiry took place during the cross-examination of Detective Forbes:
Q. Why did you tell her that [we know what happened]?
A. I was typing up the 163.
Q. To try to get her to talk?
A. That could be a technique I could use, yes.
Q. Was that a technique you used in this case?
A. I would have to say honestly, yes it was.
These facts, in light of Innis, are contrary to the court's conclusion that nothing done by the detective constituted interrogation. We view this as conclusively demonstrating that the police did not scrupulously honor appellee's request not to talk without a lawyer present.[26] Even without the admission by Detective Forbes, the events here suggest those coercive circumstances prohibited by Miranda. Detective Forbes' admission buttresses our conclusion as a matter of law that appellee's rights were not scrupulously honored within the meaning of Mosley and footnote 7 in Innis. Interrogation of appellee continued after assertion of her Miranda rights. We thus disagree with the trial judge's conclusion that the appellee was not interrogated within the meaning of Miranda and that her rights were scrupulously honored.
*52 In our view, Mosley provides the only guidance by which a court can even reach the voluntariness issue. Since we conclude that appellee's rights were not scrupulously honored, her ensuing confession was not voluntary for Fifth Amendment purposes.[27] Because we find appellee's Fifth Amendment rights to have been violated, the statements are properly suppressed on that basis. We need not address the Fourth Amendment analysis relied upon by the trial judge.
III.
The government contends that the trial court also erred in compelling disclosure of the grand jury testimony of appellee's daughter, Linda.[28] More specifically, the government 1) questions the authority of the trial court, arguing that the Jencks Act (18 U.S.C. § 3500 (1970)) limits disclosure to the period following the trial testimony of a government witness, and 2) in any event, appellee failed to establish the requisite need justifying disclosure.
We do not reach the government's first argument.[29] Instead, we assume solely for purposes of this appeal that the Jencks Act does not preempt trial court discretion to order pretrial discovery of grand jury statements of government witnesses pursuant to Super.Ct.Cr.R. 6(e). As to Fed.R. Crim.P. 6(e) (substantially identical to our Rule 6(e)) it is clear that the decision whether to release grand jury transcripts is committed to the discretion of the trial judge. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240-1241, 3 L.Ed.2d 1323 (1958). See also Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). The question thus becomes whether the trial judge abused his discretion in holding that the appellee had demonstrated a particularized need sufficient to outweigh the strong policy in favor of grand jury secrecy. We agree with the government that the trial judge abused his discretion.
Appellee argues that like the testimony of the witnesses in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), Linda's testimony may be critical to a determination of what occurred on the day in question. The defense is seriously *53 considering calling her as a witness. The grand jury transcript is sought to refresh her recollection as to details that might support appellee's theory of self defense and to give Linda "time, away from the pressure of the actual trial, to think about [her] earlier testimony and to explain any confusions, misunderstandings, or inconsistencies which might exist between [her] earlier testimony and [her] present recollection of the facts."
In its appeal of the order granting disclosure, the government points to the strong emotional bond between appellee and her daughter and the statement by the defense that Linda does not "wish to do anything that would harm [her] mother" (Appellee's Supporting Memorandum at 6). It is concerned that the defense seeks pretrial access in order to defuse or explain away any conflicts between the child's grand jury testimony and the testimony the child may now be prepared to give at trial. Alternatively, the government suggests that perhaps the appellee is seeking pretrial disclosure in order to conform her testimony to the earlier grand jury statements of her daughters.[30]
The trial judge held that the need to prepare a defense witness for trial was generally insufficient under the Dennis standard to warrant disclosure of the witness' grand jury testimony. However, under the unique circumstances of this case, the child's age, her inability to remember her testimony and the particular facts of the case were factors which required pretrial disclosure.
The order noted in a footnote that from the jury's perspective the difference between an unjustified homicide and a killing in self defense may turn on "the most subtle shadings of the facts." Therefore, it was important to give both sides access to all relevant information.
Johnson v. United States, D.C.App., 398 A.2d 354 (1979) sets out the elements an appellate court must consider when it reviews an exercise of discretion by the trial judge. They include: 1) whether the particular determination was committed to the trial court's discretion; 2) if the trial court recognized its discretionary powers, did it purport to exercise them; 3) whether the record reflected sufficient facts upon which the determination was based; 4) whether the trial court exercised its discretion erroneously; and 5) where the trial court exercised its discretion erroneously, whether the magnitude of the error requires reversal.
Our review of this record indicates that the trial judge recognized his discretionary powers under Super.Ct.Cr.R. 6(e) and had a sufficient factual basis upon which to make a determination. In considering, however, whether he exercised that discretion erroneously we must determine whether he relied on improper factors. In the context of a motion for pretrial disclosure of grand jury testimony, the test is whether the party seeking disclosure has established a particularized need that outweighs time-worn considerations. Thus it is that grand jury proceedings have traditionally been kept secret. See United States v. Procter & Gamble, 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958); Pittsburgh Plate Glass Co. v. United States, supra, 360 U.S. at 399-400, 79 S.Ct. at 1241. Yet, the courts have recognized that in some cases justice requires the production of discrete portions of the transcripts for use in judicial proceedings. Procter & Gamble, supra; Dennis v. United States, supra. The burden is on the parties seeking disclosure to "show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request *54 is structured to cover only material so needed." Douglas Oil Co. v. Petrol Stops Northwest, supra, 441 U.S. at 222, 99 S.Ct. at 1674.
The Supreme Court in Procter & Gamble, supra, 356 U.S. at 683, 78 S.Ct. at 987, viewed the release of grand jury testimony to refresh a witness' recollection as a sufficient particularized need. In the instant case, however, appellee does not contend that the child cannot remember the day in question. Appellee admits that the child has maintained a reasonably consistent version of the events of April 13, 1979. Appellee states, however, that the child cannot recall her grand jury testimony. Therefore, the only context in which Linda, as a defense witness, would have use for her grand jury testimony before trial would be to think about and explain any inconsistencies between that grand jury testimony and her present recollections. Such a use is not a particularized need sufficient to out-weigh the need for grand jury secrecy. To the extent that the trial court invoked the age of the witness and the inability to recall what she had previously said as justifying disclosure, he was relying upon improper factors. See Johnson, supra at 365. Put another way, in the absence of a demonstrated need for a transcript of grand jury testimony to refresh recollection, it is improper to demand access to that testimony solely for the purposes of avoiding impeachment, irrespective of the witness' age.
With respect to details in Linda's grand jury testimony which might support a self-defense theory, we note that appellee through a proper motion may request exculpatory material within the possession of the government. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
We also note that Linda is expected to be called as a government witness. At the close of direct examination by the government, the relevant portion of her grand jury testimony will be made available to the defense in accordance with the Jencks Act.[31]
Since exculpatory material may be sought through a Brady request and the relevant portion of the child's grand jury testimony will be available at the close of direct examination by the government, we see no reason for compelling pretrial release of Linda's grand jury testimony. The child's recollection of the events of April 13th has remained consistent. Appellee has not made a showing that the testimony is needed at this juncture. We hold as a matter of law that the appellee did not demonstrate a particularized need justifying disclosure of the child's grand jury testimony and thus the trial judge abused his discretion in ordering disclosure.
The trial court's order suppressing evidence is affirmed for reasons other than those relied upon. The trial court's order compelling disclosure of grand jury testimony is reversed.
So ordered.
NOTES
[1] D.C.Code 1973, § 23-104(a)(1).
[2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[3] The trial court also suppressed tangible evidence. The government has not appealed that decision.
[4] The trial judge did not have the benefit of the reasoning of the Supreme Court's decision in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) decided while this appeal was pending.
[5] The victim died later that same day.
[6] Ms. Alexander had stated she did not see exactly what happened, and later, that the injured woman had walked up the steps and then back down to where she fell. However, Detective Chaney observed only one trail of blood. In his eight years of experience, he thought it unlikely that the victim had stabbed herself.
[7] In the meantime, as a result of questioning appellee's two daughters, the police learned where the knife used in the incident was located. Crime scene examination officers returned to appellee's home and, without a warrant or consent, entered and retrieved the weapon. The trial court ruled the knife suppressed under Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), the government does not appeal this ruling.
[8] PD 47 METROPOLITAN POLICE DEPARTMENT REV. 8/73 WARNING AS TO YOUR RIGHTS.
You are under arrest. Before we ask you any questions, you must understand what your rights are.
You have the right to remain silent. You are not required to say anything to us at any time or to answer questions. Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before we question you and to have him with you during questioning.
If you cannot afford a lawyer and want one, a lawyer will be provided for you.
If you want to answer questions now without a lawyer present you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
WAIVER
1. Have you read or had read to you the warning as to your rights? Yes
2. Do you understand these rights? Yes
3. Do you wish to answer any questions? Yes
4. Are you willing to answer questions without having an attorney present? No
5. Signature of defendant on line below. /s/ Vivian Alexander
6. Time 12:22 Date 4-13-79
7. Signature of officer /s/ David C. Forbes
8. Signature of witness /s/ Robert L. Chaney
[9] He admitted at the hearing that this was an interrogation technique designed to get her to talk.
[10] The only question regarding her earlier assertion of a right to have counsel present was the following:
Q. Mrs. Vivian Alexander when I advised you of your rights before and when you answered question number 4 on the back of the rights card you answered No but now you tell me that you want to tell me what happened is that correct?
A. Right.
[11] We do not know from this record the precise time at which each of these events occurred. We do know that only eighteen minutes elapsed between the time appellee was first arrested and asserted her Miranda right to counsel and the time Detective Forbes began taking the formal written statement.
[12] Ms. Alexander, who had a twelfth grade education, had been arrested only once before for a traffic violation; she had never worked in the criminal justice system.
[13] The court considered the following Brown factors: (1) the temporal proximity of the arrest and the confession; (2) the presence of a significant intervening agent; and particularly, (3) the purpose and flagrancy of the official misconduct. 422 U.S. at 603-04, 95 S.Ct. at 2261-2262.
[14] See also Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).
[15] For our court cases addressing first level Miranda rights, see, e. g., Taylor v. United States, D.C.App., 380 A.2d 989 (1977); In re T.T.T., D.C.App., 365 A.2d 366 (1976) (trial court found that appellant did not assert Miranda rights during questioning).
[16] For our court cases addressing second level Miranda rights, see, e. g., Calaway v. United States, D.C.App., 408 A.2d 1220 (1979); Jackson v. United States, D.C.App., 404 A.2d 911 (1979); In re W.B.W., D.C.App., 397 A.2d 143 (1979); Peoples v. United States, D.C.App., 395 A.2d 41 (1978), cert. denied, 442 U.S. 911, 99 S.Ct. 2826, 61 L.Ed.2d 277 (1979). See also, Taylor v. United States, supra (defendant, having made statement to one detective, refused to talk to another detective without attorney).
[17] We have found useful recent decisions of the highest courts of New Hampshire and New York, setting forth this analysis. See State v. Nash, 407 A.2d 365, 367 (N.H.1979); People v. Grant, 45 N.Y.2d 366, 408 N.Y.S.2d 429, 380 N.E.2d 257 (1978). See also, In re C.P., D.C. App., 411 A.2d 643 (1980) (Ferren J., dissenting), vacated and remanded, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), in light of Rhode Island v. Innis, supra. For helpful discussions of the issues raised in this case see generally Grano, Rhode Island v. Innis: A Need to Reconsider the Constitutional Premises Underlying the Law of Confession, 17 Am.Crim.L. Rev. 1 (1979); Kamisar, Brewer v. Williams, Massiah, and Miranda: What is "Interrogation"? When Does it Matter? 67 Geo.L.J. 1 (1978); Note, Fifth Amendment, Confession, Self-IncriminationDoes a Request for Counsel Prohibit a Subsequent Waiver of Miranda Prior to the Presence of Counsel? 23 Wayne L.Rev. 32 (1977).
[18] See Michigan v. Mosley, supra, 423 U.S. at 109-10 & n.2, 96 S.Ct. at 329 & n.2 (White J., concurring) ("The accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities' insistence to make a statement without counsel's presence may properly be viewed with skepticism"); Rhode Island v. Innis, supra, 100 S.Ct. at 1688 n.2; Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 reh. denied, 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979) (in declining to view a request for probation officer as the equivalent to a request for counsel, the Court said "[t]he per se aspect of Miranda was thus based on the unique role the lawyer plays in the adversary system of criminal justice in this country.... [T]he lawyer is the one person to whom society as a whole looks as the protector of the legal rights of that person in his dealings with the police and the courts." Id. 442 U.S. at 719, 99 S.Ct. at 2569. United States v. Rodriguez-Gastelum, 569 F.2d 482, 489 (9th Cir.) (en banc), (Hufstedler, J., dissenting), cert. denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978). Cf. People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360 (1980) (noting that the Supreme Court has yet to rule on this issue, court holds under state constitution that suspect in custody who requests assistance of counsel may not be questioned further absent counsel.) But see United States v. Rodriguez-Gastelum, supra (majority rejects per se rule); Jackson v. United States, supra; State v. Monroe, 101 Idaho 251, 611 P.2d 1036 (1980) (rejects per se rule against questioning in absence of counsel a suspect who has requested counsel); Commonwealth v. Watkins, 375 Mass. 472, 379 N.E.2d 1040, 1048 (1978).
[19] On Mosley's facts, there was no other issue regarding the voluntariness of the waiver, once it was determined that the defendant's rights were scrupulously honored. The opinion is thus silent regarding the appropriate standard, if any, to be applied in making this determination. Miranda itself suggests that the Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) standard is warrantedwhether there has been "an intentional relinquishment or abandonment of a known right or privilege." Id. at 464, 58 S.Ct. at 1023. See Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1628. If waiver of the right to counsel is applicable at all surely this more stringent standard must be applied. See also Jackson v. United States, supra at 922; State v. Nash, supra at 368, (not only is the assertion of any right generally treated to more stringent judicial scrutiny than the first level warnings, but even stricter standards adhere where there is an assertion of the right to counsel).
[20] In that event, the government bears a "greater burden than when it attempts to show a waiver of the right to remain silent." Jackson v. United States, supra at 922; In re C.P., supra at 650 (dissenting opinion); Shreeves v. United States, D.C.App., 395 A.2d 774 (1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979); State v. Nash, supra at 368.
[21] United States v. Lyon, D.C.App., 348 A.2d 297 (1975); United States v. McNeil, 140 U.S. App.D.C. 3, 433 F.2d 1109 (1969).
[22] D.C.Code 1973, § 17-305(a).
See In re W.B.W., supra (in answering question of whether defendant's right to cut off questioning was scrupulously honored, court examined whether there was substantial evidence supporting that conclusion); Taylor v. United States, supra (conclusion that statements were voluntary is supported by substantial evidence); Calaway v. United States, supra (after assuring that there was a factual predicate for concluding that defendant's rights were scrupulously honored, and substantial evidence existed to support voluntariness conclusion, trial court affirmed); Peoples v. United States, supra (trial court's findings of voluntariness and waiver affirmed as they have substantial support in the evidence).
See also Jackson v. United States, supra (reversed trial court's conclusion that defendant intentionally waived rights when he spontaneously began to talk; insufficient findings on intentional and knowing relinquishment); In re T.T.T., supra (reversed trial court's conclusions that juvenile's statements were the product of adolescent fright; apparently accepted trial court's findings of fact, but rejected legal conclusions).
[23] She obviously had no inkling of how to obtain an attorney, or what would transpire next.
[24] Indeed, the New York court in People v. Grant, supra, 408 N.Y.S.2d at 434, 380 N.E.2d at 262, relied heavily on just this factor in ruling that the defendant's rights were not scrupulously honored, noting that the "authorities did not afford the defendant an opportunity to obtain the assistance of counsel," and that this "conduct was completely inconsistent with the defendant's request because [the arresting officer] took no steps to afford the defendant an opportunity to obtain an attorney's assistance." Id., 408 N.Y.S.2d at 435, 380 N.E.2d at 263.
[25] Accord People v. Grant, supra (rights not scrupulously honored where only ten minutes between exercising right to have counsel present and second interrogation, even though readvised, where officer in interim gave defendant a fuller "explanation" of case against him); State v. Wiberg, 296 N.W.2d 388 (Minn.1980).
[26] Accord State v. Durand, 206 Neb. 45, 293 N.W.2d 383 (1980) (showing the defendant police reports of other crimes after assertion of Miranda right constituted functional equivalent of interrogation; defendant's choice was not scrupulously honored); Commonwealth v. Brant, ___ Mass. ___, 406 N.E.2d 1021, cert. denied, ___ U.S. ___, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980) (where authorities "hoped and expected" that defendant would change mind and make a statement as a result of their further statements and a private interview with codefendant, defendant was "interrogated"; defendant's right not scrupulously honored). Cf. Harryman v. Estelle, 616 F.2d 870 (5th Cir. 1980) (en banc) (pre-Miranda warning question by officer that elicited incriminating response was not merely an "exclamation of surprise", but was interrogation).
But see State v. Jones, 386 So.2d 1363 (La. 1980) (suspect, accused of murdering his infant son merely changed mind after invoking right to counsel; subsequent statement by officer that "God takes care of little babies" was in the nature of consolation, rather than interrogation).
[27] We nonetheless note that the trial court applied the incorrect standarddid defendant voluntarily, knowingly and intelligently waive her rights. That standard is correct for a determination of first level Miranda waiver, see Fare v. Michael C., supra; North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). For second level waiver, the stricter Zerbst standard is applicablean intentional relinquishment or abandonment of a known right or privilege. See Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977); Jackson v. United States, supra at 922; Shreeves v. United States, supra.
[28] On September 14, 1979, appellee moved to compel pretrial disclosure of the grand jury testimony of her two daughters, Linda (age nine at the time of the stabbing) and Bridgette (age seventeen at the time of the stabbing). Both daughters were inside the house at the time of the stabbing and testified before the grand jury. The government anticipates calling the girls as witnesses at trial. Defense counsel is considering calling the girls as witnesses. The motion to compel asserted that the grand jury testimony was required "to adequately prepare the daughters to become witnesses at the trial." The trial court ordered the pretrial disclosure of Linda's grand jury testimony not later than three days before trial. It denied pretrial disclosure of Bridgette's testimony because the court was not persuaded that a seventeen-year-old could not recall the events of the day in question or her grand jury testimony.
[29] The government contends that the 1970 amendment to the Jencks Act precludes a trial court from ordering pretrial disclosure of the grand jury testimony of a prospective government witness. The trial court rejected this argument.
This court has never ruled squarely on this question and we refrain from doing so now. The federal courts are split on the question. See, e. g., United States v. Tager, 481 F.2d 97, 100 (10th Cir. 1973), cert. denied, 415 U.S. 914, 94 S.Ct. 1410, 39 L.Ed.2d 469, reh. denied, 416 U.S. 952, 94 S.Ct. 1962, 40 L.Ed.2d 302 (1974) ("[u]nder the 1970 amendment to 18 U.S.C. § 3500, the defendant has no right to pre-trial discovery of statements made by government witnesses to the grand jury" (footnote omitted); United States v. Budzanoski, 462 F.2d 443, 454 (3rd Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 271, 34 L.Ed.2d 220 (1972) (the 1970 amendment to the Jencks Act does not affect pretrial discovery of grand jury testimony).
[30] The trial judge characterized the government's concern that the defendant might exert undue influence over her daughters as an "unsupported assertion." While finding no evidence that the defense had attempted to tamper with the witnesses (see Allen v. United States, 390 F.2d 476, 480 (D.C.Cir. 1968)), the trial court recognized that with the passage of time the possibility exists that the children's testimony may become less favorable to the government. This possibility exists due to the continued close relationship between appellee and her children and quite apart from the disclosure of the grand jury testimony.
[31] Appellee, in a supplementary memorandum, suggests that there is authority for the proposition that Fed.R.Crim.P. 26.2 (effective December 1, 1980) makes it clear that the court has the authority to order production of Jencks material at any time. See United States v. Algie, 503 F.Supp. 783 amended at 799 (E.D. Ky.1980). In view of our disposition of this case, we do not address ourselves to this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261607/ | 285 Pa. Superior Ct. 548 (1981)
428 A.2d 181
INTERNATIONAL LANDS, INC., Appellant,
v.
Bernard FINEMAN.
Superior Court of Pennsylvania.
Argued January 5, 1981.
Filed April 3, 1981.
*549 Howard Wallner, Philadelphia, for appellant.
Abraham A. Leizerowski, Philadelphia, for appellee.
Before PRICE, WIEAND and HOFFMAN, JJ.
WIEAND, Judge:
This is an appeal from an order which opened but refused to strike a judgment entered by default. Appellant contends that it was error to open the judgment. Appellee suggests that the default judgment was improperly entered and should have been stricken. We agree that the judgment was improperly entered and will enter an appropriate order.
*550 On March 29, 1979, the appellant, International Lands, Inc., commenced an action in assumpsit against the appellee, Bernard Fineman. On April 20, 1979, after service of the complaint had been made, appellee filed preliminary objections. These preliminary objections were not pursued in the manner required by Philadelphia Civil Rule 140(E),[1] and on June 4, 1979, they were dismissed for lack of prosecution. The order dismissing appellee's preliminary objections was entered on the docket on June 7, 1979, and on the very same day appellant caused a default judgment to be entered against appellee. On June 12, 1979, appellee moved to strike or open the judgment. Depositions were taken, and by order dated October 4, 1979, appellee's motion was granted. An amended order was filed on October 11, 1979 to remove ambiguity in the earlier order and specify that the relief being granted was to open the judgment, not strike it. International Lands, Inc. took the instant appeal.
This brief recitation of facts demonstrates unequivocally the impropriety of the default judgment which was entered against appellee. Pa.R.C.P. No. 1028(d) provides that where preliminary objections are overruled, "the objecting party shall have the right to plead over within twenty (20) days after notice of the order or within such other time as the court shall fix." The rule is no different where preliminary objections are dismissed for failure to prosecute them. Where preliminary objections are overruled or dismissed, for whatever reason, the objecting party has a period of twenty days, or such other period as the court may direct, within which to file a responsive pleading. This right to plead over when preliminary objections are dismissed is absolute. Taylor v. Seckinger, 191 Pa.Super. 70, 73, 155 A.2d 419, 421 (1959); Northvue Water Co., Inc. v. Municipal Water & Sewer Authority of Center Township, 7 Pa. Cmwlth. 141, 146, 298 A.2d 677, 680 (1972); Goodrich-Amram 2d, § 1028(d):1. During that period a default judgment *551 cannot validly be entered against the objecting party. Yanko v. Donaldson (No. 2), 31 North.Co.Rep. 173 (1948).
In the instant case, the time within which to file an answer was not fixed by the court which dismissed appellee's preliminary objections. The applicable time, therefore, was twenty days. A default judgment entered within that period was fatally defective.
Where, as here, a fatal defect in a default judgment appears on the face of the record, the judgment is properly stricken. Link v. House of Fulmer, Inc., 262 Pa.Super. 275, 396 A.2d 752 (1978). Because appellant's judgment is patently defective and must be stricken, we find it unnecessary to review the reasons given by the trial court for opening the judgment.
The default judgment is stricken, and the case is remanded for the entry of an order granting appellee an appropriate period within which to file a responsive pleading to appellant's complaint.
NOTES
[1] Philadelphia Rule 140(E) requires that a party filing preliminary objections place the same before the Motion Court by filing a praecipe, memorandum of law and proposed order within twenty days after the preliminary objections have been filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321139/ | 124 S.E.2d 345 (1962)
Pansy Ruth CAMPBELL
v.
Clifford CAMPBELL et al.
No. 12122.
Supreme Court of Appeals of West Virginia.
Submitted January 24, 1962.
Decided February 27, 1962.
*347 Chester Lovett, Sam D. Lopinsky, Charleston, for plaintiffs in error.
Kay, Casto & Chaney, John S. Haight, John E. Davis, Charleston, for defendant in error.
*346 HAYMOND, Judge.
This is an action of trespass on the case instituted in the Court of Common Pleas of Kanawha County in April, 1957, in which the plaintiff, Pansy Ruth Campbell, seeks to recover damages for personal injuries which she alleges were caused by the negligence of the defendants, Clifford Campbell and Jewell Campbell, his wife, in connection with an automobile collision which occurred during the evening of July 15, 1956, in Kanawha County, West Virginia.
To the declaration of the plaintiff the defendants filed a plea of release, and to the plea of release the plaintiff filed a replication. Upon the trial of the case the jury returned a verdict of $12,000.00 in favor of the plaintiff and the trial court rendered judgment in that amount on September 24, 1959. Upon writ of error the Circuit Court of Kanawha County affirmed the judgment of the court of common pleas on February 27, 1961, and to that judgment this Court granted this writ of error and supersedeas upon the application of the defendants.
Between nine o'clock and nine thirty o'clock in the evening of Sunday, July 15, 1956, the plaintiff, Pansy Ruth Campbell, operating a 1955 Pontiac automobile owned by her husband, accompanied by her son, an infant of tender years, was proceeding toward Charleston on U. S. Highway No. 21 a short distance behind another automobile operated by Arthur J. Summers. At or near the intersection of Sugar Creek Road with U. S. Highway No. 21 the driver of the Summers automobile stopped it for the purpose of making a left turn into the Sugar Creek Road. According to the testimony of the plaintiff she stopped the automobile driven by her at a distance of about five feet behind the Summers automobile and within about a minute and a half after *348 she had stopped her automobile it was struck from the rear by an automobile driven by the defendant, Jewell Campbell. The impact of the collision knocked the automobile in which the plaintiff was riding into the Summers automobile and forced it completely across the left side of the road. In the collision the automobile driven by the plaintiff was damaged and the plaintiff, who was thrown against the seat of her automobile which was broken by the impact, received injuries which produced pain in her back and her neck.
The plaintiff, who was employed as a cashier or checker at a Kroger Company market, worked at her employment the day after the collision but while at work experienced pain in her back and her neck. The second day after the collision she was unable to return to her work and on that day, July 17, 1956, at the clinic in the Charleston General Hospital, she consulted and was examined by her family physician who prescribed treatment of heat and hot baths. She consulted this doctor again two or three months after the collision but received no relief from the recommended treatment. On January 15, 1957, six months after her injury, an X-ray having been taken under the direction of a second doctor, she consulted a third doctor, who prescribed substantially the same method of treatment for the pain and discomfort which the plaintiff experienced in her back and in the area of her spine. The treatment prescribed by the third doctor, an orthopedic surgeon, likewise resulted in no relief to the plaintiff, and on February 13, 1957, she consulted a fourth doctor, a general practitioner, who diagnosed her condition as an old injury to the coccyx and lumbosacral strain. On February 18, 1957, he performed a surgical operation which resulted in the removal of the two lower segments of the coccyx of the plaintiff who after the surgery was hospitalized for a period of about nine days.
The plaintiff contends and the defendants deny that the injury to the coccyx was caused by the collision. On this point the medical testimony is in conflict. It appears that except for her absence on July 17, 1956, the plaintiff was regularly employed during the period July 1956 to January 1957 but that from January to June or July 1957 she was unable to work during a large part of the time. The plaintiff testified that as a result of her injury and her surgical operation she was unable to work at her employment for a total period of twenty four weeks.
Though the defendant, Jewell Campbell, who at a speed of approximately thirty five to forty miles per hour was following the automobile driven by the plaintiff, admitted that the automobile driven by her collided with the rear of the automobile driven by the plaintiff, her testimony was to the effect that the automobile driven by the plaintiff was moving or did not stop for "any length of time at all" before the collision; that the automobile driven by the plaintiff suddenly "cut off the road and I cut off the road behind her and in the dust and everything we got back on the road and I hit her."; and that before this occurred the automobile driven by the plaintiff went on the berm to the right, returned to the road, and the defendant then returned to the road and struck the automobile in front of her.
Sometime in July after the collision the plaintiff and Brock, an insurance investigator who represented the defendants, conferred about a settlement of the claims of the plaintiff and her infant son arising from the collision. The plaintiff went to the office of the investigator on two occasions and the matter of settlement was discussed. At one or perhaps both of these meetings the husband of the plaintiff was also present. Following their negotiations for settlement of the claims and according to an arrangement between Brock and the plaintiff and her husband they met on the morning of August 18, 1956, at the place of business of the Park Pontiac agency in Charleston, where the damaged automobile driven by the plaintiff had been originally purchased and had been taken to be repaired. At that time and place written releases, on printed forms supplied *349 and prepared by Brock, the provisions of which completely released all claims of the plaintiff and her husband individually and as parents of their infant son resulting from the collision, were signed by the plaintiff and her husband in the presence of a subscribing witness and were acknowledged by them before a notary public.
The consideration for the parental release which was paid by check was $43.00 and consisted of a charge of $15.00 by a physician who examined the infant, a hospital bill of $18.00, and an additional item of $10.00 for the infant. The consideration for the release covering the claim of the plaintiff signed by the plaintiff and her husband was $460.02, which was also paid by check payable to them and Park Pontiac agency and enabled the plaintiff and her husband to obtain possession of the repaired automobile, consisted of the repair bill of $354.96, the amount of wages lost by the plaintiff for one day of $13.88, a doctor bill of $3.00 which had been paid by the plaintiff, and the additional amount of $88.18, all of which, except the repair bill of $354.96, was accepted and retained by the plaintiff and her husband until the case was called for trial. That release began with the statement in large print "GENERAL RELEASE, HUSBAND AND WIFE" and both releases contained the statement, also in large print, before the space for signature, "CAUTION: READ BEFORE SIGNING.". When the case was called for trial the plaintiff offered to repay and tendered the sum of $460.02 to the defendants who refused to accept the amount of the tender.
Though there is no allegation in the replication of the plaintiff that the release signed by the plaintiff and her husband on August 18, 1956, was procured by fraud upon the part of the representative of the defendants, it is clear from the evidence introduced in behalf of the plaintiff that her attack upon the validity of the release is based on fraud. Evidence, admitted without objection, which is not technically within the pleadings is properly in the case for all purposes, and may be considered, although it would have been excluded had objection been made. 88 C.J.S. Trial § 150, Note 56. In Rosser-Moon Furniture Company v. Harris, 191 Okl. 607, 131 P.2d 1004, the court held in point 2 of the syllabus that "Evidence, inadmissible because not within the issues presented by the pleadings, which is admitted without objection, is to be considered and given the same force and effect as if it were legally admissible." In Smith v. Townsend, 21 W.Va. 486, this Court held in point 2 of the syllabus that "If no account of payments is filed with the plea of payment, under sec. 4, ch. 126 of Code of W.Va. no proof can be given by the defendant of any partial payments; but if without objection on the part of the plaintiff the defendant does prove such partial payments, the jury may properly consider such proof and base their verdict upon it." As a general rule when inadmissible evidence is permitted to be introduced without objection, the court and jury may give it the probative effect and value to which it is entitled, notwithstanding it would or should have been excluded if proper objection had been made. 53 Am.Jur., Trial, Section 135; 88 C.J.S. Trial § 150a. See also The Chesapeake and Ohio Railway Company v. Johnson, 137 W. Va. 19, 69 S.E.2d 393; Magruder v. Hagen-Ratcliff and Company, 131 W.Va. 679, 50 S.E.2d 488. Under the foregoing authorities the evidence relating to fraud in the procurement of the release, not having been objected to, became a part of the evidence in the case.
Although there is some conflict in the evidence relating to the procurement of the release and its intended scope and operation with respect to its validity as a bar to the right of the plaintiff to recover for the injuries of which she complains, numerous material facts and circumstances with relation to the release are admitted or established by undisputed testimony. The principal conflicts in the evidence relate to the conversation between the plaintiff and her husband and Brock, the place where such conversation occurred, and their conduct *350 in connection with the execution of the releases by the plaintiff and her husband at the Park Pontiac place of business.
The plaintiff and her husband testified that the conversation took place on the sidewalk outside the office in which the releases were signed; that the plaintiff told Brock that she did not want to sign a complete release for the reason that her mother on a previous occasion was involved in an accident and "had trouble over that"; that Brock told the plaintiff he had some papers for the plaintiff and her husband to sign to release the automobile from Park Pontiac because they did not have the money to release it; that the releases were not handed to the plaintiff or her husband and were not read by either of them; that the plaintiff relied upon the representation of Brock that the release applied only to the automobile; and that they did not know that the release was a general release of the claim of the plaintiff. The plaintiff also testified that Brock said "Mrs. Campbell, you have nothing to worry about. If something comes up you have got within a year to do something about it.", and that "As far as the baby is concerned, you can't do anything for him anyway as he is under age."; that neither she nor her husband was seated when they signed the releases which occurred within a period of two to four minutes; and that she and her husband and Brock completed the transaction in a hurry to enable them to return promptly to other work.
The plaintiff's husband testified, contrary to the testimony of his wife, that Brock "seated us down at the desk", and showed them where to sign the release. He also testified that he did not see the words "CAUTION: READ BEFORE SIGNING" before he signed the release, although she testified that "we just saw, `Caution: Read Before Signing.'". His testimony is silent concerning the statement of the plaintiff that Brock told her "You have nothing to worry about. If something comes up you have got within a year to do something about it."
Both the plaintiff and her husband admitted that the consideration of $460.02 for the release of the plaintiff's claim included her loss of wages for one day of $13.88 and the doctor bill of $3.00 paid by her, in addition to the cost of the repairs to the automobile, and the plaintiff admitted that at the time the release was signed on August 18, 1956, she had lost wages for only one day and had told Brock that the amount was $13.88; that when she signed the release she did not think she was seriously hurt; and that she believed her family physician who told her she "had nothing but a slight strain."
In his testimony Brock, a witness in behalf of the defendants, who prepared the releases and was present when they were signed, denied that the plaintiff told him that she wanted to make sure that she was not signing any release for personal injuries because of the unsatisfactory experience of her mother in connection with a release. He also stated that he did not tell the plaintiff that she "had nothing to worry about" and that if something came up she had within a year to do something about it, or that she could not do anything about the baby because he was under age; that he did not make any misrepresentation concerning the character or the contents of the releases; and that the plaintiff and her husband understood that they were general releases. He testified that a complete settlement and the amount of the consideration for each release was understood and agreed to between him and the plaintiff and her husband during the settlement negotiations at his office; that the items included in the consideration for each release were obtained and furnished to him by the plaintiff; that the estimate of the cost of the repairs to the automobile was $443.14, loss of wages for one day was $13.88 and a doctor bill was $3.00, and aggregated $460.02, which was the total amount of her claim; that the actual cost of the repairs to the automobile was less than the estimate of $443.14; that the reason he arranged to have the releases signed at the Park Pontiac place of *351 business was that he did not know the actual cost of the repairs until he went there for the purpose of obtaining the signatures of the plaintiff and her husband to the releases. He also testified that he completed the releases at that time and place; that they were given to the plaintiff and her husband, both of whom had the releases in their hands; that they looked at the releases and that it appeared to him that they read the releases before they signed them; that there has been no complaint about the release signed by the plaintiff and her husband as parents of their infant son; that both of them understood that the release with respect to the plaintiff's claim was to be a release of all claims and that the plaintiff and her husband were satisfied with the release. He further testified that during the settlement negotiations the plaintiff told him that she was all right and that she and her husband wanted to "go ahead and settle."
The credit manager of Park Pontiac agency, another witness in behalf of the defendants, who stated that his main interest was the payment of the cost of the repairs to the automobile, testified that according to his memory the plaintiff and her husband arrived first and waited for Brock in the show room and they came into his office together; that he did not recall who were seated and who were standing and did not remember much of the conversation that occurred; that the plaintiff and her husband signed the releases in his presence and that he affixed his signature as a witness; that the cost of the repairs to the automobile was $354.96, which was less than the estimate of approximately $400.00; that the cost of the repairs was paid by the draft for the release; that, according to his memory, Brock gave the releases to the plaintiff and her husband; that they had each of the releases in their hands; that they looked at them long enough to read them and that as far as he knew they read the releases, although they did not do so aloud; that any conversation between Brock and the plaintiff and her husband was of a peaceful nature and that he did not remember hearing any remark by the plaintiff to the effect that she did not want to sign the release unless it was only for damages to the automobile or that she would not give a release of any personal injury.
The defendants contend, in support of their assignments of error, that the trial court should have directed the jury to return a verdict for the defendants because the release is valid and binding upon the plaintiff and constitutes a bar to any recovery by the plaintiff for the injuries of which she complains; that the trial court should not have given but should have refused to give Instruction No. 1 and Instruction No. 2, offered by the plaintiff; that the trial court should not have refused but should have given Instruction No. 2, Instruction No. 3, Instruction No. 4 and Instruction No. 7, offered by the defendants; and that the verdict of the jury is excessive.
The evidence is sufficient to support the finding of the jury that the defendants were guilty of negligence which was the proximate cause of the injuries of which the plaintiff complains. When the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, questions of negligence and contributory negligence are for the jury. Graham v. Crist, W.Va., 118 S.E.2d 640; Overton v. Fields, W.Va., 117 S.E.2d 598; Lawrence v. Nelson, W.Va., 113 S.E.2d 241; Lewis v. Mosorjak and McDonald, 143 W.Va. 648, 104 S.E.2d 294; Workman v. Wynne, 142 W. Va. 135, 94 S.E.2d 665; Prettyman v. Hopkins Motor Company, 139 W.Va. 711, 81 S.E.2d 78; Davis v. Sargent, 138 W.Va. 861, 78 S.E.2d 217. It is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses regarding them is conflicting and the finding of the jury upon such facts will not ordinarily be disturbed by this Court. Graham v. Crist, W.Va., 118 S.E.2d 640; Overton v. Fields, W.Va., 117 S.E.2d 598; Lewis v. Mosorjak and McDonald, 143 W.Va. 648, 104 S.E.2d *352 294; Workman v. Wynne, 142 W.Va. 135, 94 S.E.2d 665; Davis v. Sargent, 138 W.Va. 861, 78 S.E.2d 217; Gilkerson v. Baltimore and Ohio Railroad Company, 129 W.Va. 649, 41 S.E.2d 188; Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410; Thorn v. Addison Brothers and Smith, 119 W.Va. 479, 194 S.E. 771. For these reasons the finding of the jury on the question of the negligence of the defendants, dealt with as standing alone, will not be disturbed by this Court.
There is sufficient evidence to justify the jury in awarding compensation for the lumbosacral strain, pain and suffering, and the loss of wages sustained by the plaintiff for a considerable period of time. As to these elements of damage there is little, if any, conflict in the evidence. Concerning the injury to the plaintiff's spine, the evidence is conflicting as to whether the condition of her coccyx which rendered necessary the surgical operation was caused by the negligence of the defendants. In an action for personal injuries the damages are unliquidated and indeterminate in character and the assessment of such damages is the peculiar and exclusive province of the jury; and the verdict of the jury in an action for personal injuries will not be set aside as excessive unless it is unsupported by the evidence or is so large as to indicate that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case. Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410. There is no showing that the amount awarded by the jury was influenced by passion, partiality, prejudice, corruption, or a mistaken view of the case, and there is sufficient evidence to justify the jury in assessing the amount awarded. In consequence the verdict of the jury will not be held to be excessive by this Court.
The decisive question to be determined is whether the release signed by the plaintiff and her husband, relating to the claim of the plaintiff, is a valid release of her claim or is void and of no effect by reason of fraud in its procurement upon the part of the representative of the defendants.
The plaintiff was a high school graduate, a competent cashier, experienced in business affairs and sufficiently intelligent to understand and participate in the settlement of her claim for personal injuries. Her husband had attended high school, had been employed for several years and was likewise sufficiently intelligent to understand and participate in the settlement of a claim. Both of them knew that in their discussion of a settlement with the investigator they were negotiating at arm's length and on equal footing and that he was representing an adverse or hostile interest. The negotiations occurred on three separate occasions during a period of approximately one month after the collision and there is no indication in the evidence that the investigator undertook in any way to hasten the settlement or to force or unduly influence the plaintiff and her husband to settle their claims. The only factors in connection with the transaction which tended to hasten the conclusion of the settlement were the inability of the plaintiff and her husband to obtain possession of the damaged automobile until the cost of the repairs was paid and their lack of the necessary funds for that purpose. There is no showing in the evidence that when they met at the Park Pontiac agency Brock did anything to hasten the settlement or undertook or attempted in any way to control or unduly influence their action in executing the releases at that time. The evidence shows clearly that when the releases were signed the plaintiff had lost wages for only one day, that she then thought that she was not seriously injured, and that both of them knew that the $13.88, representing her loss of wages for one day, and the doctor bill of $3.00, which were elements of recoverable damages in an action to recover damages for personal injuries, were included in the consideration for the release, as well as a substantial amount in excess of the actual cost of the repairs; that whether the plaintiff and her husband did or did not have the releases in their hands or did or did not read them, a reasonable *353 opportunity to examine the releases was present and nothing occurred to prevent them from reading and familiarizing themselves with their provisions; that the plaintiff did not question the validity of the release relating to her claim until several months after she and her husband signed it and neither she nor her husband contends that the parental release was not a full settlement of their claims nor at any time complained or questioned the validity of that release, which in substantially similar circumstances was signed by them simultaneously with the release of the plaintiff's claim for personal injuries; and that they did not offer to repay or tender the consideration which they had accepted and retained until the case was called for trial approximately two years after the plaintiff had been injured in the collision which was more than a year after her surgical operation and her realization that her injuries were of a serious nature. The testimony of the investigator that at one of the meetings the plaintiff and her husband made a complete agreement concerning the settlement; that they understood that the releases were to cover all claims; and that they were satisfied to settle on that basis was not specifically or fully denied by the testimony of either the plaintiff or her husband. The evidence does not satisfactorily show, despite the statements of the plaintiff and her husband to the contrary, that they relied upon or were induced by any misrepresentation of the investigator to sign either or both of the releases.
The law is well settled that when, as here, no fiduciary or confidential relationship exists, fraud in obtaining a release is not presumed, but must be clearly and distinctly proved by the person who asserts it. 45 Am.Jur., Release, Section 21. In Rutherford v. Rutherford, 55 W.Va. 56, 47 S.E. 240, a case in which the validity of a release was involved, this Court held in point 4 of the syllabus that: "A person who at the time of the execution of a release knows, or by inquiry might know, the exact nature of the writing, cannot invoke his own neglect to ascertain its nature to impeach it, unless imposed on and misled by fraud." The opinion in that case contains these pertinent statements: "One who signs a document cannot say he did not understand its import or effect. If he knows, or by inquiry might know, its nature, he cannot invoke his neglect to impeach it by calling his own neglect someone else's fraud." This Court has also held that in the absence of fraud by an alleged tortfeasor in the procurement, for valuable consideration, of a release of liability for personal injury to another person, such release may not be repudiated in an action at law by the releasor for damages for the injury. Janney v. The Virginian Railway Company, 119 W.Va. 249, 193 S.E. 187.
The plaintiff challenges the validity of the release of her claim on the ground of fraud and misrepresentation in its procurement; and the burden of proof of such fraud rests upon the plaintiff. This Court has consistently held in many cases that fraud is never presumed and when alleged it must be established by clear and distinct proof. Point 5, syllabus, Bennett v. Neff, 130 W.Va. 121, 42 S.E.2d 793; Brown v. Crozer Coal and Land Company, 144 W.Va. 296, 107 S.E.2d 777; Ward v. Smith, 140 W.Va. 791, 86 S.E.2d 539; State v. Davis, 140 W.Va. 153, 83 S.E.2d 114; Acker v. Martin, 136 W.Va. 503, 68 S.E.2d 721; Carroll v. Fetty, 121 W.Va. 215, 2 S.E.2d 521; Atkinson v. Jones, 110 W.Va. 463, 158 S.E. 650; Kincaid v. Evans, 106 W.Va. 605, 146 S.E. 620; Swope v. Wade, 106 W.Va. 265, 145 S.E. 384; McDonald v. County Court of Logan County, 94 W.Va. 773, 120 S.E. 891; Hunt v. Hunt, 91 W.Va. 685, 114 S.E. 283; Sansom v. Wolford, 60 W.Va. 380, 55 S.E. 1020; Board of Trustees of Oberlin College v. Blair, 45 W.Va. 812, 32 S.E. 203; Clay v. Deskins, 36 W.Va. 350, 15 S.E. 85. Clear and distinct proof of the fraud asserted is missing in this case. The evidence is wholly insufficient to establish, by clear and distinct proof, fraud in the procurement of the release. For *354 that reason relief against the release on the ground of fraud must be denied. National Fruit Product Company v. Parks, 108 W. Va. 321, 150 S.E. 749. As the evidence is not sufficient to establish by clear and distinct proof the fraud on which the plaintiff relies to invalidate the release, the verdict of the jury, being without sufficient evidence to support it, must be set aside. A verdict of a jury which is without sufficient evidence to support it, or is plainly against the decided weight and preponderance of conflicting evidence, will on proper motion be set aside by the court. Preston County Coke Company v. Preston County Light and Power Company, W.Va., 119 S.E.2d 420; Mulroy v. Co-Operative Transit Company, 142 W.Va. 165, 95 S.E.2d 63; Keller v. Wonn, 140 W.Va. 860, 87 S.E.2d 453; Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672; Wickline v. Monongahela Power Company, 139 W.Va. 732, 81 S.E.2d 326; Stenger v. Hope Natural Gas Company, 139 W.Va. 549, 80 S.E.2d 889; Ritz v. Kingdon, 139 W.Va. 189, 79 S.E.2d 123; Homes v. Monongahela Power Company, 136 W.Va. 877, 69 S.E.2d 131; Kap-Tex, Inc. v. Romans, 136 W.Va. 489, 67 S.E.2d 847; DeLuz v. Board, 135 W.Va. 806, 65 S.E.2d 201; Gall v. Cowell, 118 W.Va. 263, 190 S.E. 130; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v. Carpenter, Frazier and Company, 68 W.Va. 223, 69 S.E. 794; Coalmer v. Barrett, 61 W.Va. 237, 56 S.E. 385; Chapman v. Liverpool Salt and Coal Company, 57 W.Va. 395, 50 S.E. 601.
As previously indicated, the evidence, in this case, though in some respects conflicting, embraces numerous admitted or undisputed facts and circumstances which are sufficient to cause this case to turn in favor of the defendants on the question of the validity of the releases. In numerous cases this Court has held that when the evidence, though conflicting as a whole, embraces uncontradicted facts and circumstances which cause the case to turn in favor of one of the parties so that a verdict adverse to such party can not stand, the court should direct a verdict in his favor. Preston County Coke Company v. Preston County Light and Power Company, W.Va., 119 S.E.2d 420; Mulroy v. Co-Operative Transit Company, 142 W.Va. 165, 95 S.E.2d 63; Adkins v. Aetna Life Insurance Company, 130 W.Va. 362, 43 S.E.2d 372; Norvell v. Kanawha and Michigan Railway Company, 67 W.Va. 467, 68 S.E. 288, 29 L.R.A.,N.S., 325. As the absence of fraud in the procurement of the release is clearly shown by such admitted or undisputed facts and a verdict in favor of the plaintiff invalidating the release on the ground of fraud can not stand, the trial court should have directed a verdict in favor of the defendants and its refusal to direct such verdict constituted reversible error.
Among the cases cited and relied upon by the plaintiff in support of her contention that the release of her claim is invalid and should be set aside on the ground of fraud in its procurement are Carroll v. Fetty, 121 W.Va. 215, 2 S.E.2d 521; Gall v. Cowell, 118 W.Va. 263, 190 S.E. 130; Horton v. Tyree, 104 W.Va. 238, 139 S.E. 737; Norvell v. Kanawha and Michigan Railway Company, 67 W.Va. 467, 68 S.E. 288, 29 L.R.A.,N.S., 325. The evidence in each of those cases, unlike the evidence in the case at bar, established facts which were sufficient to justify a finding that the challenged release or written instrument was invalid because it was obtained or procured by fraud, duress, or other invalidating factors which rendered it void or of no force and effect. The material facts established by the evidence in those cases distinguish them from the facts of this case and for that reason those cases do not apply to or control the decision of the vital question in the case at bar.
Inasmuch as this Court holds that the release relating to the claim of the plaintiff was not obtained or procured by any fraud upon the part of the representative of the *355 defendants and constitutes a valid and complete defense to the claim of the plaintiff, it is unnecessary to consider the instructions mentioned in the assignments of error, or the action of the court, of which the defendants complain, in giving or refusing such instructions.
The judgment of the circuit court and the judgment of the court of common pleas are reversed, the verdict is set aside, and this case is remanded to the court of common pleas for a new trial which is here awarded the defendants.
Judgments reversed, verdict set aside, new trial awarded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321154/ | 203 Va. 423 (1962)
GEORGE S. STEIN, TRDG., ETC.
v.
JAMES WALLACE POWELL, JR., AN INFANT, ETC.
Record No. 5379.
Supreme Court of Virginia.
April 23, 1962.
Mills E. Godwin, Jr. and Lawson Worrell, Jr. (Williams, Cocke, Worrell & Kelly; Godwin & Godwin, on brief), for the plaintiff in error.
A. E. S. Stephens and William N. Stovall, for the defendant in error.
Present, All the Justices.
1. Plaintiff, an infant of two and a half years, accompanied his mother and grandmother to defendant's store. While the adults were looking at dresses he ran into a small dressing and storage room at the rear and slammed the door, whereupon a full length mirror fell and plaintiff suffered injuries for which the jury awarded $20,000. The evidence showed children accompanied by a parent were welcome in the store, without restriction as to the part they could go into. Plaintiff was therefore an invitee where the accident occurred and defendant owed him the duty to keep the dressing room in reasonably safe condition.
2. Reversible error was committed, however, in giving an instruction whose effect was to make the doctrine of res ipsa loquitur applicable to the case. The mirror whose fall caused plaintiff's injuries was not under defendant's exclusive control since customers used the room, and the evidence was conflicting as to whether it was negligently propped against a side wall or safely stored in the rear of the room. Hence the plaintiff was not injured under circumstances that would compel an inference that the injury would not have occurred unless defendant was negligent. Plaintiff thus having the burden of proof on the issue of negligence, the case was remanded for new trial under proper instructions.
Error to a judgment of the Circuit Court of the city of Suffolk. Hon. John K. Hutton, judge presiding. The opinion states the case.
WHITTLE
WHITTLE, J., delivered the opinion of the court.
A motion for judgment was filed in the Circuit Court on behalf of James Wallace Powell, Jr., a two-and-one-half-year-old infant, through his father and next friend, James Wallace Powell, Sr., seeking damages for injuries sustained on the premises of George S. Stein, trading as Hub Department Store.
The trial resulted in a jury verdict for the plaintiff in the sum of $20,000, on which, over the objection of the defendant, final judgment was entered. We granted defendant a writ of error.
The pertinent facts, stated in the light most favorable to the infant plaintiff, reveal that on the day of the accident the child was brought into the store by his mother. The mother's purpose in visiting the store was to assist her mother (plaintiff's grandmother) in the selection of a dress. At the rear of the store are two "small" rooms, the one of the left was used exclusively as a dressing room, and the one to the right was used as a combination dressing and storage room.
Plaintiff's grandmother had selected a dress and had entered the left dressing room to try it on. She was followed by the saleslady who was waiting upon her. Plaintiff's mother was examining a rack of dresses in an effort to find another garment which might suit her mother when the plaintiff freed himself from his mother's hand and ran into the dressing room on the right and slammed the door. Immediately there was a crash of breaking glass. When the door was opened the child was found by his mother on the floor with broken fragments of a glass mirror scattered about him, one large piece had pierced his leg and another large segment of the mirror was found leaning against the wall. Prior to the breaking, the unframed, rectangular mirror -- commonly known as a "full length mirror" -- had been leaning against the wall.
The motion for judgment alleged that the plaintiff on the occasion was an invitee and that the shop owner owed him the duty of ordinary care not to injure him, charging that the storekeeper or his agents, servants or employees "negligently failed in your legal duty as aforesaid toward the plaintiff in consequence of which a mirror, or some other object made from glass, being then and there placed by you, your agents, sevants and/or employees, in a dangerous position, fell *425 on and upon the plaintiff causing him to sustain severe, painful and permanent injuries * * *, and you, the said defendant, otherwise negligently failed to keep your said premises, together with its fixtures and equipment, in a safe and sound condition all of which caused the * * * injuries" complained of.
The responsive pleading denied all acts of negligence and called upon the plaintiff for a bill of particulars showing "the facts and acts of negligence relied upon." The record does not show that the bill of particulars was filed.
The first question for decision, says the defendant, is "whether the infant plaintiff was a licensee or invitee at that part of defendant's premises where the accident occurred."
In this connection, the defendant objected and excepted to the court instructing the jury that the plaintiff was an invitee on the premises of the defendant and that the defendant owed to plaintiff the duty of using ordinary care to have his premises in a reasonably safe condition.
Here the defendant argues that while the child might have been an invitee insofar as the main portion of the store was concerned, he was a mere licensee as to the dressing and storage room where the accident occurred.
The defendant's evidence shows that children are welcome in this dress shop when accompanied by a parent, and there appears to be no limitation as to what part of the store the implied invitation extends.
The proprietor of a store is under the duty to exercise ordinary care to keep in a reasonably safe condition the entire premises which it is reasonably expected that a customer may visit. He is under the same obligation to a child accompanying a customer.
While there are cases holding to the contrary (see Anno: 44 A.L.R.2d, page 1336, | 7) we hold that under the facts and circumstances of this case the child was an invitee rather than a licensee and the court properly instructed the jury to the effect. Restatement of the Law, Torts, Chapter 13, paragraphs 331-332, pp. 897-900; Anno: 44 A.L.R.2d, page 1329; 38 Am. Jur. (1961 Cum. Supp.), Negligence, | 137, page 83.
The second question, says the defendant, is "whether the doctrine of res ipsa loquitur is applicable."
In this connection, the plaintiff offered Instruction No. P-5, which was given by the court over the vigorous objection of the defendant. The instruction reads: *426
"The court instructs the jury if you believe from a preponderance of the evidence that the plaintiff entered the door of the dressing room and closed the door and that simultaneously with entering the room and closing the door, a mirror crashed and fell upon the plaintiff, the plaintiff has made a prima facie case and the burden is upon the defendant to produce evidence sufficient to outweigh the prima facie case made by the plaintiff or create an equipoise, that is to say to render it just as likely that the defendant was not guilty of negligence that proximately caused the accident in this case as that he was."
The evidence shows that the room which the child entered, in addition to being a storage room, was used generally as a dressing room by customers of the store. The room was 65 inches wide and 76 inches in depth. The door was 31 inches wide and opened into the main portion of the store.
We agree with the defendant that the doctrine of res ipsa loquitur has no application in this case. In order for the doctrine to apply in a given case, the instrument causing the injury must have been in the exclusive possession of the defendant, and the occurrence must have been of such a nature that it can be said with reasonable certainty that the accident would not have occurred in the absence of negligence on the part of the defendant. It must be further shown that the evidence of the cause of the accident is accessible to the defendant and inaccessible to the injured party. Beer Distributors, Inc. Winfree, 190 Va. 521, 57 S.E.2d 902.
The mirror causing the injury complained of was stored in this small room, to which customers of the store generally, including in this instance the infant plaintiff, had access as invitees. Thus it is evident that the mirror was not in the exclusive possession of the defendant.
Under the evidence it cannot be said that the infant plaintiff was injured under such circumstances as to compel an inference that his injury would not have occurred absent negligence on the part of the defendant.
The doctrine of res ipsa loquitur is not applicable where, on proof of the occurrence, without more, the matter still rests on conjecture alone or the accident is just as reasonably attributable to other causes as to negligence. In other words, if the facts and circumstances of the occurrence tend to give rise to conflicting inferences, one leading to the conclusion of due care and the other to the conclusion of negligence, the doctrine does not apply. Wilson Colonial Air Transport, 278 Mass. 420, 180 N.E. 212, 83 A.L.R. 329; 38 Am. Jur., *427 Negligence, | 303, pp. 999, 1000; 65 C.J.S., Negligence, | 220(4), p. 999, et seq. We thus conclude that it was error for the court to give Instruction No. P-5.
There was a conflict in the evidence as to where the mirror causing the injury had been placed. The plaintiff's evidence indicates that the unframed mirror had been negligently placed by defendant against the right wall of the room, resting on the waxed floor, unguarded and unprotected, in a place where customers were expected to frequent, and this, plaintiff claims, was the proximate cause of the injury.
On the other hand, defendant denied that the mirror had been placed by him or his employees where plaintiff contended. Stein testified that the mirror had been placed, at his direction, in a safe place, in the center of the back wall of the room, behind a rack of dresses, and was not at the time being used for any purpose; that there was a framed mirror attached to the wall for the use of customers. This was corroborated by other defense witnesses.
Whether the mirror had been negligently placed by the defendant or his employees in an unsafe place where it was likely to cause injury to invitees of the store, or whether it had been placed in a reasonably safe place by the defendant and had been removed to an unsafe place by somone over whom defendant had no control and without defendant's timely knowledge, were questions of fact for the jury to decide.
The basis of this suit was negligence, and the burden of proving negligence was on the plaintiff. The question of defendant's negligence or lack of negligence was a factual matter for the jury.
The judgment is reversed, and the case is remanded for a new trial under proper instructions.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321170/ | 126 Ga. App. 210 (1972)
190 S.E.2d 490
ECKERD-WALTON, INC.
v.
ADAMS et al. McCONNELL
v.
ADAMS et al.
47061, 47062.
Court of Appeals of Georgia.
Argued April 5, 1972.
Decided April 19, 1972.
Rehearing Denied May 4, 1972.
*211 Fulcher, Hagler, Harper & Reed, William C. Reed, for Eckerd-Walton.
Congdon & Williams, W. Barry Williams, Burnside, Dye & Miller, A. Rowland Dye, for McConnell.
Nicholson & Fleming, Bobby G. Beazley, John Fleming, for appellees.
DEEN, Judge.
1. The petition stated the plaintiff's claim against Eckerd in general terms, with 21 allegations of negligence relating to faulty construction, maintenance, failure to warn, etc. We cannot say that "the complaint disclose[s] with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support," which is the yardstick for dismissal stated in Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260); Columbus Bank & Trust Co. v. Dempsey, 120 Ga. App. 5 (169 SE2d 349) and other cases. The motion made by Eckerds for dismissal as to it because of failure to state a claim was properly denied.
2. On the trial of the case the following appears without contradiction: Eckerd's is the corner building of a series of one story party-wall stores in a shopping center, entry to which is at right angles to a city street. There is diagonal parking in front of the buildings with sufficient room to drive comfortably for entry and exit between the row of parked cars and the sidewalk parallelling the street. Spaces are marked for parked cars immediately adjacent to an approximately four to five and a half inch curb separated from the buildings by a sidewalk six feet in width. The store front is composed of a 7-3/4 inch brick wall foundation above which is a large area of plate glass. Inside the building and some six feet back from this wall are the *212 stools and counter for customer service. The defendant McConnell crashed through the store front and pinned the plaintiff against the counter, which meant that she had to turn right from the street into the entrance area, turn left paralleling the row of buildings, turn right in front of Eckerd's, cross over the approximately 5-inch curb, over six feet of sidewalk, over the almost 8-inch brick wall and through the plate glass window. When the car came to a stop it was "perched" on the wall with the front wheels on the inside and the rear wheels on the outside, the brick foundation itself remaining substantially intact.
We have carefully examined the many grounds of negligence urged and find none of them sustained by the evidence. Allegations that the co-defendant driver was misled and deceived as to the proximity of the store front to the parking area are not borne out by the facts, or that the merchant failed to exercise proper control over cars entering the area. The main thrust of the argument is that the defendant should have anticipated that some negligent motorist would attempt to drive through his store and should either not have placed the counter stools in that area, or in some other way should have heightened the foundation wall or erected a barricade so as to make this type of negligence physically impossible. This case is stronger on its facts than Feldman v. Whipkey's Drug Shop, 121 Ga. App. 580 (174 SE2d 474) where on detailed allegations of the complaint a motion to dismiss was sustained in favor of the defendant proprietor. There the plaintiff was injured while using a phone booth on the sidewalk immediately attached to the front of the defendant's shop when a vehicle jumped the sidewalk and crashed into the booth, and it was contended that the location of the telephone booth in close proximity to the parking area coupled with a failure to provide guardrails or other protective structure was negligence on the part of the proprietor. A close reading of the case reveals that the basis of the holding is simply that negligence consists in not foreseeing and guarding against that which is probable and likely to happen, *213 not against that which is only remotely and slightly possible. The defendant drivers in Whipkey and in this case appear to have been guilty of substantially identical acts of negligence, except that here the force of the vehicle must have been greater than in Whipkey because the automobile not only jumped the curb and crossed the sidewalk but further jumped a 73/4 inch brick foundation wall, broke out the glass store front and proceeded several feet inside the building. Whipkey stands for the proposition that, absent special circumstances, such an occurrence is to be considered so remote as not to require special precautionary measures by one who is merely a tenant of an adjacent building. On the duty of a proprietor to protect invitees against the probable, rather than the remotely possible negligence of co-invitees, see Watson v. McCrory Stores, 97 Ga. App. 516 (103 SE2d 648); Whitaker v. Jones, McDougald, Smith, Pew Co., 60 Ga. App. 711 (26 SE2d 545); Peggy Ann of Ga. v. Scoggins, 76 Ga. App. 109 (71 SE2d 89). It was error to deny Eckerd's motion for directed verdict and subsequent motion for judgment notwithstanding the verdict based thereon. While we recognize certain factual differences between this case, Whipkey, and Scoggins, as pointed out in the defendant's brief, the rationable is the same. This defendant did nothing which proximately caused the plaintiff to be injured, and can only be held negligent if the facts are such that it should have foreseen and guarded her against the negligence of another. The particular act of negligence it is called upon by the plaintiff to guard against has, in Whipkey, been held so remote and improbable as not reasonably to be anticipated by a merchant in the exercise of ordinary care. The factual situations in Johnson v. John Deere Plow Co., 214 Ga. 645 (106 SE2d 901) and Reeves v. Southeastern Motor Lines, 102 Ga. App. 193 (115 SE2d 588) present different sets of circumstances under which the appellate courts respectively held that a jury question on the issue of a defendant's duty to anticipate the negligence of another tortfeasor remained in issue. These are all border cases where it is easier to draw a conclusion from the *214 specific facts in evidence than to formulate a general rule. The trial court erred in denying Eckerd's motion for judgment notwithstanding the verdict.
3. The defendant McConnell appeals from the denial of her motion for new trial on the general grounds, on the basis that the reason for her vehicle crashing into the store front is unexplained and she should not therefore be held to be guilty of negligence. Circumstantial evidence is sufficient in a civil case to establish the conclusion sought to be proved, subject to the same rules and limitations as in criminal cases. Ga. R. &c. Co. v. Harris, 1 Ga. App. 714 (57 S.E. 1076). "In arriving at a verdict the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved." Code § 38-123. Here, the defendant driver offered no evidence in her own behalf. The fact that her car was driven across a sidewalk and against a building with sufficient force to hit a person sitting inside six feet away from the inside wall is uncontested. Such circumstances, unexplained, could be sufficient to justify the inference of negligence in failing to control the vehicle so as to avoid injury to others.
However, since the verdict rendered against both defendants in a single sum has been set aside as to Eckerd-Walton, a new trial must be granted to the co-defendant McConnell. Smith v. Nelson, 123 Ga. App. 712 (5), supra.
The judgment is set aside as to both defendants, with direction that judgment notwithstanding the verdict be entered in favor of Eckerd-Walton, Inc. in case No. 47061 and that a new trial be granted to the defendant Marjorie McConnell in case No. 47062. Eberhardt, P. J., and Clark, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321181/ | 229 Ga. 256 (1972)
190 S.E.2d 900
PENLAND
v.
THE STATE.
27212.
Supreme Court of Georgia.
Submitted May 9, 1972.
Decided June 15, 1972.
L. S. Cobb, J. Fred Ivester, for appellant.
Reid Merritt, District Attorney, Gary L. Davis, for appellee.
GRICE, Presiding Justice.
Jerry Plott Penland appeals from the denial of his original and amended motion for new trial following his conviction and sentences in the Superior Court of Gwinnett County for rape, aggravated sodomy and aggravated battery. He received sentences of two twenty-years confinements and one ten-years confinement. The enumerations of error are predicated upon the grounds of such motion.
1. The evidence amply supports the verdict of guilty and *257 therefore the general grounds of the motion are without merit.
Several law enforcement officers testified that in the early hours of the morning in question they located an automobile and several articles of muddy and bloody clothing: that upon search of the near-by wooded vicinity they found the victim; that she was almost nude; that her head was a complete mass of blood and her body was covered with mud, cuts and bruises; that her eyes were swollen shut; that she was incoherent; and that shortly thereafter they found the defendant who had first sought to elude the officers but later acknowledged his identification.
An examining physician at the county hospital described the victim's physical condition and testified that he found male sperm in her vagina.
The victim testified in detail as to what had occurred, relating that the defendant, by threats and by beating her with his hands, a stick and a tire tool, forced her to submit to several acts of each of the offenses.
Two psychiatrists testified as to the mental condition of the accused, stating that he could distinguish between right and wrong.
The accused made an unsworn statement in which he admitted having sexual relations with her but denied that he forced her to do so.
A review of the transcript of the evidence authorizes without any question whatever the verdict of guilty. Therefore the enumerations based upon the general grounds of the motion are without merit.
2. The appellant insists that the trial court erred in not making provision to insure his right of sequestration of the witnesses.
However the record shows without conflict that the witnesses were kept out of the courtroom throughout the trial. Furthermore, upon inquiry by the trial judge at the request of the appellant's attorney, it was ascertained that no person talked with any of the witnesses regarding the case on *258 trial. For the foregoing and other reasons, this enumeration is not valid.
3. Appellant insists that the trial court erred in not having the voir dire questions and answers of the prospective jurors transcribed and a complete transcript provided for use of his counsel. However, the appellant did not avail himself of Code Ann. § 6-805 (f) (Ga. L. 1965, pp. 18, 24). This afforded ample opportunity to bring to the attention of the trial court any incompleteness and to perfect it. For this reason alone, this enumeration is without merit. See McKinney v. State, 121 Ga. App. 815 (1) (175 SE2d 893).
4. The appellant also enumerates as error the trial court's refusal to allow a thorough and sifting cross examination of a medical witness as to the report of a social worker which was incorporated into a psychiatric evaluation of appellant's mental condition.
However the record shows that appellant's counsel made no objection to the ruling of the trial court that the contents of this report should not be gone into; nor did he attempt to perfect the record as to what such testimony would have shown. No reversible error was committed here.
5. The remaining grounds of the motion for new trial have been carefully examined. However, they have not been argued in this court either orally or by brief, and hence are deemed to have been abandoned.
Upon consideration of this record we find no cause for reversal of the judgment rendered.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321175/ | 190 S.E.2d 677 (1972)
CHRYSLER REALTY CORPORATION and Glover Motors, Inc.
v.
NORTH CAROLINA STATE HIGHWAY COMMISSION.
No. 7228SC550.
Court of Appeals of North Carolina.
August 23, 1972.
*678 H. Kenneth Lee and Herbert L. Hyde, Asheville, for plaintiff appellants.
Atty. Gen. Robert Morgan and Deputy Atty. Gen. R. Bruce White, Jr., and Asst. Atty. Gen. Guy A. Hamlin for defendant appellee.
HEDRICK, Judge.
Appellants contend the Court erred in "failing to conclude that plaintiffs' property abutted on West Haywood Street" and concluding as a matter of law "that the construction of the median strip dividing east-westbound lanes on Patton Avenue was a proper exercise of police power, and any damages resulting therefrom was not compensable". We do not agree.
The stipulations of the parties, found as facts by the trial judge, (Exhibit 1, a map depicting the roads and highways surrounding plaintiffs' property) clearly show that West Haywood Street abuts plaintiffs' property on the west, Clingman Avenue abuts the property on the east, and plaintiffs' property is abutted on the north by Patton Avenue between Clingman Avenue and West Haywood Street.
We are referred by plaintiffs to G.S. § 136-89.53, which in pertinent part provides:
"When an existing street or highway shall be designated as and included within a controlled-access facility the owners *679 of the land abutting such existing street or highway shall be entitled to compensation for the taking of or injury to, their easements of access." (our italics)
Citing Dr. T. C. Smith Co. v. North Carolina State Highway Comm., 279 N.C. 328, 182 S.E.2d 383 (1971), plaintiffs argue that the dead-ending of West Haywood Street as part of the project, which included the construction of the median strip dividing the lanes of traffic on Patton Avenue and the extension of Hilliard Street from Clingman Avenue to West Haywood Street was such a taking or injury of their easement of access as entitles them to compensation within the meaning of G.S. § 136-89.53. It seems clear that none of the streets abutting plaintiffs' property was or is a "controlled access" facility. The facts in Dr. T. C. Smith Co. v. North Carolina State Highway Comm., supra, are clearly distinguishable. There the plaintiffs owned a 13-acre tract of land abutting North Carolina Highway 191. Prior to the construction of the highway project, plaintiffs had an abutter's full right of access to the highway. The project complained of made Highway 191 a controlled access facility and completely fenced off all of plaintiffs' immediate access to the highway. After the construction of the project,
". . . the only available access to and from any portion of plaintiff's property and `controlled-access' Highway 191 is by circuitous travel over residential streets . . . ." Dr. T. C. Smith Co. v. North Carolina State Highway Comm., supra.
The uncontroverted facts in the present case show that after the dead-ending of West Haywood Street at its intersection with Patton Avenue and the construction of the median, dividing lanes of traffic on Patton Avenue, the plaintiffs retained full right of access to all streets and highways abutting their property. In State Highway Comm. v. Yarborough, 6 N.C.App. 294, 170 S.E.2d 159, this Court speaking to this matter said:
"(W)hile a substantial or unreasonable interference with an abutting landowner's access constitutes the taking of a property right, the restriction of his right of entrance to reasonable and proper points so as to protect others who may be using the highway does not constitute a taking. Such reasonable restriction is within the police power of the sovereign and any resulting inconvenience is damnum absque injuria."
The construction of a median strip so as to limit landowner's ingress and egress to lanes for southbound travel when he formerly had direct access to both the north and southbound lanes has been held to be a valid traffic regulation adopted by the Highway Commission in the exercise of the police power vested in it by statutes. Barnes v. North Carolina State Highway Commission, 257 N.C. 507, 126 S.E.2d 732 (1962). When a road or street is closed or abandoned so as to leave the landowner's property on a cul-de-sac and increase the distance one must travel to reach points in one direction, such inconvenience is not compensable. Wofford v. North Carolina State Highway Commission, 263 N.C. 677, 140 S.E.2d 376 (1965), cert. denied, 382 U.S. 822, 86 S. Ct. 50, 15 L. Ed. 2d 67; Snow v. North Carolina State Highway Commission, 262 N.C. 169, 136 S.E.2d 678 (1964). Thus, since plaintiffs retain full right of access to and from all abutting streets and highways, we agree with the trial judge's ruling that the construction of the median strip on Patton Avenue and the dead-ending of Haywood Street was a legitimate and proper exercise of the police power of the State not entitling the plaintiffs to damages.
For the reasons stated we hold the facts found support the conclusions of law which in turn support the judgment entered.
Affirmed.
BROCK and MORRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321171/ | 190 S.E.2d 313 (1972)
15 N.C. App. 424
STATE of North Carolina
v.
Bennie Boyce TESSENAR.
No. 7226SC446.
Court of Appeals of North Carolina.
August 2, 1972.
*314 Atty. Gen. Robert Morgan by Associate Atty. Gen., Charles A. Lloyd for the State.
Jerry W. Whitley, Charlotte, for defendant appellant.
GRAHAM, Judge.
Defendant's first assignment of error challenges the sufficiency of the State's evidence. This assignment of error is overruled.
Defendant next contends the court erred in permitting Officer Lutrick to testify over objection that defendant told him, "I am the man who did it." This contention is without merit. The record affirmatively shows that this statement was volunteered by defendant before he was taken into custody. "Miranda warnings" are required only where a defendant *315 is being subjected to custodial interrogation. State v. Fletcher and State v. Arnold, 279 N.C. 85, 181 S.E.2d 405; State v. Meadows, 272 N.C. 327, 158 S.E.2d 638.
Defendant objected to testimony by a witness as to his opinion with respect to the distance State's Exhibit #1 (defendant's shotgun) was from the deceased when it fired the shot which inflicted the fatal wound. The court did not enter a specific finding that the witness was an expert in the field of firearms and munitions. However, there was plenary evidence to show that the witness was fully experienced in this field, and also that he had test fired the gun in question. Under these circumstances, the court's failure to specifically find the witness to be an expert does not constitute reversible error. "[T]he failure of the trial judge to specifically find that the witness is an expert before allowing him to give expert testimony will not sustain a general objection to his opinion evidence if it is in response to an otherwise competent question, and if there is evidence in the record on which the court could have based a finding that the witness had expert qualifications. In such a case, it will be assumed that the court found the witness to be an expert; otherwise, it would not have permitted him to answer the question." Teague v. Duke Power Co., 258 N.C. 759, 764, 129 S.E.2d 507, 511.
Defendant's next assignment of error is directed to the admission of a photograph depicting the body of the deceased on the couch inside the trailer. The record clearly indicates that this photograph was admitted only for the purpose of illustrating the testimony of witnesses. It was competent for that purpose. State v. Gardner, 228 N.C. 567, 46 S.E.2d 824; State v. Matthews, 191 N.C. 378, 131 S.E. 743. The fact the photograph is gory or gruesome does not render it incompetent. State v. Porth, 269 N.C. 329, 153 S.E.2d 10; State v. McCain, 6 N.C.App. 558, 170 S.E.2d 531.
Defendant's final assignment of error is directed to an inquiry made by the judge to the jury at 7:00 p. m. as to whether they would be willing to return at 8:00 p. m., after supper, "and work a while tonight." We find nothing in the judge's statement tending to suggest, as defendant contends, that the jury would be there all night if they did not agree upon a verdict. Nothing in the court's language tends in any way to coerce the jury or intimate an opinion as to what the verdict should be. State v. McVay and State v. Simmons, 279 N.C. 428, 183 S.E.2d 652. We note that defendant did not move for a mistrial nor object to the court's statement at the time it was made. The objection he makes now is overruled.
After reviewing the entire record we conclude that defendant was afforded a fair trial free from prejudicial error.
No error.
PARKER and VAUGHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321188/ | 105 Ga. App. 242 (1962)
124 S.E.2d 313
WALDEN
v.
COLEMAN.
39201.
Court of Appeals of Georgia.
Decided January 9, 1962.
Rehearing Denied January 26, 1962.
N. Forrest Montet, Pickett, Pickett, Ackerman, Shipley & Montet, for plaintiff in error.
Smith, Field, Ringel, Martin & Carr, Palmer H. Ansley, contra.
*243 JORDAN, Judge.
The sole question for determination by this court at this time is whether or not the instant petition as against general demurrer stated a cause of action in favor of the plaintiff for the loss of consortium of her husband, where it affirmatively appeared from said petition that the husband died approximately 2 hours and 15 minutes after the tortious injury.
It is now recognized in this State that a wife has an independent cause of action for the loss of consortium of her husband due to a tortious injury inflicted upon him, although she may not in such action recover any item of damages which would be a proper item of damages in an action directly by the husband. Brown v. Ga.-Tenn. Coaches, Inc., 88 Ga. App. 519 (77 SE2d 24); Gordy v. Powell, 95 Ga. App. 822 (99 SE2d 313); Bailey v. Wilson, 100 Ga. App. 405 (4) (111 SE2d 106); Lunsford v. L. & N. R. Co., 101 Ga. App. 374 (114 SE2d 310), reversed on other grounds, 216 Ga. 289 (116 SE2d 232).
However, whether the action be one by the husband to recover damages for the loss of consortium of his wife or, as in the instant case, by the wife for the loss of consortium of the husband, the right of consortium exists only during the joint lives of the husband and wife (Metropolitan St. R. Co. v. Johnson, 91 Ga. 466, 471, 18 S.E. 816; American Fidelity &c. Co. v. Farmer, 77 Ga. App. 192, 48 SE2d 141); and where the injured spouse subsequently dies, either as a result of the injury or from other causes, the survivor can recover for the loss of consortium only to the time of the other's death. 27 Am. Jur. 109, Husband and Wife, § 510; 41 C.J.S. 899, Husband and Wife, § 401 (5). If death is instantaneous, no cause of action for loss of consortium arises (Womack v. Central R. & Bkg. Co., 80 Ga. 132, 5 S.E. 63; 21 A.L.R. 1523), as all rights are merged in the death action. However, if the injured spouse lives for any length of time after the infliction of injury, a cause of action for loss of consortium arises but the surviving spouse can recover for such loss only to the time of the other's death even though death occurs almost immediately after the infliction of the injury. Womack v. Central R. & Bkg. Co., supra. The amount of damages, if any, to which the plaintiff might be entitled in such situation would be a question for the jury under all the facts and circumstances of the case.
*244 Accordingly, since it is alleged in the instant petition that the plaintiff's husband lived approximately 2 1/4 hours after the infliction of the tortious injury, the petition stated a cause of action as against general demurrer for the plaintiff's loss of consortium for such period of time and the trial court therefore erred in sustaining the general demurrer.
Judgment reversed. Nichols, P. J., and Frankum, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321159/ | 239 S.C. 574 (1962)
124 S.E.2d 36
William M. GARRETT, Respondent,
v.
The MUTUAL BENEFIT LIFE INSURANCE COMPANY OF NEW JERSEY, Appellant.
17876
Supreme Court of South Carolina.
February 14, 1962.
*575 *576 Messrs. Haynsworth, Perry, Bryant, Marion & Johnstone, of Greenville, for Appellant.
Messrs. Paul M. Moore and Matthew Poliakoff, of Spartanburg, for Respondent.
*577 February 14, 1962.
LEWIS, Justice.
This is an action by the plaintiff, William M. Garrett, to recover disability benefits under several policies of insurance issued to him by the defendant, The Mutual Benefit Life Insurance Company of New Jersey. The policies of insurance issued by the defendant provided for a total payment of $250.00 per month to plaintiff and waiver of premiums upon his becoming totally and permanently disabled within the meaning of the policy provisions. During the trial of the case the defendant moved for a directed verdict in its favor upon the ground that the only reasonable inference to be drawn from the testimony was that the plaintiff was not totally and permanently disabled. This motion was denied and the issues submitted to the jury, resulting in a verdict for the plaintiff. Subsequently, the defendant unsuccessfully moved for judgment in its favor notwithstanding the verdict or, in the alternative for a new trial, the latter motion made upon the ground that the trial Judge committed error in several rulings made during the trial of the case. The defendant has appealed from the refusal of the lower Court to grant either of the aforesaid motions.
The first question for determination is whether or not the trial Judge erred in refusing the defendant's motion for a directed verdict. The jury has concluded that the plaintiff was totally and permanently disabled within the meaning of the policy provisions and we are only concerned with whether or not there is any competent evidence to sustain such finding. Of course, it is well settled that, in deciding the question, the evidence and the reasonable inferences to be drawn therefrom must be considered in the light most favorable to the plaintiff.
The policies in question have identical provisions, and provide for the payment to the insured of the monthly income set forth in the respective policies "while the insured is regarded as totally and permanently disabled". Total disability is defined in the policies as follows:
*578 "The insured will be regarded as totally disabled when, by reason of accidental bodily injury or by sickness, his average monthly earned income for a period of four months has not exceeded one-fourth of his former earned income (averaged monthly for the twelve months immediately preceding such four months) and such disability will be regarded as permanent while the earned monthly income of the insured, on account of such injury or sickness, does not exceed the said one-fourth."
The term "earned income", as used in the foregoing provision, is defined in the policies as follows:
"As herein used the term `earned income' means wages, salaries, professional fees, and other amounts, received as compensation for personal services actually rendered in any profession, trade or business, not including therein amounts received as a pension or retirement allowance, or as a temporary continuance in whole or in part of customary earned income during the insured's enforced absence from business on account of accidental bodily injury or sickness."
Total disability is, therefore, defined by the foregoing policy provisions to mean inability by reason of accidental bodily injury or sickness to earn in excess of one-fourth of the insured's former earned income, and such disability is regarded as permanent while the earned monthly income of the insured, on account of such injury or sickness, does not exceed the said one-fourth. "Earned income" of the insured is not confined to wages, salaries or professional fees received as compensation for personal services from the particular business in which the insured was engaged at the time he became disabled, but includes "compensation for personal services actually rendered in any profession, trade or business."
Such policy expressions as "any profession, trade or business" have been interpreted "to mean the usual employment of the particular person insured, or such other employment, if any, reasonably approximating the same livelihood, as the *579 insured might fairly be expected to follow in view of his station, circumstances, training, aptitude and physical and mental capabilities." Dunlap v. Maryland Casualty Co., 203 S.C. 1, 25 S.E. (2d) 881, 149 A.L.R. 1.
Total disability, therefore, under the particular policy provisions in question, does not mean inability to receive any earned income because of injury or sickness, but inability for such reasons to earn in excess of one-fourth of the insured's prior income, either from his customary employment or from any other employment in a profession, trade or business for which his training and aptitude fit him. The question then to be decided is whether or not there is any competent evidence to sustain the finding of the jury that the plaintiff was, on account of sickness, unable to earn in his usual employment, or in any other employment for which his training and aptitude fitted him, in excess of one-fourth of his former income. The issues must be determined in the light of these particular policy provisions.
The plaintiff is forty-one years of age, married and has four children. He is a college graduate with some work completed toward his Master's degree. After his graduation from school in 1939, he worked approximately fifteen years at various jobs. He worked for his last employer for approximately four and one-half years as a district sales manager, travelling over an area of five states. His earnings in this position during the last full year of employment amounted to Nine Thousand Eight Hundred and Sixty-five ($9,865.00) Dollars. Prior to his last position, the plaintiff worked at various times as an assistant to a certified public accountant, salesman for a soap company, payroll auditor for an insurance company, Internal Revenue agent, and a used car salesman. It is undisputed that the plaintiff is well educated and is by training and experience qualified to perform other work than that in which he was last engaged, including general office work.
On March 5, 1954 the plaintiff became totally disabled because of a ruptured intervertebral disc and varicose veins *580 in his left leg. It is undisputed that such disability continued until December 5, 1959 and the defendant made payment to the plaintiff of all disability benefits due during such period. It is undisputed that the plaintiff is still suffering from the ruptured disc and varicose veins. However, after December 5, 1959 the payment of disability benefits was discontinued, the defendant taking the position that the plaintiff was no longer disabled within the terms of the policy provisions. This action was instituted on April 21, 1960 to recover benefits allegedly due for the period from December 5, 1959, the date of the last payment by defendant, until the date of the institution of this action. The issue here concerns the alleged disability of plaintiff for that period.
The plaintiff testified in detail as to his physical condition and his inability to work because of it since 1954. He testified that he suffered almost constant pain in his back making it impossible for him to relax, the pain radiating down both legs, but worse in the left, causing his legs to jerk and tremble at times. He further testified that he was subject to severe headaches and could only read for a short time because of the effect of the pain upon his eyes; that he is unable to sleep at night because of the intense pain; that the pain is such that he has to change his position often and lie down frequently to relieve it; and that he has a hernia.
The first medical examination of the plaintiff at the instance of the defendant was in 1954. As a result of this examination he was declared totally disabled and the defendant began paying disability benefits called for under the policies. During the period from March 5, 1954 until December 5, 1959, the plaintiff submitted himself at the request of the defendant to approximately ten physical examinations by various doctors selected by the defendant. None of these examinations affected the payment of benefits under the policies until the last one in 1959 by Dr. Tiller of Spartanburg, South Carolina, after which the defendant discontinued further payments. Dr. Tiller had never examined the plaintiff before or since and after less than a one hour examination *581 testified, as his opinion, that the plaintiff was not then totally disabled but was able to carry on a reasonable occupation, "one that did not entail any serious or strenuous bending, lifting or straining". There was other medical testimony that the plaintiff was able to do work of a sedentary nature. The medical testimony was in agreement, however, that the plaintiff suffered from a ruptured intervertebral disc and a serious condition of varicose veins in his left leg, such conditions being of the type to cause pain. One doctor described the varicose veins as the largest that he had ever seen.
The testimony is in substantial agreement that the plaintiff is unable to perform the duties of a travelling salesman, the occupation in which he was last engaged. The defendant argues, however, that the plaintiff is not totally disabled from engaging in other types of work for which his training and experience fit him, because of the medical testimony that plaintiff, in the opinion of the doctors, could engage in work of a sedentary nature that did not require strenuous physical exertion.
We do not think that the medical testimony is conclusive of the question as to the extent of plaintiff's disability. All of such testimony agrees that the plaintiff is suffering from a ruptured disc and varicose veins, and has since 1954. Dr. Hastings, who examined him in 1958 and twice in 1960, testified that he found no substantial changes in the condition of plaintiff's back and legs from his first examination. All agree that his physical condition is such as to cause pain. None of the doctors testified that he could hold a regular job and one testified that his condition was such as to probably require periodic bed rest and change in position because of discomfort. There was medical testimony that sitting for long periods of time could cause plaintiff's legs to greatly swell because of the varicose veins. While the doctors testified that in their opinion the plaintiff could do work that did not require strenuous physical exertion, there was substantial agreement that the degree of pain *582 suffered by patients with ruptured disc varies, and that to a large extent the statement of the patient must be accepted as to the degree of such pain. The plaintiff testified that he suffered from disabling pain and was unable to do any work because of it. Dr. Hastings said that he saw no reason to disbelieve the plaintiff's statement as to his pain.
We are convinced that the issue as to the disability of plaintiff was properly submitted to the jury for determination.
The defendant contends, however, that the trial Judge should have directed a verdict in its favor because the plaintiff has been engaging in a coin collecting business in which he earns more than one-fourth of his former earned income. The plaintiff collects coins. He makes occasional trips to meetings of coin collectors where coins are bought, sold and exchanged. The plaintiff denies that he has engaged in coin collecting, other than a hobby, and that he has had no income therefrom. There is no evidence that the plaintiff was engaged in coin collecting as a business. The fact that the plaintiff may have invested money in coins and derived some profit therefrom in the pursuit of his hobby of coin collecting would not deprive him of his right to recover under the policies for total disability. "The fact that an insured receives income from sources other than work or occupation does not preclude his recovery of disability benefits." Dunlap v. Metropolitan Life Ins. Co., 235 S.C. 206, 110 S.E. (2d) 856.
The remaining issues arise under the defendant's motion for a new trial.
It is first contended that the trial Court erred in refusing to allow the defendant's attorney to cross examine the plaintiff relative to disability income that he received from other insurance companies.
It appears that the plaintiff, in addition to the disability policies issued to him by the defendant, also carried policies providing for disability benefits with other insurance companies, *583 all of whom stopped making payments to the plaintiff at about the same time. Until payments were stopped, the plaintiff received payments from all companies totaling $6,600.00 per year, plus waiver of premiums of approximately $1,900.00 per year. Of the total payments, the defendant paid $250.00 per month and other companies paid $300.00 per month. The defendant sought on cross examination of the plaintiff to show the amount of disability payments received by the plaintiff from these other companies, on the grounds that such testimony was competent (1) on the issue of the credibility of plaintiff's testimony, (2) to show the reason for the failure of plaintiff to work, (3) because of the direct examination of plaintiff as to the same matters, and (4) under the policy provisions. The trial Judge refused to allow such cross examination. A determination of these issues requires a review of the exercise by the trial Court of its power to control the range of the cross examination of witnesses during the trial.
It is well settled that the extent to which cross examination of a witness may go is a matter resting within the discretion of the trial Judge. The rule is thus stated in State v. Maxey, 218 S.C. 106, 62 S.E. (2d) 100: "The general range and extent of cross examination is within the discretion of the trial judge, subject to the limitation that it must relate to matters pertinent to the issue, or to specific acts which tend to discredit the witness or impeach his moral character. The discretion of the trial court in allowing cross examination is not subject to review except in cases of manifest abuse or injustice."
Ordinarily, in an action of this kind, evidence of the receipt by the insured of disability benefits under policies of insurance with other companies is irrelevant to any issue in the case. It is not "earned income" under the policy provisions in question, and its receipt by the insured ordinarily sheds no light on whether or not the insured is totally disabled under the policies issued by the defendant. They are separate and distinct liabilities.
*584 In the case of Dunlap v. Metropolitan Life Ins. Co., supra, 235 S.C. 206, 110 S.E. (2d) 856 effort was made to examine the plaintiff before trial as to income received from sources other than work or occupation. It was held that the receipt of such income by the insured did not preclude his recovery of disability benefits, and that an examination of the insured as to such matters was "wholly irrelevant to the issues involved" in the insured's action to recover benefits under the disability provisions of the policy.
The defendant argues, however, that such testimony was proper to show the plaintiff's motive for not working, since under all policies held by him his income from disability payments amounted to approximately two-thirds of his former earned income. While recognizing that no hard and fast rule could be laid down to govern the admissibility of such evidence on the foregoing ground, it was held in the case of Wiener v. Mutual Life Ins. Co. of N.Y., 352 Mo. 673, 179 S.W. (2d) 39, under a very similar factual situation to the one here involved, that it was prejudicial error to permit the defendant on cross examination of the insured to bring out that he was receiving disability payments from other insurance companies amounting to $13,750.00 a year.
It is the position of the defendant, however, that such cross examination was made proper by the direct examination of the plaintiff as to the same facts. The direct examination relied upon is as follows:
"Q. Mr. Garrett, if you were able, would you work, go to work now?
"A. I certainly would. I much rather be working than in the condition I am now.
"Q. The disability payments you receive, what is the comparison between that and your earned income the last year that you were employed?
"A. Some thirty-five or forty per cent.
"Q. Which is more, your earned income or the amount you were paid disability from the insurance company?
*585 "A. My earned income would be approximately three times from what I draw from these insurance companies, Yes, Sir."
The trial Judge apparently construed the foregoing testimony to relate only to the income received from the policies issued by the defendant and not to policies issued by other companies. In this we cannot say that he was incorrect. Testimony had been introduced as to the disability income of the plaintiff under the policies issued by the defendant and as to his prior earned income, which showed his prior income to have been approximately three times that of the disability payments. When considered in its context and in relation to the questions asked, it may reasonably be construed as referring only to the policies involved in this action. It was the duty of the trial Judge to confine the evidence to the issues in the case. Testimony as to the income from other policies was immaterial to the issues, and we cannot say that the trial Judge unduly limited the cross examination.
As heretofore stated, the extent and range of the cross examination of witnesses is left largely to the discretion of the trial Judge. After carefully considering the record we do not think that there was any abuse of such discretion in refusing to permit the cross examination of the insured as to the receipt by him of disability benefits under policies with other companies.
The defendant contends that, in any event, the testimony relative to disability insurance carried with other companies was made relevant by a policy provision which provided for a reduction of the disability payments if the aggregate of the monthly income under the policies issued by the defendant and any other insurance companies shall exceed 75% of his prior earned income. An examination of the pleadings and the record clearly shows that there was no issue in the trial of this case as to the foregoing policy provision. The amount of the prior earned income *586 of the plaintiff was conceded, as was the amount drawn as disability benefits under all policies. The application of this policy provision was not in issue and testimony thereabout was properly excluded.
During the trial of the case, Dr. Walter D. Hastings, Jr. testified for the plaintiff. He stated that he examined the plaintiff in 1958, in February, 1960 and again on September 30, 1960. As heretofore stated, the issue in the case was as to the disability of the plaintiff from December 5, 1959 until April 21, 1960. Dr. Hastings was permitted to testify, over the objection of the defendant, as to his examination of the plaintiff on September 30, 1960, approximately five months after the period involved in this action. It is claimed that this was error. The position of the defendant is without merit. The doctor did not testify that the plaintiff was totally disabled on September 30, 1960. He stated that in all of his examinations his findings were substantially the same, and that, in his opinion, the plaintiff could do some work of a sedentary nature. The jury was clearly instructed as to the period covered by their inquiry and could not have been confused as to the issue.
The defendant next argues that the lower Court committed error by unduly restricting the cross examination of Dr. Hastings relative to the general effect of a ruptured disc and the general treatment for it. In cross examining the doctor, counsel for the defendant attempted to elicit an answer as to what was generally done in the treatment of a patient suffering with a ruptured disc. It appeared that various factors entered into the treatment of such ailments, depending upon the nature and extent of the damage to the disc. The trial Judge ruled that the cross examination would be restricted to the treatment recommended in the plaintiff's case, since the doctor had examined him on three different occasions and had testified as to his findings. The doctor in this instance was familiar with the condition of the plaintiff. The inquiry was as to this particular *587 patient, and no reason appears to have warranted extending the examination to include what the treatment might have been in other cases.
The defendant next charges error in the exclusion of testimony relative to the resale value of coins purchased by the plaintiff. There was no error in so doing. We have hereinabove pointed out that the income derived from a hobby of coin collecting would not deprive the plaintiff of his right to collect total disability benefits. Testimony as to the resale value of coins purchased by the plaintiff was offered to show the margin of profit in such transactions. Since income from such a hobby could not affect the issue of total disability of the plaintiff under the policy provisions, it was not error to exclude the testimony in question.
Finally, error is alleged in the refusal of the trial Judge to give the following instruction to the jury:
"I charge you that you are not to consider whether this plaintiff drew only $250.00 per month in disability payments as against a larger amount which he earned when actually working, because this is not an issue, it being solely whether the plaintiff is disabled under the terms of the policy."
This charge was requested by the defendant solely on the ground that the attorneys for the plaintiff had allegedly argued to the jury that the plaintiff would not quit a job making nearly Ten Thousand ($10,000.00) Dollars per year in order to draw Two Hundred Fifty ($250.00) Dollars per month disability insurance income if he was not in fact totally disabled. The defendant contends that the requested charge was proper in view of the foregoing argument since the Court had previously excluded testimony which showed the disability income of plaintiff from all companies to be $550.00 per month.
No objection was interposed to the challenged argument at the time and the record fails to disclose the argument made. The first mention by counsel of the alleged improper argument was at the time of the requested instruction, made *588 at the conclusion of the charge to the jury. The order of the trial Judge refusing the motion for a new trial indicates that there was doubt in his mind as to the nature of the argument made, since objection thereto was not made at the time so that it could be entered in the record.
It is the duty of counsel to make timely objection to argument considered improper, so that the challenged argument can be entered in the record and a ruling then made by the trial Judge thereabout. Where this is not done, as here, and the alleged improper remarks are not set out in the record, exceptions to the refusal of the trial Judge to grant a new trial because of improper remarks by counsel will not be considered on appeal. Lawrence v. Southern Railway, 169 S.C. 1, 167 S.E. 839; Brown v. Atlantic Coast Line R.R. Co., 87 S.C. 314, 69 S.E. 510; Faris v. American Telephone & Telegraph Co., 84 S.C. 102, 65 S.E. 1017.
Affirmed.
TAYLOR, C.J., and MOSS, J., concur.
BUSSEY, J., dissents.
BUSSEY, Justice (dissenting).
I do not agree with the majority opinion in its entirety or the result therein reached, and respectfully dissent therefrom in the particulars hereinafter set forth.
I concur in the majority opinion that the issue as to the disability of respondent was properly submitted to the jury for determination and that the trial judge correctly disposed of the appellant's motion for judgment non obstante veredicto.
However, I do not think that he correctly disposed of the appellant's motion for a new trial and I am of the opinion that the judgment of the lower court should be reversed and a new trial ordered.
The exceptions raised a number of questions other than the principal question hereinafter discussed. With respect to *589 such other questions, I am not convinced that all of them are totally without merit. However, in view of the decision of the majority, I shall address this dissenting opinion only to an issue wherein I think there was clearly prejudicial error below, whereby, in my view, the appellant was deprived of a substantial legal right and was not accorded a fair trial.
The most serious question raised by appellant's exceptions is the contention of error on the part of the trial judge in refusing to allow appellant's attorney to cross examine the respondent Garrett relative to the disability income that he received from other insurance companies.
In the course of and near the end of the direct examination of the respondent the following evidence was offered in his behalf:
"Q. Mr. Garrett, if you were able, would you work, go to work now?
"A. I certainly would. I much rather be working than in the condition I am now.
"Q. The disability payments you receive, what is the comparison between that and your earned income the last year that you were employed?
"A. Some thirty-five or forty percent.
"Q. Which is more, your earned income or the amount you are paid disability from the insurance company?
"A. My earned income would be approximately three times from what I draw from these insurance companies, yes, sir."
Appellant's counsel sought on cross examination to elicit information as to the total amount of disability benefits drawn by the respondent and upon objection by respondent, the jury was excused. In the absence of the jury the respondent admitted that up until about December 1959 he had been receiving disability benefits from the defendant and other insurance companies in the total amount of six thousand six hundred dollars per year, and, in addition thereto, the benefit *590 of waiver of premiums to the extent of approximately nineteen hundred dollars per annum, making a total of approximately eighty-five hundred dollars in tax-free benefits which he was entitled to receive if totally and permanently disabled, within the terms of the various policies, as against the nine thousand eight hundred sixty-five dollars, which he earned prior to taxes, when last regularly employed. The trial judge ruled this line of cross examination irrelevant and incompetent and refused to allow defense counsel to bring these facts out in the presence of the jury. This, in my view, was clearly error.
The record reflects that the respondent testified at length as to his disability and the medical testimony supporting his claim of disability is, at least in part, based on subjective symptoms, hence, whether respondent is in truth totally and permanently disabled within the terms of the policies and the applicable law depends in very great measure on his credibility.
I am, therefore, of the view that the attempted cross examination of the respondent was perfectly proper and should have been allowed for the purpose of testing the credibility of the respondent, even if he had not sought to bolster his credibility and improve his standing with the jury by giving a misleading, if not totally untrue, picture of his financial status in his alleged disabled state, as compared with his financial status while still gainfully employed.
Certainly, when he went into the issue, the appellant, as a matter of right, was entitled to cross examine him thereabout. Moreover, the record reflects that counsel for the respondent made further capital of the misleading testimony by arguing to the jury that the respondent certainly would not give up an earned income of nine thousand eight hundred sixty-five dollars per year for the sake of drawing a mere two hundred fifty dollars per month in disability benefits, unless he were truly disabled. True, no objection was made to this argument by counsel during the course of the *591 argument, but the judge had, in effect, already ruled against the appellant on this point.
In Volume 2, Conrad's Modern Trial Evidence, Sec. 1182, it is said that the purposes of cross examination are "to provide a searching test of the intelligence, memory, accuracy and veracity of a witness; to support, modify, or explain what has been said and to develop new or old facts in a view favorable to a cross examiner, it being one of the safeguards to bring out accuracy and truthfulness; to weaken or show the untruthfulness of the witness examined or his bias or prejudice; to extract the remaining qualifying circumstances, if any, known to the witness, but previously undisclosed by him; * * *"
Again, at Sec. 1183, it is said: "The right of cross examination is a valuable right, not privilege, essential to the proper administration of justice. It is accorded to every litigant who finds himself confronted by adverse testimony and the right may not be unduly restricted or interfered with by the court."
Further, in Sec. 1184, it is said: "that great latitude should be allowed in cross examination of certain types of witnesses, such as * * *, adverse parties, * * *."
58 Am. Jur. 369, Witnesses, Sec. 676, reads as follows:
"676 Cross examination. The right to impeach a witness by cross examination is universally recognized. A fact tending to impair the credibility of a witness by showing his interest, bias, ignorance, motives, or that he is depraved in character, may be shown on cross examination.
"Cross examination of a witness to affect credibilty is largely discretionary as to the extent and period to be covered. The extent to which cross examination may be carried must be determined by the relation and apparent character and bearing of the witness under examination and the circumstances attending the particular case on trial. This does not mean that the court in its discretion may entirely exclude the testimony. Indeed, a wide range should be allowed on *592 cross examination when the questions propounded seek to elicit the motives, interest, or animus of the witness as connected with the cause or the parties thereto, upon which matters he may be contradicted by other evidence. Likewise, considerable latitude should be permitted in the propounding of questions on cross examination which seek to test the memory or credibility of the witness." (Emphasis added.)
In the case of Alford v. United States, 282 U.S. 687, 51 S. Ct. 218, 75 L. Ed. 624, opinion by Mr. Justice Stone, later Chief Justice, it was held that while the extent of cross examination with respect to an appropriate subject of inquiry was within the sound discretion of the trial court, the denial of reasonable latitude in cross examination of a witness was prejudicial error. In that case counsel for defendant was not allowed to bring out on cross examination the fact that a witness for the Government was then in custody of Federal authorities, it being contended by the defense that his testimony was possibly affected by fear or hope of favor growing out of his detention. The Court said:
"The extent of cross examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. He may exercise a reasonable judgment in determining when the subject is exhausted. * * * But no such case is presented here. The trial court cut off in limine all inquiry on a subject with respect to which the defense was entitled to a reasonable cross examination. This was an abuse of discretion and prejudicial error."
All pertinent decisions of this court, which have come to the writer's attention, are in accord with the foregoing authorities.
In the case of State v. Williamson, 65 S.C. 242, 43 S.E. 671, this Court said:
"The general rule as to cross examination is thus stated in Stephens' Digest of the Law of Evidence: `When a witness is cross examined, he may be asked any questions which tend (1) to test his accuracy, veracity, or credibility, or (2) *593 shake his credit by injuring his character.' The extent of a cross examination is very largely entrusted to the discretion of the trial court. Subject to this discretion, and subject to the right of a witness to decline to answer any question tending to criminate himself, the scope of the cross examination is unlimited, when its purpose is to test the credibility of the witness." (Emphasis added.)
The case of City of Greenville v. Spencer, 77 S.C. 50, 57 S.E. 638, 639, involved an appeal in a case tried in the Mayor's Court of the City of Greenville. In that case, after a number of questions were asked on a particular point, upon objection, the trial court stopped further cross examination, which action was affirmed by the Supreme Court. This court, after stating the general rule, said:
"A different question would be presented if there had been any substantial or prejudicial interference with the right of cross examination."
In the case of Bunch v. Charleston & W.C.R.R. Co., 91 S.C. 139, 74 S.E. 363, this Court said: "While it is true that the scope of the cross examination is largely in the discretion of the trial judge, still, when the question is as to the relevancy of the evidence, or whether it is in reply or no, it becomes a matter of law upon which this court ought to pass."
In the case of Charping v. Toxaway Mills, 70 S.C. 470, 50 S.E. 186, a witness testified that a piece of timber was too small to bear a certain weight and the court held that it was clearly proper to allow the adverse party to contradict this testimony by proof that the witness afterwards used timber the same size to bear the same weight at another place and time, against the contention that such evidence involved a collateral and irrelevant matter.
Peay v. Durham Life Insurance Co., 185 S.C. 78, 193 S.E. 199, is more nearly in point with the facts here than any South Carolina case which I have discovered. That case was a suit arising out of an insurance policy, and the plaintiff *594 was apparently confused in regard to the name of the agent of the company who allegedly refused to take the premiums on the policy and who told her the policy was canceled. On cross examination, counsel for the insurance company sought to cross examine the plaintiff in relation to the policies which she held with other companies, one of which had offices in the same building with and adjacent to the offices of the defendant; a matter which went directly to the credibility of the witness as to whether she had confused the agents of other insurance companies with the agents of the defendant. He was denied this opportunity and the lower court was reversed, this court saying: "It is true that the trial judge is vested with large discretion in the matter of competency, pertinency, and admissibility of testimony, but it is equally true that if, in the exercise of discretion, he infringes upon a legal right of a party to the trial, this court will review his action.
"We think such a situation is here disclosed, and that the ruling of the trial court was erroneous."
In my view, the case of State v. Maxey, 218 S.C. 106, 62 S.E. (2d) 100 (cited in the majority opinion), is not at all in conflict with the foregoing authorities and is simply not in point on the question under discussion. That case states and applies the broad rule as to the discretion of the trial judge with respect to the general range and extent of cross examination. The alleged error, however, was that the trial court had allowed too much latitude in cross examination, and not deprivation of the right of cross examination as is the case here.
The study of many cases, both civil and criminal, wherein the broad general rule as to discretion of the trial judge is actually applied, and not merely stated, shows that in most of them the issue was either: (1) whether or not the trial judge had allowed too much latitude, just as in the cited case, or: (2) whether the trial judge correctly exercised his discretion in determining that a particular topic of *595 cross examination had been sufficiently exhausted. Research on my part has disclosed no case in this or any other jurisdiction which has actually applied the broad rule where the trial judge cut off in limine cross examination on a point that was either properly in reply to testimony adduced by the opposition or went directly to the veracity of the witness being cross examined.
The clear weight of authority is to the effect that if the attempted cross examination is either properly in reply or goes to the veracity of the witness, the trial judge has no right or discretion to cut off such cross examination in limine and when he does so, it is prejudicial error.
In my humble opinion neither the case of Dunlap v. Metropolitan Life Ins. Co., 235 S.C. 206, 110 S.E. (2d) 856, nor the Missouri case of Wiener v. Mutual Life Ins. Co. of New York, 352 Mo. 673, 179 S.W. (2d) 39, is here in point, both of them being readily distinguishable.
In the Dunlap case the plaintiff was a dentist by profession and the defendant insurance company sought by way of pretrial examination to elicit information as to plaintiff's investment income, a matter totally irrelevant to any issue raised by the pleadings. His investment income was in no way connected with his ability or disability. The plaintiff in that case did not seek, as did the plaintiff here, to bolster his credibility as to his disability by giving a distorted picture of his income status, and, moreover, no question of his credibility could arise until he took the stand and testified. Attempting to obtain information in advance of the trial as to an issue not made relevant by the pleadings is a far cry from asking questions in cross examination which are in direct reply to an issue raised by the plaintiff and which go directly to the credibility of the plaintiff as a witness.
In the Wiener case the plaintiff was a doctor and the opinion shows that his disability within the terms of the policy did not rest largely upon his own testimony, as in the instant case, but that he had been examined by a number of *596 physicians and every one had advised him not to go back to practice because of the organic disease of his heart, which advice the doctor followed. The court did hold that under the facts of that particular case it was prejudicial error to allow the defendant company to bring out on cross examination of the doctor that he was receiving disability payments from other insurance companies, amounting to thirteen thousand seven hundred fifty dollars a year. The court, however, recognized that its ruling was not one of general application and that it was, in fact, restricted to the facts of the particular case. The decision reversed the lower court on several other grounds in addition to the ground mentioned, but on the particular point, inter alia, said the following:
"In Jennings v. United States, 5 Cir., 73 F. (2d) 470, there is the statement that a defendant may bring out the motives why a claimant of disability benefits has not worked, for example whether the failure to work was due to inability or the lack of a felt necessity. We do not regard this as a rule of general application because `each case presents its own setting, and no general rule (as to the admissibility of such evidence) can be laid down in advance.' Rose v. United States, 10 Cir., 70 F. (2d) 68, 69. Its admissibility `depends upon the fact issues and the situation developed by the evidence of such particular case.' Cockrell v. United States, 8 Cir., 74 F. (2d) 151, 154. This is so because `evidence of insured's wealth or his poverty, his income or his expenses, as such, is ordinarily of no materiality and may in some cases cause sympathy or prejudice to influence the verdict.' United States v. Dudley, 9 Cir., 64 F. (2d) 743, 745. In the latter case the court found such evidence nonprejudicial because it was invited. The same was true in the Jennings case and in Prevette v. United States, 4 Cir., 68 F. (2d) 112, and Morrow v. United States, 7 Cir., 101 F. (2d) 654."
Here, just as in the cases last cited by the Missouri court, the evidence sought to be brought out by the appellant was *597 invited by the testimony of the respondent himself. He clearly sought to bolster his credibility and appeal to the sympathy of the jury. No other purpose for offering such testimony on the part of the respondent here is readily apparent. In brief, I do not believe that the Wiener case is authority for the decision reached by the majority here. A reading of that opinion rather leads me to the conclusion that the Missouri court would arrive at a different conclusion if confronted with the factual situation here involved. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2631071/ | 164 P.3d 146 (2007)
2007 OK 59
AMERICAN AIRLINES and American Home Assurance, Petitioners,
v.
David B. HICKMAN and The Workers' Compensation Court, Respondents.
No. 101,472.
Supreme Court of Oklahoma.
July 3, 2007.
Leah P. Keele, Patrick S. Parr, Pierce Couch Hendrickson Baysinger & Green, L.L.P., for petitioners.
James E. Lowell; Tulsa, OK, for respondent.
WINCHESTER, C.J.
¶ 1 The question presented on certiorari is whether the Court of Civil Appeals erred when it ruled the statute of limitations, 85 O.S.2001, § 43, was not tolled by acts of the employer, American Airlines, thereby reversing the order of the three-judge panel of the Workers Compensation Court. We answer that the actions of the employer tolled the statute of limitations.
¶ 2 The claimant, David B. Hickman, worked as a cabin crew member whose responsibilities included removal of the interior of the cabin on aircraft for inspections. On September 10, 2001, when he helped lift a heavy galley floor mat he felt a sharp pain in the left part of his groin. Although the pain diminished immediately, the soreness lasted about half the day. He testified that he believed he had pulled a muscle. He continued to do heavy lifting and noticed an irritation again in the spring of 2002. He also noticed a bulging. On June 24th of 2002, he *148 reported this to the supervisor on duty, who told him to report to the MedCenter.
¶ 3 Hickman testified he went straight to the MedCenter where he was diagnosed with a hernia. Neither the employer nor the claimant paid the MedCenter. He subsequently had surgery to correct the problem in November of 2003. Hickman further testified that Sheila Ryan was assigned to handle his claim. When he talked to her about the claim she told him it would be denied because of the late time frame in which he reported it. He filed his Form 3 on February 10, 2004, and claimed a single event injury to his groin, a hernia, on September 10, 2001, and a cumulative trauma aggravation injury with a date of last exposure of September 2003. The employer denied the claim, in part on the basis that it was barred by the statute of limitations.
¶ 4 The trial judge found that Hickman had sustained an injury due to a single event occurring on September 10, 2001, with cumulative trauma aggravation, and with the claimant's last injurious exposure to trauma on September 10, 2001. The court awarded hernia benefits. The court denied the employer's statute of limitations defense, ruling that the employer, by its actions, had tolled the statute of limitations.
¶ 5 The employer filed a request for review including two issues, that the statute of limitations had run, and that the trial court had failed to address the employer's "notice" defense. On November 9, 2004, the three-judge panel filed an order affirming in part and modifying in part the decision of the trial court. The panel modified the order by denying the employer's notice defense. Otherwise, the trial court's order of July 28, 2004, was affirmed. When the employer appealed that decision, the Court of Civil Appeals reversed, holding that the claim was barred by the statute of limitations. We have previously granted certiorari.
¶ 6 A decision of the three-judge panel must be reviewed by applying the any-competent-evidence test of correctness. Under this standard the appellate court's responsibility is to canvass the facts to ascertain whether the panel's decision is supported by competent evidence. The findings of fact made by the panel are conclusive and binding unless they lack support in competent evidence. See, Parks v. Norman Municipal Hospital, 1984 OK 53, ¶ 12, 684 P.2d 548, 552. "A statute-of-limitation issue ordinarily presents a mixed question of fact and law." Sneed v. McDonnell Douglas, Industrial Indemnity Co., 1999 OK 84, ¶ 9, 991 P.2d 1001, 1004. If supported by any competent evidence, the panel's factual determinations relative to the statutory time bar will not be independently reviewed. However, application of the time bar provided in § 43 of title 85 to render a claim not remediable is a conclusion of law and subject to de novo review by this Court. See, Sneed, 1999 OK 84, ¶ 9, 991 P.2d at 1004.
¶ 7 Because the panel affirmed the trial court on the statute of limitations defense, we will canvass the facts to determine if there is any competent evidence to support the court's finding that the actions of the employer tolled the statute of limitations. During the testimony at trial, there was evidence presented that the supervisor for the employer, John Garrison, sent the claimant to the MedCenter, which could be found by the court to be authorization for medical treatment. Also, there was evidence that the person who took Hickman's claim, Sheila Ryan, told him that too much time had elapsed before he reported the injury.
¶ 8 The statute of limitations applicable to the case before us was codified in 2001,[1] and has been subsequently amended.[2] It provided in pertinent part:
A. "The right to claim compensation under the Workers' Compensation Act shall be forever barred unless, within two (2) years after the date of accidental injury or death, a claim for compensation is filed with the Workers' Compensation Court. Provided however, a claim may be filed within two (2) years of the last payment of any compensation or remuneration paid in lieu of compensation *149 or medical treatment which was authorized by the employer or the insurance carrier."
¶ 9 The employer argues that Ibarra v. Hitch Farms, 2002 OK 41, 48 P.3d 802, in construing § 43(A), holds that the operative event in determining whether the statute of limitations has been tolled is not the authorization of medical treatment, but the last payment of authorized medical treatment. Because the employer did not pay for the claimant's examination when he was sent to the MedCenter by his supervisor, the employer claims that the statute of limitations was not tolled.
¶ 10 In Ibarra the facts reveal that the claimant, Ibarra, had received medical treatment, and the employer had paid for the authorized treatment. Ibarra, 2002 OK 41, ¶ 2, 48 P.3d 802. In the case now before this Court, no payment was made. The question we must answer is whether the ambiguous statute construed in Ibarra excludes tolling the statute of limitations where medical treatment was authorized, but no payment was made for the treatment. The claimant answers that the employer should not be able to avoid the tolling of the statute of limitations by simply not paying for treatment it authorized. We do not believe that Ibarra precludes the date of treatment as the operative date for tolling the statute of limitations found in § 43(A) of title 85.
¶ 11 Section 43 has been amended since the Ibarra opinion. When construing a statute that has been amended, we consider that the legislature may have intended either (1) to effect a change in the existing law or (2) to clarify that which previously appeared doubtful. Magnolia Pipe Line Co. v. Oklahoma Tax Comm'n, 1946 OK 113, ¶ 11, 167 P.2d 884, 888. Although Ibarra was construing an earlier statute,[3] and the wording of subsection A was identical to the statute we now construe, the statute was amended again in 2005, and the pertinent part now provides,
"The right to claim compensation under the Workers' Compensation Act shall be forever barred unless, within two (2) years after the date of accidental injury or death, a claim for compensation is filed with the Workers' Compensation Court. Provided however, a claim may be filed within two (2) years of the last medical treatment which was authorized by the employer or the insurance carrier or payment of any compensation or remuneration paid in lieu of compensation."
85 O.S.Supp.2006, § 43(A).
¶ 12 The 2005 amendment clearly provides that the claim may be filed within two years of the last authorized medical treatment. Because we found the former wording of the 1997 statute ambiguous, Ibarra, 2002 OK 41, ¶ 3, 48 P.3d 802, we conclude that the legislature clarified what previously appeared doubtful. Magnolia Pipe Line Co., 1946 OK 113, ¶ 11, 167 P.2d at 888.
¶ 13 This Court has examined subsequent amendments to ascertain the intent of the legislature in construing a statute, and used that information in determining its meaning. See, Nantz v. Nantz, 1988 OK 9, 749 P.2d 1137. The present form of § 43(A) reveals that the legislature intended that the statute of limitations be tolled by treatment authorized by either the employer or the insurance company.
¶ 14 In Oklahoma Furniture Mfg. Co. v. Nolen, 1933 OK 305, 23 P.2d 381, the Court construed the originally enacted statute, which the Court quotes: "The right to claim compensation under this Act shall be forever barred unless within one year after the injury, a claim for compensation thereunder shall be filed with the Commission." Nolen, 1933 OK 305, ¶ 4, 23 P.2d at 382. No exception for tolling is provided by that statute. The facts revealed that the claimant did not file for compensation within one year from the date of his injury, but did file within one year of the date he last received medical treatment. Nolen, 1933 OK 305, ¶ 2, 23 P.2d at 382.
¶ 15 The Nolen Court observed that this statute was a limitation on the remedy and *150 not on the right; accordingly, the requirement could be waived by the employer and the insurance carrier. Nolen, 1933 OK 305, ¶ 5, 23 P.2d at 382. The issue was whether or not the furnishing of medical treatment alone was sufficient to toll the statute of limitations. Nolen, 1933 OK 305, ¶ 9, 23 P.2d at 382. The Court held that the furnishing of medical treatment recognized liability and constituted the equivalent of the payment of compensation, which was sufficient to toll the statute. Nolen, 1933 OK 305, ¶ 10, 23 P.2d at 382.
¶ 16 When the Nolen case was handed down, the exceptions to the statute of limitations for filing a workers compensation case, which were later recognized by statute, were part of case law. Ibarra construed the ambiguous statute, but did not overrule previous case law. The trial court heard and observed the witnesses when they testified concerning the claimant's trip to the Med-Center and could conclude that the trip was authorized. The trial panel affirmed the trial court's findings with regard to the actions of the employer that tolled the statute of limitations. Competent evidence exists for that determination. The claimant filed his claim within two years of the authorized treatment's date, and our construction of the statute and case law provides that the authorized treatment was enough to toll the statute of limitations. Accordingly, the decision of the trial panel is sustained.
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE WORKERS COMPENSATION COURT SUSTAINED.
ALL JUSTICES CONCUR.
NOTES
[1] 2001 Okla.Sess.Laws, 1st Ex.Sess., ch. 3, § 16, codified at 85 O.S.2001, § 43.
[2] 2005 Okla.Sess.Laws, 1st Ex.Sess., ch. 1, § 24, codified at 85 O.S.Supp.2006, § 43.
[3] Ibarra filed his claim for compensation on April 9, 2001. The version of the statute then in effect was 1997 Okla.Sess.Laws, ch. 361, § 12. It was amended by 2001 Okla.Sess.Laws, 1st Extr. Sess., ch. 3, § 16, effective October 23, 2001. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261438/ | 110 Cal. Rptr. 2d 722 (2001)
91 Cal. App. 4th 698
Ashley ARNOLD, a Minor, etc., et al., Plaintiffs and Appellants,
v.
The DOW CHEMICAL COMPANY et al., Defendants and Respondents.
No. B143708.
Court of Appeal, Second District, Division Two.
August 14, 2001.
Rehearing Denied September 13, 2001.
Review Denied November 14, 2001.
*725 Law Offices of Raphael Metzger, Raphael Metzger, Long Beach, and James A. von Sauer, for Plaintiffs and Appellants.
Haight, Brown & Bonesteel, Farah Nicol, Santa Monica; Barnes & Thornburg, Andrew J. Detherage and Charles P. Edwards, Indianapolis, IN, for Defendants and Respondents The Dow Chemical Company and Dow Agrosciences, LLC.
Prindle, Decker & Amaro, Long Beach, Mark Pepys; Baker & Hostetler, James L. Moore and John W. Ghezzi, Houston, TX, for Defendant and Respondent Bayer Corporation.
*726 Seyfarth Shaw, John D. Dwyer, Todd C. Hunt, Los Angeles, and Richard E. Elder, Concord, for Defendant and Respondent FMC Corporation.
Akin, Gump, Strauss, Hauer & Feld, David C. Allen, Phillip J. Eskenazi and Lisa C. Phelan, Los Angeles, for Defendant and Respondent Van Waters & Rogers Inc.
Klinedinst, Fliehman & McKillop, Kendra J. Hall and Jennifer N. Lehman, San Diego, for Defendants and Respondents Lumber City Corporation and Ezell Nursery Supply, Inc.
Law Offices of Gerald Philip Peters, Gerald Philip Peters, Encino; Snyder, Dorenfeld & Tannenbaum and Bradley A. Snyder, Encino, for Defendant and Respondent Q.B. Scott Company, Inc.
NOTT, J.
Appellants Ashley and Alexa Arnold, through Michelle Arnold, as guardian ad litem, appeal from a judgment entered after the trial court granted summary judgment in favor of respondents Q.B. Scott Company, Inc. (Scott), Lumber City Corporation (Lumber City), Ezell Nursery Supply, Inc. (Ezell), Dow Agroseiences LLC and The Dow Chemical Company (collectively referred to as Dow), Van Waters & Rogers Inc. (Van Waters), FMC Corporation (FMC), and Bayer Corporation (Bayer); collectively referred to as respondents.
At issue is whether the preemption provisions of the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136v; FIFRA) operate to foreclose appellants' state common law causes of action. We conclude that appellants' causes of action are not preempted. It is important to note that if the state common law claims are preempted, then appellants will have absolutely no recourse for their injuries, since no private right of action exists under FIFRA. Here, the record shows that appellants used the pesticides which allegedly caused their injuries, as directed. Under those facts, we believe that the burden of the cost of serious injury actually caused by pesticides should, as a matter of public policy, be borne by the pesticide manufacturers and distributors rather than the innocent consumers. We emphasize that the issue of causation played no part in the summary judgment motions below, and may be a determinative factor in future proceedings.
We affirm in part and reverse and remand in part. We conclude that the trial court erred in granting summary judgment as to appellants' causes of action as to strict liability and breach of implied warranties of fitness and merchantability. However, to the extent that appellants alleged a cause of action in paragraphs 43 and 44 based on failure to warn, that cause of action is stricken.
CONTENTIONS
Appellants contend that the trial court erred in granting summary judgment on the basis that their claims for strict liability and breach of implied warranty were preempted by FIFRA, because those causes of action fall outside FIFRA preemption, which is limited to labeling and packaging.
Respondents variously contend that: (1) the strict liability cause of action is expressly preempted; (2) the consumer expectations test under a theory of strict liability is inapplicable; (3) the strict liability cause of action is impliedly preempted; (4) the breach of implied warranty of merchantability cause of action is expressly preempted; and (5) the breach of implied warranty of merchantability cause of action fails due to the lack of privity between appellants and respondents.
*727 FACTS AND PROCEDURAL BACKGROUND
Appellants claim that Alexa suffered an intrauterine stroke, which resulted in hemiparesis (paralysis affecting one side of the body), hemianopsia (blindness affecting half of the field of vision) and disability as a result of pesticides sprayed in and scattered around her home when she was in utero. Appellants also claim that Ashley suffered pancreatitis and hepatitis as a result of exposure to the same pesticides.
The Second Amended Complaint
On June 2, 1999, appellants filed a second amended complaint (SAC) against respondents [1] alleging causes of action for: (1) strict liabilitydesign defect and (2) breach of implied warranties. As to the cause of action for strict liabilitydesign defect, appellants alleged that the injuries sustained by them were caused by their exposure to the pesticides Dursban, Mr. Scott's Do-It-Yourself Pest Control, Dragnet and Baygon. Appellants alleged that on January 31, 1997, Don's Dropdead Pest Control was hired by the Arnolds' landlord to eliminate ant infestations in and around the home in which Michelle, her husband Chad, and their one and one-half year old daughter Ashley were residing. Michelle was pregnant with Alexa at that time. Don's Dropdead Pest Control applied a pesticide product containing Dursban and Baygon, in and around the Arnold residence. On July 9, 1997, Don's Dropdead Pest Control made another visit and applied Dursban and Dragnet to the home. Alexa was born on July 20, 1997. On December 13, 1997, Chad purchased and used a product inside the home called Mr. Scott's Do-It-Yourself Pest Control from Lumber City. Appellants alleged that "Said products were defective in their design, because they failed to perform as safely as an ordinary user would expect when used in their intended or reasonably foreseeable [manner]." The SAC alleged that the products in question contained Dursban which, in turn, contains chlorpyrifos, a pesticide with numerous known adverse toxic effects to humans. Appellants alleged that Dragnet contains the active ingredient permethrin, a pesticide with numerous adverse side effects to humans, and that Baygon, also known as Propoxur, is a pesticide with numerous adverse side effects to humans.
As to the second cause of action for breach of implied warranties, the SAC alleged that by placing the products in the stream of commerce, respondents warranted the products to be reasonably fit for their intended use and that such products were of merchantable quality. The SAC alleged that the respondents "breached said implied warranties, because said products were not fit for their intended use, were not of merchantable quality, and did not function as safely as an ordinary consumer would expect when used as directed, intended or in a reasonably foreseeable manner." The SAC alleged that respondents knew of the dangers of the chemical products but consciously disregarded appellants' safety despite knowledge of the probable dangerous consequences of exposure to said chemical products, and willfully and deliberately failed to avoid said *728 dangerous consequences befalling appellants.
Deposition Testimony of Michelle Arnold
Michelle testified that in January 1997, Don's Dropdead Pest Control began spraying Dursban on the baseboard of the kitchen floor in her residence while she and Ashley were inside the house. After approximately 15 to 20 minutes, she and Ashley left the residence. When she returned, she noticed an oily residue along the baseboard, on the countertops, and in the cupboards. Upon inquiry, she was told by the exterminator to let the oily residue dry and then wipe it up with soap and water, which she did. During that same visit, the exterminator also scattered Dursban granules through the yard. In July 1997, Don's Dropdead Pest Control applied pesticides to the front yard while Michelle and Ashley remained in the house. Michelle could hear the exterminator on the roof of the house at one point. Later, she found pesticide granules in the yard.
Declaration of Michelle Arnold
Michelle declared that: "At no time when pesticides were applied in and around our home did I expect that they would cause my daughter, Ashley, to suffer pancreatitis and hepatitis, or our daughter, Alexa, to sustain an intrauterine stroke, resulting in hemiparesis, hemianopsia and great disability. Indeed, I do not believe that any parent would reasonably expect that the products designed and intended for home use would cause such injuries to children."
The Summary Judgment Motions
Dow's motion for summary judgment
Dow, the manufacturer of Dursban Pro, All-Pro Dursban 2.5 G, and the chemical chlorpyrifos alleged to have been an active ingredient in Mr. Scott's Do-It-Yourself Pest Control with Time Release Dursban[2] filed its motion for summary judgment on April 28, 2000, urging that FIFRA expressly and impliedly preempted any state law tort claim that directly or indirectly challenged the sufficiency of the labeling for a registered pesticide approved by the Environmental Protection Agency (EPA). Dow also argued that the implied warranty claims were expressly preempted and that they independently failed because appellants lacked privity of contract with Dow. The trial court denied appellants' request for leave to amend and on June 5, 2000, granted the motion for summary judgment. The trial court did not rule on evidentiary objections filed by Dow to exhibits attached to appellants' counsel's declaration.[3]
FMC's motion for summary judgment
FMC, the manufacturer of Dragnet, filed its summary judgment motion on May 31, 2000, arguing that FIFRA expressly and impliedly preempted any state law tort claim that directly or indirectly challenged the sufficiency of the EPA-approved labeling for a registered pesticide, and that the implied warranty claim was expressly preempted. FMC also argued that the implied warranty claim independently failed because appellants lacked privity of contract with FMC. FMC further urged that summary judgment *729 against appellants' punitive damages claims was required as a matter of law because these claims were preempted by FIFRA.
Bayer's, Van Waters's and Scott's motions for summary judgment
Bayer (the manufacturer of Baygon), Van Waters (the entity that sold the Dow, Bayer, and FMC pesticides to Don's Dropdead Pest Control), and Scott (the manufacturer of Mr. Scott's Do-It-Yourself Pest Control),[4] filed separate motions for summary judgment on June 2, 2000. Each summary judgment essentially urged that appellants' design defect and implied warranty claim were expressly preempted, and that the implied warranty claim independently failed because of lack of privity.
On June 30, 2000, the trial court granted the motions for summary judgment and sustained Van Waters's and Scott's evidentiary objections to the exhibits attached to the declarations of appellants' attorneys and ruled that the actions of the EPA in disapproving prospective use of one of the chemicals involved in this case was not relevant to the preemption issue.
On June 30, 2000, the trial court granted the summary judgment motions of FMC, Bayer, Scott, and Van Waters. The trial court also granted summary judgment in favor of Lumber City and Ezell, which had joined in Scott's motion for summary judgment.
The Motion for Reconsideration
On June 5, 2000, appellants filed a motion for reconsideration of the trial court's order granting the summary judgment motion of Dow, on the basis that new facts had come to light which demonstrated a change in the EPA-approved status of Dursban. This motion was based on an announcement made by the EPA on June 1, 2000, that it was banning Dursban for domestic use and school use, due to its toxic effects on children. The trial court denied the motion on July 7, 2000, for the reason that subsequent actions by the EPA were irrelevant.
DISCUSSION
I. Standard of Review
Summary judgment is granted if all the submitted papers show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proa, § 437c, subd. (c).) A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established or that an affirmative defense to that cause of action exists. (Code Civ. Proc, § 437c, subd. (n); see Rowe v. Superior Court (1993) 15 Cal. App. 4th 1711, 1724, 19 Cal. Rptr. 2d 625.) Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. (Code Civ. Proc, § 437c, subd. (o).) The plaintiff must set forth specific facts showing that a triable issue of material fact exists. (Ibid.)
In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal. App. 4th 544, 548, 5 Cal. Rptr. 2d 674.) We must determine whether the facts, as shown by the parties, give rise to a triable issue of material fact. (Walker v. Blue Cross of California (1992) 4 Cal. App. 4th 985, 990, 6 Cal. Rptr. 2d 184.) In making this determination, the moving party's affidavits *730 are strictly construed while those of the opposing party are liberally construed. (Ibid.)
II. Express Preemption Under FIFRA
A. FIFRA
Recognizing the beneficial and deleterious effects of pesticides on the environment, in 1972, Congress made substantial amendments to the original enactment of FIFRA. (Chemical Specialties Mfrs. Assn. v. U.S.E.P.A. (D.D.C.1980) 484 F. Supp. 513, 515.) Thus, FIFRA was created as a regulatory scheme requiring a careful balancing of risks and benefits before allowing the use of pesticides. (Ibid.) The purpose of FIFRA is to register Pesticides in order to prevent unreasonable adverse effects on the environment, including humans. (7 U.S.C. §§ 136(bb), 136a(a).) In the registration process, the EPA must find that the labeling complies with FIFRA's requirements (7 U.S.C. § 136a(c)(5)(B)), and that the pesticide, when used in accordance with its labeling "will perform its intended function without unreasonable adverse effects on the environment." (7 U.S.C. § 136a(c)(5)(Q.) Under 7 United States Code section 136a(d)(1)(A), the EPA Administrator (Administrator) can classify the pesticide for general or restricted use and impose labeling requirements to ensure that the pesticide is properly handled and applied.
B. No private right of action
The penalties for violation of FFRA can only be imposed by the Administrator. Private parties, such as appellants here, have no recourse for recovery for their injuries under FIFRA.
7 United States Code section 136j outlines acts that are considered unlawful under FIFRA. These unlawful acts include selling pesticides which are not registered, or are adulterated, misbranded, or whose composition differs from that described in the registration statement. Moreover, registrants are prohibited from using any registered pesticide in a manner inconsistent with its labeling or submitting false data to the Administrator. (7 U.S.C. § 136j(a)(1)(G), (R).)
Penalties imposed as a result of violation of any provision of FIFRA include the issuance of a "stop sale, use, or removal" order, or seizure. (7 U.S.C. § 136k(a), (b).) In addition, civil and criminal penalties may be imposed. Any registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor who violates any provision of FIFRA may be assessed a civil penalty of not more than $5,000 for each offense. (7 U.S.C. § 136J (a)(1).) Any private applicator who violates FFRA after receiving a written warning or citation may be assessed a civil penalty of not more than $1,000 for each offense, with certain exceptions. (7 U.S.C. § 136Z (a)(2).) Any registrant, applicant for registration or producer who knowingly violates any provision of FIFRA shall be fined not more than $50,000 or imprisoned for not more than one year, or both. (7 U.S.C. § 136Z (b)(1)(A).) Any private applicator who knowingly violates FIFRA shall be guilty of a misdemeanor and shall on conviction be fined not more than $1,000 or imprisoned for not more than 30 days or both. (7 U.S.C. § 136 (b)(2).)
Under 7 United States Code section 136w-2(a), a complaint may be filed with the Administrator for significant violation of pesticide use provisions of FIFRA; the Administrator shall refer the matter to the appropriate state officials for investigation. If the state fails to act within 30 days, the Administrator may invoke various enforcement provisions within FIFRA. Other than the filing of such a complaint, however, a citizen has no recourse under *731 FIFRA. Among other courts, the Ninth Circuit has held that there is no private right of action for recovery of damages under FIFRA. In Fiedler v. Clark (9th Cir.1983) 714 F.2d 77, 79, the Ninth Circuit determined that Congress considered and rejected amendments that would have authorized citizen suits for failure to perform nondiscretionary duties or for failure to investigate and prosecute violations. It held that the legislative history of FIFRA confirms that Congress did not intend to create a private right of action. (See also Almond Hill School v. U.S. Dept. of Agriculture (9th Cir.1985) 768 F.2d 1030, 1039 [plaintiffs could not maintain an action pursuant to 42 U.S.C § 1983 seeking injunctive relief under FIFRA].)
Accordingly, plaintiffs who believe they have been injured as a result of exposure to pesticides must proceed under state common law theories of recovery. Therefore, should preemption be the rule and should every action be considered a failure-to-warn claim, plaintiffs will never recover for injuries they have suffered.
C. The argument to the trial court
Respondents successfully argued to the trial court that the following subsections set forth in FIFRA at 7 United States Code section 136v, preempt the state tort claims alleged by appellants: "(a) In general [¶] A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter. [¶] (b) [¶] Uniformity [¶] Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter."
Article VI of the United States Constitution, the supremacy clause, says that a state law is preempted by federal law if Congress so intends. (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (Cipollone ).) The intention of Congress can be made explicit or implicit in the federal statute. (Id. at pp. 516-517, 112 S. Ct. 2608.) However, there is a general presumption against federal preemption. (Id. at p. 523, 112 S. Ct. 2608.)
The law in the area of FIFRA preemption is by no means straightforward. Most federal circuit courts seem to agree that only failure-to-warn cases are preempted by FIFRA, a decision with which the California Supreme Court is in accord. On one extreme, some federal and state courts strictly construe all state common law cases as failure-to-warn causes of action that are preempted by FIFRA. On the other extreme, the Montana Supreme Court has recently decided that FIFRA does not preempt failure-to-warn cases.
D. Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal. 4th 316
Recently, the California Supreme Court determined that FIFRA preempts claims based on a failure to warn on EPA-approved labels, but does not preempt claims not predicated on the adequacy of the warnings on EPA-approved labels. (Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal. 4th 316, 335, 93 Cal. Rptr. 2d 36, 993 P.2d 366 (Etcheverry).) There, the trial court granted summary judgment in favor of pesticide manufacturers and a pest control adviser against claims brought by plaintiffs who operated walnut orchards. The trial court held that the plaintiffs had stated claims that, in effect, challenged the adequacy of the labels and therefore were preempted by FIFRA. The trial court also held that the plaintiffs failed to produce triable issues of fact in support of their negligence, misrepresentation and fraud claims. The Third District Court of *732 Appeal reversed on the basis that state law failure-to-warn claims are not preempted by FIFRA.
In reversing the Court of Appeal, the California Supreme Court extensively discussed Cipollone in which cigarette manufacturers asserted that state law failure-to-warn actions were preempted by the Federal Cigarette Labeling and Advertising Act of 1965 (Pub.L. No. 89-92 (July 27, 1965) 79 Stat. 282, codified at 15 U.S.C. § 1331 et seq. (the 1965 Cigarette Act)) and its successor, the Public Health Cigarette Smoking Act of 1969 (Pub.L. No. 91-222 (Apr. 1, 1970) 84 Stat. 87, amending 15 U.S.C. § 1331 et seq. (the 1969 Cigarette Act)). (Etcheverry, supra, 22 Cal.4th at p. 323, 93 Cal. Rptr. 2d 36, 993 P.2d 366.) The Cipollone court held that the 1969 Cigarette Act, by its broad language (as opposed to the precise and narrow language of the 1965 Cigarette Act), barred not only statements, but "requirements" or "prohibitions" imposed under state law, and thus preempted common law failure-to-warn claims. (Etcheverry, supra, 22 Cal.4th at p. 324, 93 Cal. Rptr. 2d 36, 993 P.2d 366.)[5] The 1969 Cigarette Act, however, did not preempt claims that relied solely on the manufacturers' testing or research practices or other actions not related to advertising or promotion, such as express warranty, intentional fraud and misrepresentation, or conspiracy. (Etcheverry, supra, 22 Cal.4th at p. 335, 93 Cal. Rptr. 2d 36, 993 P.2d 366.)
The California Supreme Court in Etcheverry distinguished Ferebee v. Chevron Chemical Co. (U.S.Ct.App.1984) 736 F.2d 1529 (Ferebee) as predating Cipollone, supra, 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407. Ferebee held that FIFRA does not preempt state law failure-to-warn claims because those claims are not requirements for labeling or packaging different from those required under FIFRA. (Etcheverry, supra, 22 Cal.4th at p. 327, 93 Cal. Rptr. 2d 36, 993 P.2d 366.) The Etcheverry court also distinguished Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (Medtronic) in which the United States Supreme Court recognized that Congress gave the federal Food and Drug Administration (FDA) a unique role in determining the scope of preemption under the Medical Device Amendments of 1976 (MDA) to the federal Food, Drug and Cosmetic Act. (21 U.S.C. § 360k(a).) The Etcheverry court stated that Congress did not confer a similar role on the EPA. (Etcheverry, supra, 22 Cal.4th at p. 329, 93 Cal. Rptr. 2d 36, 993 P.2d 366.) The Etcheverry court rejected the arguments of the United States, appearing as amicus curiae, that the courts have mistakenly applied the preemption doctrine in FIFRA cases because "the EPA concerns itself only with whether a pesticide would have unreasonably adverse effects on human health or the natural environment. In initially registering a pesticide, the EPA does not address the question whether *733 it will control the target pest or harm the crop it was intended to protect. . . ." (Etcheverry, supra, 22 Cal.4th at p. 330, 93 Cal. Rptr. 2d 36, 993 P.2d 366.) Rather, the Etcheverry court reasoned that this is not a case based on efficacyfailure to control the target pestbut a case based on the manufacturer's failure to warn that the pesticides could damage the crop they were intended to protect (phytotoxicity). The Etcheverry court held that even if phytotoxicity were included within the concept of efficacy, regulation will still occur, since the EPA requires submission of efficacy data for agricultural pesticides if problems develop after initial registration, and California, while it may not impose its own requirements for labeling, can restrict or prohibit the sale or use of products that it determines are inefficacious or phytotoxic. (Etcheverry, supra, 22 Cal.4th at p. 332, 93 Cal. Rptr. 2d 36, 993 P.2d 366.)
The Etcheverry court held that "[w]hen a claim, however couched, boils down to an assertion that a pesticide's label failed to warn of the damage plaintiff allegedly suffered, the claim is preempted by FIFRA." (Etcheverry, supra, 22 Cal.4th at p. 335, 93 Cal. Rptr. 2d 36, 993 P.2d 366.) In doing so, it cited cases where the claims were obvious or disguised labeling claims. (Grenier v. Vermont Log Bldgs., Inc. (1st Cir. 1996) 96 F.3d 559 [plaintiffs essentially alleged failure to warn against use of chemically treated logs in residences]; Taylor AG Industries v. Pure-Gro (9th Cir.1995) 54 F.3d 555 [plaintiffs' failure-to-warn claims were preempted to the extent they required additional or different information on the manufacturer's labels; negligent testing claim based on inadequate product labels also preempted]; Andrus v. AgrEvo USA Co. (5th Cir.1999) 178 F.3d 395 [cause of action based on failure of herbicide to perform as advertised on label was preempted]; Kuiper v. American Cyanamid Co. (7th Cir.1997) 131 F.3d 656 [cause of action based on statement made by herbicide dealer which reiterated statement on label was based on failure to warn and therefore preempted]; Welchert v. American Cyanamid, Inc. (8th Cir.1995) 59 F.3d 69 [express warranty claim was based entirely on the herbicide label's statement and was preempted]; Papas v. Upjohn Co. (11th Cir.1993) 985 F.2d 516 [claim that alleged that manufacturer failed to warn its product contains certain harmful chemicals and failed to inform users was preempted].)
The Etcheverry court recognized that other courts have rejected preemption challenges which did not implicate requirements for labeling different from those required by FIFRA. Some of those cases include Burt v. Fumigation Service and Supply, Inc. (W.D.Mich.1996) 926 F. Supp. 624 (cause of action alleging that pesticide was defective and required a change in product design was not a claim for failure to warn through labeling and was not expressly preempted), Reutzel v. Spartan Chemical Co. (N.D.Iowa 1995) 903 F. Supp. 1272 (strict liability for defective design and manufacture not preempted), Arkansas-Platte & Gulf Partnership v. Dow Chemical Co. (D.Colo.1995) 886 F. Supp. 762 (claims for negligence and strict liability for defective design and manufacture of pesticide not based on a theory of inadequate labeling and therefore not preempted by FIFRA), and Higgins v. Monsanto Co. (N.D.N.Y.1994) 862 F. Supp. 751 (failure to fully disclose information to EPA and strict liability theory of defective design were not predicated on failure to warn or inadequate labeling and were therefore not preempted).
The Etcheverry court recited the allegations of the plaintiffs' complaint: that defendant Bayer negligently manufactured, formulated, produced, packaged and tested the pesticides Morestan and Guthion; and that defendants Tri-Ag and Osterlie negligently *734 recommended the application of Morestan in combination with Guthion. The plaintiffs also alleged causes of action for strict liability for ultrahazardous activity, negligence per se for violation of the Food and Agriculture Code, product liability, breach of implied warranty, misrepresentation, and trespass. The California Supreme Court recognized that because the Court of Appeal held that state law failure-to-warn claims are not preempted by FIFRA, it did not address defendants' contention that all the plaintiffs' causes of action were predicated upon inadequacies in the pesticides' labels, and remanded the matter so that the Court of Appeal could do so.[6] In closing, the Etcheverry court considered off-label statements, that is, claims made orally or in advertising materials, outside the context of labeling or packaging. It stated that "[w]here offlabel statements address matters outside the scope of the label, an action may well lie." (Etcheverry, supra, 22 Cal.4th at p. 337, 93 Cal. Rptr. 2d 36, 993 P.2d 366.)
Thus, the gist of the Etcheverry holding is that claims that are truly not failure-to-warn causes of action are not preempted. Otherwise, there would have been no need for the California Supreme Court to remand the matter back to the Court of Appeal.
The majority of federal cases have held that while failure-to-warn claims are preempted by FIFRA, state common law design defect claims are not subject to FIFRA preemption. (Jillson v. Vermont Log Bldgs., Inc. (D.Mass.1994) 857 F. Supp. 985, 992 [FIFRA only preempts state labeling and packaging regulations, not claims of negligent design and manufacture which do not "permit any sale or use prohibited by FIFRA"]; Higgins v. Monsanto Co., supra, 862 F.Supp. at pp. 757-759 [while failure-to-warn and inadequate labeling claims are preempted by FIFRA, negligence claims based on the defendants' failure to conduct adequate testing, failure to comply with FIFRA (not predicated on a failure to warn), manufacturing and formulating, are not preempted by FIFRA; strict liability claims based on a design defect are not preempted by FIFRA]; Burt v. Fumigation Service and Supply, Inc., supra, 926 F.Supp. at p. 631 [failure-to-warn claims are preempted by FIFRA, but defective design claims based on the failure to include feasible warnings, as well as defective design claims that the product is defectively unsafe even without a warning, are not preempted because plaintiffs did not contend that any duty of care owed them by the manufacturer of the chemical could be satisfied with additional or different labeling material]; Ackerman v. American Cyanamid Co. (Iowa 1998) 586 N.W.2d 208, 215 [plaintiffs negligent design and testing claim, charging that the chemical product caused carryover damage and was not adequately degradable in certain weather conditions, was predicated on the product itself, not the labeling, and was not preempted by FIFRA].)[7]
In Wright v. Dow Chemical U.S.A (M.D.Tenn.1993) 845 F. Supp. 503, 507, plaintiffs alleged they suffered seizures and allergic reactions to Dursban, Dursban Granular, Ficam, and Uitraban, when those pesticides were sprayed in their home. The district court determined that *735 plaintiffs' claims for defective design, breach of implied warranty of merchantability, and failure to properly test the products were not preempted by FIFRA. The court held that because the duty underlying the implied warranty of merchantability arises from the sale and not from state labeling regulation, and because compliance with the implied warranty of merchantability does not create a labeling requirement different from or in addition to those mandated by FIFRA, that claim survives. Moreover, claims for defective design and failure to properly test and study the pesticides, are by definition not based on labeling, and therefore are not preempted.
At the extreme end of the spectrum, the Montana Supreme Court has held that failure-to-warn claims are not preempted by FIFRA. In Sleath v. West Mont Home Health Services (Mont.2000) 16 P.3d 1042, petition for certiorari filed May 2, 2001 (Sleath), the Montana Supreme Court overruled a case relied on by the respondents here, McAlpine v. Rhone-Poulenc Ag. Co. (1997) 285 Mont. 224, 947 P.2d 474 (McAlpine). In Sleath, the plaintiffs were workers in buildings to which pesticides were routinely applied every three to six weeks, without warning to the plaintiffs, over a period of several years. The plaintiffs filed causes of action for negligence, strict products liability, and breach of express and implied warranties for personal injuries which they claim they incurred as a result of exposure to the products. The Montana Supreme Court acknowledged that it did not have the benefit of the Medtronic decision when it made its determination in McAlpine. The Sleath court summarized the Medtronic holding as "distinct features of the MDA mandated the conclusion that Congress intended only to preempt states from imposing positive law `requirements' on medical devices in the form of regulations or laws and did not intend to preempt common law damages actions." (Sleath, supra, 16 P.3d at p. 1050.) That is, the 1969 Cigarette Act only preempted state requirements regarding advertising, while preemption of common law actions as a result of the MDA would extinguish all state law design defect claims regarding medical devices; the MDA provided no private damages action that would replace common law actions; the MDA preemption provision expressed congressional concern with the problem of specific conflicting statutes and regulations rather than general duties enforced by common law actions; and the MDA used the term "requirements," referring to statutory and regulatory law rather than common law; nor did the legislative history of the MDA suggest congressional intent to preempt all common law remedies. (Sleath, supra, 16 P.3d at p. 1050.) The Sleath court cited Etcheverry, supra, 22 Cal. 4th 316, 93 Cal. Rptr. 2d 36, 993 P.2d 366 and the amicus brief filed by the EPA therein, as well as the text of FIFRA to demonstrate that Congress had no intention of extinguishing damages remedies under state common law. Thus, a state may regulate pesticide sales or use, but may not impose labeling requirements, which the Sleath court interpreted as enactments of positive law. Accordingly, a state court awarding damages for failure to warn does not mandate a change in labeling, but merely requires the pesticide manufacturer pay money to the injured person. (Sleath, supra, 16 P.3d at p. 1051; see Wisconsin Public Intervenor v. Mortier (1991) 501 U.S. 597, 607, 111 S. Ct. 2476, 2483, 115 L. Ed. 2d 532, 544 [7 U.S.C. § 136v plainly authorizes the states to regulate pesticides].)
On the other hand, "Many federal courts have held that when a plaintiffs negligent design and testing claim does not set forth specific allegations that the product functioned *736 improperly, or that the company was negligent in its manufacturing or testing, the claim is preempted because it is essentially predicated on the product's labeling" (Ackerman v. American Cyanamid Co., supra, 586 N.W.2d at p. 215, citing Grenier v. Vermont Log Bldgs., Inc., supra, 96 F.3d at pp. 564-565; Taylor AG Industries v. Pure-Gro, supra, 54 F.3d at p. 561; Worm v. American Cyanamid Co. (4th Cir.1993) 5 F.3d 744, 747; and state case McAlpine, supra, 285 Mont. 224, 947 P.2d 474, overruled by Sleath, supra, 16 P.3d 1042, petition for certiorari filed May 2, 2001.)
E. Express preemption of strict liability claims
Under California law, a manufacturer is strictly liable for injuries caused by a product that is (1) defectively manufactured, (2) defectively designed, or (3) distributed without adequate instructions or warnings of its potential for harm. (Barker v. Lull Engineering Co. (1978) 20 Cal. 3d 413, 428, 143 Cal. Rptr. 225, 573 P.2d 443.) Three methods may be utilized in order to demonstrate a design defect: (1) the consumer expectations test shows that the product failed to perform as safely as an ordinary consumer would expect when it is used in an intended or reasonably foreseeable manner; (2) the risk-benefit test balances the risk of danger inherent in the challenged design versus the feasibility of a safer design, the cost of a safer design, the gravity of the danger, and the adverse consequences to the product of a safer design; and (3) the failure-to-warn test imposes upon the manufacturer or retailer liability for the failure to warn of known or knowable inherent dangers in the product. (Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal. App. 4th 1178, 1184, 74 Cal. Rptr. 2d 580.)
Our review of the SAC's strict liability cause of action shows that appellants have alleged, not a failure-to-warn, but a design defect cause of action. The SAC alleged that: "26. Said products were defective in their design, because they failed to perform as safely as an ordinary user would expect when used in their intended or reasonably foreseeable [manner]. [¶] 27. Said design defects existed in said products when the products left [respondents'] possession." The SAC also alleges that respondents manufactured the pesticides, which had numerous known adverse side effects to humans, such as respiratory problems, sweating, involuntary muscle contractions, eye pain, blurred vision, nausea, and vomiting. The SAC alleged that the central nervous system could be affected, causing fatigue, weakness, loss of reflexes, involuntary muscle contractions, and paralysis. In severe cases, the victim could suffer convulsions and coma. Chlorpyrifos, the main ingredient of Dursban, may affect the central nervous system, the cardiovascular system, and the respiratory system. The SAC alleged that the respondents were aware of the toxic effects of the active and "inert ingredients" contained in their products but consciously disregarded appellants' safety, by failing to eliminate or reduce the risk of dangerous consequences to appellants.
Respondents steadfastly assert that appellants' causes of actions are attempts to bypass FIFRA preemption through artful pleading. We disagree. Where it is not clear whether a claim is preempted, the determination of whether a claim is permissible or preempted depends on "whether one could reasonably foresee that the manufacturer, in seeking to avoid liability for the error, would choose to alter the product or the label." (Worm v. American Cyanamid Co., supra, 5 F.3d at pp. 747-748; Burt v. Fumigation Service *737 and Supply, Inc., supra, 926 F.Supp. at p. 629; Jenkins v. Amchem Products, Inc. (1994) 256 Kan. 602, 886 P.2d 869, 883; Hue v. Farmboy Spray Co., Inc. (1995) 127 Wash.2d 67, 896 P.2d 682, 693.) Here, the products were designed specifically for residential use. To warn that use would cause serious and permanent injuries to children and fetuses would effectively end consumer demand for the products. Appellants' claim is that, due to the content and properties of the products, they cannot safely be used in the home. Period. Thus, the remedy sought is a change in design of the products. Appellants are not contending that, had they or their parents been aware of the warning labels, they would have declined to use the product or acted differently. Nor do they allege that different warning labels should have been used. Indeed, other than the last pesticide administered by appellants' father, the Arnold family did not have access to any warning labels. Rather, appellants alleged that the product itself did not perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. That is, the gravamen of the complaint is that a consumer would reasonably believe that pesticides are designed to eliminate pests within homes occupied by humans, without causing significant harm to the humans. Thus, appellants' complaint concerns a matter "outside the label."
Our Supreme Court has expressly established the consumer expectations test as a theory independent from a failure-to-warn cause of action, and we conclude that appellants have alleged such a distinct cause of action. (Soule v. General Motors Corp. (1994) 8 Cal. 4th 548, 567, 34 Cal. Rptr. 2d 607, 882 P.2d 298; Arena v. Owens-Corning Fiberglas Corp., supra, 63 Cal.App.4th at p. 1184, 74 Cal. Rptr. 2d 580.) Under that test, "a plaintiff is required to produce evidence of the `objective conditions of the product' as to which the jury is to employ its `own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence.' [Citation.]" (Sparks v. Owens-Illinois, Inc. (1995) 32 Cal. App. 4th 461, 472, 38 Cal. Rptr. 2d 739.)
We reject respondents' arguments that the SAC is conclusory based on our review of appellants' interrogatory responses, which describe a design defect and not a failure-to-warn claim as follows: "Defendant's products were defective in their design because they failed to perform as safely as an ordinary user would expect (as evidenced by the reactions and illnesses of responding party) when used in an intended or reasonably foreseeable manner (i.e., when used as the product was marketed to be used and in accordance with the instructions on the product) and because there existed a risk of danger inherent in the design of said products (organophosphate poisoning with dehydration, hepatitis and pancreatitis, immune system disorders, possible hearing deficit, susceptibility to carcinomas, leukemias, lymphomas, liver function problems, the danger of hemorrhagic pancreatitis with repeated exposure) which outweighed the benefits of that design (ease of use, low cost of manufacture, rating as a general use pesticide)."
Another interrogatory response states: "Baygon is a carbamate pesticide which contains as its active ingredient 2-(1-Methylethoxy) phenol methylcarbamate, and inert ingredients. Carbamate pesticides can cause inhibition of the acetylcholinesterase enzyme, can cause cardiac arrhythmias, diarrhea, vomiting, abdominal pain, excessive sweating and salivation, blurred vision, difficulty in breathing, headaches, muscular fasciculations. One must assume that this product was formulated *738 as intended or the defendant would not have expended monies manufacturing or marketing said products. As chemical and pesticide manufacturers, the defendants are presumed by law to be fully familiar with the known, published toxic effects of the active ingredients contained in their pesticide products, as well as of the `inert ingredients' contained therein, and of the toxic organic solvent contained therein."
Appellants also state: "Responding party further responds to this interrogatory by stating that there was a feasible alternative design for the Dursban products to which Ashley Arnold was exposed which would have eliminated their defects without compromising the efficacy or desirability of the products. Responding party believes that a feasible alternative to poisoning their home and children with Dursban would be to not apply the products and either dispose of them by nontoxic means (such as squishing them and wiping them up with a sponge) or by simply allowing the ants in their home to proliferate and to coexist in a non-toxic environment with responding party and her family. Lastly, Dursban was not efficacious, because the ants returned even after it was used." Further, "The Dursban products were unreasonably dangerous and defective in their design, because they woefully failed to function as safely as an ordinary user would expect, their alleged benefits were grossly outweighed by the harm they caused responding party's children, and they were not even efficacious, because the ants returned after the Dursban applications and the ants themselves were relatively harmless to responding party's children, especially when compared with the extreme dangers presented by Dursban."
The only portion of the SAC in the strict liability cause of action which we construe as a failure-to-warn claim is at paragraphs 43 and 44, where appellants alleged that respondents formulated their products with various chemicals described as inert ingredients, but which actually contained organic solvents causing irritant, neurotoxic, hematologic, hepatotoxic, nephrotoxic, and other effects on humans. In that cause of action, appellants' complaint does appear to be with the description of the inert ingredients on the label, although in their opening brief, appellants contend that paragraphs 31 through 47 relate to a claim for punitive damages with respect to the state of mind of each of the respondents regarding the marketing of their products in demonstrating conscious disregard of the rights of others. Accordingly, to the extent that paragraphs 43 and 44 state a cause of action based on labeling, those paragraphs shall be stricken.
F. Express preemption of cause of action for breach of implied warranty of merchantability and fitness for a particular use
1. The trial court erred in barring the cause of action by finding lack of privity
Under the California Uniform Commercial Code, every contract for the sale of goods contains a warranty, implied by law, that the goods are of merchantable quality. (Cal.U.Com.Code, § 2314, subd. (1).) The California Uniform Commercial Code also implies a warranty of fitness for a particular purpose. (Cal.U.Com.Code, § 2315.)
As to appellants' second cause of action for breach of the implied warranty of merchantability and fitness for particular use, the SAC alleged at paragraph 49 that: "By placing the above-described products in the stream of commerce, [respondents] impliedly warranted that said products are reasonably fit for their intended use and that such products were of merchantable *739 quality." Paragraph 50 states: "[Respondents], and each of them, breached said implied warranties, because said products were not fit for their intended use, were not of merchantable quality, and did not function as safely as an ordinary consumer would expect when used as directed, intended or in a reasonably foreseeable manner." The SAC alleged that respondents knew of the dangers of the chemical products but disregarded appellants' safety despite knowledge of the probable dangerous consequences of exposure to the products. Moreover, respondents failed to take steps to eliminate or reduce the risk of the dangerous consequences to appellants and fraudulently concealed the nature and extent of the toxic hazards of the chemical products, especially as related to children.
Appellants' interrogatory response states: "Defendants breached implied warranties because their products failed to perform as safely as an ordinary user would expect when used in their intended or reasonably foreseeable manner as evidenced by Ashley Arnold's injuries, and therefore, were not fit for their intended uses and did not function as safely as ordinary consumers would expect. There existed a risk of danger inherent in the design of said products which outweighed the benefits of that design. Defendants' products were defectively manufactured and formulated to contain chlorpyrifos, a pesticide with numerous known adverse toxic effects to humans, especially to children and infants. Defendants' products were defectively labeled in that the labels infer that if one avoids breathing the spray mist, avoids contact with the skin, eyes and clothing, washes the sprayed areas thoroughly after use, provides adequate ventilation while spraying, prevents children from being in this sprayed areas until surfaces are dry . . ., then the products are safe for use."
Here, the trial court found lack of privity to be an insurmountable obstacle to appellants' claim for breach of the implied warranty of merchantability and fitness for a particular purpose. The general rule is that "privity of contract is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale. [Citations.]" (Burr v. Sherwin Williams Co. (1954) 42 Cal. 2d 682, 695, 268 P.2d 1041.) An exception to the general rule has been recognized in the case of foodstuffs, and has been extended to drugs, on the basis that a drug is intended for human consumption quite as much as is food. (Gottsdanker v. Cutter Laboratories (1960) 182 Cal. App. 2d 602, 607, 6 Cal. Rptr. 320.) At issue in the Gottsdanker case was a polio vaccine, which was alleged to have caused poliomyelitis in two children shortly after they were inoculated. The court held that while in food cases there typically existed a familial relationship between the purchasers and consumers, in the case of vaccinations, it is clearly the patient and not the doctor who is the ultimate consumer of the vaccine. The court held that "[w]hile a sale is essential to impose liability under the implied warranties, the initial sale to distributor or retailer of pharmaceuticals is sufficient to impose upon the manufacturer the responsibility of fulfilling the implied warranties which run to the benefit of the persons whom the manufacturer intended to be, and who in fact became, the `consumers.'" (Id. at p. 609, 6 Cal. Rptr. 320.) That rationale applies equally to pesticides, which are solely intended to rid human habitation of pests. In any event, here, a familial relationship existed between the purchaser and the ultimate beneficiaries of one of the pesticide products. That is, Chad, the father of
*740 Ashley and Alexa, was the purchaser of Mr. Scott's Do-It-Yourself Pest Control.
Nor are we convinced by respondents' argument that Burr v. Sherwin Williams Co., supra, 42 Cal.2d at page 695, 268 P.2d 1041, held that the foodstuffs exception to the privity requirement did not apply in a case involving insecticides. Rather, in Peterson v. Lamb Rubber Company (1960) 54 Cal. 2d 339, 344, 5 Cal. Rptr. 863, 353 P.2d 575, the California Supreme Court clarified that it had not determined in Burr whether there was privity between the plaintiffs and Sherwin Williams, or whether the plaintiffs came in under an exception to the rule. The Peterson court explained that remark as "clearly intended to guard against closing the door to the development of other exceptions as law and justice and changing economic conditions might require. . . . [T]he foodstuff exception was thus developed." (Peterson v. Lamb Rubber Co., supra, 54 Cal.2d at p. 344, 5 Cal. Rptr. 863, 353 P.2d 575.) Furthermore, Evraets v. Intermedins Intraocular, Inc. (1994) 29 Cal. App. 4th 779, 788, 34 Cal. Rptr. 2d 852, cited by respondents, is not similar to this case. There, the court found there was no privity between the plaintiff and the manufacturer of an intraocular lens, which had been implanted in the plaintiffs eye, because the surgeon who performed the surgery selected the product. Thus, the plaintiff did not rely upon the seller's skill or judgment to select or furnish a suitable product. Here, as stated, Chad was the direct purchaser of Mr. Scott's Do-It-Yourself Pest Control.
Another approach which extends the privity doctrine to include a person other than the direct buyer occurs when an inherently dangerous instrumentality causes harm to a buyer's employee, the employee is considered to be in privity with his employer. Thus, in Peterson v. Lamb Rubber Co., supra, 54 Cal.2d at page 347, 5 Cal. Rptr. 863, 353 P.2d 575, the court held that privity, which denotes mutual or successive relationship to the same thing or right of property, should not bar an action where an employee had the successive right to the use of a grinding wheel purchased by his employer. In the same fashion, appellants were the ultimate users of the pesticide sprays applied by the pest control operators.
We conclude that the doctrine of privity does not bar appellants' cause of action for breach of implied warranty.
2. Implied warranty claims are not preempted
We note that, unsurprisingly, federal and state cases go both ways in determining whether claims alleging breach of implied warranties of merchantability, fitness for particular purpose, or safety are preempted by FIFRA. Because we agree that the implied warranty of merchantability and fitness for particular purpose does not create a labeling requirement different from or in addition to those mandated by FIFRA, and therefore, by definition should not be preempted, we follow the cases that hold there is no preemption. (Wright v. Dow Chemical U.S.A., supra, 845 F.Supp. at pp. 510-511; Malone v. American Cyanamid Company (1995) 271 Ill.App.3d 843, 208 Ill. Dec. 437, 649 N.E.2d 493, 499 [Congress did not intend FIFRA to preempt state common law actions for breach of implied warranty based on advertising]; Jeffers v. Wal-Mart Stores, Inc. (S.D.W.Va.2000) 84 F. Supp. 2d 775 [warranty claims based on packaging not preempted by FIFRA].) We reject those cases cited by respondents which hold that FIFRA preempts warranty-based claims such as Hue v. Farmboy Spray Co., Inc., supra, 127 Wash.2d 67, 896 P.2d 682 [implied warranty claim that pesticides should not be used in area prone to drift is problem *741 cured by warning on label]. Taylor AG Industries v. Pure-Gro, supra, 54 F.3d at page 563 likewise does not assist respondents. There, in support of its implied warranty claim, the plaintiffs only presented evidence that the distributor should have supplied information in addition to or different from the manufacturer's labels. Therefore, the Ninth Circuit determined such a claim was preempted.
We conclude that the trial court erred in granting summary judgment on the breach of implied warranty cause of action as to all respondents.
III. Respondents' arguments
A. Express preemption of strict liability cause of action by FFRA
Respondents urge that FIFRA requires that the EPA undertake a comprehensive review and evaluation process in deciding whether to register a pesticide and that by registering any pesticide, the EPA necessarily has concluded that the product poses no unreasonable risk of harm when properly applied and that its packaging, testing, and accompanying labeling are reasonable and appropriate when the project is "used in accordance with widespread and commonly recognized practice." (7 U.S.C. § 136a(c)(5)(D).) Moreover, respondents outline the labeling and regulations required under FIFRA, including content, placement, type size, and prominence of warnings as well as precautionary statements and directions for use. Respondents claim that the EPA-accepted labels permitted residential or domestic application of the products.
Respondents exhaustively cite from the Code of Federal Regulations to support their argument that comprehensive data is provided to the EPA during the registration process. We do not argue with that fact. However, we do not find persuasive respondents' argument that appellants have merely characterized their claim as one for design defect, in order to avoid preemption. In making their argument, respondents ignore the essence of the Etcheverry decision that claims not based on labeling are not preempted.
While respondents cite to cases in which the strict liability claims at issue were preempted because they were actually disguised warning claims, nothing in respondents' argument convinces us that appellants' claims are similar. In Worm v. American Cyanamid Co., supra, 5 F.3d at page 744, the strict liability claims were based on the defendant's "false" representations, made on labels and literature distributed with the herbicide at issue, that corn could be grown 11 months after applying the herbicide. There, however, the plaintiffs' claims regarding the adequacy of information provided by the defendant was preempted because they "never maintained, beyond the conclusory allegations of the complaint, that the product itself functioned improperly or that the company was negligent in its manufacture or testing." (Id, at p. 748.) Unlike here, the plaintiffs did not allege that the product itself functioned improperly or that the company was negligent in its manufacture or testing. Respondents' reliance on National Bank of Commerce v. Dow Chemical Co. (8th Cir.1999) 165 F.3d 602, 608 is similarly misplaced. While it is true that the Eighth Circuit held that FIFRA preempted certain negligence and product liability claims which were disguised failure-to-warn claims, it also held that the plaintiffs' claim of defective manufacture or design as a result of inadequate manufacturing or inappropriate design was not preempted by FIFRA. The preempted claims alleged negligence in failing to place warning labels on containers, failing to implement an ongoing education program, *742 suppressing information from the public and failing to adequately warn. As previously mentioned, only paragraphs 43 and 44 of the SAC allege any claim for failure to warn.
In sum, respondents' arguments here are misleading. For example, respondents cite Higgins v. Monsanto Co., supra, 862 F.Supp. at page 759, for the proposition that strict liability claims will be preempted if they are predicated on failure to warn and inadequate labeling, but disregard the fact that the Higgins court went on to hold that in that case, since the plaintiffs claims of strict liability rested on a theory of defective design and not on a theory of inadequate warnings, the claims were not preempted by FIFRA. (Id. at pp. 759, 760.)
B. The consumer expectations test
Respondents assert that appellants' consumer expectations cause of action is based on three claims of design defect: (1) defective labeling; (2) the products contain toxic inert ingredients; and (3) the products are unsafe for domestic or residential use.[8]
Dow urges that the attack on its products must fail because one interrogatory response exposes appellants' claim as one for failure to warn. The interrogatory response stated that: "Defendants' products were defectively labeled in that the labels infer that if one avoids breathing the spray mist, avoids contact with the skin, eyes and clothing, washes the sprayed areas thoroughly after use, provides adequate ventilation while spraying, prevents children from being in the sprayed areas until surfaces are dry . . ., then the products are safe for use." As we previously noted, paragraphs 43 and 44 are the only sections which can be construed as failure-to-warn causes of action (which will be stricken), and we agree with Dow that such a construction is preempted by FFRA.
Bayer specifically complains that the SAC targets its product Baygon, as "a pesticide with numerous known adverse toxic effects to humans," which contains both active and inert ingredients that are highly toxic to humans. In a conclusory manner, Bayer contends that these allegations boil down to an attack on the label because the EPA requires that an ingredients statement appear on the products label, citing 40 Code of Federal Regulations part 156.10(a)(vi) (2000). Bayer argues that an allegation that Baygon is toxic is, in effect, an allegation that Bayer had the duty to warn of toxicity. Bayer's argument is circularthat any complaint about any product boils down to an attack upon the label, therefore any attack on any product is preempted. As previously discussed, this is not what Etcheverry, supra, 22 Cal. 4th 316, 93 Cal. Rptr. 2d 36, 993 P.2d 366 holds.
FMC specifically contends that one of appellants' interrogatory responses directly challenges the adequacy of information contained on the product labels. The response states: "Defendant, as a manufacturer and formulator of insecticides and pesticides, is presumed to have knowledge of the research into the harmful effects of its products and its products' ingredients, contaminants and adjuvants. *743 That the products are labeled without full disclosure of known and/or potential harmful effects of its products and its products' ingredients, including `inert ingredients,' and contaminants evidences defendant's willful disregard of the health and safety of individuals, including plaintiff herein, and of its fraudulent concealment of known dangers. That the defendant markets its products and places them into the stream of commerce as formulated and manufactured indicates that a decision to do same was made by employees of the defendants."
To the extent that the interrogatory response cited by FMC supports paragraphs 43 and 44 of the SAC, it is preempted as a labeling claim. However, to the extent that appellants urge that paragraphs 31 through 47 refer to a claim for punitive damages with respect to the state of mind of the respondents regarding the marketing of their products, that interrogatory response does not state a preempted labeling claim.
Respondents also urge that the allegation that the pesticides are toxic is an attack on labels, citing Torres-Rios v. LPS Laboratories, Inc. (1st Cir.1998) 152 F.3d 11, 16. Respondents urge that since the EPA, under FIFRA, has determined that the pesticide will perform under the label conditions without unreasonable adverse effects on people in the environment, any allegation that the inert and active ingredients and Scott's products are toxic is an allegation that Scott failed to warn. In their complaint, at paragraph 43, appellants allege that respondents "intentionally manufactured and formulated the foregoing products with various chemicals described as `inert ingredients,' but which contained organic solvents which are highly toxic to humans, especially to children and fetuses." As we have previously held, to the extent that appellants are alleging a failure-to-warn claim in this paragraph, it is stricken.
Respondents further contend that appellants' argument that the products contain a design defect because they are unsafe for residential or domestic use is a disguised attack on the label, again referring to the extensive labeling requirements set forth in FIFRA. Respondents' reasoning is that because the EPA has accepted labels which specifically provide for residential use, the claim is preempted by FIFRA, citing Hue v. Farmboy Spray Co., Inc., supra, 127 Wash.2d 67, 896 P.2d 682 and Grenier v. Vermont Log Bldgs., Inc., supra, 96 F.3d at pp. 564-565. Those cases do not assist respondents. In the Hue case, the court found that the plaintiffs' claims were based on failure to warn, since the gist of their claim was that the pesticide should not be used in an area where there is a risk of long distance drift or mass air contamination. That is, the only way for the manufacturer to correct that type of problem would be to label the product properly. On the other hand, the court also recognized that plaintiffs' design defect claims were not preempted by FFRA. {Hue v. Farmboy Spray Co., Inc., supra, at p. 693.) In Grenier v. Vermont Log Bldgs., Inc., supra, 96 F.3d at pages 564-565, the court held that a claim that chemically treated wooden logs used to build a residential log house were defectively designed because it was foreseeable that they would be used in residences was actually a failure to warn against residential use. The court went on to state that: "This certainly does not mean that every misdesign or mismanufacturing claim would be debarred by section 136v. In a batch of properly made products, one item might be defective or tainted; or perhaps one might design a pesticide that, while properly approved and labeled, was unduly dangerous for any legitimate use. In the former case, it is hard to see why FIFRA *744 preemption would even be arguable; in the latter, there would be at most an implied preemption claim, based not on section 136v but on EPA's approval of the product; and it is by no means clear that such a preemption claim would prevail." (Id. at p. 565, fn. omitted.)
Moreover, respondents further urge that appellants' consumer expectations-based design defect claim cannot succeed because when a manufacturer's warnings meet the federal requirements for a product label, a strict liability claim cannot be based upon the consumer expectations test, citing Papike v. Tambrands, Inc. (9th Cir.1997) 107 F.3d 737 (Papike). In Papike, the plaintiff claimed that the manufacturer failed to adequately warn the public of the dangers of tampon use and that the tampon was defectively designed because it contained a layer of viscose rayon, which she alleged amplified toxin production. As to the failure-to-warn cause of action, the court determined that the FDA promulgated regulations which were device and disease specific, and that the matter was preempted. With respect to the consumer expectations cause of action, the court cited Barker v. Lull Engineering Co. (1978) 20 Cal. 3d 413, 143 Cal. Rptr. 225, 573 P.2d 443 for the proposition that under California law, a product is defectively designed if it fails to meet an ordinary consumer's expectations, or if injury is attributable to a specific design feature of the product and risks associated with the design outweigh its benefits. The court held that because Tambrands' warnings met the federal requirements, the plaintiffs design defect claim must fail. Respondents cite the following language: "To rule otherwise would allow the anomalous circumstance that a consumer is entitled to expect a product to perform more safely than its government-mandated warnings indicate." (Papike, at p. 743.)
We find that Papike is distinguishable because there, the Ninth Circuit did not consider the issue of preemption in determining that the plaintiffs design defect claim failed to meet the elements of the consumer expectations test. Had it considered the preemption issue in connection with the consumer expectations test, the analysis would certainly have been very different from the analysis performed in this case because the federal statutory scheme in those cases are distinct. For instance, the MDA gives the FDA broad powers under the MDA to classify and regulate medical devices with special controls, such as specific labeling information. (Papike, supra, 107 F.3d at p. 738.) 21 Code of Federal Regulations part 808.1(d) states that state and local requirements are preempted only when the FDA has established specific counterpart regulations. Moreover, 21 Code of Federal Regulations part 808.1(d)(1) provides that state or local requirements of general applicability are not preempted where the purpose of the requirement relates to other products in addition to devices, or to unfair trade practices in which the requirements are not limited to devices.
Van Waters also urges that allowing a consumer to have greater expectations of safety than the EPA mandates would defeat the purpose for which FIFRA was enacted, that is, to create a uniform system of pesticide regulation. However, we do not believe that the expectations expressed by appellants are based upon the label, which they never saw. Here, consumer expectation is a question of fact for the jury. (Soule v. General Motors Corporation, supra, 8 Cal.4th at p. 563, 34 Cal. Rptr. 2d 607, 882 P.2d 298.)
Scott contends that we can disregard appellants' allegations that the products were defective because they were toxic, since in their opening brief they admitted *745 that their allegations "are not material for design defect strict liability." Scott does not, however, quote appellants in context. Appellants argue in their brief that only paragraphs 31 through 47 "are not material for design defect strict liability," because they relate to a claim for punitive damages with respect to the state of mind of each of the respondents regarding the marketing of their products in demonstrating conscious disregard of the rights of others. Thus, the remaining paragraphs, 1 through 29, do relate to design defect strict liability.
Nor do the other cases cited by respondents convince us otherwise. Haddix v. Playtex Family Products Corp. (7th Cir. 1998) 138 F.3d 681 and Reece v. Good Samaritan Hospital (1998) 90 Wash.App. 574, 953 P.2d 117 merely apply the holding in Papike, supra, 107 F.3d 737, which we have found distinguishable. Lescs v. William R. Hughes, Inc. (4th Cir.1999) 168 F.3d 482, 1999 WL 12913 and Ruiz-Guzman v. Amvac Chemical Corp. (9th Cir. Nov.28, 2000) 243 F.3d 549, 2000 WL 1763212 at 1, are unpublished, uncitable decisions. Here, on the other hand, we are given guidance both by Cipollone and Etcheverry that nonlabeling causes of action are not preempted by FIFRA.
For the first time on appeal, respondents argue that the consumer expectations claim fails for a third, independent reason. Citing Soule v. General Motors Corp., supra, 8 Cal.4th at pages 566-567, 34 Cal. Rptr. 2d 607, 882 P.2d 298, respondents urge that when the product at issue and the plaintiffs claims are complex, the consumer expectation test is inapplicable. That case, however, involved a theory of design defect of an automobile, which demanded an understanding of technical and mechanical detail and how safely an automobile's design should perform under the esoteric circumstances of the collision at issue. This case is more like Sparks v. Owens-Illinois, Inc., supra, 32 Cal. App.4th at pages 474-475, 38 Cal. Rptr. 2d 739, in which the First District determined that the product at issue, asbestos-containing block insulation, was within the ordinary experience and understanding of a consumer. Similarly, in Bresnahan v. Chrysler Corp. (1995) 32 Cal. App. 4th 1559, 1568, 38 Cal. Rptr. 2d 446, we found that the alleged technical novelty of the airbag does not preclude resort to the consumer expectations test. We stated that "The consumer expectations test is not foreclosed simply because expert testimony may be necessary to explain the nature of the alleged defect or the mechanism of the product's failure." (Ibid.)
C. Implied conflict preemption
The trial court did not reach the issue of implied conflict preemption raised in the summary judgment motions, but we shall consider this issue on appeal. (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal. App. 4th 1236, 1244, 100 Cal. Rptr. 2d 403.)
Implied conflict preemption occurs where "a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, [citation], or when state law is in actual conflict with federal law." (Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 287, 115 S. Ct. 1483, 131 L. Ed. 2d 385.) However, the existence of an express preemption clause supports an inference that implied preemption is foreclosed. (Id. at p. 289, 115 S. Ct. 1483.) In Freightliner Corp., the United States Supreme Court found that because the plaintiffs' common law design defect actions did not conflict with the National Traffic and Motor Vehicle Safety Act of 1966 (Pub.L. 89-563, 80 Stat. 718, codified as amended at 15 U.S.C. *746 § 1381 et seq. (Safety Act)), the defendants' implied preemption argument was futile. (Freightliner Corp. v. Myrick, supra, 514 U.S. at p. 289, 115 S. Ct. 1483.)
Respondents argue that appellants' claims are impliedly preempted because their claims challenged the reasonableness of the products' presence in the marketplace, and specifically conflict with an EPA permissive regulation.
We disagree. The court, in Burt v. Fumigation Service and Supply, Inc., supra, 926 F.Supp. at page 632, stated that FFRA provisions "`reflect the general goal of the 1972 amendments to strengthen existing labelling requirements and ensure that these requirements were followed in practice.'" The court concluded that there was no implied preemption because "[registration of a pesticide does not preclude as preempted a claim that the product is defectively unsafe as manufactured or formulated." (Ibid.) We agree with the reasoning of the Burt court.
Moreover, to the extent that appellants' claims challenged the labeling of the products, we have held that they are preempted. But, in accord with Etcheverry, supra, 22 Cal.4th at page 336, 93 Cal. Rptr. 2d 36, 993 P.2d 366, appellants' claims that the products were defectively designed are not labeling claims and therefore do not interfere with the powers granted by Congress to the EPA to regulate labeling of the pesticide products. Nor are we convinced by Scott's citation to Geier v. American Honda Motor Co. (2000) 529 U.S. 861, 120 S. Ct. 1913, 146 L. Ed. 2d 914 for the proposition that appellants' causes of action frustrate the purposes of FIFRA. In Geier, the United States Supreme Court held that the plaintiffs'"no airbag" lawsuit conflicted with a 1984 version of a Federal Motor Vehicle Safety Standard promulgated by the Department of Transportation under the authority of the Safety Act. (Geier v. American Honda Motor Co., supra, 529 U.S. at p. 864.) The court found that the preemption provision of the Safety Act included a saving provision that excludes common law actions. However, nothing in the language of the saving clause suggested an intent to save state law tort actions that conflicted with federal regulations. (Id. at p. 869, 120 S. Ct. 1913.) Examining the history of the Safety Act, the court found that the Act envisioned a gradually developing mix of passive restraint devices, which objective would be impeded by the allowance of a state tort law claim. (Id. at p. 886, 120 S. Ct. 1913.)
We do not find that any objective of FIFRA, a labeling statute, would be frustrated by appellants' pursuit of their state law tort claims.
D. The motion for reconsideration
Dow argues on appeal that the trial court properly denied appellants' motion for reconsideration. Because appellants have not briefed that issue on appeal, the issue is abandoned, and we shall not address that argument.
CONCLUSION
We conclude that the trial court erred in granting summary judgment as to appellants' cause of actions as to strict liability and breach of implied warranties of fitness and merchantability. However, to the extent that appellants alleged a cause of action in paragraphs 43 and 44 based on failure to warn, that cause of action is stricken.
DISPOSITION
The trial court's judgment is affirmed in that paragraphs 43 and 44, insofar as those paragraphs state a claim based on failure to warn, are stricken. In all other respects, the judgment is reversed and remanded. *747 Appellants shall recover their costs on appeal.
BOREN, P.J., and TODD, J., concur.
NOTES
[1] The SAC also named the following defendants, which are not parties to this appeal: Dow Elanco & Company, Micro Flo Company, Don's Dropdead Pest Control, Don's Dropdead, and Mobay Corporation.
[2] Dow refers to the latter product as Mr. Scott's Ready-to-Use Pest Control with Time Release Dursban.
[3] When a trial court fails to rule on summary judgment evidentiary objections, the objections are waived on appeal. (Code Civ. Proc., § 437c, subds. (b) & (c); Sharon P. v. Arman, Ltd. (1999) 21 Cal. 4th 1181, 1186, fn. 1, 91 Cal. Rptr. 2d 35, 989 P.2d 121; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666, 670, fn. 1, 25 Cal. Rptr. 2d 137, 863 P.2d 207; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal. App. 4th 780, 783, 97 Cal. Rptr. 2d 140.)
[4] Respondents refer to the product as Mr. Scott's Ready-To-Use Pest Control.
[5] "Section 5 of the 1965 Cigarette Act provided in part: `(a) No statement relating to smoking and health, other than the statement required by section 4 of this Act, shall be required on any cigarette package, [H] (b) No statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.' (Pub.L. No.89-92, § 5 (July 27, 1965) 79 Stat. 282.) By contrast, section 5 of the 1969 Cigarette Act provides: `(b) No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarette the packages of which are labeled in conformity with the provisions of this Act.' (Pub.L. No. 91-222, § 5 (Apr. 1, 1970) 84 Stat. 88.)" (Etcheverry, supra, 22 Cal.4th at pp. 323-324, 93 Cal. Rptr. 2d 36, 993 P.2d 366.)
[6] Subsequently, the Third District issued an unpublished opinion affirming the trial court's grant of summary judgment.
[7] Appellants cite to Dow Chemical Co. v. Ebling (Ind.Ct.App.2000) 723 N.E.2d 881, which closely parallels the facts of this case. However, that case has been taken up on appeal by the Indiana Supreme Court.
[8] Dow correctly asserts that in their opposition to Dow's motion for summary judgment, appellants abandoned any design defect cause of action based on an allegation that the risk of harm of the products outweighed their benefits. While appellants' attorney initially addressed a cause of action based on a risk/benefit analysis during oral argument, he did not respond to Dow's assertion that he had abandoned such a cause of action. Accordingly, we treat that cause of action as abandoned. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261447/ | 286 Pa. Super. 171 (1981)
428 A.2d 627
In re Jennifer Lynn ARNOLD.
Appeal of Merrill S. ARNOLD.
Superior Court of Pennsylvania.
Argued January 7, 1981.
Filed April 10, 1981.
*173 Marshall E. Anders, Stroudsburg, for appellant.
Arthur Ridley, Milford, for Strock, participating party.
Before PRICE, WIEAND and HOFFMAN, JJ.
PER CURIAM:
This is an appeal from an award of custody to the natural mother, appellee herein. The appellant is the natural father. We have before us a record in excess of 300 pages, including home study reports, medical reports, and other miscellaneous exhibits. The record reveals that the matter was vigorously contested by the parties. The child, 6 years of age at the time of hearing, was interviewed. The opinion in support of the order involved in this appeal is three pages in length. For the reasons that follow we shall remand for the entry of a full opinion.
Preliminarily, it is well established that the scope of review of this court in such disputes is of the broadest type. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978). Although we will not usurp the fact-finding function of the trial court, we are not *174 bound by deductions or inferences made by the hearing judge from the facts as found. Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 (1974); Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973). Because of the Commonwealth's legitimate and overriding concern for the well-being of its children, we are required to render an independent judgment based on the evidence and testimony and make such order on the merits of the case as to effect a just result. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977); Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa.Super. 114, 245 A.2d 663 (1968). So as to facilitate this broad review, we have consistently emphasized that the hearing court must provide us not only with a complete record, Augustine v. Augustine, 228 Pa.Super. 312, 324 A.2d 477 (1974), but also with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court's ultimate decision. Martincheck v. Martincheck, 262 Pa.Super. 346, 396 A.2d 788 (1979); Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977); Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). Absent an abuse of discretion, we will not reverse a hearing judge who complies with these requirements.
Instantly, this requisite reasoned analysis of the pertinent evidence is absent. It is axiomatic that the pole star of any custody proceeding is the best interests of the child, a term which encompasses her spiritual, physical, emotional and intellectual well being. In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979); In re Custody of Neal, supra; Shoup v. Shoup, 257 Pa.Super. 263, 390 A.2d 814 (1978); Commonwealth ex rel. Scott v. Martin, 252 Pa.Super. 178, 381 A.2d 173 (1977); Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821 (1977).
Indeed, we are offered no guidance as to the credibility of the witnesses nor a thorough analysis of the record. Indeed, it is hard to find specific reasons for the ultimate decision. We have often noted that the hearing judge is in a far *175 superior position to determine matters of credibility, and to evaluate the attitude and sincerity of the witnesses. Jones v. Kniess, 249 Pa.Super. 134, 375 A.2d 795 (1977). Such an advantage is negated, however, when the trial court fails to enunciate its findings on credibility, or reveal the details of its decision.
While we might review the record and reach a conclusion without the benefit of a proper analysis by the lower court, such a course would serve neither the best interests of the children nor the Commonwealth. We are loath to pass judgment on something as precious and intrinsically valuable as a child's welfare without every possible piece of information bearing on the subject. It is for this reason that we demand a full record and a probing analysis thereof. Instantly, the opinion we are presented with renders it impossible to effect a just result.
We note that the depositions used were taken beginning in June, 1979. The record hearing was concluded August 20, 1979. The home studies were completed in late 1979. Although the briefs and record note this to be an appeal from an order of December 19, 1980, we note from the docket and the order that the correct date is December 19, 1979. This appeal was not argued before us until January 7, 1981. We have no explanation for this delay. This remand may present to the trial court the necessity and additional opportunity to review by the taking of current testimony and information in the nature of review. We do not require it, but neither do we foreclose the possibility.
The order of the lower court is consequently set aside, and the record is remanded for entry of a full opinion, and if deemed desirable, the making of a more current record. Upon completion of any additional record, and entry of a full opinion the record will be returned for relisting and reargument, with a new briefing schedule if the parties desire, before a panel of this court.
HOFFMAN, J., files a concurring opinion.
*176 HOFFMAN, Judge, concurring:
I agree that we must remand this case for entry of a full opinion. I note, however, that although the Court properly acknowledges that our scope of review in custody cases "is of the broadest type," at 628, it goes on to state that "[a]bsent an abuse of discretion, we will not reverse a hearing judge who complies with [the] requirements" of providing us "not only with a complete record, . . . but also with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court's ultimate decision." At 628 (emphasis added; citations omitted). In Commonwealth ex rel. E.H.T. v. R.E. T., 285 Pa.Super. 444, 427 A.2d 1370 (1981) (Concurring Opinion), I expressed my belief "that employment of an `abuse of discretion' standard [in custody cases] is wholly at odds with the broad scope of review and independent judgment which our cases command we perform and which such sensitive subject matter merits." 285 Pa.Super. 444-427 A.2d 1370. Consequently, I urged disavowal of "a standard which is inconsistent with both our responsibility and our actual practice of closely scrutinizing custody decisions." Id., 285 Pa.Super. 444, 427 A.2d 1370 (footnote omitted). I continue to be of that opinion and, accordingly, disapprove of the Court's expressed adherence to the abuse of discretion standard of review in custody cases. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261449/ | 428 A.2d 831 (1981)
Sherman C. IVY, Appellant,
v.
ARMY TIMES PUBLISHING COMPANY and Joseph Varga, Appellees.
No. 79-278.
District of Columbia Court of Appeals.
March 10, 1981.
Before NEWMAN, Chief Judge, KELLY, KERN, NEBEKER,[*] HARRIS,[*] MACK[*] and FERREN, Associate Judges, and GALLAGHER, Associate Judge Retired.[**]
ORDER
PER CURIAM.
This cause came on for consideration on appellant's petition for rehearing en banc. It appearing that a majority of the court has not voted in favor of granting the petition, it is
ORDERED that appellant's petition for rehearing en banc is hereby denied.
FERREN, Associate Judge, with whom NEWMAN, Chief Judge and KELLY, Associate Judge, join, dissenting:
This case presents the question whether an at will employee states an actionable claim against an employer who requires him to testify in an administrative proceeding brought against that employer, and then fires him in retaliation for testifying truthfully against the employer's interests. In an unpublished memorandum opinion and judgment, a division of this Court held that the employee did not state a claim. I dissent from the denial of this petition because it presents a question of "exceptional importance." D.C.App. R. 40(c). It requires en banc consideration, for the division of this court presumably considered itself bound[*] by previous decisions holding that any party to an employment contract of indefinite duration may terminate it for any reason. See Taylor v. Greenway Restaurant, Inc., D.C.Mun.App., 173 A.2d 211 (1961); Pfeffer v. Ernst, D.C.Mun.App., 82 A.2d 763, 764 (1951).
For years it has been the law of this jurisdiction that a landlord may not retaliate by evicting a tenant at will who reports housing code violations in the tenant's *832 apartment. Edwards v. Habib, 130 U.S. App.D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 89 S. Ct. 618, 21 L. Ed. 2d 560 (1969). It is at least as important for this court to consider the legality of retaliation by firing an at will employee who testifies truthfully, under compulsion, against his or her employer.
Petitioner's counsel has filed a forceful petition, marshalling a substantial body of authority for our consideration. I set it forth below as the best way of demonstrating the importance of the issue the en banc court declines to consider.
PETITION FOR REHEARING EN BANC
The question presented by this petition is whether the appellant, Sherman C. Ivy, has stated a viable cause of action sounding either in tort, or alternatively in contract, against his former employer, appellee Army Times Publishing Co., where Army Times discharged Mr. Ivy from his position of at will employment solely because Mr. Ivy testified truthfully, albeit adversely to Army Times' interests in a proceeding before the District of Columbia Wage and Hour Board. On December 4, 1980, a panel of this Court answered that question in the negative. Because the result reached by the panel is clearly contrary to the modern trend of the law, and because the practical effect of the panel's decision is to encourage the commission of perjury before administrative agencies of the District of Columbia, we submit that this case raises a question of exceptional importance within the meaning of D.C. App. Rule 40(c) which should be resolved by the Court en banc.
The panel, in its Memorandum Opinion and Judgment at p. 1 (hereinafter cited as "Panel Opinion"), summarized the underlying facts as follows:
The facts pertinent to this case go back to October 1976, when appellant testified at a hearing of the Wage and Hour Board of the District of Columbia. The hearing concerning a complaint brought against appellee Army Times by a former employee who had been supervised by appellant. Prior to his testimony, which was required by appellee Army Times, appellant warned the company's attorney that his testimony would support the complaint against Army Times. In response, the attorney told appellant to testify "the way you think is right."
Following his testimony, appellant claims to have been subjected to frequent verbal attacks, both over the telephone and in person, by appellee Varga, his supervisor at Army Times, and by Henry Belber, the Executive Vice-President of Army Times. In November 1976, appellee Varga allegedly called appellant a "fucking idiot" and "stupid" during the annual meeting of the Army Times sales staff. Leave requested by appellant was cancelled precipitously several times after the Wage and Hour Board Hearing. According to appellant, this abuse caused him to lose 30 pounds and to start taking tranquilizers. Appellant was dismissed by appellee Varga in March 1977. Appellant contends that this dismissal and the abuse to which he was subjected were in the nature of retaliation by appellees for his testimony against Army Times at the Wage and Hour Board hearing.
Based upon those facts, Mr. Ivy filed suit in the Superior Court of the District of Columbia; his complaint alleged, inter alia, that because his dismissal was in contravention of the District of Columbia's statutorily declared public policy in favor of truthful testimony in quasi-judicial administrative proceedings, Army Times' conduct gave rise to a cause of action for wrongful discharge sounding in tort or, alternatively, in contract.[1] For purposes of a summary judgment motion (which was granted, and thus perforce for purposes of this appeal), Army Times conceded that it dismissed Mr. Ivy solely in retaliation for his testimony before the Wage and Hour Board. In December, 1980, the panel affirmed the trial court's *833 order granting summary judgment to appellees on the ground that Mr. Ivy's complaint did "not state a claim upon which relief could be granted...."[2]Panel Opinion, p. 3.
From the outset, Mr. Ivy has acknowledged that the general rule in the District of Columbia is that in the absence of an employment contract for a fixed period, an employee may be terminated at will by the employer for any reason or indeed, for no reason at all. See, e. g., Taylor v. Greenway Restaurant, Inc., 173 A.2d 211 (D.C. Mun.App. 1961). Mr. Ivy has contended, however, that the time has come for the District of Columbia to modify that rule by agreeing with the persuasive body of scholarly[3] and judicial opinion to the effect that even terminable at will employees may resort to the courts for a remedy when their dismissals are in violation of some statutorily declared public policy.[4]
The landmark case on point is Petermann v. International Brotherhood of Teamsters, 174 Cal. App. 2d 184, 344 P.2d 25 (1959). In Petermann, the employer instructed an at will employee to testify falsely at a legislative hearing and then fired the employee when he refused to commit perjury; the court held that the employer's conduct abridged the state's declared public policy of encouraging truthful and complete testimony and therefore constituted an abuse of the employer's contractual rights.[5] The principles enunciated in Petermann were *834 recently reaffirmed in Tamney v. Atlantic Richfield Co., 27 Cal. 3d 167, 164 Cal. Rptr. 839, 610 P.2d 1330 (1980), where the court made it clear that a tort as well as a contract remedy is available to the abusively discharged employee: "[w]hen an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." Id., 164 Cal. Rptr. at 840. For other cases holding that a tort action is available to an at will employee whose dismissal violates an important public policy, see, e. g., Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980); Lally v. Copygraphics, 173 N.J. Super. 162, 413 A.2d 960 (App.Div.1980); Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3d Cir. 1979); Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 23 Ill. Dec. 559, 384 N.E.2d 353 (1979); Harless v. First National Bank, 246 S.E.2d 270 (W.Va.1978); Brown v. Transcom Lines, 284 Or. 597, 588 P.2d 1087 (1978); Trombelta v. Detroit, Toledo & Ironton R.R. Co., 81 Mich.App. 489, 265 N.W.2d 385 (1978); Sventko v. Kroger, 69 Mich.App. 644, 245 N.W.2d 151 (1976); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973); Montalvo v. Zamora, 7 Cal. App. 3d 74, 86 Cal. Rptr. 401 (1970); Glenn v. Clearman's Golden Cock Inn, 192 Cal. App. 2d 793, 13 Cal. Rptr. 760 (1961); McNulty v. Borden, Inc., 474 F. Supp. 1111 (E.D.Pa.1979); O'Sullivan v. Mallon, 160 N.J.Super. 416, 390 A.2d 149 (1978); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978). Other courts have held that an action for breach of contract is available to an at will employee who is dismissed for bad faith reasons which violate a declared public policy. See, e. g., Fortune v. National Cash Register Co., 364 N.E.2d 1251 (Mass.1977); Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974). See also Pstragowski v. Metropolitan Life Insurance Co., 553 F.2d 1 (1st Cir. 1977); Foley v. Community Oil Co., 64 F.R.D. 561 (D.N.H.1974); Zimmer v. Wells Management Corp., 348 F. Supp. 540 (S.D.N.Y.1972).[6]
Nevertheless, in the face of that substantial body of scholarly commentary and decisional law[7] supporting the recognition of either a tort or contract cause of action for an at will employee who is discharged in contravention of some declared public policy, the panel in this case saw fit to dispose of Mr. Ivy's wrongful discharge claim in a single terse paragraph:
Appellant seeks to recover damages arising from his dismissal which he alleges was in retaliation for testimony against his employer at the Wage and Hour Board hearing. While some jurisdictions have recognized a cause of action for wrongful discharge in tort, see, e. g., Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973); Petermann v. International Brotherhood of Teamsters, 174 Cal. App. 2d 184, 344 P.2d 25 (1959), and in contrast [sic], see, e. g., Fortune v. National Cash Register Co., 364 N.E.2d 1251 (Mass.1977); Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974), this jurisdiction allows an employment contract of indefinite duration to be terminated for any reason at the wish of either party. Taylor v. Greenway *835 Restaurant, Inc., D.C.Mun.App., 173 A.2d 211 (1961); Pfeffer v. Ernst, D.C.Mun. App., 82 A.2d 763, 764 (1951). There is no evidence that appellant's oral contract was for a fixed period; it could therefore have been terminated at will by appellees without incurring liability. Even if appellant's dismissal was in retaliation for his testimony before the Wage and Hour Board, his allegation of wrongful discharge does not state a claim upon which relief could be granted in any event. Consequently, the trial court did not err in granting appellees' motion for summary judgment on the issue of wrongful discharge. [Panel Opinion, p. 3.]
Those five short sentences constituted the sum and total of the panel's discussion of Mr. Ivy's wrongful discharge claim.
The most immediately noticeable feature of the panel's summary rejection of Mr. Ivy's wrongful discharge theory is that the Panel Opinion merely announced a result, unaccompanied by any supporting reasons. To say, as did the panel, that "[e]ven if appellant's dismissal was in retaliation for his testimony before the Wage and Hour Board, his allegation of wrongful discharge does not state a claim upon which relief could be granted in any event," is simply to state a bald conclusion which in no way explains why Mr. Ivy's complaint did not state a claim upon which relief could be granted.[8]
* * * * * *
... It may be ... that the panel was persuaded by appellees' argument that any necessary modification of the terminable at will rule should be achieved by legislative enactment instead of by judicial decision. If the panel did indeed agree with that argument, we think that it was mistaken, largely for the reasons succinctly stated in Protecting At Will Employees, supra at 1838 (footnotes omitted):
Such public law solutions need not be the exclusive remedy for at will employees. Courts possess the legitimate heritage of common law innovation that develops new principles to accommodate changing values, and are therefore an appropriate forum for the creation of job security rights. Because courts have considerable experience with similar employment relations problems, they possess sufficient expertise to resolve wrongful discharge disputes. Thus, courts need not await legislative initiative to effect doctrinal change in the employment at will area. Courts themselves created the at will rule; it is therefore entirely appropriate that they now take the lead in modifying it. The reign of "caveat emptor" was brought to an end through judicial innovation in the development of products liability law. The same kind of innovation may be the most helpful way to modify the rule of "let the employee beware."[[9]] *836 Or perhaps the panel was concerned about the possibility that acceptance of Mr. Ivy's wrongful discharge claim would open the proverbial "floodgates" and inundate the courts of the District of Columbia with similar suits. Again, the short answer to that misplaced concern is stated in Protecting At Will Employees, supra at 1842 (footnotes omitted):
One objection is that judicial [recognition of the wrongful discharge cause of action] will lead to a flood of litigation that will crush already overburdened dockets. Yet it is not clear that this will result from increased judicial scrutiny of discharges. First, expanded liability may deter future abusive or retaliatory discharges, thus limiting the number of potential claims. Second, the development of clear standards of what constitutes an unjust discharge will encourage out-of-court settlement of the claims that do arise. In any event, fear of a small increase in litigation is hardly a valid reason for denying relief to wrongfully discharge employees.[10]
But whatever the actual reasons for the panel's holding, we think it patent that the importance of the issue requires a more extensive and thoughtful analysis than that which appears in the Panel Opinion....
MACK, J., while not concurring fully in the foregoing statement, would grant rehearing en banc.
NOTES
[*] Denotes merits division.
[**] Associate Judge Gallagher was an active member of the court on the date the court voted to deny the petition but retired before publication.
[*] See M.A.P. v. Ryan, D.C.App., 285 A.2d 310, 312 (1971).
[1] Mr. Ivy's complaint also alleged that Army Times' and Mr. Varga's actions were defamatory and that they constituted intentional infliction of emotional distress. Both claims were rejected by the panel, and neither claim is renewed in this petition.
[2] Because both the trial court and the panel concluded that Mr. Ivy's wrongful discharge theory failed to state a claim upon which relief could be granted, Mr. Ivy's well-pleaded factual allegations in support of that claim must be taken as true for purposes of this petition, even though the claim was dismissed pursuant to a motion for summary judgment instead of a motion under Super.Ct.Civ.R. 12(b)(6). See, e. g., Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
[3] The seminal article on the subject is Blades, Employment At Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1404 (1967). The most recent scholarly examination of the issue is Note, Protecting At Will Employees Against Wrongful Discharge: The Duty To Terminate Only In Good Faith, 93 Harv.L.Rev. 1816 (1980) (hereinafter cited as "Protecting At Will Employees"). See also Peck, Unjust Discharges From Employment: A Necessary Change in the Law, 40 Ohio St.L.J. 1 (1979). Comment, Kelsay v. Motorola, Inc.: Tort Action for Retaliatory Discharge Upon Filing Workmen's Compensation Claim, 12 John Marshall J.Prac. & Proc. 659 (1979); Note, Non-Statutory Cause of Action for an Employer's Termination of an "At Will" Employment Relationship: A Possible Solution to the Economic Imbalance in the Employer-Employee Relationship, 24 N.Y.L.Sch.L. Rev. 743 (1979); Comment, Protecting the Private Sector At Will Employer Who "Blows the Whistle": A Cause of Action Based Upon Determinants of Public Policy, 1977 Wisc.L.Rev. 777; Note, A Common Law Action for the Abusively Discharged Employee, 26 Hastings L.J. 1435 (1975); Note, Remedy for the Discharge of Professional Employees Who Refuse to Perform Unethical or Illegal Acts: A Proposal in Aid of Professional Ethics, 28 Vand.L.Rev. 28 (1975); Note, Implied Contract Rights to Job Security, 26 Stan.L.Rev. 335 (1974); Weyand, Present Status of Individual Employee Rights, N.Y.U.22D Annual Conference on Labor 171 (1970); cf. Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 Va.L.Rev. 481 (1976). See also the various materials collected in A. Westin & S. Salisbury, Eds., Individual Rights in the Corporation: A Reader on Employee Rights (1980).
[4] The theory, of course, is conceptually not unlike others which have long been accepted by this Court. See, e. g., Dolphin v. Park Monroe Associates, 353 A.2d 314 (D.C.App.1975), following Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687, cert. denied, 393 U.S. 1016, 89 S. Ct. 618, 21 L. Ed. 2d 560 (1969) (while landlord may evict a tenant at will for any legal reason or for no reason at all, he may not evict for reasons which violate statutorily declared public policy).
[5] In the present case, Mr. Ivy argued to the panel that if this case should eventually go to trial, a jury could reasonably infer that, as in Petermann, Army Times meant to suggest to Mr. Ivy that the company expected his testimony to support its position before the Wage and Hour Board, regardless of Mr. Ivy's understanding of the truth of the matters he was to testify about. Army Times, of course, vigorously disputed that argument. In any event, the point need not be addressed in order to resolve the question presented by this petition, for whether Mr. Ivy was fired for refusing to commit perjury or whether he was fired for telling the truth is, in our view, a distinction without a difference for purposes of determining whether he has stated a claim upon which relief can be granted. See, Petermann v. International Brotherhood of Teamsters, supra.
[6] Still other courts have found an employer liable for intentional infliction of emotional distress in cases of wrongful discharge. See, e. g., Harless v. First National Bank, supra; Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977); Agis v. Howard Johnson & Co., 355 N.E.2d 315 (Mass.1976); Alcorn v. Anbro Engineering Co., 2 Cal. 3d 493, 86 Cal. Rptr. 88, 468 P.2d 216 (1970). However, as a practical matter, that theory of employer liability is largely foreclosed in this jurisdiction by this Court's decision in Waldon v. Covington, 415 A.2d 1070 (D.C.App.1980); see also the Panel Opinion in this case, rejecting such a cause of action on the present facts. Consequently, it is all the more important for this Court to undertake a thorough and informed analysis of the wrongful discharge theory as an independent ground of liability.
[7] So far as our research has revealed, of the various jurisdictions which have considered the question presented by this case in the past decade, only twoAlabama and Floridahave declined to recognize the wrongful discharge cause of action. With the Panel Opinion here, the District of Columbia becomes the third.
[8] [Omitted]
[9] See also Sventko v. Kroger, supra, where the court, in recognizing a tort cause of action of employees who are wrongfully discharged in retaliation for filing workmen's compensation claims, rejected the argument that the judiciary should not recognize such a cause of action because the legislature could have, but did not, provide for such a remedy in the workmen's compensation statute itself:
The legislature had seen fit to make it a crime for an employer to consistently discharge employees before they qualify under the act in order to evade the provisions of the act. [Citation to statute.] The Legislature has not made retaliatory discharges of the type alleged in this case a subject of any criminal sanction. This is certainly no indication on the part of the Legislature that the latter conduct is consistent with public policy. [Id., 245 N.W.2d at 154.]
Accordingly, the Sventko court concluded:
Discouraging the fulfillment of this legislative policy [i. e., the policy underlying the workmen's compensation statute] by use of the most powerful weapon at the disposal of the employer, termination of employment, is obviously against the public policy of our state. * * * This Court cannot tolerate such conduct. [Id., at 153-154.]
Similarly here, Mr. Ivy asks this Court to recognize a cause of action solely for those employees who are discharged in contravention of some statutorily declared public policy; obviously, such a remedy would be available only to those employees whose dismissals violate some public policy already created by the legislature.
[10] To which we would only add that we simply do not believe that any large number of District of Columbia employers fire their employees for reasons which violate statutorily declared public policy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261468/ | 111 Cal. Rptr. 2d 160 (2002)
91 Cal. App. 4th 923
In re MARRIAGE OF Patricia A. and Vincent J. DUFFY.
Patricia A. Duffy, Appellant,
v.
Vincent J. Duffy, Appellant.
No. B136160.
Court of Appeal, Second District, Division One.
May 31, 2001.
*161 Honey Kessler Amado, Beverly Hills, and Diane E. Berley, Woodland Hills, for Appellant Patricia A. Duffy.
*162 Bruce Adelstein, Los Angeles, for Appellant Vincent J. Duffy.
SPENCER, P.J.
INTRODUCTION
Vincent J. Duffy appeals from that portion of the judgment which finds that he breached his fiduciary duty of disclosure to his spouse, Patricia A. Duffy, and awards her damages for the breach of $400,684. Patricia Duffy appeals from that portion of the judgment which denies her attorney's fees incurred in asserting and trying her breach-of-fiduciary-duty claim. We reverse the lower court's breach-of-fiduciary-duty findings. In all other respects, we affirm the judgment.
STATEMENT OF FACTS
Vincent J. and Patricia A. Duffy were married on December 1, 1962. After 34 years of marriage, they separated on January 28, 1997.
Vincent Duffy received an undergraduate degree in business from Seton Hall in 1959. He attended graduate school. Patricia Duffy received an undergraduate degree in English from Hunter College in 1964. She took no finance or accounting courses while attending college.
Patricia Duffy worked briefly after the parties married. She stopped working, however, when the first of their seven children was born. She returned to work in 1991 after obtaining a teaching credential.
Early in the parties' marriage, Patricia Duffy managed the parties' checkbook. She failed to record checks or to add and subtract correctly, however. In her words, her management of the checkbook was "a disaster." She had never managed a checking account before and had no experience with managing finances. Vincent Duffy consequently took complete charge of the family finances.
At some point in their marriage, Vincent and Patricia Duffy purchased a 4200square-foot residence on one-third of an acre in Woodland Hills. They discussed the purchase before making it but Patricia did not ask the purchase price of the residence. She read and signed the purchase papers, however.
During the parties' marriage, Vincent Duffy made a series of investments. In 1977, he and Patricia Duffy purchased unimproved real estate in Leona Valley for $91,000. They discussed the investment beforehand. Although Patricia did not ask and Vincent did not tell her the purchase price, she signed the purchase papers. The property appreciated nicely in value over the years, selling in November 1997 for $800,000.
Sometime before 1983, Vincent Duffy invested $40,000 in an auto body shop he was to own jointly with its operator. Patricia Duffy learned about this investment after the fact. She did not know how much Vincent had invested in the shop. She did not ask. She explained that "usually when I asked him questions about money, I was given a very dismissive wave of the hand type answer." She had asked Vincent questions about money before he made the auto body shop investment but usually did not receive answers, or received very curt ones. Over the years, Vincent Duffy invested additional sums in the shop. He did not discuss these additional investments with Patricia. She did receive additional information about this investment upon request, however. She knew the auto body shop was not making money, knew enough money had to be produced each month to pay the rent, and eventually learned that the investment was tied up for a five-year lease term on the *163 auto body shop. At one point she objected to the investment, believing the other investor was taking too much money from the business. The investment was a total loss.
At some point, the parties and a partner, Larry Brown, invested in a house in Bullhead City, Arizona. Patricia Duffy knew about the investment beforehand. She knew the purchase price. When the partners sold the house several years later, she was aware of the sale price. Upon inquiry, she learned there were problems with the sale of the Bullhead City property. She knew the partners had not been paid and were litigating the matter in court.
At one point, Vincent Duffy loaned $50,000 to the son of a childhood friend to start a nightclub in Atlanta. The loan is secured by the real property upon which the nightclub stands. When Patricia Duffy asked, Vincent Duffy told her about this investment in general terms. He did not provide details. Patricia did not ask how much Vincent was investing in this venture.
Patricia and Vincent Duffy discussed ahead of time their purchase of a time-share in Cabo San Lucas, Mexico. They specifically discussed the purchase price.
As part of Vincent Duffy's severance package from MCA Records in 1983, he received $157,590.40 from a profit-sharing plan and 3,901 shares of MCA stock from two separate stock plans. He initially rolled over the profit-sharing proceeds into the Individual Retirement Account (IRA) at Investment Savings & Loan Association. Patricia Duffy accompanied him when he did this.
Vincent Duffy later opened a brokerage IRA account with Sean Dillon (Dillon), a stockbroker at Paine Webber and the son of a childhood friend. Patricia Duffy was aware that Vincent had opened a brokerage account. Upon Dillon's recommendation, Vincent sold the MCA stock.
At some point between 1993 and 1995, Vincent Duffy transferred the account to Ed Flynn (Flynn) of Hanifen Imhof, another stockbroker who was the son of a childhood friend. He told Flynn that his investment objectives were to make a lot of money and to be safe and conserve the account.
In February 1995, the value of the IRA brokerage account was $482,925. At the time, the portfolio contained nine stocks. Flynn recommended that Vincent Duffy sell these stocks and buy five specific technology stocks, one of which was Excalibur Technologies Corp. (Excalibur). This company sells software, including a new type of internet video software, to commercial businesses and government agencies in North America, Europe and elsewhere. Flynn told Vincent that this was a good solid stock about to increase in value. Vincent Duffy followed Flynn's recommendations.
Between April and December 1995, shares of Excalibur increased in value from approximately $13 per share to $26 per share. On Flynn's recommendation, Vincent bought and sold Excalibur at different prices during this period. By November 1995, the value of the brokerage account had increased to $611,648.
Sometime in 1995, Flynn suggested that Vincent Duffy invest the entire portfolio in Excalibur. Vincent followed that advice sometime in 1996. By July 1996, the value of the brokerage account had declined to $297,309. Vincent Duffy expressed concern but Flynn reassured him. The brokerage account remained invested solely in Excalibur. In February 1997, the price of Excalibur's shares dropped precipitously, reaching a low of $3.75. Vincent Duffy ceased trading in the stock. By May 1998, the price had returned to $13.50 per share. *164 The value of the brokerage account was $261,483.
Before the parties separated, Patricia Duffy saw some brokerage statements that had been mailed to the house, as well as prospectuses and other investment materials. She realized the MCA stock was not reflected on these statements but asked no questions about this. She asked no questions whatsoever about the brokerage account. For a brief period of time when Flynn moved to another brokerage house, Vincent Duffy had the statements mailed to his office.
According to expert witnesses, the investments in the IRA account were far too risky and lacked adequate diversification. Had the MCA assets been invested in a more conservative manner, the yield would have been far higher. One expert calculated damages for Vincent Duffy's alleged breach of fiduciary duty by using the difference between the highest value of the IRA account and its value in May 1998.
CONTENTIONS
On Appeal
I
Vincent Duffy contends the evidence is insufficient to support the trial court's finding that he breached his fiduciary duty of full disclosure.
II
Vincent Duffy further contends the finding cannot be upheld on the ground that he breached some other fiduciary duty.
III
Vincent Duffy asserts the trial court employed the wrong measure of damages and erroneously included interest in the award.
On Cross-Appeal
IV
Patricia Duffy contends the trial court erred in failing to award her attorney's fees.
DISCUSSION
On Appeal
I
Vincent Duffy contends the evidence is insufficient to support the trial court's finding that he breached his fiduciary duty of full disclosure. We agree.
With limitations that are irrelevant to this case, Family Code section 1100, subdivision (a), reposes in either spouse "the management and control of the community personal property, . . . with like absolute power of disposition, other than testamentary, as the spouse has of the separate estate of the spouse." Subdivision (e) of section 1100 provides that "[e]ach spouse shall act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships which control the actions of persons having relationships of personal confidence as specified in Section 721, until such time as the assets and liabilities have been divided by the parties or by a court. This duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest . . ., and to provide equal access to all information, records, and books that pertain to the value and character of those assets . . ., upon request." (Italics added.)
Family Code section 721, subdivision (b), upon which section 1100, subdivision (e), relies for definition of the scope of spousal fiduciary duty, provides that "[e]xcept as *165 provided in Sections 143, 144, 146, and 16040 of the Probate Code, . . . a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 15019, 15020, 15021, and 15022 of the Corporations Code, including the following: [¶] (1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying. [¶] (2) Rendering upon request, true and full information of all things affecting any transaction which concerns the community property. . . . [¶] (3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse which concerns community property." (Italics added.)
The duties specified in Family Code section 721, subdivision (b), are derived from the Corporations Code sections upon which subdivision (b) relies. Former Corporations Code section 15019 (now section 16503) gave a partner the right to have access to, inspect and copy books of account. Section 15020 (now section 16403) conferred the right to disclosure, on demand, of information regarding the partnership business. Section 15021 (now section 16404) required accounting for the benefits or profits derived from a partnership or benefits derived by a partner's use of partnership property. Section 15022 specified when a partner was entitled to a formal accounting.
The lower court found that, upon his termination from MCA Records, after approximately 23 years of employment, Vincent Duffy received his interest in the MCA Records profit-sharing plan, or $157,590.40 in cash, which he rolled over into an IRA at Investment Savings & Loan Association. He also received 3,117 shares of MCA Records stock from a stock investment plan and an additional 784 shares of stock from another company plan. The court further found that Vincent Duffy thereafter made investments of these assets without consulting with Patricia Duffy or obtaining her advice or agreement. "While [Vincent Duffy] told [Patricia Duffy] about an initial investment, he did not tell her about subsequent investments, assuming she would realize he was making such investments, nor did he tell her that he was using funds from the MCA profit sharing IRA rollover to make these subsequent investments. Further, [he] did not tell [her] how he invested the 3,901 shares of MCA stock he received. . . ."
The court also found that "[f]rom time to time throughout the marriage, [Patricia Duffy] attempted to question [Vincent Duffy] about financial affairs. When she did, he usually did not respond or if he did, [he] was very curt, treated her in a dismissive manner, indicating she was not to talk about it." Inasmuch as "there were requests by [Patricia Duffy] for economic information which [Vincent Duffy] ignored," the court found that Vincent Duffy had breached his fiduciary duty of full disclosure with respect to investment of the MCA assets. At no point in its findings does the court mention any of the community's other investments.[1]
*166 It is settled that appellate review of the sufficiency of the evidence is governed by the substantial evidence rule. (Cf. Bixby v. Pierno (1971) 4 Cal. 3d 130, 93 Cal. Rptr. 234, 481 P.2d 242.) This court views the entire record in the light most favorable to the prevailing party to determine whether there is substantial evidence to support the trial court's findings. (Bowers v. Bernards (1984) 150 Cal. App. 3d 870, 873-874, 197 Cal. Rptr. 925; accord, Campbell v. Southern Pacific Co. (1978) 22 Cal. 3d 51, 60, 148 Cal. Rptr. 596, 583 P.2d 121.) We must resolve all conflicts in the evidence and draw all reasonable inferences in favor of the findings. (Watson v. Department of Rehabilitation (1989) 212 Cal. App. 3d 1271, 1289, 261 Cal. Rptr. 204.) Substantial evidence is evidence of ponderable legal significance. (Toyota Motor Sales U.S.A, Inc. v. Superior Court (1990) 220 Cal. App. 3d 864, 871, 269 Cal. Rptr. 647; Bowers, supra, at p. 873, 197 Cal. Rptr. 925.)
Patricia Duffy had no financial training or background. Prior to marriage, she had no experience in handling finances. Her attempt at handling the parties' finances early in their marriage was, as she acknowledged, "a disaster." Thereafter, Vincent Duffy generally handled finances.
Sometime before 1983, Vincent Duffy had invested $40,000 in an auto body shop. He subsequently invested additional sums. The investment was a total loss. Patricia Duffy acknowledged that she knew of this investment. When asked whether she had asked Vincent Duffy how much he was investing, she said she had not done so. When asked why, Patricia explained, "Well, usually when I asked him questions about money, I was given a very dismissive wave of the hand type answer." She had asked him questions about money before he made the auto body shop investment but usually did not receive answers, or received only very curt ones. With respect to this investment, she did receive some material information upon request, however. She knew the auto body shop was not making money, knew enough money had to be produced each month to pay the rent, and eventually learned that the investment was tied up for a five-year lease term on the auto body shop.
Patricia Duffy had participated in the 1977 purchase of unimproved real property in Leona Valley. She also knew about their investment in a house in Bullhead City, Arizona, before it took place. She knew the purchase price. When Vincent Duffy and his partner sold the property, she knew the sales price. She also learned, upon inquiry, that there were problems with the sale and that the parties were litigating the sale in court. Patricia Duffy had some information about the Atlanta Nightclub for which Vincent Duffy had made a loan, although she knew no details. She asked no detailed questions.
Patricia and Vincent Duffy discussed ahead of time their purchase of a time-share in Cabo San Lucas, Mexico. They specifically discussed the price.
Patricia Duffy accompanied Vincent Duffy when he rolled over his profit-sharing proceeds into the IRA at Investment Savings & Loan Association. She was aware that he opened a brokerage account. Before the parties separated, she saw some brokerage statements that had been mailed to the house. She realized the MCA stock was not reflected on these *167 statements but asked no questions about this.
This is the sum total of the evidence upon which the lower court relied in finding that Vincent Duffy breached his duty of full disclosure with respect to the MCA assets. There is no evidence that Vincent Duffy ever refused to provide information about the investment of these assets. Similarly, there is no evidence that Patricia Duffy ever asked any questions concerning the investment of these assets. To the contrary, she testified that she asked no questions. There is not even any evidence that Vincent Duffy continued to treat her requests for financial information in a dismissive manner after 1983. Indeed, with respect to some investments, the record reflects the contrary. Patricia Duffy could secure pertinent investment information when she sought it. She received it with respect to the Bullhead City real estate investment, the Cabo San Lucas timeshare and, to some extent, the auto body shop investment.
Patricia Duffy argues that this makes no difference for two reasons. First, Vincent Duffy's historical pattern of giving her curt and dismissive answers when she sought financial information justifies the inference that he ignored her requests in this instance. As noted above, the historical pattern is inconsistent. It was possible for her to obtain information upon inquiry. Moreover, she testified directly that she asked no questions concerning investment of the MCA assets. It therefore cannot be inferred that she did ask and received no response.
Second, Patricia Duffy argues, it would have been futile for her to ask, so she was not required to do so. As we have noted, it is not clear that it would have been futile for her to ask for information. Doing so in the past occasionally had yielded results. She did not testify that she believed it would be futile or that she had been so intimidated in the past that she was afraid to ask. There is no evidence even that she had any particular interest in the status of the MCA assets. More importantly, the evidence on this point is not uncontroverted. According to Vincent Duffy, he provided Patricia with considerably more financial information than she testified he had provided. The lower court made no finding that it would have been futile for Patricia to seek information about the investment of the MCA assets. To the contrary, the court found that "there were requests by [her] for economic information which [Vincent Duffy] ignored."
Whether an act would have been futile normally is a question of fact. It may be determined as a question of law only if the facts are undisputed and permit only one reasonable inference. (People ex tel. State Pub. Wks. Bd. v. Superior Court (1979) 91 Cal. App. 3d 95, 102, 154 Cal. Rptr. 54.) Inasmuch as the evidence in this case does not compel an inference of futility, we cannot excuse Patricia Duffy's failure to inquire on this ground. (Ibid.)
In summary, there is no evidence, substantial or insubstantial, that Patricia Duffy ever sought information about the investment of MCA assets, which information Vincent Duffy failed or refused to provide. There consequently is no evidentiary support for the trial court's finding that Vincent Duffy breached his fiduciary duty of full disclosure upon request.
II
Vincent Duffy further contends the finding cannot be upheld on the ground that he breached some other fiduciary duty. Again, we agree.
Initially, Vincent Duffy argues that we should not consider this as an alternative means of upholding the judgment. If *168 the trial court, having selected one theory upon which to rule and rejected another, selected the wrong theory, we nonetheless may uphold the judgment on the alternate theory unless it is based on disputed facts. (United Pacific Ins. Co. v. Hanover Ins. Co. (1990) 217 Cal. App. 3d 925, 933, fn. 9, 266 Cal. Rptr. 231.) Here, the facts concerning what Vincent Duffy did in making investment decisions, the investments he made and whether these conform to a particular standard all are undisputed. We therefore may consider an alternate theory even though the trial court chose not to do so.
Fiduciary duty requires the fiduciary "`to act with the utmost good faith for the benefit of the other party.'" (In re Marriage of Reuling, supra, 23 Cal. App.4th at p. 1438, 28 Cal. Rptr. 2d 726.) One is a fiduciary when one person reposes "`confidence . . . in the integrity of another.'" (Ibid.) In that event, the fiduciary "`can take no advantage from his acts relating to the interest of the other party without the latter's knowledge or consent.'" (Ibid., citation and fn. omitted.) In some circumstances, fiduciary duty also includes a duty of care in the management of property. (See, e.g., Corp. Code, §§ 309, subd. (a); 16404.)
The question is whether the fiduciary duty owed by the spouse managing community assets to the other spouse includes a duty of care. Deciding this question requires statutory interpretation and some historical review.
In interpreting a statute, a fundamental rule is that the court must "`ascertain the intent of the Legislature so as to effectuate the purpose of the law.' [Citations.] In determining the intent, the court `turns first to the words themselves for the answer.' [Citation.] [¶] The words must be read in context,'"keeping in mind the nature and obvious purpose of the statute where they appear."` [Citation.] In ascertaining the legislative intent, courts should consider not only the words used, but `the object in view, the evils to be remedied, the legislative history [and] public policy. . . .' [Citation.]" ](People v. Aston (1985) 39 Cal. 3d 481, 489, 216 Cal. Rptr. 771, 703 P.2d 111.)
Before 1975, only the husband had the right to manage and control community property. (Former Civ.Code, §§ 172, 172a.) He owed a fiduciary duty of loyalty to the wife in doing so. (Vai v. Bank of America (1961) 56 Cal. 2d 329, 338, 15 Cal. Rptr. 71, 364 P.2d 247.)
While the husband did owe a duty of loyalty, he apparently did not owe a duty of care. "As one note writer has observed: `Evidently a husband is free to make unwise purchases, to speculate freely in stocks and securities or to use personal property foolishly without the wife's consent, for in these situations the desirability of freely transferable personal property is thought to outweigh the harm suffered by the wife.' [Citation.]" (Bank of California v. Connolly (1973) 36 Cal. App. 3d 350, 377-378, 111 Cal. Rptr. 468.) To extend the duty further, another commentator stated, would "`hamper the exercise of his [husband's] business initiative, prejudice the rights of those who deal with him, and generally hinder commercial transactions.'" (Id. at p. 378, 111 Cal. Rptr. 468.)
Rosenthal v. Rosenthal (1966) 240 Cal. App. 2d 927, 50 Cal. Rptr. 385, upon which Patricia Duffy relies, does not suggest otherwise. There was no question in Rosenthal of whether the husband had breached his fiduciary duty by making speculative investments. The question was whether, after entry of an interlocutory divorce decree, the husband should be allowed to continue managing the community assets. The appellate court thought not, noting *169 evidence "that the husband has persisted in expending large sums of community money in a highly speculative oil business." (At p. 933, 50 Cal. Rptr. 385.) Inasmuch as "[p]ouring money into a speculative business may empty the community estate as quickly and completely as a fraudulent concealment of assets," the husband's "persistence threatens to dissipate and waste the community assets. Were the management of the community estate left to the husband and were he allowed to continue the community oil speculations in the hope of future profit, the community property would remain undivided and subject to speculative risk for an indefinite period." (Ibid.) In these circumstances, "the wife's interest would continue to be at her husband's mercy." (Ibid.) The court consequently concluded that appointment of a receiver was necessary to conserve the community assets for division and distribution.
The lesson to be learned from Rosenthal is simply this: post-dissolution, the spouses' interests may diverge, the managing spouse willing to risk dissipation in a speculative investment in hope of greater returns in the future, the other spouse desiring to conserve the existing estate until its division and distribution. This being the case, a spouse who had shown a propensity for making speculative investments should not be allowed to continue handling the community assets, for he cannot be relied upon to exercise his duty of good faith and loyalty. It does not suggest that a managing spouse owes a duty of care in choosing investments.
In re Marriage of Quay (1993) 18 Cal. App. 4th 961, 22 Cal. Rptr. 2d 537 is of no greater help to Patricia Duffy. In Quay, the trial court, over the wife's objection, allowed the husband to manage community funds while the dissolution was pending. The husband knew the wife did not want money loaned to a company owned by the husband's friend. Knowing this, the husband loaned a large sum to the company. Inasmuch as the parties were in adverse positions and the right to manage community property was being litigated, this was a breach of fiduciary duty. (At p. 972, 50 Cal. Rptr. 385.) It was a breach of the duty of good faith and loyalty, however, not of a duty of care. Nothing in Quay suggests that a spouse owes a duty of care in managing community assets.
From 1975 to the 1992 revision of former Civil Code section 5125, both spouses had a joint right to manage the community personal property; the managing spouse had a duty to act in good faith in doing so. (Former Civ.Code, § 5125, subd. (e).) In 1983, the Supreme Court noted that a managing spouse's duty of disclosure "stems in part from the confidential nature of the marital relationship. . . . It also arises from the fiduciary relationship that exists between spouses with respect to the control of community property." (In re Marriage of Modnick (1983) 33 Cal. 3d 897, 905, 191 Cal. Rptr. 629, 663 P.2d 187, citations omitted.) The asset concealed in Modnick, however, was a bank account opened in 1970 into which the husband had deposited sums during the marriage. (Id. at p. 902, 191 Cal. Rptr. 629, 663 P.2d 187.) The dispute thus was over a pre-1975 asset. Modnick consequently does not stand for the proposition that the duty of good faith found, as of 1992, in the amended version of former Civil Code section 5125, subdivision (e), is the same as the fiduciary duty the husband previously owed to the wife.
Recognizing this, a series of cases, beginning with In re Marriage of Stevenot (1984) 154 Cal. App. 3d 1051, 202 Cal. Rptr. 116, held that the amendments to former Civil Code sections 5125 and 5127 "changed the fiduciary duty to one of good *170 faith." (At p. 1068, 202 Cal. Rptr. 116.) This is "a lesser duty." (Ibid, and p. 1070, 202 Cal. Rptr. 116, see also In re Marriage of Zaentz (1990) 218 Cal. App. 3d 154, 163-164, 267 Cal. Rptr. 31; In re Marriage of Alexander (1989) 212 Cal. App. 3d 677, 679, 261 Cal. Rptr. 9; but see In re Marriage of Baltins (1989) 212 Cal. App. 3d 66, 90, 91, 260 Cal. Rptr. 403; In re Marriage of Munguia (1983) 146 Cal. App. 3d 853, 859, 195 Cal. Rptr. 199.)
These cases are correct. "Good faith" and fiduciary duty are not coextensive. "Good faith" "`encompasses], among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage. . . . Honesty of intention. . . .' [Citation.]" (In re Marriage of Reuling, supra, 23 Cal.App.4th at p. 1438, 28 Cal. Rptr. 2d 726.) Fiduciary duty, in contrast, requires that the fiduciary act with "`the utmost good faith for the benefit of the other party.'" (Ibid., italics added.) Complying with fiduciary duty requires more than "`honesty of intention,'" or good faith. (Ibid.) It requires loyalty, or a commitment to not secure any advantage, in opposition to the other party, without that party's knowledgeable consent. (Ibid.) A breach of loyalty could occur simply from seizing an excellent investment opportunity for the benefit of one's personal property rather than for the benefit of the community estate. A breach of good faith would require more egregious conduct, i.e., the misuse and misappropriation of community business income for one's personal use. (In re Marriage of Czapar (1991) 232 Cal. App. 3d 1308, 1318, 285 Cal. Rptr. 479.)
The Stevenot court held that the duty of good faith "requires the disclosure of all community assets, but not their valuation unless the valuation or factors affecting the valuation are peculiarly within the knowledge of one spouse, and reasonable inquiry and use of discovery proceedings by the other spouse would fail to disclose them." (In re Marriage of Stevenot, supra, 154 Cal.App.3d at p. 1070, 202 Cal. Rptr. 116.) Unhappy with this conclusion, the Legislature passed Assembly Bill No. 2194 in 1989. The bill provided that, in the management and control of community property, the managing spouse owed the other spouse a fiduciary duty. (Assem. Bill No. 2194, §§ 2, 3.)
Then-Governor George Deukmejian vetoed the bill on September 25, 1989. In his veto message, he stated, "I believe the intent of this bill to clarify marital property management standards and protect both spouses regarding community property assets is laudable. However, I am concerned that this legislation will increase litigation and the attendant costs of divorce proceedings. . . . This bill could severely impact the doctrine of finality [of a judgment] by allowing either spouse, even many years later, to appeal to a court to set aside a judgment and marital settlement agreement, based upon a claimed breach of fiduciary duty.
"An aggrieved divorcing spouse should have a forum to seek redress for significant wrongs committed during the marriage by the other spouse. However, I am concerned that, to the extent that an investment made during a marriage lost money and was one that a prudent fiduciary would not have made, this bill would provide a forum to reopen virtually all of those transactions. Since spouses regularly make investments that fiduciaries laagwould never make, and because the disillusionment and distrust engendered by marital breakup often leads individuals to expand litigation beyond reasonable limits, obvious problems are created. . . ."
In 1991, the Legislature again attempted to amend the standard applicable to management *171 and control of community property, introducing Senate Bill No. 716. Section 1 of the bill stated, "The Legislature finds and declares that it is the public policy of this state that marriage is an equal partnership and that spouses occupy a confidential and fiduciary relationship with each other, whereby each spouse places trust and confidence in the integrity, honesty, and fairness of the other spouse." The bill amended Civil Code sections 5103 and 5125 (since repealed and replaced with Family Code sections 721 and 1100) to so state.
As originally written, the bill amended subdivision (b) of former Civil Code section 5103 to provide that "[e]xcept as provided in Sections 143, 144, and 146 of the Probate Code,[2] in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. A husband and wife are guaranteed the same good faith standard as the law provides to nonmarital business partners, as provided in Sections 15019, 15020, 15021, and 15022 of the Corporations Code, including, but not limited to," certain enumerated rights. (Sen. Bill No. 716, § 2.)
The bill amended subdivision (e) of former Civil Code section 5125 to state that "[e]ach spouse shall act with respect to the other spouse in the management and control of the community property in accordance with the general rules governing fiduciary relationships which control the actions of persons having relationships of personal confidence as specified in Section 5103, until such time as the property has been divided by the parties or by a court." (Sen. Bill No. 716, § 3.) It then specifies the scope of a spouse's duty of disclosure. (Ibid.)
The Assembly Judiciary Committee Report noted Governor Deukmejian's reasons for vetoing Assembly Bill No. 2194. (Assem. Judiciary Com. Report, p. 1.) Thereafter, the Assembly amended the bill to provide, in subdivision (b) of former Civil Code section 5103, that, "[e]xcept as provided in Sections 143, 144, 146, and 16040 of the Probate Code, . . . a husband and wife are subject to the general rules governing fiduciary relationships. . . . This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is analogous to the fiduciary relationship of nonmarital business partners, as provided in Sections 15019, 15020, 15021, and 15022 of the Corporations Code, including, but not limited to," certain enumerated rights. (Sen. Bill No. 716, as amended Aug. 19, 1991, italics added to indicate amendments made.) The bill was amended further to provide that the confidential relationship, rather than being analogous to the fiduciary relationship of nonmarital partners, is a fiduciary relationship. The amendment further provided that the relationship is subject to the same rights and duties of nonmarital partners. It also eliminated the phrase "but not limited to" from enumeration of the specific rights provided. (Sen. Bill No. 716, as amended Aug. 27, 1991.) Thus amended, the bill passed both houses and became law.
The amendments have considerable significance. In general, "a substantial change in the language of a statute . . . by an amendment indicates an intention *172 to change its meaning." (Mosk v. Superior Court (1979) 25 Cal. 3d 474, 493, 159 Cal. Rptr. 494, 601 P.2d 1030.) It is presumed the Legislature made changes in wording and phraseology deliberately (Estate of Simpson (1954) 43 Cal. 2d 594, 600, 275 P.2d 467) and intended different meanings when using different words (Las Virgenes Mun. Wat. Dist. v. Dorgelo (1984) 154 Cal. App. 3d 481, 486, 201 Cal. Rptr. 266).
When Senate Bill No. 716 became law, Probate Code section 16040, subdivision (b), imposed a duty on trustees to invest trust property "with the care, skill, prudence, and diligence under the circumstances then prevailing, including but not limited to the general economic conditions and the anticipated needs of the . . . beneficiaries, that a prudent person acting in a like capacity and familiar with such matters would use . . . to accomplish the purposes of the trust. . . ." In excepting from the fiduciary duty spouses owe to one another this Prudent Investor Rule, the Legislature unequivocally removed one duty of care.[3]
Similarly, by narrowing the scope of the fiduciary duty to rights specifically enumerated therein, the Legislature removed another duty of care. The Legislature did this by deleting the phrase "but not limited to" from the phrase "including, but not limited to," the enumerated rights. The enumerated rights directly echo the rights found in the sections of the Corporations Code that former Civil Code section 5103, subdivision (b), identified as delineating the scope of spouses' fiduciary duty. By limiting the rights to those enumerated, and echoed by specific Corporations Code provisions, the Legislature eliminated the possibility that subdivision (b) could be interpreted expansively to include the duty of care a nonmarital partner owes another nonmarital partner, as set forth in Corporations Code section 16404. In other words, by including certain Corporations Code provisions while eliminating the expansive words, "but not limited to," the Legislature necessarily excluded all other provisions. (People v. Weatherill (1989) 215 Cal. App. 3d 1569, 1578-1579, 264 Cal. Rptr. 298.)
When Civil Code sections 5103 and 5125 were repealed in 1994 and replaced by Family Code sections 721 and 1100 (Stats. 1992, ch. 162, § 10, operative Jan. 1, 1994), there were no significant changes in language. Family Code section 721, subdivision (b), in fact, contains language identical to that found in former Civil Code section 5103, subdivision (b). Family Code section 1100, subdivision (e), has only minor changes in language that do not affect the meaning of the provision. Former Civil Code section 5125, subdivision (e), spoke of "the management and control of the community property." Subdivision (e) of Family Code section 1100 changes "property" to "assets and liabilities." It replaces "Section 5103" with "Section 721." In all other respects, the language is unchanged. The meaning of the Family Code provisions therefore is identical to that of the former Civil Code provisions.
In short, a spouse generally is not bound by the Prudent Investor Rule and does not owe to the other spouse the duty of care one business partner owes to *173 another.[4]In re Marriage of Hokanson (1998) 68 Cal. App. 4th 987, 80 Cal. Rptr. 2d 699 does not hold otherwise. In Hokanson, the wife was guilty of dilatory conduct and of withholding material information when disposing of the community residence in a falling real estate market after the judgment was dissolution was filed and in violation of a court order to act as expeditiously as possible. This was a breach of fiduciary duty. (At pp. 990-991, 80 Cal. Rptr. 2d 699.) Again, however, this case does not involve a duty of care. The parties' interests had diverged. Having been given management of the particular asset and being under a court order to act expeditiously, the wife necessarily would breach a fiduciary duty of good faith by withholding information from her spouse and acting in a dilatory manner while the value of the asset decreased.
To summarize, Vincent Duffy did not owe Patricia Duffy a duty of care in investing the community assets. Inasmuch as Vincent Duffy owed Patricia Duffy no duty of care, he cannot have breached that duty.
III
Vincent Duffy asserts the trial court employed the wrong measure of damages and erroneously included interest in the award. Inasmuch as the judgment must be reversed for insufficiency of the evidence, we need not reach the merits of this assertion.
On Cross-Appeal
IV
Patricia Duffy contends the trial court erred in failing to award her attorney's fees. Once again, inasmuch as the judgment must be reversed, we need not address this contention.
The judgment is reversed insofar as it finds that Vincent Duffy breached a fiduciary duty owed to his spouse, Patricia Duffy, and awards damages therefor. In all other respects, the judgment is affirmed. Appellant Vincent Duffy is to recover costs on appeal.
MIRIAM A. VOGEL, J., and MALLANO, J., concur.
NOTES
[1] Although it is not clear, the court may have limited its findings in this manner due to the age of the parties' other community property investments. The change in the standard applicable when both spouses have a right to manage and control community personal property, from "good faith" to fiduciary duty, through amendment of former Civil Code section 5125, subdivision (e), effective 1992, does not apply retroactively. (In re Marriage of Reuling (1994) 23 Cal. App. 4th 1428, 1439-1440, 28 Cal. Rptr. 2d 726.)
[2] Probate Code sections 143, 144 and 146 delineate the circumstances in which a spouse's waiver of inheritance rights, testamentary rights and/or certain rights conferred by the Probate Code will be valid.
[3] In 1995, the Legislature adopted the Uniform Prudent Investor Act. The Prudent Investor Rule now can be found in Probate Code section 16047, subdivision (a). This is of no significance, for the amendment to former Civil Code section 5103, subdivision (b), nonetheless carries with it the meaning given Probate Code section 16040 at the time the amendment was made. (People v. Superior Court (Lavi) (1993) 4 Cal. 4th 1164, 1176, fn. 7, 17 Cal. Rptr. 2d 815, 847 P.2d 1031.)
[4] While a spouse may become an involuntary trustee, in which case the Prudent Investor Rule may apply, this only occurs when that spouse fraudulently obtains the other spouse's separate property. (Shaw v. Bernal (1912) 163 Cal. 262, 271, 124 P. 1012.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2048981/ | 900 N.E.2d 830 (2009)
HARRIS
v.
STATE.
No. 49A02-0807-CR-586.
Court of Appeals of Indiana.
January 22, 2009.
DARDEN, J.
Disposition of case by unpublished memorandum decision. Affirmed.
RILEY, J. Concurs.
VAIDIK, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261499/ | 110 Cal.Rptr.2d 930 (2001)
91 Cal.App.4th Supp. 1
The PEOPLE, Plaintiff and Appellant,
v.
Sandra Lynn McNORTON, Defendant and Respondent.
No. BR 41036.
Appellate Division, Superior Court, Los Angeles County.
June 13, 2001.
*931 Steve Cooley, District Attorney of Los Angeles County, Patrick D. Moran, Juliet Schmidt, Deputy District Attorneys, for Plaintiff and Appellant.
Bruce A. Hoffman, Alternate Public Defender of Los Angeles County, Felicia Kahn Grant, Deputy Alternate Public Defender, for Defendant and Respondent.
MEMORANDUM JUDGMENT
McKAY, J.
On April 4, 2000, the Los Angeles County District Attorney's Office (hereinafter appellant) filed a three-count misdemeanor complaint against Sandra Lynn McNorton (hereinafter respondent). The complaint alleged violations of the following sections of the Vehicle Code: count 1, section 23152, subdivision (a), driving a vehicle under the influence of an alcoholic beverage; count 2, section 23152, subdivision (b), driving a vehicle with a blood-alcohol level of 0.08 percent or higher; and count 3, section 16028, subdivision (b), failing to provide proof of financial responsibility. On May 11, 2000, the court appointed counsel to represent respondent and advised respondent of the charges, respondent entered a not guilty plea, and the matter was set for pretrial proceedings. On September 26, 2000, the trial court called the case for jury trial, and a panel of 35 jurors was sworn for voir dire. Prior to the jury being selected and sworn to hear the matter, counsel for respondent made an oral motion to exclude the statement made by respondent at the time of her arrest that she was the person driving the vehicle. When the trial court granted respondent's motion, appellant advised the court that without the statement they were unable to proceed. Respondent then made a motion to dismiss the complaint which the trial court granted.
Appellant timely appeals, pursuant to Penal Code section 1466, subdivision (1)(B), the order dismissing the complaint on the ground that the trial court erred in its finding that the statement was inadmissible because the facts did not establish the corpus delicti of driving under the influence of alcohol. Respondent challenges appellant's right to seek appellate review of the pretrial ruling. We conclude, as explained below, that the trial court's order dismissing the complaint was erroneous, and appellant may appeal the dismissal pursuant to Penal Code section 1466, subdivision (1)(B).
We will initially address respondent's challenge to the appealability of the trial court's order of dismissal. The People's right to appeal in a misdemeanor case *932 is strictly statutory, and Penal Code section 1466, subdivision (1),[1] enumerates the circumstances under which the People may appeal. (See People v. A-1 Roofing Service, Inc. (1978) 151 Cal.Rptr. 522, 87 Cal. App.3d Supp. 1,8.) Penal Code section 1466, subdivision (1)(B), permits the People to appeal from an order dismissing or otherwise terminating all or any portion of an action. Respondent, in reliance on People v. Rawlings (1974) 42 Cal.App.3d 952, 117 Cal.Rptr. 651, asserts that the order is not appealable because it was an adverse ruling from an informal pretrial proceeding. Respondent acknowledges in her brief that the weight of appellate authority is contrary to Rawlings and permits an appeal by the People where the trial court's pretrial evidentiary ruling suppressing or excluding evidence results in a dismissal of the action.
We will now address the merits of the appeal, that is, did the trial court err in finding that respondent's admission of driving the vehicle was excludable because appellant failed to establish the elements of the crime of driving under the influence of alcohol. Appellant and respondent submitted the matter to the trial court on the following stipulated facts.
"April 1st, about 1:30 in the afternoon, Interstate 605, the vehicle was registered to my client, legally parked because of a flat tire. Highway Patrol observes this, pulls behind the vehicle and sees an individual identified asVictor Damm is his correct namechanging a tire to that vehicle. I believe the Highway Patrol officer asks Mr. Damm whether he was driving. Mr. Damm says he wasn't driving, that it was my client that was driving the vehicle. The Highway Patrol officer contacts my client who was in the passenger seat of the vehicle. . . . And during his contact he establishes from my client through her own admissions that she was driving the vehicle."
"In addition to that your honor, the officer made observations of the gentleman that was changing the tire and noted all of the objective signs of intoxication on that gentleman as well. And in speaking with the officer, they were both clearly intoxicated."
To establish the elements of driving under the influence of alcohol, the prosecution must prove that (1) a person, (2) while under the influence of alcohol, (3) drove a vehicle. (CALJIC No. 16.830.) "`In any criminal prosecution, the corpus delicti must be established by the prosecution independently from the extrajudicial statements, confessions or admissions of the defendant.' [Citations.] Such independent proof may consist of circumstantial evidence [citations], and need not establish the crime beyond a reasonable doubt [citations] . . . . [¶] . . . The amount of independent proof of a crime required for this purpose is quite small; we have described this quantum of evidence as `slight' [citation] or `minimal' [citation]. The People need make only a prima facie showing `"permitting the reasonable inference that a crime was committed."' [Citation.] The inference need not be `the only, or even the most compelling, one . . . [but need only be] a reasonable one. . . .' [Citation.]" (People v. Jones (1998) 17 Cal.4th 279, 301-302, 70 Cal.Rptr.2d 793, 949 P.2d 890, original italics.)
Here, based on the stipulated facts, along with the low quantum of proof necessary to establish the corpus delicti rule, we *933 conclude appellant made such a showing in this case. The undisputed facts here establish circumstantially the elements of the driving of the vehicle by an intoxicated person. (See People v. Wilson (1985) 222 Cal.Rptr. 540, 176 Cal.App.3d Supp. 1, 9.) The vehicle was observed parked on the side of the highway with a flat tire. A reasonable inference to be drawn from these facts is that the flat tire occurred while someone was driving the vehicle. The facts contained in the stipulation do not support a contrary finding. Additionally, it is undisputed that the only two individuals in the vicinity of the vehicle were both under the influence of alcohol. The record is devoid of any evidence to support the inference respondent or Victor Damm consumed alcoholic beverages after the vehicle was parked. There are no references in the stipulation to empty containers or cups in or around the vehicle, nor is there evidence to support a finding that respondent and Victor Damm were transported to the location of respondent's disabled vehicle by someone else. A reasonable inference to be drawn is that one of the two individuals, respondent or Victor Damm, was behind the wheel of respondent's vehicle before it sustained the flat tire.
The identity of the driver is not an element of the corpus delicti. Respondent was not required to establish who was driving the vehicle as a condition precedent for the admissibility of the statement. "Proof of the corpus delicti does not require proof of the identity of the perpetrators of the crime, nor proof that the crime was committed by the defendant. [Citations.]" (People v. Cobb (1955) 45 Cal.2d 158, 161, 287 P.2d 752; CALJIC No. 2.72.) Once appellant established that a reasonable inference to be drawn from the evidence was that a person under the influence of alcohol drove the car on the highway, appellant was entitled to use respondent's extrajudicial statement to establish that respondent was the driver. The trial court erred when it concluded that because other reasonable inferences could be drawn from the evidence, appellant had failed to establish the elements of the crime.
Respondent's reliance on People v. Nelson (1983) 189 Cal.Rptr. 845, 140 Cal. App.3d Supp.1, and People v. Moreno (1987) 188 Cal.App.3d 1179, 233 Cal.Rptr. 863, is not persuasive. We find Nelson to be factually distinguishable in that, unlike this case, there was evidence that only one of the two individuals was intoxicated. Moreno appears to be inconsistent with the reasoning of People v. Jones, supra, 17 Cal.4th 279, 70 Cal.Rptr.2d 793, 949 P.2d 890 insofar as it infers that the People are required to eliminate all other reasonable inferences. We find People v. Scott (1999) 76 Cal.App.4th 411, 90 Cal.Rptr.2d 435 more persuasive and elect, pursuant to Auto Equity Sales Co. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937, to follow its reasoning.
The order dismissing the complaint is reversed.
BEVERLY, P.J., and KRIEGLER, J., concur.
NOTES
[1] We note for the record that a companion statute enumerating the circumstances under which the People may appeal a felony can be found in Penal Code section 1238. Additionally, we note that section 1238, subdivision (a)(8), is identical to Penal Code section 1466, subdivision (1)(B). Considering that both parties referenced both sections without noting the distinction, we treat all references to the former as the latter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261502/ | 861 F.Supp. 756 (1992)
Londell WILLIAMS; James Louis; Joyce Grissom; and Mattie Roberson, Plaintiffs,
v.
The CITY OF TEXARKANA, ARKANSAS, a Public Body Corporate, et al., Defendants.
Civ. No. 92-4001.
United States District Court, W.D. Arkansas, Texarkana Division.
September 29, 1992.
*757 John W. Walker, Mark Burnette, John W. Walker, P.A., Little Rock, AR, for plaintiffs.
Paul Lester Dickerson, Lavender, Rochelle, Barnette & Dickerson, Texarkana, AR, for City of Texarkana, Ark., Bobby Ferguson.
Paul Lester Dickerson, Lavender, Rochelle, Barnette & Dickerson, Texarkana, AR, P.A. Hollingsworth, Hollingsworth Law Firm, P.A., Little Rock, AR, for Bobby Ferguson, Danny Gray, Hubert Easley, Jim Nicholas, Nelson Shaw, Greg Giles.
Paul Lester Dickerson, Lavender, Rochelle, Barnette & Dickerson, Texarkana, AR, M. Brent Haltom, Lewisville, AR, for Miller County Ark. Election Com'n, David Orr, Lou Ann Dean, Margaret McRaney.
David J. Potter, Texarkana, TX, for Danny Jewell.
MEMORANDUM OPINION AND ORDER
HENDREN, District Judge.
Plaintiffs brought this action against the defendants alleging violation of § 2 of the Voting Rights Act as amended in the election of the City of Texarkana Board of Directors. On August 5th and 6th, 1992, this cause was tried to the Court. Post-trial briefs and motions have been filed, and the Court hereby enters its findings and conclusions as follows.
Stipulation
The parties entered into a stipulation which was accepted by the Court. Said stipulation provides:
1. Filed on January 2, 1991, this action was brought by African-American registered voters, James Louis, Joyce Grissom and Mattie Roberson, who reside within the physical boundaries of Miller County, City of Texarkana, Arkansas and a African-American member of the City of Texarkana, Arkansas, Board of Directors, Londell Williams. Named as defendants were the City of Texarkana, Arkansas, a Public Body Corporate; Bobby Ferguson, Mayor of the City of Texarkana, Arkansas; Members of the City of Texarkana, Arkansas, Board of Directors, Individually, and in their official capacities: Bobby Ferguson, Danny Gray, Hubert Easley, Jim Nicholas, Nelson Shaw, and Greg Giles; The Miller County, Arkansas Election Commission; The Members of the Miller County, Arkansas, Election Commission, in their official capacities: David Orr, Lou Ann Dean and Margaret McRaney.
2. The plaintiffs have brought this action pursuant to 42 U.S.C. § 1973 as amended seeking declaratory and injunctive relief. They allege that the at-large method of electing city directors effectively dilutes the voting power of African-Americans in Texarkana and excludes them from meaningful participation in the election of city directors. They [sic] plaintiffs ask the Court to enjoin the defendants from conducting any further at-large elections and to require the establishment of seven (7) single-member districts from which city directors will be elected.
*758 3. At present, three members of the of the [sic] Board of Directors are elected at-large. Four members of the Board of Directors are elected from wards. Three wards are majority white and one is majority black. Position number one of the at-large positions is designated as Mayor. Directors serve for staggered four-year terms (three are chosen at one election, and four are chosen at the subsequent election), but each must declare candidacy for the specific vacancy the candidate seeks to fill. A plurality vote determines the winner of each contest for the several vacancies.
4. The Court has jurisdiction over this cause pursuant to 28 U.S.C. § 1343.
5. The population of Texarkana is 22,631, 32% African-American and 68% white. The parties agree that the voting age population of Texarkana is approximately 27.6% African-American and 71.3 white. Based on the foregoing census data, the Court finds that this is a fact. The City of Texarkana and the City Board of Directors did not draw the ward boundaries or designate the at-large districts, nor do they have any authority to do so. Plaintiffs acknowledge that it is not the responsibility or duty of the Board of Directors to draw ward boundaries.
6. Texarkana is characterized in large part by segregated residential housing patterns. That is, many neighborhoods are substantially occupied by citizens of only one race. Approximately 72% of the African-American population of Texarkana lives in a identifiable geographic area referred to by the parties to this litigation as ward 2.
7. Although they possess a variety of political views, the African-American residents of ward 2 have tended to share certain common political, economic, and societal interests. That is, the African-American population has generally tended to comprise a cohesive and unified political force with respect to the predominant concerns of African-American residents.
8. Londell Williams is the only African-American to serve on the Texarkana board of Directors. He was appointed in 1978, ran unopposed in 1982 and 1986; and his opposition in 1988 was an African-American, John Gholston.
History
By way of history, the Court notes that the City of Texarkana has utilized the City Manager form of government pursuant to Act 99 of 1921, Ark.Code Ann. §§ 14-47-101 et seq. since the 1960s. Act 808 of 1977, Ark.Code Ann. § 14-42-202 provided, inter alia, that the majority of the members of the governing boards of Arkansas cities should be elected from single-member districts. Shortly after the passage of said Act 808, the City of Texarkana went to its present four-three plan. The most recent legislation affecting city-manager forms of government (and therefore that of the City of Texarkana) was the City Manager Enabling Act of 1989 Ark. Code Ann. §§ 14-61-101 to XX-XX-XXX (Supp. 1991). This act ratified the various city-manager forms of government then in operation and provides cities with a variety of alternatives for structuring or re-structuring the city-manager form of government. The basic options are as follows:
(1) All members of the board of directors are elected at-large;
(2) An odd number of directors, with a number equal to one-half plus one elected by ward and the balance are elected at-large;
(3) All but one member of the board of directors is elected by ward, with the mayor being elected at-large;
(4) All members are elected by ward. Ark.Code Ann. § 14-61-107.
At the present time, as the parties have stipulated, the City of Texarkana uses option no. 2.
Arkansas law provides that the size of the board of directors of a city may be changed by ordinance of the board with two limitations: (a) the board must always contain at least five (5) members; and (b) the board must always contain an odd number of members. Ark.Code Ann. § 14-61-105.
An election among these statutorily permitted options may come about from petitions filed by electors, Ark.Code Ann. § 14-61-113, or by reference of an option selected *759 by the board to the voters. Ark.Code Ann. § 14-61-114. Whatever the option being used, however, the directors (and where appropriate the mayor) are all selected by a plurality. Ark, Code Ann. § 14-61-112.
Finally, under Ark.Code Ann. § 14-61-109, the county board of election commissioners of a county has the right and responsibility to divide the territory of the city into the number of wards called for by the structure of government legally in place in the city and these wards or districts are to remain in place unless changed or modified by order of a court of competent jurisdiction. Once fixed by the county board of election commissioners, representatives for each ward and/or district are then elected.
Law and Standards
Before reviewing the evidence in this case, the Court finds it appropriate to set out the applicable law and relevant legal standards to be considered when determining whether § 2 of the Voting Rights Act as amended has been violated. Section 2, as amended, of the Voting Rights Act, 42 U.S.C. § 1973, states:
(a) No voting qualification or prerequisite to voting or standard practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in Section 1973b(f)(2) of this title, as provided in subsection (b) of this section; (b) a violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
All parties agree that the seminal case for analysis of vote dilution claims is Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). The Supreme Court interpretation of the Voting Rights Act in Gingles has been referred to by an Arkansas federal district court as establishing a "rather uncompromising structure for the application of the law in vote-dilution cases." Smith v. Clinton, 687 F.Supp. 1310, 1313 (E.D.Ark. 1988) remedy adopted, id. at 1361, aff'd mem., 488 U.S. 988, 109 S.Ct. 548, 102 L.Ed.2d 576 (1988).
Violation of § 2 can be proved by showing discriminatory effect alone. Gingles, 478 U.S. at 43-44, 106 S.Ct. at 2762-63. Further, the Supreme Court in Gingles stated:
Subsection 2(b) establishes that § 2 has been violated where the "totality of circumstances" reveal that "the political processes leading to nomination or election ... are not equally open to participation by members of a [protected class] ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." While explaining that "[t]he extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered" in evaluating an alleged violation, § 2(b) cautions that "nothing in [Section 2] establishes a right to have members of a protected class elected in numbers equal to their proportion in the population."
Id. at 43, 106 S.Ct. at 2762.
The Supreme Court in Gingles reviewed the Senate Report which accompanied the 1982 amendment, wherein the Senate elaborated on the nature of § 2 violations and on the proof required to establish these violations. The Court stated that the "right" question is whether "as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates *760 of their choice." Id. at 44, 106 S.Ct. at 2763. (footnote and citation omitted). The Court then discussed the following factors suggested by the Senate Judiciary Committee Report which typically may be relevant to a § 2 claim:
the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction. The Report notes also that evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group and that the policy underlying the State's or the political subdivision's use of the contested practice or structure is tenuous may have probative value. The Report stresses, however, that this list of typical factors is neither comprehensive nor exclusive. While the enumerated factors will often be pertinent to certain types of § 2 violations, particularly to vote dilution claims, other factors may also be relevant and may be considered. Furthermore, the Senate Committee observed that "there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other." Rather, the Committee determined that "the question whether the political processes are `equally open' depends upon a searching practical evaluation of the `past and present reality,'" and on a "functional" view of the political process.
Id. at 44-45, 106 S.Ct. at 2763-64 (citations and footnotes omitted).
In evaluating the past and present reality of whether the political processes are "equally open," in the context of vote-dilution cases, the evaluation is shaped by consideration of three circumstances:
First, the black voters must show that their numbers are sufficiently large and geographically compact to constitute a majority in a single-member district. Second, the plaintiffs must show that the group to which they belong is politically cohesive. Third, the black voters must show that "the white majority votes sufficiently as a bloc to enable it in the absence of special circumstances, such as the minority candidate running unopposed ... usually to defeat the minority's preferred candidate." The latter two of these factors may be demonstrated by a showing that voting in the jurisdiction is highly racially polarized.
Smith, 687 F.Supp at 1314-1315, citing Gingles (citations omitted).
The Court in Gingles recognized that multi-member districts and at-large voting schemes may "operate to minimize or cancel out the voting strength of racial [minorities in] the voting population." Gingles, 478 U.S. at 47, 106 S.Ct. at 2764. (citation and footnote omitted). However, they are not per se violative of minority voters' rights. Id. at 48, 106 S.Ct. at 2765. Plaintiffs must prove that the use of a multi-member electoral structure "operates to minimize or cancel out their ability to elect their preferred candidates." Id.
Plaintiffs say the four-three system now in place in Texarkana violates § 2 of the Voting Rights Act by effectively diluting the voting power of the blacks in Texarkana. Plaintiffs do not claim that with almost one-third ( 1/3 ) of the population (32%), the blacks in Texarkana should have one-third ( 1/3 ) of the seats on the seven-member board (i.e., at least two of seven). However, they do say that with the large concentrations of blacks in geographically compact areas of the cities, their voting power is diluted by the provision for the election of three at-large board members.
*761 Number and Geographical Location of Black Voters
In addressing the first factor required by Gingles (whether black voters can show that their numbers are sufficiently large and geographically compact to constitute a majority in a single-member district), the Court notes that plaintiffs' uncontroverted evidence establishes that black minority voters are sufficiently numerous and geographically compact to constitute a majority in at least one (1) of the four (4) wards presently extant. As earlier stipulated, approximately 72% of the black population of Texarkana lives in an identifiable geographic area referred to as ward 2 under the City's existing four wards. Further, the uncontroverted testimony supported this stipulated evidence.
Accordingly, the Court finds that plaintiff has presented sufficient proof for the Court to conclude that the minority population is sufficiently geographically concentrated to constitute a majority in one or more single member district(s).
Black Minority Bloc Voting
Considering the second factor required by Gingles (whether the black minority is politically cohesive), the Court heard extensive testimony from plaintiffs' expert, James Russell Lynch, a research specialist with eleven years' experience at the University of Arkansas at Little Rock (UALR). Mr. Lynch testified as to his educational background and his work in demographics. He obtained official data on voting statistics for Texarkana from UALR which is the official custodian for such data.
With respect to specific elections in Texarkana, Mr. Lynch reviewed the data (based upon 1980 census figures) to determine: (a) the Black Voting Age Population (BVAP); (b) the percent of the total vote cast by blacks; (c) the percent of the total vote cast by whites; (d) results of the black and white vote on black versus white candidates in each precinct; and (e) whether there was a correlation between the race of the voter and that of the candidate for whom he or she voted.
Six elections occurring in Texarkana during the period extending from 1984 through 1991 were analyzed by Mr. Lynch and made the subject of charts which were introduced into evidence.
Mr. Lynch's technique employed the so-called correlation and regression analysis which reflects the relationship between two variables. In this type of analysis, the "r" may range from 0.0 (indicating the two variables are independent) to +1.0 (indicating perfect correlation of the two variables in a positive direction) or, the "r" could range from 0.0 to -1.0 (indicating perfect correlation of the two variables in a negative direction). (See Note 1, Plaintiff's Exhibit 5, attached hereto).
By squaring the correlation figure to produce "r2", Mr. Lynch asserts that the resulting figure (termed "coefficient of determination") explains the variance in one variable when it is associated with a second variable. (See Note 2, Plaintiff's Exhibit 5). In other words, it is asserted that "r2" explains the proportion of variation in a candidate's support accounted for by the racial composition of a precinct.
With respect to black voters, Mr. Lynch considered the percentage of blacks in a precinct with the percentage of blacks that voted for the black candidate in the black/white race. A value of "r" was then assigned to the correlation between the two numbers.
The first election analyzed by Mr. Lynch was the 1984 city director election between a black (Griffin) and a white (Gray) which was won by the white. (See page 1 of Plaintiff's Exhibit 3, attached hereto). The analysis produced an "r" of .987 and an "r2" of .974. The analysis indicates, according to Lynch, that as the percentage of blacks in a precinct increases, the percentage of vote for the black candidate increases in nearly the identical proportion (.987). If the correlation was exact, then the "r" would be 1.0. Similarly, the "r2" value of .974 indicates that race would explain approximately 97 percent of the variation in the vote for the black. (See Plaintiff's Exhibit 4, attached hereto).
The second election analyzed by Mr. Lynch was the 1985 school director election between a black (Bursey) and a white (Harrelson) which was also won by the white (see *762 page 2 of Plaintiff's Exhibit 3, attached hereto).[1] The analysis indicates an "r" of .964 and an "r2" of .930 with respect to black voting. This indicates that there is a very high correlation between the size of the black population and the size of the vote received by the black candidate.
The third election analyzed was the 1989 school director election between a black (Larry) and a white (Sperry) which was won by the white. (See page 3 of Plaintiff's Exhibit 3, attached hereto). The analysis of this election revealed an "r" of .851 and an "r2" of .75 with respect to the black vote. Again, these numbers indicate a direct positive correlation between the number of blacks voting and the number of votes received by the black candidate.
The fourth election analyzed was the 1991 school director election between a black (Larry) and two whites (Cherry and Davis). (See page 4 of Plaintiff's Exhibit 3, attached hereto). The analysis indicates that with respect to black participation, the "r" was .933 and the "r2" was .871. This indicates, as in the previous cases, a direct positive correlation between the number of black voters and the number of votes received by the black candidate.
The fifth race analyzed was the 1991 school director runoff race between the black (Larry) and the white (Davis) which was won by the white. (See page 5 of Plaintiff's Exhibit 3, attached hereto). Here, with respect to black voters, the "r" was .942 and the "r2" was .87. (See Plaintiff's Exhibit 4, attached hereto). Here again, there was a direct positive correlation between the number of black voters and the number of votes received by the black candidate.
Finally, the sixth race analyzed was the 1991 school director contest between a black (Garrison) and a white (Bryant) which the white won. (See page 6 of Plaintiff's Exhibit 3, attached hereto). The analysis indicated an "r" of .908 and a "r2" of .824 with respect to black voters, which again indicates a direct positive relationship between the number of black voters and the number of votes received by black candidates.
Based upon the raw data reflected by his analysis, (Plaintiff's Exhibit 3) and the correlation analysis reflected by Plaintiff's Exhibit 4, Mr. Lynch concluded that black voters vote in bloc in a very consistent and predictable way. He said the correlations are statistically significant in every race and concluded there had been racially polarized voting in all six of the elections analyzed with respect to the black voters.
White Majority Bloc Voting
Mr. Lynch considered these same six races from the standpoint of white voter participation to determine whether or not the white voters had consistently voted in bloc in the races. With respect to white voters, Mr. Lynch considered the percentage of whites in a precinct with the percentage of whites who voted for the white candidate in the black/white race. The value of "r" was then assigned to the correlation between the two figures.
Plaintiff's Exhibit 5 shows the results of this analysis and, here again, the "r" and "r2" factors clearly indicate that whites have voted in bloc in the races in question. Mr. Lynch concluded that, based on the races analyzed, white voters vote as a bloc and are usually able to defeat the black candidates. This happened in all races analyzed with the exception of the initial 1991 school director race (the fourth race analyzed) which was between one black candidate (Larry) and two white candidates (Cherry and Davis) which resulted in a runoff election between the black and one of the whites (Davis).
The data compiled by Mr. Lynch indicated that in each of the six elections analyzed, a statistically significant correlation exists between the support for the black candidate in a precinct group and the percentage of the voting age population in the precinct that is black. The higher the percentage of black *763 voting age population, the higher the vote percent for the black candidate. The analogous correlation exists in the white precincts, indicating white bloc voting.[2] The degree of polarization as measured by the "r" and "r2" presented for the Texarkana city board of directors and school board elections ("r" values for black voting data ranged from .851 to .987, and "r2" values range from .725 to .974) is at least as great as similar figures in Gretna and Campos.
Based upon his analysis, Mr. Lynch concluded that black bloc voting and white bloc voting has occurred in Texarkana in a severe and chronic way and that racial polarization was in voting in all races from 1984 to last year's election.
The Court notes that the only election contests Mr. Lynch analyzed were those involving black versus white candidates and that he made no attempt to analyze the voting patterns of either black or white voters in contests involving only white candidates. In Smith v. Clinton, 687 F.Supp. 1310 (E.D.Ark.1988), remedy adopted, id. at 1361, aff'd mem. 488 U.S. 988, 109 S.Ct. 548, 102 L.Ed.2d 576 (1988), the plaintiffs objected to proof offered by defendants with respect to races other than between black and white candidates, saying that only evidence involving races between black and white candidates can be considered. Concerning that objection, the Court said:
We assume without deciding that all of the evidence offered by the defendants is admissible and properly to be considered. We make this assumption because the result in this case would be the same either way.
First, we believe it is proper to give considerable weight to the evidence of polarization in elections between black and white candidates. In Thornburg, the Supreme Court relied heavily on such evidence. Further, in a functional assessment of the political process, one of the most important factors is the extent to which members of the minority group have been elected to office in the jurisdiction. Whether our assessment of the political realities in Crittenden County is expressed in terms of "black candidates" or "candidates preferred by black voters," our conclusion is still that "minority group members prefer certain candidates whom they could elect were it not for the interaction of the [multi-member] structure with a white majority that votes as a significant bloc for different candidates."
Second, the most probative indication of vote dilution stemming from the multi-member structure of the district is the results of the State Representative elections. This case is about a particular electoral structure and its effect on minority participation. Certainly, there is evidence that white candidates preferred by black voters sometimes win in elections involving only whites. The evidence of polarized voting in State Representative elections involving blacks against whites is so strong, however, that it cannot be overcome even when all reasonable inferences are accorded to the evidence of elections involving only white candidates."
Id., 687 F.Supp. at 1316-1317 (citations omitted).
This Court can only speculate as to what the evidence might have shown had either party presented same with respect to elections involving only whites. It might reasonably be supposed, however, that had learned counsel believed that such evidence would be probative it would have been presented certainly it would have been proffered by defendants if considered strong enough to overcome the black/white evidence offered by plaintiffs. In the absence of any evidence concerning white only elections and in view of the strong evidence of polarized voting in black/white elections, this Court believes the case is made on this point and holds that *764 there is racially polarized voting in the elections relative to the Board of Directors of the city of Texarkana despite the possible fact that blacks and whites may often prefer the same candidate in races involving only whites.
In their post-trial briefs, city defendants agree that black residents of wards 1 and 2 have tended to share certain common political, economic and societal interests, and that they generally "bloc" voted for the black candidate for city director in the only race involving one black candidate and one white candidate. (1984 Griffin-Gray City director Election). Defendants contend, however, that "this phenomenon, black bloc voting," is not absolute, pointing to the 1988 race for State Representative where Dowd, the white candidate, defeated Keener, the black candidate, for the District 94 position in wards 1 and 2. The correlation coefficients and precinct data persuasively indicate otherwise.
Mr. Londell Williams, a plaintiff, was appointed to the city board of directors in 1978, has never had a white opponent, and when he was opposed by a black candidate, was an incumbent. Urgings that Mr. Williams' experience refutes the contention that blacks are unable to elect a black to the board are unpersuasive precisely because of his experience as stated above. He has had the advantages of appointment and incumbency and the lack of a white opponent. Accordingly, the Court is of the opinion that Mr. Williams' experiences do not support the notion that minority voters have the ability to elect representatives of their choice in at-large elections in Texarkana.
Defendants attempt to explain the bloc voting by referring to other factors, such as name recognition, reputation, political philosophy, stand on various issues, age, and experience, arguing that these factors play a dominant role in the voting of the other two wards when the choice is between a black candidate and one or more white candidates. However, these arguments are based principally on speculation, and the Court did not hear sufficient evidence to warrant such a conclusion.
Defendants point to the language in the statute which provides that "nothing in [§ 2] establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." Gingles, 478 U.S. at 43, 106 S.Ct. at 2762; 42 U.S.C. § 1973(b). However, in this case, proportional representation has never been achieved. Although not an entitlement, proportional representation is a factor which may be considered in determining whether a violation of § 2 has occurred. 42 U.S.C. § 1973(b).
Defendants argue that Mr. Lynch failed to take into account the fact that the city board directors are elected by plurality vote. The Court is not persuaded that this difference would require a different result in this voting rights analysis, especially in light of this Court's obligation to conduct a "searching practical evaluation of the `past and present reality,'" and a "functional" view of the political process." Gingles, 478 U.S. at 45, 106 S.Ct. at 2764.
Defendants refer to the other factors the Senate Report suggested be considered in support of their position, and the Court has considered those factors. It should be noted that plaintiffs are not required to prove the existence of any certain number of the factors listed, nor are they required to show that a majority of the factors "`point one way or the other.'" Id.
Regarding these other factors, defendants concede that Arkansas and Texarkana have a history of official race discrimination, but argue that most of this history can be dismissed or minimized on the ground that it occurred so long ago that its effects have by now disappeared almost completely. The Court cannot comfortably embrace that argument in view of the facts which have been presented to the Court regarding the results of the elections over the past few years. However, the evidence presented, for the most part, shows a communal desire, among both blacks and whites, to achieve fair government representation for all without the taint of past inequities based on race. No evidence was presented indicating that racial campaign tactics have been employed and no suggestion is made that the vote dilution occurring under the present system of government *765 is the result of intentional or institutionalized discriminatory practices.
In summary, the Court believes that the second and third Gingles factors (black bloc voting ineffectual to elect blacks' preferred candidate and white block voting capable of defeating blacks' preferred candidate) have both been established by plaintiff's proof particularly that in the form of their expert's testimony which showed that voting in the city had been highly racially polarized.
In further support of their contentions, plaintiffs assert that the city board has not been responsive to the needs and concerns of the city's minority population. The Court heard evidence concerning issues involving: a dangerous railroad crossing problem; health hazards surrounding a "bird droppings" cleanup; the renovation (or lack of renovation) of an old public swimming pool and the location of a proposed new public swimming pool; and the dismissal of a black (Joyce Grissom) from the city's civil service commission.
In all of these issues except that involving Joyce Grissom, the Court believes the essential culprit is the same encountered by most cities in this country lack of sufficient money to address all of the city's problems. These issues involve both black and white citizens although they perhaps have greater immediate impact on the blacks. As is always the case where an important issue cannot be easily resolved, there are charges and counter charges as to what should have been done and by whom and with what in order to solve these issues. This Court is unwilling to substitute its judgment on each of these issues, based only upon the proof heard in this case, for that of the representatives of the citizens of Texarkana, where it appears that a great deal of time and energy has been expended by the city board and others in trying to deal with them.
With respect to the Joyce Grissom dismissal, there obviously was and is a difference of opinion as to the circumstances surrounding Ms. Grissom's departure from the civil service commission. However, the Court cannot say that this incident, whatever the true facts concerning it are, proves a lack of responsiveness on the part of the existing city board to the needs and concerns of the minority population of Texarkana.
Mr. Lynch presented evidence of significant socio-economic and educational disparities between blacks and whites which have a continuing effect on the minority's access to the political process. According to the 1990 census, per capita income for blacks in Miller County was approximately 50% of the per capita income for whites. Roughly 2½ times more whites were employed than blacks, and yet slightly more blacks drew unemployment than whites (55.3% to 41.9%). Only about 26.6% of the population who graduated from high school were black, while 71.3% were white. No blacks are represented in the category of family income above $75,000.00 per year, while 358 white families have this level of income. While the Court takes due note of this evidence and could speculate as to its impact on access of blacks to participation in the political process, the actual result of the challenged structure and not the causes of same must define the Court's findings under Gingles.
Based upon the evidence offered by the parties, the Court finds there is racially polarized voting in the city of Texarkana city board elections; that black voters in the city usually vote cohesively in a bloc or as a unit; and that white voters have the strength and inclination under the present 4-3 system to frustrate the choices of black voters with respect to all three at large positions and with respect to three of the four ward positions. Thus, pursuant to the precepts of Gingles, the court finds that the present four-three structure for the election of the city board of Texarkana deprives black citizens of the city of an equal opportunity to participate in the political process and to elect candidates of their choice.
Having so found, the Court must now address possible remedies and the respective responsibilities of the parties for the implementation of same.
To further that address, it is useful to now dispose of the post-trial motion made by *766 defendant Miller County Election Commission (the Election Commission).
The Election Commission's Motion For Directed Verdict contends, inter alia, that plaintiffs' evidence didn't support their complaint; that plaintiffs didn't meet the requirements of Gingles; and, in the alternative, that if plaintiffs did establish a violation of § 2 of the Voting Rights Act, the Election Commission is not responsible for such violation since it had complied with applicable law in the performance of its role relative to the process in place for the election of the governing board of the City of Texarkana.
The first two (2) contentions are obviously without merit in view of the Court's findings hereinabove stated. The Court believes the third contention is sound for the following reasons:
1. Ark.Code Ann. § 14-61-107 provides, inter alia, that the city using the management form of government may choose one of several options as a method to select a board of directors. The Court has not found, nor has any party cited, any statutory provision giving the Election Commission or any other entity the right to choose such method.
2. Ark.Code Ann. § 14-42-202(c)(1)(A) provides, as follows:
The county board of election commissioners of the county shall divide the territory of each city, as defined in this section, into a number of districts or wards having substantially equal population, according to the most recent federal census of population in each city, equal to the number of members of the governing board to be elected from districts as defined in this section.
3. While plaintiffs do argue that ward 2 contained an unnecessarily large black population, there is no evidence that this condition was the result of an attempt on the part of the Election Commission to effectively dilute black voting strength. Rather, it might just as validly be supposed that the condition was intended and thought to be desirable to insure that the resultant voting strength in this one of four wards would be sufficient to give blacks a reasonable chance to elect the candidate of their choice. The real problem addressed by plaintiffs in this suit and the proper basis for their success is the effect of the three at-large seats in the 4-3 scheme. The actions of the Election Commission (as mandated by Arkansas law) would have had no impact on these three seats.
4. It therefore follows that, in the absence of any evidence that anything the Election Commission did or failed to do caused the situation resulting in the violation of Section 2 of the Voting Rights Act, plaintiffs' cause of action against the Election Commission is without merit and plaintiffs are now entitled to no relief as against it.
Understanding and believing that as and when a proper structure for board membership and a proper process for selection of board members are both put in place as a result of this litigation, the Election Commission will still be obliged to divide the territory of the city into the proper number of districts or wards in accordance with Ark. Code Ann. § 14-42-202(c)(1)(A), the Court nevertheless declines to dismiss the Election Commission from the case and chooses to retain jurisdiction over it pending final implementation of the remedies mandated herein.
At the close of the case, the city of Texarkana renewed its Motion for Summary Judgment and interposed its Motion to Dismiss Plaintiffs' complaint as to the City. In view of the Court's findings set out above, both motions must be denied.
Finding, as it has, that the present 4-3 plan for election of board members violates § 2 of the Voting Rights Act, the Court is obliged to direct that the said present plan be abandoned; that the present board members cease to be such; that a new nonviolative plan be put in place; that the city's population be duly reapportioned in accordance with the new plan and in compliance with both Arkansas and Federal law particularly the Voting Rights Act; and that new board members be duly elected for service under the said new plan.
*767 The Court notes that plaintiffs presented, through their expert witness James Russell Lynch, a proposed seven (7) member single district plan as an alternative to the present plan being struck down by the Court. Mr. Lynch acknowledged he was not familiar with the Gingles case and therefore was not representing that his plan exactly comported with the guidelines set out therein. He stated, rather, that in preparation of the plan, he gave attention to five (5) factors:
1. The long-time legal standard of one-man, one-vote;
2. Non-dilution of minority voting strength;
3. Development of compact and contiguous districts;
4. Recognizable boundaries;
5. Facilitation of elections i.e. identifying most feasible polling places.
Mr. Lynch said his plan, based upon the 1990 census figures for Texarkana, would feature two (2) of the seven (7) districts with minority populations of 60.5% and 60.1%, respectively, and a third district having a "substantial impact" minority population of 45.8%.
Defendants did not and do not argue that such a seven (7) member single district plan is not feasible. Rather, defendants argue plaintiffs did not prove that, under the present 4-3 plan, blacks have had less opportunity than other citizens to participate in the political process in Texarkana and to elect city directors of their choice.
While the Court agrees with defendants that there was no evidence presented showing the existence of racial appeals in campaigns and that there is alive and well in Texarkana a spirit of cooperation and mutual respect among many of both races, the Court is compelled to conclude, as it has, that the result of the utilization of the present 4-3 plan is that blacks have less opportunity to participate in the political process relative to the election of city board members in the city of Texarkana.
This Court does not now express any view as to the relative merits of the plan proposed by plaintiffs as compared to any other plan which might be developed.
While the role of this Court is not to govern the city of Texarkana nor to supervise that government over an extended period of time, it must nevertheless see to it that a proper remedy for the § 2 violation is crafted and implemented.
Accordingly, the defendant City of Texarkana, the defendant members of the present City Board of that City and plaintiffs are ordered to submit to the Court and to the defendant Miller County Election Commission, on or before October 15, 1992, proposed plans for structuring the City of Texarkana's manager form of government and the election of the board members thereof.
Upon receipt of such plan or plans, the Miller County Election Commission is directed to prepare proposed reapportionment data responsive to each such plan so submitted which would reflect the proper discharge of the Election Commission's duties with respect to each plan under both Arkansas and Federal law as well as under the findings of this Court in this case should such plan be selected and implemented. The product of the Election Commission's preparation efforts shall be forwarded to the Court, with copies to plaintiffs and all defendants, on or before November 1, 1992.
This Court will convene on November 6, 1992, to consider these plans and attendant data.
In order to avoid unnecessary disruption of the governmental affairs of the City of Texarkana, the Court hereby stays, pending further Order of this Court, those portions of its Order which would direct (1) that the present form of government in the City of Texarkana be abandoned; and (2) that the present members of the city board cease to be such.
*768
EXHIBIT 3
|------------------------------------------------------------------------------------------------------|
| 1984 Griffin-Gray City Director Election |
|---------------|-----------------------|------------------------------|-------------------------------|
| | | | |
|---------------|-----------------------|------------------------------|-------------------------------|
| Precinct | Black VAP Percent | Percent Vote for Griffin | Percent Vote for Gray |
|---------------------------------------|------------------------------|-------------------------------|
| | | (Black Candidate) | (White Candidate) |
|---------------|-----------------------|------------------------------|-------------------------------|
| | | | |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2B | 94.6 | 91.3 | 8.7 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2C | 80.8 | 78.8 | 21.2 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2A, 3A | 32.3 | 38.3 | 61.7 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 1B | 17.5 | 34.4 | 65.6 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 1C | 16.6 | 29.7 | 70.3 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3B | 11.0 | 18.6 | 81.4 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 4A, 4B | 9.0 | 18.6 | 81.4 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 1A | 7.6 | 26.5 | 73.5 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3D | 5.4 | 11.1 | 88.9 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3C | 1.2 | 17.0 | 83.0 |
|===============|=======================|==============================|===============================|
| 1989 Larry-Sperry School Director Election |
|------------------------------------------------------------------------------------------------------|
| |
|---------------|-----------------------|------------------------------|-------------------------------|
| Precinct | Black VAP Percent | Larry Vote Percent | Sperry Vote Percent |
|---------------|-----------------------|------------------------------|-------------------------------|
| | | (Black Candidate) | (White Candidate) |
|---------------|-----------------------|------------------------------|-------------------------------|
| | | | |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2B | 96.1 | 81.5 | 18.- |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2C | 63.5 | 76.7 | 23.8 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2A, 3A | 42.5 | 51.3 | 48.- |
|---------------|-----------------------|------------------------------|-------------------------------|
| 1B | 37.1 | 47.2 | 52.8 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 1C | 30.8 | 56.6 | 43.4 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 1A | 20.4 | 62.5 | 37.5 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 4A, 4B | 13.6 | 30.1 | 69.9 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3B | 9.8 | 42.2 | 57.8 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3D | 5.2 | 41.0 | 59.0 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3C | 4.8 | 44.2 | 55.8 |
|===============|=======================|==============================|===============================|
| 1991 Larry-Cherry/Davis School Director Election |
|------------------------------------------------------------------------------------------------------|
| |
|---------------|-----------------------|------------------------------|-------------------------------|
| Precinct | Black VAP Percent | Percent Vote for Larry |Per Cent Vote for Cherry/Davis |
|---------------|-----------------------|------------------------------|-------------------------------|
| | | (Black Candidate) | (White Candidate) |
|---------------|-----------------------|------------------------------|-------------------------------|
| | | | |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2B | 96.1 | 95.2 | 4.8 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2C | 63.5 | 92.4 | 7.6 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2A, 3A | 42.5 | 41.4 | 58.6 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 1B | 37.1 | 39.7 | 60.3 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 1C | 30.8 | 17.8 | 82.2 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 1A | 20.4 | 12.5 | 87.5 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 4A, 4B | 13.6 | 18.9 | 81.1 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3B | 9.8 | 23.2 | 78.8 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3D | 5.2 | 13.7 | 86.3 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3C | 4.8 | 7.4 | 92.6 |
|===============|=======================|==============================|===============================|
| 1991 Larry-Davis School Run-Off Election |
|------------------------------------------------------------------------------------------------------|
| |
|---------------|-----------------------|------------------------------|-------------------------------|
| Precinct | Black VAP Percent | Larry Vote Percent | Davis Vote Percent |
|---------------|-----------------------|------------------------------|-------------------------------|
| | | (Black Candidate) | (White Candidate) |
|---------------|-----------------------|------------------------------|-------------------------------|
| | | | |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2B | 96.1 | 97.7 | 2.3 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2C | 63.5 | 96.4 | 3.6 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2A, 3A | 42.5 | 54.4 | 45.6 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 1B | 37.1 | 37.1 | 62.9 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 1C | 30.8 | 18.4 | 81.6 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 1A | 20.4 | 23.8 | 76.2 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 4A, 4B | 13.6 | 19.5 | 80.5 |
|---------------|-----------------------|------------------------------|-------------------------------|
*769
|------------------------------------------------------------------------------------------------------|
| 1991 Larry-Davis School Run-Off Election |
|------------------------------------------------------------------------------------------------------|
| |
|---------------|-----------------------|------------------------------|-------------------------------|
| Precinct | Black VAP Percent | Larry Vote Percent | Davis Vote Percent |
|---------------|-----------------------|------------------------------|-------------------------------|
| | | (Black Candidate) | (White Candidate) |
|---------------|-----------------------|------------------------------|-------------------------------|
| | | | |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3B | 9.8 | 17.2 | 82.8 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3D | 5.2 | 11.2 | 88.8 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3C | 4.8 | 12.3 | 87.7 |
|======================================================================================================|
| 1991 Garrison-Bryant School Director Election |
|------------------------------------------------------------------------------------------------------|
| |
|------------------------------------------------------------------------------------------------------|
| Precinct | Black VAP Percent | Garrison Vote Percent | Bryant Vote Percent |
|---------------|-----------------------|------------------------------|-------------------------------|
| | | (Black Candidate) | (White Candidate) |
|---------------|-----------------------|------------------------------|-------------------------------|
| | | | |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2B | 96.1 | 90.0 | 10.0 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2C | 63.5 | 100.0 | 0.0 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 2A, 3A | 42.5 | 42.4 | 57.6 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3B | 9.8 | 20.0 | 80.0 |
|---------------|-----------------------|------------------------------|-------------------------------|
| 3D | 5.2 | 19.2 | 80.8 |
-------------------------------------------------------------------------------------------------------
EXHIBIT 4
TEXARKANA, ARKANSAS
SUMMARY OF POLARIZED
VOTING PATTERNS
Black VAP Percent in Precinct
with
Black Candidate Vote Percent In Precinct
Correlation Statistically
Election Coefficient R square Significant?
1984 City Director
Griffin-Gray .987 .974 Yes
1985 School Director
Bursey-Harrelson .964 .930 Yes
1989 School Director
Larry-Sperry .851 .725 Yes
1991 School Director
Larry-Cherry/Davis .933 .871 Yes
1991 School Director
Larry-Davis (Runoff) .942 .887 Yes
1991 School Director
Garrison-Bryant .908 .824 Yes
1 The Correlation Coefficient (the "r" statistic) measures the strength of a relationship between two
variables. The "r" may range from 0.0 (the two variables are independent) to + 1.0 (the two variables are
perfectly correlated in a positive direction). Also, "r" may range from 0.0 to - 1.0, a value which
indicates perfect correlation in a negative direction (inverse correlation). See: Buchanan, William.
Understanding Political Variables, 4th Edition (New York: MacMillan Publishing Co., 1988) p. 290.
*770
2 R-square is a meaningful statistic because it explains the variance in one variable when it is associated
with a second variable. For example, in the 1991 Larry-Davis Run-off election, the Black VAP variable
explains 88 percent of the variance (change) in the vote for Larry. See: Ibid., p. 288-290.
3 The F statistic was used to test whether the values of "r" and "R Square" were due to chance. The F
value was found to be statistically significant. This means that the probability of the results found ("r"
and "R Square") occurring by chance is less than 1 in 20. See: Ibid., p. 96-97.
EXHIBIT 5
TEXARKANA, ARKANSAS
SUMMARY OF POLARIZED
VOTING PATTERNS
White VAP Percent in Precinct
with
White Candidate Vote Percent In Precinct
Correlation Statistically
Election Coefficient R square Significant?
1984 City Director
Griffin-Gray .987 .974 Yes
1985 School Director
Bursey-Harrelson .964 .930 Yes
1989 School Director
Larry-Sperry .851 .725 Yes
1991 School Director
Larry-Cherry/Davis .933 .871 Yes
1991 School Director
Larry-Davis (Runoff) .942 .887 Yes
1991 School Director
Garrison-Bryant .908 .824 Yes
1 The Correlation Coefficient (the "r" statistic) measures the strength of a relationship between two
variables. The "r" may range from 0.0 (the two variables are independent) to + 1.0 (the two variables are
perfectly correlated in a positive direction). Also, "r" may range from 0.0 to - 1.0, a value which
indicates perfect correlation in a negative direction (inverse correlation). See: Buchanan, William.
Understanding Political Variables, 4th Edition (New York: MacMillan Publishing Co., 1988) p. 290.
2 R-square is a meaningful statistic because it explains the variance in one variable when it is associated
with a second variable. For example, in the 1991 Garrison-Bryant election, the White VAP variable
explains 82 percent of the variance (change) in the vote for Bryant. See: Ibid., p. 288-290.
3 The F statistic was used to test whether the values of "r" and "R Square" were due to chance. The F
value was found to be statistically significant. This means that the probability of the results found ("r"
and "R Square") occurring by chance is less than 1 in 20. See: Ibid., p. 96-97.
NOTES
[1] Although testimony indicated that school board elections encompass rural areas not encompassed in the city board elections, Mr. Lynch testified that of the two majority black wards in the school board elections, neither are in rural areas. The Court therefore finds the school district elections to be relevant elections in this case because these elections are also local in nature, and confirm the data obtained in the only city board election that was appropriate to analyze.
[2] The Court agrees with plaintiffs that Mr. Lynch's analysis, a bivariate regression analysis, provides the same detailed statistical basis for a finding of political cohesion that the Supreme Court and other courts have relied upon. Gingles, 478 U.S. at 52-53, 106 S.Ct. at 2767-67; see also, Campos v. City of Baytown, 840 F.2d 1240, 1245-1246, & n. 9, aff'd en banc, 849 F.2d 943 (5th Cir.1988), cert. denied, 492 U.S. 905, 109 S.Ct. 3213, 106 L.Ed.2d 564 (1989); Citizens for a Better Gretna v. City of Gretna, 834 F.2d 496, 499-500, n. 7 and 8 (5th Cir.1987), cert. denied, 492 U.S. 905, 109 S.Ct. 3213, 106 L.Ed.2d 564 (1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261503/ | 110 Cal.Rptr.2d 747 (2001)
91 Cal.App.4th 738
The PEOPLE, Plaintiff and Respondent,
v.
Carlos R. TAPIA, Defendant and Appellant.
No. B146305.
Court of Appeal, Second District.
August 14, 2001.
Rehearing Denied September 5, 2001.
Review Denied December 12, 2001.
*748 Valerie G. Wass, Pasadena, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Marc E. Turchin, Acting Senior Assistant Attorney General, Mary E. Sanchez, Supervising Deputy Attorney General, and Michael W. Whitaker, Deputy Attorney General, for Plaintiff and Respondent.
MIRIAM A. VOGEL, J.
In July 1996, Carlos R. Tapia pled guilty to one count of robbery. A three-year state prison sentence was imposed and suspended, and "formal" probation was granted for a term of three years (which meant it would expire on July 10, 1999). Tapia was ordered to spend one year in jail, then to report to the probation department "within 24 hours of [his] release"; if he left the Country, he was not to re-enter illegally; if he did return, he was "to report to the probation officer within 24 hours of [his] return and present documentation that [he was] in the Country legally. . . ."
Upon his release from custody in late 1996, Tapia was deported to Mexico. In March 1997, when the trial court was informed that Tapia had failed to report to the probation department, his probation was summarily revoked and a bench warrant was issued. Tapia was arrested when he returned to California in September 2000, and a probation violation hearing was held in November 2000. Tapia admitted that he "did not report to [his] probation officer when [he] returned to the United States" in September 2000, and that he "did not, when [he] came back to the United States, show proof that [he was] in the United States legally to [his] probation officer." No evidence was taken. Based solely on Tapia's admissions, the trial court found a violation, revoked probation, then reinstated probation and extended it to March 21, 2003. Tapia appeals, contending the trial court had no jurisdiction to extend the term of probation. We agree, and therefore reverse.
DISCUSSION
Although Tapia's probation was summarily revoked based upon his failure to report to his probation officer when he was released from custody in late 1996, that is not the violation he admitted at the formal probation revocation hearing. All he "admitted" was that he did not report to the probation department when he returned to the United States in September 2000, and that he did not at that time present proof that his reentry was legal. He did not admit a failure to report in 1996, and he did not admit that his reentry in 2000 was illegal. Since no evidence was presented, the basis for the summary revocationa claim that Tapia had failed to report to the probation department in 1996was not proved. Since that violation was not proved, the term of probation expired in July 1999before Tapia reentered the United States. Since his probation had expired by the time he did reenter in September 2000, the trial court had no jurisdiction to extend the period of probation.
*749 To avoid this result, the Attorney General glosses over the fact that the summary revocation was based on a purported 1996 violation that was neither proved nor admitted, and argues that Tapia's deportation does not excuse his failure to report to the probation officer when he was released from custody. (See People v. Campos (1988) 198 Cal.App.3d 917, 923, 244 Cal. Rptr. 75.) The Attorney General then contends that, because summary revocation tolls the running of the probation period and preserves the court's jurisdiction over the defendant (Pen.Code, § 1203.2, subd. (a) ["The revocation, summary or otherwise, shall serve to toll the running of the probationary period"]; People v. De-Paul (1982) 137 Cal.App.3d 409, 415, 187 Cal.Rptr. 82 [as used in the statute, "toll" means the period of probation is suspended, "and if probation is reinstated the period of revocation cannot be counted in calculating the expiration date"]), the trial court had jurisdiction to find a violation based on Tapia's admission, and to then extend the period of probation. We disagree.
While the summary revocation of probation does suspend the running of the probationary period so that the court retains jurisdiction to determine at a formal revocation hearing whether there has, in fact, been a violation, an unproved violation cannot support the conclusion that, after the date on which probation expired under its original terms, a violation occurred upon Tapia's failure to report to the probation department when he later returned to the United States. The rules cited by the Attorney General simply do not apply where, as here, the People have failed to prove that a violation occurred during the term of probation. Thus, while we agree that the period is tolled by summary revocation, and that the period of tolling can be tacked onto the probationary period if probation is reinstated, we do not agree that these rules apply where, as here, there is no proof or admission of a violation during the period of probation.
As we explained in People v. Hawkins (1975) 44 Cal.App.3d 958, 966, 119 Cal.Rptr. 54, the trial court has "the power and duty to summarily revoke . . . probation on the information supplied by the probation officer and to issue a bench warrant as the only practical and expeditious way to bring the defendant swiftly before the court, to give him notice of the claimed violations and to afford him a hearing." (Italics added.) But when it comes to the tolling contemplated by Penal Code section 1203.2, subdivision (a), and People v. De-Paul, supra, 137 Cal.App.3d at page 415, 187 Cal.Rptr. 82, it is clear that a summary revocation of probation suspends the running of the probation period and permits extension of the term of probation if, and only if, probation is reinstated based upon a violation that occurred during the unextended period of probation. (See People v. Lewis (1992) 7 Cal.App.4th 1949, 1955, 10 Cal.Rptr.2d 376 [summary revocation is simply a device by which the defendant may be brought before the court and jurisdiction retained before formal revocation proceedings commence; if probation is restored, there has, in effect, been no revocation at all].)
Just as the restoration of probation erases the summary revocation, so too does the court's failure to find a violation within the period of probation. Put another way, the jurisdiction retained by the court is to decide whether there has been a violation during the period of probation and, if so, whether to reinstate or terminate probation. When the court finds there has been no violation during the period of probation, there is no need for further jurisdiction. And where, as here, the term of probation has expired, *750 the defendant is also entitled to an order discharging him from probation. (People v. Lewis, supra, 7 Cal.App.4th at pp.1955-1956,10 Cal.Rptr.2d 376.)
It follows that Tapia's probation expired in July 1999, that the order finding him in violation is void, and that he is entitled to an order discharging him from probation.
DISPOSITION
The order is reversed.
SPENCER, P.J., and ORTEGA, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261505/ | 861 F.Supp. 69 (1994)
Teodora CALVI, Plaintiff,
v.
PRUDENTIAL SECURITIES, INC., Defendant.
No. CV 93-2914 WJR (EEx).
United States District Court, C.D. California.
August 12, 1994.
Lionel Z. Glancy, Santa Monica, CA, for plaintiff.
Gregory A. Boss, Janet Simmons, Keesal, Young & Logan, Long Beach, CA, for defendant.
MEMORANDUM OPINION
REA, District Judge.
Defendant Prudential Securities, Inc.'s Motion for Summary Judgment came on for hearing before the Court, the Honorable William J. Rea, Judge, presiding, on June 27, 1994. Lionel Z. Glancy of the Law Offices of Lionel Z. Glancy appeared on behalf of plaintiff Teodora Calvi. Gregory Boss and Janice Simmons of Keesal, Young & Logan appeared for defendant Prudential Securities, Inc. On July 8, 1994, after having reviewed the file in this case, the papers submitted in favor of and in opposition to the instant motion, as well as the arguments of counsel at the hearing on this matter, the Court entered an order granting the motion. The Court now issues this memorandum opinion, setting forth its findings of fact and conclusions of law.
BACKGROUND
Plaintiff Teodora Calvi ("Calvi") is an allegedly unsophisticated widow who decided to invest the proceeds of her husband's life insurance policy when he died some years ago. Thus, in 1985, Calvi opened two securities accounts with defendant Prudential Securities ("Prudential"). Her complaint alleges that her broker, Prudential employee Thomas Stapelton, induced her to purchase three securities that were not "suitable" in light of her stated investment objectives and financial goals. Specifically, the second amended complaint asserts that:
(1) Prudential's broker, Tom Stapelton, warranted in August 1985 that the investments were "safe." Second Amended Complaint at ¶ 6.
(2) "Stapelton told Calvi that he would not allow her to get into anything risky." Id.
(3) Prudential breached its fiduciary duty by failing to disclose "material facts" such as (a) "the risks involved in purchasing or selling a particular security" and (b) "all *70 other material facts concerning the security." Id. at ¶ 11.
Prudential's instant motion for summary judgment is based on statute of limitations. Defendant contends that Calvi was aware or should have been aware of all of the facts necessary to her causes of action in 1985 when she was provided with the prospectuses for her investments which disclosed the risks involved in each investment and stated that they were only suitable for certain individuals and signed a subscription agreement stating that she read and understood them. See Stapelton Decl. and attached exhibits.[1] She should have known at that point, Prudential argues, that the alleged oral representations made by her broker were untrue, inasmuch as they conflicted with the written offerings. Calvi did not file suit until 1993, because she claims that she did not discover that she was losing principal on these investments until that time, or at the earliest some time in 1992. Defendant thus contends that Calvi's suit was not timely filed.
DISCUSSION:
California's two year statute of limitations for negligence, Cal.Code Civ.P. § 339, and four year statute of limitations for breach of fiduciary duty, Cal.Code Civ.P. 343[2], apply to Calvi's claims in this diversity action.[3] Prudential argues that Calvi discovered, or in the exercise of reasonable diligence should have discovered, all of the facts necessary to proceed with her causes of action in August 1985 when she was provided with the prospectuses for the three "questionable" investments. There is ample case law to support this position.
For example, in Bull v. Chandler, 1992 WL 103686, 1992 U.S.Dist. LEXIS 3686 (N.D.Cal.1992), the plaintiff was a wealthy but allegedly unsophisticated individual who was seeking low risk investments. His broker, defendant Chandler, told him that she would "investigate[] opportunities consistent with [his] investment goals, that she would direct plaintiff to the best investments, and that she would obtain for him a twenty-three percent return on all of his investments." Id. at *1, 1992 U.S.Dist. LEXIS 3686 at *3. Chandler provided plaintiff with prospectuses for several investments, which plaintiff told Chandler he did not read. She responded that his failure to read them was not a problem, because she would explain to him everything he needed to know. Thereafter, although plaintiff was provided with the documents, he did not read them, and relied exclusively on defendants representations in making his investment decisions. Id. at *1-2, 1992 U.S.Dist. LEXIS 3686 at *4.
Plaintiff failed to discover that his investments were unsuitable to meet his objectives until October 1984, when he decided to get a "second opinion." Id. at *2, 1992 U.S.Dist. LEXIS 3686 at *6. At that point, he brought suit alleging causes of action for, inter alia, federal securities violations and state law breach of fiduciary duty and negligence. The court held that plaintiff's claims were barred by the statute of limitations. In so holding the court stated as follows:
[The evidence indicates] that prior to each transaction, Chandler gave a copy of the prospectus or offering document to the plaintiff and that by his signature plaintiff affirmed having read and relied upon the documents.... Most if not all of these documents stated that the investments *71 were illiquid, were without a market, and were designed as tax shelters, but disclaimed any assurance of tax benefit and disclaimed any assurance of cash distribution. Defendants argue that when plaintiff received these documents, signed the subscription agreements and invested, he was on inquiry notice of any fraud because the statements in the offering memoranda were in direct contradiction to the misrepresentations he claims were made by Chandler.
In response to this argument, plaintiff submitted a declaration stating merely that he could not understand the offering materials and that Chandler assured him that he need not read the materials because she would explain all the pertinent information. On the basis of this statement, plaintiff argues that Chandler actively concealed her fraud and that he is entitled to the benefit of equitable tolling. Neither the pleading nor plaintiff's evidentiary submission is adequate to entitle him to the benefit of equitable tolling.
Id. at *4, 1992 U.S.Dist. LEXIS 3686 at *1213. The court concluded that plaintiff was on constructive notice of the fraud as early as the date of his first investment. Id.[4]
The Bull court also determined that, regardless of when the statute of limitations began to run, any reliance by plaintiff on the oral statements of his broker was unreasonable in light of the disclaimers in the written memoranda. Id. at *8, 1992 U.S.Dist. LEXIS 3686 at *24. It stated that
[t]he evidence before the court demonstrates a complete lack of justifiable reliance. Assuming that the alleged misrepresentations were proven, a reasonable jury could not but reach the conclusion that plaintiff, without reason or justification, recklessly placed blind faith in Chandler and stuck his head in the sand, by ignoring the contradictions between the offering materials and her representations.
Id. Because justifiable reliance was an element of all of plaintiff's claims, the court held that both plaintiff's claims that had survived the statute of limitations defense and those that had not were subject to summary judgment based on this issue.
Numerous other cases have also found that the statute of limitations begins to run when a plaintiff should have discovered the alleged fraud, and that the receipt of a prospectus disclosing risks puts a plaintiff on notice of any misrepresentations or fraud concerning those risks. In Dodds v. Cigna Securities, Inc., 12 F.3d 346 (2d Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1401, 128 L.Ed.2d 74 (1994), the plaintiff was a widow with a tenth grade education. She asserted federal securities claims and pendent state claims under New York law for fraud, breach of fiduciary duty, and negligent misrepresentation. The broker had provided her with prospectuses and other written materials which she did not read because they "looked like greek" to her. Id. at 348. The court found that the written materials contained warnings that "were sufficient to put a reasonable investor of ordinary intelligence on notice of the commissions, the risk, and the illiquidity of [the] investments," and that such warnings put plaintiff on constructive notice of her claims, despite the fact that she had never read the documents. The court granted summary judgment on plaintiffs federal causes of action, and dismissed her pendant state claims for lack of jurisdiction. See also DeBruyne v. Equitable Life Assurance Soc. of the U.S., 920 F.2d 457, 466 n. 18 (7th Cir.1990) (plaintiff "cannot avoid the statute of limitations by possessing, but failing to read, the documents that would put her on inquiry notice"); Topalin v. Erhman, 954 *72 F.2d 1125, 1132 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992) (breach of fiduciary duty statute of limitations began to run upon investor's receipt of prospectus disclosing risks which contradicted alleged oral statements); Nerman v. Alexander Grant & Co., 926 F.2d 717 (8th Cir.1991) (statute of limitations for fraud and negligence begin to run upon receipt of risk disclosure document).
Defendant contends, quite convincingly, that the case at bar is "on all fours" with Bull, Dodds, and the other cases cited above. Calvi was given the written prospectuses for the three investments, and signed a subscription agreement for each stating that she had read the attendant prospectus. Each prospectus detailed the risks involved in the particular investment being described. Consequently, Calvi is charged with notice from the time she signed the agreements (in 1985) that Stapelton's statements contradicted the written offering materials, even if, like the plaintiffs in Bull and Dodds, she never read the documents.
Plaintiff does not distinguish Prudential's case law, but instead relies on Hobbs v. Bateman Eichler, Hill Richards, 164 Cal.App.3d 174, 210 Cal.Rptr. 387 (1985), which she argues demonstrates that her claims were tolled until her actual discovery of wrongdoing. Here she argues that such discovery did not occur until she realized that there were losses in her accounts (some time in 1992). However, Hobbs does not support plaintiff in the instant case.
In Hobbs, the plaintiff was a widow who wanted a broker to handle the investment portfolio her husband had left to her when he died. She went to defendant Ravenscroft, and made clear to him that she wanted her stocks handled conservatively because the interest from her husband's portfolio was, in essence, her only income. Ravenscroft filled out a form which stated that Hobbs' investment goals were conservative, but later changed this form without her permission. Furthermore, although Ravenscroft had no authority to make trades or purchases without Hobbs' consent, he did so on a regular basis, "churning" her account to generate commissions for his firm. Hobbs did receive "confirmation slips" for each of these transactions, but did not know the balance in her account, or that many of the "distribution checks" she received from the defendants were actually being paid out of principal. Id. at 181-84, 210 Cal.Rptr. 387.
The court held that plaintiffs claims particularly her claim for breach of fiduciary duty were not barred by the statute of limitations, because she had no duty investigate. The facts indicated that she did not even become suspicious that her account was being handled improperly until within the limitations period. Id. at 202, 210 Cal.Rptr. 387.
The present case is clearly distinguishable from Hobbs. In Hobbs, there were no written offering memoranda or any other documentation which specifically contradicted the broker's oral assurances. Furthermore, Hobbs concerned a broker's unauthorized trading without the plaintiff's knowledge. No such claim of blatant wrongdoing has been made in this action.[5]
Inasmuch as plaintiff was provided with documents detailing the risks involved in each of the investments she purchased and in fact signed forms stating that she had read the material given to her and because the warnings in these documents directly conflicted with her broker's alleged representations, plaintiff was on inquiry notice of her claims in 1985. Whether or not she had been financially damaged at that time is irrelevant she could have brought an action for rescission. Plaintiff did not file the instant action until 1993, eight years after she purchased the investments at issue. Therefore, both of Calvi's claims for negligence and breach of fiduciary duty are barred by the statute of limitations.
NOTES
[1] A subscription agreement for one of the investments, Prudential-Bache Energy Income Partnerships II, signed by Calvi, reads, in part, as follows:
The undersigned Subscriber hereby acknowledges receipt of the Prospectus and subscribes for Units in and agrees to become a Limited Partner.... The undersigned Subscriber represents and warrants that it meets all the suitability standards set forth in Exhibit C to the prospectus that are applicable to such Subscriber.
[2] Cal.Civ.Code § 343 is the general statute of limitations for actions for relief not specifically identified elsewhere in the Code.
[3] Prudential maintains that because Calvi's breach of fiduciary duty claim "sounds in negligence" it is also governed by a two year statute of limitations. See, e.g., Vucinich v. Paine Webber, Inc., 739 F.2d 1434 (9th Cir.1994). The Court need not decide which limitations period applies, however, because Calvi's claims are barred even if the longer four-year statute is applied.
[4] The Bull court distinguished Vucinich v. Paine, Webber, Jackson & Curtis, Inc., 739 F.2d 1434 (9th Cir.1984), in which the Ninth Circuit held that the issue of whether the investor was on notice of the fraud or misrepresentations so as to start the statute of limitations running particularly in light of reassuring statements made by her broker was a question of fact for the jury. Vucinich did not involve a situation where the alleged oral misrepresentations were contradicted by written prospectuses or offering memoranda (as in both Bull and the instant case). Rather, the broker simply recommended an investment strategy to plaintiff, and continued to reassure her despite a declining market. Under these circumstances, the court held that the issue of when plaintiff should have been on notice that her broker's statements were fraudulent was a disputed factual question which precluded a grant of summary judgment.
[5] The only other case cited by plaintiff, Twomey v. Mitchum, Jones & Templeton, 262 Cal.App.2d 690, 69 Cal.Rptr. 222 (1968) is similarly inapposite. Like Hobbs, Twomey concerned a breach of fiduciary duty claim that was not premised on misrepresentations that were directly contradicted by written offering materials. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261513/ | 110 Cal.Rptr.2d 565 (2001)
91 Cal.App.4th 730
Larry McINTYRE, Plaintiff and Appellant,
v.
SANTA BARBARA COUNTY EMPLOYEES' RETIREMENT SYSTEM, Board of Retirement, Defendant and Respondent.
No. B144038.
Court of Appeal, Second District, Division Six.
July 25, 2001.
As Modified on Denial of Rehearing August 14, 2001.
Review Denied October 17, 2001.
*567 James R. Christiansen, Santa Barbara; Edward L. Faunce, Seal Beach, Lemaire, Faunce, Pingel & Singer, for Plaintiff and Appellant.
Reicker, Pfau, Pyle, McRoy & Herman, James E. Herman, Santa Barbara, and Alan A. Blakeboro, Santa Ynez, for Defendant and Respondent.
*566 YEGAN, J.
Larry McIntyre appeals from the judgment denying his petition for a writ of mandate (Code Civ. Proc. § 1085) compelling respondent Santa Barbara County Employees' Retirement System, Board of Retirement (Board) to follow certain procedures in deciding his application for a service-connected disability retirement. He contends the Board's procedures result in a breach of its fiduciary duties, violate due process, and violate the County Employees Retirement Law (CERL). (Gov. Code, § 31450 et seq.)[1] The trial court found each claim to be without merit as a matter of law. We affirm.
Facts
Appellant developed mycoplasmic pneumonia in 1989. The disease left him susceptible to blood clots and, as a result, he is required to take a blood-thinning medication *568 called Coumadin. Appellant's employer, the Summerland-Carpinteria Fire District, determined that he could no longer perform his job duties as a fire fighter because the medication increases the risk he will suffer a serious injury. Appellant last worked for the fire district in September 1997.
In May 1998, he applied to the Board for a service connected disability retirement. The Board obtained copies of appellant's medical records and referred him to a doctor for examination. After reviewing a staff report, the Board appointed referee Catherine Harris to conduct a hearing on the application. The hearing never occurred because appellant filed this petition.
Appellant's petition alleges that the procedures adopted by the Board are biased against applicants and that the Board owes a fiduciary duty of loyalty to applicants which it breaches whenever it takes a position adverse to an applicant. Appellant does not claim that anyone involved in his application is actually biased against him. Rather, he alleges the bias is inherent in the Board's bylaws and procedures because the doctors, lawyers and staff it retains are all biased against applicants. Appellant further contends the Board violates due process by unilaterally selecting hearing officers, and by participating as an adverse party in the hearings.[2] Finally, appellant alleges that the Board violates CERL by participating as an adverse party in hearings, determining whether a disability is service connected, and requiring the applicant both to provide medical records and submit to an examination by a Board-appointed doctor.
The trial court rejected each of these claims as a matter of law, concluding the Board had not breached its fiduciary duties or violated appellant's due process rights. Appellant raises the same arguments here. We reject them for many of the reasons advanced by the trial court.
Standard of Review
Mandamus is available to correct an abuse of discretion by an administrative official. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442, 261 Cal.Rptr. 574, 777 P.2d 610; California Teachers Assn. v. Ingwerson (1996) 46 Cal. App.4th 860, 865, 53 Cal.Rptr.2d 917.) "When a court reviews an administrative decision pursuant to Code of Civil Procedure section 1085, it merely asks whether the agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires." (Kreeft v. City of Oakland (1998) 68 Cal.App.4th 46, 53, 80 Cal. Rptr.2d 137.) We review the trial court's factual findings for substantial evidence and exercise our independent judgment on the legal issues presented. (Id.; Scott v. Common Council (1996) 44 Cal.App.4th 684, 689, 52 Cal.Rptr.2d 161.)
Fiduciary Duty
Appellant correctly notes that the Board owes fiduciary duties of good faith and loyalty to the county employees who are members of the retirement system. (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 392-393, 216 Cal.Rptr. 733, 703 P.2d 73.) He contends this duty of loyalty requires the Board to avoid taking a position adverse to any employee. Thus, appellant contends, the Board breaches its duty of loyalty whenever it actively opposes *569 an application by retaining counsel, hiring a doctor who opines that an employee is not eligible for benefits, or permits staff members to testify against an applicant at a hearing. Appellant appears to contend that the Board's fiduciary duties require it uncritically to approve every application for benefits, or at the very least to remain neutral on the question of whether a particular applicant is entitled to benefits. We are not persuaded.
Board members "are entrusted by statute with the exclusive authority to determine the factual issues whether a member is permanently incapacitated for duty (Gov.Code, § 31725) and whether the disability is service connected (cf.Gov.Code, §§ 31725.7, 31725.8)." (Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 45, 37 Cal.Rptr.2d 860.) The Board is therefore required to administer the retirement system "in a manner to best provide benefits to the participants of the plan." (City of Sacramento v. Public Employees Retirement System (1991) 229 Cal.App.3d 1470, 1493, 280 Cal.Rptr. 847; see also Cal. Const., art. XVI, § 17.) It cannot fulfill this mandate unless it investigates applications and pays benefits only to those members who are eligible for them. (City of Sacramento v. Public Employees Retirement System, supra, 229 Cal.App.3d at p. 1494, 280 Cal.Rptr. 847. See also Gov. Code, § 31723 [board may require such proof as it deems necessary to determine the existence of a disability]; Masters v. San Bernardino County Employees Retirement Assn., supra, 32 Cal.App.4th at p. 46, 37 Cal.Rptr.2d 860.) Thus, the Board fulfills, rather than breaches, its fiduciary duties when it retains staff, lawyers, and doctors to represent it at benefit hearings.
For the same reasons, we reject appellant's contention that to fulfill its fiduciary duty to remain neutral at the hearing, the Board must rely only upon the employer to oppose applications that lack merit. The Board, not the employer, has the constitutional and statutory duty to manage the retirement fund and to determine whether the fund is obligated to pay benefits to any particular applicant. It is not required to rely upon third parties, even interested third parties, to make those determinations on its behalf.
Due Process
Appellant contends the Board violates his due process rights by unilaterally selecting a hearing officer to decide his application and by actively opposing the application. Appellant presents no evidence that any person involved with his application is actually biased against him. Instead, his argument assumes that that all hearing officers and staff members are biased against all applicants because they are paid by the Board, which is itself biased against all applicants. The claims are without merit.
First, the claims fail because they are unsupported by any evidence of actual bias and bias may not be presumed. "[D]ue process demands impartiality on the part of those who function in judicial or quasi-judicial capacities. [Citation.] We must start, however, from the presumption that the hearing officers . . . are unbiased. [Citations.] This presumption can be rebutted by a showing of conflict of interest or some other specific reason for disqualification. [Citations.] But the burden of establishing a disqualifying interest rests on the party making the assertion." (Schweiker v. McClure (1982) 456 U.S. 188, 195-196, 102 S.Ct. 1665, 72 L.Ed.2d 1, 8, fn. omitted; accord, Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 792, 171 Cal.Rptr. 590, 623 P.2d 151 ["A party must allege concrete facts that demonstrate the challenged judicial officer is contaminated with bias or prejudice. `Bias and prejudice are never implied and must be established by clear averments.'"].)
We also reject the contention that the Board violates due process by unilaterally selecting hearing officers. *570 "Due process does not require a perfectly impartial hearing officer for, indeed, there is no such thing. [Citation.] Rather . . . due process in these circumstances requires only a `reasonably impartial, noninvolved reviewer.'" (Linney v. Turpen (1996) 42 Cal.App.4th 763, 770-771, 49 Cal. Rptr.2d 813.) The fact that hearing officers are selected and compensated by the Board does not demonstrate their anti-applicant bias. Due process does not compel applicants' participation in the selection of hearing officers. (Id. at p. 777, 49 Cal. Rptr.2d 813.)
Nor is the Board prohibited from both investigating and adjudicating applications for retirement benefits. As the Supreme Court explained in Withrow v. Larkin (1975) 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712, "the combination of investigative and adjudicative functions does not, without more, constitute a due process violation. . . ." (Id. at p. 58, 95 S.Ct. 1456, 43 L.Ed.2d 712, p.730; see also Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1809, 20 Cal.Rptr.2d 903 [due process permits city manager to terminate police chief, select and pay hearing officer to review termination, and disregard or veto recommendation of hearing officer]; Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 579, 257 Cal. Rptr. 427.)
Statutory Violations
Appellant contends the Board violates CERL when it acts as an adverse party at the hearings, purports to determine whether a disability is service connected, and requires applicants both to submit their own medical records for review and be examined by a Board-appointed doctor. We disagree.
Neither CERL nor article XVT, § 17 of our state Constitution prohibits staff members from participating in benefit hearings. To the contrary, both require the Board to administer the retirement fund for the benefit of its members and to manage the fund with care, prudence and skill. The Board cannot fulfill these functions unless it investigates applications and pays benefits only to applicants who are eligible for them. (City of Sacramento v. Public Employees Retirement System, supra, 229 Cal.App.3d at p. 1494, 280 Cal. Rptr. 847.) Moreover, CERL permits the Board to "require such proof of disability "as it deems necessary" before determining that an applicant is eligible for benefits. (§ 31723.) To that end, the statute permits the Board to retain counsel, appoint staff, obtain medical reports and hold hearings on applications. (§§ 31522.1, 31529, 31533, 31723.) Nothing in the statute or the constitution requires the Board to remain neutral throughout the application process. Accordingly, the Board does not violate CERL when it participates in as a party in benefit hearings.
Nor is the Board obligated to accept a stipulation between employer and employee that a disability is service connected. The Board is responsible for administering the retirement fund. The Board must, therefore, make its own determination on the factual question of whether a disability is service connected. (§§ 31725.7, 31725.8; Masters v. San Bernardino County Employees Retirement Assn., supra, 32 Cal.App.4th 30, 45, 37 Cal.Rptr.2d 860.)
Finally, we reject appellant's claim that the Board lacks authority to require an applicant both to submit medical records for review and submit to an examination by a Board-appointed doctor. There is no evidence appellant was required to do both; rather, he was required to provide a medical history so the Board could obtain a meaningful medical examination. This practice is fully consistent *571 with section 31723, which permits the Board to "require such proof, including a medical examination at the expense of the member, as it deems necessary or the board upon its own motion may order a medical examination to determine the existence of the disability."
The judgment is affirmed. Costs to respondent
GILBERT, P.J., and PERREN, J., concur.
NOTES
[1] All statutory references are to the Government Code unless otherwise stated.
[2] We note that, after appellant filed his petition, the Board revised its procedure for selecting hearing officers. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321191/ | 126 Ga. App. 217 (1972)
190 S.E.2d 549
COTTON STATES INSURANCE COMPANY et al.
v.
STUDDARD.
47107.
Court of Appeals of Georgia.
Argued April 6, 1972.
Decided April 19, 1972.
Rehearing Denied May 5, 1972.
*219 Savell, Williams, Cox & Angel, John M. Williams, Elmer L. Nash, for appellants.
Sharpe, Sharpe, Hartley & Newton, T. Malone Sharpe, for appellee.
DEEN, Judge.
1. Under Code § 114-305, unless the claim is filed within one year after the accident it is barred. The statute is tolled upon a showing that fraud was practiced upon the employee which prevented his filing the claim within the statutory time, and that he acted promptly upon the discovery of the fraud. Welchel v. American Mut. Liab. Ins. Co., 54 Ga. App. 511 (3) (188 S.E. 357); Indemnity Ins. Co. v. O'Neal, 104 Ga. App. 305 (2) (121 SE2d 689).
Also, the failure to file a claim within the period of limitation may be waived. Thigpen v. Hall, 46 Ga. App. 356 (167 S.E. 728); St. Paul-Mercury Indem. Co. v. Oakley, 73 Ga. App. 97 (35 SE2d 562); Maryland Cas. Co. v. Smith, 122 Ga. App 262 (176 SE2d 666).
We note that the award of the board was based on the tolling of the statute of limitation because of the affirmative acts of and promises to the claimant by the representatives of the insurer. The deputy director pointed out that Mrs. Studdard had an especial right to rely on directions given to her not to file the claim if such directions were received in her capacity as an officer of the employer *220 corporation. As an insured, the employer had a duty to cooperate with its insurer. And it is expecting too much of human nature to suppose that Mrs. Studdard could distinguish between the insurer's contractual relationship with her as an agent of the employer and its relation with her as an employee claimant. The award of the board is thus impliedly at least based on actionable fraud. The affirmance by the Judge of the Superior Court of Washington County by-passes the question of actual deception and artifice in the following finding: "`Waiver' involves voluntary and intentional relinquishment of a known right. At the time the representations of payment were made by the carrier's agent the claimant relied on them as a waiver of the carrier's rights. After the one-year limitation expired, claimant was justified in expecting the carrier to stand by its commitment. Carrier waived the limitation prior to the expiration of one year, and is estopped to reclaim the right that was relinquished by it."
Since there was in this case a clear waiver, as observed by the judge on appeal, it is unnecessary to decide whether the evidence is sufficient to support a finding of actual artifice or deceit. The company accepted liability and prevented the claimant from taking action through the compensation board. It waited out the last month or so of the limitation period (after Mrs. Studdard had discovered that there would be another operation and increased medical liability) until two days after the statutory cut-off date, and then informed the claimant that she must accept the settlement regardless of subsequent surgery or she would get nothing. An inference is authorized that the information that claimant could no longer rely on the statement that full settlement would be made upon her medical discharge could have been passed on to her as easily two days before the statutory ban as two days afterward. As stated in Young v. Sonoco Products Co., 210 S. C. 146 (41 SE2d 860): "The conduct of defendant and its insurance carrier may be such as to estop them from presenting the statutory limitation as a defense in bar of the claim for compensation, *221 if the effect of such conduct was to mislead or deceive claimant, whether intentional or not, and induce him to withhold or postpone filing his claim petition until more than a year had elapsed from the occurrence of the accident." This conduct at the very least constitutes an estoppel on the part of the company to insist upon the bar of the statute of limitation. Although the bar is jurisdictional (Employers Mut. Liab. Ins. Co. v. Anderson, 96 Ga. App. 509 (100 SE2d 611)), this is the type of jurisdiction which, like jurisdiction of the person, may be waived by the conduct of the party otherwise entitled to insist upon it, it being personal to such party, or his conduct may be such, as here, to estop him from insisting upon it. See also Stanley v. Sterling Mut. Life Ins. Co., 12 Ga. App. 475 (2) (77 S.E. 664).
2. The record shows clearly that when the employer, formerly a partnership, was incorporated, notice of such fact was given the insurer which continued to accept policy premium payments and which apparently issued an indorsement dated March 31, 1970, effective March 1, 1970, in the corporate name. No objection was made to this testimony as secondary evidence. There was no such failure of proof of coverage of the corporate employer as would void the award.
3. Error is enumerated on the refusal of the hearing director to sequester the witness Bobby Studdard. Such rulings are usually within the discretion of the trior of facts. See annotations to Code § 38-1703. Further, this witness, as the president of the defendant corporate employer was presumptively entitled for this reason also to be present at the hearing.
4. It is well settled that an employee who is entitled to compensation for injury but who has during a part of the entitlement time returned to work for the same employer and received the same or higher wages is to have deducted from the award the weeks during which such payment was received. Complete Auto Transit, Inc. v. Davis, 106 Ga. App. 369 (126 SE2d 909); McKinley v. Employers Liability Assurance *222 Corp., 108 Ga. App. 181 (132 SE2d 545); Bell v. Liberty Mut. Ins. Co., 108 Ga. App. 173 (132 SE2d 538). The question remains as to whether this rule applies where, although the claimant is totally disabled and does not report to work at all, her full wages are in fact paid and received by her for a part of the otherwise compensable time, whether in such event the employer and insurance carrier are entitled to take credit for the weeks in which these payments were made. The rule in most jurisdictions is that where an employee is paid his regular wage although he does no work at all, it is a reasonable inference that the payment is in lieu of compensation and that the employer is therefore entitled to credit for the weeks during which the full salary was paid. Mercury Aviation Co. v. Ind. Acc. Comm., 186 Cal. 375 (199 P. 508); Tulley v. Am. Rad. & Stand. San. Corp., 8 A.D. 2d 564 (183 NYS2d 688); Moss v. City of Philadelphia, 200 Pa. Super. 317 (228 A2d 47); Larson, Workmen's Compensation, (2d Ed.) p. 68, § 57.42.
The judgment of affirmance is hereby affirmed in part and reversed in part, with direction that the defendant employer be given credit for payment of weekly compensation benefits as to all weeks after November 17, 1969, during which the claimant received her full salary. Clark, J., concurs. Eberhardt, P. J., concurs in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321205/ | 126 Ga. App. 396 (1972)
190 S.E.2d 821
WASHINGTON
v.
THE STATE.
47201.
Court of Appeals of Georgia.
Argued May 2, 1972.
Decided June 1, 1972.
Walters & Davis, W. Emory Walters, Cheryle D. Bryan, for appellant.
D. E. Turk, District Attorney, for appellee.
BELL, Chief Judge.
The defendant was tried for murder and convicted of voluntary manslaughter. He enumerates as error the sufficiency of the evidence to support the conviction, the failure of the trial court to charge on involuntary manslaughter and accident or misadventure.
1. Upon arrival at the deceased's home there was testimony from the State's witnesses that the defendant stuck a knife into his belt. Also according to the State's witnesses the deceased confronted the defendant concerning why the defendant had told the deceased's girl friend that he had been riding around with another woman. Thereupon the defendant picked up the deceased, threw *397 him down and stabbed the deceased about the body with the knife three times. One wound punctured the deceased's heart causing his death. After the inflicting of the wounds both parties withdrew. The deceased crawled out to an outside water faucet to wash his wounds and then moved to the porch of the house next door where he collapsed and died. The defendant left the premises. A defense witness testified that the deceased attacked the defendant initially by striking him with his fist and knocking him to the floor. Defendant in his unsworn statement related that the deceased attacked him. He admitted inflicting a shoulder wound in order to get the deceased to desist from attacking him; that he did not know how he stabbed the deceased in the heart; and that he never had any intention of killing the deceased. Even though conflicting, the evidence is sufficient to authorize the verdict of guilty of voluntary manslaughter.
2. It was not error to fail to charge on involuntary manslaughter. Code Ann. § 26-1103 (a) and (b) defines two types of involuntary manslaughter, one a felony and the other a misdemeanor. Felony manslaughter occurs when a person without intent causes the death of another by the commission of an unlawful act other than a felony. Misdemeanor manslaughter occurs when death is caused without intent by the commission of a lawful act in an unlawful manner. Under the facts even if the defendant did not intend to kill the deceased by stabbing him, he nevertheless committed an aggravated assault upon his victim, a felony under Code Ann. § 26-1302, unless, of course, he was acting in self-defense, in which case he would be guilty of no crime. Thus the deceased's death was not caused by defendant by the commission of an unlawful act other than a felony and there is no basis to show that defendant caused the death in the commission of a lawful act in an unlawful manner. Tate v. State, 123 Ga. App. 18 (179 SE2d 307). The trial court correctly limited the case to murder, voluntary manslaughter or justifiable homicide by reason of self-defense.
*398 3. There is no evidence which would require a charge on accident or misadventure. The accused's unsworn statement that he did not know how he inflicted the fatal heart wound does not give rise to the theory of accident or misadventure. But even if it did, no error appears as there was no request to charge on this defense. Ivey v. State, 118 Ga. App. 406 (163 SE2d 843).
Judgment affirmed. Evans and Stolz, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321200/ | 229 Ga. 169 (1972)
190 S.E.2d 35
POLK
v.
HOLLAND.
27107.
Supreme Court of Georgia.
Submitted March 15, 1972.
Decided May 18, 1972.
*171 Willie James Polk, pro se.
Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, William F. Bartee, Jr., Assistant Attorneys General, for appellee.
HAWES, Justice.
Appellant is serving a life sentence imposed upon him after he pled "guilty" to a charge of rape. His application for a writ of habeas corpus was denied and he appealed. In this court he contends that he was deprived of his right to a fair and impartial trial in that the court passed sentence upon him without a trial and without his being aware that he had entered a plea of "guilty" and that the court did not explain to him his rights in the matter. He also contends that he was denied the benefit of effective representation by legal counsel. Held:
1. The evidence was in conflict. Appellant's testimony under oath on the trial of the case tended to support his contentions. The attorney who represented him and the district attorney who prosecuted the case testified in contradiction thereof. The substance of their testimony was to the effect that appellant entered a plea of not guilty on the indictment; that when the case was called for trial the jury panel was qualified and 12 jurors were chosen to try the case; that at that time appellant's counsel was handed a list of prior offenses of the appellant; that a private conference then ensued between the appellant *170 and his attorney at which appellant's mother and other relatives were present; that at the conclusion of that conference appellant instructed his attorney to withdraw his plea of "not guilty" and to enter a plea of "guilty" in return for a promise by the solicitor that he would recommend a life sentence. Counsel for the appellant testified that it was his opinion that the appellant definitely knew and fully understood the import of his actions. The transcript of the proceeding at which the guilty plea was entered which was introduced before the habeas corpus court showed that the trial judge carefully inquired of the accused as to whether he fully understood the nature of his acts, and as to whether he freely and voluntarily entered the guilty plea, and as to whether he had had his rights explained to him by his retained counsel. To all of those inquiries by the court the accused replied in the affirmative. The evidence was ample to authorize the habeas corpus court to find that the appellant had not been denied any of his rights, and that he fully understood and freely and voluntarily entered his plea of "guilty." The court did not err in remanding him to the custody of the warden. Walling v. Harris, 210 Ga. 97 (1) (78 SE2d 7); Grier v. Balkcom, 213 Ga. 133 (2) (97 SE2d 151); Balkcom v. Williams, 220 Ga. 359 (1) (138 SE2d 873).
2. Appellant contends that his person and house were searched without a warrant and without probable cause. A careful review of the record fails to reveal that any such contention was made in the trial court. However, since the appellant freely, voluntarily and knowingly entered a plea of "guilty" he waived any objection he may have had to the illegal search. Goodwin v. Smith, 226 Ga. 118, 120 (172 SE2d 661); Snell v. Smith, 228 Ga. 249, 250 (184 SE2d 645), and cits.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261532/ | 861 F.Supp. 242 (1994)
Marianne E. FLETCHER, Nancy L. Bartley, Raphael Paganelli, and Charlotte Evans, Plaintiffs,
v.
ATEX, INC. and Eastman Kodak Company, Defendants.
Jenny L. HERMANSON, and Christy Scattarella, Plaintiffs,
v.
805 MIDDLESEX CORP., formerly known as Atex, Inc., Eastman Kodak Company, and Apple Computers, Inc., Defendants.
Nos. 92 Civ. 8758 (MEL), 94 Civ. 1272 (MEL).
United States District Court, S.D. New York.
August 17, 1994.
*243 Levy, Phillips & Konigsberg (Steven J. Phillips, Alani Golanski, Danielle M. Goodman, Caroline Tso, of counsel), New York City, for plaintiffs.
Nixon, Hargrave, Devans & Doyle (Thomas E. Reidy, Flor M. Ferrer-Colon, Daniel J. Hurteau, of counsel), Rochester, NY, for defendants.
LASKER, District Judge.
The plaintiffs in these actions allege a variety of soft tissue and other injuries, including "carpal tunnel" syndrome, which they contend were caused by the repetitive stress involved in the use of keyboards manufactured by Atex, Inc., now known as 805 Middlesex Corp.
Eastman Kodak Company, Atex's parent company, moves for summary judgment dismissing all claims against it in both actions. Kodak's identical motion in related cases pending in state court was recently granted. King v. Eastman Kodak Co., No. 23439/92 (N.Y.Sup.Ct. Jun. 9, 1994). However, the decision in King is not binding on the plaintiffs in the instant case because they were not party to the state court determination. Expert Elec. Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977).
The plaintiffs allege that Kodak is liable for their injuries even though Kodak did not manufacture the Atex keyboards because i) Atex was merely Kodak's alter ego or instrumentality; ii) Atex represented that Kodak participated in the manufacture of the keyboards; *244 iii) Kodak acted in tortious concert with Atex; and iv) Atex was Kodak's agent. Alter Ego Liability
Under New York choice of law principles, "[t]he law of the state of incorporation determines when the corporate form will be disregarded and liability will be imposed on shareholders." Kalb, Voorhis & Co. v. American Fin. Corp., 8 F.3d 130, 132 (2d Cir.1993). Since Atex was incorporated in Delaware, its law controls on this issue.
Under Delaware law, "a court can pierce the corporate veil of an entity where there is fraud or where [it] is in fact a mere instrumentality or alter ego of its owner." Geyer v. Ingersoll Publications Co., 621 A.2d 784, 793 (Del.Ch.1992) (emphasis added); see also Harper v. Delaware Valley Broadcasters, Inc., 743 F.Supp. 1076, 1085 (D.Del.1990), aff'd, 932 F.2d 959 (3d Cir.1991) (recognizing alter ego theory as "something of a new development in the Delaware [state] courts").
The plaintiffs contends that Atex is merely Kodak's instrumentality or alter ego because Atex participated in Kodak's centralized cash management system, Atex was insured under Kodak's liability insurance policy, Kodak's Annual Report for 1986 and a 1990 Atex software manual erroneously describe Atex as part of a "division" of Kodak, and a 1985 promotional publication by Atex states incorrectly that Atex "merged" with Kodak in 1981, instead of becoming Kodak's subsidiary. Plaintiffs also argue that Kodak unduly dominated its subsidiary's affairs because a number of Kodak employees sat on Atex's board of directors, Atex employees regularly met with Kodak employees to discuss general business matters, and Atex could not undertake major capital expenditures, execute real estate leases, or sell stock without Kodak's approval.
Under Delaware law, a subsidiary may be regarded as its parent's alter ego if the corporations "operate[] as a single economic entity such that it would be inequitable ... to uphold a legal distinction between them." Mabon, Nugent & Co. v. Texas American Energy Corp., 1990 WL 44267, at *4 (Del.Ch. Apr. 12, 1990). However, "[d]isregard of the corporate entity is appropriate only in exceptional circumstances." Mobil Oil Corp. v. Linear Films, Inc., 718 F.Supp. 260, 270 (D.Del.1989).
The factors to be analyzed in determining whether Atex and Kodak indeed "operated as a single economic entity" include:
whether the [subsidiary] was adequately capitalized for the corporate undertaking; whether [it] was solvent; whether dividends were paid, corporate records kept, officers and directors functioned properly, and other corporate formalities were observed; whether the dominant shareholder siphoned corporate funds; and whether, in general, the corporation simply functioned as a facade for the dominant shareholder.
Harco Nat. Ins. Co. v. Green Farms, Inc., 1989 WL 110537, *4 (Del.Ch.1989) (citing United States v. Golden Acres, Inc., 702 F.Supp. 1097, 1104 (D.Del.1988)).
Plaintiffs' claim of undue domination, when measured by this standard, is not persuasive. While it appears that Kodak and Atex are indeed close, the subsidiary possesses sufficient indicia of a separate corporate existence that it cannot be viewed as a mere instrumentality of Kodak. Plaintiffs, for example, have not challenged Kodak's representations that both companies observed corporate formalities at all times, that Atex managed its own day to day affairs, and that between 1981 (when Kodak acquired Atex) and 1992 (when Atex sold substantially all its assets to a third party), only one director of Kodak sat simultaneously as a director of Atex. During that period, the number of directors on Atex's board ranged from two to eight.
Atex's participation in Kodak's cash management system is consistent with sound business practice and does not show undue domination or control. See Japan Petroleum Co. (Nigeria) v. Ashland Oil, Inc., 456 F.Supp. 831, 843 (D.Del.1978) (upholding corporate veil despite cash management program for subsidiary); In re Acushnet River & New Bedford Harbor Proceedings, 675 F.Supp. 22, 34 (D.Mass.1987) ("A centralized cash management system, where the accounting records always reflect the indebtedness of one entity to another, is not the equivalent of intermingling funds.").
*245 Similarly, it is entirely appropriate for a parent corporation to approve major expenditures and policies involving the subsidiary, and for employees of the parent and subsidiary corporations to meet periodically to discuss business matters. Akzona, Inc. v. E.I. Du Pont De Nemours & Co., 607 F.Supp. 227, 238 (D.Del.1984) (upholding veil even though "the parent had `general executive responsibilities' for the operations of the subsidiary, approved major policy decisions, guaranteed [its] bank loans and worked closely with [it] on approving decisions.")
Finally, the erroneous descriptions of the relationship between Atex and Kodak in the corporations' promotional literature do not justify piercing the corporate veil. Plaintiffs have isolated only three such misstatements in the voluminous material presented too few to support an inference that they reflect the defendants' true state of mind about their corporate relationship. See Coleman v. Corning Glass Works, 619 F.Supp. 950, 956 (W.D.N.Y.1985), aff'd, 818 F.2d 874 (Fed.Cir. 1987) (upholding separate corporate existence despite "loose language" in parent corporation's Annual Report about a "merger" with the subsidiary, and parent's reference to subsidiary as a "division").
In sum, the elements identified by the plaintiffs, when considered in the light of the uncontroverted factors of independence cited by Kodak, are insufficient as a matter of law to establish the degree of domination necessary to disregard Atex's corporate identity.
Moreover, "the case law implies that, even under the alter ego theory, Delaware courts will not disregard separate legal entities absent a showing that equitable considerations require such action." Harper, 743 F.Supp. at 1085-86; see also Harco Nat. Ins. Co., 1989 WL 110537, *4 ("overall element of injustice or unfairness must always be present" (quoting Golden Acres, Inc., 702 F.Supp. at 1104)); Mabon, Nugent & Co., 1990 WL 44267, at *4 (veil piercing appropriate if "it would be inequitable ... to uphold a legal distinction" between the corporations). The plaintiffs, however, have made no showing that upholding Atex's separate legal existence is unjust. Accordingly, Kodak's motion for summary judgment is granted with regard to this claim.
Apparent Manufacturer Doctrine
Section 400 of the Restatement (Second) of Torts provides that:
One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.
Restatement (Second) of Torts § 400 (1965). Plaintiffs contend that Kodak is liable under this rule because "the pervasive use by Atex of the Kodak name, both in its packaging of Atex equipment and in advertisement and promotional materials, held out to the world the assurances associated with the Kodak name and suggested to purchasers and ultimate users that Kodak was significantly involved in the manufacture of the Atex products." (Mem.Opp. 10). The plaintiffs' case with regard to this claim is presented on New York law.
Section 400 of the Restatement is titled "Selling as Own Product Chattel Made by Another." It appears as one provision in Topic 4 of Chapter 14 of the Restatement titled "Sellers of Chattels Manufactured by Third Persons." Comment (a) to Section 400 states that the words in Section 400 "`one who puts out [...] a chattel' include anyone who supplies it to others ... by sale or lease or by gift or loan." There is no indication in the Restatement that Section 400 was intended to apply to a party which is not a seller of chattel, or is otherwise involved in the chain of distribution of a product.
Moreover, although other jurisdictions have applied Section 400 more broadly, Connelly v. Uniroyal, Inc., 75 Ill.2d 393, 400-01, 27 Ill.Dec. 343, 350-51, 389 N.E.2d 155, 162-63 (1979), City of Hartford v. Associated Construction Co., 34 Conn.Supp. 204, 384 A.2d 390, 396-97 (1978), there are no New York cases which have applied the doctrine to parties other than sellers of products manufactured by a third party. Willson v. Faxon, Williams & Faxon, 208 N.Y. 108, 113-14, 101 N.E. 799, 801 (1913); Commissioners of the State Ins. Fund v. City Chem. Corp., 290 N.Y. 64, 69, 48 N.E.2d 262, 264-65 (1943); Markel v. Spencer, 5 A.D.2d 400, 409, 171 N.Y.S.2d 770, 780 (N.Y.App.Div.1958); *246 Schwartz v. Macrose Lumber & Trim Co., 50 Misc.2d 547, 558, 270 N.Y.S.2d 875, 888 (N.Y.Sup.Ct.1966), rev'd on other grounds, 29 A.D.2d 781, 287 N.Y.S.2d 706 (1968).
The text and commentary to Section 400 of the Restatement, as well as New York case law, all suggest that in New York the apparent manufacturer doctrine only applies to a seller of a chattel, or a party otherwise involved in the chain of distribution of a product. This conclusion, though not compelled by, is supported by Justice Crane's determination made on exactly this issue in the related cases pending in state court in King v. Eastman Kodak Co. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967) (decisions of lower state courts, though not controlling on state law issues, are to be given "proper regard" by federal courts).
There is no evidence or allegation that Kodak has been involved in the selling or distribution of Atex's keyboards. Accordingly, Kodak's motion for summary judgment is granted with regard to this claim.
Concerted Action Theory
"The theory of concerted action provides for joint and several liability on the part of all defendants having an understanding, express or tacit, to participate in a common plan or design to commit a tortious act." Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 295, 582 N.Y.S.2d 373, 375, 591 N.E.2d 222, 224 (1992) (citations omitted).
The plaintiffs contend that Kodak is liable under this theory because "at the very least, Kodak offered substantial assistance and encouragement to Atex in the production and/or marketing of its keyboards." (Mem. Opp. 13). They rely on documents showing that Kodak i) worked closely with Atex and other subsidiaries and sought to combine their strengths; ii) evaluated the ergonomics of three Atex keyboards in 1990; and iii) was aware that keyboards in general could contribute to a variety of repetitive stress injuries.
However, none of this tends to show that Kodak and Atex had "an understanding ... to participate in a common plan or design to commit a tortious act." Rastelli, 79 N.Y.2d at 295, 582 N.Y.S.2d at 375, 591 N.E.2d at 224. There is no evidence that Kodak actually participated in the design or manufacture of the Atex keyboards which the plaintiffs allege caused them injury. In fact, the defendants have submitted three uncontested affidavits that Kodak was not so involved. (Peter Russell Supp.Aff. ¶ 6; Frank Zaffino Aff. ¶ 5; Lawrence Matteson Aff. ¶ 6).[1]
Plaintiffs' evidence of Kodak's more indirect connection with Atex's affairs does not support a concerted action claim. As discussed above in relation to the theory of alter ego liability, there was nothing improper about the general business relationship between Kodak and Atex. A failed effort to pierce the subsidiary's corporate veil cannot be converted into a successful concerted action claim. See Esmark, Inc. v. N.L.R.B., 887 F.2d 739, 759 (7th Cir.1989) ("direct participation" theory of liability "limited to situations in which the parent corporation's control over particular transactions is exercised in disregard of the separate corporate identity of the subsidiary").
Nor does Kodak's evaluation of the Atex keyboards establish that Kodak acted in tortious concert with Atex. "It is essential that each defendant charged with acting in concert have acted tortiously." Rastelli, 79 N.Y.2d at 295, 582 N.Y.S.2d at 375, 591 N.E.2d at 224. The plaintiffs have not alleged that Kodak's evaluation of the keyboards was performed negligently.
The plaintiffs also seem to contend that because Kodak was generally aware that use of keyboards could contribute to repetitive stress injuries, it acted tortiously either by failing to prevent Atex from manufacturing the keyboards, or by failing to warn the *247 plaintiffs about the danger. However, absent a "special relationship" between Kodak and Atex, or Kodak and the plaintiffs, Kodak had no duty to control Atex's conduct to prevent harm to the plaintiffs. Restatement (Second) of Torts § 315 (1965). The parent/subsidiary relationship is not, without more, a "special relationship" in this sense, see In re Birmingham Asbestos Litig., 997 F.2d 827, 828 (11th Cir.1993) (applying Alabama law), and no allegation has been made that there was such a relationship between Kodak and the plaintiffs.
Accordingly, Kodak's motion for summary judgment is granted with regard to this claim.
Agency Theory
The plaintiffs also contend that Kodak is liable because Atex was Kodak's agent. This claim is based on a statement in an unidentified 1988 document issued by Electronic Pre-Press Systems, Inc. that it "serve[d] as Kodak's primary agent" to supply a variety of products and services to the printing and publishing industries, and on a statement in a 1990 Atex software manual that "Atex is an unincorporated division of Electronic Pre-Press Systems, Inc., a Kodak company."
It is true that principals are liable for the tortious acts of their agents. 3 N.Y.Jur.2d, Liability for Torts of Agent §§ 253-257 (1980). However, the statements plaintiffs rely on are not evidence of an agent-principal relationship between Atex and Kodak. An agent's authority to act on behalf of a principal, whether actual or apparent, "depends on verbal or other acts by a principal which reasonably give an appearance of authority." Greene v. Hellman, 51 N.Y.2d 197, 204, 433 N.Y.S.2d 75, 80, 412 N.E.2d 1301, 1306 (1980) (emphasis added). The unauthorized representations of the agent do not bind the principal. See 2 N.Y.Jur.2d, Limitations on Apparent Authority § 86 (1980). Since there is no evidence that Kodak authorized the statements plaintiffs rely on, the claim that Kodak is liable for Atex's conduct as its principal fails.
CONCLUSION
Kodak's motions for summary judgment in these actions are granted and plaintiffs' complaints against Kodak are dismissed. It is so ordered.
NOTES
[1] The defendants, in response to Interrogatory # 31, initially listed "Eastman Kodak Company" as one of 33 companies "involved in the design, manufacture, sale, marketing, leasing and/or installation of Atex keyboards." They have submitted an affidavit by counsel which states that this was an error, that it was intended to be responsive to another interrogatory, and that a corrected interrogatory answer was served on March 31, 1993. (Edward Burns Aff.). Nothing in the record supports plaintiffs' counsel's contention that the original representation was accurate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321198/ | 259 S.C. 99 (1972)
190 S.E.2d 751
John FLEMON et al., Appellants, and Robert Cornell Wheeler, Respondent, and Lisa Faye Metts and Beverly Ann Metts, Respondents,
v.
DICKERT-KEOWEE, INC., and Employers Mutual of Wausau, Defendants-Respondents.
19464
Supreme Court of South Carolina.
August 3, 1972.
Messrs. Jenkins, Perry & Pride, of Columbia, and John A. Martin, of Winnsboro, for Appellants.
Messrs. Walter T. Lake and Blease, Griffith, Stone and Hightower, of Newberry for Minor Respondents.
*100 August 3, 1972.
BUSSEY, Justice:
This Workmen's Compensation case arises out of a fatal injury to one John Robert Flemon in a compensable accident on April 8, 1968. The only issue before us is just who is entitled to compensation benefits. Flemon, an unmarried man, was survived by three acknowledged illegitimate children, to wit: Robert Cornell Wheeler, age 3; Lisa Faye Metts, age 2; and Beverly Ann Metts, age one month. Flemon also left surviving him his mother and father and brothers and sisters, who claim the benefits only as next of kin. The findings, opinion and award of the hearing Commissioner were favorable to the three illegitimate children and there was an appeal by the next of kin to the full Commission. An opinion and award by a majority of the full Commission concluded that Robert Cornell Wheeler was entitled to all of the benefits. It found that all three illegitimate children were the acknowledged children of the deceased but that only Robert Cornell Wheeler "was dependent upon the deceased and, therefore, qualifies as a `child' under the terms and provisions *101 of Section 72.6." The next of kin and the Metts children appealed to the circuit court which held in accordance with the view of the hearing Commissioner that the three illegitimate children were entitled to the benefits as dependents of the deceased. From the decree only the next of kin appeal.
There is evidence indicating that the deceased had contributed irregularly to the support of his three acknowledged illegitimate children, the total amount of support being rather insubstantial, and it is the contention of the next of kin that the illegitimate children, even though acknowledged, are not dependents entitled to compensation benefits arising out of the death of their father in the absence of having been actually supported by him. The decision of the appeal is controlled by two sections of the Code and certain firmly established principles of law as to statutory construction. For the purposes of the Workmen's Compensation Law the word "child" is defined in Sec. 72-6 of the Code as follows:
"The term `child' shall include a posthumous child, a child legally adopted prior to the injury of the employee and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent upon him. * * *"
Section 72-161 of the Code, in pertinent part, is as follows:
"Persons conclusively presumed wholly dependent, A widow, a widower or a child shall be conclusively presumed to be wholly dependent for support on a deceased employee. * * *"
Our Workmen's Compensation Law originated with an Act approved the 17th day of July 1935; (1936 (39) 1231). Said Act was fashioned upon the North Carolina Workmen's Compensation Act and the opinions of the Supreme Court of North Carolina construing such Act are entitled to great weight. McDowell v. Stilley Plywood Co., 210 S.C. 173, 41 S.E. (2d) 872; Nolan v. Daley, 222 S.C. 407, 73 S.E. (2d) 449; Parrott v. Barfield, 206 S.C. 381, 34 S.E. (2d) 802.
*102 In the North Carolina case of Lippard v. Southeastern Express Co., 207 N.C. 507, 177 S.E. 801, decided January 1, 1935, some months before South Carolina adopted its Workmen's Compensation Law, the Court was confronted with virtually the identical issue which we now have before us. At that time the pertinent provisions of the North Carolina Act were identical with the Code sections hereinabove quoted from our Act. The deceased Lippard in that case was survived by three legitimate children; he was engaged to be married on September 24, 1932, but died on September 20th, his fiancee being then pregnant by him. The North Carolina Court construed the identical code provisions and held that the posthumous illegitimate child of the deceased was entitled to share in the compensation benefits along with his legitimate children. I quote the following from the opinion:
"The fact that the illegitimate child, whose paternity was acknowledged by the deceased employee prior to his death, was born after his death does not affect the relationship between the child and its father. The dependency which the statute recognizes as the basis of the right of the child to compensation grows out of the relationship, which in itself imposes upon the father the duty to support the child, and confers upon the child the right to support by its father. The status of the child, social or legal, is immaterial.
"The philosophy of the common law which denied an illegitimate child any rights, legal or social, as against its father, and imposed no duty upon the father with respect to the child, is discarded by the statute. The child is no less the child of its father because it was born after his death. The statute expressly provides that the compensation shall be divided among the dependents of the deceased employee." (Emphasis added.)
In Fuller v. S.C. Tax Commission, 128 S.C. 14, 121 S.E. 478, it was held as follows:
"Where the language incorporated into a statute is identical or substantially identical with that appearing in similar *103 statutes of other states which have received judicial construction and interpretation prior to the adoption of the statute under consideration, in the absence of an expressed intention to the contrary it will be presumed that the subsequently enacted statute was intended to be understood and applied in accordance with the construction given it by the courts of the states which had first adopted it. 25 R.C.L. 1069-1071; Simpson v. Willard, 14 S.C. 191."
The holding of the court in Fuller was followed and applied in Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30. We find nothing in the Act evincing an intention on the part of the legislature that the particular Code sections were to be given any construction contrary to the construction thereof by the North Carolina Supreme Court. Incidentally, the statutory construction adopted by the North Carolina Supreme Court in Lippard has been consistently followed in that state. See: Hewett v. Garrett, 274 N.C. 356, 163 S.E. (2d) 372.
In addition to the presumption that the Lippard case was known to the General Assembly and in effect intended by it to become a part of our compensation law upon its adoption, such decision was publicized in this state in the 1951 case of Barr's Next of Kin v. Cherokee, Inc., 220 S.C. 447, 68 S.E. (2d) 440. In that case the circuit court followed and applied the Lippard decision in decreeing benefits for an alleged illegitimate child. The circuit decree was reversed by the Supreme Court on another ground, but the Supreme Court opinion also cited the Lippard decision and indicated no disagreement with the circuit court's view thereof. Thus again was the Lippard decision brought to the attention of the General Assembly more than twenty years ago. Despite such there have been no amendments which would vitiate the Lippard construction of these Code sections.
The foregoing, we think, should be completely dispositive of the appeal, but it might not be amiss to add that both under the law of this state as it existed at the time of the *104 adoption of the Workmen's Compensation Law, and that existing at the time of Flemon's death, a legal duty was imposed upon a father to support his illegitimate children. 1932 Code Sec. 1726 et seq.; 1962 Code Sec. 20-303.
It is well settled that our Workmen's Compensation Act is remedial legislation which is entitled to a liberal construction in order to accomplish the ends and purposes for which it was enacted. It is also setthed that one of the obvious primary purposes of the Act was to prevent injured employees and those lawfully dependent upon them for support from becoming charges upon society and the public generally for support. See numerous cases collected in West's South Carolina Digest, Workmen's Compensation, Key No. 11. The construction of our Act contended for by the next of kin and the award of the compensation benefits to such non-dependent next to kin to the exclusion of deceased's children would surely increase the likelihood of his children, who were lawfully entitled to be supported by him, becoming charges upon society and the public generally, thus defeating one of the primary purposes of the Act.
For the foregoing reasons it is our conclusion that there was no error in the judgment below and it is, accordingly,
Affirmed.
MOSS, C.J., and LEWIS, BRAILSFORD and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2457926/ | 253 P.3d 385 (2011)
CONTRERAS
v.
STATE.
No. 103098.
Court of Appeals of Kansas.
June 17, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261483/ | 111 Cal. Rptr. 2d 471 (2001)
91 Cal. App. 4th 1303
COUNTY OF LOS ANGELES, Petitioner,
v.
The SUPERIOR COURT of Los Angeles County, Respondent;
Crystal B., et al. Real Parties in Interest.
No. B137358.
Court of Appeal, Second District, Division Three.
August 29, 2001.
Review Denied November 28, 2001.
*472 John J. Collins, Pasadena, Michael M. Bergfeld, Los Angeles, and Tomas A. Guterres, Pasadena, Collins, Collins, Muir & Traver, LLP for Petitioner County of Los Angeles.
No appearance for Respondent.
Linda Wallace Pate, Pate & Pate for Real Parties in Interest Crystal B., Steven G., and Anita G.
CROSKEY, J.
Real parties Crystal B., Steven G., and Anita G. (hereinafter Minors) have asserted personal injury claims against County of Los Angeles (County) for the physical and psychological abuse they allegedly received while placed in foster care. County denied their application to file late tort *473 claims under the relevant provisions of what is popularly, albeit not officially, known as the California Tort Claims Act (the Act). (Gov.Code, §§ 810 et seq.)[1] Minors then petitioned the trial court to relieve them from the claim-filing requirements of the Act. They argued that accrual of their claims was tolled while they were dependent minors with no parents or guardians ad litem to represent them, and thus their claims were filed within a reasonable time under the Act. The trial court granted the petitions and allowed Minors to file a complaint against County.
County challenges this ruling, contending that even though Minors did not have a guardian ad litem while dependents of the court, the appointed independent counsel (IC), assigned by the juvenile court to act on their behalf by pursuing all potential tort claims against third parties, was the equivalent of a guardian ad litem.[2] Because the application to file late claims was not filed with County within one year of the appointment of the IC, County argues that Minors' claims are untimely, and thus the trial court erred in allowing them to file suit without having presented their claims.
For the reasons discussed below, we conclude that the trial court did not err, and made the appropriate disposition to allow Minors' civil suit against County to proceed.
FACTUAL AND PROCEDURAL HISTORY[3]
Minors were removed from their parents' custody and control in 1991, and placed in the licensed foster home of Sandra Rodriguez. In 1996, they were returned to the physical custody of their parents, but their status as dependent minors did not end until January 23, 1998. In May 1997, while living with their parents but still wards of the juvenile court, Minors disclosed to their therapist that between 1991 and 1996, while in foster care, they had been the victims of serious abuse.[4] The therapist then notified County of Minors' allegations.
On January 7, 1998, pursuant to Welfare and Institutions Code Section 317, subdivision (e), the juvenile court appointed independent counsel (IC) for the then-still-dependent Minors. The order expressly stated that the IC were appointed attorneys of record to represent Minors "in all potential third party personal injury . . . claims and probate matters on minor's [sic] behalf." The IC were required to "provide reports to both the court and Minors' dependency court attorney on the progress of the case on a regular basis." The court also ordered the Department of Children and Family Services (DCFS), County counsel, Minors' dependency court attorney, and the juvenile *474 court clerk, to produce all records concerning Minors to the newly-appointed IC.
Apparently, the IC never filed any claim or complaint on Minors' behalf. At some point, Minors obtained new counsel and, over one year later, on January 25, 1999, the new counsel filed an application with County requesting leave to present Minors' tort claims. The application alleged that, while in the licensed foster home of Sandra Rodriguez from 1991 to October 1996, Minors sustained a number of physical and mental injuries due to alleged abuse and neglect. The claim alleged that County was liable for Minors' injuries because of DCFS's negligent supervision and monitoring of the Rodriguez foster home. It also outlined Minors' history in terms of whose custody and control they had been under during the relevant time periods, and when and to whom Minors first revealed the abuse.
On March 11, 1999, County denied the application to present minors' tort claims as untimely. Minors petitioned the trial court for relief from the claim-filing requirements on October 5, 1999.[5] The trial court granted relief from the claim-filing requirement, stating that "[p]laintiffs presented their claims within one year of the accrual of their causes of action as required by Cal. Government Code Section 911.4(b). In computing the one-year period under this subdivision, the time during which Minors were mentally incapacitated and did not have a guardian or conservator is not counted. . . ."[6]
County then filed a petition for writ of mandate with this court to challenge the trial court's ruling. We issued a stay of all proceedings and an alternative writ of mandate. In response to the alternative writ, the trial court vacated its ruling and denied Minors' petitions. Nevertheless, because the issue raised by the petition is of general public interest, likely to recur, and also likely to be dispositive of Minors' claims against other parties to the superior court action, we have retained jurisdiction and decide the issue despite the fact that the trial court vacated its earlier ruling in response to the alternative writ. (See Davies v. Superior Court (1984) 36 Cal. 3d 291, 294, 204 Cal. Rptr. 154, 682 P.2d 349 [reviewing court may exercise jurisdiction to resolve issue of public interest that is likely to recur even after trial court has complied with the alternative writ]; In re William M. (1970) 3 Cal. 3d 16, 23-25, 89 Cal. Rptr. 33, 473 P.2d 737 [reviewing court has "inherent jurisdiction" to decide issues of broad public interest even though events occurring during the pendency of the case render the matter moot].)
CONTENTIONS ON APPEAL
County contends that the trial court erred in granting the petitions because Minors failed to present their late claim application within one year of the accrual of their causes of action, and takes the position that Minors' causes of action accrued on January 7, 1998, the date IC was appointed. County further contends that the juvenile court appointed IC specifically to investigate and pursue potential third party personal injury actions and to protect Minors' interests, and thus the IC *475 were the functional equivalent of a guardian.
Minors, on the other hand, argue that the time within which to present a claim was tolled until their dependency status was terminated on January 23, 1998. They contend that even though they had court-appointed IC to pursue their tort claims against County, it was necessary for the juvenile court also to appoint a guardian ad litem to prosecute any civil proceeding. In other words, according to Minors, the time within which they were required to act was tolled during the time that they had no parent or guardian legally authorized to act on their behalf. Thus, Minors claim that the trial court was correct in granting their application for relief from the claim-filing requirements.
DISCUSSION
1. Time within which Claims Must Be Presented
Under the Act (§§ 810 et seq.), a person may sue a public entity for damages only if he or she first presents a claim to the public entity within six months of the claims' accrual, and if the entity has acted upon the claim or the claim is deemed rejected. (§§ 911.2 and 945.4; Draper v. City of Los Angeles (1990) 52 Cal. 3d 502, 505, 276 Cal. Rptr. 864, 802 P.2d 367; see also Torres v. County of Los Angeles (1989) 209 Cal. App. 3d 325, 337, 257 Cal. Rptr. 211 [submission of a timely claim to a public agency is a condition precedent to a tort action].) Section 911.4, subdivision (a) provides that when a party has not filed a claim within the required six-month period, that party may file an application with the public entity for leave to present a late claim.
As to an application to file a late claim, section 911.4 further provides, in relevant part, "(b) The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application. [¶] (c) In computing the one-year period under subdivision (b), time during which the person who sustained the alleged injury, damage, or loss as a minor shall be counted but the time during which he or she is mentally incapacitated and does not have a guardian or conservator of his or her person shall not be counted." (Emphasis added.)[7]
2. Minors' Application to Present Late Claims Was Presented within One Year Of the Accrual of Their Causes of Action, and Thus Was Timely
It would be overly simplistic to conclude, based on the above-quoted language of section 911.4, subdivision (c) that, pursuant to section 911.4, subdivision (b), the one-year time period within which to present an application to file a late claim is not tolled simply if the claimant is a minor, without regard to any other consideration, and that it is tolled simply if the claimant is any claimant, regardless of age, so long as the claimant is both mentally incapacitated and without a guardian or conservator. In fact, such is not the case.
It is not a claimant's minority, per se, nor the legal and practical impairment associated with minority, that affects the tolling. That is because "it is not the knowledge *476 or lack thereof of the minor [as to the basis for a claim], but the knowledge or lack thereof of the minor's parents which determines the time of accrual of the cause of action." (Whitfield v. Roth (1974) 10 Cal. 3d 874, 885, 112 Cal. Rptr. 540, 519 P.2d 588, italics added; accord Hernandez v. County of Los Angeles (1986) 42 Cal. 3d 1020, 1023-1024, 232 Cal. Rptr. 519, 728 P.2d 1154; Reyes v. County of Los Angeles (1988) 197 Cal. App. 3d 584, 592, 243 Cal. Rptr. 35.) And, as to claimants who are mentally incapacitated, even when a claimant has no "guardian or conservator," the time of accrual is not necessarily tolled; a mentally incapacitated minor, in the custody and control of his or her parents, is not excused from the requirement of filing an application for leave to file a late claim within one year of accrual, despite the lack of any guardian or conservator other than the minor's parents. (Hernandez v. County of Los Angeles, supra, 42 Cal.3d at p. 1025, 232 Cal. Rptr. 519, 728 P.2d 1154 [claim was not timely filed on behalf of a mentally retarded minor; time not tolled despite lack of a guardian other than the minors' parents].) As the court in Hernandez recognized, "whenever a [non-mentally-retarded] child is injured it is invariably the child's parents or guardian rather than the child who files a claim for recovery; since a parent or guardian is equally capable of filing a claim whether or not the injured child is mentally incapacitated, . . . the tolling provision was intended to apply only to mentally incapacitated adults who lack a guardian or conservator." (Id. at p. 1025, 232 Cal. Rptr. 519, 728 P.2d 1154, italics added.) The fact that a minor is not permitted to prosecute a claim through the courts without a guardian ad litem does not alter this result, and the time for filing a late claim is not tolled until the minor's parent is formally appointed guardian ad litem by a court. (Id. at pp. 1026-1027, 232 Cal. Rptr. 519, 728 P.2d 1154.)
In other words, the law regards any minor, mentally incapacitated or not, so long as he or she is in the custody and under the control of his or her parents, as being under the care of a guardian within the meaning of section 911.4, subdivision (c). But what of a minor who, whether or not mentally incapacitated, is not in the custody and under the control of his or her parents? Who then is authorized to act in the minor's interests in the same way as a parent or guardian?
Here, of course, the viability of County's position depends upon our conclusion that independent counsel in general, and, in particular, the IC here, was authorized to act in these Minors' interests in the same way, and as to the same scope, as a parent or guardian. When the question presented by this petition is reduced to this simple issue, the answer becomes apparent: independent counsel, no more than any other provider of a specialized service, such as a doctor, dentist, or therapist, does not, and cannot, represent a minor's interests in the same way, and as to the same scope, as either a parent or guardian.
Here, Minors' parents had no legal right to custody and control of Minors until the dependency case ended on January 23, 1998. Nor, for that matter, did the IC have the legal right to Minor's custody and control. Officially, as dependent minors, Minors' legal custody and control was in the hands, metaphorically speaking, of the juvenile court, and, practically speaking, the juvenile court simply cannot personally monitor all the needs of the many dependents under its custody and control. It relies on the County, through the Department of Children and Family Services to discharge that function. It is patently obvious, however, that DCFS, as the department of County responsible for *477 the proper care of Minors, was not a proper agency to oversee the IC appointed to investigate and consider whether to file litigation against such agency. Nor, for that matter, because of this conflict of interest, would it have been appropriate even to expect County to bring the need for a guardian ad litem to the juvenile court's attention. (See In re Marriage of Caballero (1994) 27 Cal. App. 4th 1139, 1149, 33 Cal. Rptr. 2d 46.) Therefore, the juvenile court should have appointed a guardian ad litem to oversee the work being done by the IC, and it should have done so shortly before or after the IC was appointed.[8]
A guardian ad litem is an officer of the court appointing him or her (Sarracino v. Superior Court (1974) 13 Cal. 3d 1, 13, 118 Cal. Rptr. 21, 529 P.2d 53; Torres v. Friedman (1985) 169 Cal. App. 3d 880, 887, 215 Cal. Rptr. 604), and is essentially an agent of the court, whose duty it is to protect the rights of a minor. (Torres v. Friedman, supra, 169 Cal.App.3d at p. 887, 215 Cal. Rptr. 604; Berry v. Chaplin (1946) 74 Cal. App. 2d 652, 657, 169 P.2d 442.) The guardian ad litem has the right to control the litigation on behalf of the minor, subject to the court's approval. (De Los Santos v. Superior Court (1980) 27 Cal. 3d 677, 683, 166 Cal. Rptr. 172, 613 P.2d 233; Torres v. Friedman, supra, 169 Cal.App.3d at p. 887, 215 Cal. Rptr. 604.) The guardian ad litem's powers include the right to compromise or settle the action (Code Civ. Proc., § 372, subd. (a)), to control the procedural steps incident to the conduct of the litigation (Cloud v. Market Street Ry. Co. (1946) 74 Cal. App. 2d 92, 101-103, 168 P.2d 191), and, with the approval of the court, to make stipulations or concessions that are binding on the minor, provided they are not prejudicial to the latter's interests. (Robinson v. Wilson (1974) 44 Cal. App. 3d 92, 99-107, 118 Cal. Rptr. 569.) In other words, these cases teach that a guardian ad litem's role is more than an attorney's but less than a party's, in that the guardian oversees any attorney representing minor's litigation-related interests and may make tactical and even fundamental decisions affecting the litigation, but always with the interest of the minor in mind. (In re Marriage of Caballero, supra, 27 Cal.App.4th at p. 1149, 33 Cal. Rptr. 2d 46.)
County urges that the IC here were, for all intents and purposes, the equivalent of a guardian ad litem. As noted above, the juvenile court appointed IC pursuant to Welfare and Institutions Code Section 317, subdivision (e) to represent Minors "in all potential third party personal injury . . . claims and probate matters on minor's [sic] behalf," and required IC to "provide reports to both the court and the minors' dependency court attorney on the progress of the case on a regular basis." Welfare and Institutions Code section 317 gives the juvenile court authority to appoint counsel to represent "the parent, guardian, or child at the detention hearing and at all subsequent proceedings before the juvenile court." (§ 317, subd. (d).) The issue raised by County's argument is whether such appointment of IC takes the *478 place of the appointment of an actual guardian ad litem to oversee the work of IC. We think not.
While it is true that subdivision (e) currently provides, and provided at all relevant times, that Welfare and Institution Code section 317, appointed counsel "shall investigate the interests of the child beyond the scope of the juvenile proceeding and report to the court other interests of the child that may need to be protected by the institution of other administrative or judicial proceedings" (italics added), this duty imposed on IC cannot be said to charge IC with the same responsibilities as a guardian ad litem. In fact, in 1998, the Legislature added the following sentence to section 317, subdivision (e): "The attorney representing a child in a dependency proceeding is not required to assume the responsibilities of a social worker and is not expected to provide nonlegal services to the child." (Assem. Bill No. 2316 (1997-1998 Reg. Sess.), enacted as Stats.1998, c. 900, § 2.) In connection with amending section 317 to add this language, Assembly Bill 2316 noted that "[u]nder existing law, the attorney appointed to represent a dependent child is required to be given access to all records relevant to the case that are maintained by state or local public agencies, [¶] This bill would require all information requested from a child protective agency regarding a child who is in protective custody or from a child's guardian ad litem, to be provided to the child's counsel within 30 days of the request." (A.B. 2316, Legislative Counsel's Digest, para. (2).) In other words, the Legislature has always seen counsel appointed under section 317 as being only legal counsel, and not as a replacement for either DCFS or a guardian ad litem.[9] In our view, this amendment was simply declarative of existing law.
*479 Accordingly, we conclude that the appointment of the IC here left Minors with no parent or guardian, within the meaning of section 911.4, subdivision (c), to oversee the matter of their potential claim and lawsuit against County and others. Therefore, the time within which Minors had to present their application to file a late claim did not begin to run until they had a parent or guardian legally able to represent their interests; that did not occur until January 23, 1998, when the dependency case terminated. Minors' new counsel filed such application on January 25, 1999. The one year period expired on January 23, 1999. This is the date Minors had a parent or guardian capable of representing their interests; that date fell on a Saturday, and, accordingly, the application presented on the following Monday, January 25,1999, was timely. (Code Civ. Proc., § 12a.)
3. The Trial Court Did Not Abuse Its Discretion by Granting Minors' Petition To Be Relieved from the Claim-Filing Requirement
If a claim is denied, section 946.6 provides that the party may petition the court for an order relieving the party from the claim-filing requirement. Pursuant to section 946.6, subdivision (c), the court must grant the petition if it finds that the application (1) was made within a reasonable time not to exceed that specified in section 911.4, subdivision (b), in other words, one year after the accrual of the cause of action; (2) was denied or deemed denied; and (3) was late for one of the reasons specified in section 911.6, subdivision (b). (Kagy v. Napa State Hospital (1994) 28 Cal. App. 4th 1, 4-5, 33 Cal. Rptr. 2d 74a.)
A trial court has broad discretion in ruling on a petition for relief from the claim-filing requirement as long as the issue is whether the late claim was presented within a "reasonable time" not to exceed one year after the accrual of the cause of action. (See Kagy v. Napa State Hospital, supra, 28 Cal.App.4th at pp. 4-5, 33 Cal. Rptr. 2d 741; Favorite v. County of Los Angeles (1998) 68 Cal. App. 4th 835, 839, 80 Cal. Rptr. 2d 656; Christopher P. v. Mojave Unified School District (1993) 19 Cal. App. 4th 165, 169-170, 23 Cal. Rptr. 2d 353.) When an application to file a late claim is itself not timely filed, however, the court is without jurisdiction to grant relief under section 946.6. (Kagy v. Napa State Hospital, supra, 28 Cal. App.4th at pp. 3-4, 33 Cal. Rptr. 2d 741; Greyhound Lines v. County of Santa Clara (1986) 187 Cal. App. 3d 480, 488, 231 Cal. Rptr. 702.) The reason for the one-year statutory requirement is to "protect[ ] a governmental entity from having to respond to a claim many years after the accrual of the action." (Hernandez v. County of Los Angeles (1986) 42 Cal. 3d 1020, 1030, 232 Cal. Rptr. 519, 728 P.2d 1154; see also Williams v. Mariposa County Unified School District (1978) 82 Cal. App. 3d 843, 850, 147 Cal. Rptr. 452 [the time limit for filing an application with a public entity under the Act is comparable to a statute of limitations].)
Cases that have dealt with the tolling aspects of section 911.4, subdivision (b) suggest that the one-year time period within which to present a late claim will be tolled when the claimant does not have a representative capable of representing his or her interests. In other words, the cases indicate that the purpose of the tolling provisions is to ensure that the claimant is properly represented by one authorized to act on his or her behalf. For example, in Hernandez v. County of Los Angeles, supra, *480 a claim was not timely filed on behalf of a minor suffering profound mental retardation and severe physical handicaps allegedly caused by negligent medical care at a county hospital immediately before, during and after his birth. The minor argued that because he was mentally incapacitated during the entire time period of his injury, the time for presenting a late claim was tolled until his mother was appointed as his guardian ad litem. The court disagreed, concluding,: "By explicitly providing that the `time during which the person who sustained the alleged injury . . . is a minor shall be counted' . . . for purposes of the late-claim filing period, the Legislature has clearly indicated that it did not intend to authorize the filing of a claim on behalf of a child many years after the accrual of his cause of action. [Citation.] With respect to such an injured child, the Legislature evidently concluded that it was reasonable to expect that a late-claim application would be filed on his behalf by a parent or another adult responsible for the child's care within one year of the accrual of his cause of action." (42 Cal.3d at p. 1025, 232 Cal. Rptr. 519, 728 P.2d 1154, italics added.)
Therefore, the Hernandez court concluded that formal appointment of a guardian ad litem is not a prerequisite before a minor's tort claim under the Act can be presented, because, if a minor has a parent or another adult responsible for the child's care, that minor may not invoke the tolling provisions because that person can present a claim on the minor's behalf. As summarized in Reyes v. County of Los Angeles (1988) 197 Cal. App. 3d 584, 593, 243 Cal. Rptr. 35: "The fact that a minor is not permitted to prosecute a claim through the courts without a guardian ad litem does not alter this result, and the time for filing a late claim is not tolled until the minor's parent is formally appointed guardian ad litem by a court." (Italics added.)
The facts in both the Hernandez and the Reyes case are readily distinguishable from the facts here, because Minors here had no parent, or legal parent equivalent such as a guardian, legally capable to act on their behalf. Two other cases, Kagy v. Napa State Hospital, supra, 28 Cal. App. 4th 1, 33 Cal. Rptr. 2d 741, and Favorite v. County of Los Angeles, supra, 68 Cal. App. 4th 835, demonstrate some of the other parameters applicable in determining whether the one-year period should be toiled. In Kagy, the court held that the one-year period was tolled because the public guardian appointed for the incapacitated claimant lacked the authority to file a suit on behalf of the claimant and therefore could not adequately represent the claimant's interests. (28 Cal.App.4th at pp. 6-7, 33 Cal. Rptr. 2d 741.) In Favorite, the court held the claims statute was tolled where the conservator appointed for the incapacitated claimant was incapable of acting on the claimants' behalf because the claimant could not communicate with the conservator regarding the nature and extent of her injuries. (68 Cal.App.4th at pp. 840-841, 80 Cal. Rptr. 2d 589.) In other words, tolling will be allowed if the minor claimant does not have, in place of a parent with the legal capacity to represent the minor, a representative fully equivalent to a parent, in other words, a guardian, who is authorized and capable of fully representing the minor claimant's interests.
In the present case, Minors contend that IC appointed by the juvenile court was insufficient or incapable of acting on their behalf without a formally-appointed guardian *481 ad litem. As our discussion above reflects, we agree. The IC could act in terms of actually prosecuting an action on Minors' behalf, but Minors could not appear in court except by and through a guardian ad litem, and section 911.4 presupposes claims must be presented by a parent, guardian or conservator. The IC are not appointed as guardians, guardians ad litem, or conservators, and the role of counsel appointed for a special litigation project on the one hand, and the role of parent, guardian, guardian ad litem, and conservator on the other, are simply not equivalent. In fact, the two roles may present a conflict of interests: parents, guardians and, as to litigation in particular, guardians ad litem, are charged with representing a minor's interests, even against the interest of all others who may be acting against, or failing to act in, the minor's best interests.
Here, for example, practically speaking, if IC was knowingly not actually representing Minors' best interests, IC was not likely to complain about such misconduct to the juvenile court, and if IC was doing so negligently, then presumably the IC would not even be aware of the need to complain. Thus, the juvenile court's appointment of IC under Welfare and Institutions Code Section 317, subdivision (e) did not take the place of appointing a guardian ad litem for purposes of section 911.4, subdivisions (b) and (c), and the case law construing those subdivisions.
Our holding is not only in keeping with the language of the relevant statutes and case law, but also serves the salutary purpose of not penalizing dependent minors in general for the omissions, if any, of their appointed counsel during periods when no parent or guardian is charged with the oversight of appointed counsel's conduct. This result is also in keeping with the cases that indicate that the Legislature intends to accord special solicitude to the claims of an injured minor by requiring courts to protect minors from the neglect or ignorance of the adults in charge of their legal claims "so long as the application is filed with the entity within one year of the accrual of the cause of action," and so long as there is actually an adult specifically charged with protecting the minors' overall interests above all else. (Hernandez v. County of Los Angeles, supra, 42 Cal.3d at pp. 1028-1029, 232 Cal. Rptr. 519, 728 P.2d 1154; see also Tammen v. County of San Diego (1967) 66 Cal. 2d 468, 479-480, 58 Cal. Rptr. 249, 426 P.2d 753.) The cases only penalize minors under the care of an authorized representative, in other words, a parent or a guardian, when such representative has knowledge concerning the claim but fails to present the claim within the one-year limitation period of section 911.4. (See Horn v. Chico Unified School District (1967) 254 Cal. App. 2d 335, 339, 61 Cal. Rptr. 920 [concluding that failure of minor's parent to present tort claims to school board within one year of injury rendered board and court powerless to grant relief under the Act]; Carr v. State of California (1976) 58 Cal. App. 3d 139, 144-145, 129 Cal. Rptr. 730 [concluding that failure of parent to present tort claims on behalf of mentally incapacitated minor within one year of injury barred claims against state].) And, of course, this holding is in keeping with the Legislature's recent amendment of section 911.4 (see footnote 7, ante) that recognizes the special problems faced by minors who are dependents of the juvenile court during the time that they may have reason to file a tort claim.
*482 DISPOSITION
The alternative writ heretofore issued on March 13, 2000, is discharged. The petition for writ of mandate seeking reversal of the trial court's original order granting Minors' petition is denied. However, because the trial court has already responded to our alternative writ by vacating its original order, and has entered a new order denying Minors' petition, a writ of mandate shall issue directing the trial court to vacate such subsequent order and to reinstate its original order granting Minors' petition. Minors are entitled to file their civil action despite County's denial of their application to present a late claim. The stay heretofore issued on March 13, 2000, shall be vacated as of the date the remittitur is filed herein. Costs are awarded to Minors.
KLEIN, P.J., concurs.
KITCHING, J.
I respectfully dissent. I would grant the petition because the facts of this case show the juvenile court's appointment of independent counsel under Welfare and Institutions Code section 317, subdivision (e) was for the express and specific purpose of pursuing all potential third party personal injury claims on behalf of the dependent minors. Thus, because independent counsel were properly authorized and capable of pursuing the minors' tort claims, the time to present such claims was not tolled beyond the date counsel were appointed.
1. The Time for Filing a Tort Claim Is Tolled Only When There Is Inadequate Representation.
The County of Los Angeles (County) contends the minors failed to present their late claim within one year of the accrual of their cause of action, i.e., within one year from the appointment of independent counsel on January 7, 1998. The minors, on the other hand, contend that even though they had court-appointed independent counsel to pursue their tort claims, it was necessary for the juvenile court to appoint a guardian ad litem to prosecute such claims.
The central issue in this case is whether the minors' tort claims against the County were tolled by virtue of the juvenile court's failure to appoint a guardian ad litem despite the fact that it appointed independent counsel to pursue such claims on their behalf. Cases that have dealt with the tolling provisions of the California Tort Claims ActGovernment Code section 911.4, subdivision (b)[1]hold the one-year time period within which to present a late claim will be tolled when the claimant does not have a representative capable of representing his or her interests. These cases indicate that the purpose of the tolling provisions is to ensure the claimant is properly represented by one authorized to act on his or her behalf.
For example, in Hernandez v. County of Los Angeles (1986) 42 Cal. 3d 1020, 232 Cal. Rptr. 519, 728 P.2d 1154 (hereinafter Hernandez), a claim was not timely filed on behalf of a minor suffering profound mental retardation and severe physical handicaps allegedly caused by negligent medical care at a county hospital immediately before, during and after his birth. The minor argued that because he was mentally incapacitated during the entire time period of his injury, the time for presenting a late claim was tolled until his mother was appointed as his guardian ad litem. The court disagreed, concluding: "By explicitly providing that the `time during which the person who sustained the alleged injury . . . is a minor shall be counted' . . . for purposes of the late-claim *483 filing period, the Legislature has clearly indicated that it did not intend to authorize the filing of a claim on behalf of a child many years after the accrual of his cause of action. [Citation.] With respect to such an injured child, the Legislature evidently concluded that it was reasonable to expect that a late-claim application would be filed on his behalf by a parent or another adult responsible for the child's care within one year of the accrual of his cause of action." (Id. at p. 1025, 232 Cal. Rptr. 519, 728 P.2d 1154 [italics omitted and added]; see also Kagy v. Napa State Hospital (1994) 28 Cal. App. 4th 1, 5, 33 Cal. Rptr. 2d 741 ["Section 911.4 . . . recognizes that an injured person may choose not to apply for leave to file a late claim, but contemplates that the choice should be made by someone having the capacity to make an intelligent choice"].)
Thus, Hernandez found that formal appointment of a guardian ad litem is not necessary to present a governmental tort claim. If a minor has a parent or another adult responsible for the child's care, that minor may not invoke the tolling provisions because that person can present a claim on the minor's behalf. Summarizing the Hernandez conclusion, we stated, "[t]he fact that a minor is not permitted to prosecute a claim through the courts without a guardian ad litem does not alter [the result in Hernandez], and the time for filing a late claim is not tolled until the minor's parent is formally appointed guardian ad litem by a court." (Reyes v. County of Los Angeles (1988) 197 Cal. App. 3d 584, 593, 243 Cal. Rptr. 35.) Consequently, while appointment of a guardian ad litem is a prerequisite to a minor's filing a civil action (Code Civ. Proc., § 372, subd. (a)), a guardian ad litem is not necessary in order to present a governmental tort claim.
In Kagy v. Napa State Hospital, supra, 28 Cal. App. 4th 1, 33 Cal. Rptr. 2d 741, the court held the one-year period was tolled because the public guardian appointed for the incapacitated claimant lacked the authority to file a suit on behalf of the claimant and therefore could not adequately represent the claimant's interests. (Id. at pp. 6-7, 33 Cal. Rptr. 2d 741.) Likewise, in Favorite v. County of Los Angeles (1998) 68 Cal. App. 4th 835, 80 Cal. Rptr. 2d 656, the court held the claims statute was tolled where the conservator appointed for the incapacitated claimant was incapable of acting on the claimant's behalf because the claimant could not communicate with the conservator regarding the nature and extent of her injuries. (Id. at pp. 840-841, 80 Cal. Rptr. 2d 656.) Consequently, tolling will be allowed if the claimant does not have a representative who is authorized to represent the claimant's interests or the representative is incapable of doing so.
The minors essentially argue that independent counsel appointed by the juvenile court was not capable of acting on their behalf without a formally appointed guardian ad litem. Thus, the minors contend that their claims accrued on January 23, 1998, when their dependency status terminated. But as the case law indicates, a minor does not need a guardian ad litem in order to file a governmental tort claim, as opposed to a civil action, as long as that minor has a parent or another adult responsible for his or her care who can file a tort claim on his or her behalf. As a result, the significant issue here is whether the juvenile court's appointment of independent counsel under Welfare and Institutions Code section 317, subdivision (e) is consistent with the purposes of section 911.4, subdivision (b), and the case law construing it.
2. Independent Counsel Were Authorized and Knowledgeable Representatives.
Welfare and Institutions Code section 317 gives the juvenile court authority to *484 appoint counsel to represent "the parent, guardian, or [minor] at the detention hearing and at all subsequent proceedings before the juvenile court." (Well & Inst. Code, § 317, subd. (d).) Subdivisions (c) and (e) provide, however, a much more expansive role of appointed counsel for the minor that extends beyond the dependency proceedings.
If the juvenile court finds that the minor will "benefit from the appointment of counsel," the court must appoint counsel to represent the minor's interests. (Welf. & Inst.Code, § 317, subd. (c).) Such counsel cannot represent another party or the county agency whose interests conflict with the minor's interests. (Ibid.) Subdivision (c) also provides that "[a] primary responsibility of any counsel appointed to represent a [minor] pursuant to this section shall be to advocate for the protection, safety, and physical and emotional well-being of the [minor]." Subdivision (e) further provides: "The counsel for the [minor] shall be charged in general with the representation of the [minor's] interests. . . . In any case in which the [minor] is four years of age or older, counsel shall interview the [minor] to determine the [minor's] wishes and to assess the [minor's] well being, and shall advise the court of the [minor's] wishes. Counsel for the [minor] shall not advocate for the return of the [minor] if, to the best of his or her knowledge, that return conflicts with the protection and safety of the [minor]. In addition counsel shall investigate the interests of the [minor] beyond the scope of the juvenile proceeding and report to the court other interests of the [minor] that may need to be protected by the institution of other administrative or judicial proceedings. . . . The court shall take whatever appropriate action is necessary to fully protect the interests of the [minor]." (Italics added.)
In Akkiko M. v. Superior Court (1985) 163 Cal. App. 3d 525, 209 Cal. Rptr. 568 (hereinafter Akkiko M.), the court considered a minor's challenge of an order dismissing her counsel appointed under former Welfare and Institutions Code section 318. In reviewing the provisions of Welfare and Institutions Code section 318, which are now essentially part of Welfare and Institutions Code section 317, the court noted as follows: "It is apparent that many of the responsibilities normally associated with a guardian ad litem have been placed upon counsel. In light of the duties placed upon counsel by [Welfare and Institutions Code] section 318, we reject the Department's argument that, as guardian ad litem, the Department controls litigation and retention of counsel for an abused or neglected minor. The Legislature intended that independent counsel, not the Department in its role as guardian ad litem, would control litigation and represent the interests of the abused or neglected child." (163 Cal.App.3d at p. 530, 209 Cal. Rptr. 568, italics added; see also In re Alexis W. (1999) 71 Cal. App. 4th 28, 36, 83 Cal. Rptr. 2d 488. ["`The role of counsel for the child [in dependency proceedings] is not merely to act as a mouthpiece for the minor. . . .'"])[2]
Therefore, independent counsel appointed under Welfare and Institutions Code section 317, subdivision (e), has broad duties to represent the dependent minor's *485 best interests, including interests outside the scope of the juvenile proceeding. In addition, the juvenile court has broad authority and responsibility to "take whatever appropriate action is necessary to fully protect the interests of the [minor]." (Ibid) The broad duties of appointed counsel are, I believe, consistent with and substantially equivalent to the role of a guardian ad litem, at least with respect to filing a governmental tort claim. As a result, the appointment of independent counsel serves the purposes of section 911.4 and the case law because the minor has a representative that is sufficiently authorized and knowledgeable about his or her interests to pursue tort claims on his or her behalf.
In the present case, the juvenile court expressly granted independent counsel the authority and responsibility to investigate and pursue tort claims against third parties. The juvenile court file in this case shows the juvenile court's order of January 7, 1998 appointing independent counsel for the minors was directly prompted by reports filed with the juvenile court. Those reports indicated that the minors had alleged abuse by their foster mother, Sandra Rodriguez. For example, a July 25, 1997, Judicial Review Report disclosed that in May 1996, "all three minors had disclosed possible abuse by a foster mother alleged to have occurred while they were [sic] foster care." The report further disclosed that all three minors were interviewed by a social worker from the Department of Children and Family Services (DCFS) who agreed that such abuses did occur. As a result of this report, on July 25, 1997, the juvenile court ordered DCFS to investigate the foster home and provide an incident report. Even though the minors already had counsel representing them within the context of the juvenile court proceedings, the juvenile court subsequently appointed independent counsel to protect the minors' interests with respect to their tort claims.
By ordering appointed counsel to "provide reports to both the court and the minors' dependency court attorney on the progress of the case on a regular basis," the juvenile court expected that counsel would take all the appropriate steps necessary to protect the minors' tort claims against third parties. In the words of the statute, by appointing independent counsel to pursue the minors' tort claims, the trial court took the "appropriate action . . . necessary to fully protect the interests of the [minor]." (Welf. & Inst.Code, § 317, subd. (e).)
To hold that the appointed counsel in this case were not authorized or adequate to pursue tort claims against the County would not only ignore the broad duties of independent counsel under Welfare and Institutions Code section 317 and the express provisions of the juvenile court's order appointing such counsel, but would also ignore the policy behind Government Code section 911.4. The purpose behind section 911.4 is to protect a governmental entity from having to respond to a claim many years after the accrual of the action. (Hernandez, supra, 42 Cal.3d at p. 1030, 232 Cal. Rptr. 519, 728 P.2d 1154.) The statute, as interpreted by case law, accommodates a claimant by tolling the one-year provision when that claimant's interests are not adequately represented. Accepting the minors' argument that they needed a guardian ad litem in order to present their governmental tort claims against the County allows independent counsel, expressly appointed for such purpose, to idly sit on the minors' rights for many years simply because a guardian ad litem was not appointed. The purpose of section 911.4 in preventing stale claims against a public entity is not served by such a result.
*486 I realize that rejecting the minors' tolling argument would effectively penalize them because a timely claim was not filed on their behalf. However, while the cases indicate that the Legislature intended to accord special solicitude to the claims of an injured minor so that a court may not attribute to the minor the neglect or ignorance of his or her parents or attorney, such special solicitude is applicable only "so long as the application is filed with the entity within one year of the accrual of the cause of action." (Hernandez, supra, 42 Cal.3d at pp. 1028-1029, 232 Cal. Rptr. 519, 728 P.2d 1154; see also Tammen v. County of San Diego (1967) 66 Cal. 2d 468, 479-480, 58 Cal. Rptr. 249, 426 P.2d 753.) If a minor has an authorized representative with knowledge concerning the claim who fails to present the claim within the one-year limitation period of section 911.4, a public entity, as well as a court, is powerless to grant relief. (See, e.g., Horn v. Chico Unified Sch. Dist. (1967) 254 Cal. App. 2d 335, 339, 61 Cal. Rptr. 920 [concluding that failure of minor's parent to present tort claims to school board within one year of injury rendered board and court powerless to grant relief under the Act]; Carr v. State of California (1976) 58 Cal. App. 3d 139, 144-145, 129 Cal. Rptr. 730 [concluding that failure of parent to present tort claims on behalf of mentally incapacitated minor within one year of injury barred claims against state].)
3. Conclusion.
In Hernandez, the court held the one-year claims period under section 911.4 is not tolled if a mentally incapacitated minor has parents capable of acting on his or her behalf. In other words, according to our Supreme Court, "a parent or another adult responsible for the child's care" is expected to file a claim on behalf of a minor within the jurisdictional time constraints of section 911.4. (Hernandez, supra, 42 Cal.3d at p. 1025, 232 Cal. Rptr. 519, 728 P.2d 1154.) Here, the juvenile court appointed independent counsel to act on the minors' behalf in filing tort claims against third parties. The minors' cause of action accrued at that time. I see no reason why, for purposes of presenting a governmental tort claim, the independent counsel appointed by the juvenile court in this case occupy a different position from that of the minor's parent in Hernandez. In both cases, a late claim is barred where the minors have adults who are capable of pursuing claims on their behalf and are authorized to do so.
Unlike Kagy v. Napa State Hospital, supra, 28 Cal.App.4th at pages 6-7, 33 Cal. Rptr. 2d 741, or Favorite v. County of Los Angeles, supra, 68 Cal.App.4th at pages 840-841, 80 Cal. Rptr. 2d 656, where the courts held that the one-year period was tolled because the conservator or public guardian appointed for the incapacitated claimant lacked the authority or sufficient knowledge of the claim to file a suit on behalf of the claimant, the independent counsel appointed in the present case not only had the statutory obligation to represent the minors' interests beyond the scope of the juvenile proceeding, but they also had the express authority of the juvenile court to present tort claims on the minors' behalf and keep the juvenile court apprised of the case. To hold that a guardian ad litem or full legal custody of the parents were required before the claims began to accrue is to ignore the importance of independent counsel under Welfare and Institutions Code section 317 and the express order of the juvenile court in this case.
NOTES
[1] The California Tort Claims Act is found at Division 3.6 of Title 1 of the Government Code. All further statutory references are to the Government Code, except as otherwise indicated.
[2] The appointment of counsel for the minors was made by the trial court pursuant to Welfare and Institutions Code, section 317, subdivision (e).
[3] The following facts are taken from the Clerk's Transcript, and from the allegations of Minors' tort claim and complaint.
[4] The abuse allegedly included beatings and malnutrition, being forced to live in a house infested with cockroaches, and being infected by lice. Minor Crystal further claimed that she attempted suicide by an overdose of pills, was hospitalized, but then was returned to the Rodriguez home where she continued to suffer depression and anxiety. Minor Anita also claimed that Rodriguez's husband broke her hip when she was three years old, and that the injury required a body cast for eight weeks.
[5] Minors, by and through their mother acting as guardian ad litem, also filed a complaint in the superior court raising the same tort claims against County, Sandra Rodriguez, and numerous County employees, and others.
[6] The parties agree that Minors are not mentally incapacitated, to the extent such term implies mental retardation or some form of mental impairment not simply associated with lack of understanding because of an immature age.
[7] Section 911.4 was amended in October 1999 to add subdivision (d), which provides further tolling of the one year period if the claimant "is detained or adjudged to be a dependent child of the juvenile court" and if certain conditions are met. Minors' counsel does not dispute that subdivision (d) is inapplicable in this case because it was enacted after Minors had filed their late claim and after County rejected it.
[8] As to the time frame within which a guardian should have been appointed, Code of Civil Procedure section 373, subdivision (a) only provides that a guardian ad litem must be appointed before a summons is issued. The obvious purpose for appointment of a guardian before a summons is issued is to make sure that the guardian is in place to review and oversee counsel's initial work on behalf of the minor. Therefore, it logically follows that when the filing of a claim is a prerequisite to bringing suit (and hence to the issuance of a summons), a guardian ad litem also must be appointed before any claim must be filed. (Civ.Code, § 3511 ["Where the reason is the same, the rule should be the same"].)
[9] Nor is the case of Akkiko M. v. Superior Court (1985) 163 Cal. App. 3d 525, 209 Cal. Rptr. 568 a compelling reason for concluding that IC takes the place of a guardian ad litem. In Akkiko M., the court considered a minor's challenge of an order recusing her counsel appointed under former section 318 from continuing to represent her. (While Welfare and Institutions Code former section 318 has been repealed, many of its provisions have been added to section 317.) (former section 318 authorized the juvenile court to appoint counsel in cases where the dependency petition alleged abuse and neglect.) In reviewing the provisions of section 318, which are now essentially part of section 317, the court noted as follows: "It is apparent that many of the responsibilities normally associated with a guardian ad litem have been placed upon counsel. In light of the duties placed upon counsel by section 318, we reject the Department's argument that, as guardian ad litem, the Department controls litigation and retention of counsel for an abused and neglected minor. The Legislature intended that independent counsel, not the Department in its role as guardian ad litem, would control litigation and represent the interests of the abused or neglected child." (Akkiko M., supra, 163 Cal.App.3d at p. 530, 209 Cal. Rptr. 568 [italics added]; see also In re Alexis W. (1999) 71 Cal. App. 4th 28, 36, 83 Cal. Rptr. 2d 488 ["The role of counsel for the child [in dependency proceedings] is not merely to act as a mouthpiece for the minor . . ."].)
The fact that IC, rather than DCFS, controls litigation and represents the litigation-related interests of dependent minors, does not mean that IC actually takes the place of a guardian ad litem to the extent a guardian ad litem is charged with making sure that the IC is vigorously representing the minor's interests. Counsel, not the client, always controls any litigation. (People v. Masterson (1994) 8 Cal. 4th 965, 969, 35 Cal. Rptr. 2d 679, 884 P.2d 136.) Nonetheless, it is the client, not counsel, who must make certain crucial decisions (ibid.), and who must oversee IC's work and make sure the client's case does not languish under the press of IC's other cases. Obviously, a dependent minor cannot make those crucial decisions, nor, for that matter, should DCFS make them when DCFS itself is a potential target of any litigation. And it is of course implausible to expect either a dependent minor, or DCFS, to make sure IC is moving forward with litigation against DCFS.
[1] Further statutory references are to the Government Code.
[2] The majority distinguish Akkiko M. by concluding that even though independent counsel controls litigation and represents the litigation interests of dependent minors, such counsel does not actually take the place of a guardian ad litem. But neither section 911.4 nor the case law require a guardian ad litem before a minor can present a tort claim. As already discussed, the case law merely requires an adult responsible for the minor who is authorized and capable of protecting the minor's interests. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261490/ | 111 Cal. Rptr. 2d 502 (2001)
91 Cal. App. 4th 1324
The PEOPLE, Plaintiff and Respondent,
v.
Jerry Wayne MORGAN, Defendant and Appellant.
No. C030469.
Court of Appeal, Third District.
August 30, 2001.
Review Denied December 12, 2001.[*]
*504 S. Lynne Klein, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson and Jo Graves, Senior Assistant Attorneys General, Carlos A. Martinez and Virna DePaul, Deputy Attorneys General, for Plaintiff and Respondent.
*503 OPINION ON REHEARING
BLEASE, Acting Presiding Justice.
This case involves the validity of defendant's admission of two 30-year-old felony convictions, as "strikes," charged as violations of a section of the Arkansas criminal statutes which did not exist at the time of the alleged convictions.
On the day scheduled for trial defendant pleaded no contest to inflicting corporal injury on a cohabitant (Pen.Code, § 273.5, subd. (a))[1] and admitted, as "strikes" (§ 1170.12), two Arkansas kidnapping convictions, charged as violations of "Section 5-11-102 of the Arkansas Criminal Code. . . ." In return for his plea, the remaining count of arson (§ 451, subd. (b)) and two other counts alleged as strikes, were dismissed. The trial court, in the absence of the record of the Arkansas convictions, denied relief under People v. Superior Court (Romero) (1996) 13 Cal. 4th 497, 53 Cal. Rptr. 2d 789, 917 P.2d 628 and imposed a term of 25 years to life in state prison.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requested review by this court pursuant *505 to People v. Wende (1979) 25 Cal. 3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071. Defendant was advised by counsel of the right to file a supplemental brief and did so, raising 10 issues, challenging inter alia the validity of his plea. Appellate counsel filed briefs in response to an inquiry from this court concerning defendant's prior convictions and obtained a certificate of probable cause from the trial court.[2]
We have reviewed the record for error. We hold, given the serious penal consequences of the "Three Strikes" law, that it is the duty of defendant's counsel, in advance of a plea or trial predicated upon convictions charged as strikes, to determine, on the basis of records which are necessary to an informed decision, whether the convictions are strikes under the California law, to advise his or her client accordingly, and that it is ineffectiveness of counsel to fail to do so.
We conclude on this record that trial counsel was ineffective in failing, before the entry of plea, to obtain the records of the out-of-state convictions, from which it could be determined whether they were strikes under the California law. In the absence of that record, as the trial court noted, "nobody in this courtroom really has an idea of what occurred in . . . Arkansas that gave you those convictions." As a consequence, counsel for the defendant permitted his client to admit to convictions as strikes under an Arkansas law which did not apply to his offenses. Accordingly, we find there is a probability of a different outcome sufficient to undermine our confidence in the outcome of the plea bargain. In view of defendant's request to vacate the plea, the remedy is to restore the case to the point in the proceedings prior to the entry of plea.
Accordingly, we will reverse the judgment and sentence, set aside the plea, and remand the case for proceedings consistent with this opinion.
FACTS AND PROCEDURAL BACKGROUND
I
The Facts of the Present Offense
The facts of the present offense are taken from the preliminary hearing. On December 11, 1997, Officer Michael Stufflebeam of the Redding Police Department interviewed Virginia Morgan, defendant's common-law wife. She told Stufflebeam she and defendant had an argument the previous day. Defendant slapped Virginia in the face a couple of times. She became afraid and called "911." Defendant insisted they leave their residence. They began driving south on Interstate 5. Just north of Red Bluff, defendant struck Virginia in the face three times with his fist. She stopped the car on the off-ramp and got out. Defendant moved behind the wheel and drove off. Officer Stufflebeam observed bruising and swelling underneath Virginia's right eye.
II
The Plea Bargain
Defendant, 53 years old at the time of sentence, was charged by a complaint, filed December 18, 1997, which alleged inter alia that he inflicted corporal injury on a *506 cohabitant and that he suffered two prior kidnapping convictions. The first was a conviction of "the crime of Kidnapping, in violation of Section 5-11-102 of the Arkansas Criminal Code, case no. 2434, occurring in the County of Poinsett, State of Arkansas, on or about the 9th day of October, 1970, within the meaning of Penal Code Section 1170.12." The second was a conviction of "the crime of Kidnapping, in violation of Section 5-11-102 of the Arkansas Criminal Code, case no. 2435, occurring in the County of Poinsett, State of Arkansas, on or about the 8th day of March, 1971, within the meaning of Penal Code Section 1170.12." The complaint was deemed an information and a copy was provided defendant's counsel. A trial date was scheduled on February 27, 1998. The district attorney informed the court the trial could "go to a fourth [day] because of issues on the priors . . . ."
On March 3, 1998, the parties appeared for trial and defendant's counsel informed the court that "[t]he three strikes is an issue." The defendant then made a Marsden motion. (People v. Marsden (1970) 2 Cal. 3d 118, 84 Cal. Rptr. 156, 465 P.2d 44.) He complained he had been in custody for 77 days and had been visited by his attorney only three times. A Marsden hearing was held. Defendant's counsel informed the court that defendant's "primary objection, and his lack of understanding, has related to the three strikes law." He said he informed defendant that "the time to attack the strikes would be a matter of sentencing, under Romero. That the District Attorney was having difficulty obtaining the paperwork from the State of Tennessee and the State of Arkansas and I could not make the motion without that kind of paperwork. And I certainly would have that paperwork in time for the trial. And as a matter of fact [the district attorney had just] produced . . . the bulk of the paperwork. . . ." Defendant complained: "I have severe problems with this man representing me for something that I may end up with 25 to life because he hasn't done his job in the last 77 days at all."
The court asked defendant's counsel: "Have you had the opportunity to evaluate whether or not these priors can be attacked in any fashion?" Counsel replied: "Well, I've examined them. The answer is yes. And they do have the certified judgments . . . ." The court then asked counsel: "Have you made a determination . . . whether the elements [of the out-of-state convictions] are the same as the elements in California?" Counsel answered "No." The Court: "Is that something you intend to do?" Answer: "Yes." The court denied the Marsden motion.
On the same day, March 3d, following the denial of the Marsden motion, defendant appeared in court with his counsel and entered a plea bargain. Defendant stated his desire to accept a plea bargain. He then pleaded no contest to one count of spousal abuse (§ 273.5) and admitted charges of two convictions for kidnapping in Arkansas in 1970 and 1971, subject to review pursuant to People v. Romero. A charge of arson and two other alleged strikes were dismissed as part of the plea bargain. At the time of the entry of plea the defendant was informed his "maximum punishment" was 25 years to life in state prison, but that it could be less if the court granted his "Romero" motion.
In taking the plea, the trial court noted the two kidnapping allegations, which he described as "a conviction suffered March 8, 1971, in the State of Arkansas, a kidnapping felony charge, and the second is another Arkansas kidnapping charge suffered October 8th, 1970." He asked defendant whether he would admit them and he answered:
"If there are two strikes, I got them, I guess. I got them. I'm guilty of what's *507 on that piece of paper [the complaint] . . . . When I read them, . . . I know what it's all about. You just read it to me."
Defendant then signed a change of plea form in which he pleaded no contest to "Count 2, P.C. 273.5" and admitted "Special Allegations 2 & 3 (P.C. 1170.12)" described as "(Kidnapping: 2 Strikes)" Later, the defendant admitted as true that he suffered a felony conviction for kidnapping in "Poinsett County, Arkansas, on March 8, 1971" and another "conviction for that on October 9th, 1970. . . ." No other details were set forth in taking the plea.
Five weeks later, on April 9, 1998, defendant appeared for sentencing. His counsel informed the court that, because of the age and out-of-state location of the priors, he had not been able to obtain information regarding the convictions and needed a continuance to obtain them. Notwithstanding the court's willingness to grant a continuance, defendant requested sentencing immediately.
In an attempt to persuade defendant to waive time for sentencing until the out-of-state information could be obtained, the court informed defendant that a hearing under Romero would not be possible after sentencing, and that, as circumstances then stood, the court intended to follow the probation officer's report and impose a 25to-life term. The court also informed defendant that "based on the record before [the court]," the court was not going to strike the priors.
In sentencing defendant the trial judge relied upon a cryptic probation report that cites to no provision of the Arkansas Criminal Code and includes no details regarding the priors. It purports to set forth "a synopsis of FBI record, as well as State of Arkansas . . . records," which consist of no more than that on "10/9/70" in "Poinsett County Circuit Court, AR 2434, 2435, 2436" defendant was convicted of "kidnap., 3 cts" and was sentenced "17 yrs Ark. Dept. of Corrections", from which he was "paroled 1/25/72." This is at variance with the complaint, as to the dates and number of offenses.
Regarding the motion to strike the priors, the judge said "I want to see what really happened in Tennessee and Arkansas those many years ago. I want to know what your record is between that time and now. All of those factors. I don't have any of those factors in front of me other than I know you have some serious priors, but they were a long time ago. And given that distance in time, nobody in this courtroom really has an idea of what occurred in Tennessee and/or Arkansas that gave you those convictions. So that's what they want to look at. [¶] So the answer is no, it's in my discretion to grant a Romero motion, but I can't exercise that discretion until I can look at what occurred in Tennessee and Arkansas and take a good look at your record between that time and. . . ."
The court further said that, because the priors were quite old, if the court had the additional information sought by counsel regarding the priors and defendant's interim record, the court might strike either or both of them. Notwithstanding these warnings from the court, defendant adamantly refused to waive time. The court then "declined" to strike either of the priors and sentenced defendant to a term of 25 years to life.
This appeal followed.
DISCUSSION
I
The Arkansas Convictions
Arkansas Code of 1987 Annotated Section 5-11-102
The Three Strikes law provides in pertinent part that "[a] prior conviction of *508 a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7." (§§ 667, subd. (d)(2); 1170.12, subd. (b)(2).) Because defendant's current offense occurred in 1997, the validity of an out-of-state prior felony conviction as a "strike" is determined by comparing the applicable California "statute[ ] as [it] existed on June 30, 1993" (§ 667, subd. (h); Ballot Pamp. Gen. Elec. (Nov. 8, 1994) text of Prop. 184, § 2, p. 65)with the law of the foreign state applicable on "the date of th[e] prior conviction" (§ 1170.12, subd. (b)(1); § 667, subd. (d)(1)).[3]'[4] The law applicable on the date of conviction necessarily is the law in effect at the time of the offense.
As noted, defendant admitted, as "strikes" (§ 1170.12), two Arkansas kidnapping convictions, charged as violations of "Section 5-11-102 of the Arkansas Criminal Code. . . ."[5] It appears that section 5-11-102 was first enacted in 1975, four or five years after the alleged dates of defendant's convictions.[6] The section provides, in pertinent part: "(a) A person commits the offense of kidnapping if, without consent, he restrains another person so *509 as to interfere substantially with his liberty with [a specified] purpose. . . ."[7] (Ark. Acts (1975) No. 280, § 1702.)
Arkansas Code of 1987 Annotated section 5-11-102 was not in effect at the time of defendant's Arkansas kidnapping convictions and manifestly cannot be the statute under which defendant was charged and convicted. Moreover, section 5-11-102 would not facially qualify as a strike under the California law of kidnapping.
In the absence of the underlying record, the test whether the out-of-state offense counts as a strike is measured by the least adjudicated elements of the out-of-state offense. In People v. Guerrero (1988) 44 Cal. 3d 343, 243 Cal. Rptr. 688, 748 P.2d 1150, the Supreme Court held that "the [trial] court may look to the entire record of the conviction to determine the substance of the prior foreign conviction; but when the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law." (Id. at pp. 354-355, 243 Cal. Rptr. 688, 748 P.2d 1150, emphasis added; see also People v. Myers (1993) 5 Cal. 4th 1193, 1200, 22 Cal. Rptr. 2d 911, 858 P.2d 301.)
The Arkansas statute materially differs from section 207 of the California law, in effect in 1993, which defines kidnapping inter alia to require asportation.[8] (People v. Martinez (1999) 20 Cal. 4th 225, 235, 83 Cal. Rptr. 2d 533, 973 P.2d 512.) The crime described in Arkansas Code of 1987 Annotated section 5-11-102 lacks that element. It defines a form of aggravated false imprisonment. "The [Arkansas] Code speaks in terms of restraint rather than removal. Consequently, it reaches a greater variety of conduct, since restraint can be accomplished without any removal whatever." (Ark.Code Ann. Commentaries, original commentary, to § 5-11-102 (1995) p. 176.)
We do not know on this record under what statutes the defendant was actually convicted 30 years ago in Arkansas nor the "substance of the prior foreign conviction[s]. . . ." In the absence of the Arkansas record it cannot be determined whether they count as strikes under the California law.
II
Ineffectiveness of Counsel
"The pleadingand plea bargainingstage of a criminal proceeding is a critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California Constitutions [Citation.]." (In re Alvernaz (1992) 2 Cal. 4th 924, 933, 8 Cal. Rptr. 2d 713, 830 P.2d 747; In re Vargas (2000) 83 Cal. App. 4th 1125, 1133, 100 Cal. Rptr. 2d 265.) "Before entering his plea [a defendant is] `entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as what plea should be entered.' [Citation.]" (In re Williams (1969) 1 Cal. 3d 168, 175, 81 Cal. Rptr. 784, 460 P.2d 984.) "If counsel's *510 `failure [to undertake such careful inquiries and investigations] results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled.'" (In re Saunders (1970) 2 Cal. 3d 1033, 1042, 88 Cal. Rptr. 633, 472 P.2d 921; citations omitted.)
Defendant's plea in this case occurred on the day of trial, March 3, 1998, when counsel should have been prepared to defend against the charges of convictions which qualify as strikes under the California law. He manifestly was not prepared. He informed the court that he had not determined "whether the elements [of the out-of-state convictions] are the same as the elements in California." Notwithstanding, he allowed his client to enter into a plea bargain which admitted two convictions as strikes under an Arkansas law which did not exist at the time of the convictions and which did not contain the same elements as the California law of kidnapping. Some five weeks later on April 9, 1998, at the time of sentencing, counsel had still not obtained the records of the Arkansas convictions.
It is apparent from the record that, at the time of the plea, defendant's counsel had not read section 5-11-102 of the Arkansas Criminal Code, nor had he obtained the record from which it could be determined under which Arkansas law the 30-year-old kidnapping convictions had occurred and from which it could be determined whether the convictions complied with the California law of strikes. (See fn. 5, ante.)
This is not a case in which counsel's performance can be excused on the ground he made a tactical decision. That claim arises only where counsel "having made [the required] inquiries and investigations, makes tactical or strategic decisions . . . ." (In re Saunders, 2 Cal.3d at p. 1042, fn. 7, 88 Cal. Rptr. 633, 472 P.2d 921; orig. emphasis; citations omitted.) But when, as here, "the knowledge necessary to an informed tactical or strategic decision is absent because of counsel's ineptitude or lack of industry, no such ground of justification is possible. (In re Williams, supra, 1 Cal. 3d 168, 177, 81 Cal. Rptr. 784, 460 P.2d 984.)" (Ibid, orig. emphasis.)
Although it must be demonstrated that, absent counsel's deficiencies, there is a reasonable probability of a more favorable outcome, the test does not require that "`counsel's conduct more likely than not altered the outcome in the case,' but simply [requires a showing of] `a probability sufficient to undermine confidence in the outcome.'" (In re Cordero (1988) 46 Cal. 3d 161, 180, 249 Cal. Rptr. 342, 756 P.2d 1370; citation omitted.)
Since counsel had not investigated the critical facts whether any of the prior convictions alleged in the complaint complied with the California Three Strikes law and allowed or advised his client to admit to convictions under an inapplicable statute, and since it is not possible to determine the outcome of a trial or plea bargain conducted on the basis of adequate information, our confidence in the outcome of the plea bargain has been thoroughly undermined.
Nevertheless, respondent claims the requirement of prejudice has not been met because the prosecution is able to present evidence that defendant's "actions, even if not required for kidnapping in Arkansas, amounted to a kidnapping in California. . . ." In making this claim, petitioner points to defendant's sworn statement contained in his supplemental brief on appeal in which he admits moving the victims of one Arkansas offense (he was charged with two offenses occurring on different dates.) We decline to consider this statement.
*511 In determining the truth of a prior-conviction allegation, the trier of fact may "look to the record of the conviction but no further. . . ." (People v. Guerrero, supra, 44 Cal.3d at p. 355, 243 Cal. Rptr. 688, 748 P.2d 1150, orig. italics; People v. Kelii (1999) 21 Cal. 4th 452, 456, 87 Cal. Rptr. 2d 674, 981 P.2d 518.) In the present case, the defendant's sworn statement is contained in his supplemental brief on this appeal; it was not part of the "record of conviction" nor was it before the trial court. Thus, it is not a part of the record of the conviction (Cal. Rules of Court, rules 4 and 4.5; 9 Witkin, Cal. Proc. (4th ed.1997), Appeal, § 517, pp. 561-562) and is not a proper basis to determine the truth of a prior-conviction allegation. We therefore may not consider it.
Under these circumstances, the remedy required by law is to reverse the judgment and sentence, vacate the defendant's plea, and remand the case to the trial court for further proceedings. (See People v. Serrate (1973) 9 Cal. 3d 753, 765, 109 Cal. Rptr. 65, 512 P.2d 289; In re Sutherland (1972) 6 Cal. 3d 666, 671-672, 100 Cal. Rptr. 129, 493 P.2d 857; People v. Daniels (1969) 71 Cal. 2d 1119, 1143, 80 Cal. Rptr. 897, 459 P.2d 225.)
DISPOSITION[9]
The judgment and sentence are reversed and defendant's plea is set aside. The case is remanded to the trial court for proceedings consistent with this opinion.
SIMS and HULL, JJ., concur.
NOTES
[*] In denying review, the Supreme Court ordered that the opinion be not officially published. (See California Rule of Court Rules 976 and 977).
[1] A reference to a section is to the Penal Code unless otherwise designated.
[2] We requested briefing from counsel on the following questions: (1) Should the trial court have exercised his discretion to determine whether to strike the 1970 and 1971 convictions under People v. Superior Court (Romero), supra, 13 Cal. 4th 497, 53 Cal. Rptr. 2d 789, 917 P.2d 628, (2) did defendant waive the exercise of such discretion, and (3) did counsel for defendant fail to act as a diligent counsel, (a) in advising defendant of the consequences of two prior strikes and, (b) in failing to move to strike the priors.
[3] The June 30, 1993, date was changed to March 8, 2000, by virtue of Proposition 21, adopted at the March 8, 2000, primary election. Section 667.1, enacted by Initiative, and operative March 8, 2000, provides:
"Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivision (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act."
Section 1170.125, enacted by the same Initiative, provides:
"Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994 General Election, for all offenses committed on or after the effective date of this act, all references to existing statutes in Section 1170.12 are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act."
[4] Citing People v. Hickey (1980) 109 Cal. App. 3d 426, 437, 167 Cal. Rptr. 256, respondent contends that while June 30, 1993, is the relevant "freeze" date for determining "what serious and violent felonies constitute strikes," it is not the relevant "freeze" date for determining the definition of the felonies themselves and that the correct date is the date of the current offense.
We disagree. First, as the respondent concedes, "whether this Court compares the elements of the . . . California kidnapping law as it existed in 1993 or 1997 is irrelevant," since the definitions are the same. Second, Hickey is inapposite because it involved an enhancement under a former version of section 667.5, subdivision (f), which, unlike the statutes at issue, did not specify a date for comparison. (See Stats.1977, ch. 165, § 13, p. 646 ["A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law. . . ."].) Third, the manifest legislative purpose of a "freeze" date is to fix the offenses which qualify as prior violent or serious felonies and thereby make them immune to legislative change.
[5] The correct reference is to Arkansas Code Annotated. The Arkansas Code is to Title 5, thereof, entitled "Criminal Offenses."
[6] Section 5-11-102 was first enacted in 1975. (Ark.Acts, 1975, No. 280, § 1702.) Prior to that date, from 1937 to 1971, kidnapping was the subject of sections 41-2301 to 41-2305 of the Arkansas Criminal Code. (Ark. Acts, 1937, No. 20, §§ 1,2; Rev. Stat., ch. 44, div. 3, art. 7, §§ 1, 2.) These sections were repealed in 1971 and replaced with sections 41-2306 to 41-2309. (Ark. Acts 1971, No. 45, §§ 1-5, p. 185, approved Feb. 4, 1971.) These sections appear to differ in significant respects from the California kidnapping law in effect in 1993. We cannot tell from the date of enactment of the 1971 statute whether it was applicable to either of the defendant's convictions under the Arkansas anti-abatement statute. (Ark. Stat., § 1-104 (1956 Replacement).
[7] Arkansas Code of 1987 Annotated section 5-11-102 provides, in pertinent part: "(a) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty" for specified purposes including for example ransom or the facilitation of a felony.
[8] Since 1993, as now, section 207, subdivision (a) has provided as follows:
"(a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping."
[9] The disposition makes it unnecessary to consider the defendant's assignments of error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261491/ | 861 F. Supp. 996 (1994)
UNITED STATES of America, Plaintiff,
v.
Pedro R. GARCIA, Defendant.
Cr. A. No. 94-10048-01.
United States District Court, D. Kansas.
August 17, 1994.
*997 Steven K. Woodring, Law Office of Steven K. Woodring, Wichita, KS, for defendant.
Brent I. Anderson, Office of U.S. Atty., Wichita, KS, for plaintiff.
MEMORANDUM AND ORDER
BELOT, District Judge.
This case comes before the court on defendant Pedro R. Garcia's motion to suppress statements (Doc. 10) and motion to suppress evidence (Doc. 11). The court held a hearing on defendant's motions on June 29, 1994, and an interpreter was provided for the defendant, whose primary language is Spanish. The court ordered a transcript of that hearing (Doc. 17, referred to herein as "Tr."), and directed the parties to submit memorandums in support of their respective positions on the suppression issues (Docs. 19 and 20).
FACTUAL BACKGROUND
Many of the facts pertinent to defendant's motions to suppress are in dispute. The court will do its best to give a specific account, *998 highlighting the controversies and conflicting testimony along the way.
On the early afternoon of April 6, 1994, agents for the Drug Enforcement Administration Task Force were at the residence of Victor Salome, 1207 El Monte, Wichita, Kansas. Mr. Salome had just been arrested on a warrant and removed from the house. He had refused to consent to a search, and some of the agents had gone to the United States Attorney's Office to try to obtain a telephonic search warrant from Judge Theis. Other agents remained at the house waiting for the search warrant to arrive.
At approximately 2:15 p.m., the agents remaining at Salome's house observed the defendant, Pedro Garcia, drive his vehicle into Salome's driveway, park, exit the vehicle, and start walking towards Salome's house.[1] Detective Shawn Fortune and detective Johnnie Green, who is fluent in Spanish, approached the defendant. Speaking in English, detective Fortune identified himself and detective Green and told the defendant why they were there. According to the detectives, Fortune asked defendant for some identification, and defendant gave Fortune his driver's license. Fortune noted the pertinent information on the license, and claims that he gave the license back to the defendant. Fortune asked the defendant if he knew who lived at the Salome residence, and defendant answered that "he was familiar with him" and was in fact there to "visit Victor." (Tr. 8, 45).
Fortune next asked the defendant if he was carrying any guns, large amounts of money, or drugs on his person. Defendant indicated he was not. According to the detectives, Fortune then requested permission to do a pat down search on the defendant, and detective Green repeated the request in Spanish, indicating that they would be searching for drugs, money, and guns. (Tr. 46, 68, 74-75). Green also asked if he could search defendant's car. The detectives maintain that defendant consented to both searches.
The pat down search of defendant proved to be fruitful. Detective Green retrieved $1,942.00 in cash from defendant's left rear pants pocket and also found a piece of paper with Mr. Salome's cellular telephone number on it. Green handed the money to Fortune and, while Green began searching defendant's car, officer Fortune inquired about the money.
According to both detectives (Fortune asking the questions and Green listening while searching the car), defendant offered three seemingly distinct explanations for the $1,942.00 in his pocket. First, defendant indicated the money was for his attorney, whose name he could not remember but whose office was near Central and Market streets in Wichita. (Tr. 10-11, 48). Defendant next stated that the money had been lost in a Western Union wire transfer and that his attorney had recovered it for him. (Tr. 11, 48). Finally, defendant claimed to have just withdrawn the money from a bank, though he could not produce any bank receipt. (Tr. 48). Fortune pressed defendant on these explanations. At this point, defendant expressed difficulty speaking and understanding English, and detective Green then took over the questioning in Spanish. Fortune and Green ultimately decided to confiscate the $1,942.00 and gave defendant a DEA receipt.
Defendant disputes many parts of the detectives' accounts. According to the defendant, neither detective asked for identification or for permission to search his person. (Tr. 115, 123-24).[2] Rather, the detectives simply approached him, asked if he knew that drugs were sold at the Salome residence, told him to raise his arms, and immediately began searching his person, at which time they found the $1,942.00. According to defendant, he gave only one explanation for the money: He withdrew the money from a credit union, attempted to send it to his *999 sister in Mexico via Western Union, the money was somehow lost during transfer, defendant's attorney helped him recover the money, and defendant was on his way to his attorney's office to pay his attorney's fee. (Tr. 135-38).
Both Fortune and Green claim that when they first confronted the defendant, they asked about his citizenship and whether he had an alien registration or "green card." (Actually, detective Green claims that he asked defendant whether he had a "mica," a slang reference to a green card). According to the detectives, defendant said he was a resident alien, but he did not have his green card with him. When agents with the Immigration and Naturalization Service (INS) arrived at the scene with the search warrant for Salome's house, they spoke with Fortune and Green, questioned the defendant about his green card, and placed defendant under arrest.
Defendant's account of his arrest is much different. According to the defendant, neither Fortune nor Green ever asked about his green card. Instead, Fortune and Green held onto his driver's license, instructed him not to move, and told other officers to "watch him." Defendant claims he did not feel free to leave. (Tr. 119, 138-40). Defendant further claims the detectives requested permission to search his house and that he refused, telling the officers "that they had already had [him] there for too long for nothing." (Tr. 119). He acknowledges that, when the INS arrived, they did ask to see his green card and that he did not have one in his possession.
At 3:45 p.m., after defendant had been arrested and taken to the police station, detectives Fortune and Green and two uniformed police officers went to defendant's residence. One of the uniformed officers stayed outside in a marked police unit, while Fortune, Green, and the other officer knocked on the door. Defendant's wife, Maria Garcia, answered.[3] Fortune identified himself, Green, and the police officer and asked if they could come in and chat. Mrs. Garcia allowed them to enter. Fortune noticed Mrs. Garcia's child sleeping on a lounge chair and asked if anyone else was in the house. Mrs. Garcia indicated there was no one else and permitted the officers to conduct a quick protective sweep. Mrs. Garcia and the officers then sat down around the kitchen table and began discussing her husband's situation.
Fortune told Mrs. Garcia about the encounter with her husband at the Salome residence. Mrs. Garcia stated that her husband should have been at work and could not explain why her husband would be carrying nearly $2,000 in cash. Fortune asked to see defendant's green card, and Mrs. Garcia retrieved it for them. Fortune asked if there were any drugs or large amounts of money on the premises, and Mrs. Garcia claimed "there was nothing like that in the residence." (Tr. 18). Fortune then requested that Mrs. Garcia sign a consent form giving them permission to search her home. (Tr. Exhibit M-1). Mrs. Garcia stated that her husband would be home soon, but Fortune told her that her husband was being held awaiting their search. Fortune then read the consent form to Mrs. Garcia and asked if she had any questions. Mrs. Garcia eventually signed the form. She was never specifically informed that she had the right not to consent to the search.
Having obtained Mrs. Garcia's consent, the officers conducted a thorough search and, in the basement, found six pounds of marijuana, scales, baggies, razor blades with cocaine residue on them, approximately $3,800.00 in U.S. currency, and a variety of firearms and ammunition. Meanwhile, defendant was being held at the DEA office and agents had discovered cocaine on his person. When Detective Green arrived, he was asked to read defendant his Miranda rights in Spanish, and defendant asked to speak with a lawyer. (Tr. 35, 94). No more questions were asked at that time. The INS/green card charges were dropped and, despite the items found on defendant's person and at defendant's *1000 house, defendant was released without being charged with any other crimes.
On April 14, 1994, a week after defendant's release from jail, detective Fortune called defendant's home, spoke with Mrs. Garcia, and asked if he could come over and talk with the defendant. Mrs. Garcia expressed concern about whether her husband was going to be arrested, but Fortune assured her that no arrest would be made. Mrs. Garcia told Fortune that her husband had left work early in order to meet with an attorney. According to Mrs. Garcia, Fortune stated: "Well, if he sees an attorney we can no longer work with him." (Tr. 108).
Accompanied by another officer, detective Mullikan, Fortune went to the Garcia home and began questioning the defendant. No Miranda warnings were given. Fortune asked about the drugs, paraphernalia, guns and money found in defendant's home and about defendant's relationship with Salome. Defendant allegedly confessed that he had obtained the marijuana found in his basement on a front from Salome and had planned to sell it. Defendant further confessed that he had obtained the guns in his basement by trading marijuana with a local gang known as the Vato Loco Boys or VLBs. Finally, defendant admitted that he was intending to pay Salome when he went to Salome's residence on April 6. Fortune told defendant he would be facing criminal charges and prison time and encouraged defendant to agree to testify against Salome. Defendant expressed reluctance, stating that he thought he should first confer with his attorney and Mr. Salome. Fortune told the defendant to call when he decided what to do.
DISCUSSION
Defendant's motions to suppress address each of the three encounters described above and seek the suppression of all evidence and statements as the fruits of an unlawful search and seizure of his person at the Salome residence on April 6, 1994. (Tr. 143, 147). Second, defendant seeks suppression of the evidence found at his house on April 6 on grounds that his wife's consent was involuntary and otherwise invalid. (Tr. 144, 147-52). Third and finally, defendant seeks suppression of the statements he made to the detectives at his home on April 14, 1994 because they were obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). (Tr. 152-53).
Search and Detention of Defendant at the Salome Residence
Defendant contends that the detection and search of his person at the Salome residence violated the Fourth Amendment prohibition against unreasonable searches and seizures. Defendant argues that the detectives' testimony concerning his alleged consent to a pat down search is not credible and that detective Green's search went beyond the scope of pat down search. Furthermore, defendant claims that the detectives' detention of him at Salome's house constituted an unlawful seizure of his person without any reasonable suspicion that he was involved in criminal activity.
The Tenth Circuit has identified three categories of police/citizen encounters: (1) voluntary cooperation in response to noncoercive questioning; (2) investigatory or Terry-type stop; and (3) arrest. United States v. Muldrow, 19 F.3d 1332, 1335 (10th Cir.1994) (citing United States v. Cooper, 733 F.3d 1360, 1363 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S. Ct. 3543, 82 L. Ed. 2d 847 (1984)). The present case would appear to fall within the second category: an investigatory stop. Such a stop is a "seizure" within the meaning of the Fourth Amendment, but need not be supported by probable cause. Id. Rather, in order to justify an investigatory stop, an officer "need have only specific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime." Id. If an investigatory or Terry-stop is warranted, an officer is "entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." Terry v. Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 1884-85, 20 L. Ed. 2d 889 (1968).
*1001 Having listened to the testimony at the suppression hearing and carefully read over the transcript of that testimony, the court finds that the initial detention of defendant at the Salome residence fell appropriately within the bounds of a unique type of investigatory or Terry-stop that occurs when an individual enters an area that is about to be searched. The detectives had secured the home of a suspected drug distributor and were awaiting a search warrant. When the defendant pulled into the driveway, the detectives acted reasonably in approaching him and making inquiry. See Patterson, 885 F.2d 483, 484-85 (8th Cir.1989) (recognizing that an individual's approaching a structure that is being searched and is suspected of housing a drug operation may necessitate that police approach the individual and take action to ensure their own protection). The detectives then obtained defendant's consent to do a pat down of defendant's person specifically searching for drugs, guns, and money.[4] The search and subsequent seizure of the $1,942.00 from defendant's pants pocket fell within the scope of the consent obtained. Once the money was discovered (in addition to the piece of paper with Salome's phone number on it) the detectives clearly had reason to suspect that defendant was there to buy drugs from Salome, justifying their further questioning and detention of defendant.
Defendant contends that the search conducted by detective Green did not fall within the scope of a Terry-stop, arguing that Green "could not have reasonably believed the wad of paper in Defendant's left rear pocket was a weapon." (Doc. 2 Ariz. 415, 19, p. 4). Detective Green was not asked about what he "believed" when he noticed the bulge in defendant's pocket, and the court will not speculate on that point. In the absence of a finding that the detectives specifically obtained defendant's permission to search his person for drugs, weapons, and money, defendant would therefore probably have a cogent argument. The Supreme Court has recently reiterated that Terry-stop frisks are to be strictly limited to a search for weapons and, furthermore, that unless it is "immediately apparent" to an officer that a lump or bulge felt during a pat down is contraband, the officer cannot remove the object from the suspect's clothing. Minnesota v. Dickerson, ___ U.S. ___, ___, 113 S. Ct. 2130, 2138-39, 124 L. Ed. 2d 334 (1993). The court's finding of consent to a pat down that included a search for large amounts of money, however, obviates consideration of this issue.
Defendant also argues that the detectives' detention went beyond what was necessary and was not supported by a reasonable and articulable suspicion of criminal activity as required by Terry. The court disagrees. As discussed supra, the detectives initially had reasonable cause to approach the defendant. Having done so, it was perfectly reasonable for the detectives to ask the defendant if he was carrying any drugs, guns or money and to seek his consent to a pat down search for those items. This led to the immediate discovery of the $1,942.00 on defendant's person, as well as the piece of paper with Salome's phone number on it, raising a "reasonable and articulable suspicion" that defendant, who had said he was not carrying any large amounts of money, was at Salome's residence to purchase drugs. The detectives then questioned defendant, giving him every opportunity to dispel their suspicions, but he could not do so. The officers were thus confronted with the following set of facts: (1) the defendant had just pulled into the driveway of Salome, a suspected drug distributor; (2) he had admitted he was there to see Salome; (3) when asked whether he had any large amounts of money, he had lied;[5] (4) he seemed unable to offer consistent explanations for why he was carrying so much cash;[6]*1002 and (5) he offered no explanation as to why he had brought the money with him to Salome's house, other than to say he was there to "visit Victor." Cumulatively, these five factors were enough to raise substantial suspicions and allow the detectives to explore whether defendant was involved with Salome's drug trafficking. Hence, in the court's view, the initial detention of the defendant and the seizure of the $1,942.00 was "reasonable under the circumstances." United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir.1993). The court is unpersuaded by defendant's reliance on United States v. Recalde, 761 F.2d 1448 (10th Cir.1985), United States v. Guzman, 864 F.2d 1512 (10th Cir.1988), and United States v. Ward, 961 F.2d 1526 (10th Cir.1992).
Search of Defendant's Residence
Defendant asserts two bases for suppression of the evidence found in the basement of his house. First, he contends his wife's consent to search was not voluntary. Second, he contends his wife's consent was not effective because defendant himself was available to give his consent and had himself already specifically refused to do so.
The voluntariness and effectiveness issues raised by defendant are similar to those addressed in a relatively recent Tenth Circuit case, United States v. Iribe, 11 F.3d 1553 (10th Cir.1993). In that case, Mr. Iribe was picked up on an arrest warrant, handcuffed, and taken to a home where he had previously been observed. Mr. Iribe adamantly denied that he lived at the residence. Upon arrival at the home, officers encountered a Ms. Lopez who told them that she lived there alone. The officers then presented Ms. Lopez with a consent to search form and read and explained it to her in Spanish, Ms. Lopez's primary language. Ms. Lopez signed the form.
The officers proceeded with their search and discovered men's clothing and weapons in a back bedroom of the house. When confronted with these articles, Ms. Lopez confessed that the items belonged to Mr. Iribe, her uncle, and that he too lived in the house. Mr. Iribe then also admitted that he lived at the residence, and the officers sought and obtained Mr. Iribe's consent to search as well. The search ultimately yielded a large amount of cash and some weapons.
Mr. Iribe was charged in federal court with several drug and firearms violations. Upon a motion to suppress, the district court ruled that the search of the house violated the Fourth Amendment because neither Mr. Iribe nor Ms. Lopez voluntarily consented. The government appealed, and the Tenth Circuit reversed, finding clear error in the district court's voluntariness determination with respect to Ms. Lopez. In so holding, the court set forth and applied standards for analyzing voluntariness and third-party consent issues similar to those raised by defendant herein.
With respect to voluntariness, the Tenth Circuit stated:
"The voluntariness of consent must be determined from the totality of the circumstances, and the government bears the burden of proof on the issue." United States v. Soto, 988 F.2d 1548, 1557 (10th Cir.1993). "[T]he government must show that there was no duress or coercion, express or implied, that the consent was unequivocal and specific, and that it was freely and intelligently given."
Applying these standards, the court concluded that Ms. Lopez had voluntarily and intelligently given her consent to a search of her and Mr. Iribe's home.
The officers knocked on the door and Ms. Lopez voluntarily allowed them to enter the house. Although Mr. Iribe was in handcuffs, the record does not reveal that *1003 Ms. Lopez felt coerced, frightened or otherwise threatened. The conversation between [the detective] and Ms. Lopez was cordial and spoken in low volume. No promises or threats were made in an attempt to extract her consent.
In the present case, as in Iribe, the government has shown that the detectives' attempts to gain Mrs. Garcia's consent were not coercive or threatening. Indeed, it would appear that the detectives and Mrs. Garcia sat down around her kitchen table and had a very civil conversation about whether she would give her consent to search. The detectives did not offer her any deals or make any threats. Rather, Mrs. Garcia appears to have been allowed to intelligently weigh her options and make her decision. She was certainly capable of doing so. During her testimony at the suppression hearing, Mrs. Garcia manifested no difficulty in understanding counsel's questions, the meaning of the consent form, and the ramifications in signing it. The consent form itself stated that "I HAVE NOT BEEN THREATENED, NOR FORCED IN ANY WAY" and "I FREELY CONSENT TO THIS SEARCH." (Ex. M-1).
Defendant points to four factors which he asserts show that his wife was coerced: (1) the officers misrepresented to Mrs. Garcia that her husband was involved with Mr. Salome; (2) the officers failed to advise Mrs. Garcia of her right to refuse to consent; (3) there were three officers in the home, crowding around Mrs. Garcia's kitchen table and interposing themselves between her and her son; and (4) defendant was in custody and unavailable to consult with Mrs. Garcia at the time. The court puts little weight in any of these. Altogether, the circumstances in the present case appear far less disturbing than those in Iribe, where five officers crowded around Ms. Lopez, Ms. Lopez could not speak English, and there were significant indications that Ms. Lopez was predisposed towards acquiescing to police and other authorities. Admittedly, the consent form used in the present case is different from the one used in Iribe, which contained a "clause discussing the right to refuse consent." 11 F.3d at 1555. However, whether a defendant is informed that he need not consent to a search is only one factor to be considered in determining whether the consent was voluntary. United States v. Sanchez-Valderuten, 11 F.3d 985, 990 (10th Cir.1993). Here, Mrs. Garcia was not a "defendant" and was not being detained or interrogated as a suspect. Mrs. Garcia claims she was frightened: "I was more frightened than anything and I did sign." (Tr. 112). But anyone faced with the situation that confronted Mrs. Garcia being informed that your husband had been arrested and that police suspected he was keeping drugs, guns, and money in your home would reasonably be expected to be somewhat afraid. That alone is not enough to negate her consent. The court had the opportunity to observe Mrs. Garcia during her testimony, and she appeared to be an intelligent, articulate woman. Despite her claims of fear, the totality of Mrs. Garcia's testimony, as well as that of the detectives, convinces the court that her consent was not coerced and that she acted freely and intelligently when she signed the consent form.
With respect to defendant's alternative argument concerning the effectiveness of his wife's consent to search, the Tenth Circuit in Iribe stated:
"Someone other than the subject of the search may give effective consent if she has a sufficient relationship to the property searched." United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990). "The government bears the burden of proving by a preponderance of the evidence that the consenter had mutual use of the property searched by virtue of her joint access to it, or control for most purposes over it." Id. Here, Ms. Lopez clearly had joint access to the house inasmuch as she was living with Mr. Iribe.... She therefore was in a position to give effective consent to the search of the house.
Mr. Iribe nevertheless contends that the warrantless search of the house was unlawful because he never gave his consent. The police officers, however, did not need Mr. Iribe's consent to search the house. At the time the officers commenced the search of the house, they were not certain *1004 that Mr. Iribe was in a position to give effective consent to the search because they were not positive that Mr. Iribe even lived there he adamantly denied [it] .... The officers therefore were justified in relying on Ms. Lopez' consent to the search, provided that her consent was voluntarily given.
Id. at 1557.
Clearly, the third-party consent issue raised by defendant in the present case is substantially different from that raised in Iribe. Although Mrs. Garcia, like Ms. Lopez, was in a position to give effective consent, the detectives in this case knew that defendant lived in the residence to be searched. Defendant contends that, under these circumstances, the detectives were required to either obtain consent from defendant himself or obtain a search warrant from a judge.
The Supreme Court's guiding light with respect to third-party consent to search is its decision in United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). In that case, police arrested the defendant in his front yard and then sought admittance into his home from a joint occupant. 415 U.S. at 166, 94 S.Ct. at 990-91. The police did not ask the defendant for his consent to search. Id. The Supreme Court held the joint occupant's consent to search was effective and sufficient, reasoning that the joint occupant had common authority over the premises and could permit the search "in [her] own right" and that the defendant had "assumed the risk" that the joint occupant might, in his absence, give her consent to a search. Id. at 169-71 & n. 7, 94 S. Ct. at 992-93 & n. 7. The Court stated: "[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared." Id. at 170, 94 S. Ct. at 993.
Defendant attempts to distinguish Matlock from the present case. First, he claims Matlock leaves unanswered the question of whether police can obtain consent to search from a third-party when the defendant himself is in their custody and available to give or refuse consent on his own. (Doc. 19, p. 10). Clearly, however, the defendant in Matlock was available, and the Supreme Court did not find that the officers were required to seek his consent. Rather, the Court found the joint occupant had her own right to consent to a search of the premises and that the defendant had assumed the risk that she might exercise that right while he was away from the residence.
Defendant also attempts to distinguish Matlock by looking to cases in which a defendant was present and objecting to a search at the time that consent was being sought from the joint occupant. (Doc. 19, pp. 10-11) (quoting Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.3(d), pp. 251-52 (2d ed. 1987)). However, while defendant may have objected to the search of his home he testifies that he did the evidence is clear that defendant was not present at his residence when his wife consented to the search. This case would accordingly appear to fall within the analysis outlined in Matlock, discussing an absent defendant, not the analysis of those cases where the defendant was actually at the residence and objecting to the search while it was taking place. In any event, this court simply holds, in accordance with other federal courts, that when an arrestee refuses to consent to a search of his residence, police officers are not precluded from going to that residence and attempting to obtain consent to search from other occupants. See United States v. Childs, 944 F.2d 491 (9th Cir.1991) (holding that voluntary consent of joint occupant justifies warrantless search of residence even if suspect is physically present and whether or not suspect consents); United States v. Bethea, 598 F.2d 331, 335 (4th Cir.), cert. denied, 444 U.S. 860, 100 S. Ct. 124, 62 L. Ed. 2d 81 (1979) (holding that consent of joint occupant was sufficient and that officers did not have to seek suspect's consent even though he was present at the residence); United States v. Sumlin, 567 F.2d 684, 687-88 (6th Cir.1977), cert. denied, 435 U.S. 932, 98 S. Ct. 1507, 55 L. Ed. 2d 529 (1978) (holding that defendant's refusal to consent to search did not preclude joint occupant from giving her consent because defendant's refusal did not lessen the risk that he had assumed in living with a co-occupant). To hold otherwise *1005 would be to offend the rationale underlying Matlock that each joint occupant has his own right to consent to a search and that each assumes the risk that a fellow occupant will exercise that right.
Accordingly, the court finds that the items discovered during the search of defendant's residence were properly seized.
Questioning at Defendant's Residence
Defendant contends that the statements he gave to detectives Fortune and Mullikan on April 14, 1994 at his residence were obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and should therefore be suppressed. He claims his invocation of his right to counsel after being mirandized at the DEA office on April 6, 1994 was not scrupulously honored, as required by Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990), and characterizes the detectives' questioning of him on April 14 as "re-initiate[d] interrogation." (Doc. 19, pp. 18-19).
The government maintains that defendant's right to counsel no longer attached after the green card charge upon which he was arrested was dropped and defendant was released. The government further argues that Miranda is not applicable to the questioning on April 14 because defendant was not in police custody.
"Miranda requires that procedural safeguards be administered to a criminal suspect prior to `custodial interrogation.'" United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir.1993) (quoting Miranda, 384 U.S. at 444, 86 S. Ct. at 1612). Hence, in order for Miranda to apply, defendant must have been in "custody" on April 14 and the questioning of the detectives must have constituted "interrogation."
A person is in "custody" when he "`has been deprived of his freedom of action in any significant way.'" Id. This depends on all of the circumstances surrounding the questioning and how a reasonable man in the suspect's position would have understood his situation. Id. (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317 (1984)); United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir.1993). The "ultimate inquiry" is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Stansbury v. California, ___ U.S. ___, ___, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293 (1994).
In the present case, defendant has not presented evidence that a reasonable man in his position on April 14, 1994 would have felt that his freedom of action and movement was being deprived. The only consideration suggesting deprivation of freedom is testimony that, during the questioning, Fortune encouraged defendant to consider cooperating with the police in the investigation of Salome and told defendant that he could expect to be charged with crimes and eventually go to prison. The Supreme Court has recently stated in that regard:
[A]n officer's views concerning the nature of an interrogation, or beliefs concerning the culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officers' views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.
Stansbury, ___ U.S. at ___, 114 S.Ct. at 1530. Accordingly, detective Fortune's disclosure of his belief that defendant would be charged with criminal violations may be significant in determining whether defendant was in "custody" in the present case. However, as the Supreme Court cautiously indicated, it is only "one among many factors" to be considered. All of the other circumstances must likewise be taken into account. Id. at ___, 114 S.Ct. at 1530 ("[I]t is the objective surroundings ... that control the Miranda custody inquiry"). Looking to all of the "objective surroundings" in the present case, there is no reason to believe that the prospect of future arrest and imprisonment disclosed by detective Fortune left defendant with the impression, at that particular time, that he was not free to leave or to make his own decisions. Defendant was in *1006 his own house, and Fortune had promised that he would not be arrested. Fortune did not threaten or coerce the defendant and made it quite clear that defendant had to decide for himself whether to cooperate and testify against Salome. Given these circumstances, there was no reason for defendant to believe that his freedom was being restrained to a degree that could possibly be associated with that of a formal arrest.
As to defendant's right to counsel claim, the Sixth Amendment right to counsel arises only after the initiation of formal adversary criminal proceedings against the defendant, "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882, 32 L. Ed. 2d 411 (1972); see also Moran v. Burbine, 475 U.S. 412, 431, 106 S. Ct. 1135, 1146, 89 L. Ed. 2d 410 (1986); United States v. Gouveia, 467 U.S. 180, 189, 104 S. Ct. 2292, 2298, 81 L. Ed. 2d 146 (1984). The right applies only to pending charges and not to "other and different charges against the same defendant." Hoffa v. United States, 385 U.S. 293, 308, 87 S. Ct. 408, 416, 17 L. Ed. 2d 374 (1966). Hence, where no charges have been filed or remain pending regarding the subject of interrogation, the Sixth Amendment right to counsel simply does not attach, and defendant's incriminating statements may be used against him. See Illinois v. Perkins, 496 U.S. 292, 299, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990); Maine v. Moulton, 474 U.S. 159, 180 n. 16, 106 S. Ct. 477, 489 n. 16, 88 L. Ed. 2d 481 (1985). For example, in United States v. Skipworth, 697 F.2d 281, 284 (10th Cir.1983), the Tenth Circuit held that the right to counsel did not attach to a federal investigation after related charges in state court had been dismissed.
Based on these authorities, the court finds that no right to counsel attached to the questioning of defendant on April 14 because the INS charges against the defendant had been dropped and, in any event, the questions posed by the detectives did not pertain to those charges. Accordingly, defendant's incriminating statements made to the detectives will not be suppressed.
IT IS ACCORDINGLY ORDERED that defendant's motions to suppress (Docs. 10 & 11) are hereby denied.
NOTES
[1] There is some dispute as to whether and, if so, how far defendant got out of his car before the detectives confronted him. (Tr. 124-25). The court does not view this dispute as material to the matters now at issue.
It should be noted that the agents did not know of or have any reason to suspect the defendant prior to observing him at Mr. Salome's house.
[2] Defendant admits that he did consent to a search of his car.
[3] Mrs. Garcia speaks English quite well and did not have any difficulty communicating with the detectives.
[4] Having had the opportunity to actually view the witnesses while they testified at the suppression hearing, the court finds the detective's testimony with respect to consent to search during the initial detention more credible than that of the defendant.
[5] The court rejects defendant's argument that the search was not within the scope of the consent given because $1,942.00 is not a "large sum of money." In Wichita, Kansas, $1,942.00 in cash is a large sum of money to be carrying on one's person.
[6] Defendant argues that the "record is clear that what detective Fortune interpreted as three separate transactions [with respect to the $1,942.00] was, in fact, one entirely consistent truth." (Doc. 19, p. 6): The court disagrees. Defendant admits that Fortune did not understand his story very well because of the partial language barrier between himself and detective Fortune. (Tr. 117). Detective Green, who speaks Spanish fluently, overheard the conversation and testified that it was not until Fortune started to press Garcia about the source of the money that defendant said "I need somebody, you know, who speaks Spanish." (Tr. 93). Based upon the entirety of the testimony regarding defendant's explanation about the money, the court finds that defendant's explanation at the scene of the search was not clear and that, under all the circumstances, the officers were justified in detaining him for further questioning. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312876/ | Andrea R. Wood, United States District Judge
Plaintiffs Aaron C. Passmore and Jerry O. Griffin are pretrial detainees confined at Will County Adult Detention Facility ("WCADF"). Plaintiffs claim that they suffered skin irritations on their genitals from dirty underwear and were denied medical treatment for their symptoms. Plaintiffs thus have brought this lawsuit pursuant to 42 U.S.C. § 1983, alleging violations of their rights under the Fourteenth Amendment and naming as Defendants Will County, WCADF Warden Brad Josephson, in his official capacity, and current and former Will County employees Michael O'Leary, Brian Fink, Mike Kelley, and Kelly Bargo, in their individual capacities.1 Defendants now move for summary judgment. (Dkt. No. 69.) For the following reasons, their motion is granted.
BACKGROUND
Unless otherwise noted, the following facts are undisputed.
*878I. The Parties
At all times relevant to their complaint, Plaintiffs were pretrial detainees at WCADF. (Defs.' R. 56.1 Stmt. of Mat. Facts in Support of Summ. J. ("DSMF") ¶ 1, Dkt. No. 71.) Defendant Will County is a unit of local government operating within the State of Illinois. (Id. ¶ 6.) Defendant Kelley serves as Sheriff of Will County. (Id. ¶ 2.) Defendant O'Leary previously served as Warden of WCADF but later was succeeded in that position by Defendant Josephson. (Id. ¶ 3.) Defendant Fink served as Deputy Chief of Operations at WCADF, and Defendant Bargo, an employee of the Will County Sheriff's Office, served as the laundry assistant there. (Id. ¶¶ 4, 5.) Bargo has been employed as a laundry assistant since August 2014. (Id. ¶ 54.) Her duties include supervising "tenders," detainees who are responsible for doing laundry at WCADF. (Id. ) Bargo reports to the Deputy Chief of Support Services. (Id. ¶ 55.)
II. WCADF's Laundry Process
WCADF's laundry process was established before Bargo began working as a laundry assistant. (Id. ¶ 56.) WCADF uses four washing machines to launder detainees' underwear, socks, T-shirts, towels, and sheets. (Id. ¶ 12.) These clothing items for all 800-900 inmates are mixed together indiscriminately. (Defs.' Resp. to Pls.' Supplemental R. 56.1 Stmt. of Disputed [sic ] Mat. Facts ("DRMF") ¶ 82, Dkt. No. 76.) No one checks the underwear for urine or fecal stains before placing it into the washing machine. (DSMF ¶ 16.) According to Bargo, soap and bleach are added to the washing machines automatically. (Id. ¶ 13.) The soap and bleach lines are checked and filled by the maintenance staff. (Id. ¶¶ 13-14.) And the machine does not give an alert or warning if it is low on soap or bleach. (Pl.'s R. 56.1 Resp. to Defs.' Stmt. of Mat. Facts ("PRMF") ¶ 13, Dkt. No. 72-1.) Bargo does not know how much soap or bleach goes into each load. (Id. ) She checks whether soap is present by looking for bubbles, and if she does not see any, she turns off the machine and notifies the maintenance staff. (DSMF ¶ 14.) However, Bargo cannot visually check in the same way whether bleach is present. (Id. ¶ 15.) Passmore testified that he could not smell any soap or bleach on the stained underwear. (PRMF ¶ 69.)
Once laundry is washed and dried, it is folded, placed on the laundry cart, and randomly distributed to the detainees. (DSMF ¶ 17.) Tenders are instructed to look at the underwear as they fold it and check for damage or stains. (Id. ¶ 18.) Tenders are also instructed that if they would not wear the underwear themselves, they should not put it on the cart for distribution. (Id. ¶ 19.) For example, if he sees urine or fecal stains, the tender should dispose of the underwear and log the disposal by indicating size and color. (Id. ¶¶ 20-21.)
Detainees exchange their clothing items, including underwear, twice per week. (Id. ¶ 8.) Tenders bring carts of laundered clothing into the general housing units and distribute the laundry under the supervision of Bargo or another laundry assistant. (Id. ¶ 9.) At this point, detainees exchange their worn clothing items and check their newly-received items for sizing and damage, such as holes or stains. (Id. ¶¶ 10-11.) According to Bargo, detainees occasionally wish to exchange their underwear due to damage, but no one has ever complained to her about stains. (Id. ¶¶ 58, 61.) Plaintiffs dispute this claim, as both testified that they complained to Bargo about receiving stained underwear but she did not allow them to exchange it. (PRMF ¶¶ 58-59.) Bargo further testified that no detainee has ever complained to her about a genital *879rash, but if someone had done so, she would have offered him a "bio bag" for his underwear. (DSMF ¶ 61.)
III. Passmore's Claims
Passmore became a pretrial detainee at WCADF on April 7, 2014. (Id. ¶ 24.) From the start, he received stained underwear, but he did not start experiencing any symptoms until June 2014. (Id. ) That month, Passmore asked to exchange his stained underwear, but Bargo denied his request. (Id. ¶ 25.) Passmore had already left the distribution area and returned to his cell before seeking the exchange, however. (Id. ¶ 26.) And Bargo testified that she may refuse an exchange if the detainee fails to check the item before accepting it and leaving. (Id. ¶ 60.) A few days later, Passmore developed a red, itchy rash on his groin area and on his inner thighs and buttocks, which lasted a couple of months. (Id. ¶ 27.) The rash started off as "bumps," then "turned reddish and started to become raw." (DRMF ¶ 68.) According to Passmore, the rash affected his ability to move and walk around and caused a stinging sensation when his thighs rubbed together and when he defecated. (PRMF ¶ 35.) Passmore had never experienced a genital rash before his admission to WCADF. (DRMF ¶ 75.)
Then, in October or November 2014, Passmore developed another rash in the same area, which lasted for about two or three months. (DSMF ¶ 28.) Passmore testified that this time, he complained of the "dirty, brown stained underwear" to Bargo and asked for an underwear exchange before leaving the distribution area, but Bargo again denied his request. (DSMF ¶ 29; Pls.' Stmt. of Add'l Facts that Raise a Genuine Dispute ("PSAF") ¶ 77, Dkt. No. 72-1.) Passmore subsequently developed a third rash in March 2015, after he again received stained underwear. (DSMF ¶ 30.) At this point, Passmore tried to wash the underwear but ultimately decided to stop wearing it altogether. (Id. ¶ 31.)
Passmore put in three healthcare requests in October and November 2014 regarding the rash. (Id. ¶ 32.) He also filed grievances about the dirty underwear in November 2014, March 2015, and April 2015, but the issue was never addressed. (DRMF ¶ 73.) In addition, Passmore spoke to a nurse about the rash in November 2014, but he did not consult a doctor. (DSMF ¶ 33.) On October 16 and 21, 2014, Passmore saw a doctor for low back pain and attempted to discuss his rash, but the doctor advised him to submit a separate request slip. (Id. )
IV. Griffin's Claims
Griffin became a pretrial detainee at WCADF in May 2014. Upon his arrival, Griffin was assigned to the medical unit or "M-pod" at WCADF, where he stayed until August 2014. (Id. ¶ 46.) After his arrival at WCADF, Griffin immediately began experiencing issues with dirty underwear. (Id. ¶ 36.) He developed "bumps" on the right side of his genitals and in between his thighs for a little over a week. (Id. ¶ 41.) However, even though Griffin told the doctor about his rash and submitted one or more medical slips about it, he did not receive any medical attention. (Id. ) In August and September 2014, when Griffin was no longer housed in the M-pod, he requested an underwear exchange, but Bargo would not allow it. (Id. ¶ 39.) When Griffin washed the underwear on his own, he noticed that his symptoms improved. (Id. ¶ 45.) Like Passmore, Griffin had never experienced a genital rash before his admission to WCADF. (DRMF ¶ 80.)
Griffin complains of several other incidents of mistreatment in addition to the dirty underwear issue. As mentioned above, Griffin was assigned to the M-pod *880upon his arrival at WCADF in May 2014 until August 2014; this was due to his need for treatment for an orbital (eye socket) fracture. (DSMF ¶ 46.) Griffin claims that WCADF medical staff mistreated his fracture and denied him pain medication. (Id. ) But Griffin's orbital fracture was seen by medical staff every two weeks. (Id. ) Griffin was also taken to Loyola Hospital twice during this time period, where doctors checked his vision. (Id. ¶ 47.) Griffin was offered Tylenol for his eye pain, but he refused. (Id. ¶ 49.)
In addition, Griffin claims that while he was housed in the M-pod, the lights would stay on all night, and unidentified staff entering the unit either intentionally slammed the doors or failed to prevent the doors from slamming shut. (Id. ¶ 52.) These conditions gave Griffin a headache. (Id. ) Griffin also did not have access to the outside while housed in the M-pod, which he claims deprived him of fresh air. (Id. ¶ 53.)
Finally, Griffin asserts that he was humiliated during several strip searches. On October 10, 14, and 15, 2014, Griffin was subjected to strip searches as part of a unit-wide shakedown. (Id. ¶ 50.) The strip searches were performed by male corrections officers, but several female corrections officers were also present at that time. (Id. ¶¶ 50-51.) The female officers were walking past Griffin's cell or located 10 to 20 feet away from the area. (Id. ¶ 51.)
DISCUSSION
In their motion for summary judgment, Defendants argue that the undisputed evidence shows Plaintiffs cannot prove their claims, that Will County is not liable for the alleged constitutional violations, and that the individual Defendants are protected by qualified immunity. Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment will be denied if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. However, a nonmoving party "may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. at 248, 106 S.Ct. 2505 (internal quotation marks omitted). "In a § 1983 case, the plaintiff bears the burden of proof on the constitutional deprivation that underlies the claim, and thus must come forward with sufficient evidence to create genuine issues of material fact to avoid summary judgment." McAllister v. Price , 615 F.3d 877, 881 (7th Cir. 2010).
I. Defendant Will County
As a preliminary matter, Plaintiffs have sued Josephson in his official capacity as Sheriff of Will County, "which is effectively the same as having brought suit against the County ... itself." Holloway v. Del. Cty. Sheriff , 700 F.3d 1063, 1071 (7th Cir. 2012).2 Accordingly, the Court dismisses *881the claims against Josephson as duplicative of the claims against Will County.
II. Count I - Passmore's § 1983 Claim
Section 1983 provides that a person may not be deprived of any constitutional right by an individual acting under color of state law and authorizes plaintiffs to sue persons who have violated such rights. See Lewis v. Downey , 581 F.3d 467, 472 (7th Cir. 2009). "The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones." Farmer v. Brennan , 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks omitted). Under the Constitution, pretrial detainees "are entitled to confinement under humane conditions which provide for their basic human needs." Rice ex rel. Rice v. Corr. Med. Servs. , 675 F.3d 650, 664 (7th Cir. 2012) (internal quotation marks omitted).
Here, Passmore asserts that Defendants subjected him to cruel and unusual punishment in violation of his Fourteenth Amendment rights when they issued him dirty underwear and refused to allow him to exchange it and when they ignored his requests for medical treatment for his genital rashes. In other words, Passmore brings a claim for unconstitutional conditions of confinement based on dirty underwear and a claim for deprivation of medical care based on his untreated rashes.
A. Conditions of Confinement Claim
To evaluate a claim that the conditions of a plaintiff's confinement are unconstitutional, the Court conducts a two-step inquiry: first, the Court considers whether the adverse conditions of which the plaintiff complains are "sufficiently serious," such that the acts or omissions of prison officials giving rise to the conditions deprive the plaintiff of a "minimal civilized measure of life's necessities." Id. at 664-65. If so, the Court then inquires whether the defendants have been "deliberately indifferent to the adverse conditions." Id. at 665. This is a "demanding test." Gray v. Hardy , 826 F.3d 1000, 1005 (7th Cir. 2016).
1. Sufficiently Serious
The Seventh Circuit has not expressly addressed whether the issuance of dirty underwear constitutes a constitutional violation; however, other federal courts faced with this question have concluded that it does not. See, e.g. , Crawford v. Caddo Corr. Ctr. , No. 5:14-cv-3198, 2015 WL 3622689, at *3 (W.D. La. June 9, 2015) (finding no Eighth Amendment injury despite plaintiff's allegations that he "received boxer shorts with feces stains in the rear and unidentifiable stains in front" that caused "jock-itch serious enough to cause bleeding"); Sandstrom v. Hoffer , No. 08-3245-SAC, 2011 WL 4553067, at *4 (D. Kan. Sept. 29, 2011) (holding that plaintiff who was issued "laundered but stained underwear" failed to state conditions of confinement claim); Tapp v. Proto , 718 F.Supp.2d 598, 619 (E.D. Pa. 2010) (holding that inmate forced to wear dirty, torn, and stained underwear failed to state constitutional injury).
Yet a few aspects of Passmore's situation suggest a different result might be warranted here. First, Passmore has provided evidence that he was exposed to urine and feces, which the Seventh Circuit has consistently held to be proof of a sufficiently serious deprivation. See Myers v. Ind. Dep't of Corr. , 655 F. App'x 500, 503-04 (7th Cir. 2016) (affirming dismissal of *882Eighth Amendment claim where prisoner alleged he received inadequately washed clothing for four years but suggesting that such claim could be stated based on exposure to clothing residue that "might transmit serious diseases," such as urine and human waste);3 Vinning-El v. Long , 482 F.3d 923, 924 (7th Cir. 2007) (per curiam) (summarizing cases where allegations of exposure to human waste survived summary judgment). Moreover, Passmore testified that he suffered a physical reaction in the form of an itchy and painful genital rash. Compare Harris v. Fleming , 839 F.2d 1232, 1235 (7th Cir. 1988) (rejecting plaintiff's claim where he "experienced considerable unpleasantness, [but] he suffered no physical harm") with Martin v. Lane , 766 F.Supp. 641, 648 (N.D. Ill. 1991) (denying summary judgment where plaintiff showed that denial of access to shower caused him to develop a body rash because "allegations of resulting physical harm makes [sic ] this claim actionable").
Nonetheless, even viewing the totality of the record presented and drawing all reasonable inferences in Passmore's favor, this Court cannot conclude that the adverse conditions Passmore faced with respect to the dirty underwear were sufficiently serious to support his constitutional claim. While Passmore contends that he was prevented from exchanging the dirty underwear, he admits that he was not forced to wear it and he eventually decided not to do so. Cf. Isby v. Clark , 100 F.3d 502, 505-06 (7th Cir. 1996) (recognizing potential constitutional violation where plaintiff was locked in segregation cell with urine and feces on walls); Johnson v. Pelker , 891 F.2d 136, 139-40 (7th Cir. 1989) (same). In addition, Passmore admits that he had ample opportunity to wash the underwear, and both he and Griffin testified that they did so. See Gates v. Cook , 376 F.3d 323, 342 (5th Cir. 2004) (finding no constitutional injury where inmates were required to wash their own clothes with bar soap); Darris v. Mazzaie , No. 12-cv-01559-REB-CBS, 2013 WL 5291940, at *10 (D. Colo. Sept. 17, 2013) (finding no constitutional injury where plaintiff "does not allege that he was unable to bathe or wash his clothes himself"); Myers v. City of New York , No. 11-Civ-8525(PAE), 2012 WL 3776707, at *8 (S.D.N.Y. Aug. 29, 2012) (finding no constitutional injury where prisoner had opportunity and means to clean his own clothes). Furthermore, Passmore's possession of the dirty underwear was always of a limited duration, as WCADF circulated newly-laundered sets of underwear twice per week. Gordon v. Sheahan , No. 96 C 1784, 1997 WL 136699, at *8 (N.D. Ill. Mar. 24, 1997) ("Having to wear the same clothes for two or three weeks is not a deprivation of constitutional magnitude."); Martin v. Lane , 766 F.Supp. 641, 648 (N.D. Ill. 1991) (holding that deprivation of laundry services for between three and eighteen days is not sufficiently serious injury); see also Goss v. Bd. of Cty. Comm'rs of Creek Cty. , No. 13-CV-0374-CVE-TLW, 2014 WL 4983856, at *14 (N.D. Okla. Oct. 6, 2014) (holding that plaintiff forced to wear urine-stained pants for three days did not suffer sufficiently serious injury).
Finally, while Passmore asserts that he developed an itchy, painful rash on his genitals, he has not provided evidence *883showing that his rash was particularly serious. A medical condition is sufficiently serious if it "has been diagnosed by a physician as mandating treatment or ... is so obvious that even a lay person would perceive the need for a doctor's attention." Roe v. Elyea , 631 F.3d 843, 857 (7th Cir. 2011). Passmore has not shown that his rash was diagnosed by a physician; his only evidence is after-the-fact opinion testimony from a nurse practitioner, Tiffany Ferguson, that the symptoms Passmore described are consistent with irritant contact dermatitis. But Ferguson also testified that the dermatitis was not chronic or life-threatening and did not pose a risk of lingering disability. And Passmore's own testimony demonstrates that the rash faded on its own after a few months. Nor has Passmore offered any evidence or testimony that a lay person would have perceived that his rash obviously required medical attention. See, e.g. , Ware v. Fairman , 884 F.Supp. 1201, 1206 (N.D. Ill. 1995) (describing plaintiff's rash as not "serious" condition); see also Tasby v. Cain , 86 F. App'x 745, 746 (5th Cir. 2004) ("[Plaintiff's] assertion that he suffered a rash as a result of the [prison's] back restraints ... does not establish that he suffered serious harm"); Thompson v. Paleka , No. 17-00531 SOM-KJM, 2017 WL 5309608, at *6 (D. Haw. Nov. 13, 2017) (finding that plaintiff failed to allege facts showing that his rash, which he attributed to prison's dirty showers, was sufficiently serious); Vance v. Shearin , No. ELH-14-272, 2014 WL 470075, at *3 (D. Md. Feb. 4, 2014) (holding that plaintiff's genital rash does not constitute serious medical need). At most, Passmore presented testimony from Ferguson that dermatitis is treated by removing the irritant and providing gentle skin care, such as topical corticosteroids, emollient creams, and oatmeal baths. (PRMF ¶ 67.)
To be clear, the Court does not wish to minimize the fact that Passmore experienced significant personal discomfort. But ultimately, based on the facts at hand and abundant federal case law addressing similar situations, the issuance of dirty underwear to Passmore and refusal to allow him to exchange it was not sufficiently serious to support his conditions of confinement claim.
2. Deliberate Indifference and Monell
Even if Passmore's claim regarding the dirty underwear satisfied the first factor of his constitutional claim, it would still fail because he has not shown deliberate indifference. "An official is deliberately indifferent when he is subjectively aware of the condition or danger complained of, but consciously disregards it." Rice , 675 F.3d at 665 ; Gray , 826 F.3d at 1008 ("The warden must have known of and disregarded an excessive risk to inmate health or safety." (internal quotation marks and alteration brackets omitted)). In addition, Defendants must have been "both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and he must also have drawn the inference." Gray , 826 F.3d at 1008. Plaintiffs have pointed to no such evidence; at most, Passmore complained to Bargo about the dirty and stained underwear but not about any of the side effects he experienced. No reasonable jury could infer from these facts that Bargo "acted with the equivalent of criminal recklessness" regarding Passmore's safety. Grieveson v. Anderson , 538 F.3d 763, 777 (7th Cir. 2008).
As to the other individual Defendants, the record contains no evidence that any of them had personal knowledge of or were personally responsible for the dirty underwear. See Smith v. Roper , 12 F. App'x 393, 397 (7th Cir. 2001) ("A prison official cannot incur § 1983 liability unless that officer *884is shown to be personally responsible for a deprivation of a constitutional right." (internal quotation marks omitted)); see also Tesch v. Cty. of Green Lake , 157 F.3d 465, 476 (7th Cir. 1998) ("Because the officers did not inflict a constitutional injury on [plaintiff], the County, Chief, and the [supervisors] cannot be liable to [plaintiff]."). While Passmore submitted health care requests and grievances about his rash, "non-medical personnel not directly involved in an inmate's medical care are usually not liable for their review and/or denial of medical grievances." Ruiz v. Williams , 144 F.Supp.3d 1007, 1013 (N.D. Ill. 2015) ; see also Gevas v. Mitchell , 492 F. App'x 654, 656 (7th Cir. 2012) (dismissing claim where "[Plaintiff] alleges no personal involvement by the warden outside of the grievance process").
Similarly, even if Passmore could show that he suffered a constitutional deprivation, Will County would still be entitled to summary judgment because Passmore has not presented evidence that his injury was the result of an existing policy, rather than an isolated incident. In Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a § 1983 claim may be brought against a local governmental entity for the actions of its employees only if those actions were taken pursuant to an unconstitutional policy or custom. Id. at 694, 98 S.Ct. 2018. Passmore contends that the WCADF had an unconstitutional policy of requiring all inmates to share underwear with each other. However, Passmore offers no legal authority holding that such a policy constitutes cruel and unusual punishment, and this Court is not convinced. See Crawford , 2015 WL 3622689, at *2 (rejecting plaintiff's Eighth Amendment claim based on prison's communal laundry system). Moreover, the record contains no evidence that any inmate other than Passmore and Griffin experienced genital rashes. See Lunsford v. Bennett , 17 F.3d 1574, 1580 (7th Cir. 1994) ("This temporary discomfort affecting only a few prisoners hardly violates common notions of decency.").
Passmore also characterizes as unconstitutional Bargo's reliance on the maintenance staff to ensure that the laundry machines have adequate soap and bleach and her failure to inspect every piece of underwear before distribution. But Passmore offers no legal support for his position, and the Constitution does not require detention facilities to go to such extensive lengths. See Tesch , 157 F.3d at 476 (rejecting Eighth Amendment claim where plaintiff "was not denied any of his basic human necessities; he just did not receive the level of comfort that he demanded"); Miller v. Brown , No. 07-2020(JLL), 2007 WL 1876506, at *4 (D.N.J. June 26, 2007) ("While any person's desire for spotless cleaning, perfect washing facilities and weekly laundry service is understandable, lack of such niceties cannot amount to a violation of constitutional magnitude."). Indeed, Passmore does not dispute that Will County's policy requires the use of soap and bleach in every load of laundry and the disposal of any underwear stained with urine or feces or that the tender would not himself wear. In addition, if a detainee receives underwear with damage or stains, he may request an exchange, which will be granted at the discretion of laundry staff.
Therefore, in sum, the Court finds that summary judgment is warranted as to all Defendants on Passmore's conditions of confinement claim.
B. Deprivation of Medical Care Claim
Passmore also claims that Defendants violated his constitutional rights by denying him medical attention for his genital rashes. To demonstrate a triable issue of fact as to whether Defendants unconstitutionally *885deprived him of medical care, Passmore must show an objectively serious medical condition to which a state official was deliberately indifferent. Rodriguez v. Plymouth Ambulance Serv. , 577 F.3d 816, 828-29 (7th Cir. 2009).
The record here provides no indication who prevented Passmore from receiving medical attention.4 In addition, for reasons explained above, Passmore has failed to adduce sufficient evidence that his genital rash was an objectively serious medical condition. A reasonable jury could not conclude that the alleged failure to treat Passmore's medical condition rose to the level of deliberate indifference to a serious medical need. Cf. Myrick v. Anglin , 496 F. App'x 670, 674 (7th Cir. 2012) (holding that plaintiff suffering from hernia, herpes virus, and excruciatingly painful MRSA skin infections should have received medical treatment); Gutierrez v. Peters , 111 F.3d 1364, 1371 n.5 (7th Cir. 1997) (holding that plaintiff who experienced "excruciating pain, a purulent draining infection, and fever in excess of 100 degrees" should have received medical treatment).
Therefore, the Court grants summary judgment in Defendants' favor on Passmore's deprivation of medical claim as well.5
III. Count II - Griffin's § 1983 Claim
The Court turns next to Count II, Griffin's § 1983 claim. Griffin echoes Passmore's allegations regarding Defendants' issuance of dirty underwear, refusal to allow him to exchange the underwear, and denial of medical treatment for his rash. For the same reasons as with respect to Passmore, Griffin's claims relating to the dirty underwear and resulting rash do not rise to the level of a constitutional injury. But Griffin also contends that Defendants failed to treat his orbital fracture adequately, denied him fresh air, and left the lights on and slammed doors at night while he was trying to sleep in the M-pod.6 Moreover, Griffin asserts that after he was moved out of the M-pod, Defendants caused him to be strip-searched in front of female correctional officers on multiple occasions. In addition to considering these additional claims on their own merits, the Court also must consider whether the totality of Griffin's claimed conditions of confinement is enough to survive summary judgment. See Budd v. Motley , 711 F.3d 840, 842 (7th Cir. 2013) ("[C]onditions of confinement, even if not individually serious enough to work constitutional violations, may violate the Constitution in combination when they have 'a mutually enforcing effect that produces the deprivation of a single, identifiable human need.' " (quoting Wilson v. Seiter , 501 U.S. 294, 304, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) )).
A. Mistreatment of Orbital Fracture
Griffin claims that he was denied adequate medical care for his orbital fracture. However, he offers no proof in support of this allegation. The record demonstrates *886that Griffin was housed in the M-pod and evaluated by medical staff every two weeks. Twice during his first two months at WCADF Griffin was also taken to Loyola Hospital, where doctors checked his vision. See, e.g. , Walker v. Benjamin , 293 F.3d 1030, 1037 (7th Cir. 2002) (granting summary judgment in favor of defendant-doctor who correctly diagnosed condition, ordered further testing, and consulted with plaintiff-prisoner about treatment). Finally, Griffin was offered Tylenol for his eye pain, which he refused. See, e.g. , Norwood v. Ghosh , 723 F. App'x 357, 364 (7th Cir. 2018) (finding no deliberate indifference where defendant-doctor denied plaintiff's request for Vicodin and prescribed Tylenol -3 instead); cf. Walker , 293 F.3d at 1039 (denying summary judgment as to defendant-nurse who refused to administer prescribed plaintiff-prisoner's pain medication and accused him of "only want[ing] to get high"). Griffin also has not offered any evidence that he suffered extreme pain or permanent damage. See Daniel v. Cook Cty. , 833 F.3d 728, 731 (7th Cir. 2016) (reversing district court's grant of summary judgment where plaintiff-prisoner offered evidence that treatment caused permanent damage to his hand and wrist); Rodriguez v. Plymouth Ambulance Serv. , 577 F.3d 816, 829 (7th Cir. 2009) (holding that "minor pains cannot give rise to [an Eighth Amendment] claim").
Based on these facts, no reasonable juror would find that Griffin was unconstitutionally deprived of medical care. See, e.g. , Snipes v. DeTella , 95 F.3d 586, 591 (7th Cir. 1996) ("What we have here is not deliberate indifference to a serious medical need, but a deliberate decision by a doctor to treat a medical need in a particular manner. [Plaintiff] disagrees with the way that treatment was administered, but a mere disagreement with the course of the inmate's medical treatment does not constitute an Eighth Amendment claim of deliberate indifference." (internal quotation marks omitted)).
B. Denial of Fresh Air
Griffin also alleges that Defendants denied him fresh air and access to the outside while he was housed in the M-pod.
The Seventh Circuit has suggested that detainees have a constitutional right to "sunshine and fresh air." Jerricks v. Schomig , 65 F. App'x 57, 58 (7th Cir. 2003) ; see also Board v. Farnham , 394 F.3d 469, 486 (7th Cir. 2005) (recognizing constitutional right to adequate ventilation). But Griffin offers no evidence that the lack of fresh air or poor ventilation in M-pod was sufficiently serious to constitute a constitutional violation. To start, Griffin offers only his own testimony that "the ventilators is [sic ] all clogged up." (DSMF Ex. B at 113:19-20); see Dixon v. Godinez , 114 F.3d 640, 645 (7th Cir. 1997) (rejecting plaintiff's "conclusory allegations, without backing from medical or scientific sources, that the rank air exposed him to diseases and caused respiratory problems which he would not otherwise have suffered"). While Defendants do not dispute that inmates housed in the medical unit had no outside access, Griffin does not claim to have suffered any physical harm or adverse health outcome. See Gray , 826 F.3d at 1006 (holding that a plaintiff must "show that he suffered some cognizable harm from the overall ... environment"); see also Davis v. Williams , 216 F.Supp.3d 900, 909 (N.D. Ill. 2016) (finding plaintiff raised plausible Eighth Amendment claim where he suffered a "direct physical manifestation of the harm caused by the poor ventilation"). Furthermore, the Court observes that Griffin was only temporarily housed in the M-pod while he received treatment for his orbital fracture-a fact which weighs against his conditions *887of confinement claim. See Isby v. Brown , 856 F.3d 508, 522 (7th Cir. 2017) (" '[T]he length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards.' " (quoting Hutto v. Finney , 437 U.S. 678, 686, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) )); Gray , 826 F.3d at 1005 (instructing that an adverse condition's duration may affect whether it is an Eighth Amendment violation). And there is no indication that Griffin was denied outside access after August 2014, when he was no longer housed in the medical unit at WCADF.
Even if stale air or poor ventilation in M-pod was sufficiently serious to constitute a constitutional violation, Griffin cannot prove deliberate indifference. Griffin has not established that any Defendant knew that the lack of outside access posed a substantial risk to his health; he has not shown that he complained to anyone nor that he unsuccessfully requested to go outside. Therefore, there is no triable issue as to whether Defendants intentionally subjected Griffin to pain or suffering by keeping him indoors while he underwent treatment for his orbital fracture.
C. Lights and Slamming Doors
In addition, Griffin claims that while he was housed in the M-pod, the lights stayed on all night and staff entering the unit would slam the doors, giving him a headache. As to the lights, the Seventh Circuit has held that 24-hour lighting does not objectively constitute an extreme deprivation as required for a conditions of confinement claim. Vasquez v. Frank , 290 F. App'x 927, 929 (7th Cir. 2008) ; see also Allen v. Hardy , No. 11 C 4147, 2012 WL 5363415, at *8 (N.D. Ill. Oct. 26, 2012) (dismissing plaintiff's claim based on "cell house lights ... beaming on high beams 24 hours a day" where his only injury was minor sleep deprivation). With respect to the slamming doors, the Seventh Circuit has required plaintiffs to prove that the noise levels are near-constant and pose serious risk of injury. Compare Lunsford , 17 F.3d at 1577 n.2 & 1580 ("Subjecting a prisoner to a few hours of periodic loud noises that merely annoy, rather than injure the prisoner does not demonstrate a disregard for the prisoner's welfare.") with Antonelli v. Sheahan , 81 F.3d 1422, 1433 (7th Cir. 1996) (recognizing potential due process violation where plaintiff alleged that noises occurred "every night, often all night"). Griffin's proffered evidence fails to meet this standard. And once again, Griffin has not put forward evidence that he complained about the lights or slamming doors. Nor has he otherwise shown that any Defendant had subjective knowledge of his pain and suffering. Thus, Griffin cannot prove that Defendants acted with deliberate indifference regarding the lights and slamming doors.
D. Strip-Searches
Finally, Griffin claims that he was subjected to multiple strip-searches during which female officers were present or nearby. "A strip-search in jail or prison can be cruel and unusual punishment ... [if] motivated by a desire to harass or humiliate rather than by a legitimate justification, such as the need for order and security in prisons." King v. McCarty , 781 F.3d 889, 897 (7th Cir. 2015). But here, Griffin has offered no evidence that he was strip-searched for purposes of humiliation; rather, the record suggests that the strip searches occurred as part of a unit-wide shakedown. Cf. id. (finding that strip-search may have violated Eighth Amendment where plaintiff was only inmate targeted, there was no safety justification, and officers mocked plaintiff's nakedness). Moreover, the mere presence of female officers while a male plaintiff is nude does not constitute a constitutional violation.
*888See Calhoun v. DeTella , 319 F.3d 936, 939 (7th Cir. 2003) ("[T]he strip search of a male prisoner in front of female officers, if conducted for a legitimate penological purpose, would fail to rise to the level of an Eighth Amendment violation."); Johnson v. Phelan , 69 F.3d 144, 146-48 (7th Cir. 1995) (dismissing plaintiff's complaint that female officers stood guard while he showered and noting, "[h]ow odd it would be to find in the [E]ighth [A]mendment a right not to be seen by the other sex"). Therefore, Griffin's strip-search claim also fails.
E. Totality of Griffin's Claims
As noted above, the Court must also evaluate Griffin's claim as a whole to determine whether his overall conditions of confinement violate his constitutional rights. In cases where the totality of adverse conditions has been found sufficient, the various allegations suggest the extreme deprivation of a single basic human need. E.g. , Gray , 826 F.3d at 1005 (finding that plaintiffs' claims of lack of access to adequate cleaning supplies and pest infestations do not individually constitute Eighth Amendment violations but, taken together, show deprivation of "basic human need of rudimentary sanitation"); Davis , 216 F.Supp.3d at 906-910 (concluding that plaintiffs' complaints of contaminated water, pest infestation, inadequate ventilation, and lack of adequate cleaning supplies together indicate "sufficiently serious hygienic conditions"). By contrast, here, Griffin's allegations span a wide spectrum of issues, ranging from unsanitary conditions to lack of medical care, noise and light disturbances, and humiliation tactics. Griffin does not identify the deprivation of any specific need, instead asking the Court simply to conclude that "the conditions of confinement amounted to a constitutional violation." (Pl.'s Mem. in Resp. to Defs.' R. 56 Mot. for Summ. J. at 3, Dkt. No. 72.) Ultimately, even considered in their totality, Griffin's various claims do not amount to the denial of "the minimal civilized measure of life's necessities." Farmer , 511 U.S. at 834, 114 S.Ct. 1970. Therefore, the Court grants summary judgment in favor of all Defendants as to Count II as well.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment (Dkt. No. 69) is granted in its entirety. As the Court finds that Plaintiffs cannot establish their claims on the merits, the Court need not consider whether any individual Defendant might be entitled to the affirmative defense of qualified immunity.
Plaintiffs have styled their Second Amended Complaint as alleging violations of their rights against cruel and unusual punishment under the Eighth Amendment. As Defendants point out in their motion for summary judgment, however, Plaintiffs are pretrial detainees and thus their conditions of confinement claims arise under the Due Process Clause of the Fourteenth Amendment. See Rice ex rel. Rice v. Corr. Med. Servs. , 675 F.3d 650, 664 (7th Cir. 2012). But there is "little practical difference, if any, between the standards applicable to pretrial detainees and convicted inmates when it comes to conditions of confinement claims." Smith v. Dart , 803 F.3d 304, 309-10 (7th Cir. 2015).
In Carver v. Sheriff of La Salle County , 324 F.3d 947 (7th Cir. 2003), the Seventh Circuit certified as a question to the Illinois Supreme Court "whether, and if so when, Illinois requires counties to pay judgments entered against a sheriff's office in an official capacity." The Illinois Supreme Court answered that, "[b]ecause the office of the sheriff is funded by the county, the county is therefore required to pay a judgment entered against a sheriff's office in an official capacity." Carver v. Sheriff of La Salle Cty., Ill. , 203 Ill.2d 497, 272 Ill.Dec. 312, 787 N.E.2d 127, 141 (2003). Thus, in its own Carver decision, the Seventh Circuit held that "[b]ecause state law requires the county to pay, federal law deems it an indispensable party to the litigation." 324 F.3d at 948.
Myers is an unpublished Seventh Circuit order issued after January 1, 2007. Although not precedential, the order's reasoning is persuasive and provides a useful point of comparison here. See Fed. R. App. P. 32.1(a) ; 7th Cir. R. 32.1(b). The same reasoning applies to the Court's subsequent citations to the Seventh Circuit's orders in Smith v. Roper , Gevas v. Mitchell , Myrick v. Anglin , Norwood v. Ghosh , Jerricks v. Schomig , and Vasquez v. Frank .
Passmore claims only that he submitted three healthcare request slips regarding the rash but never saw a doctor about it. (DSMF Ex. A at 43-44.)
Passmore does not present any separate arguments in opposition to summary judgment on his Monell claim for deprivation of medical care. Therefore, the Court considers any such argument waived. See Kramer v. Banc of Am. Sec., LLC , 355 F.3d 961, 964 n.1 (7th Cir. 2004) ; Swanigan v. Trotter , 645 F.Supp.2d 656, 681 (N.D. Ill. 2009).
The complaint also includes allegations that Defendants ate in Griffin's cell. However, it is unclear how such conduct could constitute a constitutional violation. More importantly, Griffin does not address this alleged misconduct in his response to Defendants' summary judgment motion, so the Court considers the claim waived. Kramer , 355 F.3d at 964 n.1. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2261495/ | 861 F. Supp. 19 (1993)
Robert W. ROSEMAN, Plaintiff,
v.
The COUNTY OF CAMBRIA; and Kathy L. Holtzman and Mark J. Wissinger, Cambria County Commissioners, Defendants.
Civ. A. No. 92-597J.
United States District Court, W.D. Pennsylvania.
September 8, 1993.
Stephen D. Wicks, Altoona, PA, for plaintiff.
*20 Bryan B. Campbell, Israel and Wood, Pittsburgh, PA, for defendant.
MEMORANDUM ORDER
D. BROOKS SMITH, District Judge.
Plaintiff Robert Roseman, formerly the Clerk of Cambria County, has filed a complaint seeking money damages[1] from Cambria County and two of its commissioners, alleging that the defendant commissioners' politically-motivated decision to replace him violates the Elrod-Branti Rutan doctrine. See Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980); Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990). Before the Court is defendants' motion to dismiss which asserts that, even if true, plaintiff's allegations do not constitute a cause of action. Fed.R.Civ.P. 12(b)(6).
Accepting plaintiff Roseman's allegations as true, see Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir.1991), Roseman was hired as the Clerk on December 16, 1985, and held that position until January 6, 1992. In the 1991 elections, two Republicans, defendants Kathy G. Holtzman and Mark J. Wissinger, were elected as commissioners.[2] Immediately upon assuming office on January 6, 1992, see 16 P.S. § 502, the Republican commissioners replaced Roseman, a Democrat, with Michael J. Gelles, a Republican, solely on the basis of political affiliation.
Analysis of Elrod-Branti-Rutan claims proceeds sequentially. At the motion to dismiss stage, inquiry is limited to examination of "the function[s] of the public office in question and not the actual past duties of the particular employee involved." Waskovich v. Morgano, 2 F.3d 1292, 1297 (3d Cir. 1993), quoting Brown v. Trench, 787 F.2d 167, 168 (3d Cir.1986). Accord, Pounds v. Griepenstroh, 970 F.2d 338, 341 (7th Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1256, 122 L. Ed. 2d 654 (1993). Where the nature of the office cannot be ascertained simply by examining the law, it may be necessary at the summary judgment stage to examine the functions actually performed by individuals occupying the relevant position. Waskovich at 1297. At both stages, the dispositive issue is whether the defendants can demonstrate that the position is one for which political affiliation is an appropriate requirement for effective performance. Rutan, 497 U.S. at 64, 110 S. Ct. at 2731.
There is copious precedent in this circuit which provides guidance for analysis of the position of chief clerk. See Waskovich (director of veterans' agency); Zold v. Township of Mantua, 935 F.2d 633 (3d Cir.1991) (deputy township clerk); Furlong v. Gudknecht, 808 F.2d 233 (3d Cir.1986) (second deputy recorder of deeds); Brown, (assistant director of public information); Mummau v. Ranck, 687 F.2d 9 (3d Cir.1982) (per curiam) (assistant district attorney); Ness v. Marshall, 660 F.2d 517 (3d Cir.1981) (city solicitor and assistant city solicitor); see also Savarese v. Agriss, 883 F.2d 1194 (3d Cir.1989) (director of county transportation authority). Recent precedent from Cambria County itself is available. Burns v. County of Cambria, 971 F.2d 1015 (3d Cir.1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1049, 122 L. Ed. 2d 357 (1993) (deputy sheriffs); see also Lee v. Wojnaroski, 751 F. Supp. 58 (W.D.Pa. 1990) (deputy city controller). The decisions from other circuits are too numerous to list, *21 as are the precedents in the closely related line of cases involving employment and discharge on the basis of political speech. See e.g. Kinsey v. Salado Independent School District, 950 F.2d 988 (5th Cir.1992) (en banc) (school district superintendent). See generally Burns, 971 F.2d at 1022, citing Martin, A Decade of Branti Decisions 39 Am.U.L.Rev. 11 (1989).
Although formerly the post was an elected office in some counties, see legislative history to 16 P.S. § 7324, at least since the Act of August 9, 1955, P.L. 323, the chief clerk of all third through eighth class counties are appointed by a majority of the board of commissioners, 16 P.S. § 520, and serve at the pleasure of the board. 16 P.S. § 450(b). The legislative codification of the duties of the county clerk is scanty. See 16 P.S. § 521 (applicable to third through eighth class counties); see also id., § 3521 (second class counties); id., § 7323 (first class counties), each of which provide that the clerk shall keep the books and the accounts of the commissioners, administer oaths, and, tautologically, "perform all other duties pertaining to his office as chief clerk." Little light is shed on what those unenumerated "other duties" are in the few other sections of the county code which mention the clerk's dealings with the office of commissioner: Section 504(b) requires all county documents that are to be executed by the commissioners also be attested and sealed by the clerk, while Section 505 provides that county records certified by the clerk shall be received into evidence in court.
The Pennsylvania Supreme Court, however, has expounded on the nature of the office of the county clerk in Koontz v. Franklin County, 76 Pa. 154 (1874). In overturning the actions of a board of commissioners which at its first meeting in February 1871 appointed a clerk for a period extending to April 1872, Justice Gordon described the Clerk as "an important confidential servant" intended by the law to be "the exponent of the will of the commissioners," who is "not merely skilful in the performance of his duties but who also enjoys the confidence of his employers." 76 Pa. at 156. Under Waskovich, Burns and Rutan, those descriptions of the nature of the post under state law are well-nigh conclusive in establishing the appropriateness of political affiliation for the post. See Waskovich at 1297, quoting Zold, 935 F.2d at 640.
But, plaintiff alleges, as a matter of fact the duties of the clerk in Cambria County are not confidential or political in nature, but rather clerical. Even assuming that to be the case,[3] the past practice of county commissioners does not bar the defendant commissioners, or future commissioners, from employing the Clerk in a confidential capacity or in a political role, Waskovich at 1298, quoting Ness, 660 F.2d at 521, 522. If the county commissioners could not, under state law, make the position of clerk a political post, as the county sheriff clearly could not make deputy sheriff's political operatives, see Burns, 971 F.2d at 1022, plaintiff's argument would have some force. But the indefiniteness and therefore potential breadth of the "other powers" granted to the Clerk by the County Code, together with the long-unquestioned precedent of Koontz that conceives of the chief clerk as the "exponent of the will" of the commissioners mandates dismissal of his claim that political affiliation is an impermissible basis to select a clerk.
Judgment is entered for the defendants. The Clerk shall mark this matter closed.
NOTES
[1] Plaintiff seeks compensatory damages from the county and from the commissioners. Plaintiff also seeks punitive damages, available only from the commissioners in their individual capacities. Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981). Plaintiff does not seek reinstatement.
[2] Under Article IX, Section 4 of the Pennsylvania Constitution of 1968, each county will normally have two majority party commissioners and one minority party commissioner. See, Coon v. Allegheny County Board of Elections, 488 Pa. 97, 410 A.2d 1243 (1980). Prior to 1992, Cambria County had one Republican commissioner (Holtzman) and two Democratic commissioners (Joseph Roberts and Ron Stephenson). One of defendant Wissinger's factual defenses, which cannot be reached at this stage of the proceedings, is that Roseman was actually replaced by Gelles and transferred to the Office of the Recorder of Deeds by the vote of one Democratic commissioner (Roberts) and one Republican commissioner (Holtzman) during the January 2, 1992 final meeting of the previous board of commissioners.
[3] It is almost a matter for judicial notice that the county clerk acts in a capacity equivalent to the chief executive officer to the board of commissioners. In a real sense, the clerk is the executive branch of the county government in Pennsylvania's smaller counties. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261546/ | 110 Cal.Rptr.2d 185 (2001)
91 Cal.App.4th 298
The PEOPLE, Plaintiff and Respondent,
v.
Javontie ELAM, Defendant and Appellant.
No. B141040.
Court of Appeal, Second District, Division One.
August 2, 2001.
As Modified on Denial of Rehearing August 22, 2001.
*187 Tara M. Mulay, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Victoria Bedrossian Wilson and Michael W. Whitaker, Deputy Attorneys General, for Plaintiff and Respondent.
*186 SPENCER, P.J.
INTRODUCTION
Defendant Javontie Elam appeals from a judgment entered after a jury convicted him of assault with intent to commit a sexual felony, forcible oral copulation (Pen. Code, § 220), one count of misdemeanor-or-felony sexual battery (id., § 243.4, subd. (a)) and one count of misdemeanor sexual battery (id., subd. (d)(1)). Defendant admitted he previously had been convicted of two serious or violent felonies (id., §§ 667, 1170.12) for which he had served prison terms within the meaning of Penal Code section 667.5, subdivision (b). After denying defendant's request to strike a prior conviction, the trial court sentenced defendant to state prison for the term prescribed by law. We reverse the judgment.
STATEMENT OF FACTS
While Darlene H. was working with defendant as an usher at the Music Center on January 5, 1999, defendant placed his hand on Darlene's breasts. She said, "No, I don't do that. I don't play like that." She elbowed defendant to remove his hand. Defendant acted as if it were a joke, then walked away. On the following day, defendant called Darlene a bitch. She reported the incident to her supervisor.
On June 26, 1999, Sirena T. was waiting in the parking lot with Diana and Felipe Perez for their rides after finishing work at the Hollywood Bowl. Defendant joined the group. The Perezes left when their ride arrived. Sirena and defendant talked a bit about work, then walked to the Promenade area of the Hollywood Bowl. They sat in box seats, facing each other.
Defendant put his hand between Sirena's legs, over her clothing. He told her she had a nice body. Sirena told him that what he was doing was not right. She said she had to go home. Defendant had unzipped his trousers and pulled out his penis. He placed Sirena's left hand on his penis, then rubbed his penis with her hand. He grabbed her right forearm and tried to pull her down onto her knees. He told her to get on her knees and perform oral copulation on him. The force defendant applied to her forearm caused a bruise. Sirena told defendant again that what he was doing was not right. She rose and walked down the aisle toward the exit.
Defendant followed Sirena. He grabbed her shoulders from behind, pulled her towards him and began rubbing her breasts. He also fondled her buttocks. Defendant had pulled down his trousers and tried to *188 pull down her pants. Sirena's cellular telephone rang. She pushed defendant away and attempted to speak to her mother on the cellular telephone. Defendant grabbed her again, placed her left hand on his penis and told her to make it hard. Sirena pulled away again and hurried down the hill to meet her mother. Defendant followed her. He told her, "This will be between you and me." She saw him walk towards some bushes as she neared her mother's car.
Sirena's mother, Catherine S., had attempted to reach Sirena several times on her cellular telephone after arriving at the Hollywood Bowl. Sirena eventually answered the telephone. Catherine S. told Sirena to meet her in the Plaza. When Sirena appeared, she seemed to be in a great hurry. After entering the car, Sirena curled up in a ball. She did not speak.
Sirena's grandmother, Maxine T., had accompanied Catherine S. to the Hollywood Bowl. As Sirena hurried down the hill, Maxine T. saw someone with dark hair, who was wearing an usher's uniform, walking behind Sirena. The person turned and disappeared into some bushes.
Sirena did not tell her mother or grandmother what had happened. She just wanted to sleep. When she arrived home, she showered, then went to bed.
When Sirena returned to work on the following day, she reported defendant's conduct to Casey Williams (Williams), an assistant supervisor of defendant and Sirena's. After Sirena reported defendant's June 26 conduct to him, Williams went to his supervisor, Daniel Rothschild (Rothschild). Sirena told Rothschild about the June 26 incident with defendant. Rothschild took Sirena to his supervisor, Alise Brown.
A week earlier, Williams had a conversation with defendant during which defendant said he had heard from "some guy" that "[i]f you play with [Sirena's genitals], she will [perform oral copulation]." Believing this was disrespectful, Williams gave defendant an odd look.
On the evening of June 27, when defendant learned that Sirena had been talking to people about his conduct, he became angry. He told Diana Perez, "Oh, that lying bitch."
Sirena told Los Angeles Police Officer Timothy Cleary, the first police officer to whom she spoke about this incident, that defendant had unzipped his trousers, taken out his penis, grabbed her arm, tried to force her to touch his penis and told her to make it hard. She made the same statements to Williams. She did not state that defendant pushed her hand down into his trousers. Sirena also related the incident to Los Angeles Police Officer Ed Tom and Detective Joe.
Officer Cleary interviewed Sirena regarding this incident. She related what had happened to her. Her account included a statement that her coworker, defendant, had grabbed her from behind, turned her towards him, pulled down his trousers, grabbed her right forearm and forced her to touch his penis. He told her to make it hard. She also stated that she was able to get away, but defendant followed her. He grabbed her again and touched her breasts, after which she once again escaped.
Officer Cleary observed a one-half inch by one-half inch circular bruise on Sirena's right inner forearm. The bruise was black and blue, "as if someone had grabbed her arm." The bruise appeared relatively fresh. It had not begun to fade or turn yellow.
Defense
Defendant has four prior felony convictions. He had been in alcohol and drug *189 rehabilitation in 1995. He had been sober for six years. He stopped committing crimes after becoming sober.
Defendant had worked as an usher at the Hollywood Bowl since May 1999. He worked evenings while attending Los Angeles City College during the day. He aspired to be a juvenile delinquency counselor.
Defendant worked with Sirena on the evening of June 26. After the performance ended, defendant went to the parking lot to catch a bus. He saw Sirena and the Perezes waiting for their rides. Defendant chatted with them for 15 minutes. After the Perezes left, defendant talked to Sirena for approximately 10 minutes. Defendant then walked back up the hill. He intended to speak with Emily, who handled the payroll, for his check was incorrect. Sirena followed him for a short distance but then stopped to talk to a friend.
Defendant never touched Sirena. He is a homosexual who has not had sex with a woman for 17 years. While in jail, defendant was placed in a special unit for homosexual men.
CONTENTIONS
I
Defendant contends the trial court erred prejudicially in failing to instruct the jury sua sponte on the meaning of force in relation to the offense of assault with intent to commit forcible oral copulation.
II
Defendant further contends the trial court erred prejudicially in failing to instruct the jury sua sponte on the meaning of the terms "duress" and "menace."
III
Defendant asserts the trial court erred prejudicially in failing to instruct the jury sua sponte on the lesser included offense of simple assault as an alternative to assault with intent to commit forcible oral copulation.
IV
Defendant avers there is insufficient evidence to support his felony sexual battery conviction and, as a consequence, the matter must be remanded for resentencing.
V
Defendant further avers the trial court erred prejudicially in failing to instruct the jury on the lesser included offense of misdemeanor sexual battery and in failing to give a unanimity instruction, CALJIC No. 17.01, with respect to the misdemeanor-or-felony sexual battery.
VI
Defendant asserts the trial court erred prejudicially in instructing the jury with CALJIC No. 17.41.1.
VII
Finally, defendant contends the trial court erred prejudicially in removing Juror No. 3.
DISCUSSION
I
Defendant contends the trial court erred prejudicially in failing to instruct the jury sua sponte on the meaning of force in relation to the offense of assault with intent to commit forcible oral copulation. The contention lacks merit.
The trial court must give instructions, even in the absence of a request, on *190 all general principles of law "`"closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case."'" (People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201, 47 Cal.Rptr.2d 569, 906 P.2d 531; accord, People v. Montoya (1994) 7 Cal.4th 1027, 1047, 31 Cal.Rptr.2d 128, 874 P.2d 903; People v. Cummings (1993) 4 Cal.4th 1233, 1311, 18 Cal.Rptr.2d 796, 850 P.2d 1.) This necessarily includes correct instruction on all essential elements of the charged offense. (Wickersham, supra, at p. 323, 185 Cal.Rptr. 436, 650 P.2d 311.)
The trial court also has a sua sponte duty to define for the jury any term having a technical meaning peculiar to the law. (People v. Howard (1988) 44 Cal.3d 375, 408, 243 Cal.Rptr. 842, 749 P.2d 279; People v. Pruett (1997) 57 Cal.App.4th 77, 81, 66 Cal.Rptr.2d 750.) As noted in People v. Estrada (1995) 11 Cal.4th 568 at page 574, 46 Cal.Rptr.2d 586, 904 P.2d 1197, a word or phrase has a technical, legal meaning that requires clarification only if it "has a definition that differs from its nonlegal meaning." (Italics in the original.)
The force necessary in sexual offense cases is "`"physical force substantially different from or substantially in excess of that required"'" for the commission of the sexual act. (People v. Senior (1992) 3 Cal.App.4th 765, 774, 5 Cal.Rptr.2d 14; accord, People v. Mom (2000) 80 Cal. App.4th 1217, 1224, 96 Cal.Rptr.2d 172.) One non-legal meaning of force is "to press, drive, attain to, or effect as indicated against resistance . . . by some positive compelling force or action." (Webster's Third New Internat. Diet. (1993) p. 887, col. 2, italics added.) Another is "to achieve or win by strength in struggle or violence." (Ibid.) These definitions do not differ in any significant degree from the legal definition. It thus is doubtful whether the court ever has a sua sponte duty to define "force" in a sexual offense case containing the element that it be accomplished against the will of the victim. (But see People v. Pitmon (1985) 170 Cal.App.3d 38, 52, 216 Cal.Rptr. 221.)
In any event, defendant was not charged with forcible oral copulation but with assault with intent to commit forcible oral copulation. It is settled that "[t]o support a conviction for . . . [such an offense], the prosecution must prove the assault and an intent on the part of the defendant to use whatever force is required to complete the sexual act against the will of the victim." (People v. Greene (1973) 34 Cal.App.3d 622, 648, 110 Cal. Rptr. 160, internal quotation marks omitted.) The jury therefore was not charged with determining whether defendant applied physical force substantially different from or greater than that necessary to obtain oral copulation, but only with determining whether his acts demonstrated an intent to use that degree of force necessary to complete the act against Sirena's will. For this reason, too, no special instruction on force was necessary.
II
Defendant further contends the trial court erred prejudicially in failing to instruct the jury sua sponte on the meaning of the terms "duress" and "menace." This contention is equally meritless.
We need not decide whether the definitions of "duress" and "menace" found in Penal Code section 261, subdivisions (b) and (c), apply to other sexual offenses. *191 The statutory definitions are the mere codification of common dictionary definitions.
Subdivision (b) of Penal Code section 261 defines "duress" as "a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted." A common dictionary meaning of "duress" is "stringent compulsion by threat of danger, hardship, or retribution . . .: Coercion." (Webster's Third New Internat. Diet., supra, p. 703, col. 2.) Another common meaning is "compulsion or constraint by which a person is illegally forced to do or forbear some act by . . . physical violence to the person or by threat of such violence, the violence or threat being such as to inspire a person of ordinary firmness with fear of serious injury to the person . . . [or] reputation." (Ibid.) These common dictionary definitions of "duress" do not differ significantly from the statutory definition.
Subdivision (c) of Penal Code section 261 defines "menace" as "any threat, declaration, or act which shows an intention to inflict an injury upon another." The common dictionary meaning of "menace" is "a show of intention to inflict harm"; "a threatening gesture, statement, or act." (Webster's Third New Internat. Diet., supra, p. 1409, col. 3.) Again, the common meaning of "menace" does not differ significantly from the statutory definition.
As noted in part I, ante, the trial court has a sua sponte duty to define for the jury only a term having a technical meaning peculiar to the law. (People v. Howard, supra, 44 Cal.3d at p. 408, 243 Cal. Rptr. 842, 749 P.2d 279; People v. Pruett, supra, 57 Cal.App.4th at p. 81, 66 Cal. Rptr.2d 750.) To have such a meaning, the legal definition must differ from the common one. (People v. Estrada, supra, 11 Cal.4th at p. 574, 46 Cal.Rptr.2d 586, 904 P.2d 1197.) Inasmuch as the statutory definitions of "duress" and "menace" do not differ significantly from the non-legal, common meanings of those words, the trial court had no sua sponte duty to instruct the jury on the definitions of duress and menace.
In any event, there was no evidence from which the jury could have found that defendant assaulted Sirena with the intent of applying duress or menace sufficient to obtain oral copulation as opposed to the intent to use such force. The failure to define "duress" and "menace" therefore could not have harmed defendant.
III
Defendant asserts the trial court erred prejudicially in failing to instruct the jury sua sponte on the lesser included offense of simple assault as an alternative to assault with intent to commit forcible oral copulation. We disagree.
"An assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another, or in other words, it is an attempt to commit a battery[, defined as] `any willful and unlawful use of force or violence upon the person of another.'" (People v. Rocha (1971) 3 Cal.3d 893, 899, 92 Cal.Rptr. 172, 479 P.2d 372; People v. Lathus (1973) 35 Cal.App.3d 466, 470, 110 Cal.Rptr. 921.) It requires "the general intent to willfully commit a battery, an act which has the direct, natural and probable consequences, if successfully completed, of causing injury to another." (People v. Brown (1989) 212 Cal.App.3d 1409, 1419, 261 Cal.Rptr. 262.) Inasmuch as assault with intent to commit forcible oral copulation is merely a simple assault committed with the specific intent to force the victim to commit oral copulation *192 (People v. Greene, supra, 34 Cal. App.3d at p. 648, 110 Cal.Rptr. 160), simple assault is a lesser offense necessarily included in the greater offense.
The court must instruct the jury with respect to every defense theory of the case that is supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 157, 77 Cal.Rptr.2d 870, 960 P.2d 1094; People v. Flannel (1979) 25 Cal.3d 668, 684-685, 160 Cal.Rptr. 84, 603 P.2d 1.) Evidence is substantial if a reasonable jury could find it persuasive (People v. Barton, supra, 12 Cal.4th at p. 201, fn. 8, 47 Cal.Rptr.2d 569, 906 P.2d 531) and therefore conclude "`"that the particular facts underlying the instruction did exist"'" (People v. Ceja (1994) 26 Cal. App.4th 78, 85, 31 Cal.Rptr.2d 475).
There is no evidence in this case justifying an instruction on simple assault. Defendant relies on Officer Cleary's testimony for such evidence, but his reliance is misplaced.
Officer Cleary's testimony had three purposes. First, to establish that Sirena had stated consistently, from the beginning, that defendant unzipped his trousers, exposed his penis and forced her to touch it. Second, to establish that she had stated consistently, from the beginning, that he also grabbed her and touched her breasts. Third, to corroborate Sirena's testimony that he grabbed her right forearm with sufficient force to create a large bruise. During cross-examination, defense counsel had challenged Sirena's credibility forcefully in these three areas.
Officer Cleary was not asked whether Sirena had related to him defendant's attempt to force her to perform oral copulation. Her statements to him therefore are not inconsistent with her trial testimony, except to the extent that she told Officer Cleary defendant grabbed her right arm and forced her to touch his penis after he grabbed her from behind and turned her around to face him. She testified at trial that defendant grabbed her left hand on that occasion. This is a minor inconsistency. Right arm or hand, left handit makes no real difference. What is significant is that Sirena's statement to Officer Cleary is not inconsistent with defendant earlier having grabbed her right arm to force her to her knees when they were seated in the box seats. It is equally significant that Sirena did not tell Officer Cleary that defendant bruised her arm during the penis-touching incident. Inasmuch as there is no inconsistent testimony upon which the jury could seize to conclude that defendant did not intend to force Sirena to perform oral copulation but did assault her, there is no evidentiary support for an instruction on simple assault.
IV
Defendant avers there is insufficient evidence to support his felony sexual battery conviction and, as a consequence, the matter must be remanded for resentencing. We agree this conviction is unsupported by the evidence, but disagree as to the need for remand.
In assessing the sufficiency of the evidence to sustain a conviction, this court must view the entire record, including all reasonably deducible inferences, in the light most favorable to the judgment. The conviction will be upheld if it is supported by substantial evidence, i.e., evidence that is credible and of solid value. (People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal.Rptr.2d 26, 919 P.2d 640; People v. Cain (1995) 10 Cal.4th 1, 39, 40 Cal.Rptr.2d 481, 892 P.2d 1224.) It is only when the evidence, so viewed, would not permit any reasonable trier of fact to have found the defendant guilty beyond a reasonable *193 doubt that the judgment will be reversed. (Osband supra, at p. 690, 55 Cal.Rptr.2d 26, 919 P.2d 640.)
Sexual battery under Penal Code section 243.4, subdivision (a), which can be either a misdemeanor or a felony, requires that a person "touch[] an intimate part of another person while that person is unlawfully restrained by the accused . . . and . . . the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse. . . ." As used in this subdivision, the word "touch" means "physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense." (Id., subd. (e), italics added.) "`Intimate part'" means "the sexual organ, anus, groin, or buttocks of any person, and the breast of a female." (Id, subd. (f)(1).) In other words, to be guilty of this form of sexual battery, defendant must have touched the skin of Sirena's sexual organ, anus, groin, buttocks or breast.
The prosecutor argued and the court accepted that it was sufficient for sexual battery that defendant forced Sirena's hand to touch his penis. They were mistaken. As defined, the term "intimate part" does not include the victim's hand. Moreover, it is the perpetrator who must touch the victim's intimate part, not the other way around.
The People now argue that the jury readily could infer skin to skin contact from defendant's attempt to remove Sirena's pants or her statement to a police officer that defendant fondled her buttocks. There is no evidence that defendant touched the skin of Sirena's buttocks when he attempted to pull down her pants or at any other time. There also is no evidence that he touched the skin of her breasts. Given the dearth of evidence, this sexual battery conviction must be reversed. No reasonable jury could have found the defendant guilty as charged. (People v. Osband supra, 13 Cal.4th at p. 690, 55 Cal.Rptr.2d 26, 919 P.2d 640.)
Defendant additionally argues that reversal mandates a remand for resentencing, in that the trial court well might view his request to strike a prior conviction differently absent the misdemeanor-or-felony sexual battery. In view of the conclusion we reach in part VII, post, we need not address this argument.
V
Defendant further avers the trial court erred prejudicially in failing to instruct the jury on the lesser included offense of misdemeanor sexual battery and in failing to give a unanimity instruction, CALJIC No. 17.01, with respect to the misdemeanor-or-felony sexual battery charge. Inasmuch as defendant's felony conviction of sexual battery must be reversed, we need not address the merits of these issues.
VI
Defendant asserts the trial court erred prejudicially in instructing the jury with CALJIC No. 17.41.1. He has waived the assertion.
The trial court instructed the jury with CALJIC No. 17.41.1 that "[t]he integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is *194 the obligation of the other jurors to immediately advise the Court of the situation."[1]
Defendant argues that CALJIC No. 17.41.1 infringes upon a jury's right to nullify, thereby serving as the conscience of the community. In defendant's view, this denies him his right to a jury trial within the meaning of the Sixth Amendment to the United States Constitution. He also argues that CALJIC No. 17.41.1 hampers jurors' candid exchange of views by threatening intrusion on the privacy of jury deliberations, and it facilitates coercion of minority jurors by the majority. This, he maintains, violates due process of law.
Defendant raised no objection in the trial court to the jury's instruction with CALJIC No. 17.41.1. His failure to do so waives any claim of error on appeal unless CALJIC No. 17.41.1 affected his substantial rights. In our view, it did not.
The Supreme Court has recently addressed the concept of jury nullification within the context of a trial court's excusing a juror for failure to follow the law. In People v. Williams (2001) 25 Cal.4th 441, 106 Cal.Rptr.2d 295, 21 P.3d 1209, the court noted that it was aware of no cases holding "that a trial court violates the defendant's right to a jury trial by excusing a juror who refuses to follow the law." (At p. 449.) While, "as a practical matter, the jury in a criminal case may have the ability to disregard the court's instructions in the defendant's favor without recourse by the prosecution[, this] does not diminish the trial court's authority to discharge a juror who, the court learns, is unable or unwilling to follow the court's instructions." (Ibid.)
The court observed that "[i]t long has been recognized that, in some instances, a jury has the ability to disregard, or nullify, the law." (People v. Williams, supra, 25 Cal.4th at p. 449, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) It can acquit a defendant despite evidence establishing guilt. (Ibid.) It may render inconsistent verdicts. (Ibid.) The jury's "`"assumption of a power which they had no right to exercise, but to which they were disposed through lenity"'" is not subject to review or challenge by the prosecution. (Ibid.)
Nonetheless, "it is still the right of the court to instruct the jury on the law, and the duty of the jury to obey the instructions." (People v. Williams, supra, 25 Cal.4th at p. 451, 106 Cal.Rptr.2d 295, 21 P.3d 1209, internal quotation marks omitted.) This has long been the law established by both the United States and the California Supreme Courts. (Id. at pp. 451-456, 106 Cal.Rptr.2d 295, 21 P.3d 1209.)
It also has been the law that the trial court is not required to instruct the jury on its power of nullification or permit the jury to disregard the law. (People v. Williams, supra, 25 Cal.4th at p. 455, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) Rather, it is proper for the trial court to instruct the jury on its obligation to follow the instructions given to it and to discharge a juror who refuses to do so. (Id. at p. 461, 106 Cal.Rptr.2d 295, 21 P.3d 1209.)
The directive set forth in CALJIC No. 17.41.1 to notify the court if a juror refuses to deliberate or expresses an intent to disregard the law or to use any improper basis, such as punishment, in reaching a verdict is a vehicle for ensuring that jurors comply with their duties. CALJIC No. 17.41.1 does nothing more than remind jurors of their obligation to follow the instructions given to them, which is absolutely proper. (People v. Williams, supra, 25 *195 Cal.4th at p. 452, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) The Supreme Court's opinion in Williams makes it clear that CALJIC No. 17.41.1 is consistent with the long established law that the trial court has the right to instruct the jury on the law, and the jury has the duty to obey its instructions. (Williams, supra, at pp. 451-452, 106 Cal.Rptr.2d 295, 21 P.3d 1209.)
Moreover, CALJIC No. 17.41.1 neither interferes with a defendant's right to a jury trial nor has a chilling or coercive effect on juror deliberations. Each juror takes an oath to "`well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court.'" (Code Civ. Proc., § 232, subd. (b), italics added.) The Supreme Court acknowledged in People v. Cleveland (2001) 25 Cal.4th 466, 106 Cal. Rptr.2d 313, 21 P.3d 1225, the companion case to Williams, that "caution must be exercised in determining whether a juror has refused to deliberate." (At p. 475.) Questioning jurors about their deliberations can have an effect on the deliberations themselves, making the jurors reluctant to express their opinions freely. (Id. at p. 476, 106 Cal.Rptr.2d 313, 21 P.3d 1225.) "The need to protect the sanctity of jury deliberations, however, does not preclude reasonable inquiry by the court into allegations of misconduct during deliberations." (Ibid.) CALJIC No. 17.41.1 enables the trial court to conduct a reasonable inquiry when a possibility of misconduct exists. It does nothing more than remind the jurors of their oath and obligation, then enlist them in aiding the detection of oath violators. There is nothing chilling or coercive about reminding the jurors of their obligations. (People v. Keenan (1988) 46 Cal.3d 478, 536, 250 Cal. Rptr. 550, 758 P.2d 1081.)
CALJIC No. 17.41.1 does not speak of reward for informing the court of misconduct or of punishment for failing to do so. It has no tendency to influence a case in favor of either side or seek disclosure of a juror's thoughts or idiosyncrasies. It does not impair jurors' ability to question the strength of the People's case.
In short, CALJIC No. 17.41.1 does not affect any fundamental rights. To the contrary, it is unobjectionable. Defendant therefore has waived any claim of error on appeal. (People v. Guiuan (1998) 18 Cal.4th 558, 570, 76 Cal.Rptr.2d 239, 957 P.2d 928.)
VII
Finally, defendant contends the trial court erred prejudicially in removing Juror No. 3. We agree.
After half a day of deliberations, the court received a note from the foreperson, Juror No. 6, which read, "There is a perception problem with Juror No. 3. Possibly a language understanding. Help." In the presence of counsel, the court summoned Juror No. 6 to "clarify the nature of the problem."
Juror No. 6 believed Juror No. 3 had problems with the English language. Juror No. 6 also stated that he or she did not believe Juror No. 3 understood the "process, maybe the law here. We are having trouble understanding him, and we feel he is having problems trying to explain different points of view. We don't think he is grasping the big picture." Given the "concepts we have tried to present him with in deliberating," Juror No. 6 was "not certain [Juror No. 3] has a full understanding of what we are doing here."
After speaking to Juror No. 6, the court summoned Juror No. 3. He acknowledged having "some" difficulty with the English language, "a little bit." He had been in *196 school in California for almost a year. He had earned an Associate of Arts degree in English from Glendale Community College, however. He thought he could manage. He had no problem understanding the testimony. The court was having "a little trouble" understanding Juror No. 3.[2] He acknowledged that he had a pronounced accent. While his first language was not English, he had grown up speaking English and had spoken English continuously while serving in the United States Navy.[3] Before coming to California, Juror No. 3 had lived in Italy, where he primarily spoke English. When the court asked Juror No. 3 his opinion of why the other jurors were concerned about an inability to communicate, he answered, "Maybe we see the case differently." In his opinion, Juror No. 3 did not have a significant language problem. He understood the instructions. He was able to participate in discussions.[4]
The court then summoned the remaining jurors, one by one. Juror No. 1 believed that Juror No. 3 had "a language problem." Juror No. 1's primary complaint, however, was that "[w]e may be discussing a particular topic or item, an issue, we can all agree to that particular item. Five or ten minutes down the line, we are bringing it up again and his mind will be completely changed. I am not sure if he is actually understanding . . . the elements of the law."
Juror No. 2 felt there might be "a language problem." Juror No. 2 could understand what Juror No. 3 was saying, however. In Juror No. 2's view, Juror No. 3 did not "understand some of the specifics of the law, the way it is being read." Juror No. 3 frequently changed his mind. Juror No. 2 was concerned that Juror No. 3 might not understand what was going on in discussions, noting that Juror No. 3 would "basically block out" "some of the evidence being shown." He would say "he doesn't want to hear that." As an example, "[t]here is circumstantial evidence. He feels that is not applicable at all. If it is not tangible or concrete, then it is not admissible." Juror No. 2 believed Juror No. 3 understood the instructions, "but chooses not to work with them. . . . [H]e . . . has this mind set this is the way it is to be and not letting other pieces of evidence show certain things."
Juror No. 4 thought there was a language problem, but it possibly could be a problem with understanding the issues. Juror No. 4 complained that Juror No. 3 `vacillat[ed] back and forth." "There [are] points of law that have been read and then the person says they can't accept that. We state, but this is the law, we have to go by the law."
Juror No. 5 expressed the opinion that Juror No. 3's understanding of the English language was a problem, particularly with respect to comprehension. "[N]one of us feel he understands what we are saying." Juror No. 5's main complaint, however, was that for Juror No. 3, "the personalities, everything involved is very strong in his opinion." "I am not sure if he doesn't feel very loyal to the victim and can't listen *197 to any other information that is presented."
Juror No. 7 was not sure if there was a language problem, although it was probable that Juror No. 3 was having difficulty understanding the instructions. It was not clear to Juror No. 7 whether Juror No. 3 was "keeping up with the discussion." Juror No. 7 thought it probable that the discussion was moving too rapidly for Juror No. 3's grasp of the English language. Juror No. 7 also complained, however, that Juror No. 3 "keeps changing his mind." He would agree "on one instance and then, later on, he comes back with . . . a different opinion." This was frustrating, for it was "like we are all starting over again."
In Juror No. 8's view, there "seem[ed] to be a potential difficulty in understanding and speaking about subjects that are involved with the trial." Juror No. 8 believed it was a problem with understanding which witness "said what and understanding what was said." It was clear to Juror No. 8 that Juror No. 3 understood more than half of the discussion but not all of it.
Juror No. 9 believed Juror No. 3 was "really having a hard time comprehending." "I notice he gets the overall idea. When you get down to certain words or certain phrases, he doesn't understand what we are saying." He would repeat back an explanation given him as something completely different. Sometimes Juror No. 3 contradicted himself. "The more we talk, the more I can see he just doesn't understand. There are certain things that he would take a real hard stand on and then he would change it. He was getting confused. He just didn't seem to grasp the law. . . ."
Juror No. 10 believed there was a language problem. Sometimes Juror No. 3 had difficulty understanding some words.
In Juror No. 11's view, "there is a definite problem with understanding and comprehension . . . . We are talking about one thing and he is talking about something completely different." Juror No. 11 was "not sure whether he really understands what we are saying when we talk about credibility or . . . about believability." Juror No. 11 also complained, however, that "there is no logical reason for what [Juror No. 3] is saying." "He cannot give us a reason. No reason at all."
Juror No. 12 was "quite sure" there was a language problem. It appeared Juror No. 3 misunderstood, "sometimes, what the instructions say about guilt or non-guilt or what creates an offense and what doesn't create an offense." As to one offense, "he has already made up his mind. . . . He has made up his mind and that is it." While there might be some problem with misunderstanding the instructions, Juror No. 12 believed that if Juror No. 3 "understood wholeheartedly, without any reservations with no difficulty understanding, his answer would still be the same and he still would have the same feelings about the guilty or not guilty situation." Most significantly, Juror No. 12 stated that Juror No. 3 "is definitely aware of what is going on. They explained it to him. He explains his [viewpoint]. I think he understands."
After speaking to all of the jurors and hearing argument, the court discharged Juror No. 3, expressing concern that there was a language problem. "I fear that you may have overestimated your own abilities to understand all of these proceedings."
Penal Code section 1089 provides in pertinent part: "If at any time, whether before or after the final submission of the case to the jury, a juror . . . upon . . . good cause shown to the court is found to be unable to perform his duty, . . . the court may order him to be discharged and draw *198 the name of an alternate, who shall then take his place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors." For this court to uphold the trial court's exercise of discretion in discharging a juror, the "juror's inability to perform as a juror must appear in the record as a demonstrable reality." (People v. Cleveland, supra, 25 Cal.4th at p. 474, 106 Cal.Rptr.2d 313, 21 P.3d 1225, internal quotation marks and citations omitted.)
Insufficient command of the English language to allow full understanding of the words employed in instructions and full participation in deliberations clearly would render a juror "unable to perform his duty" within the meaning of Penal Code section 1089. The question is whether such an inability appears in the record before us "as a demonstrable reality." (People v. Cleveland, supra, 25 Cal.4th at p. 474, 106 Cal.Rptr.2d 313, 21 P.3d 1225, internal quotation marks and citations omitted.)
All of the jurors other than Juror No. 3 believed there was some language problem. Things often had to be explained more than once, creating difficulty in communicating. Some language difficulty is insufficient, however. If, with repeated explanations and discussions, Juror No. 3 could comprehend matters, then it is immaterial that he had a pronounced accent, his English was not the best and juror communication was not quick and easy. It was Juror No. 12's opinion that this was precisely the state of affairs. Communication was difficult but not impossible. Juror No. 3 clearly understood what was transpiring, but he had a different view of the law and the facts than did the other jurors. It was clear to Juror No. 8 that Juror No. 3 understood a great deal of the discussion.
The other jurors expressed opinions that Juror No. 3 had difficulty understanding their explanations and the instructions, or that he was confusing one person's testimony with another. A deeper look reveals that their opinions were based on his failure to accept their explanations or to interpret the instructions and evidence as they did, however.
Juror No. 6 based his or her conclusion that Juror No. 3 was not understanding the law fully on his reaction after the other jurors explained certain concepts to him. That could be read as Juror No. 3's difference of opinion as readily as a lack of understanding. This was Juror No. 3's view of the situation, that he simply viewed the case differently than did the other jurors.
Juror No. 1's primary complaint was that "[w]e may be discussing a particular topic or item, an issue, we can all agree to that particular item. Five or ten minutes down the line, we are bringing it up again and his mind will be completely changed." In other words, as Juror No. 4 said, Juror No. 3 "vacillat[ed] back and forth." This, too, was Jurors Nos. 2, 7 and 9's complaint. Changing his mind could represent the fruits of further reflection as readily as confusion. Juror No. 3 rejected some evidence, "block[ing] it out." He had a different view of the value of circumstantial evidence, essentially considering it worthless. He disagreed with some points of law.
Juror No. 5's main complaint was that for Juror No. 3, "the personalities, everything involved is very strong in his opinion." "I am not sure if he doesn't feel very loyal to the victim and can't listen to any other information that is presented." Juror No. 11 complained that "there is no logical reason for what [Juror No. 3] is *199 saying." "He cannot give us a reason. No reason at all."
The foregoing complaints do not necessarily demonstrate inadequate comprehension of the English language as opposed to legitimate disagreement over the meaning to be given certain instructions, interpretations of the law and evidence. They are closely akin to the complaints registered in People v. Cleveland, supra, 25 Cal.4th 466, 106 Cal.Rptr.2d 313, 21 P.3d 1225 which the Supreme Court found insufficient to justify discharge of a juror. (See id. at pp. 471-473, 485-486.)
As explained in Cleveland, "[t]he circumstance that a juror does not deliberate well or relies upon faulty logic or analysis . . . is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts . . . is not a ground for discharge." (People v. Cleveland supra, 25 Cal.4th at p. 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225.) A juror's inarticulateness in explaining his position likewise is not a ground for discharge. (Id. at p. 486, 106 Cal.Rptr.2d 313, 21 P.3d 1225.)
Moreover, it is noteworthy that the other jurors showed great impatience with Juror No. 3. The jury had deliberated less than three hours when the foreperson sent the complaint to the court. This suggests that 11 jurors reached agreement rather quickly, making the failure of the 12th juror to agree all the more annoying and frustrating. In such an atmosphere, it is more likely that majority jurors will attribute genuine differences of opinion to "language problems," or "lack of comprehension," where possible.
The record does not establish "`as a demonstrable reality'" that Juror No. 3's language difficulties, as opposed to his failure to deliberate well, his reliance upon faulty logic or analysis and his disagreements over the law and the evidence, accounted for the difficult deliberations the jury was experiencing. It therefore does not establish "`as a demonstrable reality'" that Juror No. 3 was unable to perform as a juror. (People v. Cleveland, supra, 25 Cal.4th at p. 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225.) Necessarily, then, it was an abuse of discretion for the trial court to discharge Juror No. 3. The error requires reversal of the judgment. (Id. at p. 486, 106 Cal.Rptr.2d 313, 21 P.3d 1225.)
The judgment is reversed.
MALLANO, J., concurs.
MIRIAM A. VOGEL, J., Dissenting.
To the extent the majority finds error with regard to the removal of Juror No. 3 (Part VII, pp. 16-22), I dissent. In my view, the majority's conclusion ignores the record.
The foreman's note said "[t]here [was] a perception problem with Juror No. 3[, p]ossibly a language understanding. Help." When questioned by the court, the foreman (Juror No. 6) said the majority of the jurors felt that Juror No. 3 was "not understanding the process, maybe the law here. We are having trouble understanding him, and we feel he is having problems trying to explain different points of view. We don't think he is grasping the big picture."
When questioning Juror No. 3, the trial court was unable to understand several of the juror's answers and had to ask him to repeat himself. At one point, the court stated, "I am having a little trouble [understanding you]. You do have a pronounced accent." Juror No. 3 agreed, responding, "Yes, I have an accent" (although he insisted there was "no language *200 problem"). Although the record is not clear, it appears that his primary language is Tagalog (he grew up in "Hawaii, the Philippines, [and] Guam," with Spanish-speaking parents). At the time of trial, Juror No. 3 had been in the United States only a year, before which he had been living in Italy where he spoke "mostly Italian, Spanish and English."
All of the other jurors thought there was a language problem.
Juror No. 1 said, "I believe there is a language problem." When the court explained that it needed to "distinguish between a situation where somebody understands, but disagrees with others, versus somebody who doesn't seem to understand," Juror No. 1 again said that Juror No. 3 "really doesn't understand. . . ."
Juror No. 2 said, "I believe it might be a language problem. . . . It is not getting across to him what we are speaking about. . . . I think he doesn't understand some of the specifics of the law, the way it is being read. . . . I don't think he understands it."
Juror No. 4 said, "I tend to think we maybe have a language problem, that type of thing. . . . I kind of think whether it is really a language issue or just a total misunderstanding of what we are here for. . . ."
Juror No. 5 said it was "definitely" a language problem, "[a]nd comprehension . . . . It becomes so frustrating because none of us feel he understands what we are saying. I'm not sure if this could have been detected when we were all questioned as jurors, but it is very obvious now. . . . I can't believe . . . he comprehends what occurred."
Juror No. 7 said "yes," Juror No. 3 had a language problem, and that the language problem affected Juror No. 3's ability to follow the court's instructions. Juror No. 7 thought the discussion was "probably" moving too fast for Juror No. 3's grasp of English.
Juror No. 8 believed "that it could be" a language problem, and that there "seem[ed] to be a potential difficulty to understanding and speaking about subjects that are involved with the trial." According to Juror No. 8, Juror No. 3's understanding of English was "above 50 percent. I know that more than half is being understood, but it is not 100 percent either."
Juror No. 9 said, "Juror No. 3 is really having a hard time comprehending. I think it is the language plus understanding the law. . . . The more we talk, the more I can see he just doesn't understand. There are certain things that he would take a real hard stand on and then he would change it. He was getting confused. . . . I notice he gets the overall idea. When you get down to certain words or certain phrases, he doesn't understand what you are saying. We would have to repeat ourselves, or he would talk back and it wouldn't be what we were saying. It would show that he didn't understand what we were saying in phrases or certain words."
Juror No. 10 said it was "a problem of communication. . . . Some language problem, I think, and some understanding of the words. Like what we are saying, I don't know if he knows the words that we are talking about sometimes, because it is likeit ishe has a hard time understanding it."
Juror No. 11 said "there is a definite problem with understanding and comprehension. *201 It is extremely frustrating. We are talking about one thing and he is talking about something completely different. We are not communicating at all. . . . I'm not sure whether he really understands what we are saying when we talk about credibility or we talk about believability. I don't think he is understanding. It is just really frustrating for us."
Juror No. 12 said, "I think Juror No. 3 really doesn't understand what he is trying to say." According to Juror No. 12, it was "sometimes" difficult for Juror No. 3 to keep up with the discussions, and he was "quite sure that" was because of Juror No. 3's problem with English. Juror No. 12 felt "there might be a problem with him expressing himself."
The trial court heard Juror No. 3 and could determine the extent of his accent and his ability to understand. With that knowledge and based on the other jurors' comments, the trial court found there was a substantial language problem and that Juror No. 3 had overestimated his own ability to understand the proceedings. In my view, the record amply supports the trial court's finding and the decision to replace Juror No. 3 with an alternate juror. {People v. Cleveland (2001) 25 Cal.4th 466, 474, 106 Cal.Rptr.2d 313, 21 P.3d 1225.)
APPENDIX
"THE COURT: . . . Good afternoon, sir. Take any seat, if you would. We have been joined now by Juror No. 3. The reason I have asked you to step out is because it has come to my attention that you may be having some difficulty with the English language. If this is true, we need to talk about it.
"JUROR NO. 3: I think there is some, yes. A little bit. I have been in school here almost a year now. I think I can manage.
"THE COURT: When you were listening to the trial, did you have difficulty with the testimony?
"JUROR NO. 3: No.
"THE COURT: I am sorry?
"JUROR NO. 3: No, Judge.
"THE COURT: You believe you understood everything?
"JUROR NO. 3: Yes.
"THE COURT: The other jurors are concerned, and I need to know if this is a problem for you.
"JUROR NO. 3: No, Judge. No, Ma'am.
"THE COURT: You mentioned that you have been going to school.
"JUROR NO. 3: Yes, Sir [sic ].
"THE COURT: Can you tell me about that[?]
"JUROR NO. 3: I have takenjust graduated from Associate in Arts in English.
"THE COURT: An Associate
"JUROR NO. 3: In Arts in English. Glendale Community College.
"THE COURT: I didn't hear the last part.
"JUROR NO. 3: Glendale Community College.
"THE COURT: Have you received your A.A. yet?
*202 "JUROR NO. 3: Yes, Ma'am.
"THE COURT: How long have you been speaking English?
"JUROR NO. 3: Well, I was born here, but I grew up outside United States.
"THE COURT: Growing up, what did you speak?
"JUROR NO. 3: I was speaking different languages. In the Navy, we speaks English.
"THE COURT: Growing up, what language did you speak?
"JUROR NO. 3: English, Ma'am.
"THE COURT: Where did you grow up?
"JUROR NO. 3: I grew up Hawaii, Philippines, Guam.
"THE COURT: What did your parents speak?
"JUROR NO. 3: Spanish.
"THE COURT: You were in the military, if I recall?
"JUROR NO. 3: Yes, I was. Interim.
"THE COURT: You spoke English in the military?
"JUROR NO. 3: Yes.
"THE COURT: You have been back in the United States for how long?
"JUROR NO. 3: About a year now. More than a year.
"THE COURT: Before this year, where did you live?
"JUROR NO. 3: In Italy.
"THE COURT: What did you speak mostly?
"JUROR NO. 3: Mostly some Italian, Spanish and English. Mostly English.
"THE COURT: Are you taking these classes at Glendale because you want to improve your English?
"JUROR NO. 3: I took classes for English, yes.
"THE COURT: I am sorry?
"JUROR NO. 3: I took the classes in proper English.
"THE COURT: Is it possible that the jurors are having trouble understanding you? [¶] I am having a little trouble. You do have a pronounced accent.
"JUROR NO. 3: Yes, I have an accent.
"THE COURT: Do you think the other jurors are having trouble understanding you? Has that happened?
"JUROR NO. 3: I don't believe, Ma'am.
"THE COURT: Why do you think that they are concerned about their inability to communicate with you?
"JUROR NO. 3: Maybe we see the case differently.
"THE COURT: You think it is a difference of opinion? "JUROR NO. 3: Yes.
"THE COURT: You don't think you have any language problem at all?
"JUROR NO. 3: No. No language problem.
"THE COURT: Have you reviewed the instructions that I sent in?
"JUROR NO. 3: We read it every time.
"THE COURT: Have you been reviewing that?
"JUROR NO. 3: The foreman read to us.
"THE COURT: Did you feel that you understood?
"JUROR NO. 3: Yes, Ma'am.
"THE COURT: Do you feel that you are able to participate in the discussions?
"JUROR NO. 3: Yes, Ma'am."
NOTES
[1] The propriety of CALJIC No. 17.41.1 currently is pending before the California Supreme Court (People v. Engelman, review granted Apr. 26, 2000, S086462; People v. Taylor, review granted Aug. 23, 2000, S088909).
[2] We note, however, that the court could understand Juror No. 3 and that the court reporter had no difficulty transcribing his statements. The first occasion on which the court indicated some difficulty followed Juror No. 3's response of "No," to a question. This suggests the court may have had more difficulty hearing than understanding Juror No. 3.
[3] We may infer logically that one requires a reasonable degree of proficiency in English to serve in the United States Navy. One also must master an arcane vocabulary.
[4] The Appendix recites Juror No. 3's entire exchange with the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261552/ | 109 Cal.Rptr.2d 922 (2001)
91 Cal.App.4th 445
RENTAL EQUIPMENT, INC., Plaintiff and Appellant,
v.
McDANIEL BUILDERS, INC., et al., Defendants and Respondents.
No. B139044.
Court of Appeal, Second District, Division Five.
August 9, 2001.
*923 Andrade & Associates, Richard B. Andrade, Irvine, and Jennifer Friend, for Plaintiff and Appellant.
Rutan & Tucker, Milford W. Dahl, Jr., and Matthew K. Ross, Costa Mesa, for Defendants and Respondents.
Certified for Partial Publication.[*]
ARMSTRONG, J.
Rental Equipment, Inc., appeals from a judgment in favor of respondents McDaniel Builders, Inc. and Developers Insurance Company, on its action for foreclosure on a mechanic's lien. We affirm.
SUMMARY
A preliminary notice under Civil Code[1] section 3097 is a necessary prerequisite to enforcement of a mechanic's lien. (§ 3097, subd (a).) Such a notice must include "A general description of the labor, service, equipment, or materials furnished, or to be furnished, and an estimate of the total price thereof." (§ 3097, subd. (c)(1).) In *924 this case, the preliminary notices gave estimates of $10,000, but the ensuing mechanic's lien was in the amount of $159,898. The trial court found that the notices were fatally defective because they did not give an estimate of the total price, that is, they did not give a figure which was derived by a rational process, based upon relevant factors.
This case thus presents a question about the meaning of the word "estimate" in section 3097. We agree with the trial court that the statute requires "a derived figure, arrived at by rational analysis," and further find substantial evidence for the trial court finding that the $10,000 estimates here were not so derived. We thus affirm the judgment.
FACTS
In 1997, a group of investors, the O'Donnell Group, contracted with respondent McDaniel to demolish the buildings, foundations, walkways, and curbs on a site in Santa Fe Springs. McDaniel subcontracted with Specialty Steel. Specialty Steel's $75,000 bid was the lowest bid by a significant amount, but McDaniel president Robert McDaniel believed it was reasonable, since Specialty Steel would be allowed to keep the salvaged materials and had already made arrangements to sell those materials. McDaniel's subcontract with Specialty Steel was executed on September 17, 1997. Under the subcontract, Specialty Steel's work was to take no more than six weeks, though the work was actually delayed due to rain.
McDaniel erroneously believed that Specialty Steel was licensed. He based this belief on the fact that Specialty Steel's proposal and subcontract agreement bore a license number.
Specialty Steel arranged to rent equipment from appellant and furnished appellant with a credit application. Appellant established a $10,000 line of credit for Specialty Steel. Appellant's equipment began arriving at the project in mid-October. The first piece was an 80-foot lift. Appellant filed two 20-day notices, on November 14 and 24, 1997. Each notice gave an estimate of $10,000.
The November 14 notice identified the equipment that had been or would be furnished as "rental of construction equipment, includes: 80' straight lift." By that date, appellant had billed specialty Steel $8,232. A part of that, $7,800, was for the 80 foot lift. Specialty Steel had by then rented a 60-foot boom, an 80-foot boom, a backhoe, and a trak loader from appellant for the Santa Fe Springs project. The November 24 notice identified a trak loader as the equipment furnished or to be furnished. By that time, appellant had billed Specialty Steel over $23,000.
A Miss Anson of Specialty Steel prepared the preliminary notices. She did not testify at trial. For appellant, Robert Breitenstein testified as the person most knowledgeable about this lien claim, but testified that he did not know how the estimates in the preliminary notices were derived.
McDaniel testified that he examined each preliminary notice as it came in, because "that's the only indication I have from a subtiered supplier of the amount of work and services that they are going to provide ... by looking at the 20 day notices, that tells me how much exposure there is...." He also testified that if either lien had given a $100,000 estimate, he would have immediately called a meeting with appellant and Specialty Steel to advise appellant of the $75,000 contract price and avoid later problems.
By mid-January, Specialty Steel had substantially completed the project, although a few punch list items, such as *925 removal of trash, remained. Robert McDaniel informed Specialty Steel that it would not be paid until the punch list was completed and until lien releases were obtained from appellant and another supplier. Specialty Steel did not meet those requirements and McDaniel did not make the payment.
Specialty Steel never paid any of appellant's invoices. Appellants filed a mechanic's lien on January 29, 1998. McDaniel's contract with O'Donnell required that he deliver the project free of liens. Ultimately, O'Donnell required McDaniel to bond around the liens. McDaniel obtained a bond from respondent Developers Insurance for that purpose.
This lawsuit followed.[2] The case went to trial on appellant's cause of action for foreclosure of its claim for a mechanic's lien and was tried to the court. As we have noted, the trial court ruled that the statute required "a derived figure, arrived at by rational analysis," and that while estimate does not mean "precision or exactness," it does mean more than "guess, conjecture, or surmise," and that the statute is a "simple and straightforward call for an estimated total price of its labor, services and equipment." The court further found that the amounts appellant estimated on the preliminary notices was a figure "that was not derived by any rational process, that it had no bearing whatsoever on the actual work done and to be done on the project and that it was, in truth and in fact, made out of whole cloth. The stark factual reality of this case is that [appellant's] dollar figure of $10,000 was not even a guess, much less an estimate."
DISCUSSION
We begin with appellant's discussion of the trial court's ruling on the meaning of the word "estimate" in section 3097. The ruling is one of law, and we conduct an independent review. (People v. Duz-Mor Diagnostic Laboratory, Inc. (1998) 68 Cal.App.4th 654, 660, 80 Cal.Rptr.2d 419.)
In construing a statute, courts must afford words their ordinary commonsense meaning, given "the evident purpose for which the statute was adopted." (In re Rojas (1979) 23 Cal.3d 152, 155, 151 Cal. Rptr. 649, 588 P.2d 789.) The dictionary definition of "estimate" is "an approximate computation of the probable cost of a piece of work made by a person undertaking to do the work." (Webster's New World. Diet. (3d college ed.1993) p. 465.) Thus, in ordinary use, an estimate is a figure that has been arrived at through a reasonable and logical attempt to determine the final number. That is the meaning the trial court gave the word here.
This meaning is in accord with the evident purpose of the statute. As appellant argues, the statute is "`remedial legislation, to be liberally construed for the protection of laborers and materialmen.'" (Kim v. JF Enterprises (1996) 42 Cal. App.4th 849, 854, 50 Cal.Rptr.2d 141.) However, "`"[w]hile the essential purpose of the mechanics' lien statutes is to protect those who have performed labor or furnished material towards the improvement of the property of another [citation], inherent in this concept is a recognition also of the rights of the owner of the benefited property. It has been stated that the lien laws are for the protection of property *926 owners as well as lien claimants."'"[3] (R.D. Reeder Lathing Co. v. Allen (1967) 66 Cal.2d 373, 379, 57 Cal.Rptr. 841, 425 P.2d 785.) As McDaniel's testimony here establishes, a real estimate protects both materialmen and property owners, in that it promotes communication based on real factors and the true state of affairs.
Appellant makes a number of arguments purporting to challenge that trial court's ruling on the meaning of the statute. The first of these arguments sets up a straw man. That is, appellant argues that the court erred because the statute requires no more than an estimate-which is what the trial court held. Contrary to appellant's assertion, the trial court did not hold that the statute required an estimate that was "substantially accurate" or contained a binding statement of all rental charges to be incurred throughout the entire project. To the contrary, the court held that "the estimate called for can be in compliance with the statute even though it badly misses the mark with reference to the total charges as finally tallied." We agree.
Appellant also bases an argument on statements the trial court made regarding the possibility that the case law might require a good faith estimate, and what "good faith" might mean in that context. Those comments are without legal significance. They were made during a request for additional briefing, were not incorporated into the court's ruling, and are irrelevant to any issue here. (Oldis v. LaSociete Francaise (1955) 130 Cal.App.2d 461, 472, 279 P.2d 184.)
Appellant next argues that a preliminary notice need only be reasonable at the time the notice is generated, and that it is reasonable if it is based on the cost of the first piece of equipment rented or the piece of equipment mentioned in the notice. Appellant then concludes that the initial preliminary notice was valid because it accurately estimated the cost of the 80 foot lift listed in the notice, the first piece of equipment rented to Specialty Steel. Appellant thus seeks to read out of the law the requirement that the estimate relate to the total cost of equipment "furnished, or to be furnished," or to read the law as requiring either an estimate of the cost of equipment already furnished or an estimate of the cost of equipment to be furnished, at the claimant's option. The legal authority appellant cites, section 3097, subdivision (g) and Blair Excavators, Inc. v. Paschen Contractors, Inc. (1992) 9 Cal. App.4th 1815, 12 Cal.Rptr.2d 420, does not justify either reading.
Section 3097, subdivision (g) provides that "A person required by this section to give notice ... need give only one notice ... with respect to all materials, service, labor, or equipment he or she furnishes for a work of improvement, ... [¶] If a notice contains a general description required by subdivision (a) or (b) of the materials, services, labor, or equipment furnished to the date of notice, it is not defective because, after that date, the person giving notice furnishes materials, services, labor, or equipment not within the scope of this general description." We see nothing in this subsection which relieves a claimant from the requirement of subdivision (c), *927 that the preliminary notice include an total estimate of materials furnished or to be furnished, or which indicates that the trial court wrongly construed the word "estimate."
Blair Excavators, Inc. v. Paschen Contractors, Inc., supra, 9 Cal.App.4th 1815, 12 Cal.Rptr.2d 420 arose under sections 3091 (since repealed) and 3098, which concerned preliminary notices for public works. The statutes required that those notices state "with substantial accuracy a general description of labor, services, equipment, or materials furnished or to be furnished." (§ 3098, subd (a).) The Blair Excavators court considered a contention that a claimant's recovery could not exceed the amount of its contract price, which in that case was also the amount in the notices. The Court found that the statutory requirement of substantial accuracy was designed to avoid prejudice to the party claimed against, and that in the absence of prejudice, recovery was not limited to the amount stated in the notice. (Id. at p. 1817, 12 Cal.Rptr.2d 420.) Nothing in Blair Excavators suggests that the trial court erred. The question here was not whether appellant was entitled to recover more than the estimates, but whether appellant made the estimate required by law. We note, too, that through McDaniePs testimony respondents presented evidence that they were prejudiced by the estimates in the notices, which were considerably lower than the actual cost of equipment furnished.
Further, the court's factual finding that the $10,000 estimate was "made up out of whole cloth" means that we would affirm even if appellant's arguments were correct, as long as there was substantial evidence for the finding. (Winograd v. American Broadcasting Co. (1998) 68 Cal. App.4th 624, 632, 80 Cal.Rptr.2d 378.)
Appellant argues that there was no substantial evidence, citing the evidence that the first preliminary notice was for more than the amount of the charges which had been incurred for the 80 foot lift and the evidence that six days after the first notice, the amount invoiced was only a little over $10,000. Appellant also cites testimony from Breitenstein which, it contends, establishes that the estimate in the initial preliminary notice was based on the first month's rental of the first piece of equipment rented.
We are not persuaded. As respondents point out, the argument ignores the fact that there was evidence in support of the trial court's decision, such as the evidence that at the time the notices were given, appellant had furnished a substantial amount of equipment to Specialty Steel that was not reflected in the estimates. This is substantial evidence for the court's finding. Further, respondent reads the cited testimony from Breitenstein differently, and argues that it refers to the process by which appellant established a credit rating for a client such as Specialty Steel. The testimony itself is somewhat unclear. We presume in favor of the judgment (Winograd. v. American Broadcasting Co., supra, 68 Cal.App.4th at p. 632, 80 Cal.Rptr.2d 378) and adopt respondent's interpretation, but note that even under appellant's reading, the testimony was that the credit department prepared the preliminary notice "based on ... one month, say on the [first piece of equipment rented to Specialty Steel], for example, that was $8300, so made it $10,000, make it an even dollar amount [$10,000], [$]15,000. Send it off. That's pretty much it." This is not testimony which establishes that appellant made an estimate of materials furnished or to be furnished, as required by the statute.
Foreclosure of a mechanic's lien is an equitable remedy subject to equitable *928 principles (A.J. Raisch Paving Co. v. Mountain View Sav. & Loan Assn. (1972) 28 Cal.App.3d 832, 838, 105 Cal.Rptr. 96), and appellant argues that equity favors reversal, contending that McDaniel created the situation it now complains of by accepting a too-low bid, by failing to record the contract with O'Donnell under section 3124, and by failing to obtain a bond from Specialty Steel. Appellant also argues that McDaniel was paid its contract price, $145,000, for "doing nothing," and will be unjustly enriched if the trial court results stand. The arguments are unconvincing.
The trial court considered and rejected this argument, finding that appellant did not have clean hands since "the number $10,000 as a purported estimate of total price, unfounded in fact and totally unrelated to its legislatively intended purposes, when compared to the lien claim of $160,000, is shocking to the conscience of this court." Appellant does not mention this holding, let alone provide a reason for us to disturb it.
We note, too, that there was evidence that McDaniel had reason to believe that Specialty Steel's bid was not unreasonably low, and that he was compelled by O'Donnell to refund some of his fee, based in part on appellant's hen. [**]
DISPOSITION
The judgment is affirmed.
TURNER, P.J., and GRIGNON, J., concur.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of the last four paragraphs under DISCUSSION.
[1] All further statutory references are to that code.
[2] Appellant also sued the O'Donnell Group and another O'Donnell entity, and Specialty Steel and its principal Rick Griffey. Appellant later dismissed the O'Donnell defendants. Griffey and Specialty Steel defaulted, and judgment against them was entered in the amount of $159,898.
[3] However, where the Legislature has specified matters such as the manner of serving notice, deviations from the statute are viewed with extreme disfavor. (Harold L. James, Inc. v. Five Points Ranch, Inc. (1984) 158 Cal. App.3d 1, 7, 204 Cal.Rptr. 494.) Harold L. James held that a statutory mandate that the notice include a boldface alert to the property owner, designed to make notification of the risk of lien conspicuous, must be strictly followed, and that "minor errors in the body of the notice" must be independently addressed on a case-by-case basis. (Ibid.) Here, the trial court found that the error was not minor.
[**] See footnote *, ante | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261572/ | 861 F.Supp. 1054 (1994)
GOVERNMENT OF THE VIRGIN ISLANDS, Division of Banking and Insurance; and the Government of the Virgin Islands, Plaintiffs,
v.
Lawrence M. NEADLE, Jr.; Francis Dickson; Robert E. Collins; Dichem Corp.; BancFlorida; Winnifred Jo Gillette, as Personal Representative of the Estate of Fred Gillette; Gillette, Pilon & Richman, P.A.; J. Michael Holmes; Donald Zumfelde; and Andre Delmotte, Defendants.
No. 93-182-CIV-FTM-23D.
United States District Court, M.D. of Florida.
April 15, 1994.
*1055 Frederick John Grady, Holland & Knight, Tampa, FL, for plaintiffs.
James S. Haliczer, Cooney, Haliczer, Mattson, Lance, Blackburn, Pettis & Richards, P.A., Ft. Lauderdale, FL, Donald E. Van Koughnet, Naples, FL, for defendant Winifred Jo Gillette.
Richard Burton Bush, Bush & Derr, P.A., Tallahassee, FL, for defendant Richman, Kolwalski & Lanier, P.A., f/k/a/ Gillette, Pilon & Richman.
Henry Salas, Davis, Scott, Weber & Edwards, Miami, FL, for defendant Francis A. Dickson.
Ronald W. Ritchie, Jeffrey S. Kannensohn, P.A., Naples, FL, for defendants BancFlorida, J. Michael Holmes, Donald Zumfeld, and Andre Delmotte.
ORDER
GAGLIARDI, Senior District Judge.
Plaintiffs and Defendant Francis A. Dickson have moved for a stay of the proceedings in this action because they allege that it duplicates one pending in the district court for the District of the Virgin Islands ("DCVI"), civil no. 1991/310. Defendants BancFlorida, J. Michael Holmes, Donald Zumfelde, Andre Delmotte ("the bank defendants"), and the estate of Fred Gillette ("Gillette's estate") oppose the motion.
Plaintiffs and Marshall & Sterling are the plaintiffs in the DCVI action. Each of the defendants herein is named in that action. The counts of this complaint are contained, verbatim, within the DCVI complaint. Defendant Gillette's estate claims that it has been dismissed from the DCVI action; Plaintiffs claim that Gillette's estate was dismissed only as to Marshall & Sterling. Plaintiffs brought this action to protect themselves in the event that Defendants prevail on appeal in the DCVI action on the ground that the DCVI lacks personal jurisdiction over them.
A. The Standard for Granting a Stay of Related Proceedings
A district court has discretion to stay an action which duplicates one pending in another federal district court. Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 182-84, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). "[T]hough no precise rule has evolved, the general principle is to avoid duplicative litigation." Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 816-18, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976) (dictum); therefore, "[i]n the absence of compelling circumstances, the court initially seized of a controversy should be the one to decide the case ...," Merrill Lynch, Pierce, Fenner & Smith v. Haydu, 675 F.2d 1169, 1174 (11th Cir.1982). The power to stay dual proceedings is necessary to avoid the inefficiency of duplication, the embarrassment of conflicting rulings, and the confusion of piecemeal resolutions where comprehensive results are required. West Gulf Maritime Ass. v. ILA Deep Sea Local 24, 751 F.2d 721, 729 (5th Cir.1985).
The party moving for a stay bears the burden of demonstrating that it is appropriate; if a stay would create hardship for a party, however, then the movant must demonstrate that it would suffer hardship or inequity from going forward. Landis v. North Am. Water Works & El. Co., 299 U.S. 248, 254-56, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936). Therefore, it is the opposing party's burden initially to demonstrate hardship. *1056 See id. A complete identity of the parties is not required to stay an action, but any hardship a stay would cause for an opposing party thereby forced to stand by while its rights are determined by other litigation are to be considered in deciding whether to grant the stay. Id.
Gillette's estate and the bank defendants argue that Plaintiffs bear the burden of demonstrating the existence of a compelling reason for the entry of a stay. In support of this, they cite a footnote in Coastal (Bermuda) Ltd. v. Saybolt & Co., 761 F.2d 198, 204, n. 6 (5th Cir.1985). The footnote is dictum; the case was dismissed because the court of appeals held that it lacked jurisdiction to consider a district court's order staying an admiralty action. Id. at 201.
In addition, in the footnote the court relied on Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 18-19, 103 S.Ct. 927, 938, 74 L.Ed.2d 765 (1984), for the proposition that a movant for a stay bears a heavy burden to show why a stay is necessary. Saybolt, 761 F.2d at 204, n. 6. Mercury Construction is inapposite, however, because it dealt with the appropriate course where an action is pending simultaneously in state and federal courts, Mercury Constr., 460 U.S. at 4-6, 103 S.Ct. at 931. In that case, a federal court's "abiding duty" to exercise jurisdiction conferred upon it requires that it exercise that jurisdiction unless there are compelling reasons not to. Colorado River, 424 U.S. at 816-18, 96 S.Ct. at 1246. Where two federal courts with concurrent jurisdiction are involved, however, the movant need not demonstrate compelling need for a stay, id.; it must demonstrate merely that the stay is appropriate, Landis, 299 U.S. at 254-56, 57 S.Ct. at 166.
B. Application of the Standard
Plaintiffs have demonstrated the propriety of a stay of this action. Unless Gillette's estate has been dismissed as to all plaintiffs in the DCVI action, the action herein is a subset of the action in the DCVI. The only difference between the cases would be that the DCVI action has an additional plaintiff and additional defendants. All of the parties to this action would be parties to the DCVI action. All of the claims contained in this action would be contained, verbatim, in the DCVI action. This being so, any time spent on this action by the parties and the Court is likely to be to no end because the defendants in the DCVI action could plead the defense of claim preclusion to a subsequent proceeding involving the same claims. See Charles Alan Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure, § 4406 (1981).
Even if Gillette's estate is not a defendant in the DCVI case, a stay is appropriate because Gillette's estate has not demonstrated that it would suffer any hardship from a stay. Gillette's estate has not alleged that a trial of the DCVI action in its absence would have an effect on a subsequent trial of the same causes of action against it. It is highly unlikely, given the nature of the issues involved in the DCVI action, that it would have any preclusive effect on this action. See Wright, Miller and Cooper, supra, §§ 4416 & 4448-62 (issue preclusion arises in a second suit, when, among other things, the issue was actually decided in the previous suit and "the later litigation is between the same parties or involves nonparties that are subject to the binding effect or benefit of the first action" § 4416, p. 138).
Gillette's estate and the bank defendants have not demonstrated that they would suffer any hardship if this action is stayed. Though they cite a number of reasons why they believe a stay is not appropriate in this action, none of them amounts to hardship.
C. Conclusion
A stay of this action until the resolution of the DCVI action, civil no. 1991/310, is appropriate. This action, therefore, will be stayed until that time. It is further ordered that the parties in the DCVI action provide to Gillette's estate notice of and the opportunity to participate in all depositions in the DCVI action if Gillette's estate does not remain a party to it.
So Ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321259/ | 278 S.C. 223 (1982)
294 S.E.2d 46
Elliott BECKETT, Appellant,
v.
STATE of South Carolina, Respondent.
21766
Supreme Court of South Carolina.
July 22, 1982.
Appellate Defender John L. Sweeny and Asst. Appellate Defender William Isaac Diggs of S.C. Commission of Appellate Defense, Columbia, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Donald J. Zelenka and Larry L. Vanderbilt, Columbia, for respondent.
*224 July 22, 1982.
Per Curiam:
Appellant pled guilty to possession of cocaine and marijuana with intent to distribute both. He was sentenced to five years, concurrent, on each count, the sentences to be served consecutively to a previous eight year sentence for grand larceny. This appeal is from denial, after a hearing, of post-conviction relief. We affirm.
Appellant first asserts that the post-conviction relief judge should not have considered an affidavit from the guilty plea hearing judge. Sworn affidavits are admissible at post-conviction proceedings in the discretion of the trial judge. Code of Laws of South Carolina Ann. § 17-27-80 (1976). Appellant did not argue nor did he attempt to show an abuse of discretion on the part of the trial judge. This exception, therefore, is without merit.
Second, appellant contends he received ineffective assistance of counsel at the guilty plea hearing because of an inadvertent remark made by his attorney. At the conclusion of the guilty plea hearing, appellant's counsel inadvertently asked the judge to give appellant "consecutive" sentences. It is clear from the transcript that counsel meant to ask for "concurrent" sentences, and that the trial judge apparently understood counsel's meaning. Additionally, the trial judge's affidavit stated he understood counsel had meant to ask for concurrent sentences, and that he was not influenced by counsel's inadvertent remark. There was, therefore, ample evidence on the record for the judge to have found appellant received effective assistance of counsel. Davis v. State, 274 S.C. 549, 265 S.E. (2d) 679 (1980).
Further, in an ineffective assistance of counsel case, the petitioner has the burden of showing that counsel's actions or omissions were prejudicial to him. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L. (2d) 705 (1967); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. (2d) 419 (1970); United States v. DeCoster, 624 F. (2d) 196 (D.C. Cir.1976); Wood v. Zahradnick, 578 F. (2d) 980 (4th Cir.1978); Cooper v. Fitzharris, 586 F. (2d) 1325 (9th Cir.1978); Davis v. Alabama, 596 F. (2d) 1214 (5th Cir.1979). See also State v. Pendergrass, 270 S.C. 1,239 S.E. (2d) 750 (1977) (deficiency of *225 counsel not responsible for conviction); Kibler v. State, 267 S.C. 250, 227 S.E. (2d) 199 (1976) (Court will not speculate concerning what might have occurred if counsel had conducted further investigation); Myers v. State, 248 S.C. 539, 151 S.E. (2d) 665 (1966) (counsel not ineffective where no showing was made that witnesses he failed to call would have been of assistance to appellant).
We find appellant has failed to meet his burden of showing counsel's statement prejudiced him. This is particularly true in light of the trial judge's affidavit. The decision of the lower court denying appellant's petition for post-conviction relief is, therefore, affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1863396/ | 318 So.2d 53 (1975)
Robert H. CARR et ux.
v.
PARISH OF EAST BATON ROUGE.
No. 56614.
Supreme Court of Louisiana.
September 17, 1975.
Writ denied. There is no error of law in the judgment complained of. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261500/ | 58 Pa. Commonwealth Ct. 634 (1981)
Joseph Francis Melcher, Appellant
v.
Commonwealth of Pennsylvania, Appellee.
No. 299 C.D. 1980.
Commonwealth Court of Pennsylvania.
Argued March 2, 1981.
April 24, 1981.
Argued March 2, 1981, before Judges MENCER, ROGERS and PALLADINO, sitting as a panel of three.
*635 David P. Grau, Semisch & Grau, for appellant.
Maurice Levin, with him Harold H. Cramer, Attorney for Department of Transportation, Ward T. Williams, Chief Counsel for Transportation, for appellee.
OPINION BY JUDGE ROGERS, April 24, 1981:
Joseph Francis Melcher has appealed from an order of the Court of Common Pleas of Montgomery County affirming the action of the Department of Transportation, Bureau of Traffic Safety, revoking his operator's license for five years.
On the evening of October 2, 1978, Melcher was racing another car on a public highway and thereafter pleaded guilty to charges of violating three sections of the Vehicle Code, 75 Pa. C.S. § 101 et seq.: Section 3367, racing on highways, Section 3733, fleeing or attempting to elude a police officer; and Section 3734, driving without lights to avoid identification or arrest.
On September 20, 1979, Melcher received a notice from the Department of Transportation stating that the three convictions stemming from the October 2, 1978, incident brought him within the class habitual offender under Section 1542 of the Vehicle Code and that his operator's license therefore was revoked for five years. Melcher appealed the Department's action to the court below, which, after a hearing denovo, entered an order on January 29, 1980, reinstating the Department's revocation of Melcher's operator's license. We granted supersedeas pending this appeal.
Melcher contends here, as he did in the lower court, that although he committed three separate offenses, they all occurred within ten minutes as parts of one act and thus do not make him an habitual offender. The law is directly contrary to his position.
*636 Section 1542 of the Vehicle Code provides in pertinent part that
(a) General rule. The department shall revoke the operating privilege of any person found to be a habitual offender pursuant to the provisions of this section. A `habitual offender' shall be any person whose driving record, as maintained in the department, shows that such person has accumulated the requisite number of convictions for the separate and distinct offenses described and enumerated in subsection (b) committed after the effective date of this title and within any period of five years thereafter.
(b) Offenses enumerated. Three convictions arising from separate acts of any one or more of the following offenses committed either singularly or in combination by any person shall result in such person being designated a habitual offender:
. . . .
It is now settled law that a person who commits three offenses during a single, short-lived incident is an habitual offender under Section 1542. Weaver v. Department of Transportation, 52 Pa. Commonwealth Ct. 625, 416 A.2d 628 (1980); Brewster v. Department of Transportation, 52 Pa. Commonwealth Ct. 112, 415 A.2d 922 (1980).
Accordingly, we enter the following:
ORDER
AND NOW, this 24th day of April, 1981, the order of the Court of Common Pleas of Montgomery County No. 79-19013, is affirmed. The Department of Transportation shall forthwith reinstate its order of revocation.
This decision was reached prior to the expiration of the term of office of Judge WILKINSON. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261504/ | 428 A.2d 395 (1981)
Nancy A. FREDETTE
v.
STATE of Maine et al.
Supreme Judicial Court of Maine.
Argued September 1, 1980.
Reargued April 1, 1981.
Decided April 14, 1981.
*396 Glassman, Beagle & Ridge, Caroline D. Glassman (orally), Portland, C. Alan Beagle, Cloutier & Woodman, James F. Cloutier, Portland, for plaintiff.
William R. Stokes (orally), Wayne S. Moss (orally), Charles K. Leadbetter, John Gleason, Asst. Attys. Gen., Augusta, for defendants.
Before WERNICK, GODFREY, NICHOLS, ROBERTS and CARTER, JJ.
WERNICK, Justice.
Invoking the traditional "great writ of liberty", habeas corpus, by a petition addressed to the concurrent jurisdiction of the Supreme Judicial Court (14 M.R.S.A. § 5301), petitioner Nancy A. Fredette alleged that she had been unlawfully restrained of her liberty because the justice who presided at her jury trial for murder refused, after the jury had found petitioner guilty of murder, to admit her to bail pending further judicial review of the adjudication of her guilt.
Now before this Court, the Law Court, is petitioner's appeal from the judgment entered in the Supreme Judicial Court on the decision of a single justice of that court denying petitioner habeas corpus relief. In concluding that petitioner is not being unlawfully restrained of her liberty, the single justice decided that Article I, § 10 of the Constitution of Maine divests judicial power to admit to bail, before conviction, a person accused of the crime of murder "when the proof is evident or the presumption great" and, therefore, that it would be "anomalous" to recognize the existence of such judicial power after conviction when the jury's verdict of guilt had made the "proof. . . evident."
Although we disagree with the single justice's interpretation of the meaning of Article I, § 10 in the "before conviction" context, by a different line of reasoning we agree with his ultimate conclusion that a *397 court lacks power, and therefore cannot exercise discretion, to admit to bail a person who stands convicted, as does petitioner, of the crime of murder. Accordingly, we deny the appeal and affirm the judgment of the Supreme Judicial Court denying the petition for writ of habeas corpus.
We have before us the following factual situation. Indicted by a grand jury sitting in York County, petitioner was tried before a jury in the Superior Court in Lincoln County[1] and found guilty of murder, as charged to have been committed in violation of 17-A M.R.S.A. § 201(1)(A).[2] While awaiting trial, petitioner had been admitted to bail, and having met the bail requirements, she had been released from custody during the trial. After the jury returned its verdict of guilty, and the presiding justice had set July 25, 1980 as the date for sentencing, the justice thereupon revoked petitioner's admission to bail and ordered her committed to the custody of the Sheriff of York County.[3]
Apparently to bring into play the provision of Rule 46(a)(2) M.R.Crim.P., which was then in force, that "after conviction" and
"[p]rior to the filing of a notice of appeal, the justice who presided at the trial may enter an order setting bail pending appeal conditioned upon the timely filing of a notice of appeal",
petitioner represented to the presiding justice that she was going to file a motion for a new trial and notice of appeal, and she requested to be admitted to bail. The justice denied the request. He stated expressly that the "ground" of his refusal to allow petitioner bail "pending ... hearing on motion for a new trial and pending appeal" was that she had been "found guilty of murder."
On July 2, 1980, petitioner brought the instant petition for writ of habeas corpus. She also made "application", pursuant to Rule 46(a)(2) M.R.Crim.P., for a justice of the Supreme Judicial Court to admit her to bail "pending appeal." After a consolidated hearing, a single justice of the Supreme Judicial Court denied both the petition for writ of habeas corpus and the "application" to be admitted to bail.
On July 15, petitioner appealed to the law Court[4] from the entry of the judgment in the Supreme Judicial Court denying the petition for writ of habeas corpus. Expedited disposition of the appeal was sought, and after all counsel involved had agreed to a shortened time for the filing of briefs, oral argument of the appeal was ordered held, and was held, at this Court's September, 1980, Term.[5] The appeal was again argued before this Court on April 1, 1981.
1.
All of the proceedings involved in this appeal took place after the jury's verdict and prior to the sentencing of the defendant and thus preceded the entry of the judgment of conviction triggering reviewability by "appeal." See Rules 32(b) and 37(c) M.R.Crim.P. We are therefore called *398 upon to decide the interrelationship among the following potentially applicable provisions of law: (1) the provision in Rule 32(a) M.R.Crim.P. regarding "bail" after verdict and "pending sentence"; (2) the provisions in Rule 46(a)(2) M.R.Crim.P. pertaining to the defendant's being "admitted to bail after conviction and pending appeal" as well as to the setting [of] bail pending appeal" at a time "[p]rior to the filing of a notice of appeal"; and (3) the provision in Article I, § 10 of the Constitution of Maine prescribing the circumstances in which "[n]o person before conviction shall be bailable. . .", (emphasis added) as it may be brought into play by the phrase "in accordance with the Constitution" appearing in Rule 46(a)(2).
We decide that in a criminal prosecution where there is a trial by jury, all of the foregoing provisions fix the jury's return of a verdict of guilt as the stage after which the matter of admitting the defendant to bail is open to a difference in evaluation. Rule 32(a) states this expressly. We think, too, it is the meaning of "after conviction" as used in Rule 46(a)(2), more particularly since subsection (2) can fairly be taken to be the chronological complement to the "before verdict" stage of the proceedings dealt with in subsection (1) of Rule 46(a) (emphasis added).[6] Moreover, the words "before conviction" in Article I, § 10 of the Constitution are most reasonably interpreted as referring to the time in a criminal prosecution when the presumption of innocence is still operating and the accused has the strongest claim to admission to bail. Hence, since the return of the jury's verdict of guilt is the time when the presumption of innocence is dissipated, we construe "before conviction" in Article I, § 10 to mean the time before the return of a jury verdict of guilt.
Thus, for the purposes of the applicability of Rule 46(a)(2) and of Article I, § 10 to the situation now before us, the stage of the prosecution was "after conviction."
2.
Rule 46(a)(2) therefore has square applicability here, and it states:
"A defendant may be admitted to bail. . . in accordance with the Constitution and statutes of this State."
Our inquiry, then, must be directed not only to the textual provisions of the Rule itself but also to the "Constitution" and "statutes" as further potential sources of controlling law.
The initial point to be made derives from the contrast between the textual language "may be admitted to bail" (emphasis *399 added) appearing in subsection (2) and that appearing in subsection (1), that "before verdict" a defendant "shall be admitted to bail . . . ." (emphasis added) This contrast makes plain that after verdict of guilty a defendant has no "right" to be admitted to bail, in the sense that it is not mandatory that the court admit the defendant to bail, but the court has discretion to admit a convicted defendant to bail or to deny him admission to bail, as the court may deem appropriate.
As to the further possible sources of content, we investigate, first, what content the "statutes" may yield. We find no statute currently in effect, or that may have been in effect since Rule 46(a) was promulgated effective December 1, 1965, applying in terms to the subject matter now before us. That subject-matter we identify as the following: an accused's being admitted to bail by a court acting in the direct course of a criminal prosecution at the stage of the prosecution which is subsequent to the return of a jury verdict finding the accused guilty of an offense serious enough to be punishable by imprisonment in the State Prison.[7]
Turning, then, to the "Constitution" as the other potential source of content referred to in Rule 46(a)(2), we see in it only two provisions relating to bail. The first of these, found in Article I, § 9, states that "excessive bail shall not be required." We interpret this provision as providing only that where a defendant in a criminal prosecution must, or may, be admitted to bail, the bail shall not be excessive. It therefore casts no light on the problem of the instant case: whether, and in what circumstances, such a defendant may (or must) be admitted to bail.[8] The other provision, in Article I, § 10, as we have previously mentioned, applies in terms only to the time "before conviction", which, in the context of a jury trial, we have construed to mean the period prior to the jury's return of a verdict of guilty. Hence, as taken within its own confines, the textual language of Article I, § 10 makes it inapplicable to the instant situation.
Do these circumstances, then, compel the conclusion that from the time it was promulgated Rule 46(a) conferred an utterly unlimited judicial discretion to admit a defendant to bail after conviction (although the Rule would incorporate whatever limitations might later be imposed either by constitutional amendment or the enactment of legislation)? We cannot so conclude.
Such an interpretation of the Rule would signify a radical change of the substantive law regarding admission to bail previously in force which had been established, as we shall explain more fully, from the earliest days of Maine's statehood. Nothing in the legislative history, however, suggests legislative intendment to effectuate such a change. Furthermore, in the absence of legislative intendment, to attribute to the Supreme Judicial Court the intendment, by rule alone, to make so drastic a change of the substantive law of bail could give rise to the argumentto be avoided if at all reasonably possiblethat the Court may have acted in excess of its power to promulgate rules of criminal procedure.
*400 Prior to December 1, 1965, the law of Maine regarding admission to bail was as follows. At least until 1860 the statutes governing the subject of an accused's being admitted to bail by a judge acting in the direct course of a criminal prosecution, and at the stage after the return of a verdict of guilty, referred to the criterion whether the offense charged against the accused was currently punishable by death, i. e., "capital." If the offense charged was thus "capital", the court was absolutely divested of power to admit to bail. The mechanism by which this result was achieved was the imposition of a requirement that capital offenses be tried at nisi prius by at least two justices of the Supreme Judicial Court, and the further provision that as to such trials, review by the Law Court would not lie as a matter of course but would lie only upon issuance of a "writ of error", as "allowed by one of the justices of the supreme judicial court." If such a writ of error was "allowed" to issue, the statutes conferred no power with regard to admission of the defendant to bail. This was in striking contrast to the fact that such power had been conferred regarding all non-capital offenses further review by exceptions, or writ of error, having been authorized for such offenses as a matter of course. See P.L. 1823, c. 219; R.S. 1841, c. 172, § 41, and c. 143, §§ 7, 8 and 9.
In 1860, the legislature removed the requirement that capital offenses be tried before a minimum of two justices of the Supreme Judicial Court, and it also authorized review by exceptions as a matter of course in capital cases. P.L. 1860, c. 133, § 1.
In light of this elimination of the prior differences in the procedures for the trial and review of capital and non-capital offenses, in 1869 the legislature took a different approach to the matter of the power of the court to admit to bail after verdict of guilty and pending review. It did this by enacting P.L. 1869, c. 43. By this statute the power of the court to admit to bail was no longer totally withheld pending review of questions of law as to an offense actually punishable by death (a "capital" offense). Instead, a new criterion was introduced. Discretion to admit to bail pending review of questions of law by the Law Court was conferred "in all cases where the offence charged is bailable." Precisely this statutory grant of power continued thereafter until the promulgation of the Criminal Rules effective December 1, 1965.[9] R.S. 1871, c. 134 § 26; R.S. 1883, c. 134 § 26; R.S. 1903, c. 135 § 26; R.S. 1916, c. 136 § 27; R.S. *401 1930, c. 146 § 26; R.S. 1944, c. 135 § 29; R.S. 1954, c. 148 § 29; 15 M.R.S.A. § 1701.[10]
We decide that by thus introducing in 1869, and continuing thereafter until December 1, 1965, the concept of the "bailability" of an offense as a limitation upon statutorily conferred judicial discretion to admit an accused to bail once the criminal prosecution had arrived at the stage where the accused stood convicted by reason of a jury verdict of guilt, the legislature had forged a linkage with the "before conviction" concept of "bailability" delineated in Article I, § 10 of the Constitution. It had statutorily incorporated that concept as a limitation upon the statutorily conferred judicial discretion to admit a defendant to bail after conviction.
In consequence of this decision we must undertake two inquiries: (1) ascertaining the meaning of the concept of "bailability" before conviction delineated in Article I, § 10 of the Constitution, and (2) ascertaining the reasonable scope of the application of that meaning as a statutorily prescribed limitation of the statutorily conferred discretionary authority of a court to admit a defendant to bail after conviction.
3.
We begin our analysis of the meaning of the "bailability" provisions of Article I, § 10 by referring to the law established in Massachusetts, our mother Commonwealth, by Section 18 of the Massachusetts "Body of Liberties" enacted in 1641. That Section provided:
"No mans person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto. If he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behaviour in the meane time unlesse it be in Crimes Capital, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it."
By virtue of this provision of the Body of Liberties the law of Massachusetts, to quote the language of the Massachusetts Court in Commonwealth v. Baker, 343 Mass. 162, 177 N.E.2d 783 (1961), was that
"[f]rom early colonial times bail appears to have been allowable in the court's discretion in capital cases and contempts committed in open court, and as a matter of right in all other cases." 177 N.E.2d at 785 (emphasis added)
Moreover, as shown by Commonwealth v. Baker, this continued to be the "basic structure" of the Massachusetts "bail scheme" when in 1820 (and indeed long after) the District of Maine separated from Massachusetts and became a State. 177 N.E.2d at 785.
*402 Thus, the law as to bail before conviction obviously most familiar to those who drafted the Constitution of Maine, as having been the law of Massachusetts which had governed them until 1820, was: (1) a person accused of any offense whatever, other than a capital offense or a contempt committed in open court, had a right to be admitted to bail, i. e., to have bail fixed, or set; and (2) a person accused of a capital offense or a contempt committed in open court lacked right to be admitted to bail, but it was permissible that such an accused be admitted to bail in the exercise of judicial discretion.
We therefore take these two basic principles of the Massachusetts law regarding bail as the foundational guide to assist us in interpreting the meaning of the language of Article I, § 10 as it was written in 1820, and stated:
"All persons, before conviction, shall be bailable, except for capital offences, where the proof is evident or the presumption great."
Thus guided, we conclude that as of 1820, Article I, § 10 yielded four basic propositions of law.
First, it preserved the Massachusetts concept of an accused's having a right to be admitted to bail and went beyond the Massachusetts law by giving that right a constitutional, not merely a statutory, foundation.
Second, it established that this constitutional right to be admitted to bail was absolute in relation to any offense whatever, except a capital offense, charged against an accused.
Third, it established in regard to capital offenses, as the single category excepted from the scope of an accused's absolute right to bail, a further departure from the law of Massachusetts. Under the Massachusetts law the fact alone that an accused was charged with a capital offense eliminated totally and unconditionally his right to be admitted to bail, and it was left entirely as a matter of judicial discretion whether the accused would be admitted to bail. In contrast, the 1820 version of Article I, § 10 established in part the right of a person accused of a capital offense to be admitted to bail; such an accused was given a conditional right to be admitted to bail, the condition of the existence of this right being the absence of "proof ... evident or ... presumption great."
Fourth, Article I, § 10 addressed only the accused's right to be admitted to bail, whether as existing absolutely (in relation to all non-capital offenses) or conditionally (in relation to capital offenses where "proof... evident or ... presumption great" is lacking). Thus, rather than prohibiting the exercise of judicial discretion to admit an accused to bail for all offenses whatever, including those capital, Article I, § 10 left entirely intact judicial power, as authorized by the common law, to exercise discretion to admit an accused to bail for any offense whatever, capital or otherwise.
Such being the law of Maine established by the 1820 version of Article I, § 10 of the Constitution, we next investigate the extent to which that law may have been changed when, eighteen years later, Article I, § 10 was amended, effective March 21, 1838, to read:
"No person before conviction shall be bailable for any of the crimes which now are, or have been denominated capital offences since the adoption of the Constitution, when the proof is evident or the presumption great, whatever the punishment of the crimes may be."
We conclude that even though the 1838 amendment omitted an express affirmative statement of the right of an accused to be admitted to bail, it nonetheless preserved the law in all respects as it had been since 1820, except for the single change that it enlarged the class of offenses as to which an accused's right to be admitted to bail was conditional rather than absolute, i. e., as to which the accused's right existed only in the absence of "proof ... evident or ... presumption great." As thus expanded by the 1838 amendment, that class of offenses comprised not only offenses currently capital but also those "denominated capital" at any time "since the adoption of the Constitution."
The historical record strongly supports this interpretation of the 1838 amendment *403 of Article I, § 10. Exhaustive research has disclosed nothing to suggest any reason, let alone the compelling kind of reason, that would have made necessary after less than eighteen years a change of constitutional law so drastic as the elimination of the constitutional right of an accused to be admitted to bail before convictiona right which in 1820 had been set forth in the Constitution's "Declaration of Rights" as the logical implementation of the presumption of innocence.
In addition, the historical record reveals affirmatively, and rather forcefully, that events after 1820 induced the legislature to seek only to amend in a narrow particular respect, not to abolish, the constitutional right of an accused to be admitted to bail before conviction.
By Resolve of March 30, 1837 (1837 Resolves, c. 74) the legislature submitted to the vote of the people the proposal to amend the 1820 version of Article I, § 10 which, as subsequently approved by the people, became effective March 21, 1838. The affirmative statements of the Resolve disclose that the legislature, aware that capital punishment had been abolished for some crimes and might be abolished for others (including murder), had become concerned with the effect of the abolition of the death penalty for particular crimes upon the applicable scope of the 1820 version of Article I, § 10. The legislature had previously manifested this concern by asking the Justices of the Supreme Judicial Court for an advisory opinion on the question, in the words of the legislature:
"If the Legislature shall abolish the punishment of death, will the crime of murder become, by the Constitution, a bailable offence?" (emphasis added)
On February 6, 1836, the justices gave their advisory opinion, answering the legislature's question in the affirmative, as follows:
"if the legislature should abolish the punishment of death, the crime of murder, which is now a capital offence, would cease to be such; and being no longer capital, it would ... before conviction, become a bailable offence by the Constitution." (See Journal of House of Representatives of the Sixteenth Legislature) (emphasis added)
In short, the justices informed the legislature that an offense is "capital" only if it is currently punishable by death; it does not remain "capital" because at some previous time it had been punishable by death.
It was in light of this advisory opinion that the legislature adopted the Resolve (1837 Resolves, c. 74) submitting to the vote of the people the proposed amendment which was subsequently approved by the people and became effective March 21, 1838 as amended Article I, § 10. Most significantly for our present purposes, the Resolve stated:
"WHEREAS the Judges of the Supreme Judicial Court have given it as their opinion, in answer to a question propounded to them by the Legislature, that if the punishment of death should be abolished by the Legislature the crimes of Treason, Murder and Arson, would become bailable offences by the Constitution, in consequence of the phrase `capital offences' being construed to mean those offences only which are punishable with death; AND WHEREAS the crimes of Rape, Robbery with intent to kill and Burglary which were punishable by the Statute laws with death prior to their repeal by an Act approved February twenty-eighth, one thousand eight hundred and twenty-nine are now by this construction bailable offences; Therefore: (emphasis added) "RESOLVED by the Senate and House of Representatives in Legislature assembled, That the tenth section of Article first of the Constitution shall be so altered and amended as to read, That no person before conviction shall be bailable for any of the crimes which now are, or have been denominated capital offences since the adoption of the Constitution `when the proof is evident, or the presumption great' whatever the punishment of the crimes may be. Provided that a majority of the inhabitants of this State, who are constitutionally qualified to vote for State officers, shall at the annual meeting, on the second Monday of September next decide in favor of such amendment." (emphasis in original)
*404 This recorded history is persuasive to confirm that the 1838 amendment of Article I, § 10 was calculated to change the status quo ante not sweepingly but only in one particular respect. The change contemplated was to establish that removal of the death penalty for any of the crimes punishable by death when, or after, the Maine Constitution was adopted would not cause a person accused of any such crime to gain a constitutional protection he did not enjoy under the 1820 version of Article I, § 10. This specific change was achieved by expanding "capital offences" to read:
"for any of the crimes which now are, or have been denominated capital offences since the adoption of the Constitution."
Yet, if our analysis is to be complete in this regard, we cannot ignore that the textual language of the 1838 amendment of Article I, § 10 went beyond merely expanding "capital offences"; it also changed the overall structure of the language. Whereas the 1820 version stated:
"[a]ll persons, before conviction, shall be bailable, except for capital offences ...",
the 1838 amendment was phrased:
"No person before conviction shall be bailable for any of the crimes which now are, or have been denominated capital offences since the adoption of the Constitution...."
Despite this change of language structure, we conclude that the 1838 amendment preserved the status quo ante in all respects except for the narrow change already discussed.
Beyond the point that the historical record shows affirmatively that it was the legislative purpose to make only this minor change, we emphasize that Article I, § 10 originally was, and remained after the 1838 amendment, a section of the Maine Constitution's "Declaration of Rights." Were the change in the language structure of Article I, § 10 removing the affirmative words "[a]ll persons shall be bailable before conviction" intended to eliminate the constitutional right of an accused to be admitted to bail before conviction, it seems anomalous that the negation of such right of the individual as against government would be retained as a part of a constitutional "Declaration of Rights."
Hence, in light of the lessons of the historical record, and the fact that Article I, § 10 continues to be part of the Constitution's "Declaration of Rights", we believe that if the 1838 amending language is reasonably open to the interpretation that it changed the prior constitutional law only in the particular respect that it expanded the notion of "capital offenses", the language must be so construed.
We are satisfied that the 1838 amending language can reasonably be so interpreted, especially because as to
"any of the crimes which now are, or have been denominated capital offences since the adoption of the Constitution",
the negation asserted is not absolute but is conditional; the negation is operative as to such crimes only if "the proof is evident or the presumption great."
This being so, our inquiry must focus upon what was intended as to the situation where "proof . . . evident or ... presumption great" is absent. It is reasonable to say that in such case the word "no" modifying "person . . . shall be bailable" becomes inoperative, and that the affirmative mandate comes into play that the "person ... shall be bailable", i. e., the accused has a right to be admitted to bail.
Since we thus acknowledge the existence of a constitutional right of a person to be admitted to bail before conviction who stands accused of a crime "now" capital or "denominated capital ... since the adoption of the Constitution" if "proof ... evident or ... presumption great" is lacking, it would be a strange conclusion indeed were we to hold that because the 1838 amendment of Article I, § 10 omits express affirmation of the right of a person accused of any other offense to be admitted to bail before conviction, such accused has no constitutional right in any form to be admitted to bail before conviction. Plainly, it must be held the more reasonable conclusion that the 1838 amendment of Article I, § 10 implicitly *405 avows that a person has an absolute right to be admitted to bail before conviction if he stands accused of any crime that falls outside the class expressly referred to in the amendment. This absolute right contrasts with the conditional right to be admitted to bail of a person accused of a crime falling within the class of crimes expressly delineated by the amended language of Article I, § 10, the condition of the existence of the right in such case being the absence of "proof . . . evident or . . . presumption great."
In summary, then, we decide: (1) the original 1820, as well as the subsequently amended 1838, version of Article I, § 10 addressed only the subject of an accused's right to be admitted to bail before conviction; (2) both versions did not address, and left unaffected, the subject of the power of a court in the exercise of discretion to admit an accused to bail before conviction; (3) as to the accused's right to be admitted to bail before conviction, Article I, § 10, both before and after 1838, made that right absolute in regard to all but a few crimes, and as to these few, the right was made conditional, i. e., the right exists if there is absent "proof . . . evident or . . . presumption great"; (4) the only difference between the 1820 and 1838 versions of Article I, § 10 lay in their delineation of the few crimes as to which the accused has a conditional right to be admitted to bail before conviction the 1820 version describing them as "capital" offenses (those currently punishable by death) and the 1838 version enlarging the class to include not only those offenses "now" capital but also those "denominated capital . . . since the adoption of the Constitution."
4.
Having thus completed the first inquiry we earlier undertook, to ascertain the correct interpretation of the provisions of Article I, § 10 regarding "bailability" before conviction, we turn to the second inquiry.
As we previously explained, the necessity of our undertaking a second inquiry arose because the statutes in effect from 1869 to 1965 conferring discretionary authority on an appropriate court to admit a defendant to bail after conviction made the exercise of such discretion subject to the limitation that "the offence charged is bailable." We had already decided herein that in thus confining the judicial exercise of discretion to admit a defendant to bail after conviction to offenses that are "bailable", the legislative intendment was to adopt the meaning of "bailable offence" given by Article I, § 10 of the Constitution in the before conviction context, and to carry over that meaning, as reasonably applicable, to the after conviction context.
Having decided the correct interpretation of the before conviction provisions of Article I, § 10, we now investigate what aspects of such meaning the legislature incorporated, by its use of the concept of an offense as "bailable", to limit the exercise of judicial discretion to admit a defendant to bail after conviction.
Our earlier analysis reveals that neither the original 1820 nor the 1838 amended version of Article I, § 10 referred to an "offence" as "bailable." Instead, the textual language spoke only of a "person" as "bailable" in relation to offenses. It was the legislature which introduced the notion that Article I, § 10 had a meaning establishing that an "offence" is "bailable." The legislature did this when, in 1836, it asked the justices of the Supreme Judicial Court:
"If the Legislature shall abolish the punishment of death, will the crime of murder become, by the Constitution, a bailable offence?" (emphasis added)
The crucial question, then, is what, reasonably, was the legislature's conception when it thus used the words "bailable offence" to express the meaning it had derived from the 1820 version of Article I, § 10?
As our prior discussion has established, Article I, § 10 dealt only with a person's right, before conviction, to be admitted to bail as well as the scope of that right as being (1) absolute in relation to a person's being accused of any offense other than a "capital" offense, and (2) conditional in relation to an accusation of a "capital" offense, *406 in which case the condition of the existence of the right was the absence of "proof . . . evident or . . . presumption great."
With such the meaning of Article I, § 10 when the legislature in 1836 asked the justices of the Supreme Judicial Court whether abolition of the death penalty would cause the crime of murder to "become, by the Constitution, a bailable offence", the legislature reasonably could have meant by "bailable offence" only an offense as to which a person accused of it would "before conviction" have the absolute, rather than the conditional, right to be admitted to bail. This is the necessary conclusion, since abolition of the punishment of death for an offense would have relevant applicability under Article I, § 10 only to transform the offense into one non-capital, thereby to give a person accused of such offense the absolute, rather than conditional, right to be admitted to bail before conviction.
We therefore conclude that, for our present purposes, the legislature has made clear that at least since 1836, it has conceived an offense to be a "bailable" one if under Article I, § 10 a person accused of such offense would have the absolute right to be admitted to bail before conviction.
Thus, from 1869 until 1965, when the legislature made the concept of an offense as "bailable" the criterion limiting the statutory grant of power to a court to exercise discretion to admit an accused to bail after conviction, the legislature thereby confined the reach of that power to those offenses as to which Article I, § 10 of the Constitution conferred upon a person so accused the absolute right to be admitted to bail before conviction. After the 1838 amendment of Article I, § 10, such "bailable" offenses were all offenses other than those currently punishable by death or those "denominated" as so punishable at any time "since the adoption of the Constitution."
Moreover, this being the statutory scheme, as incorporating reference to Article I, § 10, for the admitting of defendants to bail after conviction as of December 1, 1965 when Rule 46(a) M.R.Crim.P. became effective, we decide that it was the intendment of that Rule, by its language "in accordance with the Constitution and statutes of this State", to absorb that statutory scheme into the Rule and continue it in force, subject to whatever future change might be made.[11]
We decide, then, that murder being an offense which was at some time after the adoption of the Constitution punishable by death, (1) murder is not an offense as to which under Article I, § 10 of the Constitution an accused has an absolute right to be admitted to bail "before conviction"; (2) it therefore was not a "bailable" offense within the meaning of 15 M.R.S.A. § 1701, thus to be encompassed prior to December 1, 1965 within the discretionary power granted to a court to admit to bail after conviction; and, hence, (3) it is excluded from the discretionary power to admit to bail after conviction recognized by Rule 46(a)(2) M.R. Crim.P.
*407 The single justice of the Supreme Judicial Court therefore correctly concluded that the justice of the Superior Court lacked power, and hence could not exercise discretion, to admit the petitioner Nancy A. Fredette to bail after she stood convicted of the crime of murder. Accordingly, she was not being unlawfully restrained of her liberty by the Superior Court justice's refusal to admit her to bail, and her petition for writ of habeas corpus should have been, as it was, denied.
The entry shall be:
Appeal denied; the judgment denying the petition for writ of habeas corpus is affirmed.
All concurring.
NOTES
[1] The alleged crime was committed in York County. Upon a motion for change of the venue of the trial, the trial was ordered held before a jury convened in Lincoln County.
[2] 17-A M.R.S.A. § 201(1)(A) provides:
"1. A person is guilty of murder if:
"A. He intentionally or knowingly causes the death of another human being;"
[3] Rule 32(a) M.R.Crim.P., provides that "[p]ending sentence the court may commit the defendant or continue or alter the bail."
[4] 4 M.R.S.A. § 51 provides:
"When sitting as a law court to determine questions of law arising in civil actions and in criminal trials and proceedings, the Supreme Judicial Court shall be composed as provided by rules promulgated by that court and shall hear and determine such questions by the concurrence of a majority of the justices sitting and qualified to act."
[5] After petitioner had been sentenced, on July 25, 1980, to serve 35 years imprisonment at the Maine Correctional Center, and final judgment of her conviction was thereafter entered on the docket of the Superior Court, petitioner took an appeal to this Court from the judgment of conviction. The appeal was entered on this Court's docket on July 30, 1980, and it is pending, awaiting the filing of briefs and oral argument.
[6] As originally promulgated effective December 1, 1965, Rule 46(a) did not contain a separate subsection (1) and (2) to deal with the "before verdict" and "after conviction and pending appeal" contexts but covered them in a single sentence reading: "A defendant shall be admitted to bail before conviction and may be admitted to bail after conviction and pending appeal in accordance with the constitution and statutes of this State.
We note, too, that effective September 1, 1980, and therefore without applicability to this case, the following amendments were made relative to Rule 46. First, the entirety of paragraph (a) of Rule 46 was deleted. Substituted in its place was a new paragraph reading:
"(a) Right to Bail. A defendant shall be released before verdict or finding of guilt in accordance with the Constitution and statutes of this State. A defendant may be released after a verdict or finding of guilt but before entry of judgment in accordance with the Constitution and statutes of this State." Also, an additional Rule 46A was promulgated entitled "BAIL PENDING APPEAL." It deals in its entirety with the admitting to bail of a person who is described as a "convicted defendant."
It may be, and we presently intimate no opinion on the point, that the above express references in amended Rule 46(a) to the period "after a verdict or finding of guilt but before entry of judgment" would suggest that the words "convicted defendant" in newly promulgated Rule 46A describe a defendant against whom a judgment of conviction has been entered, rather than a defendant at that stage of the prosecution where only a verdict of guilty has been returned.
In any event, as we have already stated, these amendments have no applicability to the present case, and they do not affect the interpretation we have given to the word "conviction" as that word appeared in the formulation of Rule 46(a) prior to September 1, 1980, or as it has always appeared in Article I, § 10 of the Constitution of Maine.
[7] Thus, 14 M.R.S.A. § 5542 (1980) is plainly inapplicable by reason of its express language excluding from its reach the situation of a defendant against whom "a verdict of guilty has been rendered ... for an offense punishable in the State Prison ...." In addition, this statute is inapplicable, here, because it does not purport to deal with the authority of a judge to admit to bail after verdict of guilt; it addresses only the powers of bail commissioners in that context, in regard to the less serious crimes (those not punishable by imprisonment in the State Prison).
[8] This interpretation is in accord with the interpretation by the Supreme Court of the United States of the provision against "excessive bail" in the Eighth Amendment to the Constitution of the United States. As the Court said in Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952):
"The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept." Id., at 545, 72 S.Ct. at 536-37.
[9] We have no hesitancy in asserting that the statutory grant of power was entirely governed by the criterion whether the "offence charged is bailable", despite the presence of other language which was introduced by the enactment of P.L. 1850, c. 152 and was retained continuously thereafter (with minor changes in form) until 1965. As it appeared in 15 M.R.S.A. § 1701, this other language was:
"When a verdict of guilty is rendered against any person for an offense punishable by imprisonment in the State Prison, or any person is committed pending decision on report or exceptions, as provided, and remains imprisoned after the adjournment of court, he shall be admitted to bail only by the justice trying him, by some person by said justice appointed therefor or by some other Justice of the Superior Court, or by some Justice of the Supreme Judicial Court."
This language was not calculated to enlarge the power of the court to admit to bail beyond the limitation imposed by the criterion that the "offence charged ... [be] bailable." Rather, the intendment was to operate within the "bailable offence" limitation and to impose an additional limitation regarding what official would have the authority to admit to bail, depending on the context involved.
That this is the correct interpretation of the language has been manifest since it first appeared in 1850. As introduced by P.L. 1850, c. 152, the language was designed to prevent, in the context to which it referred, "two Justices of the peace and quorum for any county", or a "justice of the district court", from exercising the power to admit to bail generally conferred on them by R.S. 1841, c. 171 § 22, and c. 140 § 35, on application by "any prisoner committed for a bailable offence ...", or "any person... confined in jail for a bailable offence."
Regardless of changes that the revision process has made in the positions of these provisions in the subsequent statutes, the same relationship and purpose, with only changes in regard to the officials who are involved, continued to be evident from 1850 until 1965. This is shown by comparison of the following three sequential lines of statutory provisions:
[R.S. 1841, c. 171 § 22
[R.S. 1857, c. 133 § 14
[R.S. 1871, c. 133 § 16
[R.S. 1883, c. 133 § 16
[R.S. 1903, c. 134 § 18
1 [R.S. 1916, c. 135 § 18
[R.S. 1930, c. 145 § 18
[R.S. 1944, c. 134 § 18
[R.S. 1954, c. 147 § 18
[15 M.R.S.A. § 855
[R.S. 1841, c. 140 § 35
[R.S. 1857, c. 99 § 34
[R.S. 1871, c. 99 § 34
[R.S. 1883, c. 99 § 35
[R.S. 1903, c. 101 § 35
2 [R.S. 1916, c. 104 § 35
[R.S. 1930, c. 113 § 35
[R.S. 1944, c. 113 § 35
[R.S. 1954, c. 126 § 35
[14 M.R.S.A. § 5542
[P.L. 1850, c. 152 § 1
[R.S. 1857, c. 134 § 26
[R.S. 1871, c. 134 § 26
[R.S. 1883, c. 134 § 26
[R.S. 1903, c. 135 § 26
3 [R.S. 1916, c. 136 § 27
[R.S. 1930, c. 146 § 26
[R.S. 1944, c. 135 § 29
[R.S. 1954, c. 148 § 29
[15 M.R.S.A. § 1701
[10] 15 M.R.S.A. § 1701 was repealed as of December 1, 1965 and the repeal became effective simultaneously with the effectiveness of Rule 46(a).
[11] We are aware that 15 M.R.S.A. § 1701 was repealed by the legislature effective simultaneously with the effective promulgation of Rule 46(a). It could be argued, then, that the Rule's mention of "statutes" is not reasonably to be taken as a reference to a statute which did not survive the effective promulgation of the Rule. The consequences of such approach would be, as we previously explained (at p. 399, ante): first, Rule 46(a)(2), as well as Rule 46(a) as it read when the Criminal Rules were originally promulgated, would be stripped of limiting content and, despite the absence of legislative or judicial intendment to produce such result, the Rule, as of the effective date of its promulgation, would have conferred unfettered judicial discretion to admit a defendant to bail "after conviction"; and, second, the Supreme Judicial Court could be open to the accusation that it had transgressed the bounds of its authority to promulgate rules of criminal procedure, in that it had effectuated by a rule a drastic change of substantive law.
In the face of such consequences, we do not hesitate to reach the conclusion, as in any event the more reasonable alternative in the circumstances, that both the legislative and judicial intendment as of December 1, 1965 was that Rule 46(a), even if its language may have been less technically artistically apt than it could have been for the purpose, incorporated the previously existing statutory scheme governing the admitting of defendants to bail after conviction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261512/ | 428 A.2d 15 (1981)
Melvin A. SLAWIK, Appellant,
v.
The NEWS-JOURNAL COMPANY, an unincorporated company owned by Gannett Company, Inc., a corporation of the State of Delaware, and Gannett Company, Inc., a corporation of the State of Delaware, Appellees.
Supreme Court of Delaware.
Submitted February 11, 1981.
Decided March 12, 1981.
Thomas F. Luce, Wilmington (argued), for appellant.
Louis J. Finger (argued) of Richards, Layton & Finger, Wilmington, for appellees.
Before HERRMANN, C. J., DUFFY and HORSEY, JJ.
*16 PER CURIAM:
Plaintiff appeals Superior Court's grant of defendant-appellee Gannett Company, Inc.'s motion for summary judgment as to plaintiff's action for defamation or libel.
The alleged libel was contained in a September 1979 News-Journal paper editorial titled, "A Career Is Blighted." The editorial concerned another individual, Wendell Howell, a public official who had recently pled guilty to a charge of official misconduct while serving as Director of the Wilmington Housing Authority. The thrust of the editorial was that Howell had thereby abused his office and therefore should resign. Noting that Howell was a black man, the editorial then stated:
It is painful that there are those who will make Mr. Howell's case a racial one. It is not. Other men in quite recent local memory abused their offices and forfeited their right to them: former County Director Melvin A. Slawik and Mr. Howell's former associate, Russell D. F. Dineen. Both are white.
Plaintiff does not dispute that in March, 1976 he was removed from public office as County Executive for New Castle County, Delaware, by order of the Governor of Delaware, for conviction of an "infamous crime," namely, perjury, in the making of false declarations under oath before a Grand Jury a felony.[1] Plaintiff's convictions underlying his removal were reversed on appeal by the Third Circuit Court of Appeals. United States v. Slawik, 3d Cir., 548 F.2d 75 (1977). However, in the meantime plaintiff had pled guilty to a charge of obstruction of justice, namely, impeding a federal investigation into corruption in the government of New Castle County of which plaintiff was the chief executive officer.[2] (The Third Circuit affirmed without decision the District Court's denial of plaintiff's motion to set aside the judgment of conviction and withdraw his guilty plea. United States v. Slawik, D.Del., 427 F.Supp. 824 (1977)).
By reason of his removal from office, plaintiff does not challenge as defamatory defendant's editorial statement that plaintiff had "forfeited" his right to public office. However, plaintiff contends that his guilty plea of obstruction of justice did not constitute a conviction of misconduct in office or abuse of office. Hence, plaintiff argues that the editorial reference to plaintiff having "abused" his office was untrue and defamatory.
*17 The Court's decision rendering summary judgment for defendants[3] was based on one ruling of law and two findings of fact: (1) that whether the allegedly libelous statement was a statement of fact or an expression of opinion was a question of law for the Court, not a jury, to decide; (2) that the editorial assertion that plaintiff had "abused" his office was an expression of opinion, not a statement of fact; and (3) that the newspaper's opinion was supported by well-known facts and did not imply the existence of undisclosed facts.
On the basis of its foregoing rulings, Superior Court, by opinion dated August 1, 1980, concluded, "A statement of opinion about matters which are publicly known is not defamatory as a matter of constitutional law."
The Superior Court correctly determined that under the great weight of authority the issue of whether the allegedly libelous statement constituted a statement of fact or an expression of opinion was a question of law for the Court to determine rather than a question for the jury, as appellant argues. Church of Scientology of Cal. v. Siegelman, S.D.N.Y., 475 F.Supp. 950 (1979); Bucher v. Roberts, Colo.Supr., 595 P.2d 239 (1979); Rinaldi v. Holt, Rinehart and Winston, Inc., N.Y.Apps., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299 (1977), cert. den. 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). A related rule of law is that a court must in the first instance determine whether a communication is capable of defamatory meaning, particularly in cases involving constitutional principles of freedom of expression. Cf. Greenbelt Coop. Pub. Ass'n Inc. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970); Old Dominion Branch No. 496, Nat'l Asso. of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); Restatement (Second) of Torts, §§ 566 and 614 (1977); But see Good Government Group v. Superior Courts, Cal. Supr., 22 Cal.3d 672, 150 Cal.Rptr. 258, 586 P.2d 572 (1978), cert. den. 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). Section 614 of the Restatement (Second) of Torts, comment b states:
The court determines whether the communication is capable of bearing the meaning ascribed to it by the plaintiff and whether the meaning so ascribed is defamatory in character. If the court decides against the plaintiff upon either of these questions, there is no further question for the jury to determine and the case is ended.
The Superior Court's findings of fact set forth under subclauses (2) and (3) on page above were issues properly determined by the Court (See, Restatement (Second) of Torts, § 614); and the Court's findings are "the product of an orderly and logical deductive process ... [and not] clearly wrong...." Levitt v. Bouvier, Del. Supr., 287 A.2d 671 at 673 (1972). The term "abuse of office" is not a word of art and in the manner used by defendant was clearly not synonymous with the crime of "misconduct in office" or "official misconduct." 11 Del.C. § 1211.
Even if defendant's statement were construed to mean that plaintiff had committed an abuse of office as a matter of fact, defendant's alternative defense of truth would prevail. See Howell v. State, Del. Supr., 421 A.2d 892 (1980) stating that "the offense of official misconduct under § 1211(2) is not confined to the failure of a public servant to perform his official powers, functions or duties." Clearly it was a duty inherent in plaintiff's office as County Executive not to obstruct a lawful investigation of corruption involving personnel of the County government. See 9 Del.C. § 1116; State v. Cohen, N.J.Supr., 32 N.J. 1, 158 A.2d 497 (1960).
* * * * * *
Affirmed.
NOTES
[1] This Court held the removal invalid as untimely because imposed prior to sentencing. However, once sentencing occurred, the removal was valid Slawik v. Folsom, Del.Super., 389 A.2d 775 (1978), rev'd, Del.Supr., 410 A.2d 512 (1979).
[2] The indictment count to which plaintiff pled guilty stated in pertinent part:
Defendants herein, unlawfully, willfully and knowingly did endeavor, by means of intimidation and misrepresentation to obstruct, delay, and prevent Bayard Austin from communicating information relating to violations of the criminal statutes of the United States, that is, Title 18, United States Code, Sections 371, 1951, and 1952 to Special Agents of the United States Department of Justice, more particularly, Special Agents of the Federal Bureau of Investigation, duly authorized by said Department to engage in and conduct the investigations of violations of said statutes....
[3] Summary judgment was granted as to both defendants. However, defendant, The News Journal Company, had not joined in the motion by reason of its unresolved claim of lack of jurisdiction for insufficiency of service of process. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261535/ | 111 Cal.Rptr.2d 403 (2001)
91 Cal.App.4th 1166
The PEOPLE, Plaintiff and Respondent,
v.
Vernon Leroy BARKER, Defendant and Appellant.
No. D034739.
Court of Appeal, Fourth District, Division One.
August 28, 2001.
Review Denied November 20, 2001.[*]
*404 Kimberly J. Grove, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle Boustany and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.[1]
HUFFMAN, Acting P.J.
Following his convictions of first degree murder and robbery, Vernon Leroy Barker appeals, asserting that the trial court (1) improperly instructed the jury they could convict him of murder based only upon his possession of property stolen from the victim and "slight" corroborating evidence, (2) erroneously failed to give the jury an instruction on the lesser included offense of theft, (3) prejudicially erred by instruction of the jury on their duty to deliberate, and (4) erroneously imposed a parole revocation fine. Finding the latter point only to have merit, we order the judgment modified to delete reference to the parole revocation fine and otherwise affirm the judgment.
FACTUAL BACKGROUND
A. Coming to America
John Simpson, a roller coaster enthusiast visiting from England, arrived with two friends at the Los Angeles airport on Saturday, February 13,1999, where they were met by a fourth friend who lived in the Los Angeles area. At the Los Angeles airport Simpson rented a white Chevrolet Cavalier which he was scheduled to return to the San Diego airport one week later, on Saturday, February 20. Simpson arranged to meet his friends back in Los Angeles on the morning of Friday, February 19.
On Saturday night Simpson stayed in Castaic, on Sunday in Anaheim, and Monday and Tuesday Simpson stayed in San Diego motels. On Wednesday, February 17, 1999, at about 3:40 p.m., Simpson *405 checked into the Rodeway Inn on Spring Street in La Mesa, where he had stayed on other occasions, and where he was scheduled to remain until Saturday. Sometime after 6:00 p.m. on the evening he came to the La Mesa motel, Simpson was seen by the motel manager standing near his car in the parking lot in the company of another, taller man. About 7:00 p.m. Simpson called his friend in Los Angeles, sounding "upbeat." On Thursday morning a maid arrived to clean Simpson's room, saw a partially covered man in bed, and left without cleaning the room or approaching the man in the bed. She did the same thing on Friday morning, February 19, when she again saw a man in bed when she opened the door.
B. The Discovery of Simpson's Murder
On Friday morning, Simpson's friends waited for him in Los Angeles, as they had planned to go with him to Knott's Berry Farm that morning. About a half-hour after the appointed time, one of his English friends called Simpson's room at the Rodeway Inn, but there was no answer. She called Simpson's room several more times, but when he did not answer, the two friends from England went to Knott's Berry Farm to look for Simpson, and asked their Los Angeles friend to contact San Diego police.
At about 2:20 p.m. that afternoon, a La Mesa police officer arrived at the Rodeway Inn to check on Simpson's welfare. The officer obtained a pass key, went to Simpson's room, knocked on the door and announced his presence, but received no response. When the officer then entered the room and turned on the light, he saw a suitcase on the floor with its contents scattered around, and a man lying on the bed with the lower half of his body covered with a sheet and a pillow case tied around his neck. The man appeared to be dead, and the officer called in a possible homicide.
Evidence technicians found Simpson's room in disarray. A toiletry bag was under a pile of clothing, and bottles of cologne, shampoo and lotions were in a heap next to the clothing. Three latent prints were recovered from the bathroom sink area, and one more latent print was recovered from the refrigerator. An autopsy determined Simpson had died from asphyxia caused by ligature strangulation (the pillow case tied around his neck), a process requiring at least five minutes of sustained pressure to cause death, although the victim would lose consciousness in about 30 seconds.
C. The Arrest of Barker
On Sunday, February 21, 1999, a sheriffs deputy on patrol in Lemon Grove saw a white sedan parked with the driver's window down. The deputy called in a check on the license plate and approached the car, in which Barker appeared to be asleep. The deputy roused Barker and asked him what he was doing, but before Barker could answer, the sheriffs dispatcher called for backup units to assist the deputy, as the license number of the car, Simpson's rental, had been entered in the system as a stolen vehicle involved in a homicide. Barker was arrested without incident.
The keys to Simpson's car were in the ignition. A pair of Simpson's tennis shoes were on the rear floor of the rental car, and a fanny pack which had belonged to Simpson, containing his credit cards and identification, was found under the driver's seat in which Barker had been asleep. Barker's left thumb print was on one of Simpson's credit cards. Barker's left palm print was one of the latent prints found in the bathroom sink area of Simpson's motel room.
*406 D. Attempted ATM Use, Admissions, and Other Matters
On the evening of Wednesday, February 17, Barker, driving a late-model white sedan, visited a friend of his in El Cajon, Carol Atherton. Barker told Atherton he was having financial problems, and a friend of his had loaned him three credit cards and given him the PIN's (personal identification numbers), but he had mixed them up. Atherton told Barker she would help him out, and between 11:45 and midnight that evening, Atherton made three attempts to withdraw cash at two different ATM's (automated teller machines), but was unsuccessful.
The next morning Barker returned to Atherton's house, drove her daughter to school and gave the daughter $20 for lunch money. He then drove back to Atherton's house. Before leaving, Barker gave Atherton a pair of (Simpson's) ankle boots, saying they were too small for him and might fit her daughter. That evening Barker drove Atherton to visit a friend in Lemon Grove, and then they simply drove around.
While they drove around, Barker told Atherton the car they were in belonged to a man he had killed in a motel room on Spring Street. Barker described strangling the man with a pillowcase, saving he had never seen a man's face turn that black before.[2] Barker told Atherton he had remained in the room some hours, and had worn gloves except when picking up some cologne bottles he had meant to bring with him in a bag, but which he had forgotten. Barker also told Atherton he had heard his victim talking on the telephone about being somewhere on Friday, and the car was "good" until then, because Barker had left his victim in the bed, partially covered. Before taking Atherton home, Barker said something like, "I guess you've never been around a murderer before."
A friend of Atherton's daughter saw Barker at the Athertons with a late-model white car. The boy asked Barker whose car it was, and Barker did not answer. The boy asked if the car was "hot," and Barker told him the car's owner was dead in a motel room. The boy exclaimed, "What?" Barker repeated that the owner of the car was dead in a motel room.
The boy asked Barker why he was driving the car, and Barker replied that the car and the motel room had been paid up for two more days. The boy later told his father what Barker had said. When interviewed by police, the boy initially denied knowing anything, but when asked if he would take a polygraph examination, which he refused, the boy disclosed what Barker had said to him.
E. Defense
Barker presented no evidence in his defense. In closing argument, however, in response to the prosecutor's argument that this was not a "what was it" but only a "who did it" type of case (that is, the prosecutor argued that Simpson had clearly been murdered in the course of a robbery, and the only question before the jury was the identity of the robber/murderer), Barker's counsel argued that the credibility of the witnesses who had recounted Barker's admissions was in question, as was the validity of the palm print found in Simpson's room and its attribution to Barker, and that the only crime shown by *407 the evidence was Barker's possession of a stolen car.
PROCEDURAL BACKGROUND
By amended information filed October 25, 1999, the District Attorney of San Diego County accused Barker in the first count of murder (Pen.Code,[3] § 187, subd. (a)), and in a second count of robbery (§ 211). It was further alleged the murder was committed during the course of the robbery (§ 190.2, subd. (a)(17)), that Barker had used a deadly weapon (§ 12022, subd. (b)(1)), and that Barker had served a prior prison term for burglary (§ 667.5, subd. (b)), which also constituted a prior serious felony conviction (§ 667, subd. (a)(1)) and a "strike" prior (§ 667, subds.(b)-(i)).
Trial of the prior conviction allegations was bifurcated at Barker's request. Jury trial of the other charges began on October 25, 1999, and on October 29, 1999, the jury found Barker guilty of the charges, found the murder was of the first degree, and also found true the felony-murder special circumstance and the weapon use. Barker then admitted the truth of the prior conviction allegations.
On November 30, 1999, Barker was sentenced to a term of life in prison without possibility of parole, plus six years. Timely notice of appeal was filed.
DISCUSSION
I
JURY INSTRUCTIONS
Barker claims the trial court prejudicially erred in both giving and in failing to give certain jury instructions. The general rule is that in a criminal case the trial court must instruct on the "principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty `to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681, 156 Cal. Rptr. 871, 597 P.2d 130.) With this preliminary rule in mind, we address Baker's instructional error contentions in turn.
A. CALJIC No. 2.15
During jury instruction discussions, the People requested the trial court to modify the originally submitted 1996 version of CALJIC No. 2.15 to add numbers and separate paragraphs for certain corroborating facts the jury could consider. Defense counsel had no objection to the suggested revision to clarify the language of the pattern instruction. The court thereafter instructed the jury under CALJIC No. 2.15 as modified, as follows:
"If you find that the defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crimes of murder or robbery.[[4]] Before guilt may be inferred, there must be corroborating evidence tending to prove the defendant's guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt.
"[A]s corroboration, you may consider . . .:
"(1) The attributes of possession, that is, as to time, place and the manner;
*408 "(2) That the defendant had an opportunity to commit the crime charged;
"(3) The defendant's conduct;
"(4) His false or contradictory statements, if any, and any other statements that he may have made with reference to that property;
"(5) A false account of how he acquired possession of the stolen property and;
"(6) Any other evidence which tends to connect the defendant with the crime charged."
On appeal, Barker contends the trial court committed reversible error in instructing the jury with a version of CALJIC No. 2.15 that Was modified to include murder as a crime to which it would apply.[5] Barker acknowledges CALJIC No. 2.15 has withstood numerous challenges (see Barnes v. United States (1973) 412 U.S. 837, 843-846, 93 S.Ct. 2357, 37 L.Ed.2d 380 (Barnes); People v. Holt (1997) 15 Cal.4th 619, 676-677, 63 Cal. Rptr.2d 782, 937 P.2d 213 (Holt); People v. Mendoza (2000) 24 Cal.4th 130, 176-177, 99 Cal.Rptr.2d 485, 6 P.3d 150 (Mendoza), and is based upon a long standing rule of law which allows a jury to infer guilt of a theft-related crime from the fact a defendant is in possession of recently stolen property when coupled with slight corroboration by other inculpatory circumstances which tend to show guilt (see People v. McFarland (1962) 58 Cal.2d 748, 754-758, 26 Cal.Rptr. 473, 376 P.2d 449 (McFarland); People v. Anderson (1989) 210 Cal.App.3d 414, 420-432, 258 Cal.Rptr. 482 (Anderson).) Barker argues, however, there is no established legal principle that a guilty verdict on a murder charge may be based upon a finding of possession of stolen property combined with "slight" corroborative evidence. He thus asserts the giving of the instruction with respect to his murder charge was an improper evidentiary pinpoint instruction which encouraged jurors to draw inferences favorable to the prosecution and misled them as to the prosecution's burden of proof.
Although Barker did not object to the giving of the instruction below, because his "claim . . . is [essentially] that the instruction is not `correct in law* and that it violated his right to due process of law[,] the claim . . . is not of the type that must be preserved by objection. [Citations.]" (People v. Smithey (1999) 20 Cal.4th 936, 976, 86 Cal.Rptr.2d 243, 978 P.2d 1171, fn. 7 (Smithey), italics in original.) Having considered the merits of Barker's arguments, we agree the court's reading of CALJIC No. 2.15 with the reference to the murder charge was error, but find such harmless on this record.
In Barnes, the United States Supreme Court noted that "[f]or centuries courts have instructed juries that an inference of guilty knowledge may be drawn from the fact of unexplained possession of stolen goods." (Barnes, supra, 412 U.S. at p. 843, 93 S.Ct. 2357.) The court in Barnes found that such inference comported with due process if "the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt. . . ." (Ibid.)
In California, CALJIC No. 2.15 has evolved from cases holding that proof of possession of recently stolen property is insufficient by itself to support a guilty verdict as to a theft-related offense. (See *409 McFarland, supra, 58 Cal.2d at pp. 754-758, 26 Cal.Rptr. 473, 376 P.2d 449; People v. Clark (1953) 122 Cal.App.2d 342, 345, 265 P.2d 43.) It is a permissive, cautionary instruction which inures to a criminal defendant's benefit by warning the jury not to infer guilt merely from a defendant's conscious possession of recently stolen goods, without at least some corroborating evidence tending to show the defendant's guilt. (See People v. Johnson (1993) 6 Cal.4th 1, 35-37, 23 Cal.Rptr.2d 593, 859 P.2d 673 (Johnson); People v. Gamble (1994) 22 Cal.App.4th 446, 452-455, 27 Cal.Rptr.2d 451 (Gamble).) Such an inference of guilt has been held not to relieve the prosecution of its burden of establishing guilt beyond a reasonable doubt. (McFarland, supra, 58 Cal.2d at pp. 756-757, 26 Cal.Rptr. 473, 376 P.2d 449; Gamble, supra, 22 Cal.App.4th at pp. 453-454, 27 Cal.Rptr.2d 451; Anderson, supra, 210 Cal.App.3d. at pp. 430-432, 258 Cal.Rptr. 482.) The prosecutor's use of this permissive inference comports with due process unless there is no rational way for the jury to make the logical connection which the presumption permits. (Ulster County Court v. Allen (1979) 442 U.S. 140, 157, 99 S.Ct. 2213, 60 L.Ed.2d 777; see also Gamble, supra, 22 Cal. App.4th at pp. 454-55, 27 Cal.Rptr.2d 451.)
As the court in Gamble found, "the language of CALJIC No. 2.15 contemplates its use for far more than knowingly receiving stolen property charges, for in the body of the instruction is a blank for insertion of the named charge" to which it applies. (Gamble, supra, 22 Cal.App.4th at p. 453, 27 Cal.Rptr.2d 451.) Such deduction is supported by the Use Note to CALJIC No. 2.15 (6th ed.1996), page 57, which provides that such instruction "will serve to cover the effect of possession of recently stolen property in [the offenses of] robbery, burglary, theft and receiving stolen property," and by the court's observation in McFarland that the inference "is applicable whether the crime charged is theft, burglary, or knowingly receiving stolen property. [Citation.]" (McFarland, supra, 58 Cal.2d at p. 755, 26 Cal.Rptr. 473, 376 P.2d 449.)
Further, "it is not just the inference as to defendant's knowledge that the property was stolen that may be drawn, but in the context of theft crimes other than receiving stolen property, CALJIC No. 2.15 by its very language permits the jury in a proper case to infer the identity of defendant as the one who committed the crime." (Gamble, supra, 22 Cal.App.4th at p. 453, 27 Cal.Rptr.2d 451.) CALJIC No. 2.15 has also been held appropriate in cases where the inference to be drawn in theft-related crimes concerned the defendant's intent to steal (Holt, supra, 15 Cal.4th at pp. 676-677, 63 Cal.Rptr.2d 782, 937 P.2d 213; Johnson, supra, 6 Cal.4th at pp. 35-38, 23 Cal.Rptr.2d 593, 859 P.2d 673), or whether the property in the defendant's possession had even been stolen from the victims (Holt, supra, at pp. 676-677, 63 Cal.Rptr.2d 782, 937 P.2d 213; Johnson, supra, at pp. 35-38, 23 Cal.Rptr.2d 593, 859 P.2d 673.).
More recently our Supreme Court has upheld the giving of CALJIC No. 2.15 in several murder cases, but only with regard to the crime of burglary in Johnson, supra, 6 Cal.4th at pages 36-38, 23 Cal. Rptr.2d 593, 859 P.2d 673, of robbery and burglary in Smithey, supra, 20 Cal.4th at pages 975-979, 86 Cal.Rptr.2d 243, 978 P.2d 1171, and with regard to robbery, burglary and kidnapping to commit robbery in Mendoza, supra, 24 Cal.4th at pages 176-177, 99 Cal.Rptr.2d 485, 6 P.3d 150. In Johnson, a felony-murder theory was based upon a killing during the course of a burglary. Smithey involved a murder committed during the course of robbery and burglary. Mendoza involved arson, rape, robbery, the murder of one victim, and the kidnapping of others for the purposes *410 of committing robberies. In none of the cases did the trial court give CALJIC No. 2.15 with regard to the murder charges. Although the court in Mendoza mentioned the instruction with regard to the crime of kidnapping to commit robbery, no issue was raised or addressed in that case as to whether such was an extension of the use of CALJIC No. 2.15.
Our research has disclosed no reported decision which has involved the giving of CALJIC No. 2.15 solely with respect to a non-theft-crime or with the offense of murder. Nor have the parties cited such a case. Although Mendoza, supra, 2A Cal.4th 130, 99 Cal.Rptr.2d 485, 6 P.3d 150 as noted above, appears to have extended the use of CALJIC No. 2.15 beyond the traditional theft-related offenses, kidnapping for the purposes of robbery is arguably by definition a theft-related offense, and Mendoza is not authority for an extension of CALJIC No. 2.15 to a murder charge because it did not consider that proposition (see, e.g., People v. Saunders (1993) 5 Cal.4th 580, 592, fn. 8, 20 Cal. Rptr.2d 638, 853 P.2d 1093). We are thus faced with the issue of whether CALJIC No. 2.15 was properly used in this case with regard to Barker's charge of murder, i.e., whether the inference of the identity of Barker as the murderer was one rationally to be drawn from the conscious possession of Simpson's car, credit cards, and other property, coupled with slight corroboration.
Viewed in the abstract, it might be possible, even though unlikely, for a juror to read CALJIC No. 2.15, when given with reference to murder, to permit an inference of guilt of that crime merely from the possession of recently stolen property and "slight" corroborating evidence. So read, such instruction would, as Barker argues, unnecessarily inject possible confusion into an already complex area of law. Although CALJIC No. 2.15 has been held to be a permissive, cautionary instruction that inures to a criminal defendant's benefit when given with a theft-related offense (see Johnson, supra, 6 Cal.4th at p. 37, 23 Cal.Rptr.2d 593, 859 P.2d 673), given with regard to murder, the court is essentially singling out the fact of possession of recently stolen property as one that, if the jury finds, will support a murder conviction with merely slight corroborating evidence. Because we do not believe the same natural and logical inferences for the crime of murder flow from the possession of stolen property coupled with slight corroborating evidence as for theft-related offenses like receiving stolen property, robbery and burglary, we cannot approve such an extension of this theft-related principle to the general crime of murder. Proof a defendant was in conscious possession of recently stolen property simply does not lead naturally and logically to the conclusion the defendant committed a murder to obtain the property.[6] Hence we find that the trial court's inclusion of such *411 non-theft offense in CALJIC No. 2.15 in this case was error,
The question then becomes whether there was prejudicial error, i.e., whether, given all the instructions and other relevant circumstances, there is a reasonable likelihood that the jury misinterpreted the law in a way potentially unfavorable to the defense. (Estelle v. McGuire (1991) 502 U.S. 62, 72, 73, fn. 4, 112 S.Ct. 475, 116 L.Ed.2d 385; People v. Kelly (1992) 1 Cal.4th 495, 526-527, 3 Cal. Rptr.2d 677, 822 P.2d 385.) On the facts of this case, we find no prejudicial error.
As noted earlier, CALJIC No. 2.15 has generally been held to be favorable to a defendant by telling the jury possession of stolen property alone is insufficient to permit an inference that defendant is guilty of the charged crime. (Johnson, supra, 6 Cal.4th at p. 37, 23 Cal.Rptr.2d 593, 859 P.2d 673.) The second paragraph of the instruction tells the jury it "may consider" the categories of additional corroborating evidence listed, but does not require the jury to take them into account. (Mendoza, supra, 24 Cal.4th at p. 177, 99 Cal.Rptr.2d 485, 6 P.3d 150.) Further, the trial court not only instructed the jury on the required elements of murder, but also on robbery, first degree felony murder based upon a murder committed during the commission of a robbery, and on the special circumstance of murder in the commission of a robbery. With regard to such offenses and circumstance, the jurors were expressly told the elements of each must be proved beyond a reasonable doubt.
The jury was additionally informed of its responsibility to evaluate the totality of the evidence, including circumstantial evidence from which inferences may reasonably be drawn and how to weigh such circumstantial evidence (CALJIC Nos. 1.01, 2.00, 2.01), as well as the sufficiency of circumstantial evidence to prove specific intent or mental state (CALJIC No. 2.02). Other instructions cautioned the jury to "disregard any instruction which applies to facts determined by you not to exist." (CALJIC No. 17.31.)
Even though we believe the use of CALJIC No. 2.15 with the crime of murder could cause some juror confusion because of the multiple deductions needed to rationally make the permissive inference, considering the instructions in their entirety in this case, as we must (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248, 74 Cal.Rptr.2d 212, 954 P.2d 475), we can find no possibility such instruction suggested that the jury need not find all the statutory elements of murder had been proven beyond a reasonable doubt. (See Smithey, supra, 20 Cal.4th at pp. 977-979, 86 Cal.Rptr.2d 243, 978 P.2d 1171; Holt, supra, 15 Cal.4th at pp. 676-677, 63 Cal. Rptr.2d 782, 937 P.2d 213.)
Moreover, in light of Barker's multiple admissions of his guilt to Simpson's murder, and the more than abundant evidence the murder was committed in the course of a robbery, it is not reasonably probable a result more favorable to Barker would have been reached in the absence of the instructional error we have found. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) Thus, while we believe future use of CALJIC No. 2.15 should be restricted to theft and theft-related crimes, no prejudicial error is shown by its reference to murder in this case.
B.-C.[**]
II[**]
DISPOSITION
The judgment is modified to delete reference to a parole revocation fine. In all *412 other respects, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modification and to forward the amended abstract to the Department of Corrections.
NARES, J., and O'ROURKE, J., concur.
NOTES
[1] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I-B, I-C and II.
[*] Kennard, J., dissented.
[2] When a person is being strangled, the cutoff of blood flow to the head results in the person's face changing colors. A strangulation victim's face would first appear to turn red, then purple and darker purple as the pressure is maintained, and might finally appear to have a blackish color.
[3] All statutory references are to the Penal Code unless otherwise specified.
[4] The written instructions included the crimes of murder and robbery in the conjunctive.
[5] Barker raises no issues on appeal concerning the modification requested at trial by the prosecutor concerning the renumbering of the second paragraph of CALJIC No. 2.15. Nor does he raise any contention regarding the version of the instruction given. Any differences between such version and earlier or later revisions of the instruction is not pertinent to the issue Barker now raises.
[6] From the history and development of CALJIC No. 2.15, we glean that the instruction has been used in theft-related cases because there is a substantial connection between the established fact of conscious possession of recently stolen property and the inferred fact, i.e., knowledge that the property in the defendant's possession was stolen (McFarland, supra, 58 Cal.2d at pp. 754-758, 26 Cal.Rptr. 473, 376 P.2d 449). With the inference from the knowledge and conscious possession of such property, and slight additional evidence as corroboration, the intent to steal, identity and the determination a defendant committed the acts necessary to constitute robbery and burglary have been found to naturally and logically flow and thus support the giving of CALJIC No. 2.15. (See Smithey, supra, 20 Cal.4th at pp. 975-979, 86 Cal. Rptr.2d 243, 978 P.2d 1171; Holt, supra, 15 Cal.4th at pp. 676-677, 63 Cal.Rptr.2d 782, 937 P.2d 213.)
[**] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321246/ | 105 Ga. App. 274 (1962)
124 S.E.2d 405
NORTH FULTON REALTY COMPANY, INC.
v.
KANE.
39153.
Court of Appeals of Georgia.
Decided February 7, 1962.
*275 Sam G. Dettelbach, for plaintiff in error.
Huie, Etheridge & Harland, Jack P. Etheridge, Harry L. Cashin, Jr., contra.
FRANKUM, Judge.
1. If there is any evidence to support the decision of the trier of the issues of fact, or, in other words, if the evidence does not demand a finding for the movant, the overruling of the general grounds of a motion for a new trial is not erroneous. Adler v. Adler, 207 Ga. 394 (61 SE2d 824). See also Bibb Cigar &c. Co. v. McSwain, 95 Ga. App. 659 (98 SE2d 128); Wallace v. State, 77 Ga. App. 434 (48 SE2d 696).
In the instant case we observe that the evidence is conspicuous for what it does not show rather than what it reveals, in that the sales agent, an employee of the broker, who negotiated the contract, did not testify. Neither of the defendant's two co-owners testified, nor did their attorney who, as shown from the evidence, dealt extensively with the purchaser and the brokerage firm. The evidence is cloudy, vague, and uncertain as to what transpired between the parties, whereas it is clearly indicated that, if these persons had been produced as witnesses, much that was left cloudy, vague and uncertain could have been made clear. The evidence presents just enough to make a tangled web of uncertainty as to what the real facts and issues were. Consequently, under our system of law and procedure, we place upon the trier of the issues of fact the duty of untangling them, and if there is any evidence to support the decision made, we will affirm it. See Malleable Iron Range Co. v. Caffey, 64 Ga. App. 497 (13 SE2d 722).
The evidence shows that the defendant entered into an executory agreement to sell, within a specified time, certain described real property provided he could perform certain specified conditions precedent, namely: "Special Stipulations. .. 2. *276 Closing shall be on or before One Hundred Twenty (120) days from the date of acceptance of this contract. . . 4. Property shall be zoned M-1 according to present zoning regulations of the City of Atlanta at time of closing. Seller shall be responsible for obtaining such classification. 5. At time of closing, Seller shall enter into agreement to subordinate its first mortgage to a loan deed to be executed in the future by Buyer to obtain funds to erect a building or other structure on a portion of said property, it being the intent of the parties that such subordination shall relate to approximately two (2) acres located at the northwest corner of said property, being approximately 325 feet by 260 feet, and to the 50 foot strip running from Peachtree Road easterly 400.67 feet to the 2 acres previously referred to; and to no other portion of said property. . . 7. Seller shall obtain the release of said property from a loan deed to John F. Moor and W. H. Roane, Executor under the Will of George W. Moor. 8. Seller to obtain from adjacent property owners spillage and slope rights, as required by the City of Atlanta, for the construction of a roadway on the 50 foot strip included in this purchase contract. If Seller shall be unable to comply with Special Stipulations No. 4, No. 7 and No. 8 above prior to time of closing, after having diligently attempted to comply, then Buyer shall have the right to refuse to consummate said contract, but seller shall not be liable in any way to any person, firm or corporation under this contract."
The defendant did not own the property alone, which was known to the broker, but he owned the property jointly with two co-owners, who did not join in the agreement. The plaintiff contends that the proposed sale was not completed because the defendant could not furnish good title, and since the agreement provided that the broker would be entitled to a commission in the event that the defendant could not give a good title to the property, the plaintiff was entitled to recover. We do not reach this point because we are of the opinion that the trial court sitting without intervention of a jury was authorized to find that the plaintiff failed to prove a binding contract to sell the property (regardless of good or bad title of the property in the defendant).
The evidence is undisputed that the defendant made diligent *277 efforts to perform the conditions precedent, one of which was to get the property zoned as classification "M-1" according to the zoning regulations of the City of Atlanta, which he was unable to accomplish. While the plaintiff insists that the purchaser waived these provisions which were for his benefit, the trier of the issues of fact was authorized to find that the defendant was never notified of such waiver during the time the contract was in force. There is some evidence to show a communication to an attorney, who represented the defendant's co-owners, of the purchaser's intention to waive these conditions, but this knowledge cannot be imputed to the defendant. The defendant testified that this attorney did not represent him, although there was evidence to authorize the court to have found otherwise. He further testified that he was never notified to meet at any place for the purpose of closing the sale. The agreement did not place a duty on any of the parties to set the time and place to consummate the sale.
The terms of the agreement are specific that the conditions precedent were to be performed within a specified time. In order to entitle the plaintiff to prevail, it would have been necessary to show a compliance with the conditions precedent, or in the event the purchaser waived the conditions, made for his benefit (or assuming the condition precedent No. 8 gave the purchaser the right to exercise an election whether or not he would insist upon such conditions), it would have been necessary for him to communicate such decision to the defendant before the expiration of the contract. This is true since it is clear that time was of the essence of the contract, because it provides that the closing "shall be on or before One Hundred Twenty (120) days from the date of acceptance of this contract." See Traylor &c. Co. v. Brimbery, 2 Ga. App. 84 (58 S.E. 371). A mere intention to waive (or election not to insist upon) the conditions precedent made for the purchaser's benefit, uncommunicated to the opposite party, would not invoke the provisions of the agreement to convey and sell the property, because the opposite party would be entitled to know whether he was bound to convey the property. See Federal Farm Mortg. Corp. v. Dixon, 185 Ga. 466 (195 S.E. 414). An analogous situation is where one holds an *278 option to purchase property the optionee must communicate a notice to the optionor that he is exercising his right to purchase within the time specified in the option. See Hughes v. Holliday, 149 Ga. 147 (99 S.E. 301); Broadwell v. Smith, 152 Ga. 161 (108 S.E. 609). Since the conditions precedent could not be completed, defendant was not required to inquire whether such conditions had been waived.
Accordingly, the court was authorized to find that a necessary prerequisite to bring about the right to insist upon the consummation of the agreement to sell the property described in the contract had not been performed. Consequently, there was no obligation on the defendant to convey the property. F & C Investment Co. v. Jones, 210 Ga. 635 (81 SE2d 828); Wehunt v. Pritchett, 208 Ga. 441 (67 SE2d 233). The right to have the proposed sale consummated being unenforceable between the defendant (vendor) and the purchaser, it is likewise unenforceable between the broker and the vendor. Morgan v. Hemphill, 98 Ga. App. 732 (106 SE2d 865); Dunford v. Townsend, 100 Ga. App. 550 (112 SE2d 14). The general grounds of the motion for a new trial are not meritorious.
2. The single special ground of the amended motion for a new trial complains of the admission of certain evidence elicited from the defendant by his attorney. The brief of evidence shows that the plaintiff elicited testimony to the same effect from the same witness as the testimony objected to. Accordingly, this ground fails to show a reversible error. First Nat. Bank of Cornelia v. Kelly, 190 Ga. 603 (10 SE2d 66); Southeastern Greyhound Lines v. Hancock, 71 Ga. App. 471 (31 SE2d 59).
3. The court did not err in denying the amended motion for a new trial.
Judgment affirmed. Nichols, P. J., and Jordan, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321252/ | 294 S.E.2d 386 (1982)
Edith E. MIDGETT and Husband, Carl M. Midgett
v.
CRYSTAL DAWN CORPORATION.
No. 811SC766.
Court of Appeals of North Carolina.
September 7, 1982.
*387 White, Hall, Mullen, Brumsey & Small by Gerald F. White and John H. Hall, Jr., Elizabeth City, and McCown & McCown by Wallace H. McCown, Manteo, for plaintiffs-appellees.
Shearin, Gaw & Archbell by Norman W. Shearin, Jr., and Roy A. Archbell, Jr., Kitty Hawk, for defendant-appellant.
WHICHARD, Judge.
Plaintiffs seek by this action to remove a cloud on the title to land which they allegedly own, and to restrain defendant from trespassing thereon. Defendant denies plaintiff's material allegations; alleges title in the land by adverse possession; and counter-claims, in the event plaintiffs are adjudged the sole owners, for the value of improvements to the land which it allegedly made in good faith under color of title.
Through discovery plaintiffs ascertained the existence of certain contracts between defendant and the corporation through which it claims ownership. Upon defendant's failure to produce these documents in response to plaintiff's request therefor pursuant to G.S. 1A-1, Rule 34, plaintiffs moved, pursuant to G.S. 1A-1, Rule 37, for an order compelling production. Judge Bruce reviewed affidavits and depositions, heard arguments, and ordered defendant to produce a true copy of three requested documents. Defendant, in response, produced two of the three documents. It deleted therefrom, however, extensive portions which its counsel, by letter of transmittal, opined to be protected from, or improper subjects of, discovery. G.S. 1A-1, Rule 26. It asserted inability to locate the third document.
Plaintiffs thereupon moved for imposition of sanctions pursuant to G.S. 1A-1, Rule 37; and defendant responded that the deleted portions were the work product of its attorney, prepared in anticipation of this litigation, and were thus immune from discovery. Judge Preston found, however, that defendant had wilfully and without justification or excuse failed to comply with Judge Bruce's order, in that the two documents produced were not "true copies" on account of the extensive deletions, and the third document was not produced at all. He decreed that "it is in order for the court to impose appropriate sanctions against the defendant and its counsel pursuant to Rule 37 ..., but the imposition of such sanctions is withheld pending appeal ...." From this order, defendant appeals.
The briefs present a threshold question of appealability. Pursuant to the rationale set forth in Willis v. Power Co., 291 N.C. 19, 229 S.E.2d 191 (1976), we find the order immediately appealable. See id. at 27-30, 229 S.E.2d at 196-98.
Defendant contends the court abused its discretion by ordering production of documents prepared by its counsel in anticipation of this action without first conducting an in camera inspection of the documents. Whether to conduct an in camera inspection of documents appears, as a general rule, to rest in the sound discretion of the trial court. See Kerr v. United States District Court, 426 U.S. 394, 405-06, 96 S. Ct. 2119, 2125, 48 L. Ed. 2d 725, 734 (1976); Willis, supra, 291 N.C. at 36, 229 S.E.2d at 201 ("the trial judge may require in camera inspection and may allow discovery of only parts of some documents"). Cf. State v. Hardy, 293 N.C. 105, 127-28, 235 S.E.2d 828, 842 (1977) (justice requires in camera inspection "when a specific request is made at trial for disclosure of evidence in the State's possession that is obviously relevant, competent and not privileged").
In determining whether failure to conduct such an inspection here constituted an abuse of discretion, the following is pertinent:
Defendant did not appeal from the initial order to produce. Absent a stay by virtue of appeal, defendant could not justifiably disobey the order. When a party wilfully disobeys an order entered with personal and subject matter jurisdiction, a judgment of contempt (a permissible Rule *388 37 sanction) is appropriate even if the order was erroneously issued. Elder v. Barnes, 219 N.C. 411, 415, 14 S.E.2d 249, 251 (1941); Godsey v. Poe, 36 N.C.App. 682, 685, 245 S.E.2d 522, 524 (1978). Cf. Massengill v. Lee, 228 N.C. 35, 37, 44 S.E.2d 356, 358 (1947). Such an order is "not void and [is] entitled to respect," Barnes, 219 N.C. at 415, 14 S.E.2d at 251, and the proper remedy for any error therein is "not by open defiance," but by appeal, Massengill, 228 N.C. at 37, 44 S.E.2d at 358. Further, "[i]t is a general rule that orders regarding matters of discovery are within the discretion of the trial court and will not be upset on appeal absent a showing of abuse of discretion." Hudson v. Hudson, 34 N.C.App. 144, 145, 237 S.E.2d 479, 480, disc. review denied, 293 N.C. 589, 239 S.E.2d 264 (1977). See also Stanback v. Stanback, 287 N.C. 448, 459, 215 S.E.2d 30, 38 (1975).
Having failed to appeal from the initial order to produce, defendant undertook its own determination of what it would produce and what it would withhold as privileged. Unilateral determination by a party that documents are privileged, and on that account may be withheld from discovery in defiance of a court order to produce them, "rests the matter upon the ipse dixit of each defendant and not upon the judgment of the court." Stone v. Martin, 56 N.C.App. 473, 477, 289 S.E.2d 898, 901, disc. review denied, ___ N.C. ___, 294 S.E.2d 220 (1982), quoting from Allred v. Graves, 261 N.C. 31, 39, 134 S.E.2d 186, 193 (1964). Determination of whether a privilege applies must be by the court, not the individual claiming the privilege. Stone, 56 N.C.App. at 476, 289 S.E.2d at 901. See also 1 Stansbury's North Carolina Evidence, § 62, p. 199 (Brandis Rev. 1973) ("Determination of whether a claim of the privilege is proper is for the court, not the attorney, and the court may conduct a preliminary inquiry into its propriety.")
The record here contains no indication that the documents in question were at any time tendered to the trial court for its determination of whether all or parts thereof were privileged. Nor does it present those documents for our review. Under this state of the record we are unable to find an abuse of discretion in the order appealed from.
Defendant also contends the court abused its discretion in decreeing imposition of sanctions to be appropriate for failure to produce the document which it asserts it has been unable to locate. The record contains no evidence regarding defendant's inability to locate this document, but only the bare assertion thereof in its unverified response to the motion for imposition of sanctions. Under this state of the record, we can find no abuse of discretion in the order as it relates to this document. Further, the failure to produce the other documents would, in any event, suffice to sustain the order.
Affirmed.
ROBERT M. MARTIN and HARRY C. MARTIN, JJ., concur.
Judge HARRY C. MARTIN concurred in this opinion prior to his resignation from this Court on 3 August 1982 to assume the position of Associate Justice of the Supreme Court of North Carolina. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321238/ | 124 S.E.2d 149 (1962)
256 N.C. 408
Ernest G. CRISP
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
No. 99.
Supreme Court of North Carolina.
February 28, 1962.
*152 Williams, Williams & Morris and James N. Golding, Asheville, for plaintiff, appellant.
Van Winkle, Walton, Buck & Wall, O. E. Starnes, Jr., and Roy W. Davis, Jr., Asheville, for defendant, appellee.
MOORE, Justice.
The judge instructed the jury as follows: "* * * (T)he court charges you * * * that if you believe all of the evidence in this case and find the facts to be as the evidence tends to show, that you would answer the issue NO." The jury did answer the issue "No."
In the first place, the instruction is insufficient in form. When a peremptory instruction is permissible, the court must leave it to the jury to determine the credibility of the testimony. Reynolds v. Earley, 241 N.C. 521, 85 S.E.2d 904; City of Shelby v. Lackey, 236 N.C. 369, 72 S.E.2d 757. Where the peremptory instruction is favorable to the party having the burden of proof, it must be in such form as to clearly permit a verdict unfavorable to such party in the event the jury finds that the evidence is not of sufficient weight and credibility to carry the burden. Hunnicutt v. Shelby Mut. Insurance Co., 255 N.C. 515, 122 S.E.2d 74.
Furthermore, the instruction given, had it been in proper form, was inappropriate in this case.
On this record the pleadings raise two issues. These may be stated as follows: (1) Did defendant issue and deliver to Julius Creed Robinson an automobile liability insurance policy which insured a 1947 Chevrolet, owned by Julius Creed Robinson and involved in a collision in which plaintiff was damaged on December 4, 1959, as alleged in the complaint? (2) If so, was the insurance policy cancelled and terminated prior to said collision? Plaintiff has the burden of the first issue, and defendant has the burden of the second.
The following facts do not appear to be controverted on this appeal: The 1947 Chevrolet described in policy No. 473 166-F19-33 was involved in an accident on 4 December 1959 in which plaintiff was damaged, and was being operated at the time by Robinson, the insured named in the policy. Plaintiff recovered judgment in the amount of $2500 against Robinson in a damage suit growing out of the accident. The judgment has not been paid.
In addition, plaintiff's evidence tends to show: Policy No. 461-373-F19-33 was issued and delivered by defendant to the named insured for the policy period 19 June 1959 to 19 December 1959. By its terms it insured not only the Ford automobile described therein but also any automobile acquired by insured during the policy period to replace the Ford described. In the Fall of 1959 insured traded the Ford for the 1947 Chevrolet which was involved in the collision in question.
This makes out a prima facie case for plaintiff. Defendant disagrees, and contends *153 that plaintiff has the further burden of showing that the premium was paid.
As to whether one who claims benefits under a policy of insurance has the burden of proving that the premium has been paid, or whether nonpayment is a matter of defense, depends on the provisions of the insurance contract and the circumstances of the case. Nonpayment of premium has been held in some instances to be an affirmative defense. Abernethy v. Mecklenburg Farmers Mut. Insurance Co., 213 N.C. 23, 195 S.E. 30; Harris v. National Council Junior Order United American Mechanics, 168 N.C. 357, 84 S.E. 405; Wilkie v. National Council, 147 N.C. 637, 61 S.E. 580; Page v. Life Insurance Co., 131 N.C. 115, 42 S.E. 543. "The burden is on defendant to prove nonpayment of a premium or assessment * * * where the fact of payment has been prima facie proved, as where acknowledgment of payment is made in the policy, or where plaintiff is in possession of and produces the policy, and the other essentials to recovery are prima facie proved or admitted." 46 C.J.S. Insurance § 1316 b(5)c, p. 397. Furthermore, payment of premium as a condition for effective insurance may be waived. Pender v. North State Life Insurance Co., 163 N.C. 98, 79 S.E. 293; Rayburn v. Pennsylvania Casualty Co., 138 N.C. 379, 50 S.E. 762.
The insurance policy in the instant case is subject to the provisions of the Vehicle Financial Responsibility Act of 1957, G.S. Ch. 20, Art. 13. "Where a statute is applicable to a policy of insurance, the provisions of the statute enter into and form a part of the policy to the same extent as if they were actually written in it." Howell v. Travelers Indemnity Co., 237 N.C. 227, 74 S.E.2d 610. Plaintiff, in the case at bar, issued certificate FS-1, and it was delivered to the North Carolina Department of Motor Vehicles. By the issuance of the certificate (FS-1) an insurer represents that it has issued and there is in effect an owner's motor vehicle liability policy. Swain v. Nationwide Mutual Insurance Co., 253 N.C. 120, 126, 116 S.E.2d 482. In substance, by the issuance of the certificate the insurer represents that everything requisite for a binding insurance policy has been performed, including payment, or satisfactory arrangement for payment, of premium. Once the certificate has been issued, nonpayment of premium, nothing else appearing, is no defense in a suit by a third party beneficiary against insurer. To avoid liability insurer must allege and prove cancellation and termination of the insurance policy in accordance with the applicable statute, unless it is established by plaintiff's evidence or admissions.
"* * * (T)he party asserting the cancellation of an automobile policy as a defense has the burden of proving it." Blashfield: Cyclopedia of Automobile Law and Practice (Perm. Ed.), Vol. 6 (Part 1), s. 3765.5, p. 405. See also Barnes v. Security Life Trust Co., 229 N.C. 409, 50 S.E.2d 2.
Defendant contends that its evidence shows that the subject insurance policy was duly cancelled for nonpayment of premium and that this entitles it to a peremptory instruction that the policy was not in force on the date in question.
G.S. § 20-310 is the applicable statute in this case for the cancellation and termination of automobile liability insurance policies. It provides: "No contract of insurance or renewal thereof shall be terminated by cancellation or failure to renew by the insurer until at least fifteen (15) days after mailing a notice of termination to the named insured at the address shown on the policy. Time of the effective date and hour of termination stated in the notice shall become the end of the policy period. Every such notice of termination for any cause whatsoever sent to the insured shall include on the face of the notice a statement that proof of financial responsibility is required to be maintained continuously throughout the registration period and that operation of a motor vehicle without maintaining *154 such proof of financial responsibility is a misdemeanor. Upon the termination of insurance by cancellation or failure to renew, notice of such cancellation or termination shall be mailed by the insurer to the Commissioner of Motor Vehicles not later than fifteen (15) days following the effective date of such cancellation or other termination."
In order to effectively cancel a policy an insurer must substantially comply with the requirements of this section. The notice mailed by defendant to insured failed to include on the face thereof "a statement that proof of financial responsibility is required to be maintained continuously throughout the registration period and that operation of a motor vehicle without maintaining such proof of financial responsibility is a misdemeanor." The statute provides that such statement shall be included on the face of the notice. "The manifest purpose of the 1957 Act was to provide protection, within the required limits, to persons injured or damaged by the negligent operation of a motor vehicle * * *." Swain v. Nationwide Mutual Insurance Co., supra. It was the intent of the Act that motor vehicle owners maintain financial responsibility continuously and that the law enforce this purpose. It is our opinion that the statement required by G.S. § 20-310 to be placed on the face of the notice of termination is not merely formal and directory. It is intended as a firm reminder to vehicle owners of the requirements of the law, and as a notice that failure to comply constitutes a criminal offense. It is to be given at the very time when insurance protection and financial responsibility is being withdrawn. The substance of the required statement appears nowhere in the language of the notice given by defendant. In the absence of circumstances in a civil action which might constitute a waiver or an estoppel, or render harmless the failure to include such statement, it is essential to a valid cancellation or termination, especially when the suit is by a member of the class the Act is designed to protect.
In passing, we observe that insurer did not mail to the Department of Motor Vehicles notice of the purported cancellation within 15 days following the effective date of cancellation stated in the notice to insured. Insured was advised that the effective date of cancellation was November 6, 1959. Notice was mailed to the Department November 25, 1959, and this notice stated that the effective date of cancellation was November 10, 1959.
We do not know, of course, what evidence may be adduced upon a retrial. It is our opinion that the uncontradicted evidence offered by defendant does not entitle it to a peremptory instruction that the alleged insurance policy was not in force on 4 December 1959.
We are not unmindful of defendant's argument that plaintiff fails to make out a prima facie case in accordance with the allegations of the complaint for that, it contends, the 1947 Chevrolet did not replace the Ford described in policy No. 461 373-F19-33 (the policy applied for in June 1959 and delivered in July 1959). The evidence tends to show: In June 1959 insured went to the office of defendant's agent to apply for insurance. He owned only one automobile, a Ford. The Ford had a 1947 body and chassis and a 1948 motor. The correct motor number was given the agent. This motor number appears in the policy, and the policy describes the automobile as a 1948 Ford. This car was traded by insured for a 1947 Chevrolet in September 1959. According to policy provisions, insured reported the replacement, and a new policy (No. 473 166-F19-33) was issued insuring the Chevrolet.
Defendant now contends that, since plaintiff sues upon the first policy, he has not made out a prima facie case for the reason that the Chevrolet replaced a 1947 Ford, and not the 1948 Ford described in the policy. The contention is not sustained. Insured owned only one Ford at the time of the application. There is no suggestion by pleadings or otherwise that insured *155 practiced any deceit, withheld any information, or gained any advantage. The proper motor number was given. The inference is permissible that the policy sufficiently describes the automobile owned by insured at that time, and that it was the intention of the parties that this particular automobile be insured. It was traded for the Chevrolet. The second policy, describing the Chevrolet, was merely an extension of the first policy. Its policy period ended 19 December 1959 as did that of the first policy.
New trial.
WINBORNE, C. J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261469/ | 285 Pa. Super. 559 (1981)
428 A.2d 186
James G. SNYDER, a minor, by Margaret J. Snyder, guardian, Appellant,
v.
MILTON AUTO PARTS, INC.
Superior Court of Pennsylvania.
Argued March 3, 1980.
Filed April 3, 1981.
Frank E. Garrigan, Shamokin, for appellant.
Mary Jane Forbes, Harrisburg, for appellee.
Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
*560 WATKINS, Judge:
This is an appeal from the order of the Court of Common Pleas of Union County denying the plaintiff's motion to take off a compulsory non-suit.
On February 29, 1976, James G. Snyder, was a 9 year old boy, who was working at a Flea Market located along Route 15, Kelly Township, Union County, Pennsylvania. Adjacent to the Flea Market across a small rural road was the defendant's place of business known as Milton Auto Parts, Inc., engaged in the business of scrapping used automobiles and salvaging the parts. The business occupied approximately nine acres and is enclosed by a fence. Inside the fence were maintained several large watchdogs.
On February 29, 1976, the minor James Snyder had just completed assisting a patron of the Flea Market in loading his purchase into the trunk of his car and was returning from the parking area to the flea market when he heard something following him. When he turned, a large brown dog, being one of the dogs from the Milton enclosure, lunged at him and grabbed him by the throat. The boy was knocked to the ground resulting in physical damage to his neck, hand and armpit.
The dog was chased away by the owner of the flea market and the boy taken to the hospital where he spent three days.
The court below held that the evidence was insufficient to establish defendant's prior knowledge of the dog's vicious propensities and entered a compulsory non-suit. Timely motion was made to have the non-suit taken off and was denied by the court below. This appeal followed.
The law of Pennsylvania placed the burden of proof of prior knowledge by the owner of a domestic animal's vicious propensity upon the plaintiff. "[t]he owner of a dog is not responsible for the consequences of the dog's bite if he has no reason to know the viciousness or dangerous propensities of the dog beforehand." (Cases cited) Freeman v. Terzya, et al., 229 Pa.Super. 254, 323 A.2d 186 (1974); Clark v. Clark, 207 Pa.Super. 193, 215 A.2d 293 (1965).
*561 The question to be decided is whether or not the injured boy has produced any evidence from which a jury could conceivably find that the owner of the dog which attacked the minor, had prior knowledge of its dangerous propensities? We find the court erred in entering the non-suit.
"[i]n passing upon the propriety of the entry of a compulsory non suit, we accept the evidence as presented by the appellant as true; we read it in the light most favorable to him and we accord him the benefit of all reasonable inferences arising therefrom (citing cases). In any event the facts are for the jury in any case whether based upon direct or circumstantial evidence where a reasonable conclusion can be arrived at which would place liability on the defendant. (Citing cases)." Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977). See also, Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977).
Evidence was presented by the plaintiff as follows: A witness testified to the dog lunging at him with teeth bared while he was being restrained by a rope by an officer of the defendant and was told not to put his hand down as "he (the dog) is trained";
The minor testified that the dog lunged at his throat biting him in the throat in the manner of a trained attack dog;
Signs were placed all about the premises reading "Beware of Dogs";
The dogs, including the dog in question, were seen on occasions prior to the attack, jumping on the restraining fence and trying to get out at anyone who came around;
This dog along with other dogs had escaped from the grounds on prior occasions and had to be driven off on at least three occasions and once the owner was called to come and get his dogs;
And the dogs were locked up during the day and let out a night. An inference might be made that the owner should have realized that such confinement may well create dangerous propensities.
*562 Discussing the test, Proof of Facts 2nd, in Volume 13, at Page 473, by Stephen R. Pitcher, J.D. sets forth circumstances that constitute knowledge of a dog's viciousness or dangerous propensities:
Sec. 14. Complaints brought to owner's attention.
Sec. 15. Fighting with other dogs.
Sec. 16. Frequent confinement of dog.
Sec. 18. Warning sign on owner's premises.
Sec. 19. Statements by owner as to dog's character.
The dogs were used for the purpose of preventing trespassers and theft when the establishment was closed. They were kept under restraint so that they would not "get too friendly".
Taking all the above-discussed circumstances together as true, the finder of fact could well infer that the dogs were capable of causing harm and that the owner knew this fact.
"As to the knowledge which the owner must possess in order to charge him with liability the authorities are generally agreed that a dog is not entitled to `one bite' and that actual notice of the viciousness or mischievous propensities of the animal are not necessary. It is sufficient if he knew or should have known that the animal was a probable cause of harm." See Proof of Facts 2nd, supra.
In Pennsylvania Legal Encyclopedia, Volume 2 Animals, Section 24 at page 113-114, it sets forth:
"A dog's vicious propensities may be brought to the owner's notice by acts of agression on the part of the dog. These acts of agression need not be precisely similar to act or acts on which the action is founded. Although a single instance of the vicious conduct on the part of the dog is sufficient to effect the owner with notice of the dog's vicious propensities, it is not the rule in this state that a dog is entitled to one `free' bite, before it becomes a source of liability to its owner.
"Although the mere fear of a dog does not prove that the dog that excites the fear is vicious, where it is shown that on previous occasions the dog had rushed at other persons *563 in a vicious manner, and that his keeper had been obliged to call him off, or that the dog had chased a witness for the plaintiff and had been beaten off by stones, and was always growling at passersby, the viciousness of the dog is sufficiently established."
In the instant case, there was testimony that the dog in question, was large and would jump up on people in a "friendly" manner. In Groner v. Hendrick, 403 Pa. 148, 169 A.2d 302 (1961) the Supreme Court held, 463 Pa. at 303, 169 A.2d 302:
"A large, strong, and overly friendly dog may be as dangerous as a vicious one, and one recital of the dog's behaviour at home is enough to bring knowledge to his owners' when considered together with its size and their apparent knowledge that it might jump up on people".
The plaintiff presented sufficient evidence of prior knowledge on the part of the defendant as to the possible dangerous propensities of its dogs to present a question for the jury.
The order of the court below is reversed; the compulsory non-suit removed and a new trial granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261478/ | 110 Cal. Rptr. 2d 662 (2001)
91 Cal. App. 4th 743
In re JOSHUA M., a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
Joshua M., Defendant and Appellant.
No. E028003.
Court of Appeal, Fourth District, Division Two.
August 9, 2001.
Review Denied November 14, 2001.[*]
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa A. Mandel, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
On August 9, 2000, the trial court made a true finding that Joshua M. (minor) had committed the crime of unlawful peeking. *663 (Pen.Code, § 647, subd. (i).)[1] At the dispositional hearing, the minor was declared a ward of the court, placed on probation, and ordered to serve 18 days in juvenile hall. The minor contends that the true finding in this matter must be reversed because section 647, subdivision (i), required the People to prove that the minor peeked through the victim's blinds with the intent to commit an offense if the opportunity arose, and the record is devoid of any evidence to support such an intent. We determine that intent to commit an offense if the opportunity to do so arises is not an element of the offense of unlawful peeking. Therefore, we do not consider minor's substantial evidence issue.
FACTS
On October 27, 1999, at approximately 5:45 a.m., the victim was getting dressed for school in her bedroom. The victim's bedroom was in the front of the house facing the street. The victim had pink miniblinds which were closed. The victim's window was separated from the street by a sidewalk, some grass, and a row of bushes which take up about 25 feet of the property.
When the victim finished getting ready for school, she walked outside and found a note on her porch. The note informed the victim that the writer knew that she had been wearing a white bra and underwear the preceding morning, that she had pink blinds, and that her dresser was located on the right side of her bedroom. The note also warned the victim that she had "better watch for Peeping Tom to strike again."
The victim brought the note to school and gave it to the head of security. The following day, the head of security gave the note to a deputy sheriff who was on duty as the school resource officer. The deputy called the minor into his office and read him his Miranda[2] rights. The minor waived his rights and spoke to the deputy about the note.
The minor admitted that he was on the victim's property and had peeked through the blinds. The minor accurately described the blinds and the location of the victim's dresser, and he stated that he saw the victim wearing a white bra and panties. The deputy went to the victim's home and saw that she had pink blinds covering her window. The deputy looked through the victim's blinds in the closed position and could see inside the room through the spaces. The deputy also observed several footprints beneath her window.
DISCUSSION
The minor contends that the true finding in this matter must be reversed because section 647, subdivision (i) required the People to prove that he peeked through the victim's blinds with the intent to commit an offense if the opportunity is discovered. We disagree.
"`When statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it.' (People v. Overstreet (1986) 42 Cal. 3d 891, 895 [231 Cal. Rptr. 213, 726 P.2d 1288]; see also People v. Valladoli (1996) 13 Cal. 4th 590, 597 [54 Cal. Rptr. 2d 695, 918 P.2d 999] [`Our first step is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning.']; People v. Jones (1993) 5 Cal. 4th 1142, 1146 [22 Cal. Rptr. 2d 753, 857 P.2d 1163] [`"`If the language is clear and unambiguous there is no need for *664 construction. . . .'"']; People v. Ramirez (1995) 33 Cal. App. 4th 559, 566 [39 Cal. Rptr. 2d 374] [it is unnecessary to look beyond the plain words of the statute to determine intent].)" (People v. Benson (1998) 18 Cal. 4th 24, 30, 74 Cal. Rptr. 2d 294, 954 P.2d 557.)
As relevant here, section 647 provides that "Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: [¶] . . . [¶] (i) Who, while loitering, prowling, or wandering upon the private property of another, at any time, peeks in the door or window of any inhabited building or structure, without visible or lawful business with the owner or occupant." The elements of this offense include (1) a person loitered, prowled, or wandered upon the private property of another; (2) the person did so without a lawful purpose for being on the property; and (3) the person, while doing so, peeked in the door or window of any inhabited building or structure located thereon.
This statute criminalizes the act of peeking without reference to committing another offense if the opportunity is discovered. Therefore, the People were not required to prove that the minor peeked through the victim's blinds with the intent to commit an offense if the opportunity is discovered.
The minor's contention that the People were required to prove that he peeked through the victim's blinds with the intent to commit an offense if the opportunity is discovered, is derived from CALJIC No. 16.447. It instructs, in part, that in order to prove a violation of section 647, subdivision (i), it must be proved that, "3. The person had a specific intent to commit a crime if [he][she] discovered the opportunity to do so. . . ." (CALJIC No. 16447 (6th ed.1996).) The instruction's Comment cites In re Cregler (1961) 56 Cal. 2d 308, 312, 14 Cal. Rptr. 289, 363 P.2d 305 (Cregler), as the supporting authority for this element of the offense. (Com. to CALJIC No. 16.447, supra, at p. 509.) However, Cregler does not support it.
In Cregler, the Supreme Court upheld the constitutionality of former section 647, subdivision 4, which prohibited loitering in enumerated public places by persons convicted of certain specified crimes. (Cregler, supra, 56 Cal.2d at p. 309, 14 Cal. Rptr. 289, 363 P.2d 305.) Taken literally, the statute as written would make it unlawful for a person convicted of one of the enumerated crimes to simply be in one of the specified public places. A literal interpretation is obviously unconstitutional. It cannot be unlawful for a person convicted of one of the enumerated offenses to simply be in one of the specified public places.
In order to save the statute from a constitutional challenge, the court wrote an additional element into the statute, i.e., it defined loitering as "connot[ing] lingering in the designated places for the purpose of committing a crime as opportunity may be discovered." (Cregler, supra, 56 Cal.2d at p. 312, 14 Cal. Rptr. 289, 363 P.2d 305.) The Legislature included this intent element when it redrafted former section 647, subdivision 4 as present section 647, subdivision (h).[3]
Section 647, subdivisions (h) and (i) define separate and distinct crimes, along *665 with others specified in section 647, under the general heading of disorderly conduct. In subdivision (h), a person is guilty of disorderly conduct if he or she is found loitering on the private property of another with the specific intent to commit a crime "as opportunity may be discovered." By its own wording, subdivision (h)'s definition of loitering is limited to subdivision (h).
This intent is not a required element for the offense of peeking as defined by section 647, subdivision (i) because being on the property and peeking into a window constitutes the crime. Because the statute explicitly requires peeking, in addition to merely being on someone's private property, the statute, unlike the one in Cregler, is constitutional without the necessity of engrafting the additional element of specific intent to commit a crime as opportunity may be discovered. The peeking itself satisfies the specific intent element added by Cregler to its definition of loitering. (People v. Superior Court (Caswell) (1988) 46 Cal. 3d 381, 390-391, 250 Cal. Rptr. 515, 758 P.2d 1046 [use of the term "loitering" in § 647, subd. (d), loitering in a public toilet for the purpose of soliciting or engaging in lewd conduct, does not render the statute unconstitutional because the stated purpose in the statute supplies the specific intent that was missing, but supplied, by Cregler in its definition of loitering].)
Presumptively for this reason, the Legislature did not include an intent to commit a crime as opportunity may be discovered as an element of the offense of peeking. Accordingly, we conclude that CALJIC No. 16.447 erroneously instructs the trier of fact that specific intent to commit a crime, as opportunity may be discovered, is an element of peeking, the offense defined in section 647, subdivision (i).
DISPOSITION
The judgment is affirmed.
RAMIREZ, P.J., and GAUT, J., concur.
NOTES
[*] Kennard, J., dissented.
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] Miranda v. Arizona (1966) 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.
[3] Section 647, subdivision (h) provides that every person is guilty of disorderly conduct, "Who loiters, prowls, or wanders upon the private property of another, at any time, without visible or lawful business with the owner or occupant. As used in this subdivision, `loiter' means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered." (Italics added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261480/ | 428 A.2d 1100 (1981)
Albert F. STEVENS and Doris D. Stevens
v.
ESSEX JUNCTION ZONING BOARD OF ADJUSTMENT and Milo Reynolds.
Albert CUTLER et al.
v.
ESSEX JUNCTION ZONING BOARD OF ADJUSTMENT, Albert F. Stevens and Doris D. Stevens.
No. 73-79.
Supreme Court of Vermont.
February 3, 1981.
*1101 Vincent A. Paradis, Essex Junction, for plaintiffs.
Edward J. Cashman, Essex Junction, for defendants.
Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.
LARROW, Justice.
Albert and Doris Stevens, appellees here, own two contiguous parcels of land in the village of Essex Junction, acquired at different times. Although irregular in shape, they form a rough L. One lot fronts, on the north, on East Street; the other, southerly of it, fronts on the east on Lamoille Street. Both lots are in an AR-3 Zone under the local zoning regulations, connoting an urban district with high density use. The East Street property now has two apartment houses on it, one with five units and the other with two. The Lamoille Street property has a single family structure. These cases, tried together below, involve efforts by the Stevens' to construct additional units, claimed by them to be a permitted conditional use under the ordinance. These efforts were opposed at the local and superior court level by the appellants, neighboring property owners.
The first application filed was for a four unit apartment using portions of both properties. This was rejected by the Zoning Board of Adjustment on March 16, 1976, and no appeal was taken. Nine days later another application was filed, very similar in nature except that the proposed building was moved some fifty-two feet. This application was denied June 15, 1976, and the Stevens' appealed to Chittenden Superior Court. While this appeal was pending, on January 31, 1977, application was made to the Board to remove the house on the Lamoille Street lot and replace it with a six unit apartment house. The trial court found, with evidentiary support, that this project did not involve the East Street lot. The Board approved the application February *1102 22, 1977. Appellants here appealed the ruling to Chittenden Superior Court. Eventually the cases were heard together. The trial court upheld the granting of the Lamoille Street application, and dismissed the East Street appeal with prejudice, the Stevens' having represented Lamoille Street to be their preference and that success in that case would warrant dismissal of their East Street appeal.
Appellants raise six general claims of error, three procedural and three on the merits. They assert (1) that the second appeal should have been abated, on their motion, because of the pendency of the first; (2) that the Board of Adjustment lacked jurisdiction to hear the Lamoille Street application while the first appeal was pending; (3) that the East Street case should have been dismissed on the ground that it was filed within six months of denial of the first application, contrary to § 805 of the Village zoning regulations; (4) that the proposals constitute a planned unit development under the regulation without satisfying the requirements therefor; (5) that standards for variance rather than for conditional use should be applied; and (6) that the proposed development does not meet the standards for conditional use. We treat these objections in that order.
The defense of abatement was not raised in the trial court until almost ten months after the Lamoille Street appeal. Appellees assert that this was untimely. We are not prepared to say that this is so, absent any showing of prejudice and in light of V.R.C.P. 74(c), eliminating the need for pleadings in this type of appeal. Apart from its timeliness, however, the objection was not well taken. We have previously set out the requirements for abatement:
[T]he pendency of a former action in a court of competent jurisdiction within the same state or jurisdiction, between the same parties, and involving the same subject matter and cause of action, wherein all the rights of the parties thereto may be fully and finally determined and adjudicated, may be asserted as a ground for the abatement of the second action. The identity in these particulars should be such that if the pending suit had already been disposed of, it could be pleaded in bar as a former adjudication of the same matter between the same parties, and unless each of these elements is present, the pendency of one action will not operate to abate a subsequent one. (Citation omitted.)
Lalime v. Desbiens, 115 Vt. 165, 169, 55 A.2d 121, 123-24 (1947).
An abatement defense also requires that the relief sought be the same. Id. The burden of proving each element rests on the party urging abatement as a defense. See Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69 (1976); V.R.C.P. 8(c); 1 Am.Jur.2d Abatement, Survival, and Revival § 39. These elements do not appear in the instant case. Different proposed locations are involved, a different number of apartment units, and differing street access. The East Street project involved both parcels of land, Lamoille Street only one. In each case the alignment of the parties is different, being reversed. Such reversal generally precludes assertion of the defense of abatement. See Lorenz v. Dreske, 62 Wis. 2d 273, 214 N.W.2d 753 (1974). Capability of an eventual plea of former adjudication is not here met, either, as the evidence in one case is quite different from that in the other. Hill v. Grandey, 132 Vt. 460, 463, 321 A.2d 28, 31 (1974).
Appellants' second contention is really only a minor variation of the first, above discussed. They claim the pendency of the East Street appeal to superior court divested the zoning board of jurisdiction to act on the Lamoille Street application, citing Kotz v. Kotz, 134 Vt. 36, 349 A.2d 882 (1975), for this proposition. Kotz does not go so far. It merely holds that a proper appeal serves to divest a lower court of power to act in the same case while the appeal is pending. The procedure there condemned amounted to a horizontal appeal. The factual differences in these two cases, already outlined, weigh against any such conclusion here.
*1103 The third assignment of error also lacks merit. In effect it is that the East Street appeal, by the Stevens', should have been dismissed on grounds other than those assigned by the trial court. The disposition made was the same one appellants sought, i. e., dismissal. Their disagreement with the court's reasoning cannot be ground for reversal. Lane Construction Corp. v. State, 127 Vt. 287, 248 A.2d 508 (1968).
The fourth claim of error, like the others hereinafter discussed, relates to matters of substance. It is that the proposal approved by the trial court is part of a planned unit development under the statutes and local zoning regulations, and fails to satisfy the requirements for such development. We disagree. The Lamoille Street proposal involves only the construction of one building, on one lot. Although the building is to be multi-family, it is not in any sense a planned unit development. That the two are not the same is evident from § 1007 of the zoning regulations, which enumerates them separately as conditionally permitted uses. Section 1301.4 defines a multiple family dwelling unit as "[A] building ... used ... as a residence for (3) or more families living as units independently of one another." Planned unit residential development is not defined, but § 1007 accords to uses enumerated "the common meaning of the term." A planned unit development is usually thought of as involving development of a large tract of land, frequently large enough to constitute a new community. 2 R. Anderson, American Law of Zoning §§ 11.12, 11.13 (2d ed. 1976). It is commonly restricted to developments exceeding a specified number of units or acres. See, e. g., Millbrae Association for Residential Survival v. City of Millbrae, 262 Cal. App. 2d 222, 243, 69 Cal. Rptr. 251 (1968); Mann v. City of Fort Thomas, 437 S.W.2d 209, 210 (Ky.1969); Symposium, Planned Unit Development, 114 U.Pa.L. Rev. 1, 151 (1965); Goldston & Scheuer, Zoning of Planned Residential Developments, 73 Harv. L. Rev. 241, 259 (1959). Indeed, five acres is the minimum planned unit development under the local regulations, § 1104.1. This clearly reflects that a minimum number of acres must be involved before the regulation relating to planned unit development becomes applicable. Multi-family type dwellings are not required to involve five acres. No such acreage is here involved. What is here under consideration is clearly not a planned unit development, but a multi-family dwelling. That the applicants also own an adjacent, clearly distinct lot does not alter this result.
Appellants' next argument is that the trial court applied the wrong standards to the proposal, that what is sought is a variance rather than a conditional use. But the regulations do not prohibit the use here contemplated; on the contrary, they permit it "under exception and upon review." Essex Junction Zoning Regulations § 1007. This is not the variance for unique circumstances, hardship and the like authorized by 24 V.S.A. § 4468(a). It is, rather, the conditional use provided for by 24 V.S.A. § 4407(2), which also specifies the requisite conditions for approval.
The last basis for appeal, if we correctly analyze appellants' argument, is that the criteria for a conditional use have not been met. They attack the findings of the trial court as to adequacy of sewer facilities, character of the neighborhood, effect on traffic, and compliance with front and rear yard requirements. The argument as to yard requirements is based upon the premise, rejected earlier in this opinion, that the proposed development encompasses both lots owned by the Stevens', with resulting frontage on two streets. It does not, even though it is proposed to run a sewer service across the East Street lot. And analysis of the court's findings in other particulars indicates that, although some of them might well be regarded as controversial, they are not clearly erroneous. As such, they will not be overturned. Economou v. Economou, 136 Vt. 611, 399 A.2d 496 (1979).
We note, however, that some of the conditions found and approved by the trial court were, apparently through inadvertence, omitted from the judgment order itself. *1104 We will supply that omission by our entry order here. In re Jones, 138 Vt. 223, 230, 415 A.2d 202, 206 (1980).
Paragraph 1 of the order of the trial court is amended to read:
1. That Albert and Doris Stevens are authorized to construct a six unit apartment house on their parcel of land at 11 Lamoille Street in the Village of Essex Junction, Vt., in replacement of the single family house presently thereon, providing a minimum of twelve (12) on-premise parking spaces therefor, and locating said apartment house 20 feet from each lot sideline, 40 feet from the front lot line, and 140 feet from the rear lot line.
As so amended, the order of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261485/ | 290 Md. 229 (1981)
428 A.2d 1220
TERRY EUGENE DORTCH
v.
STATE OF MARYLAND HOWARD JOSEPH COHEN
v.
STATE OF MARYLAND
[No. 98, September Term, 1980.] [No. 99, September Term, 1980.]
Court of Appeals of Maryland.
Decided May 1, 1981.
*230 The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
Michael R. Braudes, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.
Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Ray E. Stokes, Assistant Attorney General, on the brief, for appellee.
MURPHY, C.J., delivered the opinion of the Court.
The sole issue in these consolidated criminal appeals is whether, for an election of a court trial to be "voluntary" within the contemplation of Maryland Rule 735, the trial judge must make a specific inquiry of the accused on the record to determine if his decision to waive trial by jury was improperly induced by promises or by physical or mental coercion.
Maryland Rule 735 a requires that the defendant in a criminal case, prior to trial, elect in writing whether to be tried by a jury or by the court. The form and content of the written election is set forth in Rule 735 b as follows:
"Election of Court Trial or Jury Trial
I know that I have a right to be tried by a jury of 12 persons or by the court without a jury. I am aware that before a finding of guilty in a jury trial all 12 *231 jurors must find that I am guilty beyond a reasonable doubt. I am aware that before a finding of guilty in a court trial the judge must find that I am guilty beyond a reasonable doubt.
I hereby elect to be tried by: _____________________
(insert `the court' or `a jury')
I make this election knowingly and voluntarily and with full knowledge that I may not be permitted to change this election.
Witness:
_____________________ ________________________
Signature of Counsel Signature of Defendant
Date: _________"
Rule 735 d entitled "When Court Trial Elected," provides:
"If the defendant elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule."
Rule 735 was interpreted in Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979), a case involving a number of defendants who had elected court rather than jury trials. The narrow issue there presented was whether the elections complied with the "prescriptions" of the rule. The Court observed that whether or not a defendant actually made an election in writing, as required by Rule 735 b, there must still be compliance with the provisions of § 735 d where a court trial is ultimately elected. We said that the requirement of Rule 735 d that the defendant must "`knowingly and voluntarily'" waive the right to a jury trial "goes no further than the mandates for a waiver of that right *232 under the constitutions." Id. at 455. We said that if the waiver is determined by the trial court to have been an intentional relinquishment or abandonment of the known right to a jury trial, it meets the test of Rule 735 d. In passing on that question, we held that Rule 735 d requires that the defendant have "`full knowledge of his right to a jury trial.'" Compliance with this essential, we noted, contemplates "that the defendant have a basic understanding of the nature of a jury trial." Id. at 455. We observed that this understanding is generally satisfied
"when the defendant entitled to a jury trial knows that he has the right to be tried by a jury of 12 persons or by the court without a jury; that whether trial is by a jury or by the court, his guilt must be found to be beyond a reasonable doubt; that in a jury trial all 12 jurors must agree that he is so guilty but in a court trial the judge may so find. These are the matters which the defendant acknowledges he is aware of in the written form of election set out in § b of the Rule in designating his election of court trial or jury trial, and normally they should suffice." Id.
We concluded in Countess that if the trial judge duly determines that the accused understands these aspects of a jury trial, he has sufficient knowledge of his right to a jury trial to satisfy the requirements of the rule.
The Dortch Case
Terry Dortch was charged with storehouse breaking and related offenses. Pursuant to Rule 735 b, he filed a written election to be tried by the court rather than by jury. The written election was witnessed by Dortch's trial counsel and specified that it was made "knowingly and voluntarily."
Prior to trial, the court questioned Dortch on the record as required by Rule 735 d to determine whether his jury trial waiver was knowing and voluntary. After advising Dortch of his right to a jury trial, the court told him, as required by the *233 rule and by Countess, that a jury was comprised of twelve persons who, in order to convict, must all agree as to his guilt beyond a reasonable doubt. In response to the court's questions, Dortch acknowledged that his counsel had advised him "all about" a jury trial when he signed the election for a court trial. Dortch said that he wanted to waive his right to a jury trial and wanted the court to hear the case without a jury. The trial judge did not inquire as to whether Dortch's decision to waive his right to trial by jury was a product of threats, promises or inducements.
Dortch was convicted of storehouse breaking and appealed to the Court of Special Appeals, claiming that the failure of the trial judge to inquire on the record as to whether he voluntarily waived his right to a jury trial constituted reversible error under Rule 735 d. The court in an unreported opinion found no merit in Dortch's contention. After reviewing the colloquy between the trial judge and Dortch at the commencement of the trial, the intermediate appellate court concluded that, considering the record as a whole, Dortch had been fully advised of the nature of a jury trial and voluntarily waived his right thereto. We granted certiorari.
The Cohen Case
Charged with various sexual offenses, Cohen did not make a written election as to the mode of trial, as required by Rule 735 b. At the time of Cohen's trial, his counsel told the court that he had advised Cohen of his right to have a jury or a court trial. The court then initiated a dialogue with Cohen concerning his age and education and whether he understood "what a jury trial is." In response, Cohen told the court that a jury consisted of twelve of his peers. After the court had fully advised Cohen, in the language of Countess, as to the nature of a jury trial, Cohen said he did not want a jury but wanted to be tried by the court. On three separate occasions, Cohen told the trial judge that he did not want a jury trial. The trial judge said he was "convinced" that Cohen knew what a jury trial was and that "he voluntarily *234 and intelligently made a waiver thereof." The court did not specifically inquire of Cohen as to whether his decision to waive a jury trial was the result of any threats or promises which were made to him.
Cohen was convicted and appealed, claiming that his waiver of a jury trial was not voluntary. The Court of Special Appeals, in an unreported opinion, held that there was no requirement under Rule 735 d or under Countess "to catechize as to threats, promises, or inducements." It concluded that "the trial court could have easily perceived a certain voluntariness ... [from the] interlocution between the court and Mr. Cohen." The court held that the record demonstrated that Cohen had voluntarily waived his right to a jury trial. We granted certiorari.
Each appellant argues that the trial court violated Rule 735 d in accepting his jury trial waiver because no inquiry was made on the record to determine the voluntariness of the waiver. The appellants claim that while an accused may be fully informed of the nature of a jury trial, as required by Rule 735 d and as explicated in Countess, nevertheless the waiver would not be voluntary if it was the product of coercion. Accordingly, they maintain that the trial judge must make a specific inquiry under Rule 735 d regarding voluntariness, "since circumstances rendering a waiver involuntary may be subtle as well as blatant." They suggest, by way of example, that absent an on-the-record inquiry by the trial judge to elicit the existence of any threats, promises or inducements calculated to coerce the waiver, an Assistant State's Attorney could with impunity promise to "go to bat" for the accused if he waived his right to a jury trial. The appellants argue that Countess does not speak to the voluntariness prong of Rule 735 d and, consequently, the mere fact that they were fully informed as to the nature of a jury trial, in accordance with Countess, is not alone sufficient to meet the rule's voluntariness requirement.
To satisfy constitutional due process standards, the waiver of the right to a jury trial must constitute an intentional relinquishment or abandonment of a known right or privilege. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, *235 23 L. Ed. 2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); State v. Priet, 289 Md. 267, 424 A.2d 349 (1981); Davis v. State, 278 Md. 103, 361 A.2d 113 (1976). We think it clear that the provisions of Rule 735 b and d that require a voluntary and knowing waiver of the right to a jury trial were intended simply to incorporate the due process standard within the rule itself. As the cited cases point out, whether there has been the requisite waiver can only be determined on a case-by-case basis, taking into account the relevant circumstances in their totality as disclosed by the record. Nothing in the verbiage of Rule 735 b or d requires the trial court to inquire of an accused who elects a court rather than a jury trial whether his decision was induced by promises or by physical or mental coercion. We conclude therefore, as we did in Priet and Davis involving the voluntariness of a guilty plea, that no specific ritual or fixed litany need be followed by the trial judge in determining the voluntariness of the accused's election to waive his right to a jury trial.
The record in the Dortch case indicates that the defendant made a written election witnessed by counsel, stating that his election for a court rather than a jury trial was "knowingly and voluntarily" made. The voluntary character of the election was fortified by the colloquy between the trial judge and Dortch at the commencement of the trial. We think the trial judge fairly determined that Dortch, having been fully advised with respect to the nature of a jury trial, voluntarily relinquished that right when he elected a court trial.
While Cohen, unlike Dortch, did not make a written election under Rule 735 b acknowledging that his court trial election was voluntarily made, the trial judge specifically determined on the record from his dialogue with Cohen prior to trial that he voluntarily waived his right to a jury trial.
In the circumstances of the cases before us, therefore, the failure of the trial judge to specifically inquire as to whether the jury trial waivers were induced by promises or by physical or mental coercion did not constitute error. We *236 nevertheless take note of the fact that many trial judges do direct such an inquiry to defendants who waive jury trials under Rule 735 d and we think this is the preferable practice. Indeed, paralleling the thought expressed by Judge Digges for the Court in Davis v. State, supra, 278 Md. at 118, we encourage trial judges to engage persons electing court trials in a dialogue as detailed as time, resources and circumstances permit so as to insulate jury trial waivers from successful direct or collateral attack.
Judgments affirmed; one-half of the costs to be paid by each appellant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261493/ | 285 Pa. Super. 490 (1981)
428 A.2d 152
Bertram SHAFER and Dolores E. Shafer, his wife, Lawrence Douglas and Barbara Douglas, his wife, Michael E. Evans and Jacqueline Evans, his wife, Roy Kenneth Hess and Joanne S. Hess, his wife, Robert M. Suckling and Mary Lou Suckling, his wife, Edward Chambers and Helen Chambers, his wife, Raymond E. Scales and Miriam C. Scales, his wife, Estella Williams, Helen M. Soldomridge, Gladys S. Ryser, Rose E. Philips, Althea Jenkins, Patricia L. Fitzgerald, Harold Cooper, Thelma K. Jones, Margaret Finley and Joyce Cooper, Appellants at No. 653 Phila. 1980,
v.
A.I.T.S., INC., Cross-Appellant at No. 721 Phila. 1980.
Superior Court of Pennsylvania.
Argued September 10, 1980.
Filed April 3, 1981.
Petition for Allowance of Appeal Denied August 11, 1981.
*492 Joel M. Scheer, Easton, for Shafer et al., appellants (at No. 653) and for appellees (at No. 721).
Joel H. Ziev, Easton, for A.I.T.S., Inc., appellant (at No. 721) and for appellee (at No. 653).
Before SPAETH, HESTER and CAVANAUGH, JJ.
SPAETH, Judge:
This case comes before us on cross-appeals. The action is in assumpsit, and is pleaded in seventeen counts. For our purposes, however, there are only two claims, the first represented by the first fifteen counts, the second, by the seventeenth count. (The sixteenth count is for a claim not brought before us by appeal.) On the first claim, the jury found for the defendant, and the plaintiffs have appealed, arguing that we should enter judgment n.o.v. or grant a new trial. This is Appeal No. 653. On the second claim, the lower court directed a verdict for the plaintiffs, and the defendants have appealed, arguing that we should enter judgment n.o.v. This is Appeal No. 721. We have decided that on Appeal No. 653, we should reverse and enter judgment n.o.v., and that on Appeal No. 721, we should affirm.
*493 Appeal No. 721
The plaintiffs below are members, or relatives or friends of members, of the Order of the Eastern Star, Grand Chapter of Pennsylvania. The defendant below is a corporation that was in the travel business; it is sometimes designated in the record as American International Travel Service, other times as A.I.T.S., Inc.
In May 1975 representatives of the Order (Margaret M. Finley, Travel Chairman, and Joyce Cooper, Worthy Grand Matron) met with representatives of A.I.T.S. to discuss two trips planned by A.I.T.S. one to the Canary Islands in November 1976, the other to the Caribbean in February 1977. The A.I.T.S. representatives promised to pay the Order a $20 commission for each person who took the trips. Two hundred and seventeen persons took the trip to the Canary Islands. A.I.T.S. acknowledged these facts, but it nevertheless refused to pay the Order the agreed upon $20 commission per person, or $4,340, on the ground that its agreement to pay the commission was illegal and unenforcible.[1] The seventeenth count of the complaint is a claim by two of the plaintiffs as assignees of the Order for this $4,340.
In refusing to pay the $4,340, A.I.T.S. relies on 14 C.F.R. 207.15, which provides:
(a) Neither a carrier nor a travel agent shall make any payments or extend gratuities of any kind, directly or indirectly, to any member of a chartering organization in relation either to air transportation or land tours or otherwise.
(b) Neither a carrier nor a travel agent shall make any donation to a chartering organization or an individual charter participant.
*494 An agreement that cannot be performed without violation of a statute is illegal and will not be enforced. Dippel v. Brunozzi, 365 Pa. 264, 74 A.2d 112 (1950); Pennsylvania R. Co. v. Cameron, 280 Pa. 458, 466, 124 A.2d 638, 640 (1924); Gramby, et al. v. Cobb, 282 Pa.Super. 183, 422 A.2d 889 (1980). However, it must appear that the subject of the agreement is specifically proscribed by the statute. The agreement whereby A.I.T.S. was to pay the Order a commission based on the number of travelers is not the type of agreement prohibited by 14 C.F.R. 207.15. This regulation presumably was intended to further the efforts of the Civil Aeronautics Board, whose statutory duty is to "foster sound economic conditions, promote economic and efficient service at reasonable charges, and avoid destructive competitive prices," Las Vegas Hacienda, Inc. v. C.A.B., 298 F.2d 430, 432-33, (9th Cir. 1962), cert. denied, 369 U.S. 885, 82 S. Ct. 1158, 8 L. Ed. 2d 286; see also Voyager 1000 v. Civil Aeronautics Board, 489 F.2d 792 (7th Cir. 1973), cert. denied, 416 U.S. 982, 94 S. Ct. 2383, 40 L. Ed. 2d 759 (1974), by preventing travel agents or air carriers from lowering the cost of air transportation by refunding the cost of airfare in the form of commissions to members of a charter organization. This does not appear to have been the intent or the result of the agreement here. Rather than reducing the cost to members of the Order, the commission was intended as compensation to the Order for the use of its membership list and other facilities. This was the finding of the lower court: "[S]uch payment could fairly be viewed as an arrangement for services under which the [Order] would use its facilities, mailing lists and membership rolls to contact its members and inform them of the trip, in return for which the [Order] would receive $20.00 for each participant." (Slip op. at 6)
We therefore conclude that the lower court was correct in directing a verdict in favor of the Order's assignees, and in denying A.I.T.S.'s motion for judgment n.o.v.
Appeal No. 653
After the meeting in May 1975, between the representatives of the Order and A.I.T.S., A.I.T.S. sent Mrs. Finley a *495 letter giving a "detailed breakdown of the administrative and financial workings of the various AITS programs." (R.R. 341a) Included in the letter were the following promises:
. . . .
2. A.I.T.S. will serve as your agent for all charter arrangements with the airline. Only the most modern airline equipment will be used.
. . . .
4. A.I.T.S. will provide four color print brochures personalized to your association for distribution to your members via U.S. mails.
5. A.I.T.S. will assume the cost of all administrative expenses involved in the exposure of this promotion and including all costs of printing, postage and mailing.
. . . .
8. A.I.T.S.'s central computer complex will confirm and maintain all reservations and issue a detailed invoice to each participant.
. . . .
10. A.I.T.S. will guarantee that there will be no financial obligation on the part of your organization.
(R.R. 341a)
Pursuant to this letter, a brochure entitled "Carribbean Cruise Carnival" was provided by A.I.T.S. for distribution to members of the Order, "and their families and friends." (Exhibit "A" of the Complaint.) The brochure included a reservation form, to be sent to Mrs. Finley as Travel Chairman. The plaintiffs described in the first fifteen counts of the complaint sent in reservation forms, with their deposits. In response, A.I.T.S. sent them a letter acknowledging the reservations (Exhibit "B" of the complaint) and later, a bill for the balance of the cost of the trip (Exhibit "C" of the complaint). The plaintiffs paid as billed, in varying amounts.
*496 Sometime in the Fall of 1976, A.I.T.S. decided to discontinue its travel business, and announced that it would not conduct trips scheduled for after December 9, 1976. Since the Caribbean cruise was scheduled for February 1977, it was affected by this announcement. A new organization, A.I.T.S., Travel, Inc., was formed by former executives and consultants of A.I.T.S., with the intention of handling all trips scheduled by A.I.T.S. after December 9, 1976. On January 20, 1977, the Order received a letter from the new corporation, A.I.T.S., Travel, Inc., stating that the Caribbean cruise had been cancelled (Exhibit "D" of the complaint). The claim made by the first fifteen counts of the complaint is to recover payments by the plaintiffs to A.I.T.S. for the cancelled cruise. As indicated above, the payments vary in amount. For example, the plaintiffs on the first count seek to recover $2,376, on the second count, $958, and so on. A witness for A.I.T.S. testified that payments received before October 29, 1976, had been refunded, but payments received after October 29, 1976, were turned over to the new corporation, A.I.T.S., Travel, Inc. The claim here is for payments made after October 29, 1976, and not refunded. These total $10,532.
A.I.T.S. has resisted this claim on the following theory: Before the trip took place, A.I.T.S., Inc. sold part of its business to another corporation [A.I.T.S., Travel, Inc.], renounced its principal-agency relationship by giving notice to the principal [the Order] and forwarded all funds to its successor [A.I.T.S., Travel, Inc.]. The successor agency failed to perform and the trip never occurred. Thereafter, [A.I.T.S.] refunded all money it had, but for funds received by it after the renunciation.
(Brief for A.I.T.S., at 5.)
In other words, according to A.I.T.S. the plaintiffs must get their money back, if at all, not from it but from A.I.T.S., Travel, Inc.
We find no merit in this theory. It depends upon the premise that in fact A.I.T.S. did "renounce[] its principal-agency relationship by giving notice to [the Order as the *497 principal]." There was, however, no evidence from which the jury could find that such a renunciation had occurred. The lower court, therefore, should not have submitted the case to the jury, but should have directed it to return a verdict for the plaintiffs. When the jury returned a verdict in favor of A.I.T.S., the court should have entered judgment n.o.v.
It is settled that the burden of proving renunciation of one's obligations rests on the party asserting it. Yoder v. T.F. Scholes, Inc., 404 Pa. 242, 173 A.2d 120 (1961); Taylor v. Stanley Co. of America, 305 Pa. 546, 158 A. 157 (1932). In the present case, A.I.T.S. therefore had the burden of proving that it had communicated its intention not to perform its obligation to provide the Caribbean cruise. To be effective, a renunciation must be absolute and unequivocal. See McCloskey v. Minweld Steel Co., 220 F.2d 101 (3rd Cir. 1955); McClelland v. New Amsterdam Casualty Co., 322 Pa. 429, 185 A. 198 (1936). Viewing the evidence in the light most favorable to A.I.T.S. as the verdict winner, we find it insufficient to prove a renunciation.
Arthur Waltzman, co-chairman of the board and treasurer of A.I.T.S., testified that on December 10, 1976, A.I.T.S. mailed letters to all customers and creditors, which stated:
AITS, Inc. has discontinued its travel business operations as of December 9, 1976. These operations have been taken over by AITS Travel, Inc., a new corporation having no relationship whatsoever with us. All travel tours heretofore planned by us for operation subsequent to December 9, 1976 and with respect to which we may have heretofore entered commitments are being assumed by AITS Travel, Inc.
(Cross-Appellant's Brief at 19, Exhibit "2")
No attempt was made to prove that this letter was sent to the plaintiffs. When asked whether the letter was sent to the Order, Mr. Waltzman replied, on direct examination, as follows:
Q: Excuse me. Was that notice sent to the Order of the Eastern Star?
*498 A: Yes, it was.
Q: How do you know that?
A: Because I checked the tape to see if their name was on the tape and the listings of all the groups that we sent it to, and I know that there were groups on that tape that had received the notice, and this tape ran all the way through, so I have to assume I don't know specifically that it was it was made to the Order of the Eastern Star. Who received it I cannot tell you.
(R.R. 115a, emphasis added.)
Evidence that a letter has been mailed will ordinarily be sufficient to permit a jury to find that the letter was in fact received by the party to whom it was addressed. Berkowitz v. Mayflower Securities, Inc., 455 Pa. 531, 534, 317 A.2d 584 (1974). Christie v. Open Pantry Marts, Inc., 237 Pa.Super. 243, 352 A.2d 165 (1975). There must, however, be proof that the letter was signed in the usual course of business and placed in the regular place of mailing. Christie v. Open Pantry Marts, Inc., supra, 237 Pa.Super. at 246-47, 352 A.2d at 166, citing McCormick on Evidence, § 195 at 464 (2d ed. 1972); Fed.R.Evid. 406. In the present case, A.I.T.S. has failed to satisfy this threshold requirement. Mr. Waltzman's testimony that the name of the Order "was on the tape . . . and this tape ran all the way through" was, without any further evidence, insufficient to show that a letter to the Order was actually written, signed, and placed in the regular place for mailing.
The only other evidence offered by A.I.T.S. in support of its claim of renunciation was the testimony of Mrs. Finley, the Order's Travel Chairman, who stated on cross-examination that Stanley Rosen, an A.I.T.S. representative with whom she had communicated during the planning of several prior trips, told her in a telephone conversation that "he was taking over A.I.T.S." This did not amount to an admission by Mrs. Finley that A.I.T.S. had renounced its responsibility to provide the Caribbean cruise. Mrs. Finley also testified that Mr. Rosen did not inform her that another corporation *499 had been formed to handle the Caribbean cruise. Also, she testified, "I asked him if it [Rosen's taking over of A.I.T.S.] would affect our trip in any way. He said no, it would not." (R.R. 67a)
On Appeal No. 721, the order of the lower court is affirmed. On Appeal No. 653, the order of the lower court is reversed and the case remanded with instructions to enter judgment n.o.v.
CAVANAUGH, J., concurs in the result.
NOTES
[1] Plaintiffs argued to the lower court that this defense of illegality had been waived because it was not pleaded. See Pa.R.C.P. 1030 and 1032. However, illegality of contract is not waived by failure to plead it, since it goes to the very substance of the plaintiff's action. See Norristown Ford Co. v. Metropolitan Auto Dealers, Inc., 183 Pa.Super. 645, 132 A.2d 725 (1957); 2 Goodrich-Amram 2d § 1030:1.3 pp. 288-291. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321349/ | 163 Ga. App. 814 (1982)
294 S.E.2d 714
TODD
v.
THE STATE.
64537.
Court of Appeals of Georgia.
Decided September 13, 1982.
Rehearing Denied October 8, 1982.
James Clark, for appellant.
C. Deen Strickland, District Attorney, W. Fletcher Sams, Assistant District Attorney, for appellee.
QUILLIAN, Chief Judge.
Defendant appeals his conviction for driving under the influence and for driving after being declared a habitual violator. Held:
1. In two enumerations defendant asserts that his conviction for driving after being declared a habitual violator should be reversed on constitutional grounds because he did not have counsel when he was convicted of the offenses upon which his habitual violator status was based. He relies on Baldasar v. Illinois, 446 U. S. 222 (100 SC 1585, 64 LE2d 169).
This issue has been decided adversely to defendant in Smith v. *815 State, 248 Ga. 828 (3), (286 SE2d 709), where, after finding that Baldasar v. Illinois did not apply to habitual violator cases, the court said: "[W]e hold that a person may be subjected to felony punishment as a habitual violator under Code Ann. § 68B-308 (c), even though the offenses giving rise to the person's having been declared a habitual violator are subject to collateral attack on constitutional grounds." Accord, Hill v. State, 162 Ga. App. 637 (4) (292 SE2d 512).
2. There is no merit in two enumerations in which defendant alleges error in the admission of the certified records of the Department of Public Safety showing that he had been declared a habitual violator and had been given notice thereof. Defendant argues that such evidence is hearsay and violates his right to be confronted by witnesses against him.
"The Department of Public Safety's traffic records, when properly certified, are `admissible as evidence in any civil or criminal proceeding as proof of the contents thereof.' Code Ann. § 68B-215 (e) (Ga. L. 1975, pp. 1008, 1021 through 1980, pp. 917, 918); Niehaus v. State, 149 Ga. App. 575 (1) (254 SE2d 895); Magruder v. Cofer, 153 Ga. App. 7 (3) (264 SE2d 506).
"Proof of facts by a document or a duly authenticated copy thereof is not objectionable as violative of the right of confrontation. Snyder v. Massachusetts, 291 U. S. 97 (54 SC 330, 78 LE 674); Harrell v. State, 241 Ga. 181 (1), 184 (fn 1) (243 SE2d 890); 21A AmJur2d 155, Criminal Law, § 727." Hill v. State, 162 Ga. App. 637 (2), supra.
3. Defendant made an apparently proper and timely request for production of his pretrial statements under the provisions of Code Ann. § 27-1302 (Ga. L. 1980, p. 1388). On the scheduled trial date, after a jury was selected but not sworn, the state served a copy of a pretrial statement of defendant on the defense. Admitting that it had not complied with the statutory requirement that the statement must be presented ten days prior to trial, the state received a continuance of the trial for more than ten days. See, Tanner v. State, 160 Ga. App. 266 (1) (287 SE2d 268).
Defendant contends that the statement should have been excluded from evidence because it was not presented until after the jury had been selected and that if he had known the statement existed and was to be used prior to selecting the jury, he would have used a different strategy in selecting the jury. However, when the court offered to dismiss the jury and empanel another, defendant's counsel declared he was satisfied with the jury and did not want another.
Code Ann. § 27-1302, supra, requires that upon proper request a defendant be presented with a copy of his pretrial statements at least ten days prior to trial. Pretermitting whether giving the statement to *816 the defense after selection of a jury, which was not sworn, was prior or subsequent to trial, we find that by refusing the offer of another jury more than ten days after receiving the statement defendant clearly waived any possible objection to the admission of his statement based upon a violation of Code Ann. § 27-1302.
Judgment affirmed. Shulman, P. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321357/ | 163 Ga. App. 753 (1982)
294 S.E.2d 719
HOLMES et al.
v.
THE STATE.
64060.
Court of Appeals of Georgia.
Decided September 14, 1982.
Rehearing Denied October 6, 1982.
Lawrence W. Roberts, for appellants.
Gary C. Christy, District Attorney, J. Anderson Harp, Assistant District Attorney, for appellee.
POPE, Judge.
On February 20, 1980 appellants Holmes and Cleary were observed speeding on Interstate Highway 75 by a trooper of the Georgia State Patrol. After stopping the car and directing the driver, Holmes, to sit in the patrol car, the trooper suspected Holmes to be intoxicated because he was unsteady on his feet. The trooper asked Holmes if he had been drinking and Holmes replied affirmatively. The trooper then advised Holmes that he was under arrest for speeding and asked him to consent to an intoximeter test at the county jail. Holmes consented. He also advised the trooper that the passenger, Cleary, was the owner of the car.
The trooper then walked toward the car with the intent of directing Cleary to follow him to the jail. However, when Cleary got out of the car he also appeared to be intoxicated. He admitted that he had been drinking. The trooper directed Cleary to secure the car and accompanied him to it. With the car door open, the trooper detected the odor of marijuana smoke. He brought Cleary back to the patrol car and patted him down before putting him in the car. During the *754 pat-down he discovered a metal cigarette case, opened it and found in it a half-smoked marijuana cigarette. The trooper also patted down Holmes. Appellants were then taken to the county jail. Holmes passed the intoximeter test and therefore was charged with speeding rather than DUI. Cleary was charged with possession of marijuana.
The trooper asked Cleary to consent to a search of the car. He initially consented orally but later refused to sign a consent-to-search form. The trooper then went to a local justice of the peace to obtain a search warrant. The warrant was issued, the car was searched and two suitcases were found on the rear seat. The suitcases were opened and three plastic garbage bags full of marijuana were found inside. Appellants were later indicted for felony possession of this marijuana.
A motion to suppress hearing was conducted on May 20, 1980. The motion was denied on September 10, 1980. Appellants waived trial by jury and a bench trial was conducted on March 27, 1981. Both appellants were found guilty. Holmes was sentenced to 3 years probation, 30 days imprisonment and fined $1000. Cleary was sentenced to 0-6 years under the Youthful Offender Act. Motion for new trial was denied.
Appellants assert four enumerations of error on this appeal: (1) The justice of the peace issuing the search warrant was not a neutral and detached magistrate; (2) The justice of the peace did not make an independent determination of probable cause; (3) The justice of the peace was presented with the fruits of an illegal search and seizure, which thereby tainted any determination of probable cause; and (4) The trial court erred in refusing to grant appellants' motions for a directed verdict of acquittal, presented on the ground that the state allegedly had not established appellants were in knowing possession of the marijuana.
1. Appellants' first three contentions challenge the validity of the search warrant. Assuming arguendo any one of appellants' contentions to be true, the search warrant would be declared invalid and void. The result would be that the search conducted on appellants' car would be classified as a warrantless search. Because we find the search to be legal as a warrantless search, there is no need for us to determine the validity of the warrant.
The United States Supreme Court recently decided that police who have probable cause to believe an automobile contains contraband may search, without a warrant, every part of the vehicle and its contents that may conceal the suspected contraband. United States v. Ross, ___ U. S. ___, (102 SC 2157, 72 LE2d 572) (1982). Thus, since this clarification of the "automobile exception," the only issue for us to decide pertaining to the search and seizure is whether *755 the trooper had probable cause to believe there was marijuana in the car. We hold that the trooper's detection of the odor of marijuana smoke coming from within the automobile, together with the totality of the circumstances, was sufficient to provide the probable cause to search the automobile for marijuana. State v. Medders, 153 Ga. App. 680 (266 SE2d 331) (1980); Rogers v. State, 131 Ga. App. 136 (3) (205 SE2d 901) (1974). See also Cunningham v. State, 131 Ga. App. 133 (205 SE2d 899) (1974) (Obiter addendum by Clark, J., at 135-36).
2. Appellants' fourth contention is that their motions for directed verdicts of acquittal were supported by the state's alleged failure to prove knowing possession. We disagree. The facts adduced pointing toward knowledge included: Appellants were brothers-in-law; they worked for the same family-owned business in Ohio; they were returning from a short stay in Florida together; they had driven over 400 miles together that day in Cleary's car; when appellants were stopped Holmes was driving; both appellants appeared to be intoxicated; the odor of marijuana smoke was detected in the car by an experienced state patrolman; Holmes admitted that he and Cleary had smoked half of a marijuana cigarette earlier in the car; the remaining half was found in Cleary's possession; the suitcases containing the bags of marijuana were on the back seat of the car. We conclude that this was ample evidence upon which any trier of fact, the court in this case, could rationally find the knowledge element of the crime. See Bethay v. State, 235 Ga. 371 (1) (219 SE2d 743) (1975); Cunningham v. State, 235 Ga. 126 (218 SE2d 854) (1975); Smith v. State, 152 Ga. App. 134 (3) (262 SE2d 166) (1979).
Judgment affirmed. Deen, P. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321366/ | 294 S.E.2d 184 (1982)
Macie DANIELS
v.
STATE WORKMEN'S COMPENSATION COMMISSIONER and U. S. Steel Corp.
No. 15288.
Supreme Court of Appeals of West Virginia.
July 8, 1982.
*185 Timothy G. Leach, Charleston, for appellant.
George W. S. Grove, Jr., Charleston, for appellees.
MILLER, Chief Justice:
This is an appeal by the claimant, Macie Daniels, from a decision of the Workmen's Compensation Appeal Board, affirming a ruling by the Workmen's Compensation Commissioner granting a 15% permanent partial disability award. The Commissioner initially awarded a 30% permanent partial disability for the injury but reduced the award to 15% following hearings on the employer's protest. The claimant contends the Appeal Board misapplied our apportionment statute, W.Va.Code, 23-4-9b, and thereby improperly reduced his permanent partial disability award. This appeal involves the construction of our apportionment statute. For the reasons that follow, we reverse and remand.
On December 16, 1975, the claimant sustained an occupational injury when a large rock struck his left knee. Following the injury his knee was aspirated and he was required to wear a brace. His claim was found compensable. Thereafter, he underwent a medial meniscotomy for the removal of a torn cartilage. The Commissioner referred him to Dr. Colin Craythorne, an orthopedist, for a disability evaluation. Dr. Craythorne estimated permanent partial disability at 30%. In his report of April 13, 1977, he observed that the preoperative status of the claimant's left knee was unknown but stated it was obvious that some amount of arthritis preexisted his 1975 traumatic knee injury. The Commissioner then granted claimant a 30% permanent partial disability award.
The employer protested and had Daniels examined by two physicians. Dr. Tony C. Majestro in a July 15, 1977 report estimated permanent partial disability at 12%. Dr. *186 Majestro was of the opinion that the claimant suffered some degenerative arthritis in both knees prior to the injury but did not express an opinion on whether the preexisting arthritis had resulted in any limitation of movement in either knee. He measured the extension and flexion of both knees and compared the results, finding a relatively minimal amount of impairment in the uninjured right knee. Dr. Majestro concluded that he may have had normal extension in his left knee prior to surgery. He also found a mild atrophy of the left thigh.
The second doctor who examined the claimant on behalf of the employer, Dr. George Callender, Jr., in a report also dated July 15, 1977, estimated permanent partial disability at 15% based on the residual disability resulting from the medial meniscotomy and the effect of the trauma and subsequent surgery on his degenerative osteoarthritis.
The claimant was also examined by Dr. Robert L. Mattill, who, following his examination on September 21, 1978, filed a report expressing the opinion that a 30% permanent partial disability award was warranted. The claimant denied having any previous injury or difficulty with his left knee. Dr. Mattill found the claimant was not able to walk on the toes of the left foot because of flexion limitation in his knee.
Dr. Craythorne testified in a September 1979 protest hearing that he was of the opinion that there were arthritic changes in the left knee caused by the wear and tear of heavy work preexisting his occupational injury. He testified that he would expect some limitation of movement in the claimant's knees due to degenerative arthritis, but his testimony is at best ambiguous as to whether he was of the opinion that the claimant suffered any impairment in the movement of the knee prior to his injury in 1975. He testified that he had no history of whether the arthritis was asymptomatic prior to the injury. He stated it could have been asymptomatic and offered the opinion that trauma to the knee would cause claimant's preexisting arthritis to become symptomatic.
Following the protest hearings, the Commissioner set aside her prior ruling of 30% and found the claimant had a permanent partial disability of 15%. The Appeal Board affirmed, noting that the physicians' reports were in conflict as to the extent of the claimant's permanent partial disability, and expressly finding that three of the physicians involved in the case specifically agreed that the claimant had a "pre-existing disability" due to arthritis.
Because none of the physicians reduced their overall permanent partial disability recommendation by the amount of disability attributable to the claimant's preexisting disability, the Appeal Board determined that the claimant had not shown that he was entitled to more than a 15% permanent partial disability award in view of provisions of W.Va.Code, 23-4-9b (1971).[1] The claimant contends that W.Va.Code, 23-4-9b, is not applicable to this case because that section does not become operative unless there has been a showing that the claimant had a "definitely ascertainable physical impairment" prior to the December 16, 1975, compensable injury to his left knee.
The employer contends in opposition that the statute was not misapplied by the Appeal Board because the claimant was shown to have a definitely ascertainable physical impairment within the meaning of W.Va. Code, 23-4-9b. The employer further contends, citing Boggs v. State Workmen's *187 Compensation Commissioner, W.Va., 256 S.E.2d 890 (1979), that it is not necessary for the impairment to have been estimated or rated prior to the compensable injury in order for the statute to apply. However, Boggs is not applicable since it dealt with the second injury life award statute, W.Va. Code, 23-3-1, and involved the question of a prior disease arising from nonindustrial sources which was held not to be covered under W.Va.Code, 23-3-1. Moreover, the inquiry under the second injury life award statute, W.Va.Code, 23-1-1, is whether the definitely ascertainable physical impairment caused by prior injuries when aggregated and combined with the claimant's present injury renders him 85% permanently disabled. Linville v. State Workmen's Compensation Commissioner, W.Va., 236 S.E.2d 41 (1977); Gillispie v. State Workmen's Compensation Commissioner, 157 W.Va. 829, 205 S.E.2d 164 (1974).
The question of the application of W.Va. Code, 23-4-9b (1971), as it relates to reducing the amount of a permanent partial disability award because of a preexisting physical impairment, has not been extensively discussed. We have held in Syllabus Point 4 of Gillispie v. State Workmen's Compensation Commissioner, supra, that this statute by its own terms has no effect on a total permanent disability award under the second injury life award statute, W.Va. Code, 23-3-1. See also Bostic v. State Workmen's Compensation Commissioner, 142 W.Va. 484, 96 S.E.2d 481 (1957); Dillon v. State Workmen's Compensation Commissioner, 146 W.Va. 269, 119 S.E.2d 89 (1961).
Gillispie involved a second injury life award, however, several of its syllabus points did touch on the impact of W.Va. Code, 23-4-9b, as it relates to determining permanent partial disability awards, where the claimant has a definitely ascertainable physical impairment. In Syllabus Point 8 of Gillispie this general statement was made:
"An injured workman's definitely ascertainable pre-existing physical impairments are to be excluded from the Workmen's Compensation Commissioner's consideration in the allocation of disability ratings for injuries resulting in permanent partial awards."[2]
It is obvious that an injured claimant can have a definitely ascertainable physical impairment under W.Va.Code, 23-4-9b, from several sources. Two broad categories are immediately apparent. The first are those arising from prior industrial injuries. In Syllabus Point 6 of Gillispie, this rule was stated as to this category of claims:
"The case of Ball v. Workmen's Compensation Commissioner, 156 W.Va. 419, 194 S.E.2d 229 (1973), interpreting West Virginia Code, chapter 23, article 4, section 9b, as amended in 1947 and effective until 1971, is authority for the proposition that the Workmen's Compensation Commissioner cannot properly deduct or exclude a prior compensable claim from consideration of a disability rating for a current claim for permanent partial disability under Code 1931, 23-4-9b, as amended, unless the previous impairment had been definitely ascertained and rated, as such, by an award of permanent partial disability allocated in terms of percentage."
Thus, it is clear under Gillispie that where an injured claimant has received a compensable injury to an area of his body which has been previously injured in an industrial accident and which has left him with a prior ascertainable physical impairment, this prior injury can be considered under W.Va.Code, 23-4-9b, only if he has received a prior permanent partial disability award for it. Where such prior award has not been made, under Syllabus Point 6 of Gillispie, the effect of such prior disability cannot be considered and his current injury is rated as if he had no prior physical disability.
When we turn to the second broad category of definitely ascertainable physical impairments, those that arise from nonindustrial accidents, Gillispie does not provide any specificity except to state in general *188 terms that such preexisting definitely ascertainable physical impairments should not be considered when evaluating the degree of permanent partial disability arising from claimant's present injury. Thus, under Gillispie, the claimant cannot have the impairment resulting from his present injury increased by considering the preexisting impairment. The present case is an apt illustration of the problem. There is no dispute that the claimant suffered a compensable injury to his left knee. There is suggested in some of the medical reports that the claimant had a preexisting arthritic condition in his knee. The employer contends that in determining his degree of permanent partial disability some deduction from his permanent partial disability should be made because of the preexisting arthritic condition.
While the point has not been discussed in any detail, it seems to us that the phrase "definitely ascertainable physical impairment" must be given its plain and common sense meaning. This is to say that a mere generalized condition or disability will not suffice to come within that term.
We note that our apportionment statute, W.Va.Code, 23-4-9b, is not unique in the Workmen's Compensation field.[3] The general rule as to apportionment statutes, such as contained in W.Va.Code, 23-4-9b (1971), is that they are held not to apply in a case where the prior condition was not physically disabling. Moreover, to be apportionable, the preexisting definitely ascertainable physical impairment must have independently produced some ascertainable degree of disability, which degree of disability must be stated. Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967); C. Finkbeiner, Inc. v. Flowers, 251 Ark. 241, 471 S.W.2d 772 (1971); Wilson Hargett Construction Co. v. Holmes, 235 Ark. 698, 361 S.W.2d 634 (1962); Bozman v. Industrial Commission, 20 Ariz.App. 390, 513 P.2d 679 (1973); Gross v. Workmen's Compensation Appeal Board, 44 Cal.App.3d 397, 118 Cal.Rptr. 609 (1974); Berry v. Workmen's Compensation Appeals Board, 68 Cal.2d 786, 69 Cal.Rptr. 68, 441 P.2d 908 (1968) (In Bank); Stewart-Decatur Security v. Kropp, 396 So.2d 256 (Fla.Dist. Ct.App.1981); Dade County School Board v. Walker, 379 So.2d 1026 (Fla.Dist.Ct.App. 1980); Bethlehem Steel Corp. v. Cummings, 160 Ind.App. 160, 310 N.E.2d 565 (1974); Orr v. Department of Labor & Industries, 10 Wash.App. 697, 519 P.2d 1334 (1974) (recognizing rule); 2 A. Larson's Workmen's Compensation Law § 59.22 (1981).
Certainly this rule as to a nonindustrial preexisting definitely ascertainable physical impairment comports with the rule previously expressed in Syllabus Point 6 of Gillispie which requires the preexisting industrially caused disability to have been subject to a permanent partial disability award in order to be "ascertainable." In the context of a definitely ascertainable physical impairment resulting from a prior noncompensable condition, the record before the Commissioner must contain specific medical evidence and findings setting forth the percentage of disability attributable to the prior physical impairment. In the case before us, there was no evidence and findings to this effect.
We, therefore, conclude that under our apportionment statute, W.Va.Code, 23-4-9b (1971), where there is a preexisting definitely ascertainable physical impairment arising from a nonindustrial injury, such preexisting impairment cannot be deducted from the claimant's present permanent partial disability award if the preexisting impairment is not disabling. Where such preexisting impairment has produced some ascertainable degree of disability, such degree of disability must be stated in order to be apportioned from his current permanent partial disability award.
*189 Of course, the entire concept of our apportionment statute relates to those situations where a current injury is superimposed on a prior physical impairment. And, as we have earlier noted, this statute by its terms has no applicability to the second injury life award statute, W.Va.Code, 23-1-1.
In the present case the Appeal Board and the Commissioner erred in finding that the claimant's 30% permanent partial disability award should be reduced to 15% because of the claimant's preexisting arthritic condition. The medical testimony was insufficient to establish that the arthritic condition was in fact disabling nor was there any testimony setting the degree of such disability. As previously noted, these two conditions are essential prerequisites in order to call into play our apportionment statute. W.Va.Code, 23-4-9b.
For the foregoing reasons, the order of the Workmen's Compensation Appeal Board is reversed and the case is remanded to the Commissioner for entry of a final order awarding the claimant a 30% permanent partial disability award.
Reversed and Remanded With Directions.
NOTES
[1] W.Va.Code, 23-4-9b (1971), provides:
"Where an employee has a definitely ascertainable physical impairment and such employee shall thereafter receive an injury in the course of and resulting from his employment, unless such injury results in total permanent disability within the meaning of section one [§ 23-3-1], article three of this chapter, such physical impairment, and the effect thereof, and an aggravation thereof, shall not be taken into consideration in fixing the amount of compensation allowed by reason of such injury, and such compensation shall be awarded only in the amount that would have been allowable had such employee not had such preexisting physical impairment."
[2] Much the same language is contained in Syllabus Point 5 of Gillispie, supra.
[3] Although it does appear that most states do not have such statutes in their Workmen's Compensation Acts, according to 2 A. Larson's Workmen's Compensation Law § 59.21:
"Under the great majority of statutes, the problem in this third form does not arise, but several states have special apportionment provisions in their statutes, under which an employee with a prior disability receives for a subsequent disability only what he would have been entitled to for the latter disability considered alone." (Footnote omitted) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321374/ | 294 S.E.2d 121 (1982)
Eileen C. DUFFY
v.
The OGDEN NEWSPAPERS, INC., et al., And U. P. I., etc., et al., etc.
No. 14974.
Supreme Court of Appeals of West Virginia.
July 1, 1982.
Gompers, Buch & McCarthy and T. Carroll McCarthy, Jr., Wheeling, for appellant.
Pinsky, Barnes, Watson, Cuomo & Hinerman and William E. Watson, Wellsburg, Baker & Hostetler, Bruce W. Sanford and Evan Jay Cutting, Cleveland, Ohio, for appellees.
HARSHBARGER, Justice:
On March 1, 1979, Duffy sued defendant newspapers alleging they "did negligently, maliciously, wantonly, wilfully and with such gross recklessness and gross carelessness as to amount to wanton and wilful disregard of the rights of the plaintiff, utter and publish, or did cause to be uttered and published, a certain false, scandalous, malicious and defamatory and libelous story about the plaintiff in a front page article."
She wanted damages for contempt and ridicule in public estimation, exposure to public scorn, disgrace, shame, hatred and contempt, hinderance of her association with other persons, injury in her fame and credit in the eyes of her friends, associates and public at large, damage to her general reputation, severe, serious and permanent bodily, mental and internal infirmities and injuries, mental stress, mental suffering and mental shock, and loss of wages. Defendants asserted a statute of limitations bar because the publication occurred in March, 1977; and the trial court found Duffy's *122 complaint barred by the one-year statute of limitations for libel. Syllabus, Cavendish v. Moffitt, W.Va., 253 S.E.2d 558 (1979).
Our general statute of limitations for personal actions, W.Va.Code, 55-2-12, is difficult to interpret. It is divided into three sections: (a) a two-year statute of limitations for a personal action "if it be for damage to property"; (b) a two-year statute of limitations for a personal action "if it be for damages for personal injuries"; and (c) a one-year statute for "any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative." The two-year statutes are based on the types of damages sought; the one-year is based on the type of cause of action.[*]
The only way to reconcile these provisions without emasculating subsection (c) is to declare that if an action is governed by (c), a one-year statute of limitations applies regardless of the type of damages sought. We have consistently used this interpretation. Stanley v. Sewell Coal Co., W.Va., 285 S.E.2d 679 (1981); Cavendish v. Moffitt, supra; Snodgrass v. Sisson's Mobile Home Sales, Inc., W.Va., 244 S.E.2d 321 (1978).
We are instructed in Snodgrass to read our Code section creating statutory survivability, Code, 55-7-8a in pari materia with Code, 55-2-12(c) about actions not having common law survivability. In Snodgrass, supra at 325, we explained that "personal tort actions such as defamation, false arrest and imprisonment, and malicious prosecution" take a one-year statute of limitations because they were excluded from statutory survivability in W.Va.Code, 55-7-8a. Cavendish, supra at 559, noted "libel is a form of defamation which, under our ruling in Snodgrass is limited by the one-year limitation period established in W.Va.Code, 55-2-12(c)."
Duffy's action sought damages for a libelous publication; but it is the lack of survivability of the cause that governs the appropriate statute of limitation and not the type of damages sought.
Affirmed.
NOTES
[*] Actions seeking equitable relief are limited by laches rather than one of these statutes of limitations. Laurie v. Thomas, W.Va., 294 S.E.2d 78 (1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321386/ | 190 S.E.2d 270 (1972)
15 N.C. App. 362
STATE of North Carolina
v.
Restony ROBINSON.
STATE of North Carolina
v.
Mary ROBINSON.
No. 7218SC523.
Court of Appeals of North Carolina.
August 2, 1972.
Certiorari Denied September 14, 1972.
*272 Atty. Gen. Robert Morgan by Asst Atty. Gen. William F. Briley, for the State.
Frye, Johnson & Barbee, by Walter T. Johnson, Jr., Greensboro, for defendant appellants.
Certiorari Denied by Supreme Court September 14, 1972.
GRAHAM, Judge.
Defendants assign as error the denial of their motion for a bill of particulars made on 4 January 1972, the date on which the case was set for trial peremptorily as the first case.
Although defendants were arrested four months previously and were given a preliminary hearing on 6 September 1971, no motion was made for a bill of particulars and no request was made of the solicitor for information until court opened on 4 January 1972. The peremptory setting for that date was prompted by a previous continuance made necessary when defendants requested the discharge of their second court-appointed attorney and asked for a continuance in order to obtain counsel of their own choosing. Counsel first appointed to represent defendants had also been discharged at their request but remained willing and available to assist in apprising counsel subsequently obtained as to information he had with respect to the State's case. He had represented defendants at the preliminary hearing and had subsequently filed several motions on their behalf.
After finding the above facts, and others, the trial judge denied defendants' motion in his discretion. We affirm his order. The motion was addressed to the discretion of the trial judge, G.S. § 15-143, and his ruling thereon is not subject to review, except for palpable and gross abuse thereof. State v. Vandiver, 265 N.C. 325, 144 S.E.2d 54. No abuse of discretion is shown.
Defendants contend the court erred in allowing in evidence various portions of McMiller's testimony. The record does not show that this testimony was objected to at the trial or that any motion was made to strike it. Moreover, we are of the opinion that the testimony complained of would have been admissible even if objection had been properly imposed.
Defendants bring forth one exception to the charge, contending that the court improperly charged the jury that they must find both defendants guilty or both of them not guilty. An instruction to this effect might have been appropriate if defendants had been the only ones named in the bill of indictment, because when all conspirators are acquitted except one, the one convicted is entitled to his discharge. State v. Littlejohn, 264 N.C. 571, 142 S.E. 2d 132. Here, however, defendants were charged with conspiring with Tinsley as well as with each other. Hence, the jury could have found one of them guilty and the other not guilty on the theory that the guilty party conspired with Tinsley while *273 the other party conspired with no one. However, upon reading the entire charge contextually, as we are required to do, State v. McWilliams, 277 N.C. 680, 178 S. E.2d 476, we do not find that the court instructed the jury as defendants contend. We do not see how the charge as given could have left the jury with the impression that the conviction of one defendant necessitated the conviction of the other. The court gave separate instructions as to the findings necessary to convict each defendant, and carefully instructed the jury as to the possible verdicts that could be returned as to each defendant. We hold that the charge does not contain prejudicial error.
Other assignments of error relate only to the appeal of feme defendant. She contends that it was error for the court to permit Raymon McMiller to testify against her. Her position is that the State's evidence shows her to be the spouse of McMiller, and that the provisions of G.S. § 8-57 therefore render him an incompetent witness against her.
In commenting on G.S. § 8-57, Justice Bobbitt (now Chief Justice) stated for the Supreme Court in the case of State v. Alford, 274 N.C. 125, 161 S.E.2d 575:
"No statute provides that a husband is not a competent witness against his wife or that a wife is not a competent witness against her husband in any criminal action or proceeding. The statute now codified as G.S. § 8-57, and the statutes on which it is based, simply provide that rules of the common law with reference to whether a husband is competent to testify against his wife or a wife is competent to testify against her husband in a criminal action or proceeding are unaffected by these statutes. . . ."
The opinion in Alford collects and summarizes many of the cases relating to exceptions to the general common law rule that one spouse is not a competent witness against the other in a criminal proceeding. It appears from these authorities that an exception to the general rule is applicable where one spouse is tried for a felony committed against the other spouse. For instance, in discussing exceptions to the common law rule, the Supreme Court stated in State v. Hussey, 44 N.C. 123: "The rule, as we gather it from authority and reason, is, that a wife may be a witness against her husband for felonies perpetrated, or attempted to be perpetrated on her.. . ." See also State v. Alderman, 182 N.C. 917, 110 S.E. 59, where the husband was held a competent witness to testify against his wife upon her trial for attempting to murder him by poisoning.
Feme defendant in this case was charged with a serious felony which she and others allegedly perpetrated against the man she contends is her husband. The public's interest in having her brought to justice far outweighs any conceivable interest the public might have in precluding McMiller from testifying against her. We hold that he was a competent witness.
Feme defendant also contends that the court erred in failing to instruct the jury that there is a rebuttable presumption that she acted under the influence or coercion of her husband, Restony Robinson. There is authority in this State that where a married woman has committed a criminal act in the presence of her husband, a rebuttable presumption arises that she was acting under his influence or coercion. State v. Cauley, 244 N.C. 701, 94 S.E.2d 915.
We note that feme defendant contends she is the wife of McMiller for purposes of one assignment of error and the wife of Restony Robinson for purposes of another. Conceding for purposes of argument that the evidence would permit the jury to find that defendants were lawfully married, we nevertheless hold that the presumption in question was not available here. "When on trial for murder or treason, the wife is almost universally denied the benefit of the presumption that she was coerced." 35 N.C.L.Rev. 104. See *274 also Stansbury, N.C. Evidence 2d, § 245 at p. 597. It stands to reason that if the presumption is not available in a trial for murder, it is likewise not available in a trial for conspiracy to commit murder.
We have carefully reviewed all of defendants' assignments of error and conclude that they had a fair trial free from prejudicial error.
No error.
PARKER and VAUGHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321389/ | 190 S.E.2d 251 (1972)
15 N.C. App. 449
Ray L. SIMPSON, Plaintiff,
v.
Joe W. GARRETT, Commissioner of Motor Vehicles of North Carolina, Defendant.
No. 7227SC506.
Court of Appeals of North Carolina.
August 2, 1972.
*253 Frank Patton Cooke, Gastonia, for plaintiff appellee.
Atty. Gen. Robert Morgan by Asst. Attys. Gen. William W. Melvin and William B. Ray, for defendant appellant.
GRAHAM, Judge.
The sole ground for relief set forth in plaintiff's complaint is his sworn statement that he has not been convicted of two offenses of reckless driving. Records introduced by defendant show that during the preceding ten years plaintiff was convicted of innumerable traffic offenses, including one conviction for the offense of driving while intoxicated and four convictions for the offense of reckless driving.
The latter two convictions for reckless driving were for offenses committed within a period of twelve months. "Upon receiving a record" of an operator's or chauffeur's conviction upon two charges of reckless driving committed within a period of twelve months, the Department of Motor Vehicles is required to "forthwith revoke" the license of such person for the statutory period. G.S. § 20-17(6); G.S. § 20-19(f). The provisions of these statutes are mandatory and not discretionary. Snyder v. Scheidt, Comr. of Motor Vehicles, 246 N.C. 81, 97 S.E.2d 461.
The Department of Motor Vehicles was not authorized to revoke plaintiff's license before it received notice of his second conviction for reckless driving. State v. Ball, 255 N.C. 351, 121 S.E.2d 604. The Department acted within eleven days after it received this notice. This was reasonable compliance with G.S. § 20-17. The word "forthwith" in G.S. § 20-17 does not require instantaneous action but only action within a reasonable length of time. State v. Ball, supra.
The elapse of approximately fifteen months between plaintiff's last conviction for reckless driving and the order of revocation was not caused by defendant or his department. The delay apparently resulted from the failure of the clerk of the court where plaintiff was last convicted to act promptly in forwarding a record of the conviction to the Department of Motor Vehicles. Plaintiff could have prevented any delay in the start of the revocation period by surrendering his licenses to the clerk and obtaining a receipt therefor at the time of his second conviction. G.S. § 20-24(a) designates clerks of court and assistant and deputy clerks of court as agents of the Department of Motor Vehicles for receipt of driver's licenses in cases where revocation is required. ". . . Any operator's or chauffeur's license, which has been surrendered and for which a receipt has been issued as herein required, shall be revoked or suspended as the case may be as of the date shown upon the receipt issued to such person." Since plaintiff could have prevented the delay about which he now complains, we hold that he is entitled to no injunctive relief. It is further noted that plaintiff neither alleged nor offered proof tending to show that he has been prejudiced by the delay in question.
The judgment setting aside the notice and order of revocation and enjoining defendant from revoking or suspending plaintiff's driving privileges pursuant to the order and notice is reversed.
Reversed.
PARKER and VAUGHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321578/ | 294 S.E.2d 161 (1982)
Linda MARTIN, et al.
v.
Donald R. MULLINS, et al.
No. 15415.
Supreme Court of Appeals of West Virginia.
July 7, 1982.
*163 Charles R. Garten, Charleston, for appellants.
Boyce Griffith, Hamlin, for appellees.
*162 NEELY, Justice:
In 1976 the Lincoln County Board of Education fired five untenured school bus drivers, an untenured cook, and an untenured laborer; transferred a tenured employee of the school board; and transferred and demoted a school principal to a teaching position. These nine individuals then brought suit in the United States District Court under 42 U.S.C. §§ 1983, 1985, 1986, 1988, and directly under the First and Fourteenth Amendments to the Constitution of the United States against the Board of Education of Lincoln County, the Superintendent of Schools, and school board members Donald R. Mullins, Hurxel Woodall, and Billy Joe Smith, in their individual as well as their official capacities.
On 18 April 1978, U.S. District Court Judge Charles H. Haden, II entered a final order with regard to some of the matters in dispute. This order determined that six of the nine plaintiffs had been properly discharged, but that three others had been discharged for political reasons in direct violation of their First and Fourteenth Amendment rights as articulated in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The United States District Court ordered that the three prevailing employees be reemployed and awarded back pay from the date of their termination.[1]
*164 The plaintiffs in the civil rights action in the U.S. District Court originally sought reinstatement to their former positions, recovery of lost wages and other employment benefits, and the award of compensatory and punitive damages against the defendant board members individually. When the federal complaint and a motion for a preliminary injunction were served upon the defendant board members, they retained the Charleston law firm of DiTrapano, Mitchell, Lawson and Field to represent both the board of education as an official, collective entity and themselves individually.
The plaintiffs in the appeal before us brought an action in the Circuit Court of Lincoln County to remove the defendant members of the Lincoln County Board of Education from office on the grounds that they had improperly used county funds to pay attorneys' fees in their own defense of the federal civil rights action arising from the wrongful discharges. In addition, the plaintiffs in the removal proceeding asserted that after the U.S. District Court entered its order determining liability with regard to the three improperly discharged employees, the defendant members of the board of education voted a settlement of back pay and damages that came entirely from funds of the board of education, thus insulating the board members from personal liability. Thus, the gravamen of plaintiffs' complaint in the case before us is that the defendant board members diverted money belonging to the Lincoln County Board of Education to their own purposes in violation of W.Va.Code, 61-10-15 [1977] which provides:
It shall be unlawful for any member of a county commission, overseer of the poor, district school officer, secretary of a board of education, supervisor or superintendent, principal or teacher of public schools, or any member of any other county or district board, or for any county or district officer to be or become pecuniarily interested, directly or indirectly, in the proceeds of any contract or service, or in furnishing any supplies in the contract for, or the awarding or letting of, which as such member, officer, secretary, supervisor, superintendent, principal, or teacher, he may have any voice, influence or control....
Plaintiffs maintain that violation of Code, 61-10-15 [1977] is a removable act under W.Va.Code, 6-6-7 [1923]. Jordan v. McCourt, 135 W.Va. 79, 62 S.E.2d 555 (1950).
The Circuit Court of Lincoln County took the case under advisement based upon the pleadings, the proceedings in the U.S. District Court, the stipulated facts, and agreed statements concerning evidence to which witnesses would testify if they were in court. Upon this record the circuit court rendered judgment for the defendants on the grounds that there was no evidence that *165 the law firm retained by the board of education charged the board of education for services rendered to the defendants as individuals and because the court believed that the defendant board members were unaware that there was any obligation on their part to contribute individually to the ultimate settlement of the damage issue in the unlawful discharge case.
All of the proceedings below in the case under consideration occurred before either the circuit court or the parties had the benefit of our opinion in the case of Powers v. Goodwin, W.Va., 291 S.E.2d 466 (1982), and since many of the issues in this case concerning attorneys' fees and indemnification were not addressed within the structure that we outlined in Powers for disposing of those issues, the case is remanded for further proceedings consistent with this opinion and Powers, supra.
I
The broad statement of the law applicable to the case before us is found in syllabus points 2 and 3 of Powers, supra, where we said:
2. Where a county official incurs a loss in the discharge of his official duty in a matter in which the county has an interest, and in the discharge of a duty imposed or authorized by law and in good faith, the county has the power to appropriate funds to reimburse him, unless expressly forbidden.
3. The rules governing whether a public official is entitled to indemnification for attorneys' fees are the same in both the civil and criminal context. In order to justify indemnification from public funds the underlying action must arise from the discharge of an official duty in which the government has an interest; the officer must have acted in good faith; and the agency seeking to indemnify the officer must have either the express or implied power to do so.
The U.S. District Court spoke in its order about the defendants' "good faith" when it said:
Likewise, the Defendants are not protected by their protestations that their actions were taken in good faith. First of all, the Court finds that the terminations of the prevailing Plaintiffs could in no way be characterized as being in good faith. Even if they were, however, while the good faith defense may preclude a damage award, it is not a defense to the exaction of back pay incident to equitable relief. Wood v. Strickland, 420 U.S. 308 [95 S.Ct. 992, 43 L.Ed.2d 214] (1975); Owens [Owen] v. City of Independence, 560 F.2d 925, 940 (8th Cir. 1977).
Since, as we shall discuss in greater detail infra, our standard for determining "good faith" in the context of determining whether public officials should be indemnified for personal judgments or attorneys' fees is identical to the federal standard for determining "good faith" immunity from a personal judgment in 42 U.S.C. 1983 actions, ordinarily a federal district court order adjudicating the question of good faith should be given res judicata effect. In the case before us, however, the part of the federal court order quoted above was not dispositive of an issue then remaining before the court, namely damages.
Under 42 U.S.C. 1983 an entirely good-faith violation of a civil right can result in the type of equitable relief that was awarded the wrongfully discharged Lincoln County school employeesnamely reinstatement with back pay. Good faith becomes relevant when a personal judgment is sought against individually-named defendants, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), or when punitive damages are demanded against a state or local agency, Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977).[2] Consequently, *166 while the district court spoke to the issue of good faith, that issue was not fully developed. In fact, since the order by its very terms contemplated further proceedings before a jury to determine whether damages should be awarded against individual members of the school board, obviously further testimony focusing on the issue of good faith was expected to be forthcoming.[3] Therefore, the federal court's comment concerning good faith cannot be given res judicata effect in this proceeding.
II
In the Powers case, supra, we made numerous references to the concept of "good faith" without ever defining it in the context of this type of proceeding. We are now called upon to define "good faith" as that concept relates to indemnification for attorneys' fees and personal judgments. Obviously, if the defendants before us were acting in good faith, they committed no removable act under Powers, supra, when they reimbursed themselves for attorneys' fees.
In general our standard for determining whether an official has acted in good faith tracks the federal standard. Initially, we hold that an official is not acting in good faith when he knows or reasonably should know that actions taken within the scope of his official responsibility violate another's constitutional rights. However, a mere after-the-fact determination that a violation occurred does not necessarily demonstrate lack of good faith. As the Supreme Court said in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976):
Whenever the facts in a case are disputed, a court perforce must decide that one party's version is inaccurate. Yet it would be untenable to conclude ipso facto that that party had acted in bad faith. 427 U.S. at 183-84, 96 S.Ct. at 2600-01.
The problem of after-the-fact court determinations of civil rights violations is one of staggering dimensions. It is unreasonable to hold public officials personally liable for actions that are legal at the time they are taken but which subsequently become illegal as a result of a change in the law. This was made clear by the Supreme Court in Wood v. Strickland, supra.
Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within the sphere of official responsibilities would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. That is not to say that school board members are "charged with predicting the future course of constitutional law." Pierson v. Ray, 386 U.S. [547] at 557 [87 S.Ct. 1213 at 1219, 18 L.Ed.2d 288]. A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student's clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith. 420 U.S. at 322, 95 S.Ct. at 1001.
The rule regarding "good faith" of public officials in the context of indemnity for *167 attorneys' fees or personal judgments is correctly stated by C. Rhyne, in The Law of Local Government Operations, 1071-72 (1980) where the commentator says:
Not only must the municipal official act sincerely and in good faith, but also with a reasonable belief that his actions are lawful. A municipal official is afforded no immunity if he knows or reasonably should know that the actions he takes within the sphere of his official responsibility violate another's constitutional rights or if he takes an action with the malicious intent to cause a deprivation of rights or injury to another. Immunity is not denied to a municipal official who takes an action in good faith involving an area of the law where the existence and contours of constitutional rights are not settled.
Furthermore, the Supreme Court stated in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980):
After all, it is the public at large which enjoys the benefits of the government's activities, and it is the public at large which is ultimately responsible for its administration. Thus, even where some constitutional development could not have been foreseen by municipal officials, it is fairer to allocate any resulting loss to the inevitable cost of government borne by all the taxpayers, than to allow its impact to be felt solely by those whose rights, albeit newly recognized, have been violated. 445 U.S. at 655.
In the case before us it is important to note that the landmark case of Elrod v. Burns, supra, that articulated a constitutional right of non-policy making, non-confidential, will-and-pleasure government employees to immunity from discharge for the exercise of First and Fourteenth Amendment rights was decided by the United States Supreme Court approximately one month after the improper discharge of the Lincoln County school personnel of concern to us in this case. Consequently, if the defendant members of the board of education reasonably believed that the political firing of non-policy making, non-confidential government employees could be lawfully accomplished based upon a longstanding body of prior law, then their motives alone do not support a finding that they acted in bad faith.
The one flexible criterion in any inquiry into the question of good faith concerns whether the official "had reason to know" that his actions were illegal. As the Supreme Court stated in Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980):
As our decisions make clear, whether such immunity has been established depends on facts peculiarly within the knowledge and control of the defendant. Thus we have stated that "[i]t is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with goodfaith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." Scheuer v. Rhodes, [416 U.S.], at 247-248 [94 S.Ct. at 1691-92]. The applicable test focuses not only on whether the official has an objectively reasonable basis for that belief, but also on whether "[t]he official himself [is] acting sincerely and with a belief that he is doing right," Wood v. Strickland, supra, at 321 [95 S.Ct. at 1000]. There may be no way for a plaintiff to know in advance whether the official has such a belief or, indeed, whether he will even claim that he does. The existence of a subjective belief will frequently turn on factors which a plaintiff cannot reasonably be expected to know. For example, the official's belief may be based on state and local law, advice of counsel, administrative practice, or some other factor of which the official alone is aware. 446 U.S. at 641, 100 S.Ct. at 1924.
Actual notice of the law is a comparatively simple concept; however, whether a particular official had reason to know the law is very difficult to apply. Unfortunately the personal backgrounds of public officials are so diverse as to make it almost impossible to establish one standard of "reasonable *168 knowledge" that can be applied to all public officials. Many local officials are full-time government employees with substantial experience and access to well-trained and qualified lawyers. Others, and members of the boards of education fall into this class, are part-time, unpaid officials with little prior experience in government. As the Supreme Court stated in Owen, supra:
Doctrines of tort law have changed significantly over the past century, and other notions of governmental responsibility should properly reflect that evolution. No longer is individual "blameworthiness" the acid test of liability; the principle of equitable loss-spreading has joined fault as a factor in distributing the costs of official misconduct.
We believe that today's decision, together with prior precedents in this area, properly allocates these costs among the three principals in the scenario of the § 1983 cause of action: the victim of the constitutional deprivation; the officer whose conduct caused the injury; and the public, as represented by the municipal entity. The innocent individual who is harmed by an abuse of governmental authority is assured that he will be compensated for his injury. The offending official, so long as he conducts himself in good faith, may go about his business secure in knowledge that a qualified immunity will protect him from personal liability for damages that are more appropriately chargeable to the populace as a whole. And the public will be forced to bear only the costs of injury inflicted by the "execution of a government's policy of custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." 445 U.S. at 657, 100 S.Ct. at 1418.
Consequently, the standard of reasonable knowledge applicable to any government official must be determined by the totality of the circumstances in each individual case.
III
In Syllabus point 2 of Powers, supra, we held:
Where a county official incurs a loss in the discharge of his official duty in a matter in which the county has an interest, and in the discharge of a duty imposed or authorized by law and in good faith, the county has the power to appropriate funds to reimburse him, unless expressly forbidden.
Upon remand, the circuit court must first determine whether the defendant members of the board of education illegally discharged the school personnel in good faith, as we have defined that term above. If, indeed, the board members acted in good faith, then it is immaterial that they entered into a settlement with the aggrieved school personnel by which all of the damage issues were settled by a payment of school board funds since if any damages had been recovered against the members of the board as individuals, they would have had a right to indemnification from the board.
On the other hand, if the circuit court finds that the illegal discharges were not accomplished in good faith, as we have defined the term above, then the circuit court must further inquire whether, given the body of federal law in 1978, there was a significant likelihood that damages would have been awarded against the school board members personally rather than against the school board members in their official capacities. If there was a significant potential personal liability, the circuit court must then determine whether the settlement into which the members of the school board entered reflected an illegal diversion of school board funds for the purpose of insulating the individual defendants from personal liability.
Finally, the same principles would apply to the defendants' use of school board money to hire counsel for overall representation; however, the circuit court has already determined as a matter of fact that the board of education did not pay any attorneys' fees for the representation of the members of the board of education in their individual capacities. We see no reason to disturb that explicit ruling since all the evidence was before the court.
*169 Accordingly, for the reasons set forth above the judgment of the Circuit Court of Lincoln County is reversed and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
NOTES
[1] The order of the district court provided in pertinent part:
Inasmuch as both parties demanded a jury trial in this action, this Court may only grant permanent equitable relief in this action. Since injunctive relief may be awarded against the individual Defendants only in their official capacities, Burt v. Board of Trustees, [4th Cir., 521 F.2d 1201] supra, no relief may be awarded at this time against the individual Defendants in their individual capacities. As the Court in Burt stated:
"Since the named defendants possessed the power to reinstate and cause disbursement of back pay from public funds only in their official capacities as trustees, any judgment, to be consistent with the initial characterization as `equitable' must necessarily run against defendants as officials. Private citizens are not empowered to reinstate or order back pay out of school board or county funds." 521 F.2d at 1204.
Accordingly, this Court will grant the following equitable relief against the Board of Education under 28 U.S.C. § 1331 and against the named members of the Board and the Superintendent in their official capacities under both 28 U.S.C. § 1331 and § 1343(3): The prevailing Plaintiffs are to be reinstated to their former positions with the Board of Education within a reasonable period, not to exceed sixty days from the date of entry of this Order. The prevailing Plaintiffs are to be awarded back pay from the date of their termination until the date of reinstatement. The amount of back pay awarded shall be such as will compensate the prevailing Plaintiffs for any net pecuniary loss they may have sustained as a result of their illegal termination. Thomas v. Ward, 529 F.2d 916 (4th Cir. 1975). This amount will include any increases in salary and any pension rights, medical or health insurance benefits, or other fringe benefits which would have accrued to the benefit of the prevailing Plaintiffs had they not been illegally terminated.
This back pay award is to be paid from the funds of the Board of Education of Lincoln County. Such an award does not violate the restrictions of the Eleventh Amendment. "While the actions of counties and other subdivisions of a state generally constitute a `state action' for purposes of the fourteenth amendment, a county or other state subdivision `is not necessarily a state defendant for purposes of the eleventh amendment.'" Burt v. Board of Trustees, 521 F.2d 1201 (4th Cir. 1975), quoting from Edelman v. Jordan, 415 U.S. 651, 667 n.12, 94 S.Ct. 1347, 1357 n.12, 39 L.Ed.2d 662 (1974).
[2] In Duchesne, 566 F.2d at 831 the court stated:
A § 1983 plaintiff's burden does not vary depending upon whether he is seeking injunctive or monetary relief; the elements of the cause of action remain precisely the same. In both instances he must prove that the defendant caused him to be subjected to a deprivation of constitutional rights. But, no greater burden is imposed on the plaintiff seeking money damages. The requested relief becomes relevant only in terms of whether or not the defendant is entitled to assert good faith as a defense. (The defense is, of course, only available when money damages are sought).
See generally Developments in the LawSection 1983 and Federalism, 90 Harv.L.Rev. 1133 (1977).
[3] The district court's order was quite specific in its contemplation of further proceedings going directly to the good faith issue. The court said:
Inasmuch as the parties are entitled to seek a jury trial on the several claims for damages from the alleged violation of the Fourteenth Amendment and 42 U.S.C. § 1983 rights, none may be fixed by the Court in this aspect of the proceeding, which sounds wholly in equity. See Burt v. Board of Trustees, 521 F.2d 1201 (4th Cir. 1975). The Plaintiffs shall inform this Court whether they desire to go to trial on their damage claims within thirty days of the entry of this Order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321604/ | 165 Ga. App. 851 (1983)
303 S.E.2d 48
BOGAN
v.
THE STATE.
65289.
Court of Appeals of Georgia.
Decided March 8, 1983.
Rehearing Denied March 21, 1983.
*854 Harry J. Fox, Jr., for appellant.
G. Theron Finlayson, District Attorney, Edward D. Lukemire, Assistant District Attorney, for appellee.
SHULMAN, Chief Judge.
Appellant was convicted of attempted armed robbery and robbery by sudden snatching. In his appeal, he questions the sufficiency of the evidence and enumerates as error the denial of his motion to suppress and the failure of the trial court to conduct a hearing concerning evidence of the use of a tracking dog.
1. The evidence admitted at trial tended to show that a man carrying a gun and wearing a stocking mask entered a convenience store at midnight and ordered the attendant to give him the money in the cash register. He then grabbed the attendant's shoulder bag and ran from the store, whereupon the victim gave chase and saw him run down railroad tracks adjoining the store. A tracking dog called to the scene by a police officer followed a trail from the railroad tracks to appellant's house. When no one responded to the officer's knocks, he broke into the house and found appellant, the victim's money and purse, and a gun in close proximity to each other. This evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of attempted armed robbery and robbery *852 by snatching. Code Ann. §§ 26-1901 (a) (3); 26-1902 (a) (OCGA §§ 16-8-40 (a) (3); 16-8-41); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).
2. Appellant's motion to suppress was premised on the assertion that the police conducted an illegal warrantless search of his house.
"`The "probable cause" requirements for a search without a warrant are the same requirements necessary for the issuance of a warrant by a magistrate.'" Collins v. State, 161 Ga. App. 546, 547 (287 SE2d 708). We must, therefore, look to the parameters of police knowledge at the time the search occurred to determine if that knowledge was such as would "justify a man of reasonable caution in believing that an offense has been or is being committed, and this requires merely a probability less than a certainty but more than a mere suspicion or possibility. [Cits.]" Brown v. State, 151 Ga. App. 830, 831 (261 SE2d 717). Code Ann. § 27-303 (OCGA § 17-5-21).
At the motion to suppress hearing, various law enforcement officials testified that the tracking dog had followed a trail from the railroad tracks where the victim had last seen the robber to appellant's darkened house, which the officers recognized as the home of individuals who had been involved in criminal activities. The dog's handler testified that the animal's behavior indicated that the tracked individual had gone to the house and was either still there or had left. One of the deputies, who was also a locksmith, noticed that the doors were locked from the interior and concluded that someone was within the dwelling. Repeated knocking on the doors and announcements of the presence of police officers, however, brought no response from the building's occupants. An officer, peering through the windows with the aid of a flashlight, saw one five-dollar bill atop a pile of clothing.
While no one of the above factors in and of itself would support a finding of probable cause in this case, a consideration of the totality of the circumstances leads to the conclusion that there existed probable cause to search the house. See Garrison v. State, 122 Ga. App. 757 (178 SE2d 744).
However, "[n]o amount of probable cause can justify a warrantless search absent exigent circumstances. [Cit.]" (State v. Pidcock, 160 Ga. App. 643 (287 SE2d 647)), and the question of whether exigent circumstances precluded obtaining a warrant is one of fact to be determined by the trial court. Love v. State, 144 Ga. App. 728, 736 (242 SE2d 278). Testimony presented at the motion to suppress hearing supports the conclusion that the officers feared that evidence would be destroyed if their actions were delayed in order to obtain a warrant. Such evidence supports the trial court's denial of appellant's motion to suppress, and we must therefore uphold that *853 decision. Id.
3. Appellant also contends that the trial court erred when it refused to conduct a hearing to determine the admissibility of testimony concerning the conduct of the tracking dog used in the investigation.
It has long been established in Georgia that "[e]vidence as to the conduct of dogs in following tracks should not be admitted until after a preliminary investigation in which it is established that one or more of the dogs in question were of a stock characterized by acuteness of scent and power of discrimination, and had been trained or tested in the exercise of these qualities in the tracking of human beings, and were in the charge of one accustomed to use them. It must also appear that the dogs so trained and tested were laid on a trail, whether visible or not, concerning which testimony has been admitted, and upon a track which the circumstances indicate to have been made by the accused. When these preliminary tests have been made, the fact of tracking by a bloodhound may be permitted to go to the jury as one of the circumstances which may tend to connect the defendant with the crime with which he is charged." Fite v. State, 16 Ga. App. 22 (4) (84 SE 485).
At the motion to suppress hearing, the dog's handler testified that the animal was a bloodhound which had been trained to follow a trail and that he had used the dog over 100 times to track individuals. The attending police officer stated that the dog was placed on the railroad tracks where the robber had last been seen, and the dog handler testified that the dog picked up a track there and followed it to the house where appellant was found. The above-summarized testimony constitutes a sufficient foundation for the admission of testimony concerning the bloodhound's conduct. Fite v. State, supra.
Appellant argues that a separate hearing should have been held on the matter, since the dog's behavior was neither at issue nor challenged by appellant at the motion to suppress hearing. However, perusal of the transcript of the hearing reveals that counsel for appellant objected to testimony concerning the dog's conduct unless the proper foundation was laid. The dog handler was called as the state's next witness, and the proper foundation was laid. The testimony having been elicited during an evidentiary hearing in which appellant had the right and ability to cross-examine the witnesses, a separate hearing was not necessary.
Judgment affirmed. Quillian, P. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321610/ | 163 Ga. App. 408 (1982)
294 S.E.2d 626
ROLAND et al.
v.
BYRD.
64265.
Court of Appeals of Georgia.
Decided September 9, 1982.
Ralph C. Smith, Jr., for appellants.
Ronnie Joe Lane, for appellee.
QUILLIAN, Chief Judge.
Plaintiff brought an action in Miller Superior Court, seeking to recover damages in the sum of $43,832.00 which the defendants (d/b/a Roland Well Drilling Company) owed him pursuant to a contract between the parties under which terms the defendants were to dig two 12-inch wells and install pumps thereon. The plaintiff contended that the wells as dug and as installed by the defendants were not in working order, that there was a failure of consideration and that he had been damaged the full amount paid by him to the defendants. The defendants, on the other hand, contended they were not indebted to the plaintiff in any amount because of the terms of the contract. They urge that the contract did not guarantee production of water, and that instead it provided for certain acts to be performed by the defendants down to a certain depth, after which all *409 additional performance was at a cost set forth in the contract.
There was a separate contract for each of the two wells, but they both contain substantially similar language which reads as follows: "We hereby submit specifications and estimates for: 1-12" Well 1100 G.P.M. pump at 115 psi, up to 300 ft. deep and 200 ft. column. All drilling over 300 ft. will be $16.00 per ft. extra. All column over 200 ft. will be $300.00 per 10 ft. extra."
The case came on for trial before a jury. At the close of the evidence, the defendants made a motion for a directed verdict which was denied by the trial judge. The jury then returned a verdict in favor of the plaintiff for $15,000.00 plus all equipment already installed or on location. Subsequently, the defendants moved for a judgment notwithstanding the verdict, and, upon the trial court's overruling this motion, brought appeal to this court. Held:
The sole basis of the directed verdict, the motion for judgment notwithstanding the verdict, and the sole error enumerated in this court was predicated on the defendants' contention that the plaintiff failed to prove damages in the amount he recovered.
The general rule is that, in the absence of a provision in a well-drilling contract guaranteeing the results of the undertaking, there is no implied warranty on the part of the driller as to the quantity of water which will be obtained. It is also true that there is no implied warranty as to the quality of such water. However, there is in a well-drilling contract an implied warranty on the part of the driller that the service shall be performed in a workmanlike manner. See 78 AmJur2d 633, Waters, § 189 and cases cited therein; Anno., 90 ALR2d 1346, 1353.
The instant contracts contain no guarantee with regard to the quantity of water, or indeed, that water be found. Each contains a provision that states "all material is guaranteed to be as specified. All work to be completed in a workman-like manner, according to standard practices..."
Since contracts are to be construed in a reasonable manner and in order to effectuate the intention of the parties, the language of the present contracts can be interpreted to mean that the defendants are required to drill to at least a depth of 300 feet in search of water. After that, drilling would continue at an increased cost to the plaintiff, who would be empowered to call a halt or rescind the contract as of that point when it seemed that no water could reasonably be found. Although there is no Georgia authority precisely on this issue, courts of our sister states have interpreted contracts in which no maximum depth was specified to be based on a reasonable depth and that when that point was reached either party could in effect determine to stop without breaching the contract. See in this connection cases cited in *410 Anno., 90 ALR2d 1346, at pages 1381 and 1385.
In the case sub judice, the plaintiff's complaint sought recovery of the entire sum expended by him under the well-drilling contract. This was predicated on the theory, in effect, that there had been a total failure of consideration and that the defendants had breached the contract by failing to obtain any useable water. The proof offered on the trial of the case on behalf of the plaintiff tended to show that the defendants may have failed to accomplish the task in a workmanlike manner, but did not amount to a showing that there was a total failure of consideration. This, of course, does not mean that the plaintiff cannot recover in any amount, but does cast upon the plaintiff the burden of showing in what particulars he was damaged.
"If he relies upon a total failure he must show that the goods were wholly without value; if he relies upon a partial failure he must show the extent of the failure with such particularity and certainty that the jury (or judge) could, without guesswork or speculation, arrive at the amount." Coast Scopitone v. Self, 127 Ga. App. 124, 126 (192 SE2d 513). In a plethora of cases, this court has held "[t]he question of damages cannot be left to speculation, conjecture, and guesswork." Bobo v. Gebhardt, 154 Ga. App. 436, 437 (268 SE2d 699). Accord, Tendrift Realty Co. v. Hayes, 140 Ga. App. 896 (1) (232 SE2d 169). The jury must be able to calculate the amount of loss from the data furnished, and will not be placed in a position where an allowance of the loss is based on guesswork. Studebaker Corp. v. Nail, 82 Ga. App. 779, 785 (62 SE2d 198). "`The measure of damages in the case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it entailed. In other words, the person injured is, so far as it is possible to do so by a monetary award, to be placed in the position he would have been in had the contract been performed.'" Darlington Corp. v. Evans, 88 Ga. App. 84, 90 (76 SE2d 72). The evidence in this case shows that the defendants drilled to the depth in excess of 300 feet. Thus, the basic terms of the contract were performed. The plaintiff introduced evidence which tended to show that the defendants were negligent and at one point had to use dynamite and moriatic acid to dislodge the drill bit the defendants were using, and that they failed to find water. The evidence also showed that the plaintiff obtained the services of another well driller, who found water in the locale where the wells were drilled by the defendants. Thus, there was evidence which might be the basis for the plaintiff to recover damages from the defendants. Nevertheless, no figures were adduced on which the jury verdict of $15,000 could be predicated. Thus, the verdict cannot stand.
*411 We now must determine whether the defendants were entitled to a directed verdict. In this connection, it should be noted that the plaintiff did introduce figures authorizing a recovery in some amount, in that the plaintiff testified that he paid the defendants $1,100.00 for two or three pieces of column shaft which he never received. Since the defendants are entitled to a directed verdict only in a situation in which the plaintiff is not entitled to recover any sum as a matter of law, we find this to be a suitable case in which to exercise our discretion under Code Ann. § 81A-150 which provides: "Where error is enumerated upon an order denying a motion for directed verdict, and the appellate court determines that such motion was erroneously denied, it may direct that judgment be entered below in accordance with the motion, or may order that a new trial be had, as the court may determine necessary to meet the ends of justice under the facts of the case." Code Ann. § 81A-150 (e) (Ga. L. 1966, pp. 609, 656; 1967, pp. 226, 237, 246, 248). Gandy v. Griffin, 120 Ga. App. 100, 104 (1) (169 SE2d 651); Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 345 (226 SE2d 142); Tomlinson v. Patrick, 228 Ga. 373, 377 (4) (185 SE2d 407).
Hence, under the authority contained in Code Ann. § 81A-150 (e), the trial court is directed to grant to the defendants a new trial.
Judgment reversed with direction. Shulman, P. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321617/ | 279 S.C. 162 (1983)
303 S.E.2d 429
William M. HAYNES, Appellant-Respondent,
v.
Marie G. HAYNES, Respondent-Appellant.
21931
Supreme Court of South Carolina.
May 26, 1983.
Paul N. Uricchio, Jr., and Alan D. Toporek, both of Uricchio, Howe & Krell, Charleston, for appellant-respondent.
John J. Kerr, of Brockinton, Brockinton & Smith, Charleston, for respondent-appellant.
May 26, 1983.
*163 LITTLEJOHN, Justice:
The Plaintiff (Husband) William M. Haynes brought this action against the Defendant (Wife) Marie G. Haynes, praying for a divorce a vinculo matrimonii on the ground of separation for one year. The Wife answered interposing a general denial and requested that if a divorce were granted, a division of the marital property be made and distributed to the parties. She also asked for alimony and attorney fees. From the order detailed hereafter, both parties have appealed. We reverse.
The parties to this action were married in 1951 and lived together until November of 1977. To the union were born six children who, as of this time would be between the ages of approximately nineteen and approximately thirty-two years. The Husband is a retired Lt. Commander from the U.S. Navy and draws $1,721.60 per month as retirement pay. In addition, he is employed and earns approximately $1,000 per month. The Wife is also employed as a nurse and earns approximately $976 per month. During the marriage of some twenty-seven years, she, in addition to rearing the six children, worked for approximately eleven years and contributed her earnings to family expenses.
The trial judge held that the Husband's military retirement pay was subject to equitable distribution but in the exercise of his discretion, he declined to equitably divide the retirement pay and instead awarded the Wife $300 per month alimony and $150 per month as child support.
The Husband appeals, alleging error "... in finding that military retirement income constitutes compensation for past services and in this instance property acquired during the marital estate subject to an equitable distribution."
The Wife has appealed, alleging error in: (1) failing to make equitable division of the retirement pay; (2) in awarding alimony and child support in lieu of equitable distribution; and (3) in abusing his discretion as to the amount of alimony and child support awarded in lieu of equitable distribution.
At the time of the judge's order (1980), McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed. (2d) 589 (1981) had not been decided by the Supreme Court of the United States. That case held that military retirement funds were not marital properties subject to equitable distribution. Thereafter, the *164 Congress of the United States enacted the Uniform Services Former Spouses Protection Act, 10 U.S.C.A. § 1001 et seq., which, in effect, invalidated McCarty and permitted, but did not require, states to divide military retirement pay treating it as property in divorce proceedings.
This Court, being fully aware of both McCarty and the Act, in the case of Brown v. Brown, S.C. 302 S.E. (2d) 860 filed May 4, 1983, held:
However, the final decision concerning the treatment of military retirement funds remains with the states. We may treat them as income to the retired serviceman and therefore as a factor in determining alimony, or we may treat them as marital property subject to equitable division. We prefer to treat the fund as income and not as marital property.
We had previously, in the cases of Bugg v. Bugg, 277 S.C. 270, 286 S.E. (2d) 135 (1982) and Carter v. Carter, 277 S.C. 277, 286 S.E. (2d) 139 (1982), followed the ruling in McCarty, holding that retired military pay was not marital equitable distribution property. We said, however, in Bugg that military retirement pay "... is properly considered in determining whether alimony should be paid and, if so, in settling the amount." In Carter, we said "... the retirement fund may be considered as a factor in determining alimony."
In the light of Brown, it necessarily follows that the trial judge erred in ruling that the Husband's retirement pay was subject to equitable distribution. In the order appealed from, the trial judge did not have the advantage of the holdings of this Court in Bugg and Carter, which were decided later. While we hold that military retirement pay is not equitably distributable, we are of the view that the Wife in this case would be entitled to a substantial portion of retirement pay if such were the law in this state. There was a gross abuse of discretion in granting to the Wife only $300 per month alimony. It is apparent that the Judge did not take into consideration the military pay, but must have based the award principally upon earnings from the Husband's present employment.
*165 Insofar as the award of child support is concerned, we remand for such further orders as may be appropriate because there has obviously been a change of condition since the judge's order some four years ago.
We remand the case for a trial de novo (1) as to the amount of alimony due the Wife; (2) as to a further consideration of child support; (3) for a consideration of attorney fees. While a de novo trial is required, counsel may stipulate any part of the record before us as being appropriate for consideration in the court below.
Reversed and remanded.
LEWIS, C.J., and NESS, GREGORY and HARWELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321732/ | 226 Ga. 730 (1970)
177 S.E.2d 253
MILLER
v.
THE STATE.
25959.
Supreme Court of Georgia.
Argued September 14, 1970.
Decided October 8, 1970.
John H. Ruffin, Jr., Thomas M. Jackson, for appellant.
George D. Lawrence, District Attorney, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, Courtney Wilder Stanton, Assistant Attorneys General, for appellee.
UNDERCOFLER, Justice.
This is the second appearance of this case here. See Miller v. State, 224 Ga. 627 (163 SE2d 730), where a new trial was granted on the issue of punishment only. This appeal is from the sentence of death entered upon such retrial. Held:
1. The appellant complains of the admission of testimony by the prosecutrix and the family physician relating to the physical health and subsequent death of the prosecutrix's mother after the alleged rape. The objection was on the ground that such testimony was prejudicial and had no probative value. The appellant contends that the purpose of eliciting such evidence was to insinuate a casual connection between such death and the crime of rape with which the appellant was charged. The evidence shows that the mother was 81 years of age and in ill health at the time she witnessed the alleged rape. She died sometime thereafter.
"The jury was entitled to have presented to it all evidence in the case in order to have a complete and intelligible picture of the crime when determining the severity of the sentence to be imposed." Williams v. State, 226 Ga. 140 (5) (173 SE2d 182). The fact that the eyewitness to the crime was dead explained why she did not appear and testify and was not prejudicial to the defendant. Montos v. State, 212 Ga. 764 (4) (95 SE2d 792); Dunham v. State, 8 Ga. App. 668 (70 SE 111), Green v. State, 65 Ga. App. 754 (16 SE2d 438). There is no merit in this enumeration of error.
2. The appellant contends that the in-court identification of him by the prosecutrix should have been excluded on objection. He claims it was tainted because the prosecutrix had previously identified the appellant in the sheriff's office at a "show-up." This contention is without merit. The appellant's guilt had been established in the first trial. The instant trial was on the issue of punishment only. Miller v. State, supra; Williams v. State, supra.
3. The appellant contends that the trial court abused its discretion in permitting the State to re-open the case after it had rested and to permit witnesses not listed to testify. There is no merit in these contentions. The trial judge has wide discretion in the handling of a case and it is not error to allow the State to re-open its case after it has rested. Eberhart *731 v. State, 47 Ga. 598 (6); Johnson v. State, 85 Ga. 561 (3) (11 SE 844); Whitehead v. State, 126 Ga. 558 (1) (55 SE 404); Britten v. State, 221 Ga. 97, 100 (143 SE2d 176); Mobley v. State, 221 Ga. 716 (4) (146 SE2d 735). To invoke a ruling prohibiting the State's use of witnesses whose names were not furnished the defendant, it must appear that a demand for such names was made before arraignment. Code Ann. § 27-1403 (Ga. L. 1966, pp. 430, 431); Prather v. State, 223 Ga. 721 (1) (157 SE2d 734); Jones v. State, 224 Ga. 283 (5) (161 SE2d 302). No such demand was made in this case.
4. Error, if any, in permitting the sheriff and clerk to testify although they had remained in the courtroom after the appellant invoked the rule of sequestration at the beginning of the trial was harmless. The testimony of the sheriff related only to the custody and retention of the victim's garments for production at the trial. The testimony of the clerk related only to the custody and retention of such garments after they had been introduced in evidence on the first trial. Turbaville v. State, 58 Ga. 545 (1).
5. The appellant contends that the district attorney's summation argument was inflammatory and his motion for mistrial on this basis should have been granted. The complaint generally is that the district attorney characterizes the appellant as a brute, beast, an animal, and a mad dog who did not deserve to live. We have carefully reviewed the district attorney's argument in the light of all the evidence. We do not find that it requires the grant of a mistrial. Ozburn v. State, 87 Ga. 173, 182 (13 SE 247); Bailey v. State, 153 Ga. 413 (2) (112 SE 453); Johnson v. State, 154 Ga. 529 (1) (114 SE 713); Allen v. State, 187 Ga. 178, 181 (200 SE 109, 120 ALR 495); Hyde v. State, 196 Ga. 475, 487 (26 SE2d 744); McLendon v. State, 205 Ga. 55, 63 (52 SE2d 294); Patterson v. State, 206 Ga. 260 (3) (56 SE2d 501); Wynn v. State, 207 Ga. 141 (3) (60 SE2d 767); O'Bryant v. State, 222 Ga. 326 (149 SE2d 654).
6. The appellant contends that the court erred in proceeding with his sentencing trial without standards and guidelines and that this denied him due process of law. This contention is without merit. Miller v. State, 224 Ga. 627, 633 (163 SE2d 730); Massey v. Smith, 224 Ga. 721 (8) (164 SE2d 786); Arkwright v. Smith, 224 Ga. 764 (1) (164 SE2d 796); Jones v. State, 224 Ga. 782 (164 SE2d 831); Williams v. Smith, 224 Ga. 800 (164 SE2d 798); Alexander v. State, 225 Ga. 358 (3) (168 *732 SE2d 315); Williams v. State, 226 Ga. 140 (6) (173 SE2d 182); Arkwright v. State, 226 Ga. 192 (2) (173 SE2d 179); Lingo v. State, 226 Ga. 496 (175 SE2d 657).
7. Other enumerations of error not argued orally or by brief are deemed abandoned.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321737/ | 177 S.E.2d 644 (1970)
211 Va. 407
Carlton Morris HEFLIN
v.
COMMONWEALTH of Virginia.
Supreme Court of Appeals of Virginia.
November 30, 1970.
Joseph P. Kilgore, Amherst, for plaintiff in error.
C. Tabor Cronk, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before SNEAD, C. J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
GORDON, Justice.
Code § 19.1-191 requires that an accused be discharged from prosecution in a circuit *645 court for a felony if, after the term at which the accused is held for trial, three regular terms of court pass without a trial and without excuse specified in the statute.[1] The question on this appeal is whether that statute requires a reversal of Carlton Morris Heflin's conviction of a felony, the unauthorized use of an automobile.
Heflin was indicted and held for trial at the February 1968 term of the Circuit Court of Albemarle County. The law prescribes six regular terms for that court, beginning the first Monday in February, April, June, August, October and December. Times for the Commencement of Regular Terms, Circuit Courts of Virginia. 2 Va. Acts of Assembly 1968, at 1605, 1606; Va. Acts of Assembly 1966, at 1611, 1612; see Va. Code Ann. §§ 17-127 (1960), 30-13 (1969).
Heflin was brought to trial at the April 1969 term. His counsel then moved the court to dismiss the prosecution under Code § 19.1-191 because Heflin had not been tried within three regular terms of court. The court overruled the motion, and Heflin was convicted.
Counsel concedes that the February 1968 term, at which Heflin was indicted and held for trial, should be excluded. He concedes also that the failure to try Heflin at the December 1968 and February 1969 terms was excused by exceptions contained in Code § 19.1-191, leaving in question only the April, June, August and October 1968 terms. If three of those terms passed without excuse, we must reverse Heflin's conviction.
After hearing evidence, the trial court found that Heflin's case was continued at the April 1968 term by agreement of counsel. But since no court entry upon the record reflects any such continuance by agreement, we cannot accept that finding. See Flanary v. Commonwealth, 184 Va. 204, 35 S.E.2d 135 (1945).
The trial court concluded that the August 1968 term was excluded by clause (6) of Code § 19.1-191 because "[t]he August term is not a regular term of court at which cases are tried". But the August 1968 term was a regular term prescribed by law, and the judge's statement, even if accepted as evidence, was not to the effect that "no court" was held at that term. And in order to invoke the provisions of clause (6) of Code § 19.1-191, the Commonwealth had the burden of proving that no court was held at that term. Flanary v. Commonwealth, supra, at 210, 35 S.E.2d at 138.
*646 The record suggests no other excuse for the failure to try Heflin at the April or August 1968 term and no excuse for the failure to try him at the October 1968 term.
Because Code § 19.1-191 applies, we must set aside the jury verdict, reverse the conviction order and dismiss the prosecution.
Reversed and dismissed.
NOTES
[1] "19.1-191. Within what time an indictment for felony must be tried.Every person against whom an indictment is found charging a felony and held in any court for trial, whether he be in custody or not, shall be forever discharged from prosecution for the offense, if there be three regular terms of the circuit or four of the corporation or hustings court in which the case is pending after he is so held without a trial, unless the failure to try him was caused:
(1) By his insanity or by reason of his confinement in a hospital for the insane for care and observation,
(2) By the witnesses for the Commonwealth being enticed or kept away or prevented from attending by sickness or inevitable accident,
(3) By the granting of a separate trial at the request of a person indicted jointly with others for a felony,
(4) By continuance granted on the motion of the accused or by reason of his escaping from jail or failing to appear according to his recognizance,
(5) By the inability of the jury to agree in their verdict, or
(6) Where there be no court held at the regular term or where there is court held and for any reason it would be injudicious, in the opinion of the court, to have jurors and witnesses summoned for that term, which reason shall be specially spread upon the records of the court.
But the time during the pendency of any appeal in any appellate court shall not be included as applying to the provisions of this section." Va.Code Ann. § 19.1-191 (1960). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321757/ | 255 S.C. 42 (1970)
177 S.E.2d 4
William Edward PERRY, Jr., by Lila Perry, His Guardian Ad Litem, Respondent,
v.
MINIT SAVER FOOD STORES OF SOUTH CAROLINA, INC., Appellant.
19107
Supreme Court of South Carolina.
October 5, 1970.
*43 Messrs. R. Davis Howser and Donald V. Richardson of Whaley, McCutchen, Blanton & Richardson, of Columbia, for Appellant.
Messrs. Lee & Ball, for Columbia, for Respondent.
*44 October 5, 1970.
BUSSEY, Justice:
In the instant action the defendant, pursuant to Rule Number 87 of the Circuit Court Rules, served the plaintiff and his two brothers with notices of the taking of their respective depositions. All responded to the notices and following the taking of said depositions the defendant voluntarily paid to each of the brothers witness fees and mileage, pursuant to Section I of Rule 87, which reads as follows:
"A witness attending any deposition held pursuant to these rules shall receive $15.00 for each day's attendance and for the time necessarily occupied in going to and returning from the same, and nine cents per mile for going from and returning to his place of residence."
Counsel for plaintiff demanded the payment of like fees for the plaintiff, which demand was refused, but, in response to a motion, the lower court ordered the same paid, and the defendant appealed.
The appellant contends that the word "witness", as used in Section I of Rule 87, was intended to refer only to a witness, who was not a party, and that a party whose deposition is taken pursuant to the rule is not entitled to the payment of the fees provided for in the rule. No authority, in point, is cited for this contention and we do not agree therewith. Rule 87 provides for the taking of the testimony by deposition "of any person, including a *45 party, * * *." When a party's deposition is taken, he is, of course, for the purpose thereof, a witness as well as a party. The word "witness" is defined, inter alia, as "a person whose declaration under oath (or affirmation) is received as evidence for any purpose * * *." Black's Law Dictionary.
It is the settled law in this State that where the terms of a statute are clear and free of ambiguity there is no room for construction and the courts are required to apply such according to their literal meaning. See cases collected in West's South Carolina Digest, Statutes, 190. We know of no sound reason why this principle should not apply to a court rule as well as to a statute. We are of the view that there is no ambiguity whatever in Rule 87 as to the meaning of the word "witness", as used in Section I thereof, and that the word "witness", was intended to mean all witnesses whose depositions are taken pursuant to the rule, whether or not the witness, perchance, be a party. The word "witness" is used at various other places in Rule 87 to denote all witnesses, including parties, without making any distinction between witnesses who happen to be parties and those who are not.
The appellant argues a second question which we do not find properly before us. There is nothing whatever in the record to indicate that such question was raised or passed upon in the court below.
The exceptions of the appellant are, in our view, without merit, and the judgment of the lower court is
Affirmed.
MOSS, C.J., and LEWIS, BRAILSFORD and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321862/ | 286 S.C. 244 (1985)
332 S.E.2d 570
WESTMINSTER COMPANY, INC., Respondent,
v.
Henry C. WINGO, Derry P. Wingo and Milton Lombard, Appellants.
0516
Court of Appeals of South Carolina.
Heard April 17, 1985.
Decided June 28, 1985.
*245 Barnwell, Whaley, Stevenson & Patterson, Charleston, for appellants.
Joye, Kefalos, Waggoner & Barrow, North Charleston, for respondent.
Heard April 17, 1985.
Decided June 28, 1985.
SANDERS, Chief Judge:
Appellants Henry C. Wingo and Derry P. Wingo entered into an option agreement with respondent Westminster Company, Inc. By the terms of the agreement, the Wingos granted Westminster the right to buy a certain tract of land for a specified purchase price and Westminster paid certain funds into escrow. Appellant Milton Lombard acted as an escrow agent to hold the funds as also provided by the agreement. Westminster sued the Wingos and Lombard for the return of these funds and accrued interest, alleging that certain conditions of the agreement had not been satisfied. In addition, Westminster sued for reimbursement of attorneys' fees and costs pursuant to the agreement. The trial judge granted summary judgment for Westminster in the amount of the escrowed funds plus accrued interest, attorneys' fees and costs. The Wingos and Lombard appeal. We reverse and remand.
While the facts in this case are somewhat complicated, the result which we reach is controlled by two elementary principles of law. Summary judgment can be ordered only if there is no issue as to any material fact and further inquiry into the facts is not desirable. Coleman v. Shaw, 281 S.C. 107, 314 S.E. (2d) 154 (Ct. App. 1984). When there is a question as to the intent of the parties, the interpretation of the contract is an issue of fact for the jury. Black v. Freeman, 274 S.C. 272, 262 S.E. (2d) 879 (1980).
*246 The critical portions of the agreement entered into by the parties are paragraphs 8(g) and 8(h). So that the language of these two paragraphs can be scrutinized carefully, we restate them here, numbering their sentences:
Paragraph 8(g)
1. Optionor and Optionee understand and agree that the availability of municipal water and municipal sewer service (both in terms of providing service to the site and capacity to serve the maximum number of building units permitted by zoning) are paramount conditions of this agreement.
2. Optionee intends to use the Option period to obtain written assurances that this condition can be met.
3. Optionor will assist in this effort as requested by Optionee.
4. In addition, Optionor agrees to assign whatever rights it has or may acquire to existing or future sewer capacity being planned by the Town of Mt. Pleasant Water Works and Sewer Authority.
5. The non-availability of either or both of these utilities will void this Agreement and cause all escrowed funds to be returned to Optionee.
Paragraph 8(h)
1. Similarly, Optionor and Optionee understand and agree that the ability to access the site by building a road from U.S. Highway 17 Bypass into the site is a paramount condition of this agreement.
2. Optionee intends to use the Option period to obtain written assurances from the South Carolina Department of Highways and Public Transportation that this condition can be met.
3. Optionor will assist in this effort as requested by Optionee.
4. The non-availability of this permission to access the U.S. Highway 17 Bypass at the point where the site is contiguous to said Bypass will void this agreement and cause all escrowed funds to be returned to Optionee.
It appears from the record that there is an issue of fact as to whether the utilities referred to in paragraph 8(g) of the *247 option agreement are available. It also appears from the record that there is an issue of fact as to whether the availability of the permission to access the highway referred to in paragraph 8(h) was waived[1]. At the very least, it appears that further inquiry into the facts on these issues is desirable.
At the same time, it does not appear that there is any issue of fact regarding whether Westminster received the written assurances referred to in the second sentences of both paragraphs because the record is clear that these written assurances were not received. Therefore, the determinative question which must be addressed is the question of whether the option agreement clearly and unambiguously states the intent of the parties as to what conditions must be satisfied for the Wingos to retain the escrowed funds. If the option agreement clearly and unambiguously provides that the parties intended that the Wingos right to retain these funds is conditioned upon Westminster's receiving the written assurances referred to in the agreement during the option period, then summary judgment was properly ordered since there is no question that these written assurances have not been received. However, if the intent of the parties is not clearly and unambiguously expressed in the option agreement so that it could be construed to provide that the Wingos' right to retain the escrowed funds is conditioned upon both the availability of the utilities and the availability of the permission to access the highway, then summary judgment must be reversed since there are issues *248 of fact on the questions of whether the utilities are available and whether the availability of the permission to access the highway has been waived; or at least further inquiry into the facts on these issues is desirable.
The first sentences of paragraphs 8(g) and 8(h) provide that the availability of sewage and water and the ability to access the site by building a road from U.S. Highway 17 Bypass are paramount conditions of the contract. The second sentences of both paragraphs provide that Westminster intends to use the option period to obtain written assurances that these conditions can be met. (The third and fourth sentence of paragraph 8(g) and the third sentence of paragraph 8(h) are of no consequence.) The last sentence of both paragraphs provide that the non-availability of the utilities or the non-availability of permission to access the highway at a point where the site is contiguous to it will void the option agreement and cause the return of the escrowed funds to Westminster.
Westminster argues that the escrowed funds must be returned because the written assurances referred to in the second sentence of both paragraphs were not obtained during the option period. In other words, Westminster argues that the Wingos' right to retain the escrowed funds was conditioned upon these written assurances being obtained during the option period and, since they were not, the funds must be returned. The Wingos argue that there is an issue of fact as to whether the parties intended their right to retain the escrowed funds was conditioned, not upon the written assurances being obtained during the option period, but rather upon the availability of the utilities and the availability of the permission to access the highway.
Both arguments are persuasive. On the one hand, the second sentences of both paragraphs could be construed to express the intention of the parties that the Wingos' right to retain the escrowed funds was conditioned upon Westminster's receiving the written assurances during the option period. On the other hand, these sentences on their face do no more than express the intention of Westminster to use the option period to obtain the written assurances. Furthermore, the first sentences of both paragraphs expressly say the conditions of the contract are the availability of the *249 utilities and the ability to access the highway, and the last sentences of both paragraphs expressly say non-availability of the utilities and non-availability of the permission to access the highway are what cause the return of the escrowed funds.
For this reason, we hold that the terms of the agreement are not clear and unambiguous as held by the trial judge, and there are issues of fact as to what the parties intended as the conditions which must be satisfied for the Wingos to have the right to retain the escrowed funds; or at least further inquiry into the facts on these issues is desirable.
Because we conclude that the portion of the order granting summary judgment in the amount of the escrowed funds and accrued interest must be reversed, the remainder of the order requiring the payment of attorneys' fees and costs is vacated.[2]
Accordingly, the appealed order is
Reversed and remanded.
SHAW and BELL, JJ., concur.
NOTES
[1] Although the record is clear that permission is not available to access the highway at a point where the site is contiguous to it as specified by the last sentence of paragraph 8(h), it appears that there is an issue of fact as to whether non-contiguous access is available and whether the condition of the availability of permission for contiguous access was waived. See Brown v. State Farm Mut. Ins. Liab. Co., 233 S.C. 376, 104 S.E. (2d) 673 (1958) (conditions precedent in a contract can be waived); Campbell v. Calvert Fire Ins. Co., 234 S.C. 583, 109 S.E. (2d) 572 (1959) (where there is evidence of a waiver, the question of whether a condition of a contract was waived is an issue of fact); 17 Am. Jur. (2d) Contracts § 390 (1964) ("Strict and full performance of a contract by one party may be waived by the other party...."); 28 Am. Jur. (2d) Estoppel and Waiver § 174 (1966) ("Ordinarily, the question of waiver is one of fact for a jury. That is to say, where the evidence concerning waiver, or an element or requisite thereof, is conflicting or disputed, or where more than one reasonable inference may be drawn from the evidence, the question of waiver is one of fact for the trier of facts.").
[2] We do not reach the question of whether Westminster would be entitled to attorneys' fees and costs under the terms of the agreement should it ultimately prevail on its suit for the return of the escrowed funds. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321869/ | 226 Ga. 813 (1970)
177 S.E.2d 705
SEIBERS et al.
v.
MORRIS.
25899.
Supreme Court of Georgia.
Argued July 15, 1970.
Decided October 22, 1970.
Rich, Bass, Kidd and Broome, C. Richard Avery, for appellant.
HAWES, Justice.
In their amended complaint the plaintiffs sought to have their right to the possession of a described cemetery lot declared to be paramount over the right of the defendant; to have a wall placed around a portion of the lot by the defendant removed; to have removed certain grave markers placed thereon by the defendant; to enjoin the defendant from further interference with the plaintiffs' rights with respect thereto, and to recover damages from the defendant for his prior interference with the plaintiffs' rights. The defendant counterclaimed, in effect, seeking a declaration with respect to his rights to the lot and damages and injunctive relief. Upon the trial of the case, the jury, after hearing evidence, returned a verdict in one of the forms submitted to them in the charge of the court, finding "that neither party has shown a superior right to the other and we, therefore, find against all parties and find no damages for anyone." The plaintiffs moved for a new trial and after that motion was overruled appealed to this court from the judgment and from the order overruling the motion for a new trial. Held:
1. Prior to charging the jury, the judge indicated to counsel for the parties that he would submit as one of the forms of the verdict that might be returned by them a verdict substantially in the form above indicated. Thereafter, the court did in fact submit that form as one of the permissible verdicts. At the close of the charge and before the jury returned its verdict counsel for the parties were afforded an opportunity to object to any portions of the charge which they considered to be erroneous, but counsel for the plaintiffs made no objection to the forms of verdict thus submitted *814 to the jury in the charge. It was, therefore, too late, on motion for a new trial, to raise for the first time the contention that such form of verdict was meaningless. Ga. L. 1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078 (Code Ann. § 70-207); Irvin v. Oliver, 223 Ga. 193, 195 (154 SE2d 217).
2. While there is no procedure provided in our law for striking grounds of a movant's motion for new trial, the action of the trial court in this case, as complained of in the second ground of enumerated error, was nothing more or less than the overruling of twelve of movant's grounds of their motion for a new trial, as being without merit. Appellants do not argue in connection with the second ground of enumerated error complaining of the striking of the grounds of their motion the merits of those grounds which were stricken by the order of the court. Unless these grounds so stricken were in fact meritorious, no harm was done to the appellants' case by the action of the trial court in striking the twelve grounds of their motion for a new trial.
3. While the complaint and the answer and counterclaim of the defendant were filed after the effective date of the Civil Practice Act, they were in form and in substance drawn under the former practice and procedure, in that both the complaint and the answer and counterclaim set forth detailed allegations of the contentions of the parties with respect to the facts and issues of the case. The plaintiffs alleged that the defendant had acted in bad faith and had been stubbornly litigious, seeking on this basis damages and attorneys' fees. The defendant denied this and in response thereto alleged that, "defendant has done no act of bad faith, and has initiated no litigation whatsoever, but indeed plaintiffs have been the litigators, and that too in bad faith, solely for the purpose of extorting money to which nothing defendant has done entitles them, for which reason defendant seeks by counterclaim to recover from plaintiffs in this action after the dismissal of their complaint against the defendant the sum of $40,000 damages for trauma to his feelings and anxieties caused by this illegal, unfounded, untrue, unjust and extortionate lawsuit and the harrowing up of his sacred memories of his loved ones by these who seek only money under cloak of mourning and sacred associations." Counterclaimant also sought reasonable attorneys' fees in the sum of *815 $2,500 and court costs against plaintiffs. The defendant's "prayer" or demand for relief was simply that his motions to dismiss the plaintiffs' complaint be granted, that the plaintiffs be denied all the relief for which they prayed; that they be restrained and enjoined from further harrassing the defendant and that the defendant have judgment against the plaintiffs for $40,000, plus reasonable attorneys' fees. Nowhere in the defendant's cross complaint is there any contention that the plaintiffs were guilty of trespassing on defendant's cemetery lot, nor is there any demand that further trespass on such lot be restrained. We have carefully examined the transcript of the evidence, and nowhere do we find in the transcript, either in the evidence of defendant or by way of a statement on the part of counsel for the defendant, made in the numerous colloquies between the court and counsel, any contention that the plaintiffs had been guilty of trespass.
Moreover, it appears that during the course of a colloquy between the court and counsel had upon the argument of the defendant's motion for directed verdict at the close of the plaintiffs' evidence and before the defendant had begun to put in his evidence, counsel for the plaintiffs succinctly summarized the issues in the case. Counsel for the defendant made no objection to that statement nor did he make a contrary statement as to the issues. As we view the pleadings, the evidence and the colloquy between the court and counsel (including the uncontradicted statement of counsel for the plaintiffs, above referred to), the real issue in the case revolved around the identity of the bodies interred in two graves adjacent to the site wherein the defendant had admittedly had the body of his mother interred in April, 1966. Immediately to the south of that interment the plaintiffs contended that the body of their mother had been buried in December, 1936, while the defendant contended that the body of his brother, Clyde Morris, was interred there in 1936. Immediately to the south of the latter gravesite the plaintiffs contended that the body of their sister, Susan Turner, had been interred in 1918, and the defendant contended that the body of his sister, Mary Morris, had been interred there in 1911. In Turner v. Joiner, 77 Ga. App. 603 (1a) (48 SE2d 907), it was held: "When the body of a deceased person is buried in a cemetery in which no particular right of easement *816 for burial purposes has been granted to anyone, and the title to the cemetery is vested by prescription in the heirs at law of those already buried therein only by virtue of such burial, the rights of the heirs at law who perform the burial, in respect to the grave, is paramount to all persons except any who can show a superior title, or right of easement for burial. The right of action for trespass on such a grave is in the heirs at law of the person buried there." If the plaintiffs' contentions were correct, under the principles there stated, the plaintiffs, as the heirs at law of the persons buried in those gravesites, are entitled to maintain monuments, to have the control and care of such gravesites and, without interference from the defendant in their so doing, to remove monuments placed upon such graves by the defendant and to remove the wall around them which had been placed there by the defendant. If the defendant's contentions are correct, then he is entitled to continue to maintain the monuments which he has placed upon the gravesites and to maintain the wall around the gravesites without interference from the plaintiffs. This was the only issue in the case, since the plaintiffs conceded that the defendant, having accomplished the interment of his mother in a grave adjacent to the two disputed sites, could continue to maintain that grave and the monument thereon without interference from the plaintiffs, and the defendant likewise conceded that the plaintiffs could maintain the grave of their father which had been placed immediately to the north of his mother's grave without any interference from him.
The court, however, undertook to instruct the jury as complained of in grounds of enumerated error Nos. 10, 11, 12 and 13 to the effect that the issue between the parties was whether the defendant, in burying his mother on the lot had trespassed upon the property of the plaintiffs or whether the plaintiffs, in burying their father upon the lot, had trespassed upon the property of the defendant. This was simply not the issue made by the pleadings or the evidence, and it was harmful error for the court to confuse the issues which the jury was to try by injecting such issue into the case in its charge to the jury. The plaintiff timely objected to the charge on this issue and that objection should have been sustained. A charge which confuses the issues in the case and injects into the case issues not made by the pleadings *817 or the evidence has the effect of minimizing in the minds of the jury the real issues which they are to decide and is presumptively harmful to the losing party. Atlantic C. L. R. Co. v. Coxwell, 93 Ga. App. 159, 166 (91 SE2d 135); Smith v. Goodwin, 103 Ga. App. 248, 250 (119 SE2d 35); Ryder Truck Rental v. Gianotos, 113 Ga. App. 81, 83 (147 SE2d 448); Hightower v. Ansley, 126 Ga. 8, 13 (54 SE 939, 7 AC 927); Ezell v. Mobley, 150 Ga. 257, 261 (103 SE 238). These grounds of enumerated error require the grant of a new trial.
4. We have carefully considered the remaining grounds of enumerated error and find no merit in any of them.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321875/ | 177 S.E.2d 405 (1970)
277 N.C. 255
STATE of North Carolina ex rel. UTILITIES COMMISSION, Lee Telephone Company (Applicant) and Commission Staff (Intervenor), Appellees,
v.
Robert MORGAN, Attorney General of North Carolina (Intervenor in behalf of the Using and Consuming Public of North Carolina), and Walkertown Telephone Exchange Committee (Protestant), Appellants.
No. 10.
Supreme Court of North Carolina.
November 18, 1970.
*410 Atty. Gen. Robert Morgan, Deputy Atty. Gen. Jean A. Benoy and Maurice W. Horne, Sp. Asst. Atty. Gen., for appellant.
Edward B. Hipp, Raleigh, for appellee North Carolina Utilities Commission.
Burns, Long & Wood, by Richard G. Long, Roxboro, Ross, Hardies, O'Keefe, Babcock, McDugald & Parsons, by Melvin A. Hardies and Donald W. Glaves, Chicago, Ill., and Duane T. Swanson, Lincoln, Neb., for appellee Lee Tel. Co.
LAKE, Justice.
In February 1965, this Court remanded to the Utilities Commission a proceeding instituted by Lee Telephone Company in 1963 for an increase in its rates for service in North Carolina. The Commission was directed to hold a further hearing in accordance with G.S. § 62-133 and the opinion of this Court. State ex rel. Utilities Commission v. Lee Telephone Co., 263 N.C. 702, 140 S.E.2d 319. It is presumed that, pursuant to such direction, the Utilities Commission then fixed rates which were fair and reasonable in view of conditions then prevailing. Such rates would, necessarily, include adequate allowances for maintenance and for depreciation of the company's properties and would provide a return upon the fair value of those properties sufficient to enable the company to attract capital for necessary expansion of its plant.
The petition filed with the Commission in the present proceeding states that on 6 June 1968 the Commission granted a further rate increase to Lee. No appeal having been taken therefrom, it is presumed that the rates then fixed were, in the light of conditions then prevailing, fair and reasonable, yielding to the company a return upon the fair value of its properties sufficient to attract capital, under then prevailing conditions, after making adequate provision for maintenance and depreciation of its properties. G.S. § 62-132. Four months thereafter the company filed with the Commission its petition in the present matter.
In this proceeding the Commission has found that the company's service is "poor" and "substandard," and that this condition "reflects the failure of the company to take those steps necessary for the improvement of toll service, local central office service, proper maintenance and the reduction of unsatisfactory multiparty main station service as is economically feasible, as well as its failure to eliminate traffic overloads on toll trunks, extended area service trunks and central office equipment groups, and its failure to take sufficient action to improve transmission and reduce noise levels." (Emphasis added.)
A public utility, which has been allowed to charge rates sufficient to enable it to maintain its properties, in addition to the earning of a fair return thereon, and which nevertheless permits its properties to fall into such a poor state of maintenance as to impair the quality of its service, must accept the responsibility for its resulting inability to render adequate service to its patrons. Having been granted a monopoly in its franchise area, the utility is under a duty to render reasonably adequate service. G.S. § 62-131(b); G.S. § 62-42.
The identity of Lee Telephone Company was not changed by the transfer of its stock in 1965 from the former stockholders to Central Telephone & Utilities Corporation (erroneously designated by the Commission as Central Telephone Company, the name of another subsidiary of Central Telephone & Utilities Corporation). Lee's *411 responsibility for its failure to maintain its plant, and for the resulting impairment of its ability to render adequate service, is not avoided by the change in stock ownership. The condition of the telephone plant and the resulting quality of service rendered is not, as the Commission called it, an "inherited problem" of the new stockholder. It is a condition acquired by purchase. Lee's brief states that when the new stockholder acquired control of Lee, "following four years of litigation, Lee's plant margins were virtually exhausted." It is not contended that the new stockholder was unaware of this circumstance when it purchased the controlling interest in Lee or when, as shown in its brief, it subsequently increased its ownership to 99.8% of the outstanding common stock.
Lee's brief states that the new stockholder immediately began "an extensive rehabilitation, expansion and service improvement program." (Emphasis added.) There is nothing to indicate that the new stockholder was not aware of the neglect of maintenance of the properties during the extended litigation related to its acquisition of the stock. The record is replete with testimony by subscribers to the service to the effect that, since 1965, the service has been grossly inadequate and characterized by marked indifference to complaints from subscribers. The Commission has found, in July 1969, that it is still "poor" and "substandard." Nevertheless, the Commission approved, over the vigorous dissent of two of its members, another substantial increase in the rates which the subscribers must pay for this service. The dissenting Commissioners state that the rates so approved for the "substandard" service are "the highest general telephone exchange rates in the State of North Carolina."
The Attorney General contends that if the "substandard" quality of the service is the result of inefficient management, as distinct from inability to attract capital, no rate increase should have been allowed by the Commission. Lee contends that the Commission may not lawfully refuse to approve rates which would yield to it a fair return on the fair value of its properties, regardless of the quality of its service. The Utilities Commission contends that the allowance of a rate increase, otherwise justifiable, is within its discretion, though the service be of substandard quality. To resolve this question, which has not previously been before this Court, we turn to the statutes governing the regulation of public utility rates. G.S. c. 62.
G.S. § 62-133 sets forth in detail the steps to be taken by the Commission in fixing rates to be charged by a public utility in this State. Paragraph (b) provides that in fixing such rates the Commission shall do the following things: (1) Ascertain the fair value of the property used and useful in providing the service; (2) estimate the revenue to be received under the present and the proposed rates; (3) ascertain the utility's reasonable operating expenses, including depreciation; (4) fix the rate of return on the fair value of the property such as will enable the utility, by sound management, to produce a fair profit for its stockholders, to maintain its facilities, and to compete in the market for capital on reasonable terms; and (5) fix rates to be charged for the utility's services such as will earn such return in addition to reasonable operating expenses. If this paragraph stood alone, there would seem to be merit in the contention of the company. It does not, however, stand alone.
Paragraph (a) of G.S. § 62-133 provides that in fixing rates "the Commission shall fix such rates as shall be fair both to the public utility and to the consumer." Paragraph (d) of this section provides, "The Commission shall consider all other material facts of record that will enable it to determine what are reasonable and just rates."
G.S. § 62-2 declares the policy of the State, which it is the purpose of the entire chapter to put into effect, as follows:
"Declaration of Policy.Upon investigation, it has been determined that the *412 rates, services and operations of public utilities * * * are affected with the public interest and it is hereby declared to be the policy of the State of North Carolina to provide fair regulation of public utilities in the interest of the public, to promote the inherent advantage of regulated public utilities, to promote adequate, economical and efficient utility services to all of the citizens and residents of the State, to provide just and reasonable rates and charges for public utility services without unjust discrimination * * * and to these ends, to vest authority in the Utilities Commission to regulate public utilities generally and their rates, services and operations, in the manner and in accordance with the policies set forth in this chapter." (Emphasis added.)
G.S. § 62-32 confers upon the Commission general supervision over the rates charged and services rendered by all public utilities in this State and vests in the Commission "all power necessary to require and compel any public utility to provide and furnish to the citizens of this State reasonable service of the kind it undertakes to furnish and fix and regulate the reasonable rates and charges to be made for such service."
G.S. § 62-42 provides that whenever the Commission, after notice and hearing, finds that the service of any public utility is inadequate, the Commission shall enter an order directing that "additions, extensions, repairs, improvements, or additional services or changes shall be made or affected [sic] within a reasonable time prescribed in the order."
G.S. § 62-131 reads as follows:
"Rates must be just and reasonable; service efficient.(a) Every rate made, demanded or received by any public utility, or by any two or more public utilities jointly, shall be just and reasonable.
"(b) Every public utility shall furnish adequate, efficient and reasonable service."
The clear purpose of chapter 62 of the General Statutes is to confer upon the Utilities Commission the power and the duty to compel a public utility company to render adequate service and to fix therefor reasonable rates pursuant to the procedure prescribed in G.S. § 62-133.
It is not reasonable to construe G.S. § 62-133(b) to require the Commission to shut its eyes to "poor" and "substandard" service resulting from a company's wilful, or negligent, failure to maintain its properties or to heed complaints from its subscribers when the Commission is called upon by the company to permit it to increase its rates for its inadequate service. We reject the contention of the company upon this question.
It does not follow, however, that the Commission is forbidden to grant any rate increase to a company whose service is inadequate, even though the inadequacy be due to a wilful, or negligent, failure by the company to perform its duty. The statutes confer upon the Commission, not upon this Court, the duty and authority to determine adequacy of service and reasonable rates therefor. State ex rel. North Carolina Utilities Commission v. Westco Telephone Co., 266 N.C. 450, 146 S.E.2d 487; State ex rel. Utilities Commission v. Champion Papers, Inc., 259 N.C. 449, 130 S.E.2d 890; State ex rel. Utilities Commission v. State and State ex rel. Utilities Commission v. Southern Bell Telephone & Telegraph Co., 239 N.C. 333, 80 S.E.2d 133. The authority of the Court of Appeals and of this Court in reviewing an order of the Utilities Commission is limited to that conferred by G.S. § 62-94. Assuming adequate findings of fact, supported by competent, substantial evidence, we find nothing in the provisions of chapter 62 of the General Statutes which makes it unlawful for the Commission, in the exercise of its sound *413 administrative discretion, to conclude that an increase in rates is warranted, notwithstanding existing service inadequacy due to the company's neglect of its properties, and that such increase is an appropriate step in the improvement of the service. This appears to be the prevailing view in other states. See: Baltimore Transit Co. v. Public Service Commission of Maryland, 206 Md. 533, 112 A.2d 687; City of Lexington v. Public Service Commission of Kentucky, 249 S.W.2d 760 (Ky.); Village of Apple River v. Illinois Commerce Commission, 18 Ill.2d 518, 165 N.E.2d 329.
There are infinite degrees of inadequate service and many differences in the causes of such deficiencies. The ultimate question for determination is, What is a reasonable rate to be charged by the particular utility company for the service it proposes to render in the immediate future? The determination of this question is for the Commission, in accordance with the direction of G.S. § 62-133. Serious inadequacy of such service, found by the Commission upon substantial evidence, is one of the facts which the Commission is required by that statute to take into account in making that determination. The Commission's determination reached pursuant to the mandate of G.S. § 62-133 and to the statutory procedural requirements, may not be reversed by the Court of Appeals or by us merely because we would have reached a different conclusion upon the evidence.
It is otherwise if it does not appear from the order of the Commission that these statutory mandates have been obeyed. In State ex rel. Utilities Commission v. Public Service Co., 257 N.C. 233, 125 S.E.2d 457, the Commission, in fixing the rate base of a public utility, said, "In so finding we have considered all factors required by G.S. 62-124 [the predecessor to the present G.S. § 62-133] and all other facts which we feel have bearing upon our conclusionwithout reference to any specific formula." This Court, reversing the Commission, said:
"The statute gives the Commission the right to consider all other facts that will enable it to determine what are reasonable and just rates. The right to consider `all other facts' is not a grant to roam at large in an unfenced field. The Legislature properly understood that, at times, other facts may exist, bearing on value and rates, which the Commission should take into account in addition to those specifically detailed in G.S. § 62-124. However, it was contemplated that such facts be established by evidence, be found by the Commission, and be set forth in the record to the end the utility might have them reviewed by the courts."
In this respect it is, of course, immaterial whether the party seeking judicial review be the utility or its adversary. In the present case, the Commission has said in its order:
"The statutory rate-making formula is controlling in this matter. We have considered the substandard quality of service being rendered by Lee as one element bearing upon the value of its utility investment and the rate it should be permitted to earn * * *."
The Commission then stated that the company had made progress in improving its service and the Commission was taking the approach of procuring continued improvement by "fixing just and reasonable rates under our statutory formula." We are unable to determine from the record what specific effect the Commission gave to the poor quality of the existing service in reaching its conclusion that some but not all of the requested rate increase should be allowed. The order does not indicate what increase in rates would have been approved had the service been found adequate. The findings, conclusions and order of the Commission do not, therefore, disclose that in this respect the Commission acted arbitrarily or that its conclusion is in excess of its statutory authority or is affected by an error of law, nor do they disclose the contrary.
We turn now to see how the Commission proceeded in "fixing just and reasonable *414 rates under our statutory formula." It determined what it designates as "the original cost rate base applicable," which it fixed at $4,158,121 as of the end of the test period. It then found the "trended original cost rate base" to be $5,009,100. It then found the fair value of the company's property to be $4,500,000.
We note, in passing, the error of terminology. It is incorrect to speak of "the original cost rate base" and the "trended original cost rate base." See State ex rel. Utilities Commission v. State and State ex rel. Utilities Commission v. Southern Bell Telephone & Telegraph Co., supra. There is but one rate basethe fair value of the public utility's property used and useful in providing the service rendered to the public within this State, which value the Commission must determine as of the end of the test period. G.S. § 62-133. The original cost of the properties is simply evidence to be considered in making this determination. The replacement cost, whether determined by use of trended cost indices or otherwise, is also but evidence of the fair value of the properties.
A public utility is not entitled to rates which will enable it to earn a fair return on either the original cost or the replacement cost, per se. "Although the sense in which the courts use the phrase `fair value' is less definite than it should be, it seems clear that the term does not cover money stupidly, extravagantly, or corruptly spent. If a utility has been seriously overbuilt, or its promoters have been seriously overpaid, the law does not intend that its customers shall be saddled with the payment of interest on the money thrown away." Edgerton, Value of Service as a Factor in Rate Making, 32 Harvard L.Rev. 516.
In the present case, the Commission has found as facts that the properties owned by Lee prior to the acquisition of its stock by the present stockholder "were engineered in such a way as to engender [the inadequate] service," that "the plant was inadequate and inefficient" and the company had failed to maintain it properly. The brief filed by Lee in this Court states that following such stock acquisition the company embarked upon a program for "extensive rehabilitation." Neither the original cost nor the reproduction cost may properly be taken as the present fair value of telephone properties which were improperly engineered, have not been properly maintained and, consequently, are in need of extensive rehabilitation.
The testimony of Lee's vice president shows that, from the date of acquisition of control of Lee by Central Telephone & Utilities Corporation to the end of the test period used by the Commission, Lee made "gross additions" to its plant in the amount of $1,859,000. Of this amount, $709,000 was added during the last five months of the test period. Obviously, the replacement cost at the end of the test period of these "gross additions" to plant, less normal depreciation, would be little, if any, more than the original cost thereof.
The Commission found that at the end of the test period the company's "gross plant and plant under construction" (actual investment, with no deduction for depreciation and exclusive of working capital) was $5,312,766. Subtracting the "gross additions" made from the stock transfer to the end of the test period, it is apparent that the undepreciated original investment in the poorly engineered, poorly maintained properties owned prior to the stock transfer and still in service at the end of the test period was $3,453,766. The Commission found that the "applicable depreciation reserve," virtually all of which would, in the nature of things, be attributed to the older properties, was $1,245,088. The depreciation reserve is, of course, accumulated on the basis of the normal life of properties, assuming normal maintenance and with no allowance for inadequate engineering. Attributing only $1,000,000 of this depreciation reserve to the older properties, the company's net investment therein at the end of the test period would not have exceeded $2,453,766.
*415 The Commission's finding of $5,009,100 as the "trended original cost" of the entire properties obviously includes an allowance of $90,443 for working capital, leaving $4,918,657 as its computation of the "trended original cost" of the entire plant, less depreciation. Subtracting from this figure, the entire "gross additions" made from the time of the stock transfer to the end of the test period, it is clear that the Commission must have estimated the "trended original cost" (less depreciation) of the poorly engineered, poorly maintained property to have been at least $3,059,657 at the end of the test period. Of course, neither the actual depreciation reserve on the company's books nor the "trended depreciation reserve" used by the Commission in these computations reflects any of the abnormal depreciation due to the poor engineering or the poor maintenance. Thus the Commission's computation of the "trended original cost," depreciated, of these poorly engineered, poorly maintained properties was at least $605,891 in excess of their actual original cost less the reserve for normal depreciation.
The Commission's final conclusion was that the fair value of the total properties used and useful in providing the service was $4,500,000. This includes its allowance of $90,443 for working capital, leaving $4,409,557 as the "fair value" of the telephone plant. Again, subtracting from this figure the entire $1,859,000 of "gross additions" from the stock acquisition to the end of the test period, we have a remainder of $2,550,557 allowed by the Commission in the rate base as the fair value of the poorly engineered, poorly maintained properties said by the company itself to be in need of extensive rehabilitation. The full actual cost of these properties, less only normal depreciation was, as above shown, not in excess of $2,453,766. In view of the evidence and the Commission's findings as to the condition of these properties, the Commission's finding as to the fair value of the company's properties at the end of the test period must be deemed unsupported by substantial evidence in the record.
The Commission found that during the calendar year 1968 Lee Telephone Company purchased materials, supplies and equipment from Centel Service Company. Centel is a wholly owned subsidiary of Central Telephone Company. Central Telephone Company is, in turn, a subsidiary of Central Telephone & Utilities Corporation, the owner of 99.8% of the common stock of Lee Telephone Company. The Commission found that upon Lee's purchases, for its North Carolina operations, from Centel in the calendar year 1968 Centel derived a profit of $39,621. The test period used by the Commission in this proceeding, however, was the twelve months ending May 31, 1968. There is no finding by the Commission concerning sales by Centel to Lee during the test period, and no evidence from which such finding could be made. The Commission's finding with reference to the transactions between Lee and Centel is, therefore, meaningless so far as the reasonableness of the rates established by the Commission's order is concerned.
The Commission found that Centel was incorporated in June 1967. Thus it was in existence throughout all or substantially all of the test period. Centel manufactures nothing. Its sole function is to purchase materials, supplies and equipment for resale to operating companies within the Central Telephone system. According to Lee's brief, Centel's pricing policy is to sell to the operating companies at prices comparable to those which would be paid if the same materials were purchased through other distributors. The record shows Centel's total paid in capital is $1,000. In 1968, the first full calendar year of its existence, Centel paid to its single stockholder dividends of $971,964 and at the end of 1968 had a surplus of $112,958.
The Attorney General contends that the profits made by Centel on its sales in 1968 to Lee Telephone Company for its North Carolina operations, $39,621, should have been credited by the Commission to Lee's net operating income, from its North Carolina operations in the test period, for *416 rate making purposes. If this were done, a smaller rate increase than that allowed would be required to produce the net operating income necessary to constitute a fair return upon the fair value of the company's properties as found by the Commission. The theory of the Attorney General's argument is that the prices paid by Lee for the materials, supplies and equipment purchased are reflected in its statement of its operating expenses for the test period and, therefore, the operating expenses are overstated by the amount of $39,621, with the result that the net operating income is understated by that amount.
In the instant case, the contention of the Attorney General must fail for two reasons. First, only those purchases for operating materials and supplies, including current maintenance, are chargeable to operating expense. The purchases for plant construction go into the account for investment in plant, not to operating expense, an overcharge, if any, to investment in plant does not affect the net operating income. While such overcharge would improperly add to the account for original cost of the plant, which is an item to be considered in computing the rate base, it actually would not affect the rate base directly, since the rate base is the fair value of the plant, not the cost of it. There is in this record no evidence whatever to support a finding as to how much of the profit derived by Centel from its sales to Lee, for North Carolina operations, was made on purchases for use as operating supplies, including current maintenance, and how much was made on purchases for additions to plant. Second, the evidence in the record relates to profits made by Centel on Lee's purchases from it in the calendar year 1968. There is no finding, and no evidence in the record which would support a finding, as to Centel's profits on sales to Lee during the test period.
It is well established that the doctrine of the corporate entity may not be used as a means for defeating the public interest and circumventing public policy. Henderson v. Security Mortgage & Finance Co., 273 N.C. 253, 260, 160 S.E.2d 39; Estridge v. Denson, 270 N.C. 556, 565, 155 S.E.2d 190; Terrace, Inc. v. Phoenix Indemnity Co., 243 N.C. 595, 598, 91 S.E.2d 584. In order to prevent such a result, a parent corporation and its wholly owned subsidiaries may be treated as one. Obviously, an operating telephone company may not justify its application for a rate increase by showing on its books expenditures for materials and supplies in excess of the amount actually paid therefor. For example, Lee Telephone Company, when operating independently, might have purchased certain items in large quantity because of its combined operations in North Carolina and Virginia. Having done so, it could not charge its North Carolina operations with a higher price for such materials than it actually paid therefor, irrespective of the fact that the price so charged might be no higher than would have been paid if the small volume, purchased for use in North Carolina alone, had been purchased separately. In the present case, we refrain from expressing an opinion as to whether a parent company, operating numerous wholly owned subsidiary telephone companies, may establish an additional wholly owned subsidiary to purchase materials in large quantities at favorable prices, due to volume, and then resell to its operating subsidiaries at a higher price and thus enhance the operating expenses of the subsidiary companies for their respective rate making purposes. Upon the present record, that question is not presented and it was not determined by the Commission or by the Court of Appeals.
The Commission included in the rate base property under construction at the end of the test period in the amount of $318,052. Obviously, such property did not produce any operating income during the test period. As an offsetting adjustment, the Commission added to the company's operating revenue for the test period interest charged to construction during the test period. This is a practice *417 which the Commission has followed for many years. It is commonly accepted in utility rate making. See: Petition of New England Telephone & Telegraph Co., 115 Vt. 494, 66 A.2d 135; City of Lynchburg v. Chesapeake & Potomac Telephone Company, 200 Va. 706, 107 S.E.2d 462. While not the exact equivalent, the addition to the company's operating income during the test period of interest charged to construction is an approximation of the income reasonably to be expected from the properties under construction when placed in service. Nevertheless, this practice cannot be followed in view of G.S. § 62-133(c) which reads as follows:
"(c) The public utility's property and its fair value shall be determined as of the end of the test period used in the hearing and the probable future revenues and expenses shall be based on the plant and equipment in operation at that time." (Emphasis added.)
Thus the plant under construction at the end of the test period should not have been included in the rate base and the item of interest during construction should not have been added to the company's operating income during the test period. The result of correcting these offsetting errors will be minimal and would not, alone, justify a remand of the matter to the Commission for further consideration. G.S. § 62-94(c) provides that upon appeal from an order of the Commission due account shall be taken of the rule of prejudicial error.
We find no merit in the Attorney General's contention that the Commission erred in its computation of the addition to the rate base for working capital. The basis of the contention is that the company bills its customers for local services for one month in advance. It is true that where the customers of a public utility, in the payment of their bills, provide the company with funds in order to enable it to meet expenses, which it will not have to pay until some time in the future, these funds, being available to the company for working capital, are to be credited to its need therefor. The rate base should include working capital supplied by the company but not funds supplied by its customers. State ex rel. Utilities Commission v. State and State ex rel. Utilities Commission v. Southern Bell Telephone & Telegraph Co., supra. This principle is not, however, applicable to the present case. While the company bills its customers for local service one month in advance, the record does not show when these bills are actually paid so as to place the money in the hands of the company for use. The Attorney General estimates that they are paid not later than the middle of the month. If so, by the time of payment, half of the month's service has been rendered. Thus the effect is the same as if payment for the service were made as it is rendered and there is no substantial accumulation of funds in the hands of the company for the payment of expenses at some future time.
The Commission said in its order that it had considered the substandard quality of the service being rendered by Lee as an element bearing upon the value of its property and upon the rate of return it should be permitted to earn thereon. Nothing in its order indicates the effect given thereto by the Commission. The order does not show wherein, or the extent to which, the determination of the fair value of the properties or of the rates for service are different from what they would have been had the service been excellent and had the properties been in a high state of efficiency and maintenance.
Under the unusual circumstances of this case, the Commission should make specific findings showing the effect upon its decision of the inadequacy it found in the service and the deficiencies it found in the engineering and maintenance of the properties. The Commission may not lawfully "ignore the duty imposed upon it by statute," as suggested in its order, by reason of the company's poor service, nor does *418 it discharge that duty by a mere statement that it has considered the matter, without showing the effect given to it. Such finding or conclusion is necessary to enable a reviewing court to determine whether the duty imposed by statute has been performed.
The judgment of the Court of Appeals which affirmed the order of the Commission is reversed, and the matter is remanded to that Court with direction that it enter a judgment reversing the order of the Utilities Commission and remanding the matter to it for further consideration in accordance with this opinion upon the present record or after such further hearing as the Commission shall deem proper.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321878/ | 175 Ga. App. 22 (1985)
332 S.E.2d 299
ANDREWS
v.
THE STATE.
69840.
Court of Appeals of Georgia.
Decided April 29, 1985.
Rehearing Denied June 4, 1985.
*27 Jack J. Menendez, for appellant.
Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.
DEEN, Presiding Judge.
In December 1983 a Cobb County jury found appellant William Donald Andrews guilty of aggravated assault and aggravated battery in connection with a shooting incident that had occurred in August of 1980. On the day following the incident, investigating officers, acting on probable cause based on interviews with eyewitnesses, obtained a warrant for the arrest of appellant Donald Andrews and his brother Ronnie Andrews, both of whom had been implicated by the eyewitness testimony. Appellant was not apprehended until September of 1981, or more than a year after the incident. In December of that same year, three months after the arrest, the state dismissed the warrant as against appellant for insufficient evidence to sustain a conviction. The determination of insufficiency of evidence was apparently attributable to some confusion on the part of the witnesses, resulting from the similarity of the brothers' names.
In January 1983, more than one year after the dismissal of the warrant against appellant and approximately two and one-half years after the time of the alleged offense, appellant's brother Ronald was arrested on the August 1980 warrant, and in May of that year an indictment was returned charging both Donald and Ronald with aggravated assault and aggravated battery. A warrant for appellant's arrest on both charges was issued in August 1983, and he was arrested on September 24, 1983. Shortly thereafter he was indicted on a separate and unrelated charge of aggravated assault. The latter charge is not involved in this appeal.
*23 Less than one month after his arrest on the August 1983 warrant, appellant on October 17, 1983, filed a motion to dismiss on the ground that his speedy trial rights had been violated. After a hearing the court denied the motion, and the case went to trial December 12, 1983. After being convicted on both counts, appellant was sentenced to fifteen years and eight months' incarceration, seven years' probation, and restitution in the amount of $10,727.45. His motion for new trial on the general grounds was denied, and on appeal he enumerates five errors pertaining to an alleged abrogation of his speedy trial rights: (1) the trial court erred in holding that actual prejudice must be shown in order to warrant dismissal on speedy trial grounds, and in holding (2) that no prejudice was shown; (3) the court further erred in holding that it was necessary for appellant actually to assert his speedy trial rights in order to obtain dismissal on speedy trial grounds; (4) the court was in error in ruling that speedy trial rights do not attach until the accused is indicted; and (5) the court erred in denying the motion to dismiss the indictment. Held:
OCGA § 17-7-170 (a) provides that "[a]ny person against whom a true bill of indictment . . . is found . . . may enter a demand for trial at the court term at which the indictment . . . is found or at the next succeeding regular court term thereafter . .." The statute further provides (section (b)) that "[i]f the person is not tried when the demand is made or at the next succeeding regular court term thereafter, . . . he shall be absolutely discharged and acquitted of the offense charged . . ."
It is well settled in Georgia law that the protection conferred by the statute, supra, attaches with the formal indictment or accusation. Hall v. Hopper, 234 Ga. 625 (216 SE2d 839) (1975). Georgia courts have further held, however, that over and above the statutory provisions, supra, Sixth Amendment rights to speedy trial attach upon arrest, Natson v. State, 242 Ga. 618 (250 SE2d 420) (1978); Haisman v. State, 242 Ga. 896 (252 SE2d 397) (1979); and, moreover, that the due process clause of the Fifth Amendment also causes these rights to attach coincidentally with arrest. State v. Hight, 156 Ga. App. 246 (274 SE2d 638) (1980). Appellant contends that his speedy trial rights attached in August 1980, at the time of the shooting incident, and alleges that the interval between the incident and his being brought to trial in December 1983 constitutes an impermissible forty-month delay which triggers his statutory and constitutional protections.
In Georgia, there are at least six protectors of a person's right to have the state try him within a reasonable time after an offense is committed or be precluded from doing so. One is the statute of limitations with regard to criminal charges. No doubt such Georgia statutes have the same purpose recognized by the United States Supreme Court as related to federal statutes: ". .. `the applicable statute of *24 limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges'" and so guards against prejudicial pre-accusation delays. United States v. Marion, 404 U. S. 307, 322 (92 SC 455, 30 LE2d 468) (1971). Appellant does not invoke that protection here, nor could he, because it is patent that the indictment was returned within four years of the offenses. OCGA § 17-3-1 (c) (Ga. Code § 26-502). "In criminal cases, the statute of limitation runs (subject to special circumstances) from the time of the criminal act to the time of indictment . . . , not from [the] time of [the] act to time of the trial." Hall v. Hopper, 234 Ga. 625, 626, supra.
A second protection is the statute requiring trial of an indictment within two terms of court at which a jury is available, when a demand for trial is made. OCGA § 17-7-170, supra. Again, this statutory device affords appellant no banner because it runs from the return of the indictment or filing of the accusation. Here the indictment was returned in May and defendant was tried in December. Although that was apparently beyond two terms, defendant had not filed a demand for trial and in fact did not want one; instead, in October he had moved to dismiss the indictment for lack of speedy trial, which violation he claimed had already matured.
The third protection is the Constitution of the State of Georgia. The 1976 Constitution was in effect at the time, but defendant did not invoke its guarantees. Although his motion asserts violation of due process of the United States and Georgia constitutions, he fails to specify the section referred to in the latter unendingly long document. He filed no brief to substantiate or specify by citation his superficial state constitutional claim, and he failed to address it at all in the hearing below. Nor has he raised it in any manner in this court. Thus compliance with its tenets is not at issue here. Belger v. Exchange Bank, 148 Ga. App. 275 (251 SE2d 22) (1978); Kent v. Hunt & Assoc., 165 Ga. App. 169 (299 SE2d 123) (1983).
Next we come to the United States Constitution. The sixth amendment right to a speedy trial relates to the period of time between the date of arrest, or when formal charges (indictment or accusation) are brought, whichever is earlier, and the date of trial. United States v. Marion, supra at 307; Dillingham v. United States, 423 U. S. 64 (96 SC 303, 46 LE2d 205) (1975). This applies to state prosecutions as well, through the fourteenth amendment. Harris v. Hopper, 236 Ga. 389, 390 (224 SE2d 1) (1976), citing Klopfer v. North Carolina, 386 U. S. 213 (87 SC 988, 18 LE2d 1) (1967). In the instant case, the indictment on which defendant was tried was returned August 13, 1983. He was arrested September 24 and tried December 12. In determining whether his sixth amendment right was abrogated, the four-prong test of Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1974), must be applied. Haisman v. State, 242 Ga. 896, *25 supra. There is no necessity to go through each of the factors, since defendant was not complaining that the four-month period between indictment and trial was constitutionally infirm.[1]
The fifth protection would be the speedy trial provision of the Georgia Constitution. At the time, it was contained in Art. I, Sec. I, Par. XI: "Every person charged with an offense against the laws of this State . . . shall have a public and speedy trial by an impartial jury." But it was not invoked even nominally by defendant and for good reason. It would not apply because it becomes "operative when the accused is charged." Hall v. Hopper, supra at 626 (citing "Code Ann. § 2-105," referring to the paragraph in the Constitution of 1945 which contained the speedy trial clause).
Now, what defendant did assert below and calls upon here is a sixth protection, the due process clause of the fourteenth amendment of the federal constitution. Although not clearly articulated, the cases cited and arguments made in the trial court and here, and the trial court's ruling, demonstrate this as the primary shield upon which defendant relied.
The United States Supreme Court has held that where the delay occurs in the investigative stage before either arrest or indictment, due process, not sixth amendment, standards apply. United States v. Lovasco, 431 U. S. 783 (97 SC 2044, 52 LE2d 752) (1977); United States v. MacDonald, 456 U. S. 1 (102 SC 1497, 71 LE2d 696) (1982). The latter at pages 7 and 8 repeats the reason that the sixth amendment's speedy trial provision is not applicable: "`Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.'" United States v. Marion, supra at 320. Although those cases dealt with the fifth amendment due process clause, which applies to federal cases, Schweiker v. Wilson, 450 U. S. 221, 226 n. 6 (101 SC 1074, 67 LE2d 186) (1980), our appellate *26 courts have applied the same standard to fourteenth amendment due process claims involving state prosecution. State v. Hight, 156 Ga. App. 246, supra; Armour v. State, 140 Ga. App. 196 (230 SE2d 346) (1976); State v. Madden, 242 Ga. 637 (250 SE2d 484) (1978). In both, the court applied the test which federal courts adhere to for fifth amendment due process cases: did the delay cause actual substantial prejudice to defendant's right to a fair trial? And was the delay an intentional device to gain tactical advantage over the accused?[2]
Relating those questions to appellant's case, he has shown no violation of his right to due process pursuant to the federal constitution by the trial of the charge forty months after the offenses occurred. The explanations for the delay, and the absence of evidence compelling a finding of substantial prejudice, support the trial court's rulings in this case. As said in United States v. Lovasco, supra at 790: "But the [federal] Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment. Judges are not free, in defining `due process,' to impose on law enforcement officials our `personal and private notions' of fairness and to `disregard the limits that bind judges in their judicial function.' Rochin v. California, 342 U. S. 165, 170 (1952). Our task is more circumscribed. We are to determine only whether the action complained of here, compelling respondent to stand trial after the Government delayed indictment to investigate further violates those `fundamental conceptions of justice which lie at the base of our civil and political institutions,' Mooney v. Holohan, 294 U. S. 103, 112 (1935), and which define `the community's sense of fair play and decency,' Rochin v. California, supra, at 173. See also Ham v. South Carolina, 409 U. S. 524, 526 (1973); Lisenba v. California, 314 U. S. 219, 236 (1941); Hebert v. Louisiana, 272 U. S. 312, 316 (1926); Hurtado v. California, 110 U. S. 516, 535 (1884)."
The record in the case sub judice, including the multiple volumes of transcript, indicates that in the fact situation obtaining here, neither appellant's statutory right to a speedy trial nor any of his constitutional due process or speedy trial rights has been abrogated. Our study of the record persuades us that appellant's speedy trial rights were in no way violated, and that the judgment of the trial court was without error.
Judgment affirmed. Pope and Beasley, JJ., concur.
NOTES
[1] In one case, State v. Weeks, 136 Ga. App. 637, 639 (222 SE2d 117) (1975), the court applied the Barker v. Wingo tests exclusively and in tandem to a claim under both the federal and the state constitutions. Adopting the same test for the state constitution as the United States Supreme Court fashioned for the federal constitution does not mean that the state guarantee is identical or is to be identically construed. Its meaning is always finally up to the Supreme Court of Georgia. 1983 Georgia Constitution, Art. VI, Sec VI, Par. II (1). Michigan v. Long, ___ U. S. ___ (103 SC 3469, 77 LE2d 1201) (1983).
[2] According to United States v. Marion, supra at 325-326, the prejudice which is referred to is "actual prejudice to the conduct of the defense"; the "real possibility of prejudice inherent in any extended delay" is not enough. In addition to the infirmity of a motive of tactical advantage, Marion also points to harassment as a prohibited basis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321849/ | 211 Va. 410 (1970)
RICHARD W. DAVIS, ATTORNEY, AND ELMER L. BARTON
v.
VINCENT L. SEXTON, JR., JUDGE OF THE CIRCUIT COURT OF GILES COUNTY, VIRGINIA.
Record No. 7546.
Supreme Court of Virginia.
November 30, 1970.
Present, Snead, C.J., Carrico, Gordon, Harrison, Cochran and Harman, JJ.
Municipal judge Davis was prohibited by court order from practicing law in circuit court of County. Statute does not authorize prohibition nor does rule-making power of circuit judge. Blanket prohibition, not based upon evidence, is not within discretion of circuit judge. Practice of law by judge of court not of record is not on its face incompatible with proper administration of justice.
Petition for Writ of Mandamus.
Richard W. Davis; Kenneth I. Devore (Edwin C. Stone, on brief), for petitioners.
Russell N. Carneal, for the Judicial Conference of the Courts not of Record and the Association of Judges of the County and Municipal Courts of Virginia, amicus curiae.
John W. Crews, Assistant Attorney General; Anthony F. Troy, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for respondent.
GORDON
GORDON, J., delivered the opinion of the court.
Elmer L. Barton engaged Richard W. Davis, a licensed attorney at law and also Municipal Judge for the City of Radford, to defend him on a felony charge pending in the Circuit Court of Giles County. After Barton had engaged Judge Davis, Judge Vincent L. Sexton, Jr. entered an order prohibiting Judge Davis from practicing criminal law in the Circuit Court so long as Davis holds a judicial position in *411 this State. The order also removed Judge Davis as counsel of record for Barton in the pending case.
The order recited: "It has been this Court's ruling and practice that County and Municipal Judges, as well as Commonwealth Attorneys, should not practice criminal law in this Court or any other courts of the Twenty Second Judicial Circuit of the Commonwealth by reason of the office they hold and the prestige that that office would give to the defense. This has been the ruling of this Court for many years and has been strictly adhered to." [1]
Petitioners Barton and Davis ask us to issue a writ of mandamus directing respondent Judge Sexton to permit Judge Davis to practice criminal law in the Circuit Court of Giles County and to permit Judge Davis to represent Barton in the pending case. Judge Davis concurs in principle in Judge Sexton's opinion that judges should not practice law. He says, however, that he and many other judges of courts not of record must practice law to supplement the inadequate salaries paid them as judges. And he contends that Virginia law permits him to practice law.
The Attorney General seeks to support the respondent's action as falling within his statutory rule-making power and his inherent judicial authority.
The Legislature has enacted two statutes to regulate the practice of law by judges of courts not of record. Code | 16.1-10 forbids any such judge from acting as counsel in any case that is pending in his court or began in his court. [2] Code | 16.1-11 forbids judges of courts not of record of certain cities and counties from practicing law. [3]
Neither statute authorizes the respondent's action concerning Judge Davis. Code | 16.1-10 does not forbid a judge of the City of Radford, such as Judge Davis, from appearing as counsel in a criminal case in the Twenty-second Judicial Circuit, and Code | 16.1-11 does not apply to a judge of the City of Radford.
Code | 8-1.3 authorizes courts to prescribe rules "to promote proper order and decorum, the convenient and efficient use of courthouses and clerks' offices and the orderly management of court dockets", provided that no rule shall be made "which is inconsistent with or in addition to any statutory provision, or the Rules of the Supreme Court of Appeals . . .". Va. Code Ann. | 8-1.3 (Supp. 1970). [4] In this statute the General Assembly expressly limited its grant of rule-making power by excluding rules "inconsistent with or in addition to any statutory provision". The General Assembly has seen fit to adopt statutes regulating the practice of law by judges of courts not of record. Because the rule adopted by Judge Sexton adds to these regulations, the rule does not fall within his statutory rule-making power. [5]
The Supreme Court of Illinois has declared the practice of law by a judge "incompatible with his judicial responsibilities and duties and contrary to public policy." Bassi Langloss, 22 Ill.2d 190, 194, 174 N.E.2d 682, 684 (1961). Accordingly, that court, exercising its inherent power "to deal with an attorney whose activities present a conflict of interest which would impede the proper administration of justice", id., held prospectively that no judge should be permitted to practice law in Illinois.
Judge Davis properly concedes that under its inherent power a court in a given case may, upon evidence that the appearance of an attorney would present a conflict of interest that would impede the proper administration of justice, forbid an attorney from appearing in the case. We are concerned, however, with a blanket prohibition based not upon evidence, but upon judicial notice that the practice of *413 law by any judge is incompatible with the proper administration of justice.
We are of opinion that the practice of law by judges of courts not of record, as permitted by Virginia law, is not on its face incompatible with the proper administration of justice. The action taken by the respondent was therefore not within his discretion. The respondent having denied Judge Davis the rights to practice criminal law and to represent Barton only because Davis is a judge, we will issue a writ of mandamus directing that Judge Davis be permitted to practice criminal law in the Circuit Court of Giles County and to represent Barton in the case pending in that court.
Writ awarded.
NOTES
[1] By "County and Municipal Judges", the order referred to judges of courts not of record. Judge Sexton is judge of three courts of record, the Circuit Courts of the Counties of Giles, Bland and Tazewell, which comprise the Twenty-second Judicial Circuit.
[2] "| 16.1-10. Limitations on practice of judges who are attorneys. -- No judge of a court not of record shall appear as counsel in any case, civil or criminal, pending in his court or on appeal or removal therefrom; nor shall he appear as counsel in any civil case which involves substantially the same evidence and circumstances as were involved in a criminal case tried before him or in which a preliminary hearing was held before him; nor shall he accept or receive any claim or evidence of debt for collection when the enforcement thereof is within the exclusive original jurisdiction of his court." Va. Code Ann. | 16.1-10 (1960).
[3] The Report of the Virginia Court System Study Commission to the Governor and the General Assembly of Virginia (1970) recommended the enactment of a new statute providing that no court should permit any judge of a court not of record to act as defense counsel in any criminal case. Bills to that effect were introduced at the 1970 Session of the General Assembly but did not pass. S.B. 330 and H.B. 577 Va. General Assembly 1970. *412
[4] Although Code | 8-1.3 is part of Chapter 1 of Title 8 of the Code, entitled "General Provisions as to Civil Cases", neither the Act that added that section nor the title of the Act limits the provisions of the section to civil cases. Va. Acts of Assembly 1970, ch. 366 at 594. The Act also repealed Code | 16.1-25, which authorized courts not of record to make reasonable rules of practice "not in conflict with law". Va. Code Ann. | 16.1-25 (1960).
[5] In view of this holding, we need not decide whether Judge Sexton's rule promotes "proper order and decorum, the convenient and efficient use of courthouses and clerks' offices [or] the orderly management of court dockets" so as to fall within the scope of Code | 8-1.3. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321956/ | 255 S.C. 1 (1970)
177 S.E.2d 5
Fred ROLLINS, Jr., Respondent,
v.
WUNDA WEVE CARPET CO. and Aetna Casualty & Surety Co., Appellants.
19095
Supreme Court of South Carolina.
August 20, 1970.
*2 Messrs. Love, Thornton, Arnold & Thomason, of Greenville, for Appellants.
Richard J. Foster, Esq., of Greenville, for Respondent.
*3 August 20, 1970.
LEWIS, Justice.
This is a Workmen's Compensation case. The appeal is from an order of the lower court affirming an award of the Industrial Commission to respondent for permanent partial disability to his right arm. The Hearing Commissioner awarded respondent thirty percent specific loss of use of his right arm, which was, upon review, increased to forty percent by the Full Commission. The appellants, employer and insurance carrier, contend that (1) there was no competent evidence to support the award and (2) the Full Commission increased the award for disability without a proper consideration of the record.
Respondent sustained a fracture of his right elbow on July 28, 1968 in a motorcycle accident which was not related to his work. Subsequently, on November 22, 1968, respondent sustained an injury to his right shoulder and arm while at work. This injury allegedly resulted from a jerk and strain of his arm and shoulder. It occurred as he stepped from a platform to a lower level and was unable to release a drop cord to which he was holding. The accident was shortly thereafter reported to the employer, and respondent was sent to a physician for medical attention. Respondent testified that, because of pain and weakness in the shoulder and arm, he stopped work on December 3, 1968. He was out of work until January 12, 1969 at which time he secured a job, at less pay, which did not necessitate the full use of his right arm. The Commission made a factual finding that the jerk and strain to the shoulder and arm aggravated the preexisting injury to the right elbow, resulting in a permanent partial disability to the right arm; and made an award on that basis.
Appellants take the position that there was no testimony of any probative value to establish a causal connection between the accident to respondent's arm and shoulder on November 22, 1968 and the condition which caused the *4 present disability. This contention is based upon the premise that, in view of the pre-existing injury, the foregoing issue was so technically complicated as to require for its determination medical testimony alone.
The medical testimony need not be reviewed. It is sufficient for the present determination to state that it negatived any causal connection between the accident on November 22nd and the present disability in respondent's arm. Significantly, however, there is medical testimony to sustain the conclusion that respondent suffered no permanent disability from the fracture to the elbow on July 28th.
The findings of causation by the Commission were based upon the testimony of claimant and the observable facts and circumstances in evidence. Our inquiry then is whether these facts and circumstances are sufficient to sustain such finding or whether the issue was so complicated as to require medical testimony for its determination.
This case presents again the troublesome question as to the probative effect to be given conflicts between medical and lay testimony on the question of causal connection between an accident and the physical condition producing disability. We have recognized that there are conditions which the lay mind is not competent to pass upon and in such scientific fields reliance must be had upon expert evidence alone.
There are however situations where the injury occurs soon after the accident, are observable to the ordinary person, and the circumstances are such that the lay mind may draw a reasonable inference of causation. In such cases, a finding of causal connection may be sustained even though in conflict with the medical testimony. Ballenger v. Southern Worsted Corp., 209 S.C. 463, 40 S.E. (2d) 681.
Circumstantial evidence may be sufficient to support a finding as to causation in a Workmen's Compensation case and whether the presence or absence of medical testimony is conclusive depends upon the particular *5 facts and circumstances of the case. Grice v. Dickerson, Inc., 241 S.C. 225, 127 S.E. (2d) 722.
The present inquiry concerns disability to the right arm and its causal connection to the accident sustained to the arm and shoulder on November 22nd. There had been a prior injury to the right elbow on July 28th. The testimony of respondent and the doctors sustains the conclusion that respondent recovered from this prior injury and, although there was a slight limitation of movement in the elbow, was able to lift, push, and pull with his right arm without pain or difficulty.
The jerk to the shoulder and arm on November 22nd caused the shoulder to begin hurting immediately, with pain occurring in the elbow a day or so thereafter. A knot or protrusion, which did not exist before, appeared on top of the right shoulder within a day or two and has increased in size. It was described by the Hearing Commission, from his observance, as about the size of a quarter and protruded about one-third of an inch or more, with a reddish appearance. Respondent testified as to the limitation in movement and use of his arm, which did not exist prior to the last accident. The Hearing Commissioner described the limitation in movement of the right arm as follows:
"The employee demonstrates about twenty-five per cent loss of flexion in his elbow joint. He also demonstrates that he cannot raise the arm above waist level. And in his forward elevation, he's only about one-fourth of normal. And backwards is only about one-fourth to one-third normal. He can bring his right arm across his chest and touch his left elbow, but he demonstrates he he cannot touch his left shoulder.
The Commissioner in questioning the respondent developed the following:
"Q. Can you put your arm back of your head, like this?
"A. No.
"Q. How do you comb your hair?
*6 "A. I don't; that's the reason I keep it cut that way.
"Q. * * * Now is your arm muscles getting any smaller in that arm?
"A. Well, its real swollen more swollen than anything else."
A medical report by Dr. Joseph Hodge, to whom respondent went only for evaluation of his condition, was placed in evidence. His examination supported the findings of the Hearing Commissioner as to the limitation of motion in respondent's arm. Dr. Hodge placed the total physical impairment to the right arm at approximately 50 percent. He stated his conclusions from the examination as follows:
"Impression. 1) post traumatic dislocation of the right elbow joint with injury to the lateral ligaments of the right elbow joint and annular ligament of right elbow with stretching of the right brachial plexus with residual motor weakness of the right hand." Such conclusion by Dr. Hodge was not inconsistent with the finding of the Commission that respondent's condition resulted from the jerk and strain of the shoulder and arm.
We think that the finding by the Commission of a causal connection between the accident of November 22nd and the respondent's disability has support in the record. There is evidence to sustain the fact of the accident and the subsequent disability. The accident was to the right arm and shoulder where the injury developed soon thereafter. A knot developed on the shoulder, accompanied by pain in the shoulder and elbow, all in the area receiving the jerk and strain. Respondent testified that his arm was swollen. An award for disfigurement was made to respondent based upon the carriage of the arm and shoulder and the resulting appearance of lameness. The fact of disfigurement is not in issue in this appeal. Under all of the facts the resultant injury or disability was not invisible, but was to an appreciable degree subject to observation and such that the lay mind could draw a reasonable inference of causation. As stated in the Ballenger *7 case, supra, "the injury was so naturally and directly connected with the accident that proof of causality does not depend upon expert evidence."
We have held that the extent or percentage of loss of use of respondent's arm was not so technically complicated as to require medical testimony for its determination, and appellants so concede. See Bundrick v. Powell's Garage, 248 S.C. 496, 151 S.E. (2d) 437; Dickey v. Springs Cotton Mills, 209 S.C. 204, 39 S.E. (2d) 501.
Appellants contend, however, that, since the award was based upon a finding of aggravation of the pre-existing injury to the elbow, medical testimony was required to establish the degree or percentage of disability attributable to the respective injuries. Assuming the correctness of appellants' position, it would not affect the award in this case. The medical testimony was to the effect that there was no disability resulting from the first accident. The Commission was entitled to accept this as a fact. The medical testimony, that no disability resulted from the first injury, afforded a factual basis for a determination that all of respondent's present disability resulted from the last injury. We, therefore, cannot say that the award by the Commission of a forty percent disability had no support in the medical evidence.
The last question concerns the action of the Full Commission in increasing the amount of the award for disability. The Hearing Commissioner determined that respondent suffered a thirty percent permanent partial disability. The majority (three) of the Full Commission increased the award for disability to forty percent. Appellants contend that the Full Commission increased the award for disability solely by observation and that this was error. Such contention is based upon a statement following the Opinion and Award of the Full Commission, and signed by two Commissioners, to the effect that the award of the Hearing Commissioner was amended "to increase disability of right *8 upper extremity, by observation, to 40 percent." (Emphasis added.)
Appellants do not contend that the Commission was without authority to make its own independent findings from the record (See Green v. Raybestos-Manhattan, Inc., 250 S.C. 58, 156 S.E. (2d) 318); but take the position that the Commission had no authority to do so solely by observation of the respondent. We do not so interpret the action of the Commission.
The formal order of the majority of the Commission contains the recital that the disability award of the Hearing Commission was increased "after hearing arguments for both parties and observing claimant and after careful consideration of all of the evidence in the case." The order of the Commission must be construed as a whole and, when so considered, shows that their decision was not based solely on their observation of the respondent but, in addition, upon all of the evidence in the case.
Affirmed.
MOSS, C.J., and BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645853/ | 9 So.3d 616 (2009)
BLACKBURN
v.
STATE.
No. 1D09-0580.
District Court of Appeal of Florida, First District.
May 22, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1733570/ | 367 So. 2d 675 (1979)
Roy Allen FALIN, Appellant,
v.
The STATE of Florida, Appellee.
No. 77-1737.
District Court of Appeal of Florida, Third District.
February 6, 1979.
Rehearing Denied March 9, 1979.
*676 Fine, Jacobson, Block, Goldberg & Semet, Theodore Klein, Miami, for appellant.
Jim Smith, Atty. Gen., and Anthony C. Musto and Paul Mendelson, Asst. Attys. Gen., for appellee.
Before PEARSON, KEHOE and SCHWARTZ, JJ.
SCHWARTZ, Judge.
The appellant was the co-defendant of Betty Jean Winchell, whose convictions for possession of various items of contraband we considered in Winchell v. State, 362 So. 2d 992 (Fla. 3d DCA 1978). On this appeal, Falin primarily contends that the circumstantial evidence against him was insufficient to support his convictions for the same offenses of which Ms. Winchell had also been found guilty: possession of marijuana, cocaine, methaqualone and a narcotic implement. We agree with this contention and reverse the judgment below.
The facts of the case were accurately summarized in the Winchell opinion at 362 So.2d 993-994:
"... Roy A. Falin, was stopped by the police in North Bay Village for the purpose of inquiring as to his presence in the area and to obtain some identification. As a result of this inquiry, Falin was arrested for not having a valid driver's license. Falin seeking to establish his identity, advised the officer that he was staying with a girl friend (appellant) in room 112 at a Holiday Inn located in North Bay Village. After taking Falin to the police station, a police officer and his sergeant went to the motel to verify the information given by Falin. After checking with the desk clerk, the officers found that the room was registered to Falin, but noted for occupancy by two persons. The officers then proceeded to the room and knocked on the door. Appellant opened the door and, in plain view, the officers saw, among other things, several bags of marijuana, a scale, a pipe, and a box of sandwich bags. After making this observation from outside the room, the officers then entered the room, seized the marijuana and pipe, and arrested appellant for possession of a controlled substance. While appellant was sitting down in the room, the officers observed a firearm in an open suitcase at her feet. The pistol was seized and turned out to be a BB gun which was a replica of a German Luger. In seizing the pistol, two more bags of marijuana in the suitcase were seized. Also, a bag containing cocaine, which was wrapped inside a brown paper bag was seized. During this time, no other search was made. Instead, the room was then sealed by the officers and a search warrant was obtained from the circuit court to search the room. The search conducted pursuant to the warrant revealed additional contraband, including one tablet of methaqualone found in a corner of the room lying on the rug and a bag of cocaine found secreted inside the back of a radio ..."
Of prime significance in the consideration of this case is the fact that, unlike Winchell who was in the hotel room when the contraband in question was seized, Falin was in a police station miles away. There was no direct proof whatever as to when he had last been in the room, or whether the drugs and implements had even been present at the same time that he was, much less whether he knew about or had the ability to control them.
While, as we held in Winchell, at 362 So. 2d 995, it was demonstrated that Falin was in joint possession of the room where all the contraband was found, there is plainly insufficient evidence of his knowledge and constructive possession of any of the items themselves. Winchell v. State, supra, at 362 So. 2d 995;[1]Sindrich v. State, 322 So. 2d 589 *677 (Fla. 1st DCA 1975); Frank v. State, 199 So. 2d 117 (Fla. 1st DCA 1967). His conviction therefore cannot stand.
In arguing, as it must, that the circumstantial evidence eliminates all reasonable hypotheses of innocence, Davis v. State, 90 So. 2d 629 (Fla. 1956); State v. Hayes, 333 So. 2d 51 (Fla. 4th DCA 1976), the state points primarily to two items of circumstantial evidence Falin's admission that he owned the BB gun which was found in the suitcase with the two bags of marijuana and his silence in response to a police officer's question as to whether the drugs which had been found "belonged to him." The state's reliance is not justified. Clearly, the BB gun, like any other item of personal property, may have been transported by someone other than the owner; the fact that Falin owned it does not even exclude the hypothesis that he did not know that the gun was present, let alone a lack of knowledge about the drugs. As to the so-called "admission by silence," even the authorities cited by the state demonstrate that silence constitutes no more than what is itself mere circumstantial evidence of guilt. As stated in Martinez v. United States, 295 F.2d 426, 429 (10th Cir.1961):
"An admission may be inferred from silence, where the silence is improper or unnatural ..." [emphasis supplied]
In this case, Falin's silence about the ownership of the drugs is just as reasonably attributable to his desire not to say that they belonged to his friend, Ms. Winchell, as to his unwillingness to admit that they belonged to him.
In sum, there is no evidence in the record which eliminates the perfectly reasonable hypothesis of innocence that the drugs and implement came into the room without Falin's knowledge and, indeed, after he had already left. See also Arant v. State, 256 So. 2d 515 (Fla. 1st DCA 1972). The judgment below is therefore reversed and the cause remanded with directions to discharge the defendant.
Reversed and remanded.
NOTES
[1] In Winchell we reversed even the co-defendant's convictions for possession of the methaqualone tablet and the cocaine found in the suitcase and in the radio, because of insufficient evidence of knowledge and constructive possession. Her convictions for possession of marijuana and the narcotics implement were affirmed only because they were in her plain view on top of the dresser when she was arrested in the room. The former holding applies, in spades, to Falin. The latter holding obviously, however, has no application whatever to his situation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1321972/ | 122 Ga. App. 520 (1970)
177 S.E.2d 814
BALDWIN
v.
HAPPY HERMAN'S INC. et al.
45394.
Court of Appeals of Georgia.
Argued June 1, 1970.
Decided September 9, 1970.
Rehearing Denied September 29, 1970.
Peek, Whaley & Haldi, Glenville Haldi, for appellant.
Richardson, Chenggis & Constantinides, Platon P. Constantinides, for appellees.
BELL, Chief Judge.
On the second appearance of this case, we reversed the judgment entered against the defendant, The Lamas Company, Inc., on the grounds that the lower court erroneously substituted this corporation as a defendant; that it had never been served with process; and accordingly, the judgment against it was void. Lamas Company v. Baldwin, 120 Ga. App. 149 (169 SE2d 638). Certiorari was denied by the Supreme Court on October 1, 1969. 120 Ga. App. 886. Thereafter in October, 1969, the plaintiff, Baldwin, filed a motion to add the corporation as a defendant. Service of process was made upon it on December 11, 1969. The trial court on December 18, 1969, granted plaintiff's motion making the corporation a party defendant. This defendant filed a motion to dismiss on the grounds that the complaint failed to state a claim against it upon which relief can be granted and that the complaint shows on its face that the claim is barred by the statute of limitation. The motion was granted on both grounds. The original complaint sought recovery in contract for work performed from April 13 to August 19, 1965. Code § 3-706, provides for a fouryear period of limitation in this type action. Plaintiff on appeal only argues the issue of the running of the statute of limitation. He contends that the prior appeals by the defendant in this case tolled the statute. Plaintiff relies on the Supreme Court decisions in Atlanta, Knoxville &c. R. Co. v. Wilson, 119 Ga. 781 (47 SE 366) and Lamb v. Howard, 150 Ga. 12 (102 SE 436) and our recent decision in Southern R. Co. v. Pruitt, 121 Ga. App. 530 (174 SE2d 249) as authority for his position. These cases all considered a construction of the renewal statute (Code Ann. § 3-808) and are clearly distinguishable from the factual situation existing here as the renewal statute and those cases only apply to voidable suits, and not to those wholly void. Cutliffe v. Pryse, 187 Ga. 51 (1) (200 SE 124). Our last decision established as the law of the case that the judgment entered against this defendant was void. A void judgment is an absolute nullity and it does not prevent the running of the statute. Williamson v. Wardlaw, 46 Ga. 126; Edwards v. Ross, 58 Ga. *521 147. As no valid action was ever commenced by plaintiff against this defendant within the period of limitation, plaintiff is barred and the judgment below is
Affirmed. Quillian and Whitman, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322006/ | 122 Ga. App. 514 (1970)
177 S.E.2d 824
LEDBETTER BROTHERS, INC.
v.
HOLMES et al.
45372.
Court of Appeals of Georgia.
Argued June 1, 1970.
Decided September 9, 1970.
Rehearing Denied September 29, 1970.
Peek, Whaley & Haldi, J. Corbett Peek, Jr., Glenville Haldi, for appellant.
Long & Siefferman, Calhoun A. Long, Floyd E. Siefferman, Jr., for appellees.
*515 BELL, Chief Judge.
1. The court read to the jury the portion of plaintiff wife's complaint containing the specific allegations of negligence charged against the defendant. The trial court made it clear to the jury that the allegations were merely the contention of the plaintiffs, were not evidence, and that it was the jury's duty to determine whether the allegations constitute negligence under the facts and circumstances of the case. It is not improper in a charge to the jury to state the contentions made by the allegations in the complaint, even though some of the contentions be unsupported by the evidence. Limbert v. Bishop, 96 Ga. App. 652 (101 SE2d 148). This ground of error is without merit.
2. At the close of the evidence, plaintiffs submitted, in writing, four requested instructions. These instructions in general pertained to the duty of every driver of a vehicle to reduce speed when approaching and crossing a street; the duty of a vehicle driver to drive at a reasonable speed under the existing conditions and to keep his vehicle under reasonable control to avoid collision with other users of the highway; and the duty of a driver about to enter a street from a private way to yield the right of way to all vehicles approaching on the street or highway. All of these instructions were tailored to mean that if the defendant's driver breached these various duties the defendant would be guilty of negligence. After argument the trial court charged as requested except for two modifications made at the request of defendant. The defendant excepted to all of these instructions, contending that while all were correct general principles of law the court's charge was erroneous as the manner in which they were given made them applicable only to the defendant whereas they applied equally to the deceased. Defendant's counsel made no requests in writing to adjust these instructions to fit the defendant's case even if the evidence authorized the adjustment. On appeal a party may not complain about the court's failure to charge where no written requests to charge were received prior to arguments to the jury. Code Ann. § 70-207 (b); Curtis v. State, 224 Ga. 870 (9) (165 SE2d 150).
3. The trial court instructed the jury on the duty of a vehicle driver, about to enter or cross a highway from a private road, to yield the right of way to all vehicles approaching on the highway under Code Ann. § 68-1653. The jury was further instructed in *516 this connection that the defendant's vehicle was being operated on a private road, as Interstate 20 was at the time under construction and was not a public road. Exception was made on the ground that since the roadway was owned by the State and even though it was in varying stages of construction, it must be considered a public road. There is no evidence in the record that, as to this portion of Interstate 20, the public had been expressly or impliedly extended an invitation to use the roadway. Defendant admitted in its answer to plaintiff wife's complaint that the roadbed had not been completed; no paving activities had begun; and that it had not been opened to the public. All the evidence shows that defendant, a contractor, was in the process of grading and preparing the roadbed for paving. While the roadway may have been taken by the State, there is not a scintilla of evidence that this portion was open to the use of the public. See the definition of a street or highway under Code Ann. § 68-1504 (1) (a). Under these circumstances it was proper for the trial court to charge as a matter of law that the portion of Interstate 20 in issue was a private road. Powell v. Barker, 96 Ga. App. 592 (101 SE2d 113).
4. The court charged the jury in the wife's case on the subject of her measure of damages for recovery of the full value of the life of her husband. The jury was instructed that when it ascertained the gross amount of the value of deceased's life, "it would be your duty to reduce that gross amount to its present cash value" at the rate of 7%. No exception was taken. The jury later asked the trial court to recharge them on reduction to present cash value. In response to this request the court recharged that there may be an occasion "under all the instructions in a case when it would be appropriate for the jury to reduce a sum of money to be received at some future time or over a period of years in the future to its present cash value"; and the jury should use the rate of 7% per annum in making the reduction. Exception was then taken on the ground that the recharge would lead the jury to believe that it was not necessary to reduce the gross amount to its present cash value and that in the widow's case reduction to present cash value was required. Later the jury again requested additional instructions on computation of damages. The *517 trial court re-instructed the jury on the subject and specifically, again, charged that upon ascertaining the gross full value of the life of the deceased, "it would be" the jury's duty "to reduce that amount to its present cash value using the 7% legal interest rate" and then gave the jury in great detail mathematical examples of the application of this rule. On appeal it is contended that the first recharge would mislead the jury by giving the jury the impression that reduction was not required. Considering the charge as a whole, and in particular the last instruction given the jury on the subject, the challenged instruction is not subject to the criticism made. Howell v. Bowden, 198 Ga. 57 (30 SE2d 887).
5. Other grounds of error contained in the motion for new trial were abandoned.
Judgment affirmed. Quillian and Whitman, JJ., concur. | 01-03-2023 | 10-30-2013 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.